Sorry everyone, failed to correctly include the material I had gathered.
Here it is.  Ann

I'm not a lawyer, but have worked quite a lot on these issues and can answer
=
>at least part of your question.
>
>First, everything in NAFTA is subject to legal debate! Another problem =
>with the agreement is that even if a disputes panel makes a ruling on =
>something, NAFTA stipulates that such a ruling will not establish a =
>precedent. So the debate seems destined to continue into eternity.
>
>Second, the situation you are describing is something that will arise in =
>Alberta and is upper most in the minds of many people, including myself. =
>It also will arise in Ontario and other provinces that are contracting =
>providers of home care, for example, and other types of health care =
>provision outside the hospital sector.
>
>"Contracting" as distinct from "funding" providers may undermine the =
>public purpose exemption negotiated in Chapters 11 and 12 (investment =
>and cross-border trade in services). If that's the case, all of the =
>provisions in these chapters apply. That's because the exemption is a =
>qualified one, ie., it says that only health services provided for a =
>public purpose are exempt from certain of the provisions in both =
>chapters. The US position is that any service provided by a =
>non-governmental entity, whether for-profit or non-profit, does not fall =
>within this public purpose exemption. The terms "public purpose" and =
>"health care" are not defined anywhere in NAFTA -- another subject for =
>legal debate.
>
>Canada, however, has maintained what I consider to be an ambiguous =
>position on these matters. It doesn't offer a definition of public =
>purpose, except to say that a service meets the definition if that was =
>the intent of the provincial or federal government. This may be because =
>the overwhelming majority of health services are delivered by =
>non-governmental entities, including hospitals (except for mental health =
>hospitals, which are disappearing). Most of these, in turn, are =
>non-profit. Until relatively recently, these non-profits received =
>funding for the provision of services as well as for the maintenance of =
>the organization. Now they are competing head on with corporations large =
>and small in a competitive tendering process.=20
>
>In this situation it might be hard for Canada to argue that services =
>provided by for-profit entities in a competitive tender meet the public =
>purpose criteria. In addition, contracting by a public body is probably =
>covered by public procurement in the NAFTA, Chapter 10. This chapter =
>does not apply to health care or social services.
>
>Nonetheless, most governments are following NAFTA procurement rules to =
>the letter, except, interestingly, Alberta. Alberta does not use a =
>tendering process in its allocation of contracts for diagnostic =
>services, for example. The regional authorities contract a private lab =
>directly and there is no competition. Presumably it's able to do this =
>because Ch. 10 doesn't apply to health care. This also is how it's =
>proposing to proceed with the for-profit hospital, HRG, Inc. Others =
>argue that public procurement rules are also established by common law =
>in Canada, and this applies to health care.
>
>On the other hand, the Agreement on Internal Trade (AIT) will probably =
>apply to post-secondary education, health and social services when the =
>NDP government of BC is defeated in the next election. BC was the only =
>province to oppose the application of procurement rules to these areas, =
>despite great pressure from the federal government. If the AIT =
>procurement rules apply to health care, there is a "lock in" to NAFTA, =
>that is, NAFTA's procurement rules will also apply, turning the carve =
>out for health in Ch 10 on its head. It also would extend the national =
>treatment provisions of NAFTA to health care and to provinces, neither =
>of which are currently subject to these rules.
>
>I wish there was more cheerful news on this front, but unfortunately if =
>one supports equity and universal access in health care, there isn't =
>much good news. If you wanted a lawyerly perspective on this, you might =
>want to contract Barry Appleton in Toronto, or Steven Shrybman in =
>Vancouver. I'm sorry I have neither of their phone numbers -- the latter =
>is at the West Coast Environmental Law Society.
>
>I hope this has been helpful.
>
>Colleen Fuller
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