Office confused authority of police officers with power of band councils for adminsitration of police services

Federal court | Pensions | Private pension plans | Administration of pension plans

Pension for police forces in Indigenous communities. First Nations Public Security Pension Plan provided benefits for police officers, firefighters and special constables (employees) working in Indigenous communities exclusively for employer-members, which were band councils within meaning of Indian Act. Office of Superintendent of Financial Institutions of Canada revised its position by decreeing that employees were not employed in federal undertaking, plan was not registered under Pension Benefits Standards Act (PBSA), and plan would be transferred to provincial authority. Plan administrator and plan manager brought application for judicial review and declaration that employees were employed in federal undertaking and PBSA applied to plan. Application granted. Office incorrectly assumed that policing activities on reserve were under provincial jurisdiction because of nature of police officer’s work, but jurisdiction over labour relations was ancillary jurisdiction, and it was enterprise that must be examined. Fact that employee was “peace officer” under Criminal Code or Police Act did not affect character of his employer’s police activities. Prerequisites for federal regulations to apply were satisfied pursuant to s. 4(2) of PBSA because employees were employed in federal undertaking since employer-members were band councils. Functional test showed that police services were indivisible from governance activities of band council, and Office erred in concluding otherwise. Office failed to correctly identify federal undertaking and incorrectly confused authority given to police officers in exercise of their duties with power conferred on band councils for administration of police services, which led it to erroneously conclude that both powers derived from provincial Police Act. Due to s. 91(24) of Constitution Act, 1867 and federal paramountcy, federal labour and pension plan regulations applied to plan, which did not preclude ss. 90 to 93 of Police Act from also applying.

Picard c. Canada (Procureur général) (2018), 2018 CarswellNat 3828, 2018 CarswellNat 4558, 2018 FC 747, 2018 CF 747, Luc Martineau J. (F.C.).

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