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CUPE has released a legal opinion suggesting that if the federal and provincial governments don’t act fast, a company called “123 Busy Beavers” might make universal child care an impossibility.

The opinion - by noted trade lawyer Steven Shrybman examines NAFTA rules around public services and foreign investment. Paul Moist, Shrybman, National Child Care Advisory Committee Chair Shellie Bird, and Tracy Freitas, Early Childhood Educator and CUPE 2204 member, released the opinion at a press conference Apr. 1.

Canada has for-profit child care, but it’s mostly delivered by small businesses and individuals. There is little - if any - foreign investment.

That could change though, as a company with ties to Australian child care ABC Learning Centres has been buying up for-profit child care centres in Alberta, BC and Ontario.

And if the amount of for-profit child care delivery grows, and if the amount of foreign investment grows too, Shrybman argues, child care would be considered a commercial venture, rather than a “reserved” public service, under NAFTA.

Any new program - such as the national child care program envisioned in Bill C-303 or even the Ontario government’s plan for full-day kindergarden - could be considered a violation of the rights of the for-profit child care sectors’ investors.

A government that still wanted to proceed with a publicly-delivered child care program would have to pay damages to any foreign company whose profits were affected.

Shrybman argues the only way for the federal and provincial governments to preserve their right to create a public child care program is to use it.

Once the door is opened to foreign investment in the child care sector, it may be impossible for governments to close it,” he argues.

This opinion builds on a 2004 legal opinion Shrybman produced on the former Liberal government’s plans for a national child care program.