Reasons for decision

Hospital Employees’ Union,

complainant,

and

Gitxsan Health Society,

respondent.

 

The Canada Industrial Relations Board (the Board) was composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. Robert Monette and Daniel Charbonneau, Members.

Parties’ Representatives of Record

Ms. Sam Black, for Hospital Employees’ Union;

Mr. Terry Honcharuk, for Gitxsan Health Society.

These reasons for decision were written by Mr. Robert Monette, Member.

I. Nature of the Complaint and Preliminary Constitutional Issue

[1] On February 27, 2014, the Hospital Employees’ Union (the union) filed a complaint with the Board alleging that Gitxsan Health Society (the employer) was acting in contravention of the provisions of section 50(a) of the Canada Labour Code (Part I–Industrial Relations) (the Code) by failing to meet with the union and by failing to make itself available to bargain the renewal of their collective agreement after bargaining notice was properly given.

 

[2] By its Response dated April 11, 2014, the employer denies being in contravention of section 50(a) of the Code, alleging that the delay in its availability is due to the scheduling of related collective bargaining sessions involving its mandated representative with other health institutions of neighbouring first nations. The Response also specifically raises the employer’s contention that federal labour legislation does not apply to the relations between itself and the union, and that the original certification order issued in 1996 by the Canada Labour Relations Board (the CLRB) (the predecessor of the Board) should now be cancelled by reason of lack of constitutional jurisdiction, as was recently articulated by the Supreme Court of Canada (SCC) and by the Board in decisions involving similar matters. 

[3] The union replies by stating that the Board continues to have constitutional jurisdiction until a final decision is made by a court, if ever one is made, that it lacks constitutional jurisdiction. Because no such decision has yet been made, the Board should, according to the union, rather address and remedy the apparent contravention of the Code by the employer’s continued refusal to immediately undertake collective bargaining towards the renewal of the collective agreement.

[4] At that point of the process, the Board proceeded to examine the issues at play raised in the pleadings and issued an interim decision on June 16, 2014 (Gitxsan Health Society, 2014 CIRB LD 3236), setting as follows the course it intended to pursue in the determination of the issues:

The Board has reviewed the parties’ submissions in the above file and has decided to consider first the jurisdictional issue. While that issue could have been raised earlier by either party, this is not the only case where recent Supreme Court of Canada decisions require the Board to conduct a second analysis of a fundamental issue.  

(page 2)

[5] As the constitutional facts on record were not disputed, the Board invited the parties to file additional submissions, if any, in support of their respective position. By letter dated August 14, 2014, the Board confirmed to the parties that it had received their further submissions on the constitutional jurisdiction issue and that, as contemplated by section 16.1 of the Code, the Board was satisfied that the documentation before it was sufficient for it to decide the issue without holding an oral hearing.

[6] The Board then directed the employer, in compliance with section 57 of the Federal Courts Act, to serve on all Attorneys General of Canada a notice of the constitutional jurisdiction issue with copies of all the parties’ pleadings and of all the directives from the Board. The record establishes that the service of the notice and of the documentation was indeed accomplished by the employer. The Attorneys General were invited to file their submissions, if any, with the Board but none elected to do so.   

II. Overview of the Constitutional Facts and of Previous Applicable Decisions

[7] Since July 5, 1996, the union is the certified bargaining agent for a unit described as follows by the CLRB in its certification Order No. 7208-U:

all employees of Gitxsan Treaty Society, as represented by the Gitxsan Health Authority engaged in providing community health services in the Province of British Columbia, excluding the Executive Director, Regional Managers and the medical doctors.

[8] On June 16, 2004, the Board modified the certification by its Order No. 8672-U, wherein it updated the name of the employer and some of the excluded position titles such that it now reads:

all employees of Gitxsan Treaty Society, as represented by the Gitxsan Health Society engaged in providing community health services in the Province of British Columbia, excluding the chief executive officer, executive assistant (executive secretary) to the chief executive officer, home and community care director, registered nurses and the medical doctors.

[9] The evidence submitted by the parties establishes that the employer was and continues to be a not for profit society, incorporated under the British Columbia Society Act, providing health care services since 1995 at various centers in the Hazelton region of British Columbia in a culturally sensitive manner to a population largely composed of members of the Gitxsan and We’suwet’en First Nations.

[10] The bargaining unit presently comprises some 37 employees holding various titles ranging from health related functions to administrative functions. Since 2013, the necessary funding of the operations comes through the First Nations Health Authority (FNHA), an institution fully regulated provincially and responsible for the funding, planning and delivery of health programs formerly provided in British Columbia by Health Canada’s First Nations Health Branch, Pacific Region. Funding also comes through the B.C. Ministry of Children and Family Development which administers the Child, Family, and Community Service Act, as well as regulates and monitors some of the employer’s operations.

[11] The services provided by the employer include home support, community health nursing, basic dental services, mentoring, counselling services for general and mental health as well as patient travel services and home skills training.

[12] The employer is governed by a board of directors made up of representatives of the reserve communities that it services, as well as off-reserve representatives. This board of directors oversees the operations but the day-to-day management is performed by the excluded managers and staff members. There is no evidence that Band Councils have any direct connection with the employer’s operations and services.

[13] As early as 1996, the CLRB had to determine the question of the applicable constitutional jurisdiction to the present parties, a question that was then raised by the employer as part of the processing of the original application for certification brought by the union.

[14] In its letter decision Gitxsan Treaty Society, as represented by the Gitxsan Health Authority, July 5, 1996 (LD 1552), the CLRB ruled, in accordance with the prevailing jurisprudence at that time, that the federal funding of health services then offered to Indians and the constant direction and oversight performed by the Minister of Health for Canada brought the employer’s activities to be considered an integral part of the primary federal jurisdiction over Indians and lands reserved for Indians. The CLRB found accordingly that it possessed constitutional jurisdiction and granted the certification application as described at paragraph 7 above.

[15]  By letter decision Gitxsan Treaty Society, as represented by the Gitxsan Health Authority, 1999 CIRB LD 48, the Board refused to allow the employer to re-argue its constitutional objection to the jurisdiction of the Board in the context of an unfair labour practice complaint. The Board stated its reason to not entertain a renewed challenge to its jurisdiction at page 2 of the decision:

Accordingly, the Board has made a final determination that it has constitutional jurisdiction to regulate the employer’s labour relations. It has decided the issue as between these parties and Board decisions are final and binding on the parties concerned. In the Board’s view, parties should not be permitted to undermine Board decisions or delay their finality by repeatedly litigating the same issue.

[16] The issue of constitutional jurisdiction is now raised anew by the employer as a preliminary objection to the jurisdiction of the Board to hear the present complaint, an objection that is made in the context of two recent cases decided by the SCC, namely, NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (NIL/TU,O); and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto, 2010 SCC 46 (Native Child).

III. Positions of the Parties on the Jurisdictional Issue

A.The Employer

[17] The employer submits that the NIL/TU,O decision of the SCC, supra, conclusively determined that a society, very similar to itself in also providing health services to First Nations populations, was clearly engaged in a constitutionally provincial undertaking and that the presumption in favour of the provincial jurisdiction over labour relations was not rebutted in comparable circumstances to the present matter.

[18] The employer submits that, in applying the “functional test” as is now prescribed by the SCC, the Board should conclude that the provincial legislation applies because its activities and status are similar to those that the SCC found to be provincially regulated. The employer states that it is now settled law, that the test and resulting conclusion prescribed by the SCC have now been adopted by lower tribunals and by the Board itself in a number of instances following the NIL/TU,O decision. As a necessary consequence of the application of these precedents, the employer submits that the Board should now find that the original certification order was improperly issued under the federal labour legislation regime and that the order should therefore be cancelled.

[19] The employer relies on the merits of the reasons and conclusions of the SCC and on the recent decisions of the Board in Dilico Anishinabek Family Care, 2012 CIRB 655 (RD 655) (Dilico); and in Oneida of the Thames EMS, 2011 CIRB 564 (Oneida).

[20] The employer also relies on Dilico as having confirmed the principle that the constitutional jurisdiction of the tribunal is a question that can legitimately be raised at any time by any party and is a question that calls for a determination that is not subject to a procedural or statutory time limitation.

[21] The employer asks the Board to declare that it is therefore without jurisdiction to determine the union’s complaint and declare that the 1996 certification (as subsequently amended) is accordingly rescinded.

B. The Union

[22] The union submits that the objection raised is a diversionary tactic intended by the employer to avoid having to face the merits of the complaint.

[23] The union does not dispute the constitutional facts enunciated by the employer, but it points out that there is no proper process in play in the employer’s response to the complaint that could allow the constitutional jurisdiction of the Board to be legitimately questioned when no proper notice pursuant to section 57 of the Federal Courts Act was originally served by the employer at the time it raised the objection.

[24] The union submits that there presently exists no pending reconsideration application under section 18 of the Code, and there exists no pending judicial review process aimed at the original certification order such that there is no legal justification for the Board to examine its jurisdiction, a competence that has been recognized and has been in effect since the 1996 certification order.

[25] The union submits that the Board continues to have jurisdiction until and unless a court’s decision might eventually remove such jurisdiction, and that it should therefore dismiss the jurisdictional objection and proceed to determine the merits of its complaint.

IV. Analysis and Decision

[26] Dealing first with the appropriateness to entertain a constitutional challenge without consideration for a procedural, statutory or regulatory time restriction, the Board examined this specific issue in its interim decision in Dilico. It ruled that an application for review, requesting a reexamination of its jurisdiction (based on the same recent SCC decisions of NIL/TU,O and Native Child) is not governed by the time limit set out for the general reconsideration process and that it is therefore not untimely, even if many years had elapsed since the original decision. 

[27] The Board commented as follows in Dilico:

[37] The Board either has constitutional jurisdiction over parties’ labour relations or it does not. SCC decisions like those described above, could, depending upon the case, take away a jurisdiction that this Board had otherwise exercised for decades. Such is the natural impact of the SCC’s constitutional law decisions.

[38] As a result, the Board confirms the timeliness of Dilico’s application requesting a reexamination of jurisdiction in light of the SCC’s recent Nil/TU,O, supra, and Native Child, supra, decisions.

[28] In the Board’s view, the same comments and determination also apply to the timeliness of a constitutional reexamination request made as part of a response (such as here), rather than contained in an application on its own. The procedural vehicle used to raise the issue does not diminish the admissibility of the constitutional challenge, nor does it alter the resulting assessment that must be undertaken in conformity with the guiding principles laid down by the SCC, in order to correctly identify the applicable legislative regime.   

[29] The Board therefore finds that the need to reexamine its jurisdiction in the present matter has been properly raised following the recent SCC decisions and that a fresh determination is warranted.

[30] In the Board’s view, the services provided by the employer are indeed very similar to those that were considered by the SCC in both the NIL/TU,O and Native Child decisions, supra, which were issued more than fifteen years after the certification order and the original jurisdictional assessment made in 1996.

[31] In considering the NIL/TU,O activities, the SCC declared that the “functional test” is the proper test to be applied:

 [18] In other words, in determining whether an entity’s labour relations will be federally regulated, thereby displacing the operative presumption of provincial jurisdiction, Four B requires that a court first apply the functional test, that is, examine the nature, operations and habitual activities of the entity to see if it is a federal undertaking. If so, its labour relations will be federally regulated. Only if this inquiry is inconclusive should a court proceed to an examination of whether provincial regulation of the entity’s labour relations would impair the core of the federal head of power at issue.   

[32] Using the “functional test,” Justice Abella concluded that the essential nature of the operation of this child service was a matter that fell within provincial jurisdiction:

[45] The essential nature of NIL/TU,O’s operation is to provide child and family services, a matter within the provincial sphere. Neither the presence of federal funding, nor the fact that NIL/TU,O’s services are provided in a culturally sensitive manner, in my respectful view, displaces the overridingly provincial nature of this entity. The community for whom NIL/TU,O operates as a child welfare agency does not change what it does, namely, deliver child welfare services. The designated beneficiaries may and undoubtedly should affect how those services are delivered, but they do not change the fact that the delivery of child welfare services, a provincial undertaking, is what it essentially does.

[33] In the same NIL/TU,O decision, Chief Justice McLachlin considered the link between these health activities and the federal power over “Indians”:

[70] We may therefore conclude that the core, or “basic, minimum and unassailable content” of the federal power over “Indians” in s. 91(24) is defined as matters that go to the status and rights of Indians. Where their status and rights are concerned, Indians are federal “persons”, regulated by federal law: see Canadian Western Bank, at para. 60.

...

[74] The question is whether the normal and habitual activities of the Indian operation at issue go to the status and rights of Indians, which reflect the fundamental federal responsibility for Indians in the Canadian constitutional and historical context. Only if the operation’s normal and habitual activities relate directly to what makes Indians federal persons by virtue of their status or rights can provincial labour legislation be ousted, provided the impact of the provincial legislation would be to impair this essentially federal undertaking.

...

[76] The function of NIL/TU,O is the provision of child welfare services under the umbrella of the province-wide network of agencies providing similar services. The ordinary and habitual activities of NIL/TU,O do not touch on issues of Indian status or rights. The child welfare services therefore cannot be considered federal activities.

  

[34] The Board finds that the health services activities of the employer as described in the present matter are of the same nature as those examined in the NIL/TU,O decision and bring about the same results after applying the prescribed “functional test”: the essential nature of the activities here is to provide health services, a matter clearly within the provincial sphere of constitutional jurisdiction, activities that do not impact the status and rights of Indians and therefore do not result in impairing the core of the federal constitutional power.

[35] In Oneida, supra, the Board was also asked to reexamine its competence in light of the NIL/TU,O principles. The Board relied on the “functional test” as prescribed by the SCC and found that a land ambulance activity servicing mostly aboriginal patients was nonetheless a provincially regulated activity; the Board proceeded to rescind its original certification order as having been issued without constitutional jurisdiction.

[36] The Board was also asked to reexamine its jurisdiction in Dilico. Relying on the test as prescribed by the SCC, the Board found that this service agency providing child and family welfare and health services to First Nations and Anishinabek people was accordingly a provincial activity, outside of the Board’s constitutional jurisdiction, which resulted in the Board rescinding its original certification order. 

[37] Based on the principles and tests enunciated in NIL/TU,O and applied in Oneida and in Dilico, supra, and considering that the presumption of the provincial nature of the activity has not been rebutted, the Board finds that the certification order issued to the union governing the health services provided by the employer is not jurisdictionally valid as the activities are of a provincial nature and therefore not subject to federal legislation. 

[38] Accordingly, the Board finds that it does not have constitutional jurisdiction over the employer’s activities such that certification Order No. 7208-U is hereby rescinded. The Board has no authority to deal further with the instant complaint and closes its file.

[39] This is a unanimous decision of the Board.