Supreme Court of Canada

Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72

Date: 1982-08-09

Public Service Alliance of Canada Appellant;

and

Chief Lawrence Francis, Benny Roundpoint, John Sharrow, William Francis, Gerald Sharrow, Francis Sam, Angus Mitchell, Mike Adams, James Lazore, Louis Sunday, Jake Adams, being all Councillors of the St. Regis Indian Band, and of the Cornwall Island or St. Regis Indian Reserve set aside for the said Band Respondents;

and

The Canada Labour Relations Board Intervener.

File No.: 16191.

1981: November 26, 30; 1982: August 9.

Present: Martland, Ritchie, Dickson, Estey and Chouinard JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Labour relations—Certification—Employer—Canada Labour Relations Board—Jurisdiction—Whether Indian Band Council and employer within meaning of Canada Labour Code—Canada Labour Code, R.S.C. 1970, c. L-1 [as amended by 1972 (Can.), c. 18], ss. 107(1), 118(p)—Indian Act, R.S.C. 1970, c. I-6, ss. 74, 81—Interpretation Act, R.S.C. 1970, c. I-23, s. 27(7).

The Canada Labour Relations Board dismissed respondents’ application to review and rescind a certification order certifying the appellant as the bargaining agent to a unit of employees of the St. Regis Band Council. The Federal Court of Appeal, however, allowed respondents’ appeal and set aside the certification order on the ground that the Band Council was not an “employer” within the meaning of s. 107(1) of the Canada Labour Code, in that the Band Council was not a “person”. Hence, the present appeal.

Held: The appeal should be allowed.

The lack of corporate status does not prevent a body from being an employer under the Code. The Band Council—a designated body of persons—is a creature of the Indian Act. It is given power to enact by-laws for the

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enforcement of which it is necessary to employ staff. Here, the Council did engage employees and paid them. These circumstances, for the purpose of the Code, showed that the Council could properly be considered to be an employer within the meaning of that Act. Finally, it was for the Canada Labour Relations Board to decide whether the Band or the Council should be regarded as the employer and it did so.

International Brotherhood of Teamsters v. Therien, 1960 CanLII 33 (SCC), [1960] S.C.R. 265, referred to.

APPEAL from a judgment of the Federal Court of Appeal, 1980 CanLII 4210 (FCA), [1981] 1 F.C. 225, setting aside a decision of the Canada Labour Relations Board (1978), 33 di 451, dismissing respondents’ application for review of a certification order. Appeal allowed.

L.M. Joyal, Q.C., and G.H. Robichon, for the appellant.

James O’Reilly and William S. Grodinsky, for the respondents.

Y.A.G. Hynna, for the intervener.

The judgment of the Court was delivered by

MARTLAND J.—The appellant on or about September 30, 1971, applied, pursuant to the provisions of the Canada Labour Code, R.S.C. 1970, c. L-1 (“the Code”) as amended 1972 (Can.), c. 18, to the Canada Labour Relations Board (“the Board”) for certification as the bargaining agent for a group of employees of the Iroquois St. Regis Band Council. Certification was granted.

On March 2, 1973, the appellant gave notice to Chief Lawrence Francis, St. Regis Band Council, to bargain. The respondents, the Chief and the Councillors of the St. Regis Indian Band, refused to recognize the jurisdiction of the Board but did co-operate in the holding of a hearing by the Board in respect of the appellant’s request for an order to require the Council to bargain collectively. The Board issued such an order on March 8, 1974.

On March 21, 1974, the respondents applied, pursuant to s. 28 of the Federal Court Act, R.S.C.

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1970 (2nd Supp.), c. 10, to the Federal Court of Appeal to have this order of the Board set aside. This application, following a partial argument, was adjourned by consent, sine die, to enable the respondents to seek a re-hearing by the Board.

On December 17, 1974, the respondents applied to the Federal Court of Appeal to set aside the certification order.

On April 8, 1975, the respondents applied to the Board to re-hear the application for certification and to rescind the certification order. The respondents also applied to the Board to rescind the order to bargain collectively. On November 10, 1978, the Board dismissed the respondents’ application.

The two section 28 applications then proceeded before the Federal Court of Appeal. On May 30, 1980, that Court, by a two to one decision, set aside both of the orders of the Board, 1980 CanLII 4210 (FCA), [1981] 1 F.C. 225.

Up to and including the hearing by the Federal Court of Appeal the respondents’ main ground of attack upon the Board’s orders was that the labour relations in issue were not within federal legislative competence, that the Code did not apply to them and that, in consequence, the Board had no jurisdiction to make the orders which were in dispute. This submission was not accepted by the Court. Heald and Le Dain JJ. held that the Code was applicable in respect of the labour relations in issue. Chief Justice Thurlow did not state any final conclusion with respect to this issue.

This point was not argued by the respondents in this Court. They were content to rely upon another point, previously regarded as a subsidiary point, on which the majority of the Court found in their favour. The basis of the judgment of the Chief Justice is that the St. Regis Band Council was not a person within the meaning of s. 118(p) of the Code.

The Code, in s. 107(1) defines the word “employer” to mean “any person who employs one or more employees”. Paragraph (p) of s. 118 provides that the Board has power:

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(p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

(i) a person is an employer or employee,

(ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

(iii) a person is a member of a trade union,

(iv) an organization or association is an employers’ organization, a trade union or a council of trade unions,

(v) a group of employees is a unit appropriate for collective bargaining,

(vi) a collective agreement has been entered into,

(vii) any person or organization is a party to or bound by a collective agreement, and

(viii) a collective agreement is in operation.

The opinion of the Chief Justice is stated as follows [at p. 228]:

The Board has jurisdiction under section 118(p) of the Canada Labour Code, R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18, s. 1, to decide any question as to whether a person is an employer. But it does not have jurisdiction to decide that what is not a person is a person. In my view the St. Regis Indian Band Council is not a person within the meaning of section 118(p). Neither the council nor the Band itself is a body corporate. Neither has capacity, apart from the capacity of its members as individuals, to become or to be an employer of employees.

Heald J. summarized his position in the following passage from his reasons [at pp. 246-47]:

I have, however, further concluded, that the respondent Board acted without jurisdiction in purporting to certify subject unit of employees since the designated “employer” therein is not an “employer” as defined in subsection 107(1) of the Code.

Le Dain J., who dissented on this issue, stated his position as follows [at p. 248]:

I am unable, however, to agree with the Chief Justice and Mr. Justice Heald that the Board exceeded its jurisdiction by treating the Band Council as the employer for purposes of the certification. The record shows that there is in fact a situation of employment. Persons are engaged for certain work by the Council. They are paid by the Council. If the Council cannot be treated as the employer on the ground that it lacks corporate status

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or explicit authority to make contracts of employment, then the same must be said of the Band. In the result there would be a de facto situation of employment, but because of the ambiguous legal character of the Council and the Band the employees would be deprived of the rights conferred by the Canada Labour Code. It would not be feasible to regard the individual members from time to time of the Council or the Band as the employers. In effect, it is not clear who, on strict legal tests, could be considered to be the employer, having regard to the question of legal personality and the question of authority to make contracts on someone else’s behalf. Yet there is clearly a situation in which persons have the status of employees. In these circumstances, I think the Board should be held to have jurisdiction to treat the Band Council as the employer for purposes of the Code.

The appellant appealed to this Court from the judgment of the Federal Court of Appeal. The passages from the judgment in the Federal Court of Appeal cited above indicate the problem which existed in deciding as to the matter of certification. There were persons involved who had the status of employees. Neither the Council nor the Band itself had been given statutory corporate status by the provisions of the Indian Act, R.S.C. 1970, c. I-6. It was conceded by the respondents that this could not be a situation in which there was no employer at all. Their submission was that it was the Band which was the employer and should be so considered in relation to certification.

The powers exercisable by the Council and the Band arise by virtue of the provisions of the Indian Act. That act makes provision, in s. 74(1), for the good government of an Indian Band. That subsection reads:

74. (1) Whenever he deems it advisable for the good government of a band, the Minister may declare by order that after a day to be named therein the council of the band, consisting of a chief and councillors, shall be selected by elections to be held in accordance with this Act.

Section 81 of the Act gives to the council power to make by-laws, not inconsistent with the Act or regulations, for many specified purposes which are similar to those covered by the by-laws of a municipality. The Governor in Council may declare that

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a band has reached an advanced stage of development, in which event the council may, subject to the approval of the Minister, make by-laws of a taxing or funding nature.

The by-laws which a council has power to enact include by-laws dealing with the construction of roads, reservoirs and buildings, health services and the prevention of disorderly conduct. The council is empowered to make by-laws in respect of matters arising out of, or ancillary to, the exercise of the other powers defined in s. 81.

Section 74 of the Indian Act contemplates the creation of a statutory body, the council, to be selected by elections held in accordance with the Act. While the Act does not provide that this body shall be incorporated, it does grant to this body substantial legislative powers which, if exercised, would require the employment of staff to secure the implementation of its by-laws. The Board found that the Council did hire employees and that they were paid by cheques issued by the Council in its name.

In International Brotherhood of Teamsters v. Therien, 1960 CanLII 33 (SCC), [1960] S.C.R. 265, this Court considered a case in which an action had been brought by the respondent against a trade union seeking damages in tort and an injunction to restrain the union from interfering with the operation of his business. The union, which had been certified as a bargaining agent under the British Columbia Labour Relations Act, contended that it was not a legal entity which could be found liable in tort. The union was not incorporated.

The appeal was dismissed. Locke J., whose reasons on this point were accepted by the majority of the Court, held that, in the absence of anything to show a contrary intent, the legislature must be taken to have intended that the creature of the statute should have the same duties and be subject to the same liabilities as the general law would impose on a private individual doing the same thing.

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The Band Council is a creature of the Indian Act. It is given power to enact by-laws for the enforcement of which it is necessary to employ staff. In fact, the Council does engage employees to do work for it and it pays them. In view of these circumstances, for the purposes of the Code, it is my opinion that the Council could properly be considered to be an employer within the meaning of that Act. I am fortified in that conclusion by the provision contained in s. 27(7) of the Interpretation Act, R.S.C. 1970, c. I-23, that words in the singular include the plural. The word “person” in the Code therefore includes “persons”. The Council is a designated body of persons which is given a specific role under the provisions of the Indian Act.

The respondents argued before this Court that it was the Band and not the Council which should have been certified by the Board. However, as Le Dain J. points out, if the Council cannot be treated as the employer because it lacks corporate status, the same must be said of the Band. If lack of corporate status prevents a body from being an employer under the Code, then there would be a situation in which Indian employees doing work for the Council or the Band would be denied the rights conferred by the Code.

The decision as to whether the Council or the Band should be regarded as the employer was one which is within the jurisdiction of the Board to determine under s. 118(p) of the Code, previously cited. It was for the Board to decide who was the employer, and the Board did so.

I would allow the appeal and set aside the judgment of the Federal Court of Appeal. The appellant should be entitled to its costs in this Court and in the Federal Court of Appeal.

Appeal allowed with costs.

Solicitors for the appellant: Honeywell, Wotherspoon, Ottawa.

Solicitors for the respondents: O’Reilly & Grodinsky, Montreal.

Solicitors for the intervener: Gowling & Henderson, Ottawa.