NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, (2010) 294 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 08, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 294 B.C.A.C. 1 (SCC);2010 SCC 45

CFS v. BCGSEU (2010), 294 B.C.A.C. 1 (SCC);

    498 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] B.C.A.C. TBEd. NO.015

NIL/TU,O Child and Family Services Society (appellant) v. B.C. Government and Service Employees' Union (respondent) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General for Saskatchewan, British Columbia Labour Relations Board, Canadian Human Rights Commission, Kwumut Lelum Child and Family Services Society, Mohawk Council of Akwesasne, Assembly of First Nations of Quebec and Labrador, First Nations of Quebec and Labrador Health and Social Services Commission, First Nations Summit and Te'Mexw Nations (intervenors)

(32862; 2010 SCC 45; 2010 CSC 45)

Indexed As: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

November 4, 2010.

Summary:

A Society was incorporated under the Society Act (B.C.), by a number of First Nations on Southern Vancouver Island. Only members of those First Nations were eligible to be directors of the Society. The Society's offices were on reserve lands. Its purposes and goals related to the care, protection and advancement of First Nations children. A union applied to be certified as bargaining agent for the Society's employees. The Society objected on the ground that its functions fell within federal jurisdiction being matters in relation to "Indians, and Lands Reserved for the Indians" under s. 91(24) of the Constitution Act, 1867. A one member panel of the Labour Relations Board certified the union, holding that the labour relations fell within s. 92(13), being matters in relation to "Civil Rights in the Province". A three member panel of the Board denied a reconsideration application. The Society applied for judicial review.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. E09, allowed the application. The union appealed.

The British Columbia Court of Appeal, in a decision reported at 258 B.C.A.C. 244; 434 W.A.C. 244, allowed the appeal. The court held that the B.C. Labour Relations Board correctly held that it had jurisdiction to certify the union as bargaining agent for the Society's employees because the Society's operations did not touch upon the "core of Indianness". The Society appealed.

The Supreme Court of Canada dismissed the appeal. Abella, J. (LeBel, Deschamps, Charron, Rothstein and Cromwell, JJ., concurring), for the majority, held that in determining whether an entity's labour relations would be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, the court had to apply the "functional test" first. Only if this test was inconclusive as to whether a particular undertaking, service or business was "federal", did the court go on to consider whether provincial regulation of that entity's labour relations would impair the "core" of the federal head of power. Since the functional test conclusively established that the Society was a provincial undertaking, there was no reason to examine the "core" of s. 91(24). McLachlin, C.J.C., and Fish, J. (Binnie, J., concurring), for the minority, held that the central question was whether the operation at issue fell within the protected "core of Indianness" under s. 91(24) of the Constitution Act, 1867, and hence under federal jurisdiction. The starting point was the general rule that labour issues fell within provincial jurisdiction. The only question was whether the case fell within the exception to this rule, i.e., whether applying a functional test, the activity fell within the core of a federal power that was protected from provincial legislation.

Constitutional Law - Topic 6364

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Labour relations - The Supreme Court of Canada held that in determining whether an entity's labour relations would be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, the court had to apply the "functional test" first - This test called for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constituted a federal undertaking, service or business - Only if this test was inconclusive as to whether a particular undertaking was "federal", did the court go on to consider whether provincial regulation of that entity's labour relations would impair the "core" of the federal head of power - Consideration of the "core" of a federal head of power was part of the functional test, the first step of the analysis - Whether an activity lay at the "core" of a federal undertaking or head of power was an analysis carried out in the narrow confines of interjurisdictional immunity - See paragraphs 1 to 22.

Constitutional Law - Topic 6364

Federal jurisdiction (s. 91) - Indians and lands reserved for Indians - Labour relations - NIL/TU,O Child and Family Services Society (NIL/TU,O) provided child welfare services to certain First Nations children and families in British Columbia - It had a unique institutional structure, combining provincial accountability, federal funding, and a measure of operational independence - None of the parties disputed that child welfare was a matter within provincial legislative competence under the Constitution Act, 1867 - NIL/TU,O did not challenge the constitutional validity of the Child, Family and Community Service Act (B.C.) as it applied to Aboriginal people - Nor was the issue whether the federal government could enact labour relations legislation dealing with "Indians" - At issue was whether NIL/TU,O's labour relations nonetheless fell within federal jurisdiction over Indians under s. 91(24) because its services were designed for First Nations children and families - The Supreme Court of Canada applied the "functional test", being an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constituted a federal undertaking - The court held that it was a provincial undertaking - Since the functional test conclusively established that NIL/TU,O was a provincial undertaking, there was no reason to examine the "core" of s. 91(24) - See paragraphs 23 to 47.

Constitutional Law - Topic 6686

Federal jurisdiction (s. 91) - Federal works and undertakings - Ancillary powers - Labour relations - The Supreme Court of Canada stated that "Jurisdiction over labour relations is not delegated to either the provincial or federal governments under s. 91 or s. 92 of the Constitution Act, 1867. But since Toronto Electric Commissioners v. Snider, [1925] A.C. 396 (P.C.), Canadian courts have recognized that labour relations are presumptively a provincial matter, and that the federal government has jurisdiction over labour relations only by way of exception. This exception has always been narrowly interpreted ... The approach to determining whether an entity's labour relations are federally or provincially regulated is a distinct one and, notably, entails a completely different analysis from that used to determine whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. Because the regulation of labour relations falls presumptively within the jurisdiction of the provinces, the narrow question when dealing with cases raising the jurisdiction of labour relations is whether a particular entity is a 'federal work, undertaking or business' for purposes of triggering the jurisdiction of the Canada Labour Code." - See paragraphs 11 and 12.

Constitutional Law - Topic 7289

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Labour relations - [See both Constitutional Law - Topic 6364 ].

Labour Law - Topic 435

Labour relations boards and judicial review - Boards - Jurisdiction - Canada Industrial Relations Board - [See Constitutional Law - Topic 6686 ].

Cases Noticed:

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, appld. [para. 3]; refd to. [para. 54].

Four B Manufacturing Ltd. v. United Garment Workers of America, Labour Relations Board (Ont.) and Brant et al., [1980] 1 S.C.R. 1031; 30 N.R. 421, appld. [para. 3]; refd to. [para. 54].

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, appld. [para. 3]; refd to. [para. 58].

Toronto Electric Commissioners v. Snider, [1925] A.C. 396 (P.C.), refd to. [para. 11].

Stevedoring Case - see Reference Re Industrial Relations and Disputes Investigation Act.

Reference Re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529, refd to. [para. 11].

Reference Re Minimum Wage Act (Sask.), [1948] S.C.R. 248, refd to. [para. 11].

Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, refd to. [para. 11].

Agence Maritime Inc. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 851, refd to. [para. 11].

Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178, refd to. [para. 11].

Yellowknife (City) v. Canada Labour Relations Board and Public Service Alliance of Canada, [1977] 2 S.C.R. 729; 14 N.R. 72, refd to. [para. 11].

Montcalm Construction Inc. v. Minimum Wage Commission et al., [1979] 1 S.C.R. 754; 25 N.R. 1, refd to. [paras. 11, 51].

Bell Canada v. Commission de la santé et de la sécurité du travail (Qué.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [para. 11].

Ontario Hydro v. Labour Relations Board (Ont.) et al., [1993] 3 S.C.R. 327; 158 N.R. 161; 66 O.A.C. 241, refd to. [para. 11].

Sappier v. Tobique Indian Band (Council) (1988), 87 N.R. 1 (F.C.A.), refd to. [paras. 19, 67].

Qu'Appelle Indian Residential School Council v. Canadian Human Rights Commission et al., [1988] 2 F.C. 226; 14 F.T.R. 31 (T.D.), refd to. [paras. 19, 67].

Sagkeeng Alcohol Rehab Centre Inc. v. Abraham et al., [1994] 3 F.C. 449; 79 F.T.R. 53 (T.D.), refd to. [paras. 19, 67].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [paras. 21, 61].

Husky Oil Operations Ltd. v. Minister of National Revenue et al., [1995] 3 S.C.R. 453; 188 N.R. 1; 137 Sask.R. 81; 107 W.A.C. 81, refd to. [para. 42].

Multiple Access Ltd. v. McCutcheon et al., [1982] 2 S.C.R. 161; 44 N.R. 181, refd to. [para. 42].

Reference Re Firearms Act (Can.), [2000] 1 S.C.R. 783; 254 N.R. 201; 261 A.R. 201; 225 W.A.C. 201; 2000 SCC 31, refd to. [para. 42].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [paras. 42, 71].

Fédération des producteurs volailles du Québec et al. v. Pelland, [2005] 1 S.C.R. 292; 332 N.R. 201; 2005 SCC 20, refd to. [para. 42].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1; 2003 SCC 55, refd to. [para. 55].

R. v. Dick, [1985] 2 S.C.R. 309; 62 N.R. 1, refd to. [para. 55].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 55].

Shubenacadie Indian Band v. Canadian Human Rights Commission et al. (2000), 256 N.R. 109; 37 C.H.R.R. D/466 (F.C.A.), refd to. [para. 67].

Westbank First Nation et al. v. Labour Relations Board (B.C.), [1997] B.C.T.C. Uned. F82; 39 C.L.R.B.R.(2d) 227 (S.C.), refd to. [para. 67].

Commission de transport de la communauté urbaine de Québec v. Commission des champs de bataille nationaux, [1990] 2 S.C.R. 838; 115 N.R. 106; 34 Q.A.C. 282, refd to. [para. 69].

Natural Parents v. Superintendent of Child Welfare (B.C.) et al., [1976] 2 S.C.R. 751; 6 N.R. 491, refd to. [para. 71].

Paul v. Paul et al., [1986] 1 S.C.R. 306; 65 N.R. 291, refd to. [para. 71].

Derrickson v. Derrickson et al., [1986] 1 S.C.R. 285; 65 N.R. 278, refd to. [para. 71].

Counsel:

Walter G. Rilkoff, Lisa A. Peters and Nicole K. Skuggedal, for the appellant;

Kenneth R. Curry and Catherine Ann Sullivan, for the respondent;

Peter Southey and Sean Gaudet, for the intervenor, the Attorney General of Canada;

Sean Hanley and Bruce Ellis, for the intervenor, the Attorney General of Ontario;

Sylvain Leboeuf and Monique Rousseau, for the intervenor, the Attorney General of Quebec;

Gaétan Migneault, for the intervenor, the Attorney General of New Brunswick;

Cynthia Devine, for the intervenor, the Attorney General of Manitoba;

Paul E. Yearwood, for the intervenor, the Attorney General of British Columbia;

R. James Fyfe, for the intervenor, the Attorney General for Saskatchewan;

Elena Miller, for the intervenor, the British Columbia Labour Relations Board;

Philippe Dufresne and Valerie Phillips, for the intervenor, the Canadian Human Rights Commission;

John W. Gailus and Christopher G. Devlin, for the intervenor, the Kwumut Lelum Child and Family Services Society;

Jacques E. Emond and Colleen Dunlop, for the intervenor, the Mohawk Council of Akwesasne;

David Schulze and Barbara Cuber, for the intervenors, the Assembly of First Nations of Quebec and Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission;

Arthur C. Pape and Richard B. Salter, for the intervenor, the First Nations Summit;

Robert J.M. Janes and Karey M. Brooks, for the intervenor, the Te'Mexw Nations.

Solicitors of Record:

Lawson Lundell, Vancouver, B.C., for the appellant;

British Columbia Government and Service Employees' Union, Burnaby, B.C., for the respondent;

Attorney General of Canada, Toronto, Ontario, for the intervenor, the Attorney General of Canada;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Attorney General of Quebec, Quebec, Quebec, for the intervenor, the Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

British Columbia Labour Relations Board, Vancouver, B.C., for the intervenor, the British Columbia Labour Relations Board;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervenor, the Canadian Human Rights Commission;

Devlin Gailus, Victoria, B.C., for the intervenor, the Kwumut Lelum Child and Family Services Society;

Emond Harnden, Ottawa, Ontario, for the intervenor, the Mohawk Council of Akwesasne;

Dionne Schulze, Montreal, Quebec, for the intervenors, the Assembly of First Nations of Quebec and Labrador and the First Nations of Quebec and Labrador Health and Social Services Commission;

Pape Salter Teillet, Vancouver, B.C., for the intervenor, the First Nations Summit;

Janes Freedman Kyle Law Corporation, Victoria, B.C., for the intervenor, the Te'Mexw Nations.

This appeal was heard on December 8, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. On November 4, 2010, the court delivered the following reasons for judgment in both official languages, including the following opinions:

Abella, J. (LeBel, Deschamps, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 47;

McLachlin, C.J.C., and Fish, J. (Binnie, J., concurring) - see paragraphs 48 to 82.