Yvan Brodeur was a resident at CHSLD René-Lévesque in Longueuil, Quebec. In April 2020, Mr. Brodeur died days after testing positive for COVID-19, one of the many deaths to occur during the outbreak at the facility. His family shared his story with journalists as they were waiting for a coroner’s inquest to conclude whether he died from the COVID-19 virus, or from dehydration due to neglect as the facility spiraled into a “war zone.”1 Mr. Brodeur’s story is tragic, but was sadly labelled “typical” of the thousands of deaths that occurred in long-term care (LTC) facilities during the COVID-19 pandemic.2
In the Speech from the Throne in September 2020, it was acknowledged by the federal government that “one of the greatest tragedies of this pandemic is the lives lost in long-term care homes.”3 Highlighting the issue as an upcoming priority, the speech continued:
Although long-term care falls under provincial and territorial jurisdiction, the federal government will take any action it can to support seniors while working alongside the provinces and territories...
The Government will also:
- Work with the provinces and territories to set new, national standards for long-term care so that seniors get the best support possible...4
The speech outlines a central question—if LTC falls under provincial and territorial jurisdiction, how can truly “national” standards be implemented? And what is the role of the federal order vis-à-vis that of the role of the provinces and territories? This essay will seek to respond to these questions. Part I will provide further details regarding the events that occurred in LTC during the COVID-19 pandemic. Part II will address the history and current framework of LTC in Canada. Part III will explore different proposals that have been raised including: the peace, order, and good government power; specific LTC insurance alongside the Canada Pension Plan; intergovernmental agreements; amending the Canada Health Act; and the creation of standalone legislation and a separate funding envelope.
This essay will conclude that the creation of a separate funding envelope for LTC under the federal government’s spending power—that is parallel but separate to the Canada Health Act—and structured through intergovernmental agreements offers the most promising avenue for success. Funding would come with “strings attached,” be contingent on compliance with certain standards, and have a robust accountability regime.
COVID-19 “carnage” in LTC
On January 23rd 2020, the first case of COVID-19 was identified in Canada. Case numbers in the country grew steadily, from four confirmed cases in January, to 8,589 by the end of March. On March 8, 2020, the first Canadian to die of COVID-19 was a resident of a LTC facility in British Columbia.5 This first death would foreshadow the broader devastation that would occur in LTC. By September 2020, Canada had recorded 9,262 COVID-19 deaths, with 7,609—a total of 82%—occurring in LTC facilities. This was twice the average of OECD countries.6 Despite efforts to curb the spread, COVID-19 continued to pose a disproportionate threat to LTC residents in later waves of the pandemic.7
On April 15th, 2020, Quebec Premier François Legault asked for military assistance from the federal government for the province’s hardest hit LTC facilities, with Ontario Premier Doug Ford soon making a similar request.8 Two operational reports by the Canadian Armed Forces (CAF) in May 2020 would expose “that abuse and neglect were happening on a grand scale in institutional care,” with personnel describing the horrific conditions they found in the facilities.9 CAF personnel were often met with a disorganized, skeleton staff. Personnel found residents who had been receiving expired medication for months, had missed multiple meals, and/or who had not been bathed for weeks. Personnel also described witnessing residents crying out for help for up to two hours.10 Coroners’ reports and commissions of inquiry continue to unearth details regarding outbreaks in LTC. In the aftermath, anxiety, depression, and PTSD have been reported from CAF personnel, regular staff, residents, and families.11
The “covid carnage” in LTC has been attributed to a variety of factors. These include insufficient infection control, the movement of staff among multiple facilities, lack of personal protective equipment (PPE), a lack of sick leave for staff, and the push to return patients from hospital settings into LTC.12 The pandemic preparedness plans created following the 2003 SARS outbreak in Canada prioritized the protection of hospitals and did not address LTC facilities. This has been attributed to the fact that—as addressed in the next section—LTC facilities are not part of Canada’s medicare system.13 Referred to by some as the “original sin” of medicare, this omission left LTC facilities vulnerable.14 Many experts, however, have expressed exasperation that much of the devastation in LTC can be attributed to issues that have been known for decades.15
History and Current Framework of LTC
To understand how to improve LTC in Canada, it is critical to understand the history of LTC, where it is positioned within Canadian federalism, and its myriad of forms in different provinces and territories.
History of Elder Care & LTC
Institutional elder care has a variety of names in Canada, including nursing homes and continuing care facilities.16 In Quebec, they are known by the initialism CHSLD, for centre d'hébergement et de soins de longue durée.17 For consistency, however, this paper will use the term long-term care (LTC).
Regardless of the name, these facilities share their origins with the penal system, rather than the health system. The approach to elder care in the 17th through the 19th centuries in North America had its roots in the British Poor Laws of 1601.18 Care for the poor and persons with disabilities was considered a very local responsibility, and those that could not be cared for by family were expected to earn their keep in workhouses funded by charities or municipalities. Conditions were harsh, and abuse remained rampant with limited oversight.19 This model existed until the rise of the welfare state following the Second World War, with a growing push for more compassionate care and oversight. In the late 1940’s, for example, Ontario appointed its first inspectors and passed the Homes for the Aged Act, providing provincial funding to LTC facilities and setting out basic standards.20
A parallel development during this period was the creation of universal healthcare. First created in Saskatchewan in 1947, the concept was expanded nationally with coverage brought in for hospital insurance by the Hospital Insurance and Diagnostics Act in 1957, and coverage for physician services by the Medical Care Act in 1966.21 To encourage a national medicare program, during this period the federal government began to offer cost-sharing grants to the provinces and territories if they adopted universal coverage that was in compliance with a set of core principles (public administration, comprehensiveness, universality, and portability).22 This legislation was incredibly detailed and precise, and the federal government held a strong oversight role.23 While there were many aspirations during this period to include further services like dental care, expanding coverage to include LTC received limited interest. In this period, there was a belief that LTC was a housing issue rather than a medical issue.24 The reality was that few Canadians at this time lived long enough to require LTC.25
The societal changes during the 1960’s and 1970’s, however, began to add strain to this system. Despite infrastructure investments during this period, the system was facing increasing demands.26 The women’s liberation movement and growing urbanization reduced the number of family members able to act as informal caregivers. Moreover, medical advancements led to increased life expectancy and strain on hospitals, limiting their ability to provide extended care. As demand grew, LTC facilities became more utilitarian, increasingly resembling hospitals.27
Journalist André Picard identifies this period as the beginning of an “ad hoc-ism” approach to LTC, where politicians would pledge to create changes in LTC before an election, and then these issues would lose priority after forming government. One of these changes was the creation by the federal government of the Extended Health Care Services program in the 1970’s, that provided provinces with $20 per capita for eldercare. As this money came with no strings attached, however, it was redirected to hospital care by the provinces, and eventually folded into the broader health transfers from the federal government.28 This period also saw a retreat by the federal government from oversight of the provincial administration of healthcare with the 1977 Established Programs Financing Act (EPF).29 This block transfer replaced the previous cost-sharing grants for both healthcare and post-secondary education.30 While provinces were still required to meet conditions in order to receive federal health transfers, the reduced oversight now made them essentially a paper tiger.31
A key moment for LTC policy in Canada was the creation of the Canada Health Act (CHA) in 1984. The CHA established the “criteria and conditions related to insured health services and extended health care services that the provinces and territories must fulfill to receive the full federal cash contribution” of funds from the federal government.32 The CHA defined modern Canadian medicare as limited to care that was “medically necessary,” excluding LTC—the largest form of hands-on care to be excluded.33 Another key moment for healthcare followed a little over a decade later. In 1995, in a period of economic austerity the federal government replaced the EPF with the Canada Health and Social Transfer (CHST), a block grant, and slashed the total amount of transfers. Again, another decade later, in 2004 the federal government divided the CHST, establishing the current Canada Health Transfer (CHT). In the years since, provinces have continued to assert a need for increased funds to care for an aging population.34
Dramatic demographic shifts have continued into the new millennium, making the current system untenable. In 1945, the average life expectancy was 68 years for women and 65 years for men. Today, the average life expectancy is 84 years for women and 80 years for men. Canadians are now likely to not only live longer but live for extended periods of time with a chronic illness or a disability such as dementia. Yet in LTC, the design of facilities, training of staff, or levels of funding have not kept pace with these changes.35
Federalism & Healthcare in Canada
Healthcare is often labelled a “vexing policy area for federal systems” as it is constantly changing and growing more expensive, challenging federal institutions and legal frameworks that were developed in a different context.36 As the brief history detailed above demonstrates, this is especially true in the context of LTC. The Constitution Act, 1867 was developed in a time where elder care was dramatically different.37 In particular, it was developed in an era where healthcare was less expensive. Today, health spending accounts for 11.6% of Canada’s GDP.38
Formally, the Constitution Act, 1867 is silent on health.39 In regards to health—viewed broadly as the overall wellbeing of Canadians—the matter is of shared jurisdiction.40 In terms of healthcare—the provision of medical services by hospitals and doctors—this falls within provincial jurisdiction.41 The federal order has exclusive constitutional jurisdiction over “quarantine and the establishment of marine hospitals” (s. 91(11)), whereas most other hospitals fall under the exclusive jurisdiction of the provinces (s. 92(7)).42 This includes “not just bricks-and-mortar hospitals, but also for healthcare writ large,” including LTC.43 Beyond hospitals, provinces have jurisdiction over the delivery of medical services and related functions through their powers over property and civil rights (s. 92(13)) and matters of a local or private nature (s. 92(16)).44 The costs these responsibilities pose on provinces are enormous, often accounting for a significant amount of provincial spending.
The federal government maintains some jurisdiction over health, through its criminal law power (s. 91(27)) and its powers to pass laws for the peace, order and good government of Canada (s. 91).45 Arguably its largest role in health, however, is through its spending power. The Canada Health Transfer is the largest federal transfer to provinces, reaching $42 billion in 2020-21.46
Structure of LTC in Canada & Long-standing Issues
As a consequence of the decentralization of constitutional responsibility regarding health care in general and elderly care in particular, provinces and territories in Canada have developed different models of LTC.47 LTC facilities are a mix of state-owned (typically by municipalities), and private facilities that may either be not-for-profit or for-profit.48 The nature of LTC varies widely by province and territory. For example, 100% of LTC facilities in the territories are publicly owned, whereas 100% of LTC facilities in New Brunswick are privately owned (14% are private for-profit, with 86% private not-for-profit). Ontario has the highest rate of LTC facilities owned by private for-profit organizations, comprising 57% of LTC facilities.49
While Ottawa provides significant funding for health and social programs through federal transfers, most of the funding for healthcare and LTC comes from the provinces’ own revenue sources. Provincial governments are responsible for funding public LTC facilities and regulating both private and public LTC facilities.50 In LTC facilities, care is covered as it would be in a hospital. Individuals only pay for accommodation, the price of which is capped through regulations, as well as any other optional costs. In most facilities, accommodation costs borne by residents cover just a fraction of their care. Provinces typically contract with private facilities and provide additional funding to these facilities to top up the cost of residents’ care.51 Roughly 190,000 elders live in government subsidized LTC, but a minority of residents (about 10,000) are younger persons with disabilities.52
A greater standard of care is generally provided by public and not-for-profit LTC facilities than private for-profit facilities, as they spend more per resident on care.53 Regardless of the type of facility, however, inadequate staffing and insufficient funding plague the system as a whole.54 Significant wait lists for LTC beds—over a hundred days in Ontario—create burdens on families and the hospital system. Families are often forced to accept the first LTC facility that has an available bed and are frequently forced to pay for add-on care. This results in significant costs for often lackluster care that few families think to financially plan for.55 Beyond insufficient care, rampant emotional, verbal, physical, and sexual abuse has been repeatedly documented in investigations, commissions, and reports over the past decades.56
Experts emphasize that this is not just a “Baby-Boom” issue. Given the current aging demographics, LTC poses a policy challenge even if the status quo is maintained.57 Responding to these challenges will require a dramatic rethinking of eldercare, including boosting funding for home care. It is true that part of addressing the crisis in LTC is finding solutions to allow more individuals to receive care at home.58 This paper, however, will focus specifically on institutional LTC. Deficiencies in institutional care must be addressed as there will likely always be a section of the population who requires a very high level of care that may not be accommodated in a home setting.59
What can be done?
Peace, Order, & Good Government (POGG)
Section 91 of the Constitution Act, 1867 enumerates most of the powers of the federal government.60 Within the preamble to this section, the federal government is empowered “to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”61 Historically, the judicial approach to this power remained cautious.62 Despite the text appearing to allude to a broad federal power, it has only been successfully invoked in a small handful of cases.63 Courts have interpreted this residual power to have two branches. The first relates to federal powers in the event of an emergency or crisis. In this case, evidence must demonstrate that provinces are unable to address the matter on their own because it has extra-provincial dimensions.64 As these measures subvert the ordinary division of powers, courts have insisted that these measures must also be temporary, and ideally be invoked expressly.65
There is generally little doubt that POGG could be invoked in the case of a national health emergency that the provinces were unable to address on their own.66 In the context of the COVID-19 pandemic, there was considerable discussion about whether or not the federal government would invoke POGG, including into the crisis occurring in LTC.67 Scholar Carissima Mathen asserted that the emergency branch of POGG would allow the federal government to push through national standards in LTC during the crisis, with a higher level of control than could be achieved through conditions on federal health transfers.68 Despite this, the federal government has refused to use its emergency powers under POGG, neither through an order under the Emergencies Act, nor particular legislation for COVID-19. This reflects a broader trend of restraint by the federal government regarding its POGG emergency power.69
The second branch relates to when a matter of “national concern” has arisen.70 Previous Supreme Court of Canada (SCC) jurisprudence in Crown Zellerbach (1988) articulated a test that was in use until March 2021.71 In the early part of the pandemic, authors had argued that it would be unlikely that this test for the national concern branch of POGG would be met in the context of LTC.72 However, more recent jurisprudence in Reference re Greenhouse Gas Pollution Pricing Act (GGPPA Reference)—decided in the midst of the pandemic—refined the national concern test, warranting further discussion.
The case was the first to consider the federal POGG power in the context of a new matter of national concern in over 30 years.73 The reference related to challenges by the provinces of Alberta, Ontario, and Saskatchewan to the Greenhouse Gas Pollution Pricing Act, federal legislation that sought to place a cost on carbon emissions. The majority ruled that Parliament had jurisdiction to enact the law under POGG, while articulating a three-step test. The first step of this test is the threshold question. In this step, the onus is on the federal government to demonstrate that the statute at issue is “of sufficient concern to Canada as a whole to warrant consideration in accordance with the national concern doctrine.”74 In discussing this step, the court emphasized that the national concern doctrine is an exceptional doctrine that is not to be invoked lightly. The fact that a legislative issue is simply important does not necessarily justify use of the doctrine.75 While this step would likely be highly contentious, for the sake of our analysis we will assume that it is satisfied in the context of the reforms needed in LTC.
The second step relates to the “singleness, distinctiveness and indivisibility analysis.”76 The majority articulates two principles that underlie this second step of the test. The first principle being that “the national concern doctrine should be found to exist only over a specific and identifiable matter that is qualitatively different from matters of provincial concern.”77 While the issue of LTC is specific, there are strong arguments that could be made that it is not qualitatively different from matters of provincial concern in relation to healthcare in general, or elderly care in particular. In addition, the majority emphasizes that “the mere growth or extent of a problem across Canada is insufficient to justify federal jurisdiction,” thus negating any argument that could be made that an increasingly aging population has pushed this matter beyond the capacity of the provinces.78 LTC is also neither “predominantly extraprovincial and international in character,” a characteristic that the majority identifies as a “key consideration for determining whether the matter is qualitatively different from matters of provincial concern.”79 On a final point related to the first principle, the court emphasizes the need to prevent intrusion into the provincial sphere of jurisdiction, asserting that “[t]he federal legislative role must be distinct from and not duplicative of that of the provinces.”80 LTC is an area where provincial governments have long held a legislative role. Legislation includes, for example, the Healthy Aging and Long-Term Care Act in New Brunswick and the Nursing Homes Act in Alberta.81 The federal legislative role would likely be duplicative of the provincial legislative role.
The second principle underlying the second step of the test is that federal jurisdiction should only be found where evidence shows that the provinces are unable to deal with the matter.82 The court makes reference to the provincial inability test as identified in the fourth and fifth indicia in General Motors as the starting point of this analysis.83 In the context of establishing provincial inability related to the national concern doctrine, however, the court adds a third factor, that “a province’s failure to deal with the matter must have grave extraprovincial consequences.”84
For the sake of brevity, I will address only this final part of the test and also conclude the analysis here.85 The court emphasizes the importance of this specific part of the test, as it is fundamentally linked to the purpose of the national concern doctrine. The majority highlights jurisprudence that has identified matters of national concern, including arms trafficking and atomic energy. Conversely, the majority also identifies jurisprudence that has rejected that matters are that of national concern. In particular, they reference Schneider v The Queen (1982), where the court found that the failure of one province to provide treatment to heroin users would not cause extraprovincial consequences that impact another province.86 If the provision of LTC may be considered analogous to drug treatment as they are both health services, it is unlikely that the argument can be made that the failure of one province to provide adequate LTC will result in extraprovincial consequences.
To conclude this segment, it is unlikely that federal legislation regarding LTC could be justified under the national concern branch of POGG. From a practical standpoint, this effort may be met with opposition from the provinces. Federal lawmakers have typically sought to ground their objectives in other more concrete and less controversial areas of federal power when available.87
LTC Insurance alongside CPP
Health insurance—both private insurance purchased by individuals or public insurance provided by the government—falls under provincial jurisdiction like all other forms of insurance.88 Despite the high levels of out-of-pocket expenses involved in LTC, the existence of “[p]rivate markets for long-term care insurance are slim to nonexistent in Canada and across OECD members.”89 In consequence, the pooling of risk has fallen onto the public sector. According to Tuohy, however, as residents of LTC are overwhelmingly seniors, it makes more sense to think of the public financing of LTC as more akin to a pension than health insurance.90
Like LTC, in the 19th century retirement was not an option for most workers, who could not afford to save for their later years. Those fortunate enough to live into old age typically worked for as long as they were physically able to, and then relied on family for financial support.91 Towards the end of the 19th century, some private entities began to offer pensions as a benefit to workers. The federal government would make its first foray into income security in the 1920’s for a narrow segment of the population. Following growing demands for the creation of a national pension scheme, and questions regarding the constitutionality of earlier efforts, the Constitution Act, 1867 was amended to allow for the passage of the Old Age Security Act in 1951.92 The addition of section 94A permitted the federal government to create laws related to old age pensions and supplementary benefits, provided provinces did not already legislate in that area. Where provincial laws exist, the provincial law takes precedence.93 The section is an example of specific concurrent jurisdiction.94 After identifying deficiencies with this initial plan, in 1966 the Canada Pension Plan (CPP) was established, as well as a sister program, the Quebec Pension Plan (QPP) (other provinces also had to constitutional jurisdiction to establish parallel plans, yet none did).95 This explicit federal jurisdiction created by constitutional amendments to s. 94A in 1951 and 1964 made the CPP possible.96
Tuohy proposes a model of “long-term care insurance” (LTCI) that would be a “supplemental benefit alongside the CPP.”97 The benefit would be funded through employee and employer contributions (but also supplemented by general revenue at least during the transitional period).98 This is in accordance with a “joint-decision” model of federalism, “exploiting areas of concurrent jurisdiction that give both orders of government a robust role while requiring cooperation.”99 The federal government would be responsible for administering these funds.100 The benefit would be paid out to individuals as a capped transfer, on the basis of need, rather than on the level of contribution.101 The benefit could then be assigned to a qualified provider, who would have to be approved under the plan—thus allowing for the creation of national standards.102 To determine qualifying providers, Tuohy asserts that the starting place would be those providers already approved by the provinces, yet as time went on “the federal and provincial governments should work to raise and harmonize quality standards across the country.”103 Tuohy stresses that given growing demands for care, this approach should be viewed as adding to, but not replacing, existing provincial funding for care.104
This model exists in Germany, and a similar model was envisioned under the original proposal for the United States’ Affordable Care Act.105 The model covers a broad range of assistance, from home care to intensive institutional care. In Germany, all individuals begin paying into the plan at the age of 18, with coverage beginning for everyone at the age of 18.106 The state subsidizes contributions for the self-employed and those who are not in work, on an income-scaled basis. Overall supervision of the system is provided by the federal government. The social insurance funds negotiate with providers and are actively involved in the governance of the system. Facilities also receive capital funding from state governments. The model provides both in-kind and cash benefits to recipients, who are provided the option of a cash payment that they can use to renumerate informal caregivers.107
The benefits of adopting such a model in Canada would be that it would include home care and facilitate individual choice. It would also recognize the reality of the movement of labour and capital throughout the federation. For example, the large population of young adults from Eastern Canada who have relocated to Western Canada.108 Further, Tuohy argues that this mechanism is a superior funding mechanism than the conditional transfer mechanism from Ottawa to provinces from general taxation. This is because the model builds off the foundation of the existing administrative structure of the CPP and does not have to be continually renegotiated. This dedicated, self-sustaining stream of funding would thus not compete with other provincial healthcare priorities—a competition that LTC has consistently lost out on. From a political lens, it also “lies in an area of uncontested concurrent jurisdiction for federal and provincial governments.”109 There are several hurdles, however, to the implementation of this model in Canada. Challenges include the feasibility of getting all provinces to agree to the same content. Further, as these plans are contributive, there are outstanding questions regarding how to address those who cannot contribute to the plan.110
The most significant hurdle, however, is identified by political scientist Daniel Béland. Focusing on the politics of the LTCI model, Béland notes that any reforms of the CPP would require 2/3 of the provinces representing at least 2/3 of the population, which would likely pose a challenge.111
Inter-governmental Agreement (IGA)
Intergovernmental agreements (IGAs) relate to a broad category of formal agreements between the executive branches of government. These agreements cover a range of topics and are commonly used to funnel federal funds into programs administered by the provinces. “Vertical agreements” concluded between the federal and provincial governments are ubiquitous in relation to the use of federal spending power.112 The notion of seeking some form of national “norms” in regards to social policy through IGAs is not new in Canada, with federal/provincial negotiations resulting in the creation of the “A Framework to Improve the Social Union for Canadians — An Agreement between the Government of Canada and the Governments of the Provinces and Territories” in 1999. While it had limited legal status, the agreement articulated common understandings and commitments.113
As a general rule, IGAs are not legally self-implementing. Instead, to give the agreement full legal force each government must pass implementing legislation.114 Even when not formally binding, however, IGAs may play a role in judicial interpretation.115 While in some circumstances, IGAs may be legally binding on all governments, these agreements are fragile.116 There are few restrictions against governments unilaterally withdrawing from these agreements and repealing implementing legislation.117 This is due to parliamentary sovereignty.118
Despite their fragility, however, there are some advantages to IGAs. Their non-binding nature may make some governments more amenable to participation.119 IGAs may also help to facilitate a degree of uniform standards throughout the country. While IGAs cannot officially alter the constitutional distribution of powers, they can modify the exercise of these powers and be used to accomplish goals without constitutional reform.120
Advocacy groups have expressed hesitancy surrounding IGAs, out of concern that such an agreement would not create any obligation for compliance from governments. Advocacy groups have also called for greater transparency and accountability measures for governments and LTC institutions than could be necessarily offered through an IGA alone.121 The inherent fragility of IGAs also poses issues in relation to LTC, as this policy area has historically failed to attract consistent, significant attention outside of periods of crisis.122
Despite these disadvantages, however, it is likely that IGAs would play a role in the creation of national standards, as their presence is almost unavoidable in the use of the federal spending power in areas of provincial jurisdiction. This is relevant to the proposals below.
Amending the Canada Health Act
During the pandemic, there was strong support for the possibility of amending and extending the Canada Health Act to include LTC. One May 2020 poll found that 86% of Canadians were in support of this approach.123 Organizations like the National Association of Federal Retirees have called the spending power the “obvious way forward” to creating some form of national standards for LTC.124 While the federal government lacks direct authority over LTC, the federal government does have the “spending power under the Constitution which it can use to require compliance by provinces, territories and [I]ndigenous peoples’ organizations as a condition for access to federal cash transfers.”125 This power is controversial, with some critics questioning the legitimacy of the use of the power to spend in areas of provincial jurisdiction.126
The spending power has been inferred from the federal government’s jurisdiction in the Constitution Act, 1867 over public debt and property (s.91(A)) and a general taxation power (s. 91(3)).127 This ‘textualist’ approach may be assessed in tandem with a ‘living tree’ approach—a dominant interpretive approach in Canada—that highlights how the legislative jurisdiction of the provinces (including health and education) that were not costly at Confederation now comprise an exorbitant amount of provincial budgets.128 In response, “this approach argues in favor of an interpretation that would enable federal spending in areas of provincial jurisdiction.”129 Opponents of the federal pending power highlight how the SCC has only addressed the spending power in obiter dicta.130 Scholar Marc-André Turquotte, a fierce critic of the spending power, asserts that no decision has precisely specified which articles give the spending power its constitutionality, labelling it the “le trou noir de la Constitution canadienne.”131 For Turquotte, the spending power undermines the principle of constitutionalism, and allows for inappropriate intrusions into provincial jurisdiction.132 Scholars such as Hoi Kong, however, emphasize other arguments for the existence of the federal spending power, including that “government action benefits from a presumption of constitutionality,” otherwise risking overextending the resources of the judiciary if it were required to repeatedly assess government action.133 Despite the absence of a clear constitutional basis for this power, it has remained in consistent use.134
While the provinces remain responsible for the delivery of most medical services, the federal government maintains a role in the Canadian medicare system through financial contributions, and standards set through the CHA.135 These federal transfer payments are entirely discretionary, and the federal government can attach various rules and conditions. Through its spending power, the federal government remains within its jurisdiction as the CHA ultimately relates to the engagement of federal funds for healthcare, not healthcare itself. These standards do not reflect the federal government regulating within provincial jurisdiction, but rather reflect the conditions by which provinces must follow if they wish to continue receiving federal funds. According to Kong, “the federal government spends in order to influence the actions of the provinces, in an area of the latter’s legislative jurisdiction.”136 The sanction for a province that is in breach of the conditions under the CHA is the reduction or cessation of payments by the federal government to the provinces. The role of the federal government in health care has been recognized by the SCC in decisions such as Eldridge v. British Columbia (Attorney General).137
Under the current CHA, “extended health services” is defined to include “nursing home intermediate care service[s],” capturing LTC.138 The CHA does not require provinces to provide these services to continue to receive cash transfers from the federal government. In consequence, “while the Minister of Health has some, albeit very limited, authority to regulate LTC services under the Act, unless the Act itself is amended, compliance would not be a condition for federal funding.”139
The argument advanced by advocacy groups such as the Ontario Health Coalition, however, is that the solution to this challenge may not simply be found by amending the current CHA to include LTC as a “medically necessary” service. This is because there are fundamental differences between the provision of care by hospitals and physicians, and LTC. The first is the large role played by the private sector in many provinces. The operation of LTC facilities is often contracted out to private third parties that have a “fiduciary obligation to maximize shareholder value” as a “paramount obligation.”140 Important differences also arise regarding immediate care providers. The nursing and medical professions are highly regulated and are capable of influencing institutional decision-making as they have a sworn individual duty to protect patients. Personal support workers (PSWs)—who are responsible for the majority of care in LTC—often express concerns regarding conduct in LTC, yet do not have an overarching regulatory body and the same amount of influence on decision-making. Lastly, LTC facilities are residences, which have additional costs to cover recreational and social amenities that other medical facilities do not have.141 Simply amending the CHA would also fail to account for private charges that reflect individual differences in lifestyle and community preferences. These facilities are homes for residents, and not everyone desires the same type of living.142 The challenges posed by LTC require standards that go beyond what currently exists in the CHA, and the CHA would require substantial amendment to accommodate these differences.143
Critics of this proposal also argue that there would need to be greater accountability than is currently available under the CHA—with the risk of simply transposing current accountability deficits onto LTC.144 The provision of funding without accountability is particularly problematic, as LTC has historically lost out in budgetary competition with other health services.145 This was seen with the previous Extended Health Care Services program, that had been funds earmarked for eldercare, but were ultimately redirected to hospital care.146
Further, there has been a long-standing worry that re-opening the CHA could result in a “Pandora’s box” situation, with the unintended consequence of the erosion of existing protections.147 In recent years, there has been a “well-organized and determined campaign by for-profit private clinics and certain physicians to weaken the essential underpinnings of Canada’s medicare model.”148 Healthcare advocates have expressed great concern that these groups would seize the opportunity to reopen the CHA, and direct substantial resources to weaken many of its guarantees.149
Separate Funding Envelope
The final proposal relates to the creation of a separate funding envelope and standalone legislation. Similarly to extending the CHA, this proposal makes use of the pathway of federal spending power, and the “shared-cost” model of federalism.150 As detailed above, experts have argued that separate funding is necessary, to prevent LTC losing out in budgetary competition with other services, and to recognize the unique institutional environment of LTC compared to hospitals and other healthcare facilities.151 These funds would be specifically earmarked for eldercare, and similar to the CHA would be provided with strings attached, where provinces would have to meet certain national standards, such as staffing ratios. These standards would require a robust accountability regime.152 Advocates such as the Ontario Health Coalition argue that these standards may begin by replicating criteria already present within the CHA, with additional criteria that reflect the unique institutional environment of LTC, including defined standards of quality care and accountability measures.153 In relation to accountability, the enforcement regime could likewise begin with the existing enforcement regime within the CHA, but with additions to make it significantly more robust—in particular an advisory council.154
Alternatively, scholar Colleen Flood has proposed a system where the federal government will make funding for LTC contingent on the establishment by each province of an independent arm’s length regulator. This regulator would be required to create and enforce standards unique to each province regarding staffing levels, type of staff, models of care, training, etc. that must evolve over time. The regulator would be required to issue public reports. In addition to providing additional funding to the provinces for LTC, Flood suggests that the federal government would be responsible for funding this regulator. To ensure strong oversight, Flood argues that the federal government should also create a federal “Aged Care Ombudsman.”155 These proposals reflect lessons learned from the failures of the Extended Health Care Services program, an “unconditional, per-capita grant to each province” that existed from 1977 to 1996 (later folded into the Canada Health Transfer), that lacked any accountability mechanisms as to whether or not the funds were actually used for LTC.156 This is why merely amending the CHA would be insufficient. This approach of standalone legislation and a separate funding envelope could also better respond to existing differences between how provinces currently administer LTC.157
Conclusion
The “covid carnage” that occurred in LTC facilities during the COVID-19 pandemic was a direct result of long-standing issues in LTC. When looking to adopt national standards for LTC, the creation of standalone legislation and a separate funding envelope for LTC under the federal government’s spending power—that is parallel but separate to the CHA—and structured through IGAs offers the most promising avenue for success. Funding would be contingent on compliance with certain standards and have a robust accountability regime.
During the COVID-19 pandemic, many LTC residents suffered. While these jurisdictional questions pose challenges, answers may be sought to ensure that these events are never repeated.
This paper was originally submitted to the CBA Public Sector Lawyers Section Essay Contest - In the Public Interest in the spring of 2022. Although not selected as the winning entry, the jury panel believed this was an excellent essay and worthy of an honourable mention to recognize Kayla Maria Rolland for her important contribution on the subject of the long-term care sector within the healthcare system in Canada.
Kayla Maria Rolland is an articling student with the Ministry of the Attorney General, and the 2021/2022 Chair of the CBA National Law Students Section. The views and opinions expressed in this paper are solely those of the author and should not be taken as the views of either the Attorney General of Ontario or the Government of Ontario. Research was completed as part of academic coursework from September to December 2021. Immense gratitude goes to Professor Johanne Poirier for all her guidance and support while supervising this paper.
Schedule A - Table of Authorities
LEGISLATION
Canada Health Act, RSC 1985 c C-6
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5.
Healthy Aging and Long-Term Care Act, SNB 2018, c 8
Nursing Homes Act, RSA 2000, c N-7
JURISPRUDENCE
Ontario (AG) v Canada Temperance Federation, [1946] AC 193 [
R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 [Crown Zellerbach]
R v Hauser, [1979] 1 SCR 984 [Hauser]
References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 [GGPPA Reference].
Schneider v. The Queen [1982] 2 SCR 112 [Schneider].
SECONDARY MATERIALS: MONOGRAPHS
Castonguay, Alec, Le printemps le plus long (Montreal: Québec Amérique, 2021).
Picard, André, Neglected No More (Toronto: Penguin Random House, 2021).
Turquotte, Marc-André, Le pouvoir fédéral de dépenser ou comment faire indirectement ce qu’on ne peut faire directement (Montreal: Éditions Yvon Blais, 2015).
SECONDARY MATERIALS: ARTICLES
Attaran, Amir, “The Failing Federation: Why Canada Is Ineffective at COVID-19” (2020) 11:1 J National Security L & Policy 229.
Béland, Daniel, & Patrik Marier, “COVID-19 and Long-Term Care Policy for Older People in Canada” (2020) 32:4-5 J Aging & Soc Policy 358.
Carsley, Stefanie, “Regulating Reimbursements for Surrogate Mothers” (2021) 58:4 Alta L Rev 811.
Da Silva, Michael & Maxime St-Hilaire, “Towards a New Intergovernmental Agreement on Early Pandemic Management” (2021) 41:2 NJCL 77.
Fierlbeck, Katherine & Howard A Palley, “Canada” in Katherine Fierlbeck & Howard A Palley, eds, Comparative Health Care Federalism (Abingdon: Routledge, 2016) 107.
Flood, Colleen, William Lahey & Bryan Thomas, “Federalism & Health Care in Canada: A Troubled Romance?” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017).
Jackman, Martha, “Fault Lines: COVID-19, the Charter, and Long-term Care” in Colleen M Flood et al, eds, Vulnerable The Law, Policy and Ethics of COVID-19 (Ottawa: University of Ottawa Press, 2020) 339.
Kong, Hoi L, “The Spending Power in Canada” in Peter Oliver, Patrick Macklem, & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) 433.
Mathen, Carissima, “Resisting the Siren’s Call: Emergency Powers, Federalism, and Public Policy” in Colleen M Flood et al, eds, Vulnerable The Law, Policy and Ethics of COVID-19 (Ottawa: University of Ottawa Press, 2020) 115.
Ogden, Lydia L & Kathleen Adams, “Poorhouse to Warehouse: Institutional Long-Term Care in the United States” (2009) 39:1 J Federalism 138.
Poirier, Johanne, “Federalism, Social Policy and Competing Visions of the Canadian Social Union” (2002) 13 RNDC 355.
Poirier, Johanne, “Intergovernmental Agreements in Canada: At the Crossroads between Law and Politics” in Peter J Meekison, Hamish Telford & Harvey Lazar, eds, Reconsidering the Institutions of Canadian Federalism: Canada, the State of the Federation 2002 (Kingston/Montreal: McGill-Queen’s University Press, 2004) 425.
SECONDARY MATERIALS: ELECTRONIC SOURCES
“A Stronger and More Resilient Canada - Speech from the Throne to Open the Second Session of the Forty-Third Parliament of Canada” (23 September 2020), online (pdf): Government of Canada.
“Building a Resilient Economy: A Cleaner & Healthier Future For Our Kids - Speech from the Throne to Open the First Session of the 44th Parliament of Canada” (23 November 2021), online (pdf): Government of Canada.
“Canada Health Act” (last modified 24 February 2020), online: Government of Canada.
Dotey, Paul, “How to repair long-term care in Canada” (14 September 2021), online: The Philanthropist Journal.
Feith, Jesse, “Coroner's inquest: Family still doesn't know why Yvan Luc Brodeur died at CHSLD René-Lévesque”, Montreal Gazette (April 22, 2021), online.
Ha, Tu Thanh, “How Quebec’s response to COVID-19 left 4,000 dead in long-term care homes”, The Globe and Mail (6 September 2021), online.
Hall, Chris, “The House: Can Canadian federalism cope with 21st century threats”, CBC Radio (3 July 2021), online.
IRPP, “Could Federalism Help Cure What Ails Long-Term Care? — IRPP Webinar” (21 May 2021), online (video): YouTube.
“Long-Term Care Homes in Canada – How are They Funded and Regulated?” (22 October 2020), online: The Library of Parliament HillNotes.
“Long-term care homes in Canada: How many and who owns them?” (10 June 2021), online: Canadian Institute for Health Information.
Maher, Stephen, “Year One: The untold story of the pandemic in Canada”, Macleans (21 March 2021), online.
Mahoney, Jill, “How the long-term care crisis has left workers with deep emotional scars”, The Globe and Mail (30 May 2021), online.
“Military deployment in long-term care homes called 'traumatic,' report says”, City News Toronto (November 12, 2020), online.
National Association of Federal Retirees, “Moving Canada toward national standards in long term care” (30 April 2021), online (video): YouTube.
“NUPGE poll finds almost universal support for bringing long-term care under the Canada Health Act” (26 May 2020), online: National Union of Public and General Employees.
O’Toole, “How some OECD countries helped control COVID-19 in long-term care homes” (12 July 2020), online: The Conversation.
Pandeya, Nikhil & Alec Mazurek, “Long-Term Care Facilities Should Prepare for Federal Efforts” (2020), online (pdf): Leadership & Democracy Lab.
Peng, Ito, “We can draw lessons from countries with strong long-term care systems” (5 June 2020), online: Policy Options.
“Social Union” (last visited 12 December 2021), online: Centre for Constitutional Studies.
Stevenson, Verity, “Shocking details about Quebec's 1st wave revealed at inquest into long-term care deaths”, CBC News(21 June 2021), online.
Taylor, Jennifer & Bhreagh Ross, “The “dominant tide” comes in: cooperative federalism in the Reference re Greenhouse Gas Pollution Pricing Act” (5 April 2021), online: Stewart McKelvey.
Tuohy, Carolyn Hughes, “A new federal framework for long-term care in Canada” (20 August 2021), online: Policy Options.
Welsh, Moira, “The Star published an investigation into long-term care in 2003. What’s changed since then?”, The Toronto Star (27 May 2020), online.
Welsh, Moira, “The trauma will change you forever. COVID-19 has exposed problems in long-term care. Will the response fix it?”, The Toronto Star (last modified 11 May 2020), online.
Wherry, Aaron, “Leaving out long-term care was medicares original sin—and we’re paying for it now”, CBC News (28 May 2020), online.
SECONDARY MATERIALS: REPORTS
Brideau, Isabelle & Laurence Brosseau, “The Distribution of Legislative Powers: An Overview” (16 October 2019), online (pdf): Library of Parliament.
Butler, Martha & Marlisa Tiedemann, “The Federal Role in Health and Health Care” (revised September 2013), online (pdf): Library of Parliament.
Clarke, Janine, “Impacts of the COVID-19 pandemic in nursing and residential care facilities in Canada” (June 10, 2021), online (pdf): Statistics Canada.
Gillese, Eileen E, “Public Inquiry into the Safety and Security of Residents in the Long-Term Care Homes System” (2019), online (pdf): Government of Ontario.
“National Standards for Long-Term Care: The Art of the Possible?” (2020), online (pdf): Canadian Medical Association.
Lithwick, Dara, “A pas de deux: The Division of Federal and Provincial Legislative Powers in Sections 91 and 92 of the Constitution Act, 1867” (8 December 2016), online (pdf): Library of Parliament.
Mou, Haizhen, “What Now? Canada Health Transfer Background and Future” (2021), online (pdf): Canada West Foundation.
“Op LASER - JTFC Observations in Long Term Care Facilities in Ontario” (2020), online (pdf): Canadian Armed Forces.
“Pensions Backgrounder #2 A Brief History of Pensions in Canada” (2007), online (pdf): National Union of Public and General Employees.
“Proposed National Standards for Long-Term Residential Care” (2021), online (pdf): Ontario Health Coalition.
“Restoring Trust: COVID-19 and The Future of Long-Term Care” (June 2020), online (pdf): Royal Society of Canada.
Tuohy, Carolyn Hughes, “Federalism as a Strength: A Path Toward Ending the Crisis in Long-Term Care” (2021), online (pdf): Centre of Excellence on the Canadian Federation.
“3350-Op LASER (Cmdt)” (2020), online (pdf): Canadian Armed Forces.
Endnotes
5 See Stephen Maher, “Year One: The untold story of the pandemic in Canada”, Macleans (March 21, 2021), online: <www.macleans.ca>
6 See André Picard, Neglected No More (Toronto: Penguin Random House, 2021) at 21.
8 Maher supra note 5; For a detailed account of the experience of COVID-19 outbreaks in CHSLDs in Quebec, see also Alec Castonguay, Le printemps le plus long (Montreal: Québec Amérique, 2021).
9 See Picard, supra note 6.
11 See “Military deployment in long-term care homes called 'traumatic,' report says”, City News Toronto (12 November 2020), online; Jill Mahoney, “How the long-term care crisis has left workers with deep emotional scars”, The Globe and Mail (30 May 2021), online Moira Welsh, “The trauma will change you forever. COVID-19 has exposed problems in long-term care. Will the response fix it?”, The Toronto Star (last modified 11 May 2020), online; Verity, Stevenson, “Shocking details about Quebec's 1st wave revealed at inquest into long-term care deaths”, CBC News (21 June 2021), online.
13 See Picard, supra note 6 at 11–13, 27; See Maher, supra note 5.
15 See Wherry, supra note 14.
17 See Picard, supra note 6 at 16.
18 Ibid at 30; See Lydia L Ogden & Kathleen Adams, “Poorhouse to Warehouse: Institutional Long-Term Care in the United States” (2009) 39:1 J Federalism 138 at 141–142.
19 See Picard, supra note 6 at 30–31.
23 Katherine Fierlbeck & Howard A Palley, “Canada” in Katherine Fierlbeck & Howard A Palley, eds, Comparative Health Care Federalism (Abingdon: Routledge, 2016) 107 at 117.
24 See Picard, supra note 6 at 33–34.
29 See Fierlbeck & Palley, supra note 23.
30 See Mou, supra note 22 at 2.
31 See Fierlbeck & Palley, supra note 23.
33 See Picard, supra note 6 at 38–39; Dotey, supra note 16.
34 See Mou, supra note 22 at 2.
35 See Picard, supra note 6 at 41–42.
36 See Fierlbeck & Palley, supra note 23.
38 See Amir Attaran, “The Failing Federation: Why Canada Is Ineffective at COVID-19” (2020) 11:1 J National Security L & Policy 229 at 231.
40 See Michael Da Silva & Maxime St-Hilaire, “Towards a New Intergovernmental Agreement on Early Pandemic Management” (2021) 41:2 NJCL 77 at 85.
42 Ibid at 2; National Association of Federal Retirees, supra note 12 at 00h:22m:00s; Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, ss 91(11), 92(7) reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867];
43 See Attaran, supra note 38 at 231.
44 See Butler & Tiedemann, supra note 41 at 2; Constitution Act, 1867, supra note 42 at ss 92(13), 92(16); National Association of Federal Retirees, supra note 12 at 00h:22m:00s.
45 See Butler & Tiedemann, supra note 41 at 2; Constitution Act, 1867, supra note 42 at ss 91, 91(27); National Association of Federal Retirees, supra note 12 at 00h:22m:00s.
46 See Mou, supra note 22 at 1.
48 See Picard, supra note 6 at 50, 53–54.
50 See Daniel Béland & Patrik Marier, “COVID-19 and Long-Term Care Policy for Older People in Canada” (2020) 32:4-5 J Aging & Soc Policy 358 at at 359–360.
51 See Picard, supra note 6 at 49–52.
53 See Dotey, supra note 16.
54 See Picard, supra note 6 at 100.
58 See Picard, supra note 6 at 52.
60 See Butler & Tiedemann, supra note 41 at 4.
61 Constitution Act, 1867, supra note 42 at s 91.
62 See Carissima Mathen, “Resisting the Siren’s Call: Emergency Powers, Federalism, and Public Policy” in Colleen M Flood et al, eds, Vulnerable The Law, Policy and Ethics of COVID-19 (Ottawa: University of Ottawa Press, 2020) 115 at 117–118.
64 See Attaran, supra note 38 at 234.
65 See Mathen, supra note 62 at 118.
66 See Butler & Tiedemann, supra note 41 at 4.
68 See Mathen, supra note 62 at 121.
69 See Attaran, supra note 38 at 237–238.
70 See Butler & Tiedemann, supra note 41 at 4.
71 [1988] 1 SCR 401 at para 33 [Crown Zellerbach].
72 See Pandeya & Mazurek, supra note 67; Mathen, supra note 62 at 121.
73 See Taylor & Ross, supra note 63.
74 References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para 144 [GGPPA Reference].
81 See Healthy Aging and Long-Term Care Act, SNB 2018, c 8; Nursing Homes Act, RSA 2000, c N-7.
82 See GGPPA Reference, supra note 74 at paras 146–147.
85 The third and final step of the test is the “scale of impact analysis,” that requires a matter to have “a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution” [Ibid at para 160]. However, this has been omitted for the sake of brevity.
86 Ibid at para 154; see also Schneider v. The Queen [1982] 2 SCR 112.
87 See e.g. Stefanie Carsley, “Regulating Reimbursements for Surrogate Mothers” (2021) 58:4 Alta L Rev 811 at 816 (footnote 40).
88 See Colleen Flood, William Lahey & Bryan Thomas, “Federalism & Health Care in Canada: A Troubled Romance?” in Peter Oliver, Patrick Macklem & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) at 451.
92 Ibid at 1–4; Johanne Poirier, “Federalism, Social Policy and Competing Visions of the Canadian Social Union” (2002) 13 RNDC 355 at 375 [Poirier, “Social Union”].
95 See “Pensions Backgrounder,” supra note 91 at 4–5.
96 See Brideau & Brosseau, supra note 94 at 12.
97 IRPP, supra note 59 at 00h:14m:15s.
103 Tuohy, “Federalism as a Strength” supra note 89 at 16.
105 See IRPP, supra note 59 at 00h:17m:30s; Picard, supra note 7 at 154.
107 See Tuohy, “Federalism as a Strength” supra note 89 at 13–14.
108 See IRPP, supra note 59 at 00h:37m:10s.
109 Tuohy, “Federalism as a Strength” supra note 89 at 16.
110 See IRPP, supra note 59 at 00h:43m:00s–00h:46m:35s.
112 See Johanne Poirier, “Intergovernmental Agreements in Canada: At the Crossroads between Law and Politics” in Peter J Meekison, Hamish Telford & Harvey Lazar, eds, Reconsidering the Institutions of Canadian Federalism: Canada, the State of the Federation 2002 (Kingston/Montreal: McGill-Queen’s University Press, 2004) 425 at 427–428 [Poirier, “Intergovernmental Agreements”].
113 See “Social Union” (last visited 12 December 2021), online: Centre for Constitutional Studies.
114 See Da Silva & St-Hilaire, supra note 40 at 85.
115 See Poirier, “Intergovernmental Agreements” supra note 112 at 431.
117 See Da Silva & St-Hilaire, supra note 40 at 85–90.
118 See Poirier, “Intergovernmental Agreements” supra note 112 at 426.
119 See Da Silva & St-Hilaire, supra note 40 at 85–90.
120 See Poirier, “Intergovernmental Agreements” supra note 112 at 426.
121 See Proposed National Standards for Long-Term Residential Care” (2021) at 2, online (pdf): Ontario Health Coalition <www.ontariohealthcoalition.ca> [Ontario Health Coalition].
122 See IRPP, supra note 59 at 00h:13m:20s.
124 National Association of Federal Retirees, supra note 12 at 00h:24m:50s.
125 Ontario Health Coalition, supra note 121 at 3.
126 See Hoi L Kong, “The Spending Power in Canada” in Peter Oliver, Patrick Macklem, & Nathalie Des Rosiers, eds, The Oxford Handbook of the Canadian Constitution (Oxford: Oxford University Press, 2017) 433 at 433.
127 See Butler & Tiedemann, supra note 41 at 3.
128 See Kong, supra note 126 at 437.
131 Marc-André Turquotte, Le pouvoir fédéral de dépenser ou comment faire indirectement ce qu’on ne peut faire directement (Montreal: Éditions Yvon Blais, 2015) at 162.
133 Kong, supra note 126 at 439.
134 See Poirier, “Social Union” supra note 92 at 367.
135 See Butler & Tiedemann, supra note 41 at 3.
136 Kong, supra note 126 at 434.
137 See Butler & Tiedemann, supra note 41 at 3.
138 See Ontario Health Coalition, supra note 121 at 4; see also Canada Health Act, RSC 1985 c C-6, s 2.
139 See Ontario Health Coalition, supra note 121 at 4.
142 See IRPP, supra note 59 at 00h:12m:35s.
143 See Ontario Health Coalition, supra note 121 at 4–5.
145 See IRPP, supra note 59 at 00h:13m:20s.
146 See Picard, supra note 6 at 38.
148 Ontario Health Coalition, supra note 121 at 5–6.
151 See IRPP, supra note 59 at 00h:30m:20s; Ontario Health Coalition, supra note 19 at 4–5.
152 See Picard, supra note 6 at 172.
153 See Ontario Health Coalition, supra note 121 at 8.
155 See National Association of Federal Retirees, supra note 12 at 00h:27m:00s–00h:31m:30s.
156 See Tuohy, “Federalism as a Strength” supra note 89 at 11.
157 See Béland & Marier, supra note 50 at 362.