Metis Nation of Ontario v. Przybyszewski

Metis Nation of Ontario v. Przybyszewski
Court (s) Database
Federal Court Decisions
Date
2004-07-09
Neutral citation
2004 FC 977
File numbers
T-1922-02
Notes
Digest
Decision Content
Date: 20040709
Docket: T-1922-02
Citation: 2004 FC 977
Montréal, Quebec, this 9th day July, 2004
Present: The Honourable Justice James Russell
BETWEEN:
METIS NATION OF ONTARIO
Applicant
and
DANA PRZYBYSZEWSKI
Respondent
REASONS FOR ORDER AND ORDER
[1] This application is for judicial review of a decision under Division XIV, Part III of the Canada Labour Code R.S.C. 1985, c. L-2 ("Canada Labour Code") on October 15, 2002 ("Decision") by an adjudicator ("Adjudicator") in reference to the employment relationship between Mr. Przybyszewski ("Respondent") and the Métis Nation of Ontario ("Applicant").
BACKGROUND
[2] Mr. Przybyszewski is the complainant in the adjudication and the Respondent on this judicial review application. The Applicant is the Métis Nation of Ontario, an Ontario corporation formed to promote the interests and rights of the Métis people who live in Ontario.
[3] On June 26, 2001, the Respondent filed a complaint for unjust dismissal against the Applicant under Division XIV-Part III of the Canada Labour Code.
[4] Prior to the initial hearing, the Applicant filed submissions challenging the jurisdiction of the Adjudicator to hear the matter on the basis that the labour relations of the Applicant fall under provincial jurisdiction and not under the Canada Labour Code.
[5] At the hearing, the Adjudicator granted the Respondent an adjournment so that he could retain legal counsel. The Adjudicator subsequently recommended that the jurisdiction matter be dealt with by written submissions.
[6] On August 23, 2002 the Respondent submitted written submissions on the jurisdiction issue.
[7] The following facts (which were not disputed by the Respondent) were submitted by the Applicant:
a. The Métis Nation of Ontario is incorporated under the laws of Ontario as a not- for-profit, non-share corporation;
b. The Métis Nation of Ontario is engaged in the business of promoting the cultural, social political, and economic well being of Métis who live in Ontario;
c. The Métis Nation of Ontario receives some federal and provincial funds for, among other things, employment and training, child and family services, economic development, and housing;
d. The Métis Nation of Ontario entered into an agreement with the Province of Ontario on December 14, 1999 for the administration of the Aboriginal Healing and Wellness Strategy;
e. The Complainant was offered a position by the Métis Nation of Ontario on February 10, 2000 as a Site Project Assistant for the Aboriginal Healing and Wellness Strategy;
f. The Complainant worked out of the Georgian Bay Métis Council Office as the Site Project Assistant for the Aboriginal Healing and Wellness Strategy until June 14, 2001 whereupon he was dismissed for cause;
g. ­The Complainant filed a complaint against the Métis Nation of Ontario under Division XIV-Part III of the Canada Labour Code for unjust dismissal on June 26, 2001.
Written Submissions of Metis Nation of Ontario, February 12, 2002 (Tab 7 at 33 of Applicant's Record).
[8] The Aboriginal Healing and Wellness Strategy ("Strategy") referred to in the statement of facts was developed by the Government of Ontario in consultation with aboriginal organizations to address the high instances of family violence and poor health levels in aboriginal communities. The Strategy is funded by the Government of Ontario. Implementation of the Strategy is overseen by a Joint Management Committee. There is a funding agreement between the Minister of Community and Social Services and the Applicant, dated December 14, 1999.
DECISION UNDER REVIEW
[9] The Adjudicator concluded as follows on the jurisdiction issue:
... power to regulate labour relations between the [Applicant] and the complainant forms an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.... [this conclusion was] founded on the agreement of the parties that for the purposes of that provision [s. 91(24)], Métis are "Indians".
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 32 of Applicant's Record).
[10] On this basis, the Adjudicator found that the employment relationship between the Respondent and the Applicant come under the Canada Labour Code and that he had jurisdiction to hear and determine the Respondent's complaint.
[11] In a letter dated January 15, 2002, the Adjudicator advised the solicitor for the Applicant that he would provide notice of the proceeding on the matter of jurisdiction to the Attorney General of Canada and the Attorney General of Ontario. The Adjudicator provided a copy of this notice, also dated January 15, 2002, to the Respondent's solicitor.
[12] On February 12, 2002, the Applicant made submissions to the Adjudicator on the question of the Adjudicator's jurisdiction to consider a complaint against the Applicant under Division XIV - Part III of the Canada Labour Code. The issue of the parties to whom notice of the jurisdictional question should be provided was not raised in the Applicant's submissions to the Adjudicator.
ISSUES
[13] The Applicant raises the following issues:
Did the Adjudicator act without jurisdiction because there was no proper notice of the constitutional question pursuant to s. 57(1) of the Federal Court Act?
Did the Adjudicator err in law in concluding that he had jurisdiction based on the alleged agreement of the parties that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867?
Did the Adjudicator make an erroneous finding of fact without regard for the material before him when he concluded that the Strategy was closely linked to "Métisness"?
ARGUMENTS
Applicant
a) Did the Adjudicator act without jurisdiction because there was no proper notice of the constitutional question pursuant to s. 57(1) of the Federal Court Act?
[14] The Applicant submits that the Adjudicator did not have the jurisdiction to decide the matter before him because proper notice of the constitutional question was not given to the Attorney General of Canada and the Attorneys General of each province as required by s. 57(1) of the Federal Court Act, R.S. 1985, c. F-7.
[15] The Applicant submits that an Adjudicator acting under the Canada Labour Code falls within the definition of a "federal board, commission or other tribunal" in s. 2(1) of the Federal Court Act. The source of an adjudicator's jurisdiction or powers is the determining factor in reaching this conclusion. The Adjudicator, in the case at bar, was appointed under s. 242(1) of the Canada Labour Code and derives his authority from s. 242(2) of that statute (Canadian Restaurant & Food Services Assn. v. Canadian Dairy Commission, [2001] FCT 34 (Fed. T.D.); Quebec (A.G.) v. Cree Regional Authority, [1991] 3 C.N.L.R. 82 (Fed. C.A.))
[16] The Applicant submits that the Adjudicator is a "federal board, commission or other tribunal" within the meaning of s. 2(1) of the Federal Court Act and the notice provisions of s. 57(1) of the Federal Court Act apply to the adjudication (Southam Inc. v. Canada (Attorney General), 73 D.L.R. (4th) 289).
[17] On January 18, 2002, the Adjudicator notified the Respondent's solicitor by letter that he would provide notice of the constitutional question.
[18] The Adjudicator did, in fact, provide the Attorneys General of Canada and Ontario with notice of the constitutional question by letter, dated January 14, 2002. In that letter, notice of constitutional question was given pursuant to s. 109(1) of the Courts of Justice Act, R.S.O 1990, c. C. 43.
[19] The Applicant says that section 57(1) of the Federal Court Act requires notice to be given to the Attorney General of Canada and the Attorneys General of each province. Notice under s. 57(1) is mandatory except in limited circumstances. In Gitxsan Treaty Society v. Hospital Employees' Union, [2000] 1 F.C. 135 (Fed. C.A.), Rothstein J.A. at para. 10, concluded that the absence of prejudice was not relevant:
As to the question of the attorneys general not demonstrating prejudice, whether subsection 57(1) is mandatory has not been conclusively decided by the Supreme Court of Canada. However, except in limited circumstances which are not applicable here, I think the weight of judicial authority is in favour of the provision being mandatory ... the requirement to give notice in accordance with subsection 57(1) is mandatory (except in limited circumstances, i.e. where the attorneys general consent or where there has been de facto notice) and the presence or absence of prejudice is irrelevant.
[20] The Applicant submits that proper notice of the constitutional question was not given in this case to all of the provincial Attorneys General (Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376 (T.D.), at para. 35).
[21] Because proper notice of the constitutional question was not given pursuant to s. 57(l) of the Federal Court Act, the Applicant submits that the Adjudicator had no jurisdiction to decide the constitutional question and his Decision is invalid Ruth Giagnocavo v. Her Majesty the Queen (1995), 95 D.T.C. 5618 (Fed. C.A.); McIntosh v. Canada (Secretary of State), [1994] F.C.J. No. 67 (Fed. C.A.)).
Did the Adjudicator err in law in concluding he had jurisdiction based on an alleged agreement between the parties that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867?
[22] The Adjudicator concluded that "power to regulate labour relations between the Métis Nation of Ontario and the Complainant forms an integral part of the primary federal jurisdiction over 'Indians' recognized in s. 91(24) of the Constitution Act, 1867."
[23] The Adjudicator reached this conclusion on the purported agreement of the parties that "Métis" are "Indians" for the purposes of s. 91(24). Specifically, he stated as follows:
It is significant to note that in its submissions the MNO stated "The MNO takes the position that Metis are "Indians" for the purpose of federal jurisdiction under s. 91(24)", of the Constitution Act. 1867. That provision places "Indians and Lands reserved for Indians" under federal jurisdiction. Counsel for the complainant in turn stated that he agrees with and relies on that concession by the respondent. In light of the party's agreement, and without making a finding in that regard, I have proceeded on the basis of that agreement that Métis are "Indians" for purposes of s. 91(24).
Decision of the Adjudicator, October 14, 2002 (Tab 6 at 22 of Applicant's Record).
[24] The Applicant submits that the Adjudicator made three errors in basing his Decision on a purported agreement between the parties that Métis are Indians for the purposes of s. 91(24) of the Constitution Act, 1867. First, there was no agreement by the parties. Second, even if there was an agreement, it cannot found jurisdiction in the Adjudicator. Third, there was no factual record to support the legal conclusion that Métis are Indians for the purposes of s. 91(24).
There Was No Agreement Between the Parties
[25] The Applicant says it did not intend to concede, as a legal conclusion, that Métis are Indians for the purposes of s. 91(24). The Applicant's original submissions to the Adjudicator stated as follows:
19. The Métis Nation of Ontario takes the position that Métis are "Indians" for the purpose of federal jurisdiction under s. 91(24). However, this does not mean that labour relations performed by or under the supervision of the Métis Nation of Ontario are within federal jurisdiction. Métis are not subject to the Indian Act. There is no analogous federal law with respect to Métis communities. The Métis Nation of Ontario's business is not administered by "Indians" or for "Indians". The Métis Nation of Ontario is not situated on reserve and does not provide programs and services to Indians either on or off reserve. The Métis Nation of Ontario is not a "band council" within the meaning of the Indian Act, and is not established pursuant to federal authority and does not exercise delegated federal authority.
Written Submissions of Métis Nation of Ontario, February 12, 2002 (Tab 7 at 37 of Applicant's Record).
[26] In his submissions to the Adjudicator, the Respondent, at para. 4, stated as
follows:
4. The Complainant concedes the facts set out in paragraphs 1, 2, 3, 4, 5, 6, and 7 of its submissions dated February 12, 2002. The Complainant agrees with and relies on the Respondent's concession in paragraph 19 of the Respondents Submissions dated February 12, 2002 that "The Métis Nation of Ontario takes the position that Métis are "Indians" for the purposes of federal jurisdiction under s. 91(24) [of the Constitution Act, 1867]
Complainant's Submissions, August 23, 2002 (Tab 8 at 71 of Applicant's Record).
[27] The Applicant's reply submissions to the Adjudicator, at paras. 12 and 13, stated as follows:
12. The Métis Nation of Ontario takes the position that Métis, both as a people and as Individuals, are within s. 91(24) and are thus within federal jurisdiction. We also note that there is no judicial finding to this effect because the question as to whether Métis are "Indians" for the purposes of 91(24) has not to date been litigated. The federal government itself consistently denies that it has jurisdiction for Métis. Following on this it should be noted that while the federal government has an entire department for "Indians" that includes several programs and millions of dollars of funding, they provide next to nothing for Métis. Specifically, there are no federal health programs for Métis.
13. The Respondent has not asked that this adjudication make a finding that Métis are "Indians" for the purposes of s. 91(24). We note that the complainant relies on the Respondent's position that Métis are "Indians" for the purposes of s. 91(24), but advances no argument himself on the issue. In fact it is clear that neither the Respondent nor the complainant have provided argument on this matter. The Respondent wishes to emphasize that we are specifically asking that no finding be made on whether Métis are "Indians" for the purposes of s. 91(24).
Applicant's Reply Submissions, September 5, 2002 (Tab 9 at 77 of Applicant's Record).
[28] The Applicant submits that the Adjudicator's conclusion that the parties agreed that Métis are Indians within the meaning of s. 91(24) relies upon one sentence without placing it in the context of the full submissions.
[29] The Applicant says that it is clear on a reading of all the submissions that the Applicant was not conceding a legal issue. On the contrary, the Applicant in reply denies that the Respondent can rely on that statement and says that the onus is on the Respondent to prove that Métis are within s. 91(24) and to provide evidence to support such a legal conclusion:
It is settled law that Indians are within s. 91(24), and it is also settled law that all of their labour relations do not automatically trigger federal jurisdiction. There are two steps required to trigger federal jurisdiction in this matter. First, the onus is in on the complainant to show that Métis are "Indians" for the purposes of s. 91(24). Second, the onus is on the complainant to show that the activity in question triggers federal jurisdiction with respect to the specific labour relations at issue. It is submitted that the complainant has not proven either of these steps.
Applicant's Reply Submissions, September 5, 2002, para. 14 (Tab 9 at 77 of Applicant's Record).
[30] On this basis, the Applicant says there was no "agreement" between the parties.
An Agreement Between the Parties Cannot Found Jurisdiction
[31] Even if there was an agreement between the parties that Métis are Indians for the purpose of s. 91(24), the Applicant says that jurisdiction and constitutional questions cannot be determined on the basis of consent or agreement between the parties and relies upon the following words of Muldoon J.:
Chief Justice Sir Charles Fitzpatrick and Mr. Justice Idington dissented from the ratio of the majority holding, in effect, that where there is ab initio no jurisdiction vested in a tribunal to adjudicate a particular matter, all the consenting in the world cannot vest the tribunal with that jurisdiction, which was never conferred by appropriate legislation. Indeed, the correctness of that posture is self-evident, for otherwise a tribunal created for a certain purpose (i.e. to entertain appeals from the county judge) could, if word got out, be recast into a different tribunal with a different caseload from that which the legislature created and foresaw. Consent cannot override the will of the legislature, provincial or federal.
This is the first-instance curial review of the Adjudicator's decision in this case and this Court will not conclude the question of jurisdiction according to the parties' previous consent, nor on the basis of the applicant's estoppel from raising the question here ... If the adjudicator had no jurisdiction as the applicant now asserts, then he never had jurisdiction and that consent would be immaterial, except perhaps as to costs.
Norway House Indian Band v. Canada (Adjudicator, Labour Code), [ 1994] 3 F.C. 376, at para. 6 & 8.
[32] On this basis, the Applicant says the Adjudicator could not make a finding that Métis are "Indians" for the purposes of s. 91(24) on the basis of the purported consent or agreement of the parties.
No Factual Record
[33] The Applicant also submits that the Adjudicator erred in proceeding to make his Decision on the basis that Métis are "Indians" for the purposes of s. 91(24) of the Constitution Act, 1867 when there was no factual record before him to support such a conclusion.
[34] Jurisdiction, as a matter of law, cannot be determined without the necessary "constitutional facts." A complete set of factual findings is required. The Applicant relies upon Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115 (QL at p. 17-18).
[35] In the present case, no evidence going to the issue of whether Métis are Indians for the purposes of s. 91(24) was adduced by either party at the adjudication.
[36] The Applicant points out that in the Ontario Labour Relations Board's decision in Ontario Public Service Employees Union and Ontario Métis and Non-Status Indian Association et al, the employer challenged the OLRB's jurisdiction to grant an application for the certification of a union on the basis that the employees were "Indians" for the purposes of s. 91(24). The OLRB held that there was no factual evidence before the Board on this issue, and assertions were insufficient to establish a constitutional fact. Specifically, the Board held as follows:
In view of the definition of Indian in the Indian Act and the long-standing historical distinction between Indians and Métis or persons of mixed blood, and in the absence of any historical evidence to demonstrate that the Imperial Parliament of 1867 regarded Métis or half-breeds as Indians, the board cannot conclude that the Complainant's members or beneficiaries are Indians within the meaning of section 91(24) of the B.N.A. Act. To accept the Complainant's contention in the absence of historical evidence, would be to find that a mere assertion of Indian status is enough to establish it as a fact - and this result seems inconsistent even with the Indian Act itself which contains an elaborate mechanism for the determination of status, registration and appeal. However, even if the Complainant's members and beneficiaries are Indians, we have concluded that the Complainant's employer-employee relationships are subject to provincial regulation.
Ontario Public Service Employees Union and Ontario Métis and Non-Status Indian Association et al, [1980] 3 Can. L.R.B.R. 328 (O.L.R.B.) at p. 90.
Did the Adjudicator make an erroneous finding of fact without regard for the material before him when he concluded that the Strategy was closely linked to "Métisness"?
[37] The Applicant further submits that the Adjudicator made an erroneous finding of fact in concluding that the Strategy was closely linked to "Métisness". The Adjudicator reasoned that in order to establish that the Applicant's labour relations regarding the Strategy fell under federal jurisdiction "it must be established that the power to regulate labour relations of the undertaking, in this case, the 'Aboriginal Healing and Wellness Strategy,' forms an integral part of the primary federal jurisdiction over 'Indians'." The Adjudicator cited Four B. Manufacturing Ltd. v. United Garment Workers of America et al (1979), 4 C.N.L.R. 21, and set out the following test:
In summary, the test to be applied in the present case is whether the activity in question, "the Aboriginal Healing and Wellness Strategy", is an activity, the purposes of which are related to "Indianess" (in this case "Métisness") or that puts the Métis status or rights closely connected with Métis status, into issue.
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 22-24 of Applicant's Record).
[38] In applying this test, the Adjudicator concluded that there were specific facts that suggested the Strategy went to "Métisness":
The particular operation was administered by the MNO whose sole focus was the promotion-of the well-being of the Métis people. The program was only open to MNO citizens, who by definition had to be Métis. Even an employee such as the complainant was required to promote the interests of the Métis in carrying out the program. All of the foregoing indicates that the program was peculiarly sensitive to the "Métisness" of its clients.
Decision of the Adjudicator, October 15, 2002 (Tab 6 at 31 of Applicant's Record).
[39] The Applicant argues that in order to justify judicial intervention based on an erroneous finding of fact, a three part test must be met: 1) the finding of fact must be truly erroneous; 2) the finding must be made capriciously or without regard to the evidence; and 3) the decision must be based on the erroneous finding (Rohm and Haas Canada Ltd. v. Canada (Anti-Dumping Tribunal), [ 1978] F.C.J. No. 522) (C.A.)).
1) Rohm and Hass Test - Part 1: Erroneous Finding of Fact
[40] The Applicant points out the Strategy is a provincially funded program that was developed by the Government of Ontario in consultation with aboriginal organizations to address high instances of family violence and poor health levels throughout aboriginal communities. A Joint Management Committee, consisting of Ontario and aboriginal representatives (First Nation and Métis) oversees the implementation of the Strategy. The Applicant is responsible for the administration of the program to its citizens (Funding Agreement between Minister of Community and Social Services and the Métis Nation of Ontario, dated December 14, 1999 (Tab A of Applicant's Record); Letter to Tony Belcourt from Aboriginal Healing and Wellness, dated October 6, 2000 (Tab C of Applicant's Record)).
[41] The Adjudicator relied on Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (T.D.) in reaching his conclusion that the Strategy was closely linked to "Métisness". However, the Applicant submits that Sagkeeng has no bearing on the case at bar because it is distinguishable on the facts.
[42] The program in Sagkeeng was founded on cultural attributes, and, in particular, a focus on Indian spirituality and values. It is because of this close link between Indian culture and spirituality in the Sagkeeng program, the Applicant argues, that the court was able to conclude that the program went to the heart of "Indianess."
[43] The determination of the core of "Indianess" has been discussed by the Supreme Court of Canada in Dick v. R.. The Applicant says that the Supreme Court's reasoning to determine whether or not the Wildlife Act impaired "Indianness" is applicable to the case at bar. Specifically, the Supreme Court held as follows:
A considerable volume of evidence was called at trial as to Indian culture, habits, history, the significance of hunting and fishing as part of that culture, and specifically as to provincial conservation objectives and methods, sustenance permits, food requirements, traditional claims and so on. This testimony was supported by various maps as to alleged historic hunting areas, policy statements and lengthy opinion evidence of Dr. M. Asch, an anthropologist who is the author of numerous papers dealing with, inter alia, aboriginal rights.
...
In my opinion, it is impossible to read the evidence without realizing that killing fish and animals for food and other uses gives shape and meaning to the lives of the members of the Alkali Lake Band. It is at the centre of what they do and what they are.
...
Indeed, I would add that if the facts in this case do not place the killing of the deer within the central core of Indianness, if there is one, or within the boundary that outlines the status and capacities of the Alkali Lake Band, then it is difficult to imagine other facts that would do so.
...
I am prepared to assume, without deciding, that Lambert J.A. was right on this point and that the appellant's submissions on the first issue is well taken.
Dick v. R, [1985] 4 C.N.L.R. 55, at p. 60 and 65 (Beetz J. citing with approval Andrew Co. Ct. J. and Lambert J.A.).
[44] The Applicant submits that there was no evidence before the Adjudicator to suggest that the Strategy went to the core of "Métisness" in the same manner that the Wildlife Act went to the core of "Indianness" in Dick, supra, or that the program went to the core of "Indianness" in Sagkeeng. In fact, the Applicant says there is no evidence that the Strategy is in any way analogous to the program considered by the court in Sagkeeng. There is no evidence that Strategy employees are, as a component of the Strategy, rehabilitating Métis clients to their own culture. There is no evidence that employees provide any cultural training in Métis culture to clients. There is also no evidence that "Métisness" is at issue in the provision of services pursuant to the Strategy.
[45] The Applicant also argues that Sagkeeng does not apply to the facts in this adjudication. The fact that one particular health program for Indians has been found by the court to have "Indianess" at its core in an amount sufficient to bring its labour relations within federal jurisdiction does not mean that all aboriginal health programs will follow suit.
2) Rohm and Hass Test - Part 11: Without Regard to the Evidence
[46] The Applicant also submits that the Adjudicator's finding that the Strategy was closely linked to "Métisness" was erroneous because he reached this conclusion without regard to the evidence , and specifically without regard to the fact that there was no material before him on this issue (Hristova v. Canada (Min. of Employment and Immigration), [1994] F.C.J. No. 132 (T.D.); Boucher v. Morgan, [1989] F.C.J. No. 554 (T.D.)).
[47] The Adjudicator relied on the Applicant's Statement of Prime Purpose and the Aboriginal Healing Wellness Strategy Agreement in arriving at the conclusion that the Strategy went to the heart of "Métisness."
[48] The Applicant says these documents in themselves are not sufficient evidence to support a finding that the Strategy went to the heart of "Métisness." The Aboriginal Healing Wellness Strategy Agreement is nothing more than a funding agreement that sets out how funds are to be transferred to the Applicant and how those funds are to be reported and accounted for. There is nothing in the agreement that suggests that the Strategy goes to the heart of "Métisness."
[49] The Statement of Prime Purpose is a general vision statement of the Applicant. The primary purpose of the Applicant, and consideration of whether the activity in question furthers that primary purpose, are not relevant to the determination of jurisdiction in this case.
[50] The Applicant points out that it has several stated purposes - cultural, economic, political and social. One of them is fostering prosperity and economic self-sufficiency for the Métis Nation. If the Statement of Prime Purpose can determine whether an activity is central to "Métisness", then a shoe manufacturing company set up by the Applicant would have its labour relations within federal jurisdiction simply because the making of shoes fosters prosperity and economic self-sufficiency and furthers an objective of the Métis Nation. This cannot be the correct analysis (Funding Agreement between the Minister of Community and Social Services and the Métis Nation of Ontario, dated December 14, 1999 (Tab A of Applicant's Record); Métis Nation of Ontario - Statement of Prime Purpose (Tab E of Applicant's Record)).
[51] The onus of proving that the Strategy goes to the heart of "Métisness" was on the Respondent. The Respondent put forward no evidence to support this claim and did not meet this burden.
[52] In fact, the Applicant points out that there was no direct evidence on this issue put before the Adjudicator by either party.
[53] The Applicant submits that it was a reviewable error for the Adjudicator to make a finding on this issue without regard to the material before him and there was no evidence on whether the Strategy went to the heart of Métisness.
3) Rohm and Hass Test - Part III: Decision Must be Based on the Erroneous Finding
[54] The Applicant submits that the Adjudicator's jurisdiction Decision was substantively based upon his finding that the Strategy was closely linked to "Métisness."
[55] The majority of the Adjudicator's Decision focuses on this one factor. Specifically, the Adjudicator uses his finding that the Strategy goes to the heart of "Métisness" in order to reach the conclusion that the labour relations between the Applicant and the Respondent form an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.
[56] The Applicant argues that all three elements of the Rohm and Hass test are met in this case. Specifically, the Adjudicator's finding of fact that the Strategy was closely linked to "Métisness" is truly erroneous. This finding was based on no evidence, and was the basis for the Adjudicator's conclusion that he had jurisdiction to hear the Respondent's complaint under the Canada Labour Code.
What is the Appropriate Standard of Review?
[57] The Applicant points out that the Supreme Court of Canada has held that an error of law as to an issue within a tribunal's jurisdiction is to be reviewed on a standard of correctness, provided the issue does not fall within the particular expertise of the tribunal (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Boucher v. Canada (Attorney General), [2000] F.C.J. No. 86 (Fed. C.A.)).
[58] The Applicant further submits that the Adjudicator made an error of law in determining, based on a purported agreement between the parties and without a factual record, that Métis are Indians within the meaning of s. 91(24). The Applicant further submits that an adjudicator acting under the authority of the Canada Labour Code has no particular expertise with respect to aboriginal people (Canada (Attorney General) v. Symtron Systems Inc., [1999] 2 F.C. 514 (C.A.)).
[59] The Applicant submits that the issues of whether or not Métis are Indians for the purposes of s. 91(24), and whether the Strategy is closely linked to Métisness, are issues of jurisdiction. Therefore, the appropriate standard of review is "correctness." Accordingly, the Applicant argues that no curial deference should be given to the Adjudicator's findings (Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] l S.C.R. 982; Matsqui Indian Band v. Canadian Pacific Ltd., [ 1995] 2 C.N.L.R. 92 (S.C.C.)).
Respondent
Was notice of a constitutional question required pursuant to section 57(1) of the Federal Court Act?
[60] The Respondent submits that notice of a constitutional question is not required in all circumstances where a question of constitutional jurisdiction is being determined.
[61] The Respondent argues that s. 57(1) of the Federal Court Act does not impose an obligation on any party to serve notice of a constitutional question. Section 57(1) provides, rather, that a Court or federal board, commission or tribunal cannot judge an Act in question before it to be "invalid, inapplicable or inoperable" unless notice of the constitutional question has been served on the Attorneys General of Canada and the provinces (Native Council of Nova Scotia v. Canada, [2002] F.C.J. No. 4 at para. 25 (T.D.)).
[62] So the Respondent says that notice of a constitutional question is necessary only when a Court or federal board, commission or tribunal finds the legislation in question before it to be invalid, inapplicable or inoperable (Hewett v. Canada, [1996] T.C.J. No. 355 at paras. 8-9 (T.C.C.)).
[63] The Respondent concedes that the Adjudicator in this case is a "federal board, commission or other tribunal" within the meaning of s. 2(1) of the Federal Court Act.
[64] The question before the Adjudicator was whether the Canada Labour Code governs the labour and employment relations of the Applicant with respect to the administration of the Strategy. He determined that it did.
[65] The Adjudicator did not judge the legislation in question before him, the Canada Labour Code, to be "invalid, inapplicable or inoperable." For this reason, the Respondent says his Decision was not in violation of s. 57(1) of the Federal Court Act.
b) Was the Adjudicator correct in law in determining that the labour and employment relations of the Métis Nation of Ontario respecting the Aboriginal Healing and Wellness Strategy fall within federal jurisdiction?
What is the appropriate standard of review?
[66] The Respondent concedes that the appropriate standard of review on the question of
the Adjudicator's jurisdiction is correctness.
Was it open to the Adjudicator to base his determination of jurisdiction on the agreement between the parties that Métis are "Indians" for the purpose of federal jurisdiction under s. 91(24)?
[67] The Adjudicator's finding that the labour relations of the Applicant with respect to the Strategy fall within federal jurisdiction required, as a first step, resolution of the question of whether Métis are Indians within the meaning of s. 91(24) of the Constitution Act, 1867. The Respondent submits that this was a preliminary question of fact that could be agreed upon by the parties or, in the absence of agreement, established by evidence.
[68] The Respondent argues that Canadian courts and tribunals regularly base determinations of constitutional jurisdiction on facts that are agreed to by the parties raising the jurisdictional issue (Windsor Airline Limousine Services Limited, [1999] OLRB Rep. November/December 1125 at para. 2; La Co-operative De Point-Aux-Roches, [1995] OLRB Rep. February 138 at para. 4. OPSEU v. Ontario (1994), 16. O.R. (3d) 735 at 738 (Ont. Div. Court), Early Recovered Resources Inc. v. Gulf Log Salvage Co-Operative Assn., [2003] F.C.J. No. 92 at para. 11 (C.A.)).
[69] The Respondent also says that at least one Canadian court has based a determination of jurisdiction with respect to Métis people on an uncontested claim by a Métis group that Métis are Indians within the meaning of s. 91(24) R. v. Maurice, [2002] S.J. No. 104 at para. 20 (Sask. Q.B.)).
[70] In the present case, the fact that Métis are Indians within the meaning of s. 91(24) was asserted by the Applicant and agreed to by the Respondent.
[71] The agreement between the parties went only to this preliminary fact and did not extend to the ultimate question at issue: constitutional jurisdiction over the labour relations of the Applicant with respect to the Strategy. That question was left to the Adjudicator to answer based on evidence with respect to the nature of the undertaking.
[72] The Adjudicator concluded that "the power to regulate labour relations between the MNO and the complainant forms an integral part of primary federal jurisdiction over 'Indians' recognized in s. 91(24) of the Constitution Act, 1867." He noted that his conclusion was "founded on the agreement of the parties that for the purposes of that provision, Métis are 'Indians'."
[73] The Applicant submits that once the Applicant and the Respondent had agreed that Métis were Indians for the purpose of federal jurisdiction under s. 91(24), the Adjudicator was not required to make a factual finding on that question. He was, therefore, free to proceed to the question of whether the Applicant's labour and employment relations fell within federal jurisdiction.
Was the Adjudicator correct in determining that the power to regulate labour and employment relations of the Métis Nation of Ontario with respect to the Aboriginal Healing and Wellness Strategy forms an integral part of the primary federal jurisdiction over "Indians" recognized in s. 91(24) of the Constitution Act, 1867.
[74] The Respondent concedes that, as a rule, employer-employee relationships come under provincial jurisdiction and fall within "property and civil rights in the province" under s. 92(13) of the Constitution Act, 1867. Labour and employment relations come under federal jurisdiction only where such jurisdiction forms an integral part of Parliament's primary competence over some other single federal subject (Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory (Re), [2000] CIRB No. 64 at paras. 28-29, Four B Manufacturing Ltd. v. United Garment Workers of America, [1979] 4 C.N.L.R. 21 at 24).
[75] The Canada Labour Code R.S.C. 1985, c. L-2, (s. 167(1) and s. 2). is consistent with this general proposition in that it applies only to employees who are employed or connected to the operation of a "federal work, undertaking or business." "Federal work, undertaking or business" is defined as "any work undertaking or business that is within the legislative authority of Parliament."
[76] In determining whether an undertaking or business is within the legislative authority of Parliament, the Respondent suggests that courts apply a "functional test," taking into consideration the nature of the operation and normal activities (Four B Manufacturing).
[77] In circumstances where it is asserted that regulation of a particular activity forms an integral part of primary federal jurisdiction over "Indians and Lands reserved for the Indians" (s.91(24)), the functional test may be supplemented by an inquiry into whether the activity is one whose purposes are related to "Indianness" or that puts Indian status or rights closely associated with Indian status at stake (Four B Manufacturing).
[78] Such an inquiry was undertaken in Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory. In that case, the Canada Industrial Relations Board was called upon to determine whether the labour relations of a First Nations policing service fell under federal jurisdiction. It held that the power to regulate labour relations with respect to the policing service formed an integral part of the primary federal jurisdiction over Indians. The Board's determination was based on a finding that the policing service was an activity whose purposes were related to "Indianness" (Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, at para. 36).
[79] The agreement establishing the police service, between five First Nations Treaty Organizations and the federal and Ontario governments provided that the "primary goal" of First Nations policing arrangements was "to provide an effective and efficient policing service which is culturally sensitive and appropriate for First Nations communities." On this basis, the Board found that the policing services on the reserve were "structure