Dispute Avoidance and Resolution Process under the Canada Health Act
In April 2002, the Honourable A. Anne McLellan outlined in a letter to her provincial and territorial counterparts a Canada Health Act Dispute Avoidance and Resolution process, which was agreed to by provinces and territories, except Quebec. The process meets federal and provincial/territorial interests of avoiding disputes related to the interpretation of the principles of the Canada Health Act, and when this is not possible, resolving disputes in a fair, transparent and timely manner.
The process includes the dispute avoidance activities of government-to-government information exchange; discussions and clarification of issues, as they arise; active participation of governments in ad hoc federal/provincial/ territorial committees on Canada Health Act issues; and Canada Health Act advance assessments, upon request.
Where dispute avoidance activities prove unsuccessful, dispute resolution activities may be initiated, beginning with government-to-government fact-finding and negotiations. If these are unsuccessful, either Minister of Health involved may refer the issues to a third party panel to undertake fact-finding and provide advice and recommendations.
The federal Minister of Health has the final authority to interpret and enforce the Canada Health Act. In deciding whether to invoke the non-compliance provisions of the Act, the Minister will take the panel's report into consideration.
In September 2004, the agreement reached between the provinces and territories in 2002 was formalized by First Ministers, thereby reaffirming their commitment to use the CHA dispute avoidance and resolution process to deal with Canada Health Act interpretation issues.
In the material that follows you will find the full text of Minister McLellan's letter to the Honourable Gary Mar, as well as a fact sheet on the Canada Health Act Dispute Avoidance and Resolution process. In response,  Premier Klein accepted the process as outlined in Minister McLellan's letter on behalf of all provincial and territorial governments with the exception of the Quebec government.
Fact Sheet: Canada Health Act Dispute Avoidance and Resolution Process
Scope
The provisions described apply to the interpretation of the principles of the Canada Health Act.
Dispute Avoidance
To avoid and prevent disputes, governments will continue to:
- participate actively in ad hoc federal/provincial/territorial committees on Canada Health Act issues; and
- undertake government-to-government information exchange, discussions and clarification on issues as they arise.
Health Canada commits to provide advance assessments to any province or territory upon request.
Dispute Resolution
Where the dispute avoidance activities between the federal government and a provincial or territorial government prove unsuccessful, either Minister of Health involved may initiate dispute resolution by writing to his or her counterpart. Such a letter would describe the issue in dispute. If initiated, dispute resolution will precede any action taken under the non-compliance provisions of the Act.
As a first step, governments involved in the dispute will, within 60 days of the date of the letter initiating the process, jointly:
- collect and share all relevant facts;
- prepare a fact-finding report;
- negotiate to resolve the issue in dispute; and
- prepare a report on how the issue was resolved.
If however, there is no agreement on the facts, or if negotiations fail to resolve the issue, any Minister of Health involved in the dispute may initiate the process to refer the issue to a third party panel by writing to his or her counterpart.
- Within 30 days of the date of that letter, a panel will be struck. The panel will be composed of one provincial/territorial appointee and one federal appointee, who, together will select a chairperson.
- The panel will assess the issue in dispute in accordance with the provisions of the Canada Health Act, will undertake fact-finding and provide advice and recommendations.
- The panel will then report to the governments involved on the issue within 60 days of appointment.
The Minister of Health for Canada has the final authority to interpret and enforce the Canada Health Act. In deciding whether to invoke the non-compliance provisions of the Act, the Minister of Health for Canada will take the panel's report into consideration.
Public Reporting
Governments will report publicly on Canada Health Act dispute avoidance and resolution activities, including any panel report.
Review
Should adjustments be necessary in the future, the Minister of Health for Canada commits to review the process with Provincial and Territorial Ministers of Health.
Minister of Health - Ministre de la Santé
Ottawa, Canada
K1A 0K9
April 2, 2002
The Honourable Gary Mar, M.L.A.
Minister of Health and Wellness
Province of Alberta
Room 323, Legislature Building
Edmonton, Alberta
T5K 2B6
Dear Mr. Mar:
I am writing in fulfilment of my commitment to move forward on dispute avoidance and resolution as it applies to the interpretation of the principles of the Canada Health Act.
I understand the importance provincial and territorial governments attach to having a third party provide advice and recommendations when differences occur regarding the interpretation of the Canada Health Act. This feature has been incorporated in the approach to the Canada Health Act Dispute Avoidance and Resolution process set out below. I believe this approach will enable us to avoid and resolve issues related to the interpretation of the principles of the Canada Health Act in a fair, transparent and timely manner.
Dispute Avoidance
The best way to resolve a dispute is to prevent it from occurring in the first place. The federal government has rarely resorted to penalties and only when all other efforts to resolve the issue have proven unsuccessful. Dispute avoidance has worked for us in the past and it can serve our shared interests in the future. Therefore, it is important that governments continue to participate actively in ad hoc federal/provincial/territorial committees on Canada Health Act issues and undertake government-to-government information exchange, discussions and clarification on issues as they arise.
Moreover, Health Canada commits to provide advance assessments to any province or territory upon request.
Dispute Resolution
Where the dispute avoidance activities between the federal government and a provincial or territorial government prove unsuccessful, either Minister of Health involved may initiate dispute resolution by writing to his or her counterpart. Such a letter would describe the issue in dispute. If initiated, dispute resolution will precede any action taken under the non-compliance provisions of the Act.
As a first step, governments involved in the dispute will, within 60 days of the date of the letter initiating the process, jointly:
- collect and share all relevant facts;
- prepare a fact-finding report;
- negotiate to resolve the issue in dispute; and
- prepare a report on how the issue was resolved.
If, however, there is no agreement on the facts, or if negotiations fail to resolve the issue, any Minister of Health involved in the dispute may initiate the process to refer the issue to a third party panel by writing to his or her counterpart. Within 30 days of the date of that letter, a panel will be struck. The panel will be composed of one provincial/territorial appointee and one federal appointee who, together, will select a chairperson. The panel will assess the issue in dispute in accordance with the provisions of the Canada Health Act, will undertake fact-finding and provide advice and recommendations. It will then report to the governments involved on the issue within 60 days of appointment.
The Minister of Health for Canada has the final authority to interpret and enforce the Canada Health Act. In deciding whether to invoke the non-compliance provisions of the Act, the Minister of Health for Canada will take the panel's report into consideration.
Public Reporting
Governments will report publicly on Canada Health Act dispute avoidance and resolution activities, including any panel report.
I believe that the Government of Canada has followed through on its September 2000 Health Agreement commitments by providing funding of $21.1 billion in the fiscal framework and by working collaboratively in other areas identified in the agreement. I expect that provincial and territorial premiers and health ministers will honour their commitment to the health system accountability framework agreed to by First Ministers in September 2000. The work of officials on performance indicators has been collaborative and effective to date. Canadians will expect us to report on the full range of indicators by the agreed deadline of September 2002. While I am aware that some jurisdictions may not be able to fully report on all indicators in this timeframe, public accountability is an essential component of our effort to renew Canada's health care system. As such, it is very important that all jurisdictions work to report on the full range of indicators in subsequent reports.
In addition, I hope that all provincial and territorial governments will participate in and complete the joint review process agreed to by all Premiers who signed the Social Union Framework Agreement.
The Canada Health Act Dispute Avoidance and Resolution process outlined in this letter is simple and straightforward. Should adjustments be necessary in the future, I commit to review the process with you and other Provincial/Territorial Ministers of Health. By using this approach, we will demonstrate to Canadians that we are committed to strengthening and preserving medicare by preventing and resolving Canada Health Act disputes in a fair and timely manner.
Yours sincerely,
A. Anne McLellan |
