Mississaugas of Scugog Island First Nation v. National Automobile Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Local 444 et al., (2006) 213 O.A.C. 2 (DC)

• Judge: O'Driscoll, Matlow and Jarvis, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: May 31, 2006
• Jurisdiction: Ontario
• Citations: (2006), 213 O.A.C. 2 (DC)

Mississaugas v. NAATGWU (2006), 213 O.A.C. 2 (DC)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JN.027

Mississaugas of Scugog Island First Nation (applicant) v. National Automobile Aerospace Transportation and General Workers Union of Canada (CAW-Canada) and its Local 444, Great Blue Heron Gaming Company and Ontario Labour Relations Board (respondents) and Attorney General of Canada (intervenor)

(10/04)

Indexed As: Mississaugas of Scugog Island First Nation v. National Automobile Aerospace Transportation and General Workers Union of Canada (CAW-Canada), Local 444 et al.

Court of Ontario

Superior Court of Justice

Divisional Court

O'Driscoll, Matlow and Jarvis, JJ.

May 31, 2006.

Summary:

The Great Blue Heron Gaming Co. (GBHGC) was engaged by an Indian Band to manage a casino on the Band's reserve. The Ontario Labour Relations Board (OLRB) certified the respondent union as the union for employees of GBHGC. The Band approved a "Labour Relations Code", which purported to govern labour relations on the reserve and labour relations off the reserve that related to activities involving connected entities that stemmed from the reserve. Three applications brought before the OLRB raised the issue of whether the Labour Relations Code enacted by the Band superseded the provisions of the Labour Relations Act. Specifically, the constitutional question was stated to be whether ss. 17, 70 and 96 of the Act were of no force and effect with respect to the labour relations of the GBHGC and its employees by reason of the enactment of the Band's Labour Relations Code, aboriginal or treaty rights of the Band and/or the Band's inherent right to self-government. The OLRB held that it had jurisdiction to determine the constitutional question and it subsequently answered the constitutional question in the negative. The Band applied for judicial review of the OLRB's decisions.

The Ontario Divisional Court dismissed the application.

Indians, Inuit and Métis - Topic 6002

Aboriginal rights - Jurisdiction to determine - An Indian Band approved a "Labour Relations Code", which purported to govern labour relations on the reserve and labour relations off the reserve that related to activities involving connected entities that stemmed from the reserve - Three applications brought before the OLRB raised the issue of whether the Labour Relations Code enacted by the Band superseded the provisions of the Labour Relations Act - Specifically, the constitutional question was stated to be whether ss. 17, 70 and 96 of the Act were of no force and effect with respect to the labour relations of an employer on the reserve and its employees by reason of the enactment of the Band's Labour Relations Code, aboriginal or treaty rights of the Band and/or the Band's inherent right to self-government - The Ontario Divisional Court held that the OLRB was correct when it determined that it had jurisdiction to answer the constitutional question - See paragraphs 68 to 71.

Indians, Inuit and Métis - Topic 6032

Particular aboriginal or treaty rights - Respecting labour relations - An Indian Band approved a "Labour Relations Code", which purported to govern labour relations on the reserve and labour relations off the reserve that related to activities involving connected entities that stemmed from the reserve - Three applications brought before the OLRB raised the issue of whether the Labour Relations Code enacted by the Band superseded the provisions of the Labour Relations Act - Specifically, the constitutional question was stated to be whether ss. 17, 70 and 96 of the Act were of no force and effect with respect to the labour relations of an employer on the reserve and its employees by reason of the enactment of the Band's Labour Relations Code, aboriginal or treaty rights of the Band and/or the Band's inherent right to self-government - The OLRB answered the constitutional question in the negative, holding that the Band had not established an aboriginal or treaty right to regulate its labour relations - The Band applied for judicial review - The Ontario Divisional Court dismissed the application - The OLRB's conclusion on the constitutional issue was correct - See paragraphs 79 to 103.

Indians, Inuit and Métis - Topic 6260

Government - What laws govern - General - [See Indians, Inuit and Métis - Topic 6032 ].

Labour Law - Topic 434

Labour relations boards and judicial review - Boards - Jurisdiction - Charter or constitutional issues - [See Indians, Inuit and Métis - Topic 6002 ].

Cases Noticed:

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, consd. [para. 39].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al. (1991), 122 N.R. 361; 47 O.A.C. 271; 81 D.L.R.(4th) 121 (S.C.C.), consd. [para. 40].

Cardinal v. Alberta (Attorney General), [1974] S.C.R. 695, refd to. [para. 64].

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, refd to. [para. 65].

Chippewas of Sarnia Band v. Canada (Attorney General) et al. (1999), 101 O.T.C. 1 (Sup. Ct.), refd to. [para. 65].

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, refd to. [para. 68].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207, consd. [para. 72].

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. 73].

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. 73].

R. v. Marshall (D.J.), Jr., [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 78].

Cedarville Tree Service Ltd. v. Labourers' International Union, Local 183 (1971), 22 D.L.R.(3d) 40 (Ont. C.A.), refd to. [para. 90].

Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 226 N.R. 201; 160 D.L.R.(4th) 193 (S.C.C.), refd to. [para. 97].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201, refd to. [para. 99].

Canada (Attorney General) v. Public Service Alliance of Canada (1993), 150 N.R. 161; 101 D.L.R.(4th) 673 (S.C.C.), refd to. [para. 100].

Counsel:

B.T. Daly, for the applicant, MSIFN;

L.N. Gottheil and N. Lindquist, for the respondent, Union, CAW;

O. Young, J. Roy and S. Paul, for The Attorney General of Canada (Intervenor);

M. Crow and P. Lemmond, for The Attorney General of Ontario (Intervenor);

R.K. Agarwal and T. Read-Grieve, for The Great Blue Heron Gaming Company, Respondent, Employer;

V. Stelmaszynkski, for OLRB.

This application was heard on February 23-25 and 28, 2005, at Toronto, Ontario, before O'Driscoll, Matlow and Jarvis, JJ., of the Ontario Divisional Court. The following judgment of the Divisional Court was delivered by O'Driscoll, J., and was released on May 31, 2006.