Under the Constitution Act, 1867, health care is not assigned exclusively to one level of government, but rather includes matters that could fall within both federal and provincial jurisdictions.[18] The Constitution grants the provinces primary jurisdiction in the area of HHR. Section 92(13), the power over “property and civil rights in the province”, which covers contract, tort and property, is the main provincial power over health care.[19] It authorizes provinces to regulate businesses in the province, including the public and private provision of health care insurance, which determines the payment schemes for services offered by health care providers. More significantly, it also provides for the provincial regulation of health care providers. Section 92(7) grants the provinces authority to establish and regulate hospitals, as well as hospital-based health services, with the exclusion of marine hospitals.[20]

However, section 91 of the Constitution Act, 1867, also grants the federal government authority over some classes of people including: military, militia, and naval services; First Nations and Inuit; and federal inmates. Under section 95, the federal government also has jurisdiction over immigrants concurrently with the provinces. It is important to note that how the federal government exercises its jurisdiction over these groups in relation to health care delivery and health human resources varies substantially by federal client group. The federal role in HHR for each of these respective population groups is examined in greater detail in Chapter 7. Furthermore, as the employer of the federal public service, the federal government is responsible for the occupational health and safety of its employees, as well as any employment-related health benefits provided to federal public service workers.[21]

In addition, under the Canada Health Act[22] , the federal government has used its spending power to establish national standards for the provinces’ health care insurance plans as a condition of federal cash contributions to these programs. The federal spending power is not specifically identified in the constitution, but rather is inferred from Parliament’s jurisdiction over public debt and property (section 91(1A)) and its general taxing power (section 91(3)), and has been upheld through court decisions.[23] In using its spending power, the federal government may establish conditions for federal grants to the provinces, including conditions that come within provincial jurisdiction and therefore cannot be directly legislated by Parliament.[24]

Under the Canada Health Act, the federal government has established the following national standards for provincial and territorial health care insurance plans: (1) public administration; (2) comprehensiveness; (3) universality; (4) portability: and (5) accessibility.[25] With respect to HHR, it is important to note that section 9 of the Canada Health Act dealing with comprehensiveness stipulates that the health care insurance plan of a province “must insure all insured health services provided by hospitals, medical practitioners[26] or dentists, and where the law of a province so permits, similar or additional services rendered by other health care practitioners.”[27] This means that the Canada Health Act requires that physicians services be covered by a provincial health care insurance plan, but does not require that provincial plans cover the costs of services provided by other health professionals that are also the subject of this report, such as: pharmacists, physiotherapists, chiropractors, psychologists, naturopathic doctors, and other non-physicians.[28]

Despite this separation of powers, the federal government has a long history of collaboration with the provinces and territories in both health and health care. This was manifested in the 2003 Accord on Health Care Renewal, where federal, provincial and territorial (F/P/T) governments recognized the need to collaborate across jurisdictions to address HHR challenges across the country. However, they also agreed that this would be done in a fashion that would fully respect each government’s jurisdiction.[29] In the Accord, they agreed to collaborate in HHR planning in order “to strengthen the evidence base for national planning, promote inter-disciplinary provider education, improve recruitment and retention, and ensure the supply of needed health providers.”[30] To this end, the federal government committed $85 million to HHR renewal, as well as ongoing funding of $20 million per year to develop a pan-Canadian HHR strategy.[31]

These commitments were further elaborated upon in the 2004 F/P/T 10-Year Plan to Strengthen Health Care, which was based upon several principles including, among others: collaboration between all governments, advancement through the sharing of best practices, and jurisdictional flexibility.[32] The agreement also took into account the principle of asymmetric federalism, allowing for the existence of a separate agreement for any province, including the Government of Quebec, which signed a separate Communiqué with the federal government regarding the interpretation and implementation of the 10-Year Plan.[33]

With respect to HHR, governments further agreed to increase the supply of health professionals by establishing action plans that would include targets for training, recruitment and retention of professionals.[34] To achieve these objectives, First Ministers committed an additional $5.5 billion over 10 years to reduce wait times, which would include ongoing collaborative work in HHR.[35] The federal government further committed to:[36]

• Accelerate and expand the assessment and integration of internationally trained health care graduates for participating governments;
• Target efforts in support of Aboriginal communities and official language minority communities to increase the supply of health care professionals for these communities;
• Take measures to reduce the financial burden on students in specific health education programs; and
• Participate in HHR planning with interested jurisdictions.

Specific details regarding the federal government’s particular investments and programs and initiatives related to these commitments are the subject of subsequent chapters in this report.

Finally, it is important to note that the House of Commons Standing Committee on Health was also granted authority to review progress towards the implementation of the 10‑Year Plan to Strengthen Health Care under section 25.9(1) of the Federal-Provincial Fiscal Arrangements Act, which authorized the transfer of federal funds to the provinces in support of the plan.[37]