Northern Inter-Tribal Health Authority Inc. v. Canada (Attorney General)

Northern Inter-Tribal Health Authority Inc. v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2018-11-28
Neutral citation
2018 FC 1180
File numbers
T-1315-17
Notes
A correction was made on December 13, 2018. A correction was made on October 16, 2019.
Reported Decision
Decision Content
Date: 20181128
Docket: T-1315-17
Citation: 2018 FC 1180
Edmonton, Alberta, November 28, 2018
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
NORTHERN INTER-TRIBAL HEALTH AUTHORITY INC. AND PETER BALLANTYNE CREE NATION HEALTH SERVICES INCORPORATED
Applicants
and
ATTORNEY GENERAL OF CANADA, MINISTER OF FINANCE
Respondents
JUDGMENT AND REASONS
[1] The Northern Inter-Tribal Health Authority Inc. [NITHA] and Peter Ballantyne Cree Nation Health Services Incorporated [PBCNHS], the Applicants, seek judicial review of two decisions communicated by James Rogers, Relationship Manager for the Office of the Superintendent of Financial Institutions of Canada [OSFI], on February 28, 2017 [the Decisions].
[2] Mr. Rogers is the Relationship Manager with the Private Pension Plans Division of OSFI. Mr. Rogers stated that OSFI was reaffirming its previously held position that the pension plans of the Applicants do not fall under federal jurisdiction and as such are to be registered provincially.
[3] The Applicants say they took on delivery of the long standing federal government’s obligation to provide health services to First Nation members. These health services would revert to federal government delivery should the Applicants cease to provide the services. The Applicants submit their pension plans fall under federal jurisdiction and are to be registered federally.
[4] On review of the submissions by the Parties [the Applicants and Respondent] and the evidence before the OSFI decision-maker, I agree with the Applicants and grant the application for certiorari. Further, based on that evidence and the additional historical evidence provided by the Parties subsequent to the hearing, I also grant the application for a declaration that the Applicants’ pension plans are a federal government undertaking and fall under federal jurisdiction.
[5] My reasons follow.
I. Background
A. Peter Ballantyne Cree Nation Health Services Incorporated [PBCNHS]
[6] PBCNHS is a non-profit corporation incorporated to deliver health services for the Peter Ballantyne Cree Nation. It was registered in Saskatchewan on March 10, 1995 and its registered office is located in Prince Albert, Saskatchewan, on the Chief Joseph Custer Reserve #201 which was formerly known as the Opawikoscikan Reserve #201.
[7] On March 17, 1995, shortly after PBCNHS’s incorporation, the federal government and Peter Ballantyne Cree Nation and PBCNHS entered into an agreement that made PBCNHS responsible for the delivery, administration, provision and control of federal health services and programs provided to members of the Peter Ballantyne Cree Nation. PBCNHS has since then entered into four subsequent agreements with these same parties for delivery of the health services.
[8] The Peter Ballantyne Cree Nation has about 6,286 on-reserve members to which PBCNHS provides on-reserve health programs and services. PBCNHS provides these programs and services through three primary care centers (located in Pelican Narrows, Deschambault Lake, and Southend) and two community health centers (located in Sturgeon Landing and Kinoosao). All five of these centers are located on reserves in northern Saskatchewan.
[9] Under the most recent agreement PBCNHS provides both first level services (those offered directly in the community) and second level services (administration, co-ordination, training and technical support, supplied from its central office that is located on-reserve in Prince Albert). First level services and programs being provided include: Primary Health Care-Health Child Development, Mental Wellness, Healthy Living, Communicable Disease Control and Management, Clinical and Client Care, and Home and Community Care. Second level services and programs being provided include Health Infrastructure Support, Health System Capacity, Health Planning and Quality Management, and Health Facilities.
[10] There are 148 allocated positions at PBCNHS and 137 of these positions were occupied in September 2017. Of these 137 occupied positions, 115 are members of the Peter Ballantyne Cree Nation which is approximately 84% of all occupied positions.
[11] As an employer, PBCNHS provides a registered pension plan to its employees. It had originally registered this plan with the federal authority for this purpose, OSFI (OSFI Registration No: 56930).
[12] PBCNHS does not own an airstrip or a pharmacy however it does share ownership jointly, along with the Peter Ballantyne Cree Nation, of an ambulance corporation that provides services to the Cree Nation’s remote communities. The Affiant for PBCNHS states the ambulance corporation complies with provincial regulation and is entirely separate from the first and second level services PBCNHS provides.
[13] The Affiant for PBCNHS states that “[i]n cases where the On-Reserve resident Peter Ballantyne Cree Nation member requires non-Federal health programs or services off-Reserve, such as hospitalization, these programs and services are provided by the Province of Saskatchewan.”
[14] The PBCNHS Affiant states that if they were to reject federal funding there is no other source of funding to allow PBCNHS to continue to exist as it does. The Affiant states that adhering to provincial regulation by health programs on-reserve occurs to ensure proper standards are met because there are no federal guidelines or legislation that are directly applicable.
[15] The PBCNHS Affiant goes on to state that in the event the current agreement was terminated, or PBCNHS was not able to provide the first and second level services, the responsibility for providing these first and second level services would revert back to the federal government and not to the Province of Saskatchewan. The Affiant further states that if the federal government was providing these same services (i.e. if PBCNHS did not exist) then federal government employees would also follow provincial guidelines and legislation for health services.
B. The lead up to the Decision under review with respect to PBCNHS
[16] In correspondence dated May 10, 2012, James Rogers (a Project Specialist with the Private Pension Plans Division of OSFI at that time) notified PBCNHS that OSFI had determined their pension plan was subject to provincial legislation and as such it was to be transferred to the provincial pension regulator in Saskatchewan. In correspondence dated May 30, 2012, the transfer was confirmed by the Saskatchewan Financial Services Commission – Pension Division [SFSC].
[17] PBCNHS opposed this determination in correspondence dated April 2, 2013 taking the position that the pension plan is subject to federal jurisdiction because the nature, activities, and daily operations of PBCNHS constitute a federal undertaking.
[18] PBCNHS asked what it would need to do to return its pension plan back to federal registration with OSFI. The Affiant for PBCNHS reports that “OSFI did not advise them in relation to the Federal re-registration of the Registered Pension Plan”.
[19] PBCNHS sent further correspondence to OSFI dated February 11, 2014 reasserting its position its pensions were to be registered federally. In correspondence dated June 10, 2014 James Rogers (now as Supervisor with OSFI) advised PBCNHS that OSFI maintained its determination that the pension plan was to be registered provincially.
[20] There was a legal challenge in court over this matter. An agreement was reached December 6, 2016 to have the matter re-determined no later than March 1, 2017 with any judicial review of that redetermination to be brought in the Federal Court.
C. Northern Inter-Tribal Health Authority [NITHA]
[21] NITHA is a non-profit corporation that was incorporated and registered in Saskatchewan on May 8, 1998. Its registered office is located in Prince Albert, Saskatchewan, on the Chief Joseph Custer Reserve #201 which was formerly known as the Opawikoscikan Reserve #201.
[22] NITHA provides third level health programs and services to four groups (its constituting Members): the Prince Albert Grand Council, the Meadow Lake Tribal Council, the Lac La Ronge Indian Band, and the Peter Ballantyne Cree Nation (through the latter Nation’s health corporation, PBCNHS (the Co-Applicant)).
[23] These third level services have been, and continue to be, conducted pursuant to agreements entered into between NITHA and the federal government. The first of these agreements commenced 2000-2001 and was followed by the subsequent agreements, amendments and extensions.
[24] Third level health services are those of a coordination and advisory nature in support of second level services in the community. These third level services and programs are itemized as:
Medical Health Officer and communicable disease control services,
nursing program support and advisory services, including nursing practice consultant,
nursing recruitment and retention services,
Dental Officer services,
environmental health support and advisory services,
addictions support and advisory services,
health education support and advisory services,
mental Health support and advisory services,
nutritionist services,
health careers and training support,
policy, planning and research services,
informatics services; and
management and administration.
[25] NITHA provides an enumerated benefits pension plan to its employees and had originally registered it with OSFI.
[26] The Affiant for NITHA states that it adopts provincial regulations and guidelines to ensure proper standards are met because there are no directly applicable federal guidelines or legislation. Furthermore, the Affiant asserts that if the federal government was providing these same services (i.e. if NITHA did not exist) then federal government employees would also follow provincial guidelines and legislation for health services.
[27] The NITHA Affiant also states that in the event the current agreement was terminated, or NITHA was not able to provide the third level services, the responsibility for providing these third level services would revert back to the federal government and not to the Province of Saskatchewan. The Affiant further states that in the event NITHA were to reject federal funding there is no other source of funding to allow NITHA to continue to exist.
[28] The partners of NITHA do not receive funding for Emergency Response Coordinator positions (the Affiant states this is a second level service) and NITHA provides this funding through its own program and services funding.
D. The lead up to the Decision under review with respect to NITHA
[29] In correspondence dated August 30, 2013, Nancy Desormeaux (a Supervisor with the Private Pension Plans Division of OSFI) notified NITHA that OSFI had determined their pension plan was subject to provincial legislation and as such it was transferred effective August 1, 2013 to the provincial pension regulator in Saskatchewan.
[30] NITHA opposed this determination in correspondence dated February 14, 2014, taking the position that the pension plan is subject to federal jurisdiction because the nature, activities, and daily operations of NITHA constitute a federal undertaking. NITHA requested that OSFI recognize that the pension plan falls under federal jurisdiction and advise them of the required steps to return to registration with OSFI.
[31] In correspondence dated June 10, 2014, James Rogers (now as Supervisor with OSFI) advised NITHA that OSFI maintained its determination that the pension plan was to be registered provincially.
[32] There was a legal challenge in court over this matter. An agreement was reached December 6, 2016 to have the matter re-determined no later than March 1, 2017 with any judicial review of that redetermination to be brought in the Federal Court.
II. The Decisions
[33] The OSFI Decisions, which were reconsiderations of previous decisions, were communicated by James Rogers in letters dated February 28, 2017.
A. The Decision with respect to PBCNHS
[34] James Rogers states that the OSFI Decision has been made by applying the test set out in the Supreme Court of Canada’s [SCC’s] judgment in NIL/TU,O Child and Family Services Society v B.C. Government and Service Employees' Union, 2010 SCC 45 [NIL/TU,O]. He writes in the Decision that OSFI must first consider the “functional test” to determine whether the entity constitutes a federal undertaking and if this test is inconclusive it is to then proceed to look at whether provincial regulation would impair the core of a federal head of power.
[35] OSFI states that using the functional test it has “examined PBCNHS’s normal, habitual activities based on all the information provided to us and have arrived at the conclusion that the nature of PBCNHS’s operations are the provision of health care and social services to the on-reserve community residents in Pelican Narrows, Deschambault Lake, Southend, and Sturgeon Landing.” OSFI notes that general legislative jurisdiction over health and social programs belongs to the provinces and states that the distinctive Aboriginal component of the service delivery does not change the nature of PBCNHS’s operations and activities or the jurisdiction over its labour relations.
[36] OSFI takes note of PBCNHS’s argument that the services it provides are those that are a responsibility of the federal government but OSFI states that the agreements and jurisprudence only create funding relationships and should not be interpreted as an attempt to regulate PBCNHS’s health services. In support of this OSFI lists the following points:
Past jurisprudence has held that although the federal government has the power to spend money and impose conditions on which the money is available this should not be taken as an intention to regulate the entirety of the area to which money is provided.
The most recent agreement supports OSFI’s position in their opinion as:
o the preamble sets out that it is an agreement to provide funds for the provision of certain services and that it does not affect constitutional rights;
o although PBCNHS must submit reports to Health Canada, and Health Canada may audit them and recover unauthorized spending, such control is to make sure that PBCNHS remains eligible for funding and those funds are used as prescribed;
o although Health Canada is empowered to take necessary steps in the case of a health emergency this should not factor into the functional test as it is merely a casual factor;
o PBCNHS could refuse funding or terminate the agreement if it wanted and as such would be able to avoid complying with any conditions from the Federal government, meaning it is not federally regulated;
o the agreement states it does not create an agency, employer-employee, association, or joint venture between Health Canada and PBCNHS, meaning that there is no link between the Federal government and the provision of services (it is only a funding relationship);
o the agreement does not have a provision about the management of labour relations.
[37] OSFI states that although PBCNHS stated in correspondence that provincial legislation applicable to the provision of its federal on-reserve health services and programs does not exist, its documents point to the contrary (PBCNHS had since clarified this point by stating that it meant there was nothing from the Province delegating the provision of these services to PBCNHS). The OSFI notes some of the following points from PBCNHS’s materials:
it has referenced that it is challenging to meet provincial requirements to use a certain transportation vehicle;
provincial licencing requirements for paramedics must be met;
it lists the number of First Responders registered with Saskatchewan Health and the number of Emergency Medical Responders licenced with the Saskatchewan College of Paramedics;
Nurses have annual reviews for renewal as required by the Saskatchewan Registered Nurses Association;
the Mental Health and Addictions Program has a goal of establishing links to specialized services within both the private, provincial and federal systems;
for Communicable Disease Control they follow the Provincial Immunization and CDC guidelines and had as a goal the provision of immunizations in accordance with schedules established by Saskatchewan and First Nations Inuit Health Branch in Saskatchewan;
Northern Medical Services states it provides salaries for physicians through a transfer payment from Saskatchewan Health.
[38] Based on all of the above OSFI states that the material provided by PBCNHS has not changed its opinion that it is not a federal undertaking. OSFI states that given PBCNHS operations are in health care and social services, and that it is solely a funding relationship with Health Canada, the presumption of provincial jurisdiction over labour (pensions) has not been overcome. For this reason OSFI maintains its previously held position that PBCNHS’s pension is to be registered provincially.
B. The Decision with respect to NITHA
[39] James Rogers states the OSFI Decision has been made by applying the test set out in the Supreme Court of Canada’s judgment in NIL/TU,O. He writes in the Decision that OSFI must first consider the “functional test” to determine whether the entity constitutes a federal undertaking and if this test is inconclusive it must them proceed to look at whether provincial regulation would impair the core of a federal head of power.
[40] OSFI states that using the functional test it has “examined NITHA’s normal, habitual activities based on all the information provided to us and have arrived at the conclusion that the nature of NITHA’s operations are the provision of health services to its four constituting members (i.e., the Meadow Lake Tribal Council, the Prince Albert Grand Council, the Lac La Ronge Indian Band and the Peter Ballantyne Cree Nation).” OSFI notes that general legislative jurisdiction over health and social programs belongs to the provinces and states that the distinctive Aboriginal component of the service delivery does not change the nature of NITHA’s operations and activities or the jurisdiction over its labour relations.
[41] OSFI notes NITHA’s argument that the services it provides are those that are a responsibility of the federal government but states that on reviewing the agreements and jurisprudence the agreements only create funding relationships and should not be interpreted as an attempt to regulate NITHA’s health services. In support of this OSFI lists the following points:
past jurisprudence has held that, although the federal government has the power to spend money and impose conditions on which the money is available, this should not be taken as an intention to regulate the entirety of the area for which money is provided;
the most recent agreement supports OSFI’s position in their opinion as:
o the preamble sets out that it is an agreement to provide funds for the provision of certain services;
o although NITHA must submit reports to Health Canada, and Health Canada may audit them and recover unauthorized spending, such control is to make sure that NITHA remains eligible for funding and those funds are used as prescribed;
o although Health Canada is empowered to take necessary steps in the case of a health emergency this should not factor into the functional test as it is merely a casual factor;
o NITHA could refuse funding or terminate the agreement if it wanted to and as such would be able to avoid complying with any conditions from the Federal government, meaning it is not federally regulated;
o the agreement states it does not create an agency, employer-employee, association, or joint venture between Health Canada and NITHA, meaning that there is no link between the federal government and the provision of services (it is only a funding relationship);
o the agreement does not have a provision about the management of labour relations.
[42] The OSFI states that although NITHA stated in correspondence that provincial legislation applicable to the provision of its third level federal on-reserve health services and programs did not exist, its documents point to the contrary (NITHA had since clarified this point by stating that it meant there was nothing from the Province delegating the provision of these services to NITHA). The OSFI states that these materials demonstrate that some NITHA services are outside federal funding and also that they adhere to provincial licencing requirements, standards and guidelines. The OSFI then notes some of the following points from NITHA’s materials:
“the NITHA Partnership has representation at both federal and provincial levels”;
NITHA has a goal of implementing the provincial Mental Health and Addictions 10 year Action Plan and has connected with and participated in provincial initiatives including 4 working groups (health, education, justice, and social services);
NITHA provides funding to its partners for “Second level Emergency Response Coordinators” as the First Nation Inuit Health Branch funding does not cover this service
the Emergency Response Coordinator has partnered with Provincial Emergency Management and Fire Safety;
it continues to participate in the Saskatchewan Oral Health Coalition;
Saskatchewan Health has launched a Panorama System which is now being used by 15 communities within NITHA, and Saskatchewan and NITHA are conducting legal consultation regarding the logistics of this system
the Public Health Nurse provided support to NITHA by training NITHA’s nursing staff on the Saskatchewan Health/Child Health Clinic Guideline;
the Environmental Health Advisor strived to meet provincial reporting requirements;
Case Management is the responsibility of Community Health Nurses along with Saskatchewan’s TB prevention and Control Program.
NITHA has since clarified that the federal government provides this funding to it, instead of to its members, and then NITHA provides the funding to its members;
NITHA has now clarified that this is a vaccination tracking system throughout Saskatchewan, and it makes sense to have a reliable and transferable vaccination records system so health professionals throughout the province have access;
[43] Based on all of the above OSFI states that the material provided by NITHA has not changed its opinion that NITHA is not a federal undertaking. OSFI states that given the operations are in the health services area, and that it is solely a funding relationship with Health Canada, the presumption of provincial jurisdiction over labour (pensions) has not been overcome. For this reason OSFI maintains its previously held position that NITHA’s pension is to be registered provincially.
III. Legislation
[44] The Pension Benefits Standards Act, RSC 1985, c 32 (2nd Supp) [PBSA] provides:
Application of Act
4 (1) This Act applies in respect of pension plans.
Definition of pension plan
(2) In this Act, pension plan means a superannuation or other plan organized and administered to provide pension benefits to employees employed in included employment (and former employees) and to which the employer is required under or in accordance with the plan to contribute, whether or not provision is also made for other benefits or for benefits to other persons, and includes a supplemental pension plan, whether or not the employer is required to make contributions under or in accordance with the supplemental pension plan, but does not include
(a) an employees’ profit sharing plan or a deferred profit sharing plan as defined in sections 144 and 147, respectively, of the Income Tax Act;
(b) an arrangement to provide a retiring allowance as defined in subsection 248(1) of the Income Tax Act;
(b.1) a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act; or
(c) any other prescribed arrangement.
Definition of supplemental pension plan
(3) In subsection (2), supplemental pension plan means a pension plan for employees whose membership in another pension plan is a condition precedent to membership in the supplemental pension plan and that is an integral part of that other plan.
Definition of included employment
(4) In this Act, included employment means employment, other than excepted employment, on or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada, including, without restricting the generality of the foregoing,
(a) any work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of a ship and transportation by ship anywhere in Canada;
(b) any railway, canal, telegraph or other work or undertaking connecting a province with another province or extending beyond the limits of a province;
(c) any line of steam or other ships connecting a province with another province or extending beyond the limits of a province;
(d) any ferry between a province and another province or between a province and a country other than Canada;
(e) any aerodrome, aircraft or line of air transportation;
(f) any radio broadcasting station;
(g) any bank or authorized foreign bank within the meaning of section 2 of the Bank Act;
h) any work, undertaking or business that, although wholly situated within a province, is before or after its execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more provinces; and
(i) any work, undertaking or business outside the exclusive legislative authority of provincial legislatures, and any work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut.
[emphasis added]
Application de la loi
4 (1) La présente loi s’applique relativement aux régimes de pension.
Définition de régime de pension
(2) Pour l’application de la présente loi, régime de pension s’entend d’un régime de retraite ou autre institué et géré en vue d’assurer des prestations de pension aux salariés occupant un emploi inclus ainsi qu’aux anciens salariés, que le régime prévoie ou non d’autres prestations ou le paiement de prestations à d’autres personnes, et au titre duquel et conformément auquel l’employeur est tenu d’y verser des cotisations; est assimilé à un régime de pension tout régime complémentaire, au titre duquel ou conformément auquel l’employeur est tenu d’y verser des cotisations, mais non :
a) les régimes de participation des employés aux bénéfices et les régimes de participation différée aux bénéfices au sens des articles 144 et 147 de la Loi de l’impôt sur le revenu;
b) les ententes en vue du versement d’une allocation de retraite au sens du paragraphe 248(1) de la Loi de l’impôt sur le revenu;
b.1) les régimes de pension agréés collectifs au sens du paragraphe 2(1) de la Loi sur les régimes de pension agréés collectifs;
c) les autres ententes prévues par les règlements.
Définition de régime complémentaire
(3) Au paragraphe (2), régime complémentaire s’entend d’un régime de pension auquel les salariés ne peuvent adhérer que s’ils participent à un autre régime de pension, et qui fait partie intégrante de celui-ci.
Définition de emploi inclus
(4) Pour l’application de la présente loi, emploi inclus s’entend de tout emploi, autre qu’un emploi exclu, lié ou rattaché à la mise en service d’un ouvrage, d’une entreprise ou d’une activité de compétence fédérale et lié notamment à :
a) un ouvrage, une entreprise ou une activité exploitée relativement à la navigation et les expéditions par eau, intérieures ou maritimes, y compris la mise en service d’un navire et le transport par navire au Canada;
b) un chemin de fer, canal, télégraphe ou autre ouvrage ou entreprise reliant une ou plusieurs provinces ou s’étendant à l’extérieur d’une province;
c) une ligne de navires à vapeur ou autres reliant une ou plusieurs provinces ou s’étendant au-delà des limites d’une province;
d) un traversier exploité entre une ou plusieurs provinces ou une province et un pays étranger;
e) un aérodrome, un aéronef ou une ligne aérienne;
f) une station de radiodiffusion;
g) une banque ou une banque étrangère autorisée, au sens de l’article 2 de la Loi sur les banques;
h) un ouvrage, une entreprise ou une activité que le Parlement déclare être à l’avantage général du Canada ou de plusieurs provinces même si l’ouvrage ou l’entreprise sont situés, ou l’activité est exercée, entièrement à l’intérieur d’une province;
i) un ouvrage, une entreprise ou autre activité qui ne relèvent pas de la compétence législative exclusive des provinces ou qui sont de nature locale ou privée au Yukon, dans les Territoires du Nord-Ouest ou au Nunavut.
[Je souligne]
[45] This definition of included employment in PBSA mirrors the broad and non-exhaustive definition of “federal work, undertaking or business” used in section 2 of the Canada Labour Code, RSC 1985, c L-2 [CLC]. For this reason the jurisprudence with respect to the CLC on what constitutes a federal undertaking is applicable to what constitutes a federal undertaking under the PBSA.
[46] The Canada Labour Code, RSC 1985, c. L-2 provides:
2 In this Act,
federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
(d) a ferry between any province and any other province or between any province and any country other than Canada,
(e) aerodromes, aircraft or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and
(j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act; (entreprises fédérales)
[emphasis added]
2 Les définitions qui suivent s’appliquent à la présente loi.
entreprises fédérales Les installations, ouvrages, entreprises ou secteurs d’activité qui relèvent de la compétence législative du Parlement, notamment :
a) ceux qui se rapportent à la navigation et aux transports par eau, entre autres à ce qui touche l’exploitation de navires et le transport par navire partout au Canada;
b) les installations ou ouvrages, entre autres, chemins de fer, canaux ou liaisons télégraphiques, reliant une province à une ou plusieurs autres, ou débordant les limites d’une province, et les entreprises correspondantes;
c) les lignes de transport par bateaux à vapeur ou autres navires, reliant une province à une ou plusieurs autres, ou débordant les limites d’une province;
d) les passages par eaux entre deux provinces ou entre une province et un pays étranger;
e) les aéroports, aéronefs ou lignes de transport aérien;
f) les stations de radiodiffusion;
g) les banques et les banques étrangères autorisées, au sens de l’article 2 de la Loi sur les banques;
h) les ouvrages ou entreprises qui, bien qu’entièrement situés dans une province, sont, avant ou après leur réalisation, déclarés par le Parlement être à l’avantage général du Canada ou de plusieurs provinces;
i) les installations, ouvrages, entreprises ou secteurs d’activité ne ressortissant pas au pouvoir législatif exclusif des législatures provinciales;
j) les entreprises auxquelles les lois fédérales, au sens de l’article 2 de la Loi sur les océans, s’appliquent en vertu de l’article 20 de cette loi et des règlements d’application de l’alinéa 26(1)k) de la même loi. (federal work, undertaking or business)
[Je souligne]
IV. Issues
[47] The Applicants submit the OSFI erred in law in rendering the Decisions as, on the applicable test, the Applicants’ activities conducted pursuant to their respective agreements [the Agreements] are properly federal undertakings and for this reason their pension plans should be registered federally.
[48] The Respondent asserts that the OSFI’s Decisions were reasonable in the exercise of its discretion. The Respondent states that OSFI applied the applicable functional test and reasonably concluded the Applicants were not a federal undertaking.
[49] Implicit in the Applicants’ submission that the PBCNHS and NITHA activities are federal works and undertakings, is that the matter touches upon a constitutional question regarding the division of powers. The Respondent stresses the resolution of this question rests on reasonableness of the decision. In other words, the Applicants’ view is that the standard of review is correctness while the Respondent’s position is that the standard of review is reasonableness.
[50] Nevertheless, both Parties rest their submissions on the proper application of the test set out in the Supreme Court of Canada’s judgment in NIL/TU,O.
[51] I would restate the issues as follows:
1) What is the applicable standard of review?
2) Do the Decisions meet the requisite standard of review for the application of the functional test in NIL/TU,O?
3) Has the basis for a declaration been met?
V. Parties’ Submissions
A. Applicants’ Submissions
[52] The Applicants state they do not take issue that general legislative jurisdiction over health or labour relations belongs to the provinces under the Constitution Act, 1867 RSC 1985, Appendix II, No 5. Instead the Applicants assert that on the functional test in NIL/TU,O their operations would be considered federal undertakings. They support this position by stating that the normal and habitual activities of the Applicants are providing on-reserve health programs and services (PBCNHS level 1&2 services and NITHA level 3 services) that the federal government would otherwise be responsible for providing, as it has in the past. The Applicants state that, based on functional analysis, they have displaced the presumption of provincial jurisdiction.
[53] The Applicants state that the federal government through Health Canada - First Nations Inuit Health Branch would normally provide such on-reserve health programs and services. They note that under the Agreements the Applicants are now providing such programs and services. As a result, the Applicants are receiving funds from the federal government. The Applicants also note that the federal government still has oversight of their operations through requirements of accountability, reporting and a reversion of these services to the federal government in the event of termination or in instances where the agreed upon services are not being met.
[54] Unlike in NIL/TU,O, where the British Columbia provincial government had delegated certain authorities over child welfare to the entity in question, the Applicants state there has been no delegation from the Saskatchewan provincial government. Instead their authority to provide the on-reserve health services comes from the policies implemented by the federal government with respect to Indian health as a part of the federal government’s constitutional jurisdiction over “Indians, and Lands reserved for the Indians”: s. 91(24), Constitution Act, 1867.
[55] The Applicants agree that federal funding on its own does not render them a federal undertaking but states that it is the funding combined with the oversight and accountability attached to the funds and the fact that the services would otherwise be provided by the federal government that makes it a federal undertaking.
[56] With respect to NITHA the Applicants note that of its 30 employees only the nurses in the TB program, and NITHA’s medical health officer, require provincial licensing while the remaining employees do not. The Applicants also point out that physicians are under provincial jurisdiction and that is why they are paid by the provincial government, although the federal government does provide some reimbursement for travel. Although some provincial legislation and regulations apply, the Applicants state that this legislation is followed as there is no competing federal legislation and following the provincial regulatory regime maintains proper safety standards.
[57] The Applicants request two remedies from this Court. First, they request that the February 28, 2017 decision be set aside using this Court’s power under paragraph 18.1(3)(b) of the Federal Courts Act. Second, they request that a declaration be made that the Applicants’ pension plans fall under federal jurisdiction. In support of the ability of this Court to make a binding declaration the Applicants cite a judgment in which the Federal Court of Appeal stayed a declaration of the Federal Court, as it found that the declaration had a binding and legal effect on the parties and thus provided a basis for seeking a stay of the declaration: Assiniboine v Meeches, 2013 FCA 114 at paras 11-15, 32 [Assiniboine].
B. Respondent’s Submissions
[58] The Respondent submits the general presumption is that labour relations are provincial in nature and since pensions affect employment contracts, they are also presumptively provincial in nature. The Respondent references a 1937 Privy Council case in which unemployment insurance legislation, where it affected contracts of employment, was found to fall within provincial jurisdiction on property and civil rights on a prima-facie basis: Canada (AG) v Ontario (AG), [1937] AC 355.
[59] The Respondent notes that pursuant to section 92 subsections: “7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province, other than Marine Hospitals”, “13. Property and Civil Rights in the Province” and “16. Generally all Matters of a merely local or private Nature in the Province” of the Constitution Act, 1867, provinces have a “broad and extensive” power over health: Canada (AG) v PHS Community Services Society, 2011 SCC 44 at para 68.
[60] The Respondent also notes that federal government funding of an operation does not transform a provincial entity into a federal entity: NIL/TU,O at para 40. In support of this point the Respondent sets out that this is the model used at present where the federal government, without unconstitutionally exceeding its jurisdiction, provides funding to provinces for health care and is able to stipulate conditions that must be met for the receipt of full funding.
[61] The Respondent submits that PBCNHS and NITHA are non-profit corporations registered in Saskatchewan and that the Agreements they have with the federal government are merely funding agreements. The Respondent states that there is no federal legislation that forces the federal government to provide such funding.
[62] The Respondent submits that the Agreements outline that they are not to affect treaty or Aboriginal rights which means that the Agreements are not implementations of treaties so there is no obligation to provide the funding from a treaty law viewpoint.
[63] The Respondent also notes that the