Cheryl Raiche v. Pic Mobert First Nation, 2014 HRTO 1271

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cheryl Raiche Applicant

-and-

Pic Mobert First Nation Respondent

INTERIM DECISION

Adjudicator: Douglas Sanderson Date: August 27, 2014 Citation: 2014 HRTO 1271 Indexed as: Raiche v. Pic Mobert First Nation

WRITTEN SUBMISSIONS

Cheryl Raiche, Applicant Marisa Scotto di Luzio, Counsel

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, disability and reprisal.

2By letter dated June 19, 2014, the Tribunal notified the applicant that the Application may be outside the Tribunal’s jurisdiction because the respondent appears to be a federal government department, agency or a federally regulated business, i.e., a First Nations organization. The Tribunal directed the applicant to make submissions on the issue of jurisdiction no later than July 21, 2014. The Tribunal subsequently granted the applicant’s request to extend the deadline to file submissions to August 21, 2014.

Applicant’s Submissions

3The applicant filed comprehensive submissions in support of her argument that the Tribunal has jurisdiction to deal with this Application. In summary, the applicant submitted that she alleges discrimination with respect to her employment as an Ontario Works Employment Counsellor/Worker and that the discriminatory acts allegedly occurred in the Ontario Works office of the respondent. The applicant noted that she was employed to provide services pursuant to the Ontario Works Act, 1997 (the “Act”), which is a provincial statute. Pursuant to the regulations under the Act, Pic Mobert First Nation is designated as a geographic area and its council as a delivery agent for services under the Act. The applicant submitted that there are no provisions of the Indian Act that deal directly with social assistance.

4The applicant submitted that labour relations are presumptively within provincial jurisdiction, subject to narrow exceptions. See NIL/TU, O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 SCR 696. The applicant submitted that the essential nature of the Ontario Works office operations was to provide services to eligible individuals under the Act, and that the respondent derives its authority to provide these services from the province and is accountable to the province regarding the provision of these services. The applicant submitted that the fact that the respondent is a First Nation does not change the essential nature of the Ontario Works office work on the reserve.

Analysis and Decision

5The 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”.

6The Code only applies to matters that come within provincial jurisdiction and does not apply to federally-regulated enterprises or undertakings. The Canadian Human Rights Commission has the power to deal with human rights matters that fall under federal jurisdiction. An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381. In the circumstances of this case, I find that it is not plain and obvious that the subject matter of this Application falls outside of the Tribunal’s jurisdiction. Accordingly, the Tribunal shall continue to deal with the Application.

7A decision to continue to deal with an application in these circumstances is not a final decision regarding the Tribunal’s jurisdiction in respect to the Application (Rule 13.5).

Order

8The Tribunal shall proceed with the processing of the Application. Pursuant to Rule 13.4 of the Tribunal’s Rules of Procedure, the Application, a copy of this Interim Decision, the applicant’s submissions on the jurisdiction issue, and all correspondence between the Tribunal and the applicant on the jurisdiction issue, together with a Notice of Application, will be provided to the respondent.

9I am not seized of this matter.