Contributed by Poland Lai, PhD
Introduction
The purpose of this blog post is to provide a brief update on the development of a federal Safe Long-Term Care Act. Long Term Care (LTC) homes, also called nursing homes, are regulated by provincial and territorial governments. Based on a review of the discussion paper released by the federal government and subsequent consultation report, a key shortcoming of the proposed Act is lack of clear mechanism to ensure the spirit and the letter of the law will be followed across all provinces and territories.
Context
The federal government’s presence in LTC can be described as “limited and passive.” The onset of the COVID-19 pandemic prompted more federal government actions in LTC, such as deployment of Canadian Armed Forces to provide direct operational support in some LTC homes. Between 2020 and 2023, the federal government continued to support provincial and territorial governments and other organizations in the health sector, mainly by transfer of funding. As of March 2024, all provinces and territories have signed their Aging with Dignity bilateral agreements with the federal government. Funding provided under this Agreement is for five years (April 2023 to March 2028). On the regulatory front, the Minister of Health and the Minister of Seniors were mandated to develop national LTC standards and a Safe LTC Act. The Standards Council of Canada, the Canadian Standards Association, and Health Standards Organization developed and released the national standards in 2022 and 2023.
Proposed Safe Long-Term Care (LTC) Act
On July 21, 2023, the federal government began a public online consultation to support the development of a Safe LTC Act until September 21, 2023. The accompanied discussion paper provided indications of the scope of the proposed Safe LTC Act. Potential elements of the Act could include a pan-Canadian vision and principles for the safe operation and delivery of care in LTC homes. These elements were intended to reflect the new national standards and encourage provinces and territories to adopt these standards. Not surprisingly, the discussion paper emphasized that the federal government was “committed to working collaboratively with provinces and territories to improve the quality, safety and availability of care in long-term care homes.” It was noted that legislation would be respectful of “constitutional division of powers and jurisdiction of provinces and territories to manage and deliver long-term care.” Therefore, the proposed Act would “not mandate standards or regulate long-term care delivery.”
On August 29, 2024, Health Canada released the Safe Long-Term Care Act engagement: What we heard report, which noted that the proposed legislation “will outline guiding principles to support quality and safety in LTC.” The report highlighted the following principles as themes in the feedback gathered:
- Treating LTC as one part of a continuum of supportive care;
- Meaningful quality of life;
- Prioritizing inclusion and diversity;
- Quality care and safety; and
- Transparency and accountability.
It is evident that there was no consensus as to the appropriate role of the federal government in LTC. “Many participants wanted to see more leadership from the federal government and a uniform approach across Canada with respect to the quality and safety of LTC. . . Others felt the opposite way and did not see the need for further federal involvement in LTC.” Nonetheless, stakeholders called for better information and reporting on the state of LTC in Canada. One of the suggestions was: “Inspect LTC homes on a frequent basis and making these inspections unannounced; follow through on the recommendations of LTC inspections.” The report noted that the government planned to table the legislation by the end of 2024. As of July 2025, the federal government has not tabled the Safe LTC Act.
To be fair, the federal government attempted to incorporate concerns about enforcement and compliance with care standards in the bilaterial agreements with the provinces. For example, in the Canada-Ontario Aging with Dignity agreement, it is noted that:
3.3 Ontario will invest federal funding for long-term care provided through this Agreement to bolster efforts to support workforce improvements and standards by:
…
The Constitution Act, 1867 does not explicitly assign health care to either federal or provincial level of government. Nonetheless, the Supreme Court of Canada has affirmed that provinces have general jurisdiction over health matters within their province pursuant to their power over local or private matters (s.92(16)), property and civil rights (s. 92(13)), and the establishment of hospitals, asylums, charities and eleemosynary institutions (s. 92(7)). The Supreme Court refers to the provincial health power as ‘‘broad and extensive,” one that ‘‘extends to thousands of activities and to a host of different venues.” It is understandable that the federal government hesitates to engage in protracted discussions with the provinces and territories about responsibility for LTC (other than funding).
However, introduction of a new federal act without credible and consistent means of enforcement raises important questions about effective implementation across Canada. As Estabrooks, Flood and Straus summarize succinctly: “federal legislation must offer up more than nice thoughts about what high-quality LTC should look like. It must have teeth in terms of the funding involved and the consequences for failing to meet national standards.” The Canada Health Act (CHA) provides a useful illustration. A detailed enforcement mechanism is outlined in sections 14 to 17 of the CHA. A key problem with the CHA over time has been the lack of enforcement of its provisions. For example, the CHA requires “reasonable access to health services without financial or other barriers,” but the federal government has never sought to enforce this provision against provincial governments that have done little to respond to long wait-time concerns.
Regulatory co-ordination for the purpose of solving a pressing national problem across different levels of government should not be insurmountable. When interpreting the scope of federal or provincial powers, courts have been concerned with avoiding legislative vacuums i.e., gaps in which no government acts to address a problem. This may result from protecting the exclusivity of one level of government too strongly and then finding the other level has no jurisdiction to act. The “double aspect” doctrine is applied to preserve an ability for both levels of government to legislate to respond to a common problem. For LTC, the gap is not so much about existence of a legislative vacuum. In fact, legislative actions are abundant. Rather, enforcement vacuum is the gap that needs to be addressed.
Improving LTC home inspection and enforcement processes is one of the common recommendations from inquiries specific to the COVID-19 pandemic. I have argued elsewhere that in Ontario, although regulatory interventions are made, little seems to change, and, moreover, the regulator’s approach tends to be the same even when performance varies across the sector. Enforcement does not have to be restricted to a top-down, command-and-control process. Creation of a central arm’s-length regulatory authority for LTC is one possibility. The co-existence of a variety of regulatory methods in the health care sector – from self-regulation to accreditation – should inform discussions about implementation of the new federal act. The peril of introducing a federal act (without clear enforcement mechanisms) is that it will create an illusion that something is being done about LTC but will do little to promote “safe, reliable and high-quality care” on the ground.
Conclusion
As memory of the COVID-19 pandemic fades, it is probably not controversial to suggest that intergovernmental collaboration in LTC will be limited to support for health data infrastructure development and transfer of funding. Multiple levels of government can result in blame-shifting and a mismatch between responsibilities and resources. It remains to be seen as to whether different levels of government and health sector partners (including LTC homes, residents and their families) can leverage the aggregative effects of additional funding, national standards and provincial enforcement mechanisms.
About the Author
Poland Lai is an Associate Professor with the School of Administrative Studies, York University. She received her PhD and LLM from Osgoode Hall Law School. She has published in the Canadian Journal of Law & Society, the Windsor Review of Legal and Social Issues, International Journal of Care and Caring, Disability & Society and Health Law in Canada.
Acknowledgement
This commentary draws on research supported by the Social Sciences and Humanities Research Council.
McGill Journal of Law and Health 
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