Date Issued: October 30, 2008
File: 5752
Indexed as: Lanza v. VanASEP, 2008 BCHRT 398
REASONS FOR PRELIMINARY DECISION
JURISDICTION
Tribunal Member:
Barbara Humphreys
On his own behalf:
Joseph Lanza
Counsel for the Respondent:
Ib Petersen
1. Introduction
[1] Joseph Lanza filed a complaint in which he alleged that the VanASEP (Aboriginal Skills Employment Partnership) Training Society (the “Society”) discriminated against him regarding employment because of a physical disability, contrary to s. 13 of the Human Rights Code. In order to determine its jurisdiction to proceed with the complaint, the Tribunal sought submissions from the parties.
[2] Mr. Lanza’s position is that his complaint falls under federal jurisdiction. He explains that, when he filed a complaint with the Canadian Human Rights Commission, he was advised to also file a complaint with the Tribunal. The Society maintains that the Tribunal has jurisdiction over the complaint.
2. Decision
[3] For the following reasons, I have decided that the complaint is within the Tribunal’s jurisdiction.
3. Background
[4] The Aboriginal Skills and Employment Partnership (“ASEP”) is an initiative of the federal government aimed at developing the skills and promoting the work experience needed by the Aboriginal workforce to participate in industrial sectors, such as forestry, mining, oil and gas, construction, and hydro development. ASEP is based on strong partnerships between Aboriginal groups, the private sector, federal, provincial and territorial governments, labour, and educational institutions.
[5] In a July 13, 2007 news release, Human Resources and Social Development Canada (“HRDC”) stated that eligible partners had until September 7, 2007 to submit project proposals for funding through ASEP. The Release also stated that the partnership between the construction industry and the Aboriginal community through the Vancouver ASEP program had been a success for everyone involved.
[6] The Society is a non-profit organization established under the BC Society Act. Its purposes are:
• to provide education, training, and employment opportunities to Aboriginal people to develop education and training necessary to the development of skills required in the construction industry; and
• to provide financial assistance to Aboriginal people to develop education and training necessary to the development of skills required in the construction industry.
4. Reasons
[7] I must decide if the Tribunal has jurisdiction to proceed with this complaint. The Tribunal set out the principles to be applied in making this determination in Azak v. Nisga’a Nation and others; Robinson and Lincoln v. Nisga’a Nation and others, 2003 BCHRT 79 as follows:
The starting point to answering this question is to be found in ss. 91 and 92 of the Constitution Act, 1867. Section 92(13) grants the provinces jurisdiction over “Property and Civil Rights in the Province.” Section 92(13) has been interpreted as granting the provinces jurisdiction over labour relations and human rights: Hogg, Constitutional Law of Canada, 4th ed. (Scarborough: Thomson, 1997) at 52.1. This principle is not, however, absolute. The federal government has jurisdiction over labour relations and human rights in respect of federal undertakings. As stated by the Supreme Court of Canada in Four B Manufacturing Ltd. v. United Garment Workers of America, 1979 CanLII 11 (SCC), [1980] 1 S.C.R. 1031:
In my view the established principles relevant to this issue can be summarized very briefly. With respect to labour relations, exclusive provincial legislative competence is the rule, exclusive federal competence is the exception. The exception comprises, in the main, labour relations in undertakings, services and businesses which, having regard to the functional test of the nature of their operations and their normal activities, can be characterized as federal undertakings, services or businesses. (at 1045)
In this case, as in the Four B case, the Respondents argue that the matter is under federal jurisdiction as a result of the fact that it relates to aboriginal people. This argument is based on s. 91(24) of the Constitution Act, 1867, which grants the federal government exclusive jurisdiction over “Indians, and lands reserved for the Indians”.
In the Four B case the Supreme Court of Canada determined that the company in question was under provincial jurisdiction, despite the fact it was owned by First Nations shareholders, employed a majority of First Nations employees, carried on business on an Indian reserve, and was the recipient of federal loans and subsidies. The Court held that despite these factors, there was nothing about Four B’s business, which was the sewing of uppers onto running shoes, which rendered it a “federal business”. This was a normal industrial activity, and therefore subject to provincial regulation of its labour relations. (paras. 23-25)
[8] Although the Society provides services to Aboriginal people, this fact, in and of itself, does not make it a federal undertaking. What must be decided is whether “the operations of the Society touch upon the ‘core of Indianness’ – a core made up of matters integral to aboriginal or treaty rights, aboriginal culture, or Indian status”: NIL/TU,O Child and Family Services Society v. BCGEU, 2008 BCCA 333 (CanLII), para. 57. The Court also stated that “primary provincial jurisdiction over labour relations is not ousted simply because enterprises engage the interests of aboriginal groups, or provide services in a manner that is culturally sensitive”: para. 62.
[9] The Society was incorporated to provide education, training and job opportunities to Aboriginal people. In my view, these activities do not touch upon the “core of Indianness”.
5. Conclusion
[10] For the above reasons, I accept the complaint for filing pursuant to Rule 11 of the Tribunal’s Rules of Practice and Procedure. However, since this decision relates to the screening of the complaint, it is not a final decision with respect to the Tribunal’s jurisdiction over the complaint: Rule 11(7).
Barbara Humphreys, Tribunal Member