Joseph LeBlanc v. Nishnawbe Aski Nation and Wendy Trylinski, 2014 HRTO 1075

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joseph LeBlanc

Applicant

-and-

Nishnawbe Aski Nation and Wendy Trylinski

Respondents

DECISION

Adjudicator: Paul Aterman
Date: July 22, 2014
Citation: 2014 HRTO 1075
Indexed as: LeBlanc v. Nishnawbe Aski Nation

WRITTEN SUBMISSIONS

Joseph LeBlance, Applicant
Daniel Matson, Counsel

Nishnawbe Aski Nation and Wendy Trylinski, Respondents
Mary Chambers, Counsel

1This Decision explains why this Application, which alleges discrimination with respect to employment because of race and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), is being dismissed for lack of jurisdiction.

2The corporate respondent is a not-for-profit corporation. It functions as an umbrella organisation which represents 49 First Nation communities in northern Ontario and organises and delivers health, education and social services to those communities. It also promotes economic development in these communities and represents the communities in dealings with the provincial and federal governments on questions of politics, social and economic policy.

3The corporate respondent has an elected executive council drawn from its member First Nations communities and is accountable to the Chiefs of the member communities. The applicant has not disputed the respondents’ description of the structure, objectives and activities of the corporate respondent.

4The applicant was hired by the corporate respondent in 2011 to oversee a pilot program aimed at improving the health and fitness of members of 5 communities through increased access to foods grown locally. He moved to a different position in relation to a similar project in 2013. The personal respondent was the applicant’s supervisor.

5The applicant alleges that over the course of his employment the respondents discriminated against him in a variety of ways that include a refusal to grant him special leave to complete a university degree he was working on, a refusal of a pay increase and a refusal to allow him to be seconded to another position within the organisation.

6The respondents request dismissal because they argue that the Tribunal has no jurisdiction to deal with this Application.

7Under S.91 (24) of the Constitution Act, 1867, exclusive jurisdiction over “Indians and lands reserved for Indians” is conferred on the federal government. The Tribunal cannot consider human rights complaints that arise in the context of employment with a federal undertaking.

8Labour and employment relations are presumptively within provincial constitutional jurisdiction. In NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”), the Supreme Court of Canada set out a test for determining whether that presumption is displaced and the labour relations of an employer fall within federal jurisdiction. The first step is to apply a functional test in order to determine whether the nature, operations and habitual activities of the employer are such that it is found to be a federal undertaking. If it is clearly the case 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 impair the core of the federal head of power at issue.” (NIL/TU,O paragraph 18).

9In NIL/TU,O the Court found that an organisation providing child-welfare services to First Nations families and children did not fall within federal jurisdiction simply because the recipients of the services were First Nations people. Rather, it found that the organisation was one of many in a provincial network of organisations providing similar social welfare services. In other words, who receives the services provided by the employer is not determinative of the jurisdictional question. What matters is what those services are, how they are delivered and how the service delivery is administered and overseen.

10This is what the applicant argues in asserting that the Tribunal should deal with his Application. His submission is that the corporate respondent’s habitual activity is the organisation and coordination of services that are typically provided by local (i.e. municipal and regional) governments. Under the Constitution Act, 1867, matters of a local and private nature are within provincial legislative jurisdiction.

11I disagree with the applicant because his argument focuses solely on the operational aspects of the corporate respondent’s activities, ignoring its policy-making and political functions. In addition, the applicant overlooks the breadth of the corporate respondent’s mandate and activities.

12The Court in NIL/TU,O noted that while the child-welfare organisation in question had First Nations people as its client, was mandated to deliver its services in a culturally sensitive and appropriate manner, and received the majority of its funding from the federal government, it was still required to provide child-protection services pursuant to a comprehensive child-protection regime dictated by provincial statute. The organisation’s authority was delegated to it by the province and it was accountable to the provincial public service. The province retained ultimate decision-making control over the organisation’s operations. In other words, governance of the child-welfare regime in that case was determined pursuant to the province’s statutory authority and was therefore within the province’s constitutional jurisdiction.

13There is nothing to indicate that the corporate respondent is subject to a similar degree of provincial control or oversight. Further, in NIL/TU,O the organisation in question was a single-purpose organisation delivering one kind of social service. Here the scope of the corporate respondent’s authority, ranging from the design and delivery of health, education and social programs, to economic development and to acting as the political interlocutor on behalf of member communities in dealings with the federal and provincial governments, all suggest that the corporate respondent exercises a form of comprehensive First Nations governance.

14First Nations governance is integrally linked to the jurisdiction of the federal government. In NIL/TU,O the Court explained the federal government’s power to make laws for “Indians and lands reserved for Indians” as “matters that go to the status and rights of Indians. Where their status and rights are concerned, Indians are federal “persons”, regulated by federal law” (see para. 70 of NIL/TU,O).

15The nature, operations and habitual activities of the corporate respondent indicate that it exists to deal with issues related to “Indians and land reserved for Indians”. The Tribunal has come to the same conclusion in similar circumstances (i.e. where an employee of an organisation created to provide services to a coalition of First Nations communities and Band councils was alleging discrimination in employment – see: Velickovic v. Nokiiwin Tribal Council, 2014 HRTO 506 and Metat v. Mushkegowuk Council, 2013 HRTO 1877).

16For these reasons I conclude that the corporate respondent is a federal undertaking and the personal respondent was at all relevant times engaged as an employee of that federal undertaking. Accordingly, the Application is dismissed for lack of jurisdiction.

order

17The Application is dismissed.