Mitchikanibikok Inik v. Thusky
T-1761-98 / T-1762-98
Tremblay-Lamer J.
8/9/99
16 pp.
Labour relations-Application for judicial review of Canada Labour Code referee's decision ordering chief of Band of Algonquins of Barriere Lake (Mitchikanibikok Inik), as employer, to pay to Receiver General sums representing termination pay and severance pay allegedly owed to individuals named as respondents who had been hired by Interim Band Council-Split in community as to choice of chief and council resulting in coexistence of (existing) customary council and (new) Interim Band Council-Interim Band Council recognized in January 1996 as only legitimate council by Regional Director of DIAND until end of term: 30/6/96-New band council elected in April 1997 and recognized by DIAND-Referee determined did not have jurisdiction to consider validity of Minister's decision to recognize IBC as representative of Band and found individuals concerned employees of Band at all relevant times, having been hired by legally constituted council-Further, found Department had appointed Third Party Administrator in best interest of community members-Also decided Customary Band Council, as successor to IBC, must honour payment orders issued by Labour Canada-Issues whether referee erred in law in finding lacked jurisdiction to question legality of Minister's decision to recognize IBC; whether patently unreasonable for referee to decide individuals concerned at all relevant times employees of Algonquins of Barriere Lake-Application allowed-Applicants argued that by relying on decision wrong in law, referee's decision also wrong in law and, as result, Court should have jurisdiction to review such error-However, judicial review cannot be used to permit applicants to reach through decision under review and attack legality of earlier decision-Applicants cannot do indirectly what they cannot do directly-Therefore, Court without jurisdiction to question validity of Minister's decision when reviewing referee's decision-Not patently unreasonable for referee, in light of evidence, to decide applicants employers of complainants-However, even if 1996-1997 funding agreement entered into between IBC and DIAND could be construed as giving DIAND authority to appoint agent on behalf of first nation, agreement expired on 31/3/97-Any authority administrator could have derived from agreement to act as agent of first nation ended once agreement itself expired-Therefore, 1996-1997 funding agreement cannot give administrator authority to bind Algonquins of Barriere Lake for employment dismissals which occurred in 1997-1998 following expiration of agreement-In addition, as Algonquins of Barrier Lake had not given consent to third party funding agreement entered into by administrator and DIAND, and as agency legal relationship requiring consent, administrator could not be said to be acting as agent of first nation-Nor possible to conclude, on facts of case, agency relationship implied or created through operation of law-As administrator no longer agent of Algonquins after 31/3/97, administrator had no authority to act on behalf of Algonquins at Barriere Lake-Patently unreasonable for referee to determine legal continuum between successive band councils when facts did not support such conclusion.