Federal Court Of Appeal Rules That The Labour Relations Of The Nishnawbe-Aski Police Service Are Provincially Regulated

On Oct. 2, 2015, the Federal Court of Appeal delivered its judgment in Nishnawbe-Aski Police Service Board v. Public Service Alliance of Canada1, granting the application of the Nishnawbe-Aski Police Service Board for judicial review and setting aside a decision of the Canada Industrial Relations Board ("CIRB").

Facts

Following the development of the federal government's First Nations Policing Policy, Canada, Ontario, the Nishnawbe-Aski Nation and other First Nations signed the Ontario First Nations Policing Agreement in 1992.

Pursuant to this Agreement, the Nishnawbe-Aski Nation sought to establish a regional police service, the Nishnawbe-Aski Police Service ("Nishnawbe Police"), to provide effective and culturally appropriate police services in the Nishnawbe-Aski area. In addition, the Nishnawbe-Aski Police Board ("Nishnawbe Board") was established to manage the Nishnawbe Police.

The CIRB, acting under the Canada Labour Code2, certified the Public Service Alliance of Canada ("PSAC") in 2005 as the bargaining agent for two bargaining units of employees employed by the Nishnawbe Board. This certification order was based, among other things, on the view that labour relations of the Nishnawbe Police are federally regulated.

Further to the Supreme Court of Canada's decisions in NIL/TU,O Child and Family Services v. B.C. Government and Service Employees' Union3 and Communications, Energy and Paperworkers Union of Canada v. Native Child and Family Services of Toronto4 in 2010, the Nishnawbe Board applied to the CIRB to set aside its certification orders on the basis that the labour relations of the Nishnawbe Police are provincially regulated. In a decision rendered in November, 2013, the CIRB dismissed this argument and upheld the certification orders for the PSAC on the basis that the labour relations of the Nishnawbe Police are federally regulated.

The Nishnawbe Board therefore applied to the Federal Court of Appeal for judicial review of the CIRB's decision, submitting that the labour relations of the Nishnawbe Police are provincially regulated and that the CIRB should have revoked the certification of the PSAC.

Decision of the CIRB

The CIRB recognized that labour relations are presumed to be provincially regulated, as reaffirmed in NIL/TU,O and Native Child. A two-step functional test is required in order to determine whether that presumption is rebutted. The first step of the functional test is to examine the nature, operations and habitual...