FederalProvincial Jurisdiction in Labour Relations for First Nations

Federal/Provincial Jurisdiction in Labour Relations for First Nations Evan Duffy, Lawyer, Parlee Mc. Laws LLP Jonathan Morin, Human Resources Director, Enoch Cree Nation

Overview of Today’s Session • • • 5/15/2018 Why Jurisdiction Matters How to Determine Who Has Jurisdiction How to Respond to Jurisdictional Issues How to Avoid Jurisdictional Problems Exercise on Determining Jurisdiction Questions / Discussions CAHRMA Conference Presentation 2

The Problem with Jurisdiction • The general rule is that labour relations fall under provincial legislative authority • The general rule is that matters relating to first nations fall under federal legislative authority • The issue is: Who has authority over labour relations in respect of first nations? 5/15/2018 CAHRMA Conference Presentation 3

When Does Jurisdiction Come up for First Nations? • Canada Labour Code Complaints • Provincial Employment Standards Code Complaints • Provincial / Federal Labour Board Matters • Human Rights Complaints 5/15/2018 CAHRMA Conference Presentation 4

Why Does it Matter? • Federal and Provincial labour relations laws can have significant differences and your nation needs to know which ones apply to which elements of the nation. • You could inadvertently be following the wrong rules and be subject to penalties or damages awards. 5/15/2018 CAHRMA Conference Presentation 5

Why Does it Matter? • As an employer, the federal regime has some less favourable remedies and it could be in your nation’s interest to try and move a complaint/issue into the provincial scheme. • Having an understanding of jurisdiction will allow for better strategic HR planning, knowing what rules apply. 5/15/2018 CAHRMA Conference Presentation 6

Determining Jurisdiction The “Functional Test” Default presumption is that labour relations are provincial. Federal regulation applies if: 1) Can the nature, habitual activities, and daily operations of the entity in question be characterized as federal undertakings, services, or businesses? 2) If #1 is inconclusive, then would provincial regulation of the entity impair the “core” of the federal undertaking? 5/15/2018 CAHRMA Conference Presentation 7

NIL/TU, O Child and Family Services Society v. BCGSEU, 2010 SCC 45: Leading case on determining jurisdiction: • • • NIL/TU, O is a Child welfare organization for that services 7 aboriginal communities in BC Serves only aboriginal clients Some, but not all, employees are aboriginal Receives federal funding because of aboriginal clients it serves Regulated by BC provincial legislation and created pursuant to BC legislation All other child welfare organizations in BC are provincially regulated Are employees of NIL/TU, O subject to provincial or federal regulation? 5/15/2018 CAHRMA Conference Presentation 8

NIL/TU, O Child and Family Services Society v. BCGSEU, 2010 SCC 45: Supreme Court decision: NIL/TU, O is subject to provincial regulation: “Neither the cultural identity of NIL/TU, O’s clients and employees, nor its mandate to provide culturally‑appropriate services to Aboriginal clients, displaces the operating presumption that labour relations are provincially regulated. As the Court of Appeal pointed out, social services must, in order to be effective, be geared to the target clientele. This attempt to provide meaningful services to a particular community, however, cannot oust primary provincial jurisdiction over the service providers’ labour relations. NIL/TU, O’s function is unquestionably a provincial one. ” 5/15/2018 CAHRMA Conference Presentation 9

Determining Jurisdiction Key issue: what is the “nature, habitual activities, and daily operations” of the entity in question? This requires you to look at questions like: • Who is employing the employees in question? Is it the nation or is it a separate company that is related to the nation? • If they work for a company related to the nation, is the company wholly owned and controlled by the nation? Is it federally or provincially incorporated? Is there intermingling of the finances and employees between the nation and the company? • Do the employees work on reserve or off reserve? • Are the employees serving aboriginal clients or do they deal with the general public? • Where does the funding for the job come from? Is it from the federal government? Is it through a provision in the Indian Act? • Is there provincial regulation that applies to the employees? For example, teachers have provincial certification that is required. • Does the organization have a mandate related to working with aboriginals? Is that a central part of the organization? *Non-exhaustive list where no one question is determinative and some carry greater weight than others. Caselaw suggests that some of these will not be relevant for certain issues. 5/15/2018 CAHRMA Conference Presentation 10

How to Respond to A Jurisdictional Problem If you have a complaint/grievance/application and you believe the wrong level of government has taken jurisdiction: • Ensure that you register an objection early on in the process. • If they don’t immediately decline jurisdiction, make a written request that the decision maker decline jurisdiction. You often need to make a formal request for them to decline jurisdiction. • Jurisdiction should be dealt with before the complaint/grievance/application is dealt with on the merits. 5/15/2018 CAHRMA Conference Presentation 11

How to Avoid Jurisdictional Problems • Try to have an understanding about which elements of your nation’s employees will be subject to which jurisdiction. It is very likely that different elements of your nation will be subject to different jurisdictions. • Ensure that your HR Policies, Employment Contracts, etc. are compliant with the correct jurisdiction’s governing legislation. • When decisions are made about how to structure your nation’s affairs, keep jurisdiction in mind. Make sure that leadership has an appreciation that changes in structure can attract different regulations if they change the jurisdiction (for example, moving a band service to an incorporated company as opposed to being directly employed by the nation). • Some organizations structure their affairs in ways that will help them avoid federal jurisdiction, due to the employee friendly labour relations rules of the Canada Labour Code. 5/15/2018 CAHRMA Conference Presentation 12

Determining Jurisdiction: Exercise Instructions: • The handout contains 5 examples of situations commonly faced by First Nations. • Split into small groups of approximately 5 people • Review each of these examples and discuss amongst your group whether they are subject to provincial vs. federal regulation. • As a group, make a decision about whether the particular employees are federal vs. provincial, based on the factors discussed previously • These are based on real cases. At the end, we will reveal which ones were found to be federal and which ones were found to be provincial. 5/15/2018 CAHRMA Conference Presentation 13

EXERCISE Exercise: Do Each of these fall under Provincial or Federal Jurisdiction? 1. 2. 3. 4. Employee of Gas Station, operating on-reserve, employed directly by band Employee of Gas Station, employed through band owned company Teachers at on-reserve school, teaching aboriginal students Member of Health Services Committee, appointed by First Nation, through Tribal Council 5. Employee of an Aboriginal Women’s Association See handout for further details 5/15/2018 CAHRMA Conference Presentation 14

1. Gas Station Employees Conclusion: Federal See: Dinsmore v. Slenyah Store and others, 2016 BCHRT 176 “I find that the Slenyah Store operated by SFN was an integral part of overall SFN governance and operations. According to the Respondents, the Slenyah Store’s primary purpose is to permit members of SFN to avail themselves of their tax-free status under the Indian Act. Its finances were integrated into SFN finances. The employees who worked at the Slenyah store were employees of SFN. Finally, in the words of the Federal Court in Francis, the operations of the Slenyah Store, along with all other SFN operations, were ‘continuously concerned with the status and the rights and privileges of the Band Indians. ’” 5/15/2018 CAHRMA Conference Presentation 15

2. Gas Station Employees Conclusion: Provincial See: Dinsmore v. Slenyah Store and others, 2016 BCHRT 176 In this regard, I am satisfied that the corporate restructuring resulting in the incorporation of the Slenyah Store is significant for jurisdictional purposes. The fact that incorporation is provincial is not, in my view, significant. The fact that it creates an entity at arms-length from SFN whose only function is to operate the convenience store and gas bar, which is presumptively a provincial function for jurisdictional purposes, is significant. 5/15/2018 CAHRMA Conference Presentation 16

3. Teachers on Reserve Conclusion: Federal See: Association of employees of Northern Quebec v Matimekush. Lac John Innu Nation Band Council, 2016 CIRB 843 “[T]he Board concludes that the services provided by the teachers, who are employees of the band council and who are covered by the union’s certification application, are related to band council governance, and labour relations with these teachers are “an integral part of primary federal jurisdiction over Indians or Lands reserved for the Indians. ” Therefore, the Board considers that the presumption in favour of provincial jurisdiction over labour relations is rebutted. ” 5/15/2018 CAHRMA Conference Presentation 17

4. Health Services Committee Members Conclusion: Federal See: Morrison v. Mitaanjigaming First Nation, 2017 HRTO 1684 “MFN is a Band involved in the governance of its members and the reserved lands. MFN is a member of the FFTAHS as part of its mandate to govern and oversee the health and education of its members. MFN appoints a member to represent its interest at FFTAHS. The applicant filed this Application against MFN, not the FFTAHS. It was the MFN that made the decision to appoint and remove her from the FFTAHS Board. This was a Band decision that falls within the purview of its function to govern its members, which falls squarely within the federal power over ‘Indians and Lands Reserved for the Indians’. ” 5/15/2018 CAHRMA Conference Presentation 18

5. Aboriginal Women’s Association Employees Conclusion: Provincial See: Gallagher v Native Women’s Association of Canada, 2017 Can. LII 55939 “The Adjudicator thus concludes under the functional test that NWAC is not itself a federal undertaking when performing advocacy and policy work on behalf of Aboriginal women. NWAC is instead comparable to a multitude of other associations which represent the interests of their members. Those associations’ labour relations fall within provincial jurisdiction. ” 5/15/2018 CAHRMA Conference Presentation 19

Further Resources 1. Canada Labour Code: http: //lawslois. justice. gc. ca/eng/acts/L-2/index. html 2. Can. Lii: https: //www. canlii. org 3. Federal Gov. Website: https: //www. canada. ca/en/employment-socialdevelopment/programs/employmentstandards/federal-standards. html 5/15/2018 CAHRMA Conference Presentation 20

Questions / Discussion 5/15/2018 CAHRMA Conference Presentation 21