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CUPE released two powerful legal opinions in March, exposing the risks of Ralph Klein’s plans to privatize health care and increasing pressure on the federal health minister to take decisive action.

On March 13, a legal analysis confirmed what CUPE has been warning for months: Bill 11 could spell the death of Medicare, under NAFTA.

Then on March 14, a second opinion showed that despite Ralph Klein’s claims to the contrary, Alberta’s private health care bill clearly violates at least three of the five principles of the Canada Health Act.

The NAFTA opinion

Vancouver trade expert Steven Shrybman analyzed Bill 11 for CUPE. He found that once US corporations gain entry through Bill 11 to Alberta’s health care system, it will be virtually impossible to stop or reverse a foreign private takeover of our health care system – not just in Alberta but across the country.

There are at least four reasons why Bill 11 and NAFTA threaten our healthcare system.

Weak protection

Canadian negotiators did not secure strong language to protect health care under NAFTA. Instead of getting an “exclusion” for health care, the federal government settled for “reservations”. These are so limited in scope and so open to interpretation they cannot shield health care services from several of the most notorious NAFTA provisions, such as the rules granting compensation to foreign investors for present and future losses.

Dispute resolution favours privateers

NAFTA’s dispute resolution process is designed to protect foreign investors, not public services. This highly coercive enforcement mechanism is available only to corporations, giving them the upper hand and leaving Canada with little room to protect Medicare.

Bill 11 directly violates NAFTA

Several sections of Bill 11 ignore and are in direct conflict with NAFTA investment and services rules. As a result, US investors would have rights to challenge the Bill that are denied to Canadians.

The domino effect

It will be difficult to contain Alberta’s privatization initiative within the province’s borders. Foreign investors could insist on equal treatment elsewhere in Canada, because of the national scope of federal health care programs. If the federal government continues to fund Alberta health care services, foreign corporations could access federal funding elsewhere in the country.

The Canada Health Act opinion

The second legal opinion was prepared by the BC law firm Arvay Finlay. It demonstrates that Alberta’s Bill 11 would create a two-tier health care system. Here are 3 reasons why.

Misleading language

The legislation claims to ‘outlaw’ private hospitals and couches privatization in the language of “health care protection”.

The legal opinion exposes these claims as nothing more than an elaborate trick. Bill 11 uses misleading phrases and definitions to hide its true effect. For example, it uses a different and much narrower definition of ‘private hospital’ than the definitions used in the Canada Health Act and the Alberta Hospitals Act – and much narrower than the normal dictionary meaning. When you cut through the rhetoric, the Bill effectively creates private hospitals.

Comprehensive, universal and accessible criteria violated

When the mumbo jumbo is stripped away, Bill 11 tramples on the principles of the Canada Health Act that guarantee universal and accessible care. In effect, the Bill creates a situation where two people with similar harmful medical conditions can expect to receive treatments of different quality, at different speed, depending on their ability to pay. This compromises the “uniform terms and conditions” requirement of the Act.

As well, the Bill ensures coverage for only the minimum level of care – rather than the standard level of

care – undermining the principle of comprehensiveness.

Self-regulation raises concerns

The Bill takes the unusual step of letting doctors determine what services they will be allowed to charge for directly on a for-profit basis and what services will remain solely within the public health care system. This creates a conflict of interest and may violate the public administration provisions of the Act.

Michael Temelini