Application allowed. A Canada Labour Adjudicator committed an error of law by failing to apply the correct legal test to determine if he had jurisdiction to hear an employee’s wrongful dismissal complaint. He erroneously concluded the presumption of provincial regulation of labour relations had been rebutted based on a provision of the Indian Act, the identity of the students, and the program’s emphasis on cultural sensitive education.
The Court allowed an application for judicial review from a Canada Labour Adjudicator’s decision that the Southeast Collegiate Inc. is a federal undertaking to which the Canada Labour Code [“CLC”] applies. This corporate entity was created by the Southeast Tribal Council to deliver culturally sensitive high school education to Indigenous students from across Manitoba.
The Respondent complained under the CLC that she was wrongfully dismissed. She therefore bore the onus to adduce evidence to rebut the presumption of provincial authority. The Adjudicator addressed the two issues put forward regarding jurisdiction and the dismissal of the Respondent. Ultimately the Adjudicator found that the facts set out in the termination letter were proven and that the dismissal of the Respondent was justified. He also determined that the Applicant was a federal undertaking to which the CLC applies [“Decision”]. The Applicant does not challenge any of the fact-finding in the Decision. The Applicant seeks judicial review because it maintains that, in light of the relevant jurisprudence, it is not a federal undertaking for the purpose of employment.
It has been acknowledged that strictly speaking, this issue is not a genuine constitutional one as it is not concerned with whether a particular statute is intra or ultra vires the constitutional authority of the enabling government. However, there is a rebuttable presumption that labour relations are a matter of provincial jurisdiction (NIL/TU,O Child and Family Services Society v BC Government and Service Employees’ Union, 2010 SCC 45 [“NIL/TU,O”]; Treaty 8 Tribal Association v Barley, 2016 FC 1090).
The Applicant established and operates a high school for Indigenous students with classes for grades 10, 11 and 12. The school draws students from sixteen Indigenous communities across Manitoba. It serves all of Manitoba but is targeted to those communities that do not have their own local high school. The school is located in the City of Winnipeg. Students are required to live in campus dormitories during the school year except during holiday periods.
The Southeast Tribal Council and the Federal Government of Canada are parties to an annual contribution agreement to fund the operation of the school. It provides funding for the operation of the Applicant and pays the tuition and boarding fees for each Indigenous student. While the Federal Government funding is the primary source of money received by the Applicant, non-Indigenous students are allowed to attend the school if they pay the annual tuition.
Although the school is not governed by The Public Schools Act of Manitoba, the Applicant’s teachers are required to hold a Provincial Teaching Certificate. The compulsory provincial high school courses are offered by the Applicant. The annual contribution agreement requires that the Applicant follow the Manitoba Ministry of Education Curriculum in order to receive the funding. Course curricula are accredited and provided by the province of Manitoba. As a result, graduating students receive a high school diploma that is recognized by the Manitoba Board of Education and by post-secondary institutions.
In NIL/TU,O, the Supreme Court indicated that the functional test “calls for 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). The Adjudicator was required to consider the functional test established by the Supreme Court of Canada in NIL/TU,O and, in doing so, he had to correctly apply it. The Adjudicator did neither. Because the Adjudicator found that it did not arise, there is no indication in the Decision that the presumption of provincial authority over this Applicant’s labour relations with the Respondent was rebutted. Unless the presumption is rebutted, the Province of Manitoba had jurisdiction over the relationship between the Applicant and the Respondent. Instead of applying the functional test, the Adjudicator substituted his own view that the presumption did not arise. In that respect, the Decision is based on an error of law.