George v. Nova Scotia (Health and Wellness)

George v. Nova Scotia (Health and Wellness) Court Supreme Court Date 2014-05-20 Citation 2014 NSSC 184 Docket Hfx 411252 Judge/Registrar/Adjudicator Moir, Gerald R. P. (Honourable Justice) Document Type Decision Decision Content Supreme Court of Nova Scotia Citation: George v. Nova Scotia (Health and Wellness), 2014 NSSC 184 Date: 20140520 Docket: Hfx No. 411252 Registry: Halifax Between: Dr. Stan George, Dr. Rajender Mohandas and Dr. Robert Scott Applicants v. Nova Scotia (Minister of Health and Wellness) and Doctors Nova Scotia Respondents Decision Judge: The Honourable Justice Gerald R. P. Moir Heard: January 22, 2014 Counsel: Ronald A. Pink, Q.C., for the Applicant Edward A. Gores, Q.C., for the Respondent Attorney General of Nova Scotia Brian P. Casey, for the Respondent Doctors Nova Scotia Moir J.: Introduction [1] Doctors George, Mohandas, and Scott are ophthalmologists. The fee they may charge the government for cataract surgeries was reduced by twenty-five percent. They started a judicial review proceeding to challenge the reduction on the bases of bias and other procedural unfairness. [2] On the motion for directions, the court ordered the separate determination of a preliminary issue: Is the reduction subject to judicial review? [3] In September of 2012, the co-chairs of an entity called the “Master Agreement Steering Group” signed a document calling itself “FSAC Decision Document—FSAC Cataract Fee Reduction September 2012 New Fee Code Draft Wording—Cataract Surgery”. It reduced the fees payable for cataract surgery and anesthesia over a four-year period. The projected saving was $2m. [4] I will review, and then summarize, the legislative and contractual underpinnings of this decision or agreement. I will then discuss the main authorities to which the parties referred. I will determine two preliminary issues about the standing of the applicants and whether we are missing a necessary party. [5] I will then deal with the main issue. First, I will characterize the decision under review as contractual rather than adjudicative. Then, I will confront the main issue: whether the agreement for a reduction is a reviewable decision. I conclude that it is not. Health Services and Insurance Act [6] This statute founds Nova Scotia’s participation in the national medicare scheme established in 1964 by the Canada Health Act. As required for participation, s. 3(1) of our statute guarantees hospital services for all residents and s. 3(2) insures all residents for the tariff cost of most services performed by a physician, “the cost of insured professional services to the extent of the tariffs.” [7] Section 13 of the Health Services and Insurance Act is about those tariffs, and it is better to reproduce the whole of it here: 13 (1) It is the function of the Minister and the Minister has power to (a) negotiate, in good faith, compensation for insured professional services on behalf of the Province with the professional organizations representing providers; (b) participate in any process of final offer arbitration as provided for in this Section; (c) establish the tariff or tariffs of fees or other system of payment for insured professional services determined in accordance with this Section and, with the approval of the Governor in Council, authorize payments in respect thereof; (d) interpret tariffs and determine their application to the assessment of claims; (e) conduct surveys and research in relation to services that are insured under this Act; (f) perform such other functions as may be assigned to the Minister by the Governor in Council; (g) do all other acts and things that the Minister considers necessary or advisable for the purpose of carrying out effectively the intent and purposes of this Act. (2) In this Section, "final offer arbitration" means the dispute resolution process whereby a final offer selection panel receives from each of the disputing parties a final offer on all outstanding issues in a negotiation and, following analysis of the submission and fact finding, the panel selects one final offer or the other without modification, which selection is final and binding on the parties. (3) Issues of compensation for insured professional services not resolved by negotiation shall be settled through final offer arbitration by a panel consisting of one appointee of the appropriate professional organization, one appointee of the Minister and an independent chairman agreed to by each of the appointees. (4) Where a chairman of the panel is not agreed upon, the chairman shall be appointed by the Chief Justice of Nova Scotia within ten days of receipt by him from the professional organization or from the Minister of written notice of the failure to agree. (5) The decision of a panel referred to in subsection (3) may not be altered except by an Act of the Legislature. (6) The relative value for individual fee items in a tariff or schedule of tariffs for payment for professional services rendered by a provider may, with the mutual agreement of the Minister and the professional organization representing the provider, be altered at any time in respect of any item or new procedure. [8] Subsection 13(1)(c) seems as though the minister and the cabinet have the ultimate power to “establish the tariff or tariffs of fees … for insured professional services”, but the phrase “in accordance with this Section” is key. So, we read on to see that the statute contemplates “disputing parties” in s. 13(2) and “negotiation” and “final offer arbitration” in s. 13(3). These provisions tie back into the minister’s functions and powers in s. 13(1)(a) and (b) to negotiate in good faith with representatives of physicians and to participate in arbitration if those negotiations fail. [9] The schedule of tariffs is settled by negotiation, or final offer arbitration, between the minister and the “appropriate professional organization” under s. 13(3). The minister has no choice under s. 13(1)(c) but to establish, and the cabinet has no choice but to approve, the schedule of tariffs settled by negotiation or arbitration. [10] The first five subsections seem to contemplate the establishment of the schedule of tariffs. I am told, and one would expect, that the result is a huge text. I am told, and one would expect, that the huge volume undergoes frequent revision. That is the subject of s. 13(6). [11] Subsection 13(6) is in the passive voice. “The relative value for individual fee items … may … be altered at any time …”. Altered by whom? The minister with the approval of the cabinet: s. 13(1)(c). Again, however, the minister and the cabinet have no choice. Back to s. 13(6), the change has to be made “with the mutual agreement of the Minister and the professional organization representing the provider”. [12] Section 13A authorizes the minister to “enter into an agreement with the Society on behalf of all duly qualified medical practitioners”. “Society” is defined in s. 2(m) to mean “the Medical Society of Nova Scotia”, which is now called Doctors Nova Scotia. Doctors Nova Scotia Act [13] As I said, this legislation continued the Medical Society as “Doctors Nova Scotia”: s. 3. All practitioners under the Medical Act are entitled to membership (s. 8). The members elect directors (s. 10) and establish by-laws (s. 12). [14] Subsection 7(1) makes the society “the sole bargaining agent for any and all duly qualified medical practitioners”. It provides that agreements with the provincial government “bind its members”. This general power includes agreements on “the tariff of fees”: s. 7(1)(a). There is no provision requiring ratification of a collective agreement by the membership. [15] So, the combination of s. 13(6) in the Health Services and Insurance Act and s. 7(1) of the Doctors Nova Scotia Act binds a medical practitioner to a fee alteration made by the government with the agreement of the society. Physician Services Master Agreement [16] The applicable master agreement was signed for the government and the society in October, 2008. It was good until March 31, 2013. It provides for overall funding of medical and anesthesia services accumulating to $108m in the last year including funding for fee schedule adjustments and new fees. [17] The agreement establishes a “Master Agreement Steering Group” in article 7(b). This is the entity that signed the decision sought to be reviewed. The group is composed of four provincial appointments and four society appointments, but there is a mechanism for appointment of a ninth if there is a tie: article 7(c) and (d). [18] The steering group is permitted to form “standing committees or working groups” including a “Fee Schedule Advisory Committee (‘FSAC’)”. This accounts for the acronym in the title of the decision. [19] The master group’s role is advisory “unless otherwise expressly stated in this Agreement”: article 7(h). Express statements on fee schedule adjustments and new fees are found in article 6.1(b) and Schedule “A”. The article requires the government to fund the adjustments and new fees “as outlined in Schedule ‘A’ ”. The first clause in the schedule reads: DOH and DNS agree that the fee schedule may be adjusted from time to time, as approved by the MASG. The MASG shall consider the recommendations of the Fee Schedule Advisory Committee before granting such approval. So, the “mutual agreement” referred to in s. 13(6) of the Health Services and Insurance Act is reached through an approval given by the master group, after a recommendation by the advisory committee. [20] The schedule goes on to establish the advisory committee, and to give the society and the government “the right to take forward any fee recommendations to the FSAC”: Schedule “A”, clauses 4 and 5. Summary of Legislative and Contractual Underpinnings [21] We see, therefore, the legislative and contractual underpinnings of the decision sought to be reviewed. [22] The government is required to fund a fee schedule for medical services freely guaranteed to residents of Nova Scotia: Health Services and Insurance Act, s. 13 and s. 3(2). The fee schedule is established by the government, but it must do so in accordance with a negotiated agreement or final offer arbitration: s. 13(1) to (5). The agreement is made with the society (s. 13A). The Physician Services Master Agreement was the fee schedule agreement in the applicable period. [23] The government is also required to alter the fee schedule in accordance “with the mutual agreement of the Minister and the professional organization representing the provider”: s. 13(6). The society is controlled by the physicians, and it has the power to bind them: Doctors Nova Scotia Act generally and s. 7(1) particularly. It is the “professional organization” to which s. 13(6) of the Health Services and Insurance Act is applicable. [24] The Physician Services Master Agreement also provides a mechanism for alterations to the fee schedule in the applicable period. The government or the society takes a proposed alteration to the Fee Schedule Advisory Committee. The committee makes a recommendation for consideration by the Master Agreement Steering Group, on which both parties are equally represented. The agreement is constituted by the “approval” of a change to the fee schedule by that group. Positions of the Parties [25] The government submits that the decision or agreement to reduce fees for cataract surgeries was made by the steering group. It is not reviewable because the applicant physicians’ collective bargaining agent was party to the decision or agreement, and because the entity that made it is not a party to this proceeding. The first part of the submission relies on Justice McEwan’s decision in Matthias v. British Columbia Medical Association, 2013 BCSC 251. [26] The society points out that the basic issue the court needs to confront is whether the fee reduction is the result of a negotiated agreement or a decision. In the case of a negotiated agreement, review may not be possible. Noël v. Société d'énergie de la Baie James, 2001 SCC 39 is said to support this position. [27] Doctors George, Mohandas, and Scott say that the steering group is the process by which the government and the society made the decision to reduce cataract surgery fees. The government and the society, together, made a decision under a statutory power given to the two of them acting together. As such, the decision is reviewable. [28] I am grateful to counsel for their helpful submissions and references to authorities, some of which I shall now discuss. Authorities [29] Matthias was about administration fees charged by the British Columbia Medical Association for benefits it provides to a non-member physician. The analogy to Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211 is obvious, and observations in that decision got much attention in Justice McEwan’s reasons in Matthias. [30] Ms. Matthias moved to have her action certified as a class proceeding. The contentious issue was whether her pleadings failed to disclose a cause of action in the sense of “plain and obvious that the plaintiff cannot succeed” (para. 35). The causes were founded upon an assertion that some non-members were being overcharged for administration services when they claimed a benefit under a plan the association administered for all physicians, members and non-members alike. This essential pleading founded claims about breach of trust, breach of fiduciary duty, conversion, a civil remedy for a Charter violation, and unjust enrichment (para. 12 to 17, para. 20, and para. 41). [31] As with our master agreement, the British Columbia association had negotiated a Physician Master Agreement under the Medicare Protection Act (para. 5 to 11). The agreement included benefits for disability, continuing education, professional liability, pensions, maternity or parental leave, and health coverage (para. 26). The British Columbia legislation authorized the association to charge “an administrative fee when non-members apply for a negotiated benefit”, and the fees were not to “exceed the equivalent of dues and levies charged to BCMA members”. [32] Justice McEwan concluded at para. 140: Given the principles set out in Lavigne, all of the abuses the plaintiff alleges are merely different ways of looking at the means by which the BCMA collects fees "up to" those charged to members. Inasmuch as the classic Rand formula and s. 15.3 of the Physician Master Agreement authorize non-member fees equivalent to member fees, the plaintiff's claims are all allegations of "over-charging" within that legal authorization. If an entity in the position of the BCMA is authorized to collect the equivalent of member fees from non-members, the manner in which it collects those fees - in part, and over a period of time - does not give rise to a cause of action. [33] The government emphasizes the quotation from Lavigne at para. 127 of Matthias about the collective choice to be represented by a union and the significance of the Rand formula for union security. Also emphasized are para. 128 of Matthias: The BCMA pursues a number of objectives on behalf of doctors (see paras. 7-9, herein). Its mandate, except as constrained by the terms of the contractual obligations it has undertaken, may be changed by vote of its membership. Its fee structure reflects the sums deemed necessary to carry out the objects it has voluntarily undertaken, with the approval of its membership. It is exactly the sort of body referred to in para. 270 of Lavigne. and this passage at para. 137: “it is lawful for the government to choose the BCMA as the agent through which it deals with all doctors”. [34] The government argues for certain conclusions to be drawn from Matthias. The applicants for judicial review in the present case “were represented in the fee structure agreement process through representative members of DNS”. Therefore, the applicants “cannot bring an independent judicial review application.” “Rather, the appropriate review mechanism is internal, and would be analogous to a duty of fair representation claim.” [35] Noël involved a unionized employee’s attempt to challenge an arbitrator’s award without support from the union. [36] In the civil law province, a decision may be challenged through an action in nullity, which is established by article 33 of the Code of Civil Procedure, or under the supervisory jurisdiction, which is recognized in article 846. [37] The union had grieved Mr. Noël’s dismissal. The collective agreement, as is usual, gave exclusive control of the grievance process to the union, as opposed to the employee. The arbitrator upheld the dismissal, and the union refused to take the decision to judicial review. The question was whether Mr. Noël could do so in his own right. [38] Article 55 of the Code supplies a broad definition of “interest” as would give Mr. Noël the required status. However, the Supreme Court rejected the argument that the broad definition of “interest” in article 55 gave Mr. Noël standing to challenge the arbitrator’s decision in his own right. Articles 33 and 846 establish procedural structures by which substantive rights may be asserted. They establish procedural rights or interests, but “The existence of an interest in bringing a judicial proceeding depends on the existence of a substantive right” (para. 38). [39] The arbitration award was made under the Quebec Labour Code and a collective agreement. The asserted right to challenge the award had to be determined in the “broad framework” of the “relationship between the union and the employer”: para. 40. [40] Exclusive representation is one of the “fundamental principles” in the labour law of Quebec, of the federal Parliament, and of the common law provinces. Some exceptional collective agreements give the employee status as a party to an arbitration. Those aside, “the rule is that the grievance and arbitration process is controlled by the union”: para. 45. Protection for the employee is through the duty of representation, which is discussed at para. 46 to 63 of Noël. [41] Justice LeBel wrote Noël for the Court. His conclusion at para. 64 reads: The concept of interest for the purposes of art. 33 C.C.P. must be analyzed in the context described above. An employee does not have the requisite interest if the union's decision appears to fall within the leeway it is allowed with respect to the performance of its representation mandate. The nature of the labour relations scheme established by the Labour Code is an impediment to recognizing that an employee has a sufficient interest to challenge an arbitration award which he or she contends is unreasonable, on the sole ground that the union refuses to institute judicial review proceedings. That would negate the exclusive nature of the union's representation mandate, and would be problematic not only for the union, but also in respect of an employer that has performed its legal obligations by negotiating a collective agreement and administering that agreement in a manner that has been found by the arbitrator to be proper. It would be difficult to reconcile the principle of stability in labour relations and industrial peace that underlie the organization of the representation and collective bargaining scheme in the Labour Code with the procedural system proposed by the appellant. That system would allow the union's decisions in matters that are central to its function and to the reasonable leeway it is allowed under its duty of representation to be challenged by any employee who might decide to bring a direct action in nullity, asserting that his or her rights had been breached. [42] The applicants rely on a passage in Senez v. Montreal Real Estate Board, [1980] S.C.J. 89, which they say shows “decisions of professional bodies with legislative authority to prescribe a tariff or professional fees are subject to judicial review”. The Court had to determine whether a claim for damages by a wrongly expelled real estate agent was prescribed. The Board breached its by-laws when it wrongly expelled the agent. The Court had to characterize that breach to determine prescription. [43] If the breach were an offence or quasi-offence then recourse may have been prescribed. If it was a breach of contract, recourse was not prescribed. This turned on the nature of the corporation as a political corporation, a professional corporation to whom authority to do something that may affect the public is legislatively delegated, or a voluntary associate whose by-laws affect only members. The passage relied on by the applicants is in para. 43, which reads: The foregoing indicates that the Board does not belong to the category of political corporations or to that of professional corporations as such, which the legislator for reasons of public interest may invest with monopolies, on which he may confer privileges or to which he may delegate a true legislative authority, which may be effective not only against their members but with respect to the public--such as, for example, the power to prescribe a tariff of professional fees. The Board more closely resembles the type of voluntarily formed groups which, in English law, is known as "voluntary associations", such as social clubs, philanthropic, sports or even professional bodies, but the by-laws of which affect only members and apply only to them … "in a manner based on agreement and of a private nature" … . [44] Although Senez does not expressly hold that a professional corporation with delegated legislative authority to set fees to be charged by its members to the public is subject to judicial review, it distinguishes such a professional corporation from the voluntary association that may not be subject to review. [45] The applicants say that Canada (Attorney General) v. Mavi, 2011 SCC 30 provides guidance on judicial review of agreements. They say the case stands for the proposition that “where contracts are structured, controlled and supplemented by legislation, their performance is not governed exclusively by the private law of contract but also by public law, including the duty of fairness.” I think it would follow from such a proposition that collective agreements, and the performance of them, are subject to judicial review. [46] Mr. Mavi and seven other appellants had sponsored relatives to join them in Canada. They signed undertakings for the federal government to make good any income assistance payments paid to the sponsored relative. The relatives received income assistance from Ontario. The circumstances varied among the eight sponsors, but each suffered some kind of unexpected setback and hardship. [47] The federal government filed documents in Federal Court automatically turning its certificate of liability into a judgment. Ontario was to be the beneficiary. The federal government refused to hear about hardship. Enforcement was going to be automatic. [48] In addition to whatever liability the undertaking created, the applicable statute made the amount required to be paid “payable on demand to … Canada and … the province concerned” and it provided that the amount “may be recovered by Her Majesty in either or both of those rights.” [49] The Court said, at para. 53, that these provisions “leave no doubt about the existence of a statutory debt.” At para 47: “… the governments’ cause of action is essentially statutory”. [50] The situation in Mavi “does not come close to the rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness”: para. 51. This is elaborated it para. 48: Dunsmuir dealt with an employment relationship that was found by the Court to be governed by contract. The fact the contracting employee was a senior public servant did not turn a private claim for breach of contract into a public law adjudication. Here, on the other hand, the terms of sponsorship are dictated and controlled by statute. The undertaking is required by statute and reflects terms fixed by the Minister under his or her statutory power. [51] By analogy to “precedent for contracts closely controlled by statute to be enforced as a matter of public law” (para. 49), the Court held “while the sponsors’ undertakings here have some contractual aspects, it is the statutory framework that closely governs the rights and obligations of the parties and opens the door to the requirements of procedural fairness” (para. 50). Applicants’ Procedural Right to Standing [52] Our Civil Procedure Rules do not attempt to define “interest” for the purposes of Rule 7 – Judicial Review and Appeal. We must rely on the common law for that. Justice Muise reviewed the subject in Robichaud v. College of Registered Nurses of Nova Scotia, 2011 NSSC 379 at para. 7 to 12. It is clear that the applicants have a sufficient interest in the reduction of cataract fees to meet the common law requirement for standing. Is the MASG a Necessary Party? [53] If it were, I would not hesitate to join it, or more properly its four members, under Rules 7.10(f) and 35.08(1), but it is not a necessary party. The interests of the four members are entirely subsumed in those of the minister and the society. [54] The applicants submit that the legislative authority to reduce or increase tariff fees, and to create new tariff fees, is given to the minister and the society. To summarize their submission: if the master agreement passes that authority along to the members of the MASG, the master agreement is offside delegatus non potest delegare, but, it is not offside because the FSAC and the MASG are merely mechanisms by which the minister and the society carry out their authority. [55] I adopt the applicants’ submission. The MASG is an agreed mechanism for the minister and the society to carry out their mandate when changes in the tariffs are proposed. A Decision or an Agreement? [56] Just as the MASG could not replace the minister and the society as the ones with legislative power over tariff fee changes, the master agreement cannot replace the statute as the instrument that tells us how a tariff fee change is to be made. [57] Much of the submissions on behalf of the applicants characterize the fee reduction as adjudicative decision-making, the usual focus of judicial review. Respectfully, the legislation envisages agreements, in the sense of contract, not adjudicative decision-making. [58] Subsection 13(6) of the Health Services and Insurance Act has to be taken at its word when it calls for “mutual agreement” because the literal meaning of the phrase is at peace with its context and, a reinterpretation towards adjudicative decision-making would be disharmonious with the context. [59] First, we look at the immediate verbal context. Powers to negotiate in good faith in s. 13(1) are aimed at a negotiated tariff of fees. Otherwise “compensation for insured professional services not resolved by negotiation shall be settled through final offer arbitration”: s. 13(3). In light of 13A and the Doctors Nova Scotia Act, collective agreement is intended for the tariff of fees. [60] The theme of collective agreement does not shift after s. 13(5) to an adjudicative model under s. 13(6). On the contrary, the immediate verbal context’s embrace of collective agreement continues in s. 13(6) with something mundane: the parties to the collective agreement can amend it by further agreement. [61] The closely related statute, the Doctors Nova Scotia Act, is also a source of context indicative of collective agreement rather than administrative regulation or adjudication. The society is a “sole bargaining agent”. Unlike the situation when Doctors Nova Scotia adjudicates a discipline case or when a professional body sets the fees its members may charge the public, in this instance the society bargains. [62] It was a danger of the purposive approach to statutory interpretation that one would overlook the fact that legislation contains a number of purposes and layers of purpose. The danger was that one interpretation would be advanced over another because a purpose close to the favoured interpretation would be recognized and one supporting another might be forgotten. [63] The main purpose of the Health Services and Insurance Act is to conform Nova Scotia to the standards of the Canada Health Act so as to qualify for the funding that allows for universal health care. Collective bargaining is not essential to that purpose. [64] Another purpose was to provide universal health care while trying to preserve some of the professional independence of physicians. Collective bargaining serves that purpose better than empowering an administrative board, similar to a marketing board. Indeed, the other provinces appear to have imposed collective bargaining also, although not all are as explicit about it in their statutes. [65] So, one of the purposes also supplies context supportive of s. 13(6) being about contract rather than adjudication. [66] Therefore, the legislation does not permit the minister and the society to cease bargaining or negotiating, and start adjudicating, when they conclude a collective agreement and start considering amendments to it. The reduction in cataract surgery fees follows from a “mutual agreement”, not a decision. What difference does that make? Is the Reduction Reviewable for Procedural Fairness? [67] Mavi tells us that the present inquiry does not end with the mere finding that the reduction in cataract surgery fees is contractual. The collective agreement for a tariff of fees and the various “mutual agreements” amending the fees are “contracts closely controlled by statute”. It could also be said that a “statutory framework … closely governs the rights and obligations of the parties” since the formation of the collective agreement depends on statute. [68] What is the difference in principle between enforcement of the undertaking in Mavi and performance of the collective agreement in Noël that justifies the inclusion of a public law duty of procedural fairness for enforcement of the undertaking but not for performance of the collective agreement? The collective agreement is closely tied to statute, as is the sponsor’s undertaking. Indeed, the collective agreement depends on statute for its formation. [69] Mavi speaks of “the rather narrow Dunsmuir employment contract exception from the obligation of procedural fairness” (para. 51). It seems to me that if Dunsmuir established an exception, Mavi established an exception to an exception. [70] Of course, Dunsmuir v. New Brunswick, 2008 SCC 9 is more famous for settling our approach to standard of review, but it also dealt with “Procedural Fairness in the Public Employment Context” (para. 91 – 111) and “the Proper Approach to Dismissal of Public Employees” (para. 112 – 116). [71] It once was that the public law duty of procedural fairness attached to the status of a public office holder but not to contractual employment, unless the employment was at pleasure (para. 91). The distinction became impractical (para. 92 to 97). At para. 97, the court said: The important point for our purposes is that Wells confirmed that most public office holders have a contractual employment relationship. Of course, office holders' positions will also often be governed by statute and regulations, but the essence of the employment relationship is still contractual. In this context, attempting to make a clear distinction between office holders and contractual employees for the purposes of procedural fairness becomes even more difficult. [72] Just as the distinction became impractical, “it is also increasingly hard to justify in principle”, para. 98. The discussion of those subjects concluded (para. 102): In our view, the existence of a contract of employment, not the public employee's status as an office holder, is the crucial consideration. Where a public office holder is employed under a contract of employment the justifications for imposing a public law duty of fairness with respect to his or her dismissal lose much of their force. [73] Because the employment of a public official is contractual, issues of fairness are to be determined according to the agreed terms and the private law of contract, not public law. “Where the terms of the employment were explicitly agreed to, it will be assumed that procedural fairness was dealt with by the parties …” (para. 104). And, if the contract is silent “the fundamental terms will be supplied by the common law or the civil law” (also, para. 104). See also, para. 112. [74] Deference to agreed terms and the law of contract is also central to the decision in Noël although the employment contract was formed under, and liability depended on, collective bargaining legislation. See also, the authorities “in the context of collective agreements” referred to at para. 104 of Dunsmuir. [75] The difference between Mavi and Noël is the difference between a contract whose performance or enforcement is regulated by statute and a contract whose performance is governed by the contracted terms. The statutory requirement for the undertaking and a legislated discretion to enforce the undertaking in whole, or in part, or not at all took enforcement of the contract into the sphere of public law. The terms of a collective agreement are private, albeit that the agreement depends on legislation for formation and for binding effect. [76] The tariff does not arise from legislated collective bargaining for terms of employment. It arises from legislated collective bargaining for the amounts of fees charged for insured services. [77] For another example of legislated collective bargaining outside labour law see the Primary Forest Products Marketing Act. It too has an interesting history. See, N.S. Forest Industries v. N.S. Pulpwood Marketing Board, [1975] N.S.J. 368 (S.C.A.D.) and Kimberly-Clark Nova Scotia v. Nova Scotia Woodlot Owners, [2000] N.S.J. 35 (C.A.). [78] Although we are not dealing with a labour collective agreement, Matthias tells us that constitutional law applicable to labour collective bargaining is easily transposed to medical services collective bargaining. Noël tells us that the duty of fairness, apart from the duty of fair representation, does not intrude into the negotiated terms for resolution of disputes under a labour collective agreement. For the same reasons, we should find that there is no duty of fairness in the medical services situation. [79] The case against imposing a duty of fairness into the process for amendment of the tariff for medical services is even stronger than the case against imposition into the dispute resolution terms of a labour collective agreement. The power of the minister and the association is to negotiate an amendment. Both sides have to have the flexibility to give up some opportunities in exchange for securing others. One side may have a duty of fair representation but there is no platform for bargaining if both sides owe such a duty. In this way, the negotiation of a collective agreement is distinct from market regulation by a board or more adjudicative kinds of decision-making. [80] In my opinion, the rights of Doctors George, Mohandas, and Scott in connection with the negotiation of amendments to the tariff for medical services are confined to the association’s duty to represent them fairly in negotiations. The reduction is not reviewable for procedural fairness of the negotiation that led to it. Conclusion [81] I shall dismiss the application for judicial review. The parties may provide written submissions on costs. Moir J.