Docket: T-1673-15
Citation:
2016 FC 1090
Vancouver,
British Columbia, September 27, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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TREATY 8 TRIBAL ASSOCIATION
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Applicant
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and
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ANNA BARLEY
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Respondent
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REASONS
AND JUDGMENT
I.
Nature of the Matter
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 of a
decision rendered by a federal adjudicator. The adjudicator concluded that the
applicant, Treaty 8 Tribal Association, was a federal undertaking for the
purpose of the application of the Canada Labour Code, R.S.C., 1985, c. L-2 [the
Code].
II.
Facts
[2]
The applicant was registered as an incorporated
society in British Columbia pursuant to the Society Act, RSBC 1996, c 433
on January 18, 1982. Its constitution states that its purpose is:
a)
To provide educational materials and
resources to the Indian Bands in North Eastern British Columbia;
b)
To assist the Indian Bands in North
Eastern British Columbia to improve their social, economic and cultural
position;
c)
To assist the Indian Bands in North
Eastern British Columbia to practice their Indian government;
d)
To co-ordinate the Indian people’s
activities towards protecting the traditional resources of their committees;
e)
To train members of the communities in
various forms of Indian government; and
f)
To protect the treaty and aboriginal
rights of the Indian Bands in North Eastern British Columbia.
[3]
The applicant’s offices are located in the City
of Fort St. John. Its members consist of Treaty 8 First Nations, but membership
fluctuates depending on the year. Customarily, the applicant’s Directors are
the Chiefs of the First Nations maintaining a membership in the association. In
2014, the applicant drew its revenues from federal funding (36%), provincial
funding (almost 25%) and internally-raised money derived principally from a
trust related to agreements with the provincial government (40%).
[4]
In July 2014, preparations for the annual
financial audit resulted in the discoveries of financial irregularities
involving the respondent, including repeated use of the organization’s
corporate credit card for personal use. Because the respondent was employed as
Director of Administration and Economic Development and oversaw the management
and finances of the applicant, the applicant considered that it had just cause
to terminate her employment without notice or pay in lieu of notice.
[5]
Following her dismissal, the respondent filed a
complaint for unjust dismissal with Human Resources and Skills Development
Canada. An adjudicator was appointed by the Minister of Labour on May 12, 2015.
[6]
Following a preliminary objection raised by the
applicant, the adjudicator agreed to make a determination on the issue of
whether the applicant constituted a federal undertaking based on the parties’
written submissions before hearing the case on the merits.
III.
Decision
[7]
The adjudicator accepted that the applicant was
a provincially incorporated society, that it did not specifically direct or
manage the activities of the respective First Nations members and that its
purpose was as laid out in its constitution. She also noted that labour
relations are prima facie the responsibility of the provinces.
[8]
She found that she did not necessarily need to
find that the operation itself was a federal entity, but that the question was
whether the essential operational nature of the organization was such that it
was integral to the First Nations members’ functions. She applied the test in Gibson-Peron
v Berens River First Nation, 2015 FC 614 to determine if the services
provided to the federal entity were performed by a functionally discrete unit
that could be constitutionally characterized separately from the related
organization.
[9]
The adjudicator found that the case at hand
corresponded to the two contexts in which derivative jurisdiction could be
established. First, the services provided to a federal undertaking – the First
Nations members – formed the exclusive (or principal) part of the related
work’s activities of the applicant. The applicant was created for the sole
purpose of service to its members and devoted 100% of its time providing
support to Treaty 8 bands, which are clearly federal undertakings by way of
subsection 91(24) of the Constitution Act, 1867, [Constitution Act].
Second, the operations and functions of the applicant were such that their
activities have a direct impact on the economic, cultural and political
influence of the First Nations members. Therefore, it was integral to the First
Nations members’ functions. In fact, the adjudicator concluded that the
applicant was created to ‘promote
Indianness’.
[10]
She also found that the fact that the
applicant’s lack of involvement in policy development or the implementation of
policies at band level was not a determining factor. The applicant’s core
functions clearly related to cultural or Indian status or rights because it had
no other purpose than serve its First Nations members.
IV.
Issues
[11]
This matter raises the following issues:
1.
What is the applicable standard of
review?
2.
Did the adjudicator err in concluding
that the applicant was a federal undertaking for the purposes of applying the Canada
Labour Code?
V.
Analysis
A.
What is the applicable standard of review?
[12]
The applicable standard of review is
correctness. Questions of true jurisdiction and constitutional questions
involving the division of powers are necessarily subject to the correctness
review because of the unique role of the Court as interpreters of the
Constitution (Dunsmuir v New Brunswick, 2008 SCC 9, paras 58-59). When
applying the correctness standard, the Court will not show deference to the
decision-maker’s reasoning process; it will rather undertake its own analysis
of the question. If the Court does not agree with the decision, it will
substitute its own view and provide the correct answer (Dunsmuir, para
50).
B.
Did the adjudicator err in concluding that the
applicant was a federal undertaking for the purposes of applying the Canada
Labour Code?
[13]
The applicant submits that the adjudicator
collapsed the two steps of the bifurcated test over labour relations into a
single one, transforming the traditional labour relation test into a test used
for determining whether a statute is inapplicable. She did not begin with the
functional test, but skipped right to the derivative jurisdiction while
overlooking whether the nature, operations and habitual activities of the
applicant related to federal jurisdiction. She ignored that none of the
applicant’s services fall under the Indian Act, RSC 1985, c. I-5,
[Indian Act], nor within the realm of First Nations governance or lands
reserved for Indians, and therefore not within the primary competence of the
federal government over Indians and lands reserved for Indians. I agree for the
following reasons.
[14]
Since 1925, it has been well-established that
labour and employment presumptively fall under provincial jurisdiction and only
exceptionally under federal jurisdiction. The Canada Labour Code only
applies to “employees who are
employed on or in connection with the operation of any federal work, undertaking
or business” (s 4) and defines “federal work, undertaking or business” as “any work,
undertaking or business that is within the legislative authority of Parliament” (s 2).
[15]
The Supreme Court of Canada developed a test to
determine whether an organization fell under federal or provincial jurisdiction.
In Tessier Ltée v Quebec (Commission de la santé et de la sécurité du
travail), 2012 SCC 23 at para 17, Justice Abella explained that the federal
government has jurisdiction to regulate employment in two circumstances, namely
when the employment related to a work, undertaking or business within the
legislative authority of Parliament, or when it is an integral part of a
federally regulated undertaking. She described the test to be applied as
follows:
[18] In the case of direct federal
labour jurisdiction, we assess whether the work, business or undertaking’s
essential operational nature brings it within a federal head of power. In the
case of derivative jurisdiction, we assess whether that essential operational
nature renders the work integral to a federal undertaking. In either case, we
determine which level of government has labour relations authority by assessing
the work’s essential operational nature.
[19] In this functional inquiry, the
court analyzes the enterprise as a going concern and considers only its ongoing
character: Commission du salaire minimum v. Bell Telephone Co. of Canada. The
exceptional aspects of an enterprise do not determine its essential operational
nature. […]
[16]
If the functional test is conclusive, there is
no need to proceed to the derivative jurisdiction analysis (Four B
Manufacturing v. United Garment Workers, [1980] 1 S.C.R. 1031, p. 1047 [Four
B]; NIL/TU, O Child and Family Services Society v. B.C. Government and
Service Employees' Union, 2010 SCC 45, para 16 [NIL/TU, O]). If
inconclusive, then the jurisdiction is determined by exploring whether
provincial regulation of an entity would impair the “core” of the
federal head of power at issue.
[17]
In NIL/TU,O, the Supreme Court recognized
that a divergent approach had emerged in dealing with labour relations in the
context of subsection 91(24) of the Constitution Act, but expressly rejected it
at para 20. The divergent approach proceeded directly to the question of
whether the “core” of the head of power is impaired, without applying the functional
test first. It also examined whether the nature of the entity’s operations lay
at the “core” and therefore displaced the presumption that labour relations are
provincially regulated instead of considering whether the core of the federal
power was impaired.
[18]
It is the approach that the adjudicator appears
to have followed. She wrote:
In the application of the case law to the
facts as presented by the Employer by way of affidavit, I do not necessarily
need to find that the operation itself is a federal entity, however the
question is whether the essential operational nature of T8TA is such that it is
integral to the First Nations members’ functions.
[19]
She later considered that “[the applicant’s] core functions clearly
relate to the cultural and Indian status or rights.”
[20]
The adjudicator should have applied the
functional test to determine whether the nature, operations and habitual
activities of the applicant fell under the federal head of power of “Indians, and Lands reserved for the
Indians”. Only where the activity is so
integrally related to what makes Indians and lands reserved for the Indians a
fundamental federal responsibility does it become an intrinsic part of the
exclusive federal jurisdiction (NIL/TU,O, para 73).
[21]
Subsection 91(24) of the Constitution Act is
concerned with the “core of
Indian-ness”. In Fox Lake Cree Nation v
Anderson, 2013 FC 1276 [Fox Lake], Justice Zinn summarized
what the jurisprudence considered part of the core of Indian-ness:
[43] […] Relationships within
Indian families and reserve communities; rights that are necessarily incidental
to Indian status such as registrability, membership in a band, the right to
participate in elections of Chiefs and Band Councils, and reserve privileges;
the right to possession of lands on a reserve and the division of family
property on reserve lands; sustenance hunting pursuant to Aboriginal and treaty
rights; the right to advance a claim for the existence or extent of Aboriginal
rights or title in respect of a contested resource or lands; and the operation
of constitutional and federal rules respecting Aboriginal rights.
[22]
In light of this description, it is clear that
the applicant’s activities are not part of the “core” of subsection
91(24) of the Constitution Act. The applicant provides services and advice to
First Nations, including services related to economic development, education
and culture of the British Columbia Treaty 8 First Nations. It is not directly
involved in policy development or the implementation of policies at the
community level. The individual First Nations members remain responsible for
developing their own policy and maintain full autonomy and decision-making
powers. In addition to advisory services to Bands, the applicant provides
administrative, technical, research, archival, training, negotiation and
advocacy services to its members and research and archival support to other
First Nations in British Columbia and Alberta. It also facilitated a collaborative
economic development corporation to create opportunities from major
developments in the territories of Treaty 8 Nations and to invest back in the
communities and played a coordinating role for the First Nations in the
negotiation of a suite of agreements with the provincial government. None of
these services fall under the Indian Act, nor within the realm of First Nations
governance or lands reserved for the Indians. Had the adjudicator proceeded to
do the functional analysis, she would have conclusively concluded that the
applicant’s activities did not fall under subsection 91(24) and declined
jurisdiction.
[23]
The adjudicator’s failure to apply the
functional test is sufficient to decide the issue of this judicial review in
favour of the applicant.
[24]
I will however note that, in going through the
derivative jurisdiction analysis the adjudicator committed an additional error
by focusing on the identity of the applicant’s clients (Fox Lake, para
31). As contemplated above, the nature of the habitual activities undertaken by
the applicant do not fall under subsection 91(24) of the Constitution Act
because it merely provides assistance to First Members nations in the exercise
of their powers under subsection 91(24) of the Constitution Act. Similarly to
the situation in Fox Lake, in this case, while the beneficiaries of the
applicant’s work are First Nations, its main purpose is to offer advisory
services in the conduct of Band business. As the applicant points out, a law
firm specializing in the same would not ever be considered a federal
undertaking only for that reason. Had the adjudicator applied the functional
test and found it inconclusive, her analysis of the derivative jurisdiction
would not have stood up under scrutiny.
VI.
Conclusions
[25]
In light of the above, the decision is quashed.
The Court declares that the applicant is a provincial entity. The Code does not
apply to the respondent’s complaint of alleged unjust dismissal. No costs.
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