In Canada (Attorney General) v. Munsee-Delaware
Nation, 2015 FC 366, released on March 23, 2015, the
Federal Court reviewed a decision where an Adjudicator ruled he had
no jurisdiction over an unjust dismissal complaint under the Canada
Labour Code. The Adjudicator felt that the Supreme Court
decision of NIL/TU, O Child and Family Services Society v.
B.C. Government and Service Employees' Union, 2010 SCC
45,  2 SCR 696 (NIL/TU, O) meant that employment
relationships are presumed to be regulated by the provinces applied
even when the employer is a First Nation. The Adjudicator
reviewed whether, on a functional test, the nature,
operations and habitual activities of the First Nation meant that
the First Nation qualified as a "federal undertaking"
under the Canada Labour Code. The Adjudicator held
that he had no jurisdiction under the federal Code as the First
Nation's activities were mostly concerned with policing,
welfare, health, education and bingo, activities were all
provincially regulated, and that the complainant's work related
to the financial aspects of those provincially regulated
Both the complainant and the Attorney General challenged this
In reviewing the Adjudicator's decision, the Federal Court
distinguished the NIL/TU, O case stating that this First
Nation employer was:
a Band Council to which the Indian Act applies;
the employee was engaged in the general administration of the
band's affairs; and
the employee was paid from federal monies received by the First
Additionally, the Federal Court found that Francis v. Canada
Labour Relations Board  1 FC 225 (FCA), rev'd
P.S.A. (Can) v. Francis  2 SCR 71 (Francis) remained
good law in spite of the ruling in NIL/TU, O and was
therefore binding on the Arbitrator and the Federal Court. In
Francis, the Supreme Court of Canada held that Indian
bands and band councils, as they derive their governance authority
from the Indian Act or other federal legislation, will be
federal undertakings for the purposes of labour relations.
The Federal Court granted the judicial review applications and
held that the employer was a First Nation Band or Chief and Council
deriving its authority from federal statute, as such the Arbitrator
appointed to hear the unjust dismissal complaint pursuant to
section 240 of the Canada Labour Code, did have
jurisdiction to decide the dispute. As of March 31, 2015, it
is unknown if this decision will be challenged. It will be
interesting to see to what extent this case is of assistance to
First Nations or legal counsel when dealing with on-reserve
employment. As these types of cases are decided, the guidance
offered to First Nation employers and employees will none the less
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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