Reasons for decision
Canadian First Nations Police Association,
applicant,
and
Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory,
respondent,
Ontario Provincial Police and Ontario First Nations Police
Commission,
interested parties.
CITED AS: Mohawks of the (Bay of Quinte)
Tyendinaga Mohawk Territory
Board File: 20230-C
Decision no. 89
September 25, 2000
Preliminary constitutional question on whether Crown immunity applies to Ontario Provincial Police (OPP). This question arises within an application for certification pursuant to section 24 of the Canada Labour Code, Part I.
Constitutional jurisdiction - Crown immunity - In Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, [2000] CIRB no. 64; and 2001 CLLC 220-005, the Board made a preliminary finding that the Code applied to the OPP under the terms of a tripartite policing agreement between five Ontario First Nations, the Federal Crown, and the Provincial Crown; the OPP was found to be the employer of First Nations Constables in Ontario absent a successful claim for crown immunity - The Board had to decide whether the OPP was bound by the Code by express mention or necessary implication or whether it had lost entitlement to immunity by virtue of its conduct - The Board applies the Supreme Court of Canada doctrine of implicit waiver of crown immunity - Crown cannot accept benefit of law without also incurring its burdens; however, there must exist a sufficient nexus between the benefit and the burden - The Board finds there is a sufficient nexus between the control of police services on the reserves for purposes of the Ontario Police Services Act and the determination of terms and conditions of employment from which flows the provision of these services; the consequence being the application of federal labour legislation - The Board found a sufficient nexus between the Code and the policing agreement such that Ontario (on behalf of the OPP) has waived its immunity and is subject to the provisions of the Canada Labour Code for those First Nations Police Officers of the Mohawks of (the Bay of Quinte) Tyendinaga represented by the Canadian First Nations Police Association - Certification order issued.
The Board was composed of Ms. Michele A. Pineau, Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (Part I - Industrial Relations), R.S.C., 1985, c. L-2, as am. 1998, c. 26.
Counsel of Record
Mr. Peter Landmann and Ms. Lori Sterling, for the Solicitor General for Ontario; and
Mr. John D. Middlebro, for the Canadian First Nations Police Association.
I - Introduction
[1] In Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, [2000] CIRB no. 64, the Board made an interim finding that, under the terms of the Ontario First Nations Agreement (the Agreement), a tripartite policing agreement between five Ontario First Nations, the Federal Crown represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada (Canada), and the Provincial Crown represented by the Solicitor General for Ontario (Ontario), the Canada Labour Code (the Code) applied to the Ontario Provincial Police (OPP). Consequently, absent a successful claim for Crown immunity, the OPP is the employer of First Nations Constables in Ontario.
[2] Before deciding to issue the bargaining certificate, the Board, in Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, supra, requested additional submissions on the following two questions.
Is the OPP, as an agent of the Crown in right of the province of Ontario,
(a) bound by the Code either by express mention or necessary implication; or
(b) has it lost its entitlement to immunity by virtue of its conduct?
[3] The applicant, the Canadian First Nations Police Association (CFNPA), and Ontario, on behalf of the OPP, filed submissions and provided notice of a constitutional question to the Attorney General of Canada and the Attorneys General of all the provinces and territories. No other submissions were received. The constitutional question of whether Crown immunity applies to the OPP was determined without an oral hearing.
II - The Parties' Arguments
[4] In its submissions, Ontario agrees that the OPP is an agent of the provincial Crown, but takes the position that it is immune from the provisions of the Code and that it has not waived its Crown immunity either explicitly or implicitly. It argues that it has Crown immunity in this case for the following reasons.
a) There are no explicit terms in the Code that bind the provincial Crown with respect to the OPP, as those areas in which the provincial Crown are bound have been set out expressly, such as in sections 5.1, 123 and 167.
b) The Code does not demonstrate a manifest intention to bind the OPP. Contrary to the result of the Federal Court of Appeal decision in Syndicat professionnel des ingénieurs d'Hydro-Québec v. Hydro-Québec, [1995] 3 F.C. 3, which left a labour relations vacuum for a group of employees, Parliament has not enacted explicit sections in order to bind provincial Crown agents that operate nuclear facilities.
c) The purpose of the Code would not be wholly frustrated should the OPP not be bound by its provision. A resulting gap in a legislative regime is not sufficient to weigh against a finding of immunity.
[5] Ontario also submits that to waive its immunity, the Crown must either do so expressly or implicitly by taking advantage of a federal statute or regime. It argues that there is no "tight nexus" between the Agreement entered into by Ontario and the federal labour relations regime under the Code, which would cause to waive its immunity. The cost-sharing arrangement with the federal government does not provide cost savings to Ontario; to the contrary, the Agreement requires an additional expenditure, part of which is absorbed by Ontario. Although the Agreement is intended to benefit reserve residents, there is no "benefit" provided to Ontario or the OPP sufficient to cause it to lose its immunity. Finally, Ontario states that the Crown agreed to subject itself to the advantages and limitations of the Agreement, not the Code; therefore, there is no close nexus between the cost-sharing agreement to fund First Nations Constables and the burdens imposed on the OPP if the Code applies. Ontario denies that it is "cherry picking" beneficial provisions from a statutory regime while at the same time claiming immunity from other closely related provisions of the same regime.
[6] To the contrary, the CFNPA argues that the Agreement necessarily involves the administration of labour relations between the Band and its First Nations Constables and, by participating in the Agreement, Ontario has lost its Crown immunity. It further argues that by negotiating a cost-sharing arrangement for the policing of First Nations, which it alone has the responsibility of servicing, it has received a benefit from the Federal Government for its own use. It submits that the OPP waived its immunity by exceeding its mandate, insofar as it has encroached upon federal jurisdiction by accepting to appoint candidates identified by First Nations, an exclusive federal responsibility over Indians and Indian land reserves. In enacting section 55 of the Police Services Act, which allows the Solicitor General to make other arrangements with the Crown in right of Canada under certain circumstances, Ontario had to have considered the necessity of police officers acting in a federal capacity and, consequently, being bound by the Code.
III - Jurisprudence of the Higher Courts
[7] To set the Board's conclusion in its proper context, an analysis of key decisions is necessary to grasp the jurisprudential evolution of the doctrine of Crown immunity.
[8] In Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015, the Caisse de dépôt, an agent of the Crown in right of Quebec, sought to invoke what was then section 16 [now section 17] of the Interpretation Act against the application of the Canada Business Corporations Act. The Caisse de dépôt held 10% of the share in a federal company (Domtar), but refused to provide an insider report as required under the Act. The Supreme Court held that Crown immunity is not absolute and set down the doctrine of implicit waiver: the Crown cannot accept the benefit of the law without also incurring its burdens; it makes no difference that the benefit and the restriction arise under different statutes; however, there must exist a sufficient nexus between the benefit and the burden. The Supreme Court found that there was a sufficient nexus between holding the shares and complying with the Canada Business Corporations Act. Consequently, the Caisse de dépôt was compelled to produce its insider report, as obviously it could not on the one hand exercise its rights (i.e. to vote) and on the other hand not abide by the obligations with which it did not agree. The interrelationship between the rights and obligations acquired by the purchaser of a share was found to be "so close conceptually and historically" that the Crown was bound by the entirety of the Act.
[9] In Alberta Government Telephones v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 2 S.C.R. 225, CNCP sought an order from the CRTC requiring Alberta Government Telephones (AGT) to provide interconnection services to CNCP for a fee. This request was in keeping with the provisions of the Railway Act, which had previously controlled telegraph service. The CRTC held that AGT, by joining the ranks of Telecom Canada (TCTS), a corporation coming under the CRTC's jurisdiction, had by its actions waived its right to immunity. Before the Supreme Court, AGT argued, inter alia, that it was a provincial Crown agent, not bound by section 16 [now section 17] of the Interpretation Act (the Crown immunity issue), and therefore not within the CRTC's jurisdiction.
[10] The Supreme Court once more confirmed the doctrine of implicit waiver, also known as the benefit-burden doctrine, but found that while AGT might receive many benefits from the CRTC by way of connecting agreements, it would be "stretching the doctrine too far" to hold that AGT, by its sole participation in agreements with TCTS, submitted itself to the CRTC's jurisdiction.
[11] In a companion decision, IBEW v. Alberta Government Telephones, [1989] 2 S.C.R. 318, the Supreme Court held that although AGT was a federal work or undertaking under section 92(10)(a) of the Constitution Act, section 16 [now section 17] of the Interpretation Act applied because there was no clear Parliamentary expression in the Code to bind AGT as agent of the Alberta Crown. It also found that AGT had not waived its immunity, since no connection could be drawn between AGT's activities and the relevant provisions of the Code. AGT had not exceeded its statutory mandate when it entered into the various interconnecting agreements as a part of Telecom Canada.
[12] In 1993, the Supreme Court decided in Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327, that the Code applied to labour relations in the nuclear energy industry as a result of section 18 of the federal Atomic Energy Control Act. A few days later, the engineers' union at Hydro- Québec applied for certification under the Code. The then CLRB in Hydro-Québec (1994), 95 di 34 (CLRB no. 1080), held that as an agent of the Crown, Hydro-Québec enjoyed immunity conferred by section 17 of the Interpretation Act and was not bound by the Code either by express mention or by necessary implication. It further held that Hydro-Québec did not act outside its mandate by entering into a federally regulated field. The fact that Hydro- Québec was bound by the scheme of the Atomic Energy Control Act or that it had entered into a collective agreement were not evidence that Hydro-Québec waived its immunity. Consequently, the engineers covered by the application were in a legislative vacuum to which neither the Quebec Labour Code nor the Canada Labour Code applied.
[13] The Federal Court of Appeal upheld the Board's decision in Syndicat professionnel des ingénieurs d'Hydro-Québec v. Hydro- Québec, supra, and called upon Parliament to amend the Code to fill the legislative vacuum. Justice Décary, speaking on behalf of the Court, relied on the fact that AGT, supra, had been decided by the Supreme Court on the basis that it had not waived its right to Crown immunity solely by entering into interconnecting agreements with a national telecommunications network governed by the Railway Act and regulated by the CRTC. In his mind, the immunity is ever the more so preserved when the regulatory body from which it purports to receive benefits, here the CLRB, is not even mentioned in the Atomic Energy Control Act. Consequently, Justice Décary could not find that all important "tight nexus" between the advantages and the obligations in a situation where the legislation itself does not call upon the Board to regulate that industry. He therefore concluded that there was no connection between the activities of Hydro-Québec as a federal work or undertaking and the provisions of Part I of the Code.
IV - Analysis and Decision
[14] The Board is faced here with competing interests that it must balance against the objectives of the Code and the doctrine of Crown immunity that has evolved from the higher courts. On the one hand, Ontario seeks to uphold the immunity of the Crown; on the other hand, the CFNPA seeks to apply the Code to the OPP on the basis that it has lost its immunity by entering into the Agreement. Ontario is of the view that the waiver exception does not apply because there is an insufficient link between the Code and the Agreement and because the Crown does not receive any benefit from the federal legislation.
[15] According to section 17 of the Interpretation Act, the Crown is not bound or affected unless expressly stated in the regulatory scheme:
17. No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty's rights or prerogatives in any manner, except as mentioned or referred to in the enactment.
[16] We have learned from AGT, supra, that this section applies to both the federal and provincial Crowns. In the past, arguments that the Code cannot apply to the Crown, absent express mention or by necessary implication, as argued in Hydro- Québec, supra, have been successful. It is also well known that Parliament stepped in shortly thereafter to amend the Code by adding section 121.1.
[17] In the instant case, the CFNPA suggests that, by entering into the Agreement, the OPP overstepped its mandate by venturing into a federal business. Nonetheless, section 19 of the Ontario Police Services Act, R.S.O., 1990, ch. P.15, states that the mandate of the OPP is to " 1. [Provide] police services in respect of the parts of Ontario that do not have police forces other than law enforcement officers." Hence, the OPP has not compromised itself in an ultra vires act; Indian reserves are not federal enclaves immune from provincial legislation as was stated in Cardinal v. Canada, [1992] 4 C.N.L.R. 1 (F.C., T.D.).
[18] To decide whether the doctrine of waiver applies in this case, a benefit-burden analysis must be applied, as set forth by Justice La Forest, citing a passage from Collin H.H. McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (Toronto: University of Toronto Press, 1977):
It is not essential... that the benefit and the restriction upon it occur in one and the same statute for the notion of crown submission to operate. Rather, the crucial question is whether the two elements are sufficiently related so that the benefit must have been intended to be conditional upon compliance with the restriction.
(page 11; cited at page 1025 of Sparkling, supra; emphasis added)
[19] In the Board's view, the circumstance that distinguishes the OPP from AGT is that the OPP has compromised itself by signing a tripartite Agreement that incorporates, among other provisions, a labour relations regime for police services on the reserve. This is a labour relations regime in the sense that salaries and benefits are outlined, the hiring process is detailed, duties and training for First Nations Constables is set out, and a procedure for dealing with the discipline of First Nations Constables is incorporated. In AGT, the Supreme Court had to walk a fine line between AGT's commercial activities and the corollary advantages derived as part of a large telecommunications network regulated by the CRTC. The Supreme Court found that belonging to the network did not compromise AGT's immunity. In other words, as long as AGT stayed within the bounds of its legislated mandate, it was not waiving its right to immunity. That is not the case here. The Agreement at paragraph 33 purports to decide who is the employer under the various policing arrangements:
33.(a) Where a First Nations Government or group of First Nations Governments takes responsibility for a First Nations Police Service referred to in subparagraph 4 (a) (i) or 4 (a) (ii), then, unless arrangements are made to the contrary, the administration of that First Nations Police Service shall be the responsibility of the relevant First Nations police governing authority which shall be the employer of its First Nations Constables and civilian staff, recognizing and accepting the responsibilities and obligations that are placed upon employers by law.
(b) The OPP or other police service involved shall continue to share responsibility for the administration of policing arrangements with those First Nations Governments that choose not to establish their own police services under sub-paragraph 4 (a) (i) or that choose not to become part of a First Nations regional police service under sub-paragraph 4 (a) (ii).
(c) In arrangements referred to in sub-paragraphs 4 (a) (iii) or 4 (a) (iv), the First Nations Government shall be the employer of the First Nations Constables and civilian staff and the Commissioner or relevant Chief of Police shall administer First Nations policing arrangements jointly with the First Nations Governments concerned.
(d) For the purposes of this paragraph "administration" includes the responsibility for the payment of salaries, and wages, employee benefits and other operating expenses incurred by the First Nations police service.
(e) Police governing authorities taking control of administration of police services under subparagraph 33 (a) shall maintain such books and records and employ such procedures and safeguards as are mandatory in the case of funds allocated under the authority of Parliament and the Legislature respectively.
(f) Nothing in this paragraph shall prevent more specific arrangements being entered into by the parties to First Nations policing arrangements.
(pages 27-29; emphasis added)
[20] While Ontario, Canada and the First Nations may enter into agreements to provide for policing services on the reserves and for sharing the administration of those services, the fact that they designated who they consider to be the employer of the First Nations Constables does not remove from the Board's jurisdiction the responsibility for interpreting and deciding matters regarding the application of section 4 of the Code in relation to labour relations for works or undertakings under section 2, namely paragraph (i), as a result of section 81(1)(c) of the Indian Act.
[21] Were this not the case, parties could by simple contract exclude the application of federal legislation from their labour relations, which would allow them to create their own labour code. As stated in the Code's Preamble, the development of good labour relations and constructive collective bargaining practices have been declared to be in the best interests of Canada; therefore, there is no argument to be made that it has ever been Parliament's intention to allow for individual regimes of labour relations to supersede the Code.
[22] In Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, supra, the Board found not only that the Code governs the labour relations of the Band, its First Nations Constables, but also that subparagraph 33(b) and not 33(c) applied to the fact situation involving the OPP and the Mohawks of (the Bay of Quinte) Tyendinaga. Consequently, it determined that the OPP is the employer within the meaning of the Code. The Board did not decide that the parties could not arrange their labour relations to suit the realities of policing on reserves, it decided that to the extent that the OPP controlled working conditions, including its financial aspects, and that the Band's decisions were subject to theveto of the OPP Police Commissioner, the OPP came under federal jurisdiction for the administration of a collective bargaining regime with First Nations Constables.
[23] Accordingly, the Board agrees with the view taken by Professor François Chevrette in his published commentary that the outcome in AGT would likely have been different had there existed a contract, which was the missing link in the chain. Professor Chevrette underlines this aspect as follows (see Le téléphone et la Constitution (1990), 24 R.J.T. 185):
... In a passage reproduced with the consent of the Chief Justice of Canada, Justice Reed noted that CN-CP was not a member of the Telecom consortium. She added that, if that had been the case, and its application was in any way related to an agreement to which AGT was a party, the outcome could have been different. In that case, in fact, it would have been possible to consider CN-CP and AGT as co-contractors: AGT would take advantage of the contract approved by the CRTC concerning its partner and could be deemed to have accepted, as a correlative duty, the partner's powers and their impact. ...
(page 196; translation; emphasis added)
[24] It is the Board's finding that the Agreement is that missing link in the chain that brings labour relations under the Agreement and accordingly under the Board's purview.
[25] The CFNPA submits that the OPP benefits from federal financing to which it would not otherwise have access, were it not for the tripartite Agreement. Ontario takes the position that the Crown receives no benefits from the Code, the Agreement or any other federal legislation; therefore, there is no "tight nexus."
[26] In A.G. Alberta v. Putnam, [1981] 2 S.C.R. 267, the Supreme Court was called upon to review the constitutional authority of Alberta's police services in disciplining RCMP police officers contracted to deliver police services in the province. Chief Justice Laskin found that there was no distinction to be made between the enforcement of criminal law, provincial law or municipal by-laws. Indeed, he saw some provincial benefit under the policing agreement and suggested that if the province was not satisfied with the services provided by the RCMP, it could change the agreement at will.
[27] In Sappier v. Tobique Indian Band (Council) (1988), 87 N.R. 1 (F.C.A.), Justice Desjardins, speaking about federal-provincial agreements in respect of health, education, social services and other services, recognized an implicit advantage in attracting federal funds by concluding agreements that foster the autonomy of First Nations. Similarly, the Board sees an important advantage in the OPP managing police services on reserves.
[28] Ontario exercises its authority to provide police services on reserves within the province in one of two ways: either by delegation to the Band Council by Canada, or subsidiarily by contract between itself and Canada. In either case, both the federal and provincial authorities exercise a fiduciary duty of the Crown towards First Nations. In Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, supra, the Board observed that the Indian Act delegated certain powers to band councils, inter alia those under section 81(1)(c) for the maintenance of law and order on the reserve. In Whitebear Band Council v. Carpenters Prov. Council of Sask., [1982] 3 W.W.R. 554 (Sask. C.A.), Justice Cameron describes this delegation as follows:
More specifically, s. 81 of the Act clothes Indian band councils with such powers and duties in relation to an Indian reserve and its inhabitants are usually associated with a rural municipality and its council: a band council may enact by-laws for the regulation of traffic, the construction and maintenance of public works, zoning, the control of public games and amusements and of hawkers and peddlers, the regulation of the construction, repair and use of buildings, and so on. Hence a band council exercises – by way of delegation from Parliament – these and other municipal and governmental powers in relation to the reserve whose inhabitants have elected it.
I think it worth noting that the Indian Act contemplates a measured maturing of self-government on Indian reserves. ... and by s. 83 the Governor in Council may declare that a band "has reached an advanced stage of development", in which event the band council may, with the approval of the minister, raise money by way of assessment and taxation of reserve lands and the licensing of reserve businesses. Until then, the band council derives its funds principally from the government of Canada.
(pages 559-560)
[29] Therefore, until self-government is reached, band councils cannot enter into agreements concerning police services without exercising a delegated power under the Indian Act. Ultimately, the power to constitute a policing service on a reserve that flows from the Indian Act can only be delegated by the Minister of Indian and Northern Affairs to either a band council or another entity designated to provide such services. Thus, in keeping with the spirit of the agreement, the band council may at any time, with the Minister's authorization, opt for a different policing service, such as an adjoining municipal police service, the RCMP, or create its own service. These alternate police services would have the power to apply the Criminal Code on the Bay of Quinte reserve through a contract between the Band Council and the Minister of Indian and Northern Affairs (see Paul Band v. R., [1984] 1 C.N.L.R. 87; and Putnam, supra). As there is no ground for finding that Ontario has exclusive jurisdiction to provide for police services, there must be some other advantages to enter into such a program even where the costs of the program is not completely covered by Canada.
[30] The Board is of the view that by entering into the tripartite Agreement, Ontario was given the opportunity for a more uniform and integrated system to ensure the administration of justice for all the residents of the province, along with financial assistance in setting up this system. Thus, Ontario is able (i) to work cooperatively with First Nations and provide culturally sensitive policing, which contributes to the safety and security of the people of Ontario (Preamble); (ii) to negotiate and enforce mutually acceptable guidelines to deal with law enforcement issues (paragraph 27), including police pursuits, notice for entry to First Nations Territory for investigative and other law enforcement-related purposes, emergency and extraordinary entry and so on (paragraph 28); (iii) to obtain the cooperation between First Nations police services, the OPP and municipal forces for the enforcement of provincial laws on reserves (paragraph 29); and (iv) to receive from Canada 52% of the cost relating to delivering such a program (paragraphs 34 to 48 inclusive).
[31] As in Sparling, supra, the Board finds that there is a sufficient nexus between the control of police services on the reserves for the purposes of the Police Services Act and the determination of the terms and conditions of employment from which flows the provision of these services. If Ontario chooses to negotiate and take control over the provision of police services on the reserves (the benefit), it must accept the consequences of the applicable labour legislation (the burden), in this case, federal jurisdiction. The interrelationship between the benefits and the burden are "so close conceptually and historically" that the true employer whether found to be the Band Council or the OPP must accept to be bound by the Code.
[32] Considering the facts of the instant case, the Board has some difficulty comprehending the Attorney General's contention that there is no benefit to the province under the Agreement. In Putnam, supra, Chief Justice Laskin identified the essence of a policing arrangement between Alberta and the RCMP in the following terms:
I should like to say, before disposing of this appeal, that I recognize that there is a provincial interest in policing arrangements under this or any other contract between the Province and the R.C.M.P. The Province, by this contract, has simply made an en bloc arrangement for the provision of policing services by the engagement of the federal force rather than establishing its own force directly or through a municipal institution. The performance of the parties under the agreement of their respective roles is, of course, a matter of continuing interest to the parties if for no other reason than the constant contemplation of renewal negotiations. The Province of Alberta, for example, must have a valid concern in the efficacy of the arrangement, not only from an economic or efficiency viewpoint, but also from the point of view of the relationship between the Government of Alberta through its policing arrangements and the community which is the beneficiary of those police service arrangements. This, however, is a far cry from the right of one contracting party to invade the organization adopted by the other contracting party in the delivery of the services contracted for under the arrangement. This is so apart altogether from any constitutional impediment so clearly raised here as it was in Keable, supra. I say this not so as to narrow the impact of the observations on the issue directly raised in this appeal, but to contrast the position of the R.C.M.P. as a federal institution with the provincial interest in the provision of policing services throughout the Province. Here there can be no suggestion of finding a root in that provincial interest for the various subsections of s. 33 to which I have already adverted.
(page 278; emphasis added)
[33] Now, it could be argued that, since the RCMP did not lose its immunity in Putnam, the same logic should be applied to the OPP. Moreover, the waiver doctrine seems to apply only to provincial entities. Henri Brun and Guy Tremblay analysed the case law under section 17 of the Interpretation Act in Droit constitutionnel, 3rd ed. (Cowansville: Ed.Yvon Blais, 1997):
As we are dealing with the legal consolidation of a governmental prerogative, we would have been justified in believing that in a federal regime, a legislature can only act for its government. This government is in fact the direct objective of a statute, and not some part that is affected subsidiarily by the impact of a statute dealing with another matter. In federal law, as we have seen in chapter VI, the objective is the criteria for jurisdiction.
However, that is not the direction taken by the Supreme Court: A.G.T. v. C.R.T.C., supra. The Court found in that case that section 16 of the federal Interpretation Act applied to the provincial government, and helped the governement gain some benefits due to the absence of express mention of the government in the federal statute in question. It stated that provincial immunity is neither necessary nor desirable.
The question at issue is the following: will the Supreme Court accept as easily the converse? Will it accept that the mention of the government in a provincial statute would ensure that the federal government would be bound by that statute? Will it accept that the federal government be bound by a Quebec statute of general application, even without mention, because that statute does not affect the rights or prerogatives of the federal government? We doubt that very much, because the Supreme Court has a tendency to consider that the federal government has complete immunity with respect to provincial legislation: Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61; Attorney General (Que.) and Keable v. Attorney General (Can.) et al., [1979] 1 S.C.R. 218. See also The Queen v. Lefebvre, [1980] 2 F.C. 199 (C.A.).
(page 719; translation; emphasis added)
[34] In Syndicat professionnel des ingénieurs d'Hydro-Québec v. Hydro-Québec, Justice Décary refers to an intentional element whereby Hydro-Québec must have known that its immunity was being compromised when it signed the collective agreement with all its engineers in the province, with the consequent ramifications on Gentilly II. However, because of the absence of a nexus between the Atomic Energy Act and the Code, he did not find the intentional element present in that case. That finding does not mean that the element is irrelevant here. What then was OPP's intention when it signed the Agreement?
[35] On the basis of paragraph 43 of the Agreement, Ontario took the position that by designating the Band Council as the employer under subparagraph 33(c), it protected itself from encroaching on federal jurisdiction because of the application of the Indian Act:
43. Nothing in this Agreement shall be construed so as to affect, prejudice or derogate from aboriginal, treaty, constitutional or any other rights, privileges or freedoms which have accrued to or may accrue to any First Nations regardless of whether such rights, privileges and freedoms are recognized, established and defined before or after the execution of this Agreement.
[36] To this extent it considered that it was not compromising its immunity. However, it went one step too far by formalizing the conduct of labour relations, the missing link in AGT. Contrary to Hydro-Québec, the Board finds that the intentional element was present here.
[37] The Board is not bound by the parties' best wishes, but by constitutional realities and the parameters of the Code. While it was Ontario's intent not to be recognized as the employer for the purposes of the Agreement, as the Board found in Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, supra, the options anticipated in the Agreement were never substantiated thereafter by the facts, at least in the case of the Mohawks of the Bay of Quinte. Hence, the intent present at the time of the Agreement has evolved in a different situation where the OPP has been recognized by the Board as the true employer. As Chief Justice Laskin suggested in Putnam, supra, if the OPP is not happy with this outcome, perhaps this is time to renegotiate the terms of the Agreement.
[38] Accordingly, the Board finds a sufficient nexus between the Code and the Agreement, such that Ontario has waived its immunity and is subject to the provisions of the Canada Labour Code, for those First Nations Police Officers of the Mohawks of (the Bay of Quinte) Tyendinaga represented by the Canadian First Nations Police Association.
[39] The Board, therefore, issued the certification order that follows.
Order No.: 7903-U
IN THE MATTER OF THE
Canada Labour Code
- and -
Canadian First Nations Police Association,
applicant union,
- and -
Mohawks of the Bay of Quinte Tyendinaga Mohawk Territory,
Tyendinaga Mohawk Territory, Ontario,
employer.
WHEREAS the Canada Industrial Relations Board has received an application for certification from the applicant union as bargaining agent for a unit of employees of Mohawks of the Bay of Quinte Tyendinaga Mohawk Territory, pursuant to Section 24 of the Canada Labour Code (Part I - Industrial Relations);
AND WHEREAS, following investigation of the application and consideration of the submissions of the parties concerned, the Board has found the applicant to be a trade union within the meaning of the Code and has determined the unit described hereunder to be appropriate for collective bargaining and is satisfied that a majority of the employees of the employer in the unit wish to have the applicant trade union represent them as their bargaining agent.
NOW, THEREFORE, it is ordered by the Canada Industrial Relations Board that Canadian First Nations Police Association be, and it is hereby certified to be, the bargaining agent for a unit comprising:
"all police officers in the Tyendinaga First Nations Police Service at the Mohawks of the Bay of Quinte Tyendinaga Mohawk Territory."
ISSUED at Ottawa, this 25th day of September 2000, by the Canada Industrial Relations Board.
(s) Michele A. Pineau
Vice-Chairperson
Reference: File No. 20230-C
CASES CITED
Alberta Government Telephones v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 2 S.C.R. 225
A.G. Alberta v. Putnam, [1981] 2 S.C.R. 267
Band (Paul) v. R., [1984] 1 C.N.L.R. 87
Cardinal v. Canada, [1992] 4 C.N.L.R. 1 (F.C., T.D.)
Hydro-Québec (1994), 95 di 34 (CLRB no. 1080)
IBEW v. Alberta Government Telephones, [1989] 2 S.C.R. 318
Le téléphone et la Constitution (1990), 24 R.J.T. 185
Mohawks of the (Bay of Quinte) Tyendinaga Mohawk Territory, [2000] CIRB no. 64; and 2001 CLLC 220-005
Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327
Sappier v. Tobique Indian Band (Council) (1988), 87 N.R. 1 (F.C.A.)
Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015
Syndicat professionnel des ingénieurs d'Hydro-Québec v. Hydro-Québec, [1995] 3 F.C. 3 (C.A.)
Whitebear Band Council v. Carpenters Prov. Council of Sask., [1982] 3 W.W.R. 554 (Sask. C.A.)
STATUTES CITED
Canada Labour Code, Part I, ss. 2; 4; 14(3)
Indian Act, s. 81(1)(c)
Interpretation Act, s. 17
Ontario Police Services Act, s. 19