Berens River First Nation v. Gibson-Peron

Berens River First Nation v. Gibson-Peron
Court (s) Database
Federal Court Decisions
Date
2015-05-08
Neutral citation
2015 FC 614
File numbers
T-1933-14
Notes
Digest
Decision Content
Date: 20150508
Docket: T-1933-14
Citation: 2015 FC 614
Toronto, Ontario, May 8, 2015
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
BERENS RIVER FIRST NATION
Applicant
and
TERESA GIBSON-PERON
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review, pursuant to sections 18 and 18.1 of the Federal Courts Act, RSC 1985, c F-7, of the decision of Adjudicator James E. McLandress (Adjudicator), dated August 11, 2014, which awarded damages to the Respondent, Ms. Teresa Gibson-Peron, as a result of her claim for unjust dismissal pursuant to the Canada Labour Code, RSC 1985, c L-2 (Code) as against the Applicant, Berens River First Nation (BRFN or Band). The Applicant in this matter alleges that the Adjudicator did not have jurisdiction to hear the complaint and that it should have been dealt with under provincial jurisdiction.
[2] For the reasons set out below, the application for judicial review is dismissed.
Background [3] The following facts are taken from the Agreed Statement of Facts which was filed before the Adjudicator at the complaint for unjust dismissal and which forms part of the record before me. Additional relevant facts as found by the Adjudicator in his decision are summarized below in the “Decision Under Review” section of these reasons. The parties agree that the facts are not in dispute.
[4] BRFN is a First Nation located in Manitoba. BRFN operates its own Nursing Station on the First Nation. The Nursing Station operates under the supervision of a Health Director who is responsible to the Chief and Council of BRFN. The Nursing Station has a mandate to provide healthcare services to residents of the surrounding area. It receives funding through the First Nation Inuit Health Branch (FNIHB), which is a federal organization. It follows Health Canada Guidelines and is affiliated with the Interlake-Eastern Regional Health Authority of Manitoba. The nursing staff working at the Nursing Station are provincially licensed by the College of Registered Nurses of Manitoba.
[5] The Respondent was employed by BRFN as a clinic nurse at the Nursing Station. Her first day of employment was on or about July 5, 2009. She entered into her first contract of employment on or about December 16, 2009. Over the following years, until March 2013, the Respondent’s contract was renewed on multiple occasions, and she worked under substantially the same terms and conditions. The exception to this was a period of time from July 1, 2011 until September 12, 2012, when she continued her employment at BRFN without a contract of employment. On or about March 27, 2013, the Respondent was told not to attend to work relief shifts for which she had been scheduled on March 29, 30 and 31, 2013. On or about March 28, 2013, the Health Director at that time and now Band Chief, Ms. Jackie Everett, told the Respondent that her contract, which would expire on March 31, 2013, would not be renewed nor would she be offered a new contract.
[6] On or about April 29, 2013, the Respondent filed a complaint with the Human Resources and Skills Development Canada (HRSDC) Labour Program under the Code alleging she had been unjustly dismissed from her position with BRFN. The Health Director wrote a letter dated June 20, 2013 to the HRSDC Labour Program alleging that the Respondent had previously worked from June 2012 to March 2013 without an employment contract. She also alleged that the Respondent was part of the treatment plan of a patient who had died and that this had prompted the decision by Chief and Council of BRFN not to renew her contract. BRFN has never investigated the incident surrounding this patient’s death on March 17, 2013, nor has the Respondent been interviewed by BRFN regarding the patient’s death. The Respondent’s record of employment, dated April 8, 2013, states that the reason for its issuance is Code “A”, meaning “lay off/shortage of work”.
[7] The Adjudicator heard the unjust dismissal claim filed by the Respondent on June 3 and 4, 2014 and issued his decision to award her compensation on August 11, 2014.
Issues [8] I agree with the parties that this matter raises the following issues:
1. What is the applicable standard of review?
2. Did the Adjudicator have the jurisdiction to hear and decide the Respondent’s complaint?
Decision Under Review [9] The Adjudicator’s decision is 70 pages in length and addresses a significant body of jurisprudence, not all of which is recited in this summary. The Adjudicator set out the issues which the parties had agreed were to be determined. The first of these is relevant to this application, being whether the employment relationship between BRFN and the Respondent was subject to federal or provincial regulation in order to determine if the Adjudicator had jurisdiction over the matter. More specifically, if the relationship was subject to federal regulation, then the Code would apply and he would have jurisdiction. It if were provincially regulated, then he would not have jurisdiction to hear the complaint.
[10] The Adjudicator set out the relevant facts concerning the jurisdictional issue. He was satisfied that, as a remote First Nation with an elected Chief and Council, BRFN is responsible for providing a wide range of governmental services to its members, including healthcare. Chief Jackie Everett, a witness at the hearing and Health Director at the time period at issue, agreed that nursing is an essential service at BRFN. The Nursing Station is not separately incorporated, is not established as a stand-alone entity, and does not have its own board of directors. Rather, it operates under the ultimate direction of BRFN’s Chief and Council. Healthcare is the responsibility of the Chief and Council. The Health Director reports to the councillor with the Health portfolio and the Health Director’s duties are to oversee all health-related programs, which includes nursing. The Health Director manages day-to-day affairs of the nurses, but the Band retains the power to hire and fire them.
[11] All funding for healthcare at BRFN comes from FNIHB, an arm of Health Canada and a federal entity. The Nursing Station operates under FNIHB’s and Health Canada’s directions, guidelines and policies. BRFN is a “band-transferred” First Nation, which means FNIHB has given the authority for the recruitment and retention of nurses to the Band. While FNIHB provides overall funding, the Band is responsible for managing those funds for the purposes of delivering its healthcare mandate, including with respect to nursing staff. The chain of command at the Nursing Station is such that: all clinical, nursing-related matters go to FNIHB and all HR-related matters go to Chief and Council; the staff nurses report to the Nurse-in-Charge; the Nurse-in-Charge reports to the Health Director on HR-related matters, who then reports to the Health portfolio councillor and Chief and Council; the Nurse-in-Charge, and sometimes the nurses themselves, deal directly with FNIHB on nursing-related matters.
[12] The Adjudicator found that the only evidence of provincial involvement was that the nurses are subject to provincial regulation for their practicing licenses, and, the Nursing Station is affiliated with the Interlake-Eastern Regional Health Authority of Manitoba. There was no evidence as to the nature of this “affiliation”. In that regard, the Adjudicator stated, had there been any meaningful day-to-day impact on the Nursing Station, that he would have expected at least one of the witnesses to have referred to it, but they had not done so. The Adjudicator found that the day-to-day activities of the Nursing Station were under the joint control of FNIHB for clinical matters, and the Band for HR matters without any relevant operational involvement by any provincial entity. The Nursing Station did not operate as an independent unit of the Band. Rather, it was closely integrated with an important part of the Band’s operations for discharging its obligation to deliver healthcare services to its residents. Additionally, a choice of law clause in the employment contracts, which selected the laws of Canada, had been included on the advice of the Band’s counsel.
[13] The Adjudicator analysed whether the Respondent’s employment at BRFN was subject to federal or provincial jurisdiction. After setting out the reasons why jurisdiction is relevant to this inquiry under the Constitution Act, 1867 (UK), 30 & 31, Vict, c 3, reprinted in RSC 1985, App II, No 5 [Constitution Act, 1867] and Canadian labour law, the Adjudicator noted that the law in the area of jurisdiction for labour disputes is not clear, particularly since the 2010 ruling of the Supreme Court of Canada in NIL⁄TU,O Child & Family Services Society v BVGEU, 2010 SCC 45 [NIL⁄TU,O].
[14] The Adjudicator set out what he understood to be the key elements from the jurisprudence relating to jurisdiction in labour relations matters as well as the relevant factors, as identified by the jurisprudence, to be considered when analyzing whether an entity falls under federal jurisdiction. The Adjudicator found that the Supreme Court’s ruling in NIL⁄TU,O did not effectively reshape the world of employment law when it comes to employees of First Nations. He found that the effect of NIL⁄TU,O is relatively narrow, and puts the regulation of labour and employment matters in respect of First Nations on the same footing as every other entity.
[15] Before the Adjudicator, the Respondent had argued that the Band was the proper entity to be assessed as to the nature of its operations, while the Band argued it was the Nursing Station. The Adjudicator stated that, if he had to decide which entity should be tested, then the proper approach was to ask whether the activity or operation under consideration was independent enough to be considered its own entity. If so, the functional test can be applied to it, and if not, the functional test is applied to the larger entity. However, in his view, the question of which entity should be subjected to the functional test did not really enter the picture in the jurisprudence. He addressed it because both parties made submissions on this point.
[16] The Adjudicator also found that it was not determinative that nursing is a provincially regulated activity given that Parliament can have jurisdiction in the field of healthcare. The Adjudicator could not accept the Respondent’s submission that NIL⁄TU,O would be meaningless if the functional test is applied to the Band as a whole since many entities are engaged in a wide variety of activities. He found that nothing in NIL⁄TU,O undermined the analysis of the essential nature of an Indian band for the purposes of determining jurisdiction, as previously found in Paul Band Indian Reserve No 133 v R, [1984] 2 WWR 540 [Paul], Francis v Canada (Labour Relations Board), [1981] 1 FC 225 [Francis] and Whitebear Band Council v Carpenters Provincial Council of Saskatchewan, [1982] 3 WWR 554 [Whitebear]. Rather, those cases supported the proposition that Indian bands themselves are subject to the Code. The Adjudicator found that the provision of healthcare services to its members was a normal part of the Band’s local government activities, that BRFN was the employer and that the Nursing Station was, therefore, not a distinct entity. This was fundamentally different than the fact situation in NIL⁄TU,O.
[17] The Adjudicator went on to note that it was significant that the Nursing Station was not separately incorporated, although it would be possible to have a distinct entity without being separately incorporated. He also assessed the federal government’s involvement in the day-to-day activities of the Nursing Station, and found that all of the evidence pointed to the conclusion that it was not sufficiently independent from the Band to be considered a distinct entity for the purposes of determining jurisdiction. Therefore, the relevant entity was the Band.
[18] The Adjudicator addressed the cases referred to by the Band supporting the proposition that the nurses at BRFN are subject to provincial jurisdiction. He found that a first category of cases were factually distinguishable in that they did not deal with Indian bands themselves as the employer, but with operationally distinct entities, which were related to an Indian band (therefore the same fact scenario as NIL⁄TU,O), which was not the case before him. In the Adjudicator’s view, the remaining cases, MNU, Local 139 v Norway House Cree Nation, [2011] MLBD No 26 [Norway House] and Munsee-Delaware Nation and Flewelling (Unjust Dismissal), Re, 2013 CarswellNat 1359, 7 CCEL (4th) 278, were wrongly decided in terms of jurisdiction.
[19] Finally, the Adjudicator applied the traditional approach to determine the applicable jurisdiction. He dealt first with the question of direct jurisdiction. He asked the question: is the Nursing Station a part of the Band’s operations in respect of Indians and Lands reserved for Indians, or is it a separate undertaking? The Adjudicator considered the evidence and found that, taken in totality, there was nothing about the Nursing Station that says it operates as a separate, distinct or autonomous unit; rather it is a key element in the Band carrying out its local government activities. In terms of derivative jurisdiction, the Adjudicator found that the Nursing Station is so tightly interwoven with the Band’s operations that it ought to properly be subject to federal regulation for the purposes of its labour and employment relations.
[20] The Adjudicator also addressed the choice of law clause noting that the very reason why lawyers utilize such clauses is to eliminate any debate about which laws will govern. Therefore, it was significant that the parties chose to specify that the laws of Canada apply. And, as this was an employment contract, it could only be referring to the federal employment standards legislation, including the Code.
[21] Once he had found that he had jurisdiction to hear the Respondent’s claim, the Adjudicator assessed the merits of the claim.
Relevant Legislation Canada Labour Code, RSC 1985, c L-2, s 2.
2. In this Act,
2. Les définitions qui suivent s’appliquent à la présente loi.
“federal work, undertaking or business”
« entreprises fédérales »
“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
« entreprises fédérales » Les installations, ouvrages, entreprises ou secteurs d’activité qui relèvent de la compétence législative du Parlement, notamment :
(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,
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) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
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) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
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) a ferry between any province and any other province or between any province and any country other than Canada,
d) les passages par eaux entre deux provinces ou entre une province et un pays étranger;
(e) aerodromes, aircraft or a line of air transportation,
e) les aéroports, aéronefs ou lignes de transport aérien;
(f) a radio broadcasting station,
f) les stations de radiodiffusion;
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
g) les banques et les banques étrangères autorisées, au sens de l’article 2 de la Loi sur les banques;
(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,
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) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and
i) les installations, ouvrages, entreprises ou secteurs d’activité ne ressortissant pas au pouvoir législatif exclusif des législatures provinciales;
(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;
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.
Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, reprinted in RSC 1985, App II, No 5.
Legislative Authority of Parliament of Canada
Autorité législative du parlement du Canada
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
91. Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir :
[…]
[…]
24. Indians, and Lands reserved for the Indians.
24. Les Indiens et les terres réservées pour les Indiens.
Indian Act, RSC, 1985, c I-5.
Powers of the Council
Pouvoirs du conseil
By-laws
Règlements administratifs
81. (1) The council of a band may make by-laws not inconsistent with this Act or with any regulation made by the Governor in Council or the Minister, for any or all of the following purposes, namely,
81. (1) Le conseil d’une bande peut prendre des règlements administratifs, non incompatibles avec la présente loi ou avec un règlement pris par le gouverneur en conseil ou par le ministre, pour l’une ou l’ensemble des fins suivantes :
(a) to provide for the health of residents on the reserve and to prevent the spreading of contagious and infectious diseases;
a) l’adoption de mesures relatives à la santé des habitants de la réserve et les précautions à prendre contre la propagation des maladies contagieuses et infectieuses;
(b) the regulation of traffic;
b) la réglementation de la circulation;
(c) the observance of law and order;
c) l’observation de la loi et le maintien de l’ordre;
(d) the prevention of disorderly conduct and nuisances;
d) la répression de l’inconduite et des incommodités;
(e) the protection against and prevention of trespass by cattle and other domestic animals, the establishment of pounds, the appointment of pound-keepers, the regulation of their duties and the provision for fees and charges for their services;
e) la protection et les précautions à prendre contre les empiétements des bestiaux et autres animaux domestiques, l’établissement de fourrières, la nomination de gardes-fourrières, la réglementation de leurs fonctions et la constitution de droits et redevances pour leurs services;
(f) the construction and maintenance of watercourses, roads, bridges, ditches, fences and other local works;
f) l’établissement et l’entretien de cours d’eau, routes, ponts, fossés, clôtures et autres ouvrages locaux;
(g) the dividing of the reserve or a portion thereof into zones and the prohibition of the construction or maintenance of any class of buildings or the carrying on of any class of business, trade or calling in any zone;
g) la division de la réserve ou d’une de ses parties en zones, et l’interdiction de construire ou d’entretenir une catégorie de bâtiments ou d’exercer une catégorie d’entreprises, de métiers ou de professions dans une telle zone;
(h) the regulation of the construction, repair and use of buildings, whether owned by the band or by individual members of the band;
h) la réglementation de la construction, de la réparation et de l’usage des bâtiments, qu’ils appartiennent à la bande ou à des membres de la bande pris individuellement;
(i) the survey and allotment of reserve lands among the members of the band and the establishment of a register of Certificates of Possession and Certificates of Occupation relating to allotments and the setting apart of reserve lands for common use, if authority therefor has been granted under section 60;
i) l’arpentage des terres de la réserve et leur répartition entre les membres de la bande, et l’établissement d’un registre de certificats de possession et de certificats d’occupation concernant les attributions, et la mise à part de terres de la réserve pour usage commun, si l’autorisation à cet égard a été accordée aux termes de l’article 60;
(j) the destruction and control of noxious weeds;
j) la destruction et le contrôle des herbes nuisibles;
(k) the regulation of bee-keeping and poultry raising;
k) la réglementation de l’apiculture et de l’aviculture;
(l) the construction and regulation of the use of public wells, cisterns, reservoirs and other water supplies;
l) l’établissement de puits, citernes et réservoirs publics et autres services d’eau du même genre, ainsi que la réglementation de leur usage;
(m) the control or prohibition of public games, sports, races, athletic contests and other amusements;
m) la réglementation ou l’interdiction de jeux, sports, courses et concours athlétiques d’ordre public et autres amusements du même genre;
(n) the regulation of the conduct and activities of hawkers, peddlers or others who enter the reserve to buy, sell or otherwise deal in wares or merchandise;
n) la réglementation de la conduite et des opérations des marchands ambulants, colporteurs ou autres personnes qui pénètrent dans la réserve pour acheter ou vendre des produits ou marchandises, ou en faire un autre commerce;
(o) the preservation, protection and management of fur-bearing animals, fish and other game on the reserve;
o) la conservation, la protection et la régie des animaux à fourrure, du poisson et du gibier de toute sorte dans la réserve;
(p) the removal and punishment of persons trespassing on the reserve or frequenting the reserve for prohibited purposes;
p) l’expulsion et la punition des personnes qui pénètrent sans droit ni autorisation dans la réserve ou la fréquentent pour des fins interdites;
(p.1) the residence of band members and other persons on the reserve;
p.1) la résidence des membres de la bande ou des autres personnes sur la réserve;
(p.2) to provide for the rights of spouses or common-law partners and children who reside with members of the band on the reserve with respect to any matter in relation to which the council may make by-laws in respect of members of the band;
p.2) l’adoption de mesures relatives aux droits des époux ou conjoints de fait ou des enfants qui résident avec des membres de la bande dans une réserve pour toute matière au sujet de laquelle le conseil peut établir des règlements administratifs à l’égard des membres de la bande;
(p.3) to authorize the Minister to make payments out of capital or revenue moneys to persons whose names were deleted from the Band List of the band;
p.3) l’autorisation du ministre à effectuer des paiements sur des sommes d’argent au compte de capital ou des sommes d’argent de revenu aux personnes dont les noms ont été retranchés de la liste de la bande;
(p.4) to bring subsection 10(3) or 64.1(2) into effect in respect of the band;
p.4) la mise en vigueur des paragraphes 10(3) ou 64.1(2) à l’égard de la bande;
(q) with respect to any matter arising out of or ancillary to the exercise of powers under this section; and
q) toute question qui découle de l’exercice des pouvoirs prévus par le présent article, ou qui y est accessoire;
(r) the imposition on summary conviction of a fine not exceeding one thousand dollars or imprisonment for a term not exceeding thirty days, or both, for violation of a by-law made under this section.
r) l’imposition, sur déclaration de culpabilité par procédure sommaire, d’une amende maximale de mille dollars et d’un emprisonnement maximal de trente jours, ou de l’une de ces peines, pour violation d’un règlement administratif pris aux termes du présent article.
[…]
[…]
Submissions of the Parties Applicant’s Submissions [22] The Applicant submits that the Adjudicator only has jurisdiction pursuant to the Code to hear and decide complaints brought by employees who are subject to federal jurisdiction. Given that the Respondent was employed as a nurse at BRFN and that the provision of healthcare services is within provincial jurisdiction, her employment was within provincial jurisdiction.
[23] The functional test used to determine whether federal or provincial jurisdiction for labour relations applies to a particular undertaking was stated in NIL⁄TU,O and requires “an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal undertaking” (NIL⁄TU,O at para 3). The Adjudicator found that Norway House was wrongly decided because the panel in that matter looked at the operations of the employees instead of the activities of the First Nation more generally. The Applicant submits that the Adjudicator erred in reaching this conclusion because the panel did turn its mind to and considered the reality that the health clinic was part of the First Nation (Norway House at para 27b). The Applicant agrees with the Adjudicator that jurisdiction is founded on legislative authority over the operation, not over the employer, and that an entity could be a department within a larger body.
[24] The Applicant notes that the Adjudicator focussed on what the “entity” was for the purpose of determining jurisdiction and determined that it was the First Nation, primarily relying on Paul, Francis and Whitebear. The Applicant submits that the case of Paul should be distinguished as inapplicable on factual grounds given that the Band constables in that case were not operating in the context of a police station or considered anything other than directly associated with the band itself and its core governmental functions. In the present case, the Nursing Station was a separate branch of the Band. Notwithstanding that the Band was the employer, the entity to be regulated was the Nursing Station. In Francis, the employees in question were performing work related to the ‘administration of the band’, which is plainly distinguishable from this case. In Whitebear, the Saskatchewan Court of Appeal found that the function of an Indian band council is federal on the basis of the performance by a band council of “their local government function”. The Applicant concedes that a band would be subject to federal jurisdiction in labour relations when dealing with those units or departments of a band which function to give effect to the “government nature” of the band as described in Francis.
[25] The Applicant submits that the Adjudicator erred in his choice of factors to determine that the Nursing Station is to be considered a part of the Band for the purpose of labour relations jurisdiction. The Supreme Court in Tessier Ltée c Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23 at para 49 [Tessier], found that federal undertakings can be made up of functionally discrete units which can be constitutionally characterized separately from the rest of the related operation. Further, an entity can be federally regulated in part while another part is provincially regulated (NIL⁄TU,O at para 22).
[26] In the alternative, the Applicant submits that the Band is not an indivisible undertaking, as per Tessier at paras 50-51, 55. The Adjudicator, in finding that the Nursing Station was not divisible from the Band, took an overly formulaic and rigid approach. The facts in this case were very different than in Tessier, given that the nurses working at the Nursing Station are nurses only and do not spend time working in the other operations of the Band. They provide a discrete service within the confines of a discrete operation within the Band structure. The Adjudicator erred by giving significant weight to considerations such as who held responsibility for human resources management, who regulated medical standards and who funded the operation, which are not relevant to the determination of whether the Nursing Station was a functionality distinct operation (Tessier at para 41). Artificial divisions for the purpose of constitutional classification should not be created, but neither should artificial unities.
[27] The Applicant also argues that the Adjudicator erred by applying a structural rather than a functional test to the question of the appropriate entity to be dealt with. Therefore, he did not properly consider the question of his jurisdiction.
[28] The Applicant next submits that the factors identified by the Adjudicator as determinative on the questions of whether the Nursing Station would be subject to direct or derivative federal jurisdiction are not determinative and are a return to the structural inquiry which the Adjudicator employed over the functional test. In the alternative, if it is the Band that is the relevant entity, the Nursing Station branch is subject to provincial jurisdiction.
[29] The Applicant also submits that choice of law clauses are not intended to supplant the constitutional division of power, and this could set an unwise precedent. This Court should find that the choice of law clause did not provide the Adjudicator with jurisdiction simpliciter, nor did it make the adjudication forum conveniens. In the alternative, if the Court finds that the clause did grant jurisdiction, then it should exercise its discretion to refuse jurisdiction on policy grounds. In disputes relating to the correct jurisdiction for a proceeding, it is not a simple matter of observing the existence of a choice of law or forum selection clause (2249659 Ontario Ltd v Siegen, 2013 ONCA 354 [Siegen]). Factors that are important to determine where jurisdiction simpliciter lies are that: BRFN carries on business in Manitoba, the alleged wrongful termination took place in Manitoba, and, the employment contract was made in Manitoba. Any one of these will give rise to a presumption of jurisdiction (Siegen at paras 22 and 31). The Applicant does concede that if the Court finds that the choice of law clause has force, then it would normally be enforced. However, in exceptional circumstances, such as these, the Court has discretion to not enforce the clause (Northern Sales Co v Saskatchewan Wheat Pool, (1992) 78 Man R (2d) 200 at para 4 [Northern Sales]).
[30] The Applicant seeks an order quashing the decision of the Adjudicator and an order declaring that the Respondent’s employment was subject to provincial labour relations jurisdiction.
Respondent’s Submissions [31] The Respondent submits that the federal government has jurisdiction to regulate employment in two circumstances: first, when the employment relates to a work, undertaking, or business within the legislative authority of Parliament (direct jurisdiction); and, second, when it is an integral part of a federally regulated undertaking (derivative jurisdiction) (Tessier at para 17). The Respondent submits that the Nursing Station falls under federal jurisdiction either directly or derivatively.
[32] Direct jurisdiction requires an assessment of whether the work, business or undertaking’s essential operational nature brings it within a federal head of power (Tessier at para 18). The question is whether the Nursing Station and BRFN are separate from one another, or are they both part of one, single federal undertaking (Westcoast Energy Inc v Canada (National Energy Board), [1998] 1 SCR 322 at para 45 [Westcoast]; Tessier at para 44). In order to be considered one undertaking, the operations have to be functionally integrated and subject to a common management, control and direction. This is the primary determining factor. Non-determinative factors include common ownership and whether goods and services provided by one operation are for the sole benefit of the other operation or its customers. This is a fact-based test (Westcoast at paras 49 and 65).
[33] Parliament has exclusive legislative jurisdiction over Indians and Lands reserved for Indians. This is the federal head of power relevant to the direct jurisdictional analysis in this case. When an Indian band council is doing that which Parliament is exclusively empowered to do pursuant to section 92(24) of the Constitution Act, 1867, but which, through the Indian Act, RSC, 1985, c I-5 [Indian Act] has been delegated to band councils, the activity in question falls directly under federal jurisdiction (Paul at para 21; Whitebear at para 30; Francis at para 27). The Respondent submits that, on an analysis similar to Paul, where an Indian band council is empowered by the Indian Act and undertakes to provide for the health of its residents on reserve, such an undertaking falls directly under federal jurisdiction (Paul at paras 16 and 23).
[34] In this case, the Nursing Station is operated by BRFN, whose mandate it is to provide healthcare services to residents. The crucial question is whether the Nursing Station is part of BRFN such that it forms a part of a single federal undertaking. It must be determined whether the Nursing Station and BRFN are functionally integrated and subject to common management, control and direction (Westcoast at p 3). The Respondent submits that it is, given the agreed fact that “BRFN operates its own nursing station on the First Nation”. The Nursing Station exists in furtherance of the Band’s obligation to provide health services to its members. Additionally, the Nursing Station operates under the supervision of a Health Director who is responsible to the Chief and Council of BRFN. The chain of command also emphasizes the functional integration. The Nursing Station is not separately incorporated, does not have its own board of directors, and is not otherwise established as a stand-alone entity. Furthermore, BRFN has management, control and direction over the Nursing Station and its employees. Therefore, the Nursing Station is part of BRFN and is functionally integrated and connected with BRFN’s Chief and Council in order to exercise a power delegated to it under the Indian Act.
[35] The Respondent also submits that the choice of law clause in the Respondent’s employment contract that expressly provided for federal laws further reinforces the view that the Nursing Station is functionally integrated into BRFN. Additionally, BRFN failed to raise any jurisdictional objection in an unjust dismissal adjudication conducted just a few months before the adjudication at issue in this matter (Ellis v Berens River First Nation, [2014] CLAD No 101).
[36] Through its Nursing Station, BRFN is executing its mandate to provide healthcare services and is thereby exercising a power delegated to it by Parliament pursuant to the Indian Act to provide for the health of its residents. The federal nature of this delegated power is supported by the fact that BRFN is a fully transferred First Nation with authority to operate its own health services. This authority also comes from FNIHB, a federal entity that is an arm of Health Canada which delegated the human resources aspects of nursing to BRFN. The Nursing Station is part of BRFN and operates pursuant to a federally delegated power. Therefore, its operations fall directly within federal jurisdiction, as the Adjudicator found.
[37] In the alternative, the Respondent submits that the Nursing Station falls under federal jurisdiction derivatively. This determination requires an assessment of whether the essential operational nature of the work, business or undertaking renders it integral to a federal undertaking (Tessier at para 18). The focus of the analysis is on the relationship between the activity, the particular employees under scrutiny, and the federal operation that is said to benefit from the work of those employees (Tessier at para 38). The Court must look at the relationship from the perspective of both the federal undertaking and the work which is said to be integrally related, assessing the extent to which the effective performance of BRFN’s federally regulated undertakings are dependent on the services provided by the Nursing Station and how important the services are to the Nursing Station itself (Tessier at para 46). Derivative federal jurisdiction is established when the related operation is functionally connected to the federal undertaking in such an integral way that the related operation has lost its distinct provincial character and moved in the federal sphere (Tessier at para 45; Westcoast at para 111). This is a flexible test (Tessier at para 45; Westcoast at paras 125, 128).
[38] In this case, it must be determined whether the essential operational nature of the Nursing Station renders it integral to BRFN’s federally regulated undertakings, namely, providing for the health of its residents. The essential operational nature of the Nursing Station is the provision of healthcare services. The Nursing Station exists in furtherance of the Band’s obligation to provide health services to its members and it is one, if not the most important, way in which BRFN delivers this mandate. Furthermore, the Nursing Station is so functionally integrated into BRFN that it has lost its distinct provincial character and moved into the federal sphere. The Nursing Station, therefore, falls under federal jurisdiction derivatively.
[39] In reply to the Applicant’s submissions, the Respondent submits that while the functional test might be the relevant test in certain cases involving only a direct jurisdiction analysis, it is otherwise one test that forms part of the jurisdictional analysis in certain direct jurisdiction cases and all derivative jurisdiction cases. In the case of direct jurisdiction analysis where there is more than one operation, at least one of which is federally regulated, determining whether the operations are a single federal undertaking requires more