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, [2010] 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 activities.
Both the complainant and the Attorney General challenged this decision.
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 Nation.
Additionally, the Federal Court found that Francis v. Canada Labour Relations Board [1981] 1 FC 225 (FCA), rev'd P.S.A. (Can) v. Francis [1982] 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 prove valuable.
lerners.ca/articles:commerciallitigation
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.