Alberta Medical Association v. Alberta, 2012 ABQB 113

Court of Queen ’ s Bench of Alberta Citation: Alberta Medical Association v. Alberta, 2012 ABQB 113 Date: 20120223 Docket: 1103 15744; 1103 15821 Registry: Edmonton Docket: 1103 15744 Between: Alberta Medical Association Applicant - and - Her Majesty the Queen In Right of Alberta and Alberta Health Services Respondents And Between: Docket: 1103 15821 Her Majesty the Queen in Right of Alberta as represented by the Minister of Health and Welfare Applicant - and - Alberta Medical Association and Alberta Health Services Respondents

_______________________________________________________ Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ Introduction [ 1 ] There are 2 applications. The first is an application by the Alberta Medical Association (“the AMA”) for the appointment of an arbitrator pursuant to the terms of the Trilateral Master Agreement (“TMA”) between the AMA, the Government of Alberta as represented by the Minister of Health and Wellness (“AHW”) and Alberta’s Regional Health Authorities.

The Regional Health Authorities were incorporated into Alberta Health Services (“AHS”) by 2009. The second application is brought by AHW for a declaration that under the TMA there is no agreement to arbitrate a new Master Agreement and that the AMA is therefore not entitled to proceed with its proposed arbitration. In the alternative, AHW seeks a direction that the AMA is, in any event, no longer entitled to the court appointment of an arbitrator. Background [ 2 ] The AMA, AHW and Regional Health Authorities entered into the TMA on April 1, 2003.

As both AHW and the AMA have acknowledged, the TMA is not an ordinary contract and is more than a compensation agreement. The TMA deals directly with the delivery of health care services in the Province of Alberta, including the implementation and continuation of a number of policies and programs. It also establishes the governance structure for the administration of these programs and the application of the budget allocated to fund them. [ 3 ] By letter dated March 26, 2010, and pursuant to

Article 11.2 of the TMA, the AMA sought to open the TMA for renegotiation of “all matters and issues of any kind”. AHW acknowledged the request on April 23, 2010 and the parties, AHW, AMA and AHS entered into negotiations, resulting in the execution by them of an Agreement in Principle (“AIP”) on March 31, 2011. In the meantime, by letter dated March 14, 2011, the AMA advised AHW and AHS that it “wishes to submit to arbitration the matter of renegotiation of all matters or issues of any kind as contemplated by

Article 11.2 of the TMA.” AHW responded on March 22, 2011, indicating that it was of the view that the matters raised by the AMA were not subject to arbitration pursuant to

section 10.2 of the TMA. [ 4 ] The AIP executed on March 31 2011 noted that the parties had reached agreement “on all of the essential financial and program elements of a new agreement.” It was “conditional and subject to the drafting of a formal master agreement and the successful completion of ratification processes by each of AHW, AMA and AHS.” Final approval of the parties and the execution of a new Master Agreement by June 30, 2011 was a condition, but final approval was not given and no new Master Agreement was completed. [ 5 ] In the absence of a final agreement, AHW extended the physician programs and benefits contained in the AIP to June 30, 2012. Provisions of the TMA

[ 6 ]

Article 3.1 of the TMA establishes the Tri-lateral Relationship and Budget Process Master Committee, (the “Master Committee”) consisting of the Deputy Minister of AHW, the Chief Executive Officer of the AMA, and a Chief Executive Officer of a local health care authority (now the Chief Executive Officer of AHS). Under

Article 3.2, the Master Committee was given responsibility for the management of the Relationship between AHW, AHS and the AMA. [ 7 ] The authority of the Master Committee is set out in

Article 3.2: 3.2 The Master Committee shall have general responsibility for the management of the Relationship and, without limitation, shall on Consensus and from time to time, have the sole authority, subject always to the provisions hereof, to: (

a) Improve the Relationship and the budget management review and adjustment process set out herein and to effect such improvement by amending the Master Agreement or a Strategic Physician Agreement; (

b) Enter into a new Strategic Physician Agreement; (

c) Resolve any matter, issue or dispute assumed by it or forwarded to it by the Secretariat or in respect of which the Secretariat is unable to reach a Consensus, except as otherwise herein expressly provided: (

d) Approve by Consensus any adjustment contemplated by sub paragraphs 8.10(b), (

c) or (d); or (

e) Amend, vary, change, adjust, reallocate or redistribute any Element or sub Element of the Master Physician Budget. [ 8 ] Under

Article 5.1, the parties to the TMA agreed to enter into a number of Strategic Physician Agreements (“SPAs”) which provide objectives, governance and budgets for a number of health care initiatives and includes the Physician Services Agreement, which provides for the compensation of medical practitioners. [ 9 ]

Article 10 of the TMA is entitled “Dispute Resolution”. The relevant portions provide: 10.1 Subject always to the provisions of paragraph 10.2 below should the Master Committee be unable to reach Consensus relating to: (

a) Any matter, issue or dispute to be decided by it under this Master Agreement; (

b) The

interpretation, application or operation or contravention or alleged contravention of this Master Agreement; (

c) Whether any of the differences set out in sub paragraphs (

a) or (

b) above can be the subject of arbitration; or (

d) The amount of any Element of the Master Physician Budget arising out of reopened negotiations in 2006 or 2008; then any and all of the aforesaid differences (hereinafter in this

Article an “Issue”) shall be referred to arbitration in accordance with the provisions of this Article. 10.2 Notwithstanding anything to the contrary in this Master Agreement, a Strategic Physician Agreement or a Mandate, the following items are not subject to dispute resolution under this Master Agreement: (

a) The inability of the Master Committee to reach Consensus regarding any item that could reasonably be considered as expanding, adding to or materially altering the Relationship, including, without limitation: (

i) an extended term of this Master Agreement or any Strategic Physician Agreement; or (ii) whether a new Strategic Physician Agreement should be entered into; (iii) whether this Master Agreement or any Strategic Physician Agreement should be amended or altered in any of their respective

provisions; (

b) The inability of the Master Committee to reach Consensus regarding: ... (

v) a matter or issue, other than a financial matter of any kind, referred to in a notice to reopen negotiations served pursuant to paragraph 11.1; (

c) The inability of the Parties to reach agreement respecting a non financial matter referred to above and in respect of which Consensus to negotiate was reached, unless the Master Committee has specifically determined that such matter should be referred to dispute resolution in the absence of agreement; ... 10.3 All submissions to arbitration shall be in writing and contain a list of the Issues permitted to be arbitrated or claimed to be arbitrable and shall be forwarded to each of the other Parties. 10.4 Within seven (7) business days of receipt of a submission to arbitration the responding Party or Parties shall prepare and deliver a written response. 10.5 Within seven (7) business days of the earlier of the due date and receipt of a response to a submission to arbitration the Master Committee shall meet to determine the identity of the person to act as the sole arbitrator under the arbitration. 10.6 In the event that the Master Committee fails to reach Consensus on the identity of the sole arbitrator, any Party may, at any time after fourteen (14) business days from the earlier of the due date and date of receipt of a response to a submission to arbitration under paragraph 10.5, request, by Originating Notice, the Chief Justice, or Associate Chief Justice, of the Court of Queen’s Bench of Alberta, to appoint a sole arbitrator. 10.7 Notwithstanding anything to the contrary, the Master Committee may by Consensus extend any timeframe prescribed or required in this Article. 10.8 The arbitrator shall conduct the arbitration and hear and determine the Issues in private. 10.9 The arbitrator shall render a decision in writing within thirty (30) days of the end of the hearing.

The decision of the arbitrator shall be final and binding on the Parties and shall be implemented in the manner provided for in the arbitration decision; provided that the arbitrator shall be entitled to reserve jurisdiction to hear and resolve any disputes arising as a result of the award. 10.10 Each Party shall pay one third of the fees and expenses of the arbitrator. [ 10 ]

Article 11 of the TMA is entitled “Reopening This Agreement”, and provides: 11.1 Any Party to this Master Agreement may, within the twelve (12) months before: (

a) The 31 st day of March, 2006; and (

b) The 31 st day of March, 2008;

open for renegotiation any financial matter of any kind, or other matters or issues upon which the Master Committee reaches Consensus. 11.2 Any Party to this Master Agreement may, not less than twelve (12) months or more than eighteen (18) months before the 31 st day of March, 2011 open for renegotiation all matters or issues of any kind. 11.3 Notice to reopen shall be in writing and shall be delivered to the members of the Master Committee in accordance with the provisions hereof, and shall contain a statement of the matters or issues, which the Party giving the notice wishes to renegotiate. 11.4 Upon receipt of a notice to reopen served pursuant to paragraph 11.1 the Master Committee shall within thirty (30) days meet and determine whether there is Consensus to negotiate respecting any matter or issue other than a financial matter, failing which it shall be deemed that only financial matters are open for renegotiation. 11.5 Upon receipt of a notice to reopen served pursuant to paragraph 11.2 the receiving parties shall within thirty (30) days advise whether they have any other matters or issues to be included in the negotiations and, if so, include a statement of the matters or issues. 11.6 If no response is received within the time frame set out in paragraph 11.5 it shall be deemed that the non-responding Party or Parties, as the case might be, have no other matters or issues that they wish to negotiate regarding a paragraph 11.2 notice. 11.7 The Parties shall meet within one month of the receipt or deemed receipt of the latest response to a notice to reopen to commence negotiations. 11.8 When dealing with any element of the Master Physician Budget for any Fiscal Year following the 2005/06 Fiscal Year the Arbitrator shall consider, amongst other things: (

a) Prevailing and anticipated economic conditions in Alberta; (

b) Fair and reasonable compensation for Physicians; and (

c) Funding received or to be received by the Department or the Province of Alberta from others and allocated or to be allocated to any Element of the Master Physician Budget. 11.9 The decision of the Arbitrator shall, within thirty (30) days of the issuance of the award be incorporated into one or more of an agreement or an amendment to this Master Agreement or a Strategic Physician Agreement as the case might be, which agreement or amending agreement shall be signed by the Members of the Master Committee. 11.10 Matters agreed to shall be incorporated into this Master Agreement or a Strategic Physician Agreement as the case might be. 11.11 Each Party shall pay one third of the fees and expenses of any arbitrator. [ 11 ] Pursuant to

Article 13.5, the TMA is to be interpreted and governed by the laws in force in Canada and in the Province of Alberta. Application of the Arbitration Act , the Judicature Act , and the Canada Health Act

[ 12 ] Before considering whether it is appropriate for this Court to determine arbitrability, or whether instead this question should be referred to an arbitrator, it is necessary to consider the parties’ arguments regarding jurisdiction and the application of a number of statutory provisions. [ 13 ] The initial application was brought by the AMA pursuant to Rule 3.8 of the Alberta Rules of Court and

Article 10.6 of the TMA. AHW does not contest the Court’s jurisdiction to hear an application by the AMA for the appointment of an arbitrator. [ 14 ] The jurisdictional issues raised by AHW’s cross-application are more complicated. AHW seeks declaratory relief under s.11 of the Judicature Act , R.S.A. 2000, c.J-2 which provides: 11.

No proceeding is open to objection on the ground that a judgment or order sought is declaratory only, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. [ 15 ] AHW also relies upon s.47 of the Arbitration Act , R.S.A. 2000, c.A-43, which provides: 47(1) At any stage during or after an arbitration on the application of a party who has not participated in the arbitration, the court may grant a declaration that the arbitration is invalid because (

a) a party entered into the arbitration agreement while under a legal incapacity, (

b) the arbitration agreement is invalid or has ceased to exist, (

c) the subject matter of the arbitration is not capable of being the subject of arbitration under Alberta law, or (

d) the arbitration agreement does not apply to the matter in dispute.

(2) When the court grants the declaration it may also grant an injunction prohibiting the commencement or continuation of the arbitration. [ 16 ] The question of the applicability of the Arbitration Act is further complicated by s.40 of the Alberta Health Care Insurance Act , R.S.A. 2000, c.A-20 40(1) The Minister may enter into agreements with any government, person or unincorporated group of persons (

a) respecting any matter relating to the administration or operation of the Plan, or (

b) providing for any matter for which no provision is made elsewhere in this Act or in the regulations that the Minister considers necessary, and the Minister may implement any agreement so made.

(2) An agreement under subsection (1) between the Minister and the Alberta Medical Association may provide for the submission of differences to arbitration.

(3) If an agreement between the Minister and the Alberta Medical Association provides for arbitration, (

a) the arbitration is final and binding on the Crown and the Alberta Medical Association, and (

b) the Arbitration Act does not apply to the arbitration.

[ 17 ] AHW contends that if the arbitration sought by the AMA is not authorized under the TMA, s.40(3) of the Alberta Health Care Insurance Act would not apply and therefore AHW may rely upon s.47 of the Arbitration Act . On the other hand, if the arbitration sought by the AMA is authorized under the TMA, AHW contends that the application of the Arbitration Act is precluded by s.40(3)(

b) and therefore AHW relies upon s.11 of the Judicature Act .

In the AMA’s submission, the issue is not purely academic because the AMA relies upon a number of other provisions in the Arbitration Act and in the alternative contends that s.47(1) of the Arbitration Act precludes AHW’s application because no arbitration has commenced and the parties are not “at any stage during or after an arbitration.” [ 18 ] Neither AHW nor the AMA addressed the question of whether s.40 of the Alberta Health Care Insurance Act applies to an agreement that is not only between the Minister (AHW) and the AMA, but is between the AHW, the AMA and AHS.

Although it is my view that the determination of this matter does not turn on the point, and that the result would be the same under s.47(1) of the Arbitration Act and s.11 of the Judicature Act , I conclude that s.40(3) of the Alberta Health Care Insurance Act does not apply to the TMA because it is not, strictly speaking, an agreement between the Minister (AHW) and the AMA within the meaning of that section. Consequently the Arbitration Act applies. [ 19 ] It does not follow, however, that s.47(1) of the Arbitration Act operates as a bar to this application because arbitration has not formally commenced. This

interpretation would render s.47(2), which allows the court to grant an injunction prohibiting the commencement of an arbitration, meaningless. In my view s.47(1) will apply where, as here, one party has given notice of its intention to initiate arbitration proceedings and another party objects. [ 20 ] Finally, the AMA contends that the TMA must be interpreted in light of s.12 of the Canada Health Act , RSC 1985, c.C-6, the relevant portion of which provides: 12.

(1) In order to satisfy the criterion respecting accessibility, the health care insurance plan of a province ... (

c) must provide for reasonable compensation for all insured health services rendered by medical practitioners or dentists; and

(2) In respect of any province in which extra-billing is not permitted, paragraph (1)(

c) shall be deemed to be complied with if the province has chosen to enter into, and has entered into, an agreement with the medical practitioners and dentists of the province that provides (

a) for negotiations relating to compensation for insured health services between the province and provincial organizations that represent practising medical practitioners or dentists in the province; (

b) for the settlement of disputes relating to compensation through, at the option of the appropriate provincial organizations referred to in paragraph (a), conciliation or binding arbitration by a panel that is equally representative of the provincial organizations and the province and that has an independent chairman; and (

c) that a decision of a panel referred to in paragraph (

b) may not be altered except by

an Act of the legislature of the province. [ 21 ]

Section 12 of the Canada Health Act requires only that a province must provide reasonable compensation for all insured health services, and that if the province has chosen to enter into an agreement with medical practitioners that includes an arbitration provision, compensation is deemed to be reasonable. In short, the Canada Health Act mandates reasonable compensation, not arbitration, and while failure to comply with s.12 would put a province’s receipt of federal money at risk, it has no bearing on the issues of whether, under the TMA, AHW is required to arbitrate with medical practitioners.

The Preliminary Issue: Deference to the Arbitrator and the Dell Exception [ 22 ] Section 17(1) of the Arbitration Act codifies what is known as the competence - competence principle, which provides that an arbitrator is ordinarily competent to determine his or her jurisdiction and to rule upon objections to it. The resulting general rule of judicial deference, and the exception to this general rule, were described in Union des Consommateurs v. Dell Computer Group , 2007 SCC 34 , by Deschamps J. for the majority, at paras.84-86:

First of all, I would lay down a general rule that in any case involving an arbitration clause, a challenge to the arbitrator's jurisdictionmust be resolved first by the arbitrator. A court should depart from the rule of systematic referral to arbitration only if the challenge tothe arbitrator's jurisdiction is based solely on a question of law.

This exception is justified by the courts' expertise in resolving suchquestions, by the fact that the court is the forum to which the parties apply first when requesting referral and by the rule that anarbitrator's decision regarding his or her jurisdiction can be reviewed by a court. It allows a legal argument relating to the arbitrator'sjurisdiction to be resolved once and for all, and also allows the parties to avoid duplication of a strictly legal debate.

In addition, thedanger that a party will obstruct the process by manipulating procedural rules will be reduced, since the court must not, in ruling on thearbitrator's jurisdiction, consider the facts leading to the application of the arbitration clause. If the challenge requires the production and review of factual evidence, the court should normally refer the case to arbitration, asarbitrators have, for this purpose, the same resources and expertise as courts.

Where questions of mixed law and fact are concerned, thecourt hearing the referral application must refer the case to arbitration unless the questions of fact require only superficial considerationof the documentary evidence in the record. Before departing from the general rule of referral, the court must be satisfied that the challenge to the arbitrator's jurisdiction is not adelaying tactic and that it will not unduly impair the conduct of the arbitration proceeding.

This means that even when considering one ofthe exceptions, the court might decide that to allow the arbitrator to rule first on his or her competence would be best for the arbitrationprocess. [23] AHW contends that the determination of the substantive issue requires only a contractual

interpretation of the TMA, which isa question of law: Dreco Energy Services v. Wenzel, 2008 ABCA 290. The AMA argues that the issue of whether the parties have a rightunder the TMA to interest arbitration is neither a pure question of law, nor a question of mixed fact and law which would require only asuperficial consideration of the documentary evidence on the record. The AMA contends that the

interpretation of Articles 11.8 and 11.9of the TMA leads to ambiguity, requiring the introduction and consideration of extrinsic evidence. [24] Some guidance with regard to what amounts to a “superficial consideration of the documentary evidence in the record” maybe found in decisions applying Dell. In Epcor Power L.P. v.

Petrobank Energy & Resources Ltd., 2010 ABCA 378, where the issue waswhether the expiration of a limitation period served to bar arbitration proceedings, the Court recharacterized the test somewhat, holdingat para.20: It is apparent from the language employed by the Supreme Court of Canada that the discretion available to not refer a matter toarbitration is circumscribed, and applies to narrow circumstances: only on a pure question of law alone that can readily be resolved onsuperficial material and will expeditiously dispose of the entire dispute between the parties.

Even if the court can resolve an issue itself, itmay still choose not to do so and instead refer the matter to arbitration. [25] In Jean Estate v. Wires Jolly LLP., 2009 ONCA 339, Weiler J.A. for the majority, described the test at para.6: However, in Union des consmmateurs c. Dell Computer Corp ... the Supreme Court of Canada recognized that exceptionally a SuperiorCourt judge can assume jurisdiction over the threshold issue of enforceability when an important question of law is raised and onlycursory reference to the evidence is necessary.

The Supreme Court added a proviso that the issue must not be raised for the purposes ofdelay: para.86. [26] I prefer the formulation of the Court of Appeal in Epcor Power, which places the emphasis on the nature of the evidence,rather than the superficiality of the court’s analysis. In any event, the parties do not disagree about the facts giving rise to this applicationor to the arbitration sought by the AMA.

To the extent that the production and review of factual evidence is required, it would only be soif the AMA is correct in its assertion that the relevant provisions of the TMA are ambiguous, requiring, in the AMA’s submission, areview of extrinsic evidence of negotiating history. [27] Ambiguity, in the context of the

interpretation of statutes, was described by Iacobucci J. in Bell ExpressVu LimitedPartnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559, at para.29:

What, then, in law is an ambiguity? To answer, an ambiguity must be “real”... The words of the provision must be “reasonably capable of more than one meaning”... By necessity, however, one must consider the “entire context” of a provision before one can determine if it is reasonably capable of multiple

interpretations. In this regard, Major J.’s statement in Canadian Oxy Chemicals Ltd. v. Canada (Attorney General) ... is apposite: “It is only when genuine ambiguity arises between two or more plausible readings, each equally in accordance with the intentions of the statute, that the courts need to resort to external interpretive aids”... to which I would add, “including other principles of

interpretation”. [ 28 ] It is well established that the proper approach to the

interpretation of any written agreement is to read the words in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme of the agreement, its object and intention. Even in the event of ambiguity, it is not always necessary to have recourse to extrinsic evidence if the meaning of the provision in question can be determined from a review of the agreement as a whole: Calgary (City) v. International Assn. of Fire Fighters (Local 255) , 2006 ABQB 133 (aff’d: 2008 ABCA 77 ). [ 29 ] I can find no ambiguity in the provisions of Articles 11.8 and 11.9 that would require the admission of extrinsic evidence as an aid to

interpretation. Read together, and in the context of the entire agreement, Articles 10 and 11 of the TMA set out a scheme by which disputes arising under the TMA may be submitted to arbitration, and by which the terms of the TMA itself may renegotiated. While it is correct that Articles 11.8 and 11.9 refer to arbitration that may arise out of the reopening of the TMA, it is also clear, for reasons that I will describe more fully below, that the scope of any such arbitration would be limited by the terms of

Article 10. There is nothing ambiguous about the opening words of

Article 10.2, which provide that it applies “Notwithstanding anything to the contrary in this Master Agreement...”. In my view,

Article 10.2 is clearly paramount. [ 30 ] Consequently, the only fact that is required to be considered in the analysis is the nature of the arbitration sought by the AMA. This is readily determined by a review of the correspondence between the parties beginning on March 11, 2010, and in particular the AMA’s formal request for arbitration dated March 14, 2011. In short, there are no factual issues that cannot be resolved on the materials before me and the substantive issue, which is whether the parties are required to arbitrate “all matters or issues of any kind as contemplated by

Article 11.2 of the TMA” is a question of law to be determined by interpreting the provisions of Articles 10 and 11. This Court is as capable of making a determination in respect of this issue as an arbitrator would be, and there is no reason to conclude that AHW’s raising of the issue before this Court amounts to an attempt at delay. As a result, this is an appropriate case for the application of the exception to the general rule of deference set out in Dell . The Substantive Issue: Arbitration of “All Matters or Issues of Any Kind ” [ 31 ] The AMA’s March 26, 2010 correspondence requesting the opening of the TMA for renegotiation of all matters and issues included, per

Article 11.3, a list of specific issues the AMA wished to include in negotiations. These included a significant number of non-financial matters, including the term and conditions of a new agreement, the provisions for re-opening negotiations, the representation rights of the AMA, the arbitration provisions and management and relationship structures. It is implicit from the AMA’s correspondence of March 14, 2011 that the matter it wished to submit to arbitration, in the event of the failure to finalize the AIP, was the renegotiation of the TMA.

In its submissions before me, the AMA argues that it seeks through the proposed arbitration an amendment to the TMA, but it is clear from the correspondence on the record that the scope of the arbitration would encompass all of the issues that the parties negotiated and were addressed in the AIP. To say, as AHW does, that this is a request to arbitrate all of the terms of a new Master Agreement is not a mischaracterization.

The issue, therefore, is whether, under the unambiguous provisions of Articles 10 and 11 of the TMA, there is a right to arbitrate the terms of a new Master Agreement between AHW, AHS and the AMA. This requires an

interpretation of the relevant provisions of the TMA and the nature of the arbitration sought by the AMA. [ 32 ] The AMA contends that

Article 10 of the TMA applies only to a “rights arbitration”, not the “interest arbitration” the AMA seeks. In essence the AMA contends that

Article 11 of the TMA provides for a right to arbitration independent of the provisions of

Article 10, and in particular, the limit on arbitrable matters in

Article 10.2. [ 33 ]

Article 11.2 allows any party to open for renegotiation all matters or issues of any kind within 18 to 12 months of the March 31 2011 expiry of the TMA.

Article 11.3 stipulates the form and manner of notice,

Article 11.5 the form and manner of response and

Article 11.6 the consequences of a non-response.

Article 11.7 sets the time for commencement of negotiations. Articles 11.8 and 11.9, which the AMA submits are the basis for the proposed arbitration, do two things.

Article 11.8 sets out the matters the arbitrator shall consider when dealing with any element of the Master Physician Budget following fiscal year 2005/06, ie. when dealing with a financial issue.

Article 11.9 provides for the incorporation of the decision of the arbitrator into the Master Agreement or a Strategic Physician Agreement. It is the means by which an arbitrator’s decision may be implemented, not a basis for an arbitration procedure independent of the limits of

Article 10. If the parties had intended to establish, under

Article 11, a separate form of arbitration, they could have used

clear language to do so. [ 34 ] There is nothing in the whole of

Article 11, and in particular Articles 11.8 and 11.9 to suggest that

Article 11 provides for a form of arbitration independent from the provisions governing the dispute resolution process set out in

Article 10. Indeed,

Article 10.2(b) (

v) specifically precludes arbitration in respect of “a matter or issue, other than a financial matter of any kind, referred to in a notice to reopen negotiations served pursuant to paragraph 11.1", and it is clear that Articles 10.1(d), 11.1 and 11.8 are intended to be read together. [ 35 ] The only interpretive problem that arises from the interaction of Articles 10 and 11 comes about as a result of

Article 10.2(a) (iii), which precludes arbitration in respect of whether the TMA or any SPA should be amended or altered, and

Article 11.9, which expressly provides for the amendment of the TMA or an SPA to accord with the decision of the arbitrator. The problem is solved by looking at

Article 11.9 carefully and in conjunction with

Article 11.8. In my view, what

Article 11.9 allows is the amendment of the TMA or an SPA as a result of an arbitration in respect of the Master Physician Budget, which is allowed under Articles 10.1(

d) and 11.1. Matters that the arbitrator must consider in the context of such an arbitration are set out in

Article 11.8.

Article 11.9 allows for the incorporation of the decision in an

Article 10.1(

d) arbitration into the TMA or an SPA by way of amendment. It does not give rise to a separate right to arbitrate an amendment that would address “all matters or issues of any kind.” [ 36 ] The arbitration of a new Master Agreement would clearly require the consideration of expressly non-arbitrable matters under

Article 10.2, including matters that could reasonably be considered as expanding, adding to or materially altering the relationship, and matters dealing with an extended term of the TMA, or whether a new SPA should be entered into, or whether the TMA or any SPA should be amended or altered in their respective provisions. The TMA is a complex instrument, providing not only for the compensation of medical practitioners but also for governance, the resolution of disputes, the exchange of information and the implementation of important policies and initiatives.

I agree with AHW that the public policy nature of much of what is contained in the TMA does not lend these matters to arbitration. In any event, it is clear from the terms of the TMA that the broad reconsideration of the relationship between the parties that would be involved in the arbitration of a new Master Agreement is not an arbitrable matter.

Conclusion [ 37 ] This Court has jurisdiction, pursuant to s.47(1) of the Arbitration Act and pursuant to s.11 of the Judicature Act to hear AHW’s application for a declaration that the matters the AMA wishes to submit to arbitration are non-arbitrable under the terms of the TMA. The question of the arbitrability of what would amount to a new Master Agreement is a question of law that requires a careful consideration of the terms of the TMA but no determination of complex factual issues.

Judicial economy is served by determining the issue of arbitrability here instead of referring this question of law to an arbitrator. As a result, the exception in Dell to the general principle of deference applies. [ 38 ]

Article 10.2 of the TMA is paramount and applies to any arbitration proceedings arising under the TMA.

Article 11 does not give rise to an independent right to an interest arbitration. The arbitration of a new Master Agreement, or the issues contained in the AIP, or the issues listed by the AMA in its correspondence of March 26, 2010, would require the arbitrator to consider a number of issues that are expressly non-arbitrable under

Article 10.2. Consequently, the AMA’s application for the appointment of an arbitrator is denied, and AHW’s application for a declaration that the AMA is not entitled to proceed with the proposed arbitration is granted. [ 39 ] Costs, if demanded, may be spoken to. Heard on the 7 th day of November, 2011. Dated at Calgary, Alberta this 21 st day of February, 2012.

Neil Wittmann C.J.C.Q.B.A. Appearances: Murray D. McGown, Q.C. for Alberta Medical Association William C. Olthuis and Sean McDonough for Her Majesty the Queen in Right of Alberta as Represented by the Minister of Health and Wellness Kent H. Davidson, Q.C. for Alberta Health Services