Name of Case: Native Child and Family Services of Toronto v. Communication, Energy, and Paperworkers Union of Canada

Status: Appeal argued on December 8, 2009

Judgment under Appeal: Judgment of the Federal Court of Appeal dated October 31, 2008

Facts: The Native Child and Family Services of Toronto ("the Society") is a children's aid society established pursuant to the Ontario Child and Family Services Act ("CFSA"). It provides child protection and family support services to the Aboriginal community of Toronto in a manner that takes into account Aboriginal culture and models of the family. Operating entirely within the city of Toronto, the Society shares its jurisdiction with the Children's Aid Society of Toronto, the Catholic Children's Aid Society of Toronto, and the Jewish Children's Aid Society. Aboriginal families living in Toronto may use any service they wish. Most of the Society's employees are Aboriginal, as are its directors; however, there is no formal band involvement in its governance. Nor does the federal government play any role in its regulation or operations.

Case History: On March 28, 2007, the Communication, Energy, and Paperworkers Union of Canada applied to the Canada Industrial Relations Board to be certified as the bargaining agent for the Society's employees. Although the employer took the position that the CIRB did not have jurisdiction over its labour relations, the Board held otherwise. Stressing the fact that the Society specifically targeted the unique needs of the Aboriginal community, the Board determined that the Society's activities "related to and are at the core of Indianness" within the meaning of s.91(24) of the Constitution Act, 1867. In the result, the CIRB ruled that it had jurisdiction to certify the union as the bargaining agent of the Society's employees, which it did on November 23, 2007.

The Federal Court of Appeal allowed an application for judicial review and set aside the CIRB's certification order.

Writing on behalf of the Court, Justice Edgar Sexton noted that, since Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031 (QL), "provincial jurisdiction over labour relations is the rule, with federal jurisdiction being an exception in circumstances where the employer's normal activities can be characterized as federal undertakings, services, or businesses." The issue then was whether the Society's normal activities "form an integral part of exclusive federal jurisdiction over some other subject matter." The first step of the analysis, he explained, was to determine which level of government had primary legislative competence over the undertaking.

Although the union did not dispute that the provinces have jurisdiction over child services, it argued, as Justice Sexton put it, that "by engaging in activities with a direct impact on relationships within aboriginal families, and in turn aboriginal culture, [the Society] is operating at the so-called 'core of Indianness', and that therefore its labour relations are properly subject to federal jurisdiction." This proposition necessitated a consideration of the doctrine of interjurisdictional immunity, i.e. whether the Child and Family Services Act was inapplicable "insofar as it purports to establish and regulate an aboriginal children's aid society."

The interjurisdictional immunity doctrine, the Court explained, operates to render provincial legislation inapplicable to the extent that it would impair the core of a federal legislative power – in this case, the power over Indians. The requirement of adverse impact was adopted in Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3 (QL), Justice Sexton noted, wherein "the [Supreme] [C]ourt made clear that provincial laws would not be immunized from operation unless they impair the 'basic, minimum, and unassailable content' of a federal head of power; it is not sufficient for the provincial law to merely affect such subject matter, which was the previous test." [emphasis in original]

Having regard to the "new" requirement for impairment, it was unnecessary, in the Court's view, to determine whether family relationships fall within the "core of Indianness" since they were not impaired by the Child and Family Services Act or the operations of the Society. "Indeed, both the Act and the [S]ociety's own mission statement make clear that [the Society] has as one of its major purposes to foster and protect relationships within aboriginal families, aboriginal models of the family, and aboriginal culture more broadly," Justice Sexton observed. "The respondent did not adduce any evidence to suggest that aboriginal family relationships will be impaired, and the Board below did not make any finding of impairment. I am therefore satisfied that even if aboriginal family relationships were found to fall within the 'core of Indianness', there would be no impairment, and interjurisdictional immunity does not apply."

In the result, the Court held that the province had legislative authority over the Society, that its activities did not form an integral part of federal jurisdiction over Indians, and that its labour relations were therefore governed by provincial legislation.

The Society was granted leave to appeal to the Supreme Court of Canada on April 2, 2009.

Issue(s): Does the Ontario Labour Relations Board or the Canada Industrial Relations Board have jurisdiction over certification of a union as bargaining agent for employees of a provincially designated children's aid society providing child protection and family support services to the aboriginal community in Toronto?

Lancaster Reference: For further analysis of the Federal Court of Appeal's decision, see Lancaster's Federal Labour and Employment Law E-Bulletin, July 20, 2009, Issue No. 23.