On Oct. 2, 2015, the Federal Court of Appeal delivered its judgment in Nishnawbe-Aski Police Service Board v. Public Service Alliance of Canada1, granting the application of the Nishnawbe-Aski Police Service Board for judicial review and setting aside a decision of the Canada Industrial Relations Board ("CIRB").
Following the development of the federal government's First Nations Policing Policy, Canada, Ontario, the Nishnawbe-Aski Nation and other First Nations signed the Ontario First Nations Policing Agreement in 1992.
Pursuant to this Agreement, the Nishnawbe-Aski Nation sought to establish a regional police service, the Nishnawbe-Aski Police Service ("Nishnawbe Police"), to provide effective and culturally appropriate police services in the Nishnawbe-Aski area. In addition, the Nishnawbe-Aski Police Board ("Nishnawbe Board") was established to manage the Nishnawbe Police.
The CIRB, acting under the Canada Labour Code2, certified the Public Service Alliance of Canada ("PSAC") in 2005 as the bargaining agent for two bargaining units of employees employed by the Nishnawbe Board. This certification order was based, among other things, on the view that labour relations of the Nishnawbe Police are federally regulated.
Further to the Supreme Court of Canada's decisions in NIL/TU,O Child and Family Services v. B.C. Government and Service Employees' Union3 and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto4 in 2010, the Nishnawbe Board applied to the CIRB to set aside its certification orders on the basis that the labour relations of the Nishnawbe Police are provincially regulated. In a decision rendered in November, 2013, the CIRB dismissed this argument and upheld the certification orders for the PSAC on the basis that the labour relations of the Nishnawbe Police are federally regulated.
The Nishnawbe Board therefore applied to the Federal Court of Appeal for judicial review of the CIRB's decision, submitting that the labour relations of the Nishnawbe Police are provincially regulated and that the CIRB should have revoked the certification of the PSAC.
Decision of the CIRB
The CIRB recognized that labour relations are presumed to be provincially regulated, as reaffirmed in NIL/TU,O and Native Child. A two-step functional test is required in order to determine whether that presumption is rebutted. The first step of the functional test is to examine the nature, operations and habitual activities of the entity to determine whether it constitutes a federal undertaking. If this first step is inconclusive, the second step is to determine whether provincial regulation of the entity's labour relations would impair the "core" of the federal head of power.
The Court found that the CIRB did not apply the functional test correctly. For example, the CIRB did not begin with the presumption in favour of provincial regulation of labour relations. In addition, rather than conducting a functional examination of the nature, operation and habitual activities of the Nishnawbe Police to determine whether it constitutes a federal undertaking, the CIRB focused on the more abstract question of whether policing was federally or provincially regulated. Overall, the CIRB concluded that the jurisdiction over the Nishnawbe Police rests with the federal government, and therefore the federal Canada Labour Code applies to its relations with its employees.
The Court was prudent in indicating that while the CIRB's decision suffered from a number of flaws, its conclusion was not necessarily wrong and, as such, the Court was required to answer the central question: are the labour relations of the Nishnawbe Police federally or provincially regulated?
Analysis of the Federal Court of Appeal
The Court found that the essential nature and function of the Nishnawbe Police was to provide policing services just like other provincial and municipal forces in Ontario and that the presumption that the labour relations are provincial regulated had not been rebutted.
Several facts were put forward by the Court to support this conclusion, including the following: the overall function of the Nishnawbe Police is to provide police services that are authorized under the provincial Police Services Act5; this legislation regulates some aspects of labour relations within the Nishnawbe Police; the Nishnawbe Police provides services to all persons, Aboriginal or non-Aboriginal, and its First Nations Constables may exercise policing authority anywhere in Ontario, but not outside of Ontario; one-third of the Nishnawbe Police's staff is located off-reserve; its recruits must receive training at the Ontario Police College; the Nishnawbe Police is funded 48% by Ontario and 52% by Canada under certain programs, but Ontario provides more funding; the Nishnawbe Police is independent and autonomous from the Nishnawbe-Aski Nation.
In addition, the Court stated that while the Nishnawbe Police must deliver services primarily to Aboriginal peoples, in a culturally sensitive way, and must apply and enforce Band by-laws, these matters did not rebut the presumption that the labour relations are provincially regulated. In the view of the Court, the focus must be on what the entity does, not the community for whom it operates.
In light of its conclusion on the first part of the test, the Court did not find it necessary to proceed with the second part, which is whether provincial regulation of the entity would impair the "core" of a federal head of power.
The Federal Court of Appeal found that the labour relations of the Nishnawbe Police are provincially regulated, not federally regulated. The Court granted the application for judicial review of the Nishnawbe Board and set aside the decision of the CIRB. In addition, the CIRB was directed to grant the application of the Nishnawbe Board to set aside the certification orders of the PSAC.
An application for leave to appeal to the Supreme Court of Canada has been filed by the PSAC.
1 2015 FCA 211.
2 R.S.C., 1985, c. L-2.
3  2 S.C.R. 696.
4  2 S.C.R. 737.
5 R.S.O. 1990, c. P.15.
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