Human Rights Tribunal of Ontario
B E T W E E N:
Nancy Velickovic Applicant
-and-
Nokiiwin Tribal Council Respondent
DECISION
Adjudicator: Jay Sengupta Date: April 10, 2014 Citation: 2014 HRTO 506 Indexed as: Velickovic v. Nokiiwin Tribal Council
Introduction
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 disability.
2The respondent has asked the Tribunal to dismiss the Application on the basis that the issues in dispute are exclusively within federal jurisdiction and, in the alternative, to dismiss the Application pursuant to s.34 (11) on the basis that there is an ongoing court proceeding arising out of the same facts in which the applicant is seeking an order under section 46.1 of the Code.
3The applicant was directed to complete a Form 11 by November 28, 2013, addressing the issues raised by the respondent. She has not done so and the time for doing so has now elapsed.
4This Decision deals with the question of the Tribunal’s jurisdiction to consider the issues raised and whether the Application should be dismissed because the respondent’s operations are within exclusive federal jurisdiction, as the respondent maintains.
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 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 SCR 696 (“NIL/TU,O”). In that case, the Supreme Court of Canada affirmed that the appropriate first inquiry is 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 impair the core of the federal head of power at issue.” (NIL/TU,O paragraph 18).
7According to the respondent, the Nokiiwin Tribal Council is a federally regulated, non-profit organization which operates on a reserve and which provides technical and advisory services to its member First Nations within the Robinson-Superior Treaty area. The respondent appears to be an organization that advances the interests of a coalition of First Nations peoples and Band councils within the region.
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 an inspector of the Human Resources and Skills Development Canada (“HRSDC”) Labour Program conducted an investigation and concluded that the respondent is subject to federal regulation and subject to the Canada Labour Code. The respondent has provided a letter from HRSDC to the organization confirming this ruling. While of some interest, this information is not determinative.
10In Metat v. Mushkegowuk Council, 2013 HRTO 1877 an organization with a similar structure and similar functions was held by the Tribunal to be a federal undertaking and the Tribunal held it had no jurisdiction to consider an Application in respect of it.
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