Federal Appeal


Constitutional Law

DISTRIBUTION OF LEGISLATIVE AUTHORITY
Labour relations of First Nation Police Service were provincially regulated

First Nation established First Nation Police Service under management of applicant, to provide effective, efficient and culturally appropriate police services for people of First Nation area. Canada Industrial Relations Board, acting under Canada Labour Code, certified respondent as bargaining agent for two bargaining units of employees working for applicant. Certification orders were based, in part, on view that labour relations of First Nation Police Service were federally regulated. After Supreme Court of Canada released two decisions, applicant thought that labour relations of First Nation Police Service might be provincially regulated and it applied to board to set aside certification orders. Board upheld certification orders, finding that labour relations of First Nation Police Service were federally regulated. Applicant applied for judicial review. Application granted. There was presumption that labour relations were provincially regulated. In order to rebut presumption, nature, operations and habitual activities of entity had to be examined to determine whether it constituted federal undertaking. Essential nature and function of First Nation Police Service was to provide policing services and was matter within provincial sphere. Presumption had not been rebutted. Status of being First Nation constable flowed directly from Police Services Act and not any federal law. First Nation constables had powers of police officer for purposes of carrying out duties. Appointment of First Nation constable allowed them to exercise policing authority only in Ontario, but First Nation Police Service was not limited to policing on reserves. Recruits had to train through Ontario Police College. First Nation constables performed essentially same functions as Ontario Provincial Police officers. First Nation Police Service was functionally integrated with OPP. First Nation Police Service was independent and autonomous from First Nation. Fact that First Nation Police Service had to deliver policing services in culturally sensitive way did not rebut presumption that labour relations of First Nation Police Service were provincially regulated. First step of inquiry was conclusive. Nature, habitual activities and daily operations of First Nation Police Service were provincial in nature and labour relations of First Nation Police Service were provincially regulated. Board did not have authority to make certification orders and they were set aside. Nishnawbe-Aski Police Service Board v. PSAC (Oct. 2, 2015, F.C.A., J.D. Denis Pelletier J.A., David Stratas J.A., and Wyman W. Webb J.A., File No. A-432-13) 258 A.C.W.S. (3d) 190.

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