[2016] 2 F.C.R. D-1
Aboriginal Peoples
Judicial review of decision by adjudicator awarding damages to respondent as result of claim for unjust dismissal pursuant to Canada Labour Code, R.S.C., 1985, c. L-2 (Code) against applicant — Applicant alleging adjudicator not having jurisdiction to hear complaint — Respondent employed by applicant as clinic nurse at nursing station on First Nation — Informed by clinic’s Health Director, now Band Chief, that contract of employment not renewed — Respondent filing complaint with Human Resources and Skills Development Canada Labour Program under Code alleging unjust dismissal — Adjudicator finding, inter alia, nursing station key element in Band carrying out its local government activities; subject to federal regulation for purposes of labour, employment relations — Whether adjudicator having jurisdiction to hear, decide complaint — Adjudicator’s decision that respondent’s complaint falling under federal jurisdiction, having jurisdiction to assess complaint on its merits correct — Adjudicator not erring in finding that Supreme Court decision in NIL⁄TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696 (NIL⁄TU,O) did not reshape world of employment law when it comes to employees of First Nations — Not erring in understanding of analysis to be applied — Functional test stated in NIL⁄TU,O cannot be applied to nursing station as “entity” entirely in isolation of Indian Act, R.S.C., 1985, c. I-5 and questions of federal undertakings — Derivative jurisdictional analysis correctly recognized, applied by adjudicator — Decisions in R. v. Paul Indian Band and Attorney General of Alberta and Attorney General of Canada (1983), 50 A.R. 190; [1984] 2 W.W.R. 540, Francis v. Canada Labour Relations Board, [1981] 1 F.C. 225 (Francis), Whitebear Band Council v. Carpenters Provincial Council Saskatchewan (1982), 135 D.L.R. (3d) 128, [1982] 3 W.W.R. 554 still good law, not displaced by NIL⁄TU,O — Applicant acting as administrative arm of federal government in effecting administrative role of Band governance — Subject to federal jurisdiction in labour relations when dealing with those units or departments of Band that function to give effect to governmental nature of Band as described in Francis — Application of functional analysis test pointing to finding that nursing station part of or integrally connected to Band, therefore subject to federal jurisdiction — Applicant executing mandate of providing healthcare services to residents through nursing station, therefore exercising power delegated to it by Parliament pursuant to Indian Act — Application dismissed.
Berens River First Nation v. Gibson-Peron (T-1933-14, 2015 FC 614, Strickland J., judgment dated May 8, 2015, 52 pp.)