Metat v. Mushkegowuk Council, 2013 HRTO 1877

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Annie Metat

Applicant

-and-

Mushkegowuk Council

Respondent

DECISION

Adjudicator: Brian Cook

Date: November 8, 2013

Citation: 2013 HRTO 1877

Indexed as: Metat v. Mushkegowuk Council

WRITTEN SUBMISSIONS

Annie Metat, Applicant

Self-represented

Mushkegowuk Council, Respondent

Jennifer Trépanier, Counsel

1This Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to the applicant’s employment with the respondent and the end of that employment.

2This Decision deals with the question of whether the Tribunal has jurisdiction to consider the Application or whether it does not have jurisdiction because the respondent’s operations are within exclusive federal jurisdiction, as the respondent maintains.

3The jurisdictional issue arises because the respondent is a First Nations organization. The activities of First Nations organizations may fall under provincial or federal jurisdiction depending on the nature of those activities. Section 91(24) of the Constitution Act, 1867 gives exclusive jurisdiction to the federal government over “Indians and lands reserved for Indians”.

4The test for determining jurisdiction in this case is the one set out by the Supreme Court of Canada in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696 (“NIL/TU,O”). In that case, the Supreme Court of Canada affirmed that the appropriate first inquiry is to ask whether the nature, operations and habitual activities of the entity (or employer) are such that it is found to be a federal undertaking. The Court said that if this “functional test” establishes conclusively that the employer is a federal undertaking then its labour relations will be federally regulated. The court said that if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation of the employer's labor relations "would him impair the core of the federal head of power at issue.” (NIL/TU,O paragraph 18).

5According to the Response, the Mushkegowuk Council is a non-profit Regional Chief’s Council representing First Nations peoples in northern Ontario. It provides advisory services and delivers programs to its seven member nations.

6The mission statement of the organization indicates that the general purpose is to provide “quality equitable and accessible support and advisory services to respond to and meet the social, economic, cultural, educational, spiritual, and political needs of first nations, thereby improving the quality of life of our people.”

7The respondent thus appears to be an umbrella group that advances the interests of a coalition of First Nations peoples and Band councils.

8Employment-related activities of Band councils generally fall under the jurisdiction of the federal government and labour relations issues, including employment-related human rights issues as between a Band council and an employee of a Band council are subject to the federal labour laws. However, this does not mean that all operations or organizations of a Band council are subject to federal jurisdiction. For example NIL/TU,O, the organization considered in the Supreme Court of Canada decision noted earlier, was established by seven First Nations to provide child services for First Nations families and children. The Supreme Court determined that although the organization was operated by First Nations for the benefit of First Nations peoples the function of the organization was to provide child services. The Court found that the provision of child services was a matter of provincial jurisdiction. Applying the "functional" test, Court found that the organization’s labor relations were consequently a matter of provincial and not federal jurisdiction.

9The respondent states that it is federally incorporated and that it has been subject to the Canada Labour Code and the Canadian Human Rights Act. The respondent has not provided any decisions that show this but instead relies on its own Employment Regulations Manual, which references the Canada Labor Code and the Canadian Human Rights Act.

10The respondent has provided a copy of a decision of the British Columbia Human Rights Tribunal which dealt with the same jurisdictional question that arises in this case. In Rampanen-Fritzsche v. Okanagan National Alliance, 2012 HRTD No. 138, the BC Tribunal considered if it had jurisdiction to deal with a complaint by an employee of the Okanagan National Alliance. The decision indicates that the objectives of the Alliance are very similar to the objectives of the respondent in the case before me. It also indicates that the Okanagan National Alliance, like the Mushkegowuk Council, is a coalition or society of a number of First Nations. Applying the functional test established in NIL/TU,O, the BC Tribunal determined that the Okanagan National Alliance falls under federal jurisdiction.

11It appears that the function of the Mushkegowuk Council is to promote the political, social and economic interests of First Nations communities. Although the organization is not itself a band council it is a coalition organization of band councils. These factors show that the Council falls under federal jurisdiction.

12On the basis of the information before me, I am satisfied that the function and structure of the respondent organization means that it is a federal undertaking for the purposes of this Application.

13For these reasons, I find that the Tribunal does not have jurisdiction to deal with the Application and it is dismissed on that basis. If the applicant wishes to pursue her complaint that her human rights have been infringed, she must contact the Canadian Human Rights Commission.