Canada (Attorney General) v. Munsee-Delaware Nation et al., 2015 FC 366

• Judge: LeBlanc, J.
• Court: Federal Court (Canada)
• Case Date: September 23, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 366;(2015), 477 F.T.R. 149 (FC)

Can. (A.G.) v. Munsee-Delaware Nation (2015), 477 F.T.R. 149 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. MR.064

Attorney General of Canada (applicant) v. Munsee-Delaware Nation and Crystal Flewelling (respondents)

(T-1043-13)

Crystal Flewelling (applicant) v. Munsee-Delaware Nation, The Attorney General of Canada and The Attorney General of Ontario (respondents)

(T-1030-13; 2015 FC 366)

Indexed As: Canada (Attorney General) v. Munsee-Delaware Nation et al.

Federal Court

LeBlanc, J.

March 23, 2015.

Summary:

Flewelling was a member of the Munsee-Delaware Nation (the Nation). She was hired by the Nation to work in its Administration offices. Over time, her duties evolved from those of data entry/file clerk to those of a housing/finance clerk. Her employment was terminated in the spring of 2006. She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code. An adjudicator was appointed. The proceedings were at a standstill for three years as the parties awaited the resolution of criminal charges that had been laid against Flewelling. When the proceedings resumed, the Nation advised that it was no longer asserting cause for the dismissal. The only issue to be determined was damages. While the hearing was under way, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint. The adjudicator agreed. The Attorney General and Flewelling each applied for judicial review.

The Federal Court allowed the applications and referred the complaint back to the adjudicator for determination.

Administrative Law - Topic 3345.2

Judicial review - General - Practice - Issues not raised before tribunal - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Constitutional Law - Topic 6362

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Administration of Indian band - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Constitutional Law - Topic 6364

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Labour relations - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Constitutional Law - Topic 6686

Federal jurisdiction (s. 91) - Federal works and undertakings - Ancillary powers - Labour relations - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Indians, Inuit and Métis - Topic 6265

Government - What laws govern - Federal law - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Indians, Inuit and Métis - Topic 6328

Government - Self-government - Claim for - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Labour Law - Topic 6045

Industrial relations - Complaints - Adjudicators - Jurisdiction - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Master and Servant - Topic 8349

Employment and labour standards - Jurisdiction and powers of director, tribunal referees or officers - Unjust dismissal - Flewelling was a member of the Munsee-Delaware Nation (the Nation) - She was hired by the Nation to work in its Administration offices - Her employment was terminated in the spring of 2006 - She filed a complaint of unjust dismissal under s. 240 of the Canada Labour Code - An adjudicator was appointed - At the hearing, the Nation asserted that Flewelling's employment was regulated by the labour laws of Ontario rather than the Code and, as a result, the adjudicator lacked jurisdiction to determine the complaint - The adjudicator agreed - The Federal Court quashed the decision - The court referred to the two-step inquiry to determine whether a work, undertaking or a business's labour relations was federally or provincially regulated - Applying the first step (the functional test), the court determined that Flewelling was engaged in the general administration of the Nation's Band Council's affairs, including on-reserve housing and matters concerning Indian reserve lands - That was a federal undertaking within the meaning of the Code - The court rejected the Nation's assertion that it was not subject to the regulation of federal laws such as the Indian Act as it had an inherent authority to govern recognized by s. 35 of the Constitution Act - The Aboriginal right to self-government could be asserted, but not in this case - It had not been established and had not been asserted before the adjudicator - See paragraphs 17 to 54.

Cases Noticed:

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, [2010] 2 S.C.R. 696; 407 N.R. 338; 294 B.C.A.C. 1; 498 W.A.C. 1; 2010 SCC 45, consd. [para. 2].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 16].

Commissionaires (Great Lakes) v. Dawson (2011), 391 F.T.R. 216; 2013 FC 1276, refd to. [para. 16].

Fox Lake Cree Nation v. Anderson (2013), 445 F.T.R. 51; 2013 FC 1276, refd to. [para. 16].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396, refd to. [para. 17].

Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; 28 N.R. 107, refd to. [para. 17].

Four B Manufacturing Ltd. v. United Garment Workers of America and Ontario Labour Relations Board and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, refd to. [para. 17].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al., [2009] 3 S.C.R. 407; 395 N.R. 276; 469 A.R. 50; 470 W.A.C. 50; 2009 SCC 53, refd to. [para. 17].

St. Regis Indian Band Council v. Canada Labour Relations Board et al., [1982] 2 S.C.R. 72; 44 N.R. 136, reving. [1981] 1 F.C. 225; 33 N.R. 56 (F.C.A.), folld. [para. 20].

St. Regis Indian Band Council v. Public Service Alliance of Canada and Canada Labour Relations Board - see St. Regis Indian Band Council v. Canada Labour Relations Board et al.

Francis v. Canada Labour Relations Board - see St. Regis Indian Band Council v. Canada Labour Relations Board et al.

Native Child and Family Services of Toronto v. Communications, Energy and Paperworkers Union of Canada, [2010] 2 S.C.R. 737; 408 N.R. 121; 2010 SCC 46, affing. (2008), 382 N.R. 330; 2008 FCA 338, refd to. [para. 48].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 49].

Minister of National Revenue v. Craig, [2012] 2 S.C.R. 489; 433 N.R. 111; 2012 SCC 43, refd to. [para. 49].

Martin v. Canada (Attorney General), [2014] 3 F.C.R. 117; 442 N.R. 340; 2013 FCA 15, refd to. [para. 49].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 50].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 50].

Perron v. Canada (Attorney General), [2003] 3 C.N.L.R. 198 (Ont. Sup. Ct.), refd to. [para. 51].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al. (1997), 100 O.A.C. 344 (C.A.), refd to. [para. 52].

Knebush v. Maygard et al. (2015), 471 F.T.R. 150; 2014 FC 1247, refd to. [para. 52].

Knebush v. Pheasant Rump Nakota First Nation et al. - see Knebush v. Maygard et al.

Francis et al. v. Mohawk Council of Kanesatake et al., [2003] 4 F.C. 1133; 227 F.T.R. 161; 2003 FCT 115, refd to. [para. 52].

Mohawk of Kanesatake v. Mohawk of Kanesatake Council - see Francis et al. v. Mohawk Council of Kanesatake et al.

Counsel:

Roy Lee, for the applicant (T-1043-13), for the respondent (T-1030-13), Attorney General of Canada;

Cynthia Mackenzie, for the respondent (T-1043-13), for the applicant (T-1030-13), Crystal Flewelling;

Brian Daly, for the respondent, Munsee-Delaware Nation.

Solicitors of Record:

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the applicant (T-1043-13), for the respondent (T-1030-13), Attorney General of Canada;

Mackenzie & Mackenzie, London, Ontario, for the respondent (T-1043-13), for the applicant (T-1030-13), Crystal Flewelling;

McKenzie Lake Lawyers LLP, London, Ontario, for the respondent, Munsee-Delaware Nation.

These applications were heard at Toronto, Ontario, on September 23, 2014, by LeBlanc, J., of the Federal Court, who delivered the following judgment and reasons on March 23, 2015.