Labour Relations of First Nation Police Services Provincially Regulated

Nishnawbe-Aski Police Service Board v. PSAC
2015 CarswellNat 4796, 2015 CarswellNat 9244, 2015 CAF 211, 2015 FCA 211, 2016 C.L.L.C. 220-004, 258 A.C.W.S. (3d) 190, 390 D.L.R. (4th) 554, 476 N.R. 100
Federal Court of Appeal

Labour and employment law --- Labour law — Bargaining rights — Certification — Jurisdiction of board — Miscellaneous

 
First Nation established First Nation police service 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 Public Service Alliance of Canada as bargaining agent for two bargaining units of employees working for police service — Certification orders were based, in part, on view that labour relations of police service were federally regulated — After Supreme Court of Canada released two decisions, police service thought that labour relations of 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 police service were federally regulated — Police service brought application for judicial review — Application granted — Board did not have authority to make certification orders and they were set aside — In order to rebut presumption that labour relations were provincially regulated, two-step test which included examination of nature, operations and habitual activities of entity had to be determined whether it constituted federal undertaking — Essential nature and function of police service was to provide policing services and that was matter within provincial sphere — Presumption that first nation police service labour relations were provincially regulated was not rebutted, as nature, habitual activities and daily operations of First Nation police service were provincial in nature and labour relations of police service were provincially regulated — Statutory source for First Nation constables was provincial Police Services Act, and status of being First Nation constable flowed directly from Act and not any federal law — 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 — First Nation constables performed essentially same functions as Ontario Provincial Police (OPP) officers, and 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 police service were provincially regulated.