Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto

Supreme Court of Canada — [2010] 2 S.C.R. 737

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Ontario Jurisdiction over Indians

Quote

While the identity of Native Child’s clients undoubtedly has, and should have, an impact on the way the agency delivers services, it does not alter the essential nature of what Native Child does. (par. 11 of the decision)

Issue

Do the labour relations of the Native Child and Family Services of Toronto (“Native Child”) fall under federal or provincial jurisdiction?

Decision

Work relations are of provincial jurisdiction. The agency offers culturally sensitive services to aboriginal communities. The essential nature of the activities of Native Child remains the provision of children’s aid, which falls under provincial jurisdiction. The labour relations of the agency are therefore subject to provincial jurisdiction as well (unanimous decision).

Parties

Between: Communications, Energy and Paperworkers Union of Canada

And: Native Child and Family Services of Toronto

Interveners: Canada, Ontario, Quebec, New Brunswick, Manitoba, British Columbia, Saskatchewan, Assembly of the First Nations of Quebec and Labrador and First Nations of Quebec and Labrador Health and Social Services Commission

Facts

Native Child was created in 1986 to provide services as a children’s aid society to Aboriginals living in Toronto. Since 1987, the agency’s services were managed by Ontario’s Minister of Community and Social Services.

The federal government provided some funding to Native Child, although the majority of the services were funded by the province.

In 2007, the Communications, Energy and Paperworkers Union of Canada (“Union”) sought authorization to represent the employees of Native Child. Native Child opposed this application before the Canada Industrial Relations Board.

Arguments

Union: As a result of the aboriginal character of the activities carried out by Native Child, it is a federal undertaking in accordance with the federal jurisdiction over Indians guaranteed by s. 91(24) of the Constitution Act, 1867. As such, the labour relations of Native Child are subject to the Canada Labour Code.

 Native Child: Labour relations fall under exclusive provincial jurisdiction, as the nature of its activities is to provide children’s aid.

Decision of the lower courts

The Canada Industrial Relations Board: The federal government has exclusive jurisdiction over Indians, pursuant to the Constitution Act, 1867. Since the labour relations of Native Child are linked to this legislative power, the agency is subject to the Canada Labour Code.

The Federal Court of Appeal: Labour relations fall under provincial jurisdiction.

Reasons for Judgement

Jury

LeBel, Deschamps, Abella, Charron, Rothstein, Cromwell

Reason

The first step is to determine whether the function of Native Child is to carry out activities within the provincial or federal sphere. This requires the examination of its nature, operations and habitual activities. Labour relations are presumptively part of provincial jurisdiction. To overturn this presumption, the services offered by the agency must be of a federal nature.

The clients of Native Child are Aboriginals, as are the majority of the employees who offer a service that is adapted to the culture of these communities. Aboriginals fall under federal jurisdiction.

However, the essential nature of Native Child’s activities is to provide children’s aid services, which falls under provincial jurisdiction. The fact that these services are adapted to an aboriginal clientele is not sufficient to overturn the presumption that labour relations are provincial jurisdiction.

McLachlin, Binnie, Fish – concurring

The question of whether provincial jurisdiction applies can be resolved in one step: the function of Native Child is not at the core of the federal jurisdiction over Indians and the lands reserved for their use.

As a result, its labour relations cannot fall under exclusive federal jurisdiction under s. 91(24) of the Constitution Act, 1867, and cannot overturn the presumption of provincial competence.

Impact

This decision was rendered at the same time as NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union. The goal of these two judgements was to clarify the “functional test” pour determining whether labour relations are of federal or provincial jurisdiction.

The Supreme Court affirmed that labour relations are presumed to fall under provincial jurisdiction. In order to disrupt this presumption, the activities of an undertaking must constitute an integral part of the federal jurisdiction over Indians. Only then will the federal government have jurisdiction.