First Nations School Authority Operated and Controlled by Society

IN THE MATTER OF AN UNJUST DISMISSAL COMPLAINT

UNDER PART III OF THE CANADA LABOUR CODE

BETWEEN

VIOLET X

COMPLAINANT

AND

SOCIETY

RESPONDENT

 

 

ADJUDICATOR: Ib S. Petersen
FILE NO.: YM2707-11885

 
HEARING DATES: October 5, 6, 7 and 8, 2019
DECISION DATE: January 17, 2022
APPEARANCES: Terry-Rae LeBreton, representative, for the Complainant

Brenda McLuhan, counsel for the Respondent
   

 

JURISDICTIONAL DECISION

Introduction

 

  1. This an unjust dismissal complaint under the Canada Labour Code, R.S.C. 1985, c. L-2. It is brought by Ms. Violet X against YIndependent School Society (“CISS,” the “Society” or the “Employer”) with respect to her dismissal on January 21, 2019.

 

  1. The Employer objected to my jurisdiction to hear and decide the unjust dismissal complaint.The parties agreed to bifurcate the hearing, addressing first the jurisdictional issue.  The issue before in this decision me is whether employment by the Society falls under provincial or federal jurisdiction.  If it falls under provincial jurisdiction, I lack jurisdiction to hear and determine the complaint.  Accordingly, this decision does not address the merits of the complaint, i.e., whether the Society’s decision to dismiss her was unjust.

 

Facts

 

  1. The material facts are not in dispute.The Society’s testimony focused on the nature of the Society and its activities; Ms. X’s emphasized the nature of her position and the importance of federal funding and Indigenous language and culture.  There was no disagreement that language and culture was important for YSchool operated by the Society.

 

  1. X was employed by CISS until January 21, 2019, when she was terminated for cause. She was employed as the Society’s Education Coordinator, a position she had held since 2006.  Prior to that she had been employed in various capacities by the Fort Nelson First Nation (the “Band”) since 1979, starting as receptionist.  When she was initially employed as Education Coordinator, the position was under the Fort Nelson First Nation.  CISS took over the position from Fort Nelson First Nation in 2013.  In September 2013, Ms. X signed and number of forms, including the YEmployee Information, Guidelines of Conduct for Employees, and Oath of Confidentiality.  Since 2013, Ms. X was paid by CISS.  In any event, there was no dispute that at the time of termination, Ms. X was employed by CISS.

 

  1. CISS was incorporated on December 3, 2002, under the (now) the Society Act, RSBC 2015, c. 18. The Constitution of the Society lists as its purpose “to support the educational pursuits of the Fort Nelson First Nation including the operation of YSchool and be responsible for the educational welfare of the community.”  Cyndi Brown testified that the incorporation was a requirement for certification under the Independent School Act (RSBC 1996, c. 216).

 

  1. The Community Education Authority (the “CEA”) is an unincorporated association, which predates the Society by many years.The Society, an incorporated entity, however, is also known colloquially as the Community Education Authority in the community.  It has five Directors, elected by the members of the First Nation, through the elections to the CEA.  The election to the Society’s Board takes place at the same time as the election of Chief and Council.  Members of Chief and Council are not eligible for election.  The elections are staggered so that three members of five are elected in one election and two of five in the next.  The Directors of the CEA and CISS are the same.  This ensures continuity of governance.  While the precise relationship between the CEA and CISS was not explored in the evidence and submissions, the parties threated them as one and the same.  I will do the same, using the name CISS or the Society.

 

  1. Under the Fort Nelson Education Governance Policy (the “Policy”), CISS exercises authority delegated by Band. The precise nature of the delegation, for example, whether includes governance functions under the Indian Act, RSC 1985, c I-5, was not explored in the evidence and submissions.  CISS oversees all educational programs of the Nation, including YSchool, post-secondary student funding, and adult education.  Specifically, under the Policy, it has final approval of YSchool operations, ensuring that programs and curriculum meet the required standards and educational requirements, hiring and retention of senior employees, establishing and managing school budgets (subject to quarterly reports to Chief and Council), cooperating with other agencies with respect to student services on reserve, establishing agreements with provincial and other agencies with respect to educational services for members of the nation.   Kathy Dickie, who served on the CISS Board for many years, confirmed that the Board exercises the oversight set out in the Policy.  CISS sets educational policy such matters as student appeals, enrollment, workplace safety, and respectful workplace.  CISS submits an annual report to Chief and Council with respect to student achievement, quality of education, and financial affairs.  Mr. Irwin explained that Chief and Council plays no role in education policy.  CISS is clearly a separate and distinct corporate entity from the Band.  The Society performs the operational functions related to YSchool, post-secondary student funding, and adult education.

 

  1. YSchool is located on reserve. It was built in 1982 because of the realization among members of the First Nation that their students were not doing well in the provincial public school system.   There was testimony that 80-90% of its students at the time were below grade level, and, not surprisingly, the First Nations members wanted a quality education for their students.  YSchool follows provincial curriculum.  The curriculum for K(4)-12 is similar to that of BC public schools.  X and Ms. Nora Duntia, who both were residential school survivors, testified about the impact of residential schools on the First Nation’s language and culture, and the loss of cultural identity.  Their testimony was compelling.  Accordingly, First Nations culture and language are important components of YSchool.  The school day starts with a Drum ceremony in the circle.  There are Indigenous art and artifacts in the common areas and classrooms.  Elders play an important role in the cultural, social and educational life of the School.  In addition, YSchool offers cultural courses, emphasizing hunting, trapping, outdoor survival, Indigenous culture trips, and courses in the Cree and Dene languages.  Ms. Brown testified that the “language is who we are” – “it keeps the culture alive.”  Language programs are required by all students up to grade 8, and may be an elective in grades 8, 9 and 10.  The Indigenous culture courses are taught by members of the community

 

  1. The Board oversees the Society’s governance and policy.It meets regularly twice a month.  The meetings are attended by the Educational Director, the YSchool Principal, and educational staff as required.  The Educational Coordinator also attend from time to time for example with respect to post-secondary files.  Members of Chief and Council attend Board meetings on a “ex-officio” basis as required, without voting rights.  Members of the Nation may also attend meetings.

 

  1. Reporting directly to the Board, the Educational Director, Mr. Ray Irwin, provides administrative oversight of CISS’ operations. Irwin was previously employed by the Board of Education of School District #81, Fort Nelson (“SD #81”) for some 20 years, including 12 years as Director of Instruction.   Mr. Irwin’s office is in the Band office.  The day-to-day operations of YSchool is in the hands of the School Principal and Vice-Principal.  Teachers report to the Principal and Vice-Principal.  Administrative staff, teachers and support staff are paid by CISS.

 

  1. CISS holds the Certification for YSchool, issued by the BC Ministry of Education, for K(4) – 12, under the Independent School Act, RSBC 1996, c. 216, valid for six years. YSchool is subject to regular and rigorous inspections by the BC Ministry of Education (Independent School Branch) to ensure that it meets the requirements under the Independent School Act.   The inspections include interviews with administrative staff, teachers and support staff.  Generally, the teaching staff are certified, and subject to regulation, under the Teachers Act, SBC 2011, c. 19.  The School is allowed to hire non-certified teachers, subject to annual letters of permission from the teacher Regulation Branch.  The teachers are certified or work under letters of permission under the BC Teachers Act, which can be subject to conditions, suspension and cancellation.  Non-certified teachers may include members of the nation teaching language and culture courses.  Non-certified teachers may also include teachers in subjects where it is difficult to recruit certified teachers.  YSchool is not different from other non-Indigenous independent schools.

 

  1. CISS hires teachers nationally or internationally through websites for teacher hiring. CISS ensures that they have the appropriate certification, preferably BC.Following a vetting process, they are hired and paid by CISS.  The Society follows the same process for Principals, Vice-Principals and administrative staff.   They sign contracts with CISS.  Support staff is hired from the First Nation or the wider community, including SD #81.  In practice, the Educational Director and the Principal take the lead in the hiring of senior staff, the Principal in the hiring of teachers.  One or two of the Board members may be involved.  While employees are hired by CISS without involvement from the Band, Chief and Council may be involved in dismissals.  A case in point is Ms. X’s dismissal on January 21, 2019, which was done by Chief and Council at the direction of the CISS.  Dickie testified the effective recommendation was made by the Principal.

 

  1. There is both formal and informal cooperation between CISS and SD #81.Formally, CEA is the named party to the Local Education Agreement with SD #81.  Under the Agreement, the parties established a Local Education Agreement Working Group, which meets a few times a year.   The working group includes senior members of SD #81 and CISS, including YSchool administration and the Education Coordinator.  CISS is represented on the Aboriginal Education Enhancement Committee (“AEESC”).   The Agreement addresses such matters as transfers from the public schools and Chalo, payment of tuition, effective communication and cooperation between the parties, student attendance, student behaviour and discipline, and other educational matters.  The cooperation includes such things as bussing, resource sharing and consultation.  Under the Agreement, among others, in Article 12.9. the First Nation is obligated to “Ensure that provincial curricula are utilized in YSchool and the intent of Ministerial Orders is followed with the goal of ensuring that Fort Nelson First Nations students achieve learning outcomes comparable with those required for graduation by the Ministry of Education.”  Irwin testified that Article 12.9 is important to ensure smooth transfers between YSchool and SD #81, which has more elective courses, and academic success for Indigenous students.

 

  1. Enrollment in YSchool varies from year to year but is approximately 130 students.YSchool is a small school and offer the benefits of smaller classes.  For that reason, it is attractive to parents outside the First Nation.  CISS offers enrollment to non-Indigenous students.  Currently, about 50% of the students are non-Indigenous.  However, as well, many Indigenous students attend SD #81 public schools.  While Yoffers the benefits of smaller classes, the public schools have more electives, making it attractive to students from the First Nation.  The Local Education Agreement facilitates transfers between SD #81 and CISS, and provides for cost-sharing of services.   SD #81is itself a relatively small district with some 670 students, two elementary schools, one middle school and one high school.

 

  1. CISS has three main sources of funding: the Federal Indigenous Services Canada (“ISC”), the BC Ministry of Education, and the First Nations Education Steering Committee (“ESC”).Fort Nelson First Nation Band Director of Finance Department, until January 2020, Ms. Angela O’Shaughnessy, testified that the ISC funds are received by the Band, which transfer them to CISS’ bank account.  Other sources, such as the Ministry of Education and ESC transfers directly to the Society.  CISS also applies for grants.  For example, Mr. Irwin testified that he completed the paperwork with Ms. X for a grant from the BC Ministry of Advanced Education and Skills Training.   Grants are usually transferred directly from the source to the Society.  The main source of funding is the federal government.

 

  1. In the past, the Society had an employee responsible for its bookkeeping.It is now administered by the Band’s Finance Department, responsible for payroll based on timesheets approved by Mr. Irwin, and accounts payable based on invoices submitted.  The cheques are drawn on CISS’ accounts.  The Finance Department is not involved in the approval of expenses, which are approved by Mr. Irwin and the Principal.  The Society pays a fee of $70,000 for the financial services.

 

  1. The Band’s Finance Department is also involved in CISS budget process, between November and March of each year.The Director of Finance provides a budget template to Mr. Irwin, which he completes in a process that also involves the Principal and the Education Coordinator.  The Education Coordinator’s position is separate line item in the budget.  The Department also checks for errors before Mr. Irwin brings the draft budget to the CISS Board. The Board makes adjustments and approve the draft.  The Chair of the CISS Board and Mr. Irwin presents the draft budget to Chief and Council.  In case of a difference between revenue and expenses, the Band, Chief and Council covers the shortfall.   The projected deficit for 2021-2022 is approximately half a million dollars.  At the end of the process, the budget is presented in community meetings to the wider community of the members of the First Nation.

 

  1. X testified that the position of Education Coordinator’s work is 90% focused on post-secondary students, from start to finish, reporting directly to the CISS Board.Ms. Cyndi Brown testified that it was about 75%.  Mr. Irwin testified that while he not able to put a percentage of the work is related to post-secondary students, he agreed that it was the “bulk” of the work.  The Education Coordinator also meet with the Education Director with respect to post-secondary students.  Mr. Irwin testified that CISS funds between 15 – 30 students.  Decisions about funding is made according to the Society’s policy or by the CISS Board.  Mr. Irwin testified that 90% of the funding is federal, though Indigenous Services Canada, the rest through grants, for example from the BC Lotto Corporation.  Ms. X used to have an office in the Band office; more recently she had offices in both the School and the Trade Centre.  Mr. Irwin also testified that she was involved in the Trades programs.

 

  1. Under the Local Education Agreement, the Education Coordinator attends local public schools to exchange information about student attendance and performance.The Education Coordinator’s job work includes the preparation of the “Nominal Roll,” the list of First Nations students in educational programs.   The Nominal Roll is very important because it provides the basis for the funding of the First Nation’s students.  X testified that the Nominal Roll was a very long process, during which she would visit individual SD #81 schools and meet with their principals.  She takes back the information provided, ensures the correctness of the information, and enters the data for submission to Indian and Northern Affairs Canada.  Ms. X testified that she and the Band Manager “signs off” before the information is submitted.  Mr. Irwin testified that the interaction between the Education Coordinator and SD #81 varies month to month – it is very busy around report card time.

 

 

Submissions

 

  1. The Society submits that its labour relations fall within provincial jurisdiction, given its normal or habitual activities of the business as those of “a going concern. The Society points to a number of facts, including:

 

  • The Society is a provincially incorporated entity.CISS’ purpose is “to support the educational pursuits of the Fort Nelson First Nation including the operation of YSchool and be responsible for the educational welfare of the community.”

 

  • CISS is a separate and distinct operation from Chief and Council.The Society’s five Directors are elected by the members of the First Nation through the election to the CEA.  Members of Chief and Council are not eligible for election.  Practically, the CEA and the Society are one and the same.

 

  • CISS operates according its Governance Policy, under which it exercises delegated authority from the Band, and oversees all educational activities of the First Nation, the operation of Clalo School, adult and trade education, and managing post-secondary funding.

 

  • YSchool provides K(4) – 12 education to its students, in accordance with provincial curriculum, and it is licensed as a Group 2 school under the BC Independent School Act. It is subject to oversight and inspection by the BC Ministry of Education to ensure that it follows provincial curriculum.  The certificate for YSchool is issued to CISS.

 

  • While YSchool is located on reserve, it provides education to both on and off reserve students, Indigenous as well as Non-Indigenous students.Currently, the ratio is about 50-50.

 

  • YSchool provides language instruction, Cree and Dene, and culturally relevant activities and programs. The Employer acknowledges the importance of the cultural component.

 

  • The teachers are certified or work under letters of permission under the BC Teachers Act, which can be subject to conditions, suspension and cancellation.

 

  • The CISS is party to the Local Education Agreement with School District #81 (Fort Nelson), which among others addresses student transfers and information sharing.CISS participates in the Local Education Agreement Working Group meetings along with YSchool administration and the Educational Coordinator.  Chief and Council do not attend these meetings.  The Local Education Agreement established the Aboriginal Education Enhancement Steering Committee.

 

  • CISS also manages post-secondary education funding for students who pursue studies beyond high school at universities, colleges or in the trades.The program was run by Ms. X.   There is nothing inherently “Indian” about the Education Coordinators work in post-secondary education.  The funding for post-secondary education is primarily federal.

 

  • CISS funding is primarily federal, which is paid to the Band and then transferred to CISS’ accounts.Financial administrative services are done by a clerk in the Band’s Finance Department.  CISS also receives provincial funding and grants from various organizations and business.  Budget shortfalls are covered by the Band.  Provincial funding and grants go directly to CISS.   The Society notes that the source of funding is not determinative.

 

  1. The Society relies on a number of authorities, pointing to similarities to the case at hand:NIL/TU,O Child & Family Services Society v. B.C.G.E.U., 2010 SCC 45;

Azoadam v. Ahousath Education Authority [2016] CLAD No. 159 (Can.Adj.); Marszazlek v. Little Red River Board of Education, 2019 CarswellNat 843, [2019] C.L.A.D. No. 32 (Can.Adj.); Webster and Little Red River Cree Nation, [2019] CLAD No. 79 (Can.Adj.); Southeast Collegiate, 2020 FC 820; Ross v. Amos Okemow Memorial Education Authority, [2019] CLAD 38 (Can.Adj.); Pittmann v Esk’etemc First Nation, 2016 CanLII 85239 (Can.Adj.); Brown and Canupawakpa Dakota First Nation, 2017 CarswellNat 6339 (Can.Adj.); Charlie and Sts’ailes Indian Band, 2019 CarswellNat 5847 (Can.Adj.); Sanspariel [2010] CLAD No. 104 (Can.Adj.); Raiche v. Pic Mobert First Nation, 2015 HRTO 1197; Marsden v. Alderville First Nation, 2015 HRTO 812,; Norway House Cree Nation Nurses and Norway House Cree Nation, Order No. 1497 (Man.LRB).  The Employer also refers to the Independent School Act and the Teachers Act.  In these cases, many of which deal with First Nations educational institutions, the Adjudicator found the entity in question subject to provincial jurisdiction.

 

  1. X does not take issue with the law as set out by the Society.She does not cite any case law.  However, she submits generally that under either the functional test or under the “impairment” test, federal jurisdiction governs CISS’ labour relations.  Ms. X submits that her job was 90% focused on post-secondary education, which was federally funded and exclusively available to members of the First Nation.  The other major component of her job was the Nominal Roll, where she collected data, which was submitted to the federal government and provided the basis for the per-student funding for YSchool.  She argues that her position and training was funded by the federal government.  Because of the federal funding, Ms. X submits that federal jurisdiction should prevail.

 

  1. X emphasized the importance of First Nations Languages and cultural programs to YSchool. Ms. Duntia, who was involved in the building of YSchool from “day one,” testified about the impact of residential schools on the First Nation’s language and culture, and the loss of cultural identity.  This was a significant factor in the establishment of the School.  In Ms. X’s view, the outdoor program with trapping, hunting, fishing and survival was federally regulated under section 91(24) of the Constitution Act.  In her view, while the basic curriculum follows the provincial curriculum, the YSchool is vastly different from the public schools because of the cultural component.

 

Analysis and Decision  

 

  1. The only issue before me is whether the Society falls within federal or provincial jurisdiction.

 

  1. The leading case is NIL/TU,O Child & Family Services Society v. B.C.G.E.U., 2010 SCC 45. In that cade, the Supreme Court of Canada reviewed the case law, including Northern Telecom Ltd. v. Communication Workers of Canada, [1980] 1 S.C.R. 115, Construction Montcalm Inc. v. Quebec (Minimum Wage Commission), [1979] 1 S.C.R. 754, and Four B Manufacturing Ltd. v. U.G.W., [1980] 1 S.C.R. 1031.  Abella J. writing for the majority restated the basic principles as follows, quoting from Northern Telecom (NIL/TU,O, at Para. 14-15):

 

(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.

 

(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.

 

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

 

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one. [p. 132]

….

 

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

 

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of “a going concern”, without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.

[Emphasis added in NIL/TU,O]

 

  1. In NIL/TU,O, Abella J. set out the two-step test as follows:

 

12      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.

…..

18      In other words, in determining whether an entity’s labour relations will be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, Four B requires that a court first apply the functional test, that is, examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.

 

  1. Four B also adopted the principles from Construction Montcalm and found the functional test to be determinative. The issue in that case was whether provincial labour legislation applied to a provincially incorporated manufacturing operation that was owned by four Aboriginal band members, employed mostly band members, and operated on reserve land pursuant to a federal permit. The functional test was conclusive, and that Four B was a provincial undertaking.

 

  1. In NIL/TU,O, the province delegated its authority over child welfare to the agency, a society incorporated under provincial law, in an arrangement approximately 65% funded by the federal government. The arrangement was a tri-partite agreement between the First Nations, the federal government and the provincial government.  The essential nature of the agency was to provide child and family services, a matter within the provincial sphere. Under this agreement, the provincial government, delegated some of its statutory powers and responsibilities over the delivery of child welfare services to the First Nations.  NIL/TU,O‘s employees exercised delegated authority and were accountable to the director under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46.  The federal funding and requirement to provide services in a culturally sensitive manner did not turn the matter into a federal one.  The Court noted: “The community for whom NIL/TU,O operates as a child welfare agency does not change what it does, namely, deliver child welfare services” (para. 45).   The Court concluded that the child welfare to the agency fell under provincial jurisdiction.

 

  1. In my view, the case law has been less than consistent.In NIL/TU,O, Abella J. noted that, up to 2010, a different line of authority had emerged based on the direct application of the “impairment test” (para. 19).  In a recent decision from the CIRB, Windsor v. Haisla Nation Council, 2021 CIRB 958, Vice-Chair Paul Love, noted that “the case law that emerged after NIL/TU,O, supra, appears to be inconsistent.  In the unjust dismissal cases decided by adjudicators regarding constitutional jurisdiction over First Nations undertakings, there appear to be two distinct lines of cases—one finding portions of First Nations operations to be subject to federal jurisdiction and the other finding them to be subject to provincial jurisdiction.”   Referring to a number of decision of the Federal Court and the Federal Court of Appeal, Vice-Chair Love stated:  that there is a “distinct line of authority … that relates to labour relations in the context of services provided directly by band councils and associated with the governance or the general administration of a First Nation, such as policing, education and health care” (see Quebec (Attorney General)  Picard, 2020 FCA 74; Conseil de la Nation Innu Matimekush-Lac John v. Association of Employees of Northern Quebec (CSQ), 2017 FCA 212; Canada (Attorney General) v. Munsee-Delaware Nation, 2015 FC 366; and Berens River First Nation v. Gibson-Peron, 2015 FC 614).

 

  1. I agree with Adjudicator Clarke’s comment in Gallagher and Native Women’s Assn. of Canada, [2017] C.L.A.D. No. 178: “While the principles initially appear straight forward, their application in various post NIL/TU,Ocases has been challenging in certain cases involving First Nations.”  This is amply demonstrated in the unjust dismissal case law.  In Berens River First Nation, a functional analysis test to facts supported a finding that a nursing station was part of or integrally connected to Band and, therefore, subject to federal jurisdiction.”  In Munsee-Delaware Nation, the Federal Court, noting that the employee in question was a finance clerk engaged in general administration of the band’s affairs (para. 40), found that federal jurisdiction applied.   In McIntyre and English River First Nation, [2017] C.L.A.D. No. 262 (Belloc-Pinder, Can.Adj.), for example, the First Nation provided a wide range of governmental services to its members, including education.  The school was owned, operated and integrally connected to the First Nation, and the Adjudicator determined that the employer was subject to federal jurisdiction. In Laford and Muskeg Lake Cree Nation[2018] CLAD No. 18 (Koskie, Can. Adj.), the Adjuidcator concluded that the school and daycare was operated by the band and directly connected to local governance functions, and subject to federal jurisdiction.  InTemagami First Nation v. Presseault, 2020 FC 933, the Adjudicator’s conclusion that the nexus of reporting and control exercised caused daycare to be functionally integrated with the First Nation.   In Conseil de la Nation Innu Matimekush-Lac John, the Federal Court of Appeal concluded that teachers employed by a band council in a school established under the Indian Act were subject to federal jurisdiction.

 

  1. However, other decisions have found in favour of provincial jurisdiction.In Charlie and Sts’ailes Indian Band, 2019 CarswellNat 5847 (Dorsey, Can.Adj.), an early child care centre located on reserve, subject to an extensive provincial regulatory scheme and inspections, and required a provincial licence, fell under provincial jurisdiction with respect to labour relations although the employee was employed directly by the band.  In Brown and Canupawakpa Dakota First Nation, [2017] CLAD No. 228 (Wood, Can.Adj.), the employer was also the First Nation directly.  There was no separate incorporated educational authority. The educational function was contained within First Nation, with Chief and Council had the having ultimate decision on educational issues while day-to-day management was in the hands of the principal.  Funding for educational matters was provided by federal government.   The Referee concluded that “on the evidence, the general nature of the nursery/kindergarten school is that of a separate operation as a going-concern. On a day-to-day basis, it functions in an education process, with its operation as a whole quite distinct from all the administrative functions of the First Nation.”  In Brown, the teachers were provincially accredited and followed provincial curriculum.  In Pittmann v Esk’etemc First Nation, 2016 CanLII 85239 (Dorsey, Can.Ref.), the entity, the school also followed provincial curriculum and its teachers were provincially certified.  It provided education to both Indigenous and non-Indigenous students and received funding from both the provincial and federal governments.  Its budget was separate from other First Nations programs.  The Referee concluded that the school fell under provincial jurisdiction.  In Azoadam v. Ahousath Education Authority [2016] CLAD No. 159 (Skratek, Can.Adj.), the employment relations for a First Nations education authority, operating two independent schools under the BC Independent School Act, and following provincial curriculum and standards set by BC’s Ministry of Education, was under provincial jurisdiction.  The schools offered education to both Indigenous and non-Indigenous students.  In Webster and Little Red River Cree Nation, [2019] CLAD No. 79 (Asbell, Can.Adj.), the employment relations for a Band’s Board of Education, operating four schools with some 100 teachers, certified by the Province of Alberta, and following provincial educational standards, was under provincial jurisdiction.  The education provided incorporated Indigenous language and culture.  On much similar facts, the Adjudicator in Marszazlek v. Little Red River Board of Education, [2019] C.L.A.D. No. 32 (Letourneau, Can.Adj.), also concluded that the Board of Education was under provincial jurisdiction.[1]  However, in Maszalek, the Adjudicator did not find the “functional test” conclusive and went on to consider whether provincial jurisdiction of the Board of Education’s labor relations would impair the “core” of a federal power, specifically “Indians, and Lands reserved for Indians” (Section 91(24) of the Constitution Act, 1867, R.S.C. 1985, App. II, No. 5).  He concluded that it did not.  Among others, the Adjudicator relied upon the decision of Mr. Justice Nation in Siksika Health Services v. Health Sciences Association of Alberta, 2018 ABQB 591, who concluded with respect to “Indianness”:

 

  1. …. The core federal power includes matters that touch on “Indianness.” It speaks to those things that go to the status and rights of Indians and that distinguish Indians from non-Indians, historically, culturally, and legally. The focus of the analysis rests squarely on whether the nature of the operation and its normal activities, as distinguished from the people who are involved in running it or the cultural identity of those who may be affected by it, relate to what makes Indians federal persons as defined by what they do and what they are: NIL/TU,Oat para 72.

 

28      In my view, the provincial regulation of labour relations will not impair the core of federal power over Indians, since the provision of health care services generally, and ambulance services specifically, is not something that distinguishes Indians from non-Indians, historically, culturally or legally. It is not a service that affects the status of any member of the Siksika Nation, the relationships between families or reserve communities, rights to land on reserve, or any other similar matter that has been found to go to the status and rights of Indians.

 

  1. I am required to apply the functional test.Failing to do so constitutes an error of law (Canada (Attorney General) v. Northern Inter-Tribal Health Authority Inc., 2020 FCA 63).  In my view, the inquiry under the functional test is highly fact specific.  The case law, such as it is, provide some guidance as to the factors to be considered.  In my view, the factual matrix in In Azoada, Webster and Marszazlek is very similar to the case at bar.

 

  1. I turn to the “nature, operations and habitual activities” of the entity?In the case at bar, the “business” or “entity” in question is CISS.   It is separate and distinct from the Band (and Chief and Council), reinforced by the fact that it is a corporate entity established under the BC societies legislation, with its own Board of Directors (Ross v. Amos Okemow Memorial Education Authority, [2019] CLAD 38 (Tavares, Can.Adj.).  The Directors of CISS are elected at separately at the same time as Band Council.  Chief and Council members are not eligible for election.    The Board oversees the Society’s governance and policy.

 

  1. The Society’s operations and activities are concerned with the provision of educational services.Under the Fort Nelson Education Governance Policy (the “Policy”), CISS exercises authority delegated by the Band, overseeing all educational programs of the Nation, including YSchool, post-secondary student funding, and adult education.  The day-to-day running of the Society’s operations is left to the Educational Director, the School Principal and Vice-Principal (see also, for example, Southeast Collegiate v. Laroque, 2020 FC 820).   The Society follows provincial curriculum.  The curriculum for K(4)-12 is similar to that of BC provincial public schools.  The YSchool’s certification is issued by the BC Ministry of Education under the Independent School Act, RSBC 1996, c. 216, and is subject to regular and rigorous inspections by the BC Ministry of Education to ensure that it meets the requirements under the Independent School Act.  The teachers are certified or work under letters of permission under the BC Teachers Act, which can be subject to conditions, suspension and cancellation.  In my view, this supports provincial jurisdiction with respect to labour relations.

 

  1. While YSchool is located on reserve and has approximately 130 students; it offers enrollment to non-Indigenous students.Currently about 50% of the students are non-Indigenous.  This fact similarly supports provincial jurisdiction.

 

  1. It is common ground that First Nations culture and language are important components of YSchool’s operation.The school day starts with a Drum ceremony in the circle.  There are Indigenous art and artifacts in the common areas and classrooms.  Elders play an important role in the cultural, social and educational life of the School.  YSchool offers cultural courses, emphasizing hunting, trapping, outdoor survival, Indigenous culture trips, and courses in the Cree and Dene language.  Nevertheless, the educational services offered by CISS is subject to provincial regulation, voluntarily adopted by the Society.

 

  1. The employees, administrative staff, teachers and support staff, including Ms. X, are hired, supervised and paid by CISS.They are not directly employed by the Band.  The Society ensures that teachers and others have the appropriate certification.  In fact, even the Society’s Board has limited involvement in hiring.  While employees are hired without involvement from the Band, Chief and Council are involved in dismissals.  X’s dismissal on January 21, 2019, was decided by the Band at the direction of the CISS, but on the recommendation of the Principal.  In my view, this does not detract from manner in which the Society is operated on a day-to-day basis, as a separate and distinct entity, by the Society and its senior staff.

 

  1. CISS funding is primarily federal, which is paid to the Band and then transferred to CISS’ accounts (other funding may go directly to CISS). The Society also receives provincial funding and grants from various organizations and business.  The Band’s (in fact, the Finance Department) involvement in the Society’s bookkeeping and budget process is limited and of a technical nature.  The Society pays a fee of $70,000 for the financial services.  The adjustments to the draft budget and approval is done by Board.  The Chair of the CISS Board and Mr. Irwin presents the draft budget to Chief and Council.  In case of a difference between revenue and expenses, Chief and Council covers the shortfall.   The projected deficit for 2021-2022 is approximately half a million dollars.  At the end of the process, the budget is presented in community meetings to the wider community of the members of the First Nation.  The fact that budget shortfalls are covered by the Band does not, in my view, per se, detract from the normal or habitual activities of the business, the provision of educational services to the First Nation’s students, subject to provincial regulation, by a separate and distinct entity (from the Band).

 

  1. X’s argument that the Society’s federal funding and First Nation’s language and cultural component supports federal jurisdiction for the Society’s labour relations is without merit.As consistently noted in the authorities, from NIL/TU,O to the present, federal funding and requirement to provide services in a culturally sensitive manner did not turn the matter into a federal one.  In Canada (Attorney General) v. Northern Inter-Tribal Health Authority Inc., 2020 CAF 63, the Federal Court of Appeal noted that, in NIL/TU,O, the “Supreme Court accepted that the record established “the cultural identity of NIL/TU,O’s clients and employees” and “its mandate to provide culturally-appropriate services to Aboriginal clients” but “[n]either…displaces the operating presumption that labour relations are provincially regulated”: NIL/TU,O at para. 39.”

 

  1. While I accept that the bulk of Ms. X’s work was related to post-secondary, which is clearly within the Society’s mandate, her position is integral to the Society’s operations.The Education Coordinator’s position is separate line item in the budget.  Her involvement in the compilation of the Nominal Roll, which provided the basis for the per-student funding for YSchool.  The Education Coordinator is involved in the Society’s budget process.  In any event, even if her position somehow could be considered a separate and distinct entity within CISS, there is, as argued by the Employer, there is nothing inherently “Indian” about the Education Coordinator’s work in post-secondary education (see, for example, Siksika Health Services).    There is, with respect, as well, nothing to support Ms. Matkin’s submission that the teaching of hunting, fishing, outdoors survival skills in an Indigenous context, such as the case bar, falls within Section 91(24) of the Constitution Act, 1867.

 

  1. In summary, the normal or habitual activities of the Society, as a going concern without regard for exceptional or casual factors, places its labour relations, and Ms. X’s employment, within provincial jurisdiction. Accordingly, I would dismiss the Complaint for lack of jurisdiction and uphold the Society’s preliminary objection.   Given my conclusions, and the lack of detailed submissions in that regard, I do not propose to proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.  The complaint is dismissed.

 

 

 

 

    Decision

 

I make the following orders:

 

  1. The Complaint is hereby dismissed.

 

Vancouver, January 17, 2022

 

 

________________________

Ib S. Petersen

Adjudicator

 

 

[1] The decision was rendered before Webster.