In Canada, jurisdiction over employment law is ordinarily within
the authority of each province, unless the employer or activity is
"federal" in nature. Much of the time this is a
straightforward distinction but in certain areas, such as the
regulation of employment related to First Nations, it is much
trickier. Although pronounced upon not long ago by the
Supreme Court of Canada in NIL/TU, O Child and Family Services
Society v. B.C. Government and Service Employees' Union,
2210 SCC 45 ("NIL/TU, O") the test in that
ruling has not delivered consistent or predictable results in cases
The latest Federal Court pronouncement
on this issue came December 20, 2013 in Fox Lake Cree Nation v.
Denis Anderson, 2013 F.C. 1276. Mr. Justice Zinn had to
decide whether the adjudicator appointed pursuant to the Canada
Labour Code had jurisdiction to hear certain claims for unjust
dismissal, unpaid overtime and vacation pay. The claimant was
Denis Anderson, an employee of the Keyask Project Negotiations
Office established by the Fox Lake Cree Nation ("FLCN")
with whom he had been employed until the termination of his
employment October 10, 2010.
Justice Zinn agreed with the adjudicator that Mr. Anderson's
employer was in fact the Fox Lake Cree Nation; however, that
finding was not determinative of the jurisdictional issue as the
case law provides examples of very different results when applying
the functional test set out in NIL/TU,O. Mr.
Anderson argued that the activities of the Negotiation Office were
integrally related to the federal responsibility for Indians and
land reserved for Indians which meant that the employer was a
federal work, undertaking or business and accordingly the
Canada Labour Code applied.
Justice Zinn held that the proper procedure was not to examine
the nature, operations and habitual activities of the FLCN as a
whole but rather those which are the subject of the jurisdictional
challenge. Focussing upon the operations and habitual
activities of the Negotiations Office, Justice Zinn pointed out
that a single employer may have both federally and provincially
regulated operations and employees.
Finding that the central purpose of the Negotiation Office was
the negotiation of sophisticated commercial agreements (the
development of Hydro Electric Projects) Justice Zinn held that the
focus should not have been upon the beneficiaries of the activities
of the Negotiation Office nor upon who was receiving, providing or
funding services or the location of such services. The sole
consideration should have been the nature of the habitual
activities undertaken by the operation. He cited with
authority from the NIL/TU, O decision at paragraph 45:
"The community for whom the
entity operates... does not change what it does."
Justice Zinn declined to find that this matter fell into any of
the three "Tessier" categories (Tessier Ltée.
v. Quebec, 2012 SCC 23) and so derivative federal jurisdiction
was not justified. Nor did resorting to provisional labour
legislation impair those functions of the enterprise which are
intimately bound up with the status and rights of Indians.
Ultimately there was nothing to oust the presumption that labour
relations are within provisional jurisdiction and accordingly the
employer's application was allowed setting aside the
The ruling in Fox Lake Cree Nation is consistent with
the trend reinforced by the Supreme Court of Canada in NIL/TU,
O narrowing the scope of federal jurisdiction, even in
circumstances where the business activity undertaken is essential
to First Nations. This trend has the potential to
significantly complicate the management of workplaces and the
legality of existing employment agreements and policies, in many
enterprises hitherto thought to be subject to federal
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