Date: 19990908
Docket: T-1761-98
BETWEEN:
MITCHIKANIBIKOK INIK (also know as
THE ALGONQUINS OF BARRIERE LAKE)
Applicants
- and -
MICHEL THUSKY
Respondent
- and -
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Respondent
Docket: T-1762-98
BETWEEN:
MITCHIKANIBIKOK INIK (also know as
THE ALGONQUINS OF BARRIERE LAKE)
Applicants
- and -
CÉCILE WAWATIE, ANTHONY VINCENT,
PATRICK RATT, SIMON WHITEDUCK, MARTIN RATT,
ANGÉLIQUE NOTTAWAY, PAUL PIEN,
JACQUELINE RATT and ERIC CHARBONNEAU
Respondents
- and -
THE MINISTER OF INDIAN AFFAIRS AND
NORTHERN DEVELOPMENT
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision rendered by Referee Joseph E. Roach (the "Referee"), named under subsection 251.12(1) of the Canadian Labour Code1. The application is in regard to wage recovery appeals launched by the Applicants. In his decision, the Referee ordered Chief Harry Wawatie, of the Band of Algonquins of Barriere Lake, as Employer, to pay forthwith to the Receiver General of Canada the sums indicated in the Payment Order. These sums related to nine individuals, all of whom were former Band employees. The sums in question represented termination pay and severance pay allegedly owed to the individuals named as Respondents, who were hired by the Interim Band Council (IBC).
[2] The file T-1761-98 concerns Mr. Michel Thusky, while T-1762-98 involves Mr. Cécile Wawatie and others. Both files arise out of the same situation and address the same issues. Therefore these reasons apply mutatis mutandis in T-1762-98.
THE FACTS
Background
[3] The Mitchikanibikong Inik, also known as the Algonquins of Barriere Lake, reside at the Rapid Lake Reserve in western Quebec.
[4] The Algonquins of Barriere Lake select their Chief and Council based on custom and not by election under the Indian Act (the "Act").2 At the beginning of the period in question, the customary Council consisted of Jean-Maurice Matchewan as Chief and Jean Paul Ratt and Jules Papatie as councillors. The Chief and Council were recognized by DIAND until January 23, 1996 as the legitimate Council of the Algonquins of Barriere Lake.
[5] In 1994, there was a split in the community and a "provisional government" was created. It was led by Gerard Guay. In October 1994, Joseph Wawatie Jr. requested DIAND to recognize this "dissident" government. DIAND refused on the grounds that it was not the Department"s policy "to intervene in internal disputes related to the choice of the chief and council according to the band custom."3
[6] A second request was made on July 10, 1995. This request was also refused since "Departmental policy [was] not to interfere in band internal affairs."4 Despite this refusal, in September 1995, DIAND wrote to the "dissident" government and explained how to become officially recognized by DIAND. The group followed the advice and circulated a petition on and off-reserve proclaiming themselves to be the "Interim Band Council" (IBC) and submitted it to the Department on November 27, 1995.
[7] On December 8, 1995, the IBC brought an application before this Court seeking a writ of quo warranto removing the customary Council and replacing it with the IBC. The emergency interlocutory injunction was refused and a full hearing on the merits was ordered.
[8] On January 23, 1996, while this matter was still pending before the Federal Court, Chief Matchewan and his Council were sent a facsimile by Denis Chatain, the Regional Director General of DIAND. This facsimile informed the Chief and his Council that DIAND had decided to recognize the IBC as the "legitimate Council of the Barriere Lake Band" on the basis of the petition.5
[9] A second letter was sent by Mr. Chatain, on January 25 1996, confirming his earlier decision to recognize the IBC as the "only legitimate council of the Barriere Lake Band, in accordance with the custom of the Band ."6 He stated that the IBC"s term was to be "short", ending 30 June 1996, and that the decision was final.7
[10] On February 20, 1996, the Applicants filed an Originating Notice of Motion (File T-357-96) seeking judicial review of DIAND"s decision to recognize the IBC. On June 30, 1996, the IBC"s interim mandate ended. A new Band Council was elected on April 9, 1997 and was recognized by DIAND on 17 April 1997.
[11] On December 17, 1997, a show cause order was issued by McGillis J. On January 8, 1998, Lutfy J. ordered that the IBC"s quo warranto motion and the customary Council"s judicial review application be dismissed for want of prosecution.
The Referee"s Decision
[12] The Referee determined that he did not have the jurisdiction to consider the validity of the Minister"s decision to recognize the IBC as the representative of the Algonquins of Barriere Lake. As a result, he found that the individuals concerned were employees of the Band at all relevant times, having been hired by a legally constituted Council.
[13] The Referee concluded on the evidence that the individuals "were working on behalf of the Band, their wages were established by the Band and were paid by the Band." In addition, he found that the Department had appointed the Third Party Administrator "in the best interests of the community members, and in order to ensure continuous delivery of programs and services to the community of Barriere Lake." Finally, he decided that the Customary Band Council, as a successor to the IBC, must honour the payment orders issued by Labour Canada. In making this determination, the Referee relied on his conclusion that legal continuity existed between the successive band councils.
ISSUES
| 1. Did the Referee err in law when he found that he did not have the jurisdiction to question the legality of the Minister"s decision to recognize the IBC? |
| 2. Was it patently unreasonable for the Referee to decide that the individuals concerned were, at the relevant time, employees of the Algonquins of Barriere Lake? |
POSITIONS OF THE PARTIES
[14] The Applicants argue that the Referee erred in failing to consider whether or not the Minister had the legal authority to recognize the IBC. They submit that the Minister may only recognize Councils which are chosen by the people according to customary practice or which are duly elected pursuant to the Act. The Applicants submit that the Referee exceeded his jurisdiction by relying on a decision that was wrong in law and that his decision must therefore be patently unreasonable.
[15] More importantly, the Applicants submit that the Referee erred in concluding that the Third Party Administrator had the authority to continue the employment of the Complainants after the Interim Band Council"s mandate expired. They argue that the 1996-97 funding agreement entered into by the IBC and DIAND which was said could be construed as giving DIAND authority to appoint an agent to act on behalf of the First Nation expired on March 31, 1997. In light of this fact, the Applicants submit that the Referee cannot rely on an expired agreement to impose an agency relationship upon the First Nation.
[16] The Respondent argues that this Court"s jurisdiction on judicial review is confined to that of the original decision-maker. In the present case, subsection 18(1) of the Federal Court Act8 gives the Federal Court Trial Division exclusive original jurisdiction to review the decisions of a federal board, commission or other tribunal. In other words, the Referee correctly determined that he did not have jurisdiction to review the Minister"s decision, and thus, this Court does not have the jurisdiction to review the Referee"s decision. The application for judicial review of the Minister"s decision was dismissed for want of prosecution and that decision must stand.
[17] Nevertheless, the Respondent submits that based on the evidence the Referee"s decision was not patently unreasonable. The individuals were hired by the IBC during its mandate. Their hours of work , their wages and their working conditions were all established by the IBC. The Respondent also submitted that it was entirely open to the Referee to conclude that the Third Party Administrator was not an agent of the Crown and that there was a legal continuity between the successive band councils.
ANALYSIS
| Did the Referee err in law when he found that he did not have the jurisdiction to question the legality of the Minister"s decision to recognize the IBC? |
[18] The Referee was appointed under the Canada Labour Code to determine the wage recovery appeals of the Applicants. The Canada Labour Code sets out the powers of the Referee in subsection 251.12(2).
| 251.12 (2) A referee to whom an appeal has been referred by the Minister (a) may summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the referee deems necessary to deciding the appeal; (b) may administer oaths and solemn affirmations; (c) may receive and accept such evidence and information on oath, affidavit or otherwise as the referee sees fit, whether or not admissible in a court of law; (d) may determine the procedure to be followed, but shall give full opportunity to the parties to the appeal to present evidence and make submissions to the referee, and shall consider the information relating to the appeal; and (e) may make a party to the appeal any person who, or any group that, in the referee's opinion, has substantially the same interest as one of the parties and could be affected by the decision. |
| 251.12 (2) Dans le cadre des appels que lui transmet le ministre, l'arbitre peut_: a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et les pièces qu'il estime nécessaires pour lui permettre de rendre sa décision; b) faire prêter serment et recevoir des affirmations solennelles; c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation il juge indiqués, qu'ils soient admissibles ou non en justice; d) fixer lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part; e) accorder le statut de partie à toute personne ou tout groupe qui, à son avis, a essentiellement les mêmes intérêts qu'une des parties et pourrait être concerné par la décision. |
[19] Subsection 18(1) of the Federal Court Act, on the other hand, specifically confers upon the Federal Court Trial Division the exclusive original jurisdiction to review decisions of federal bodies:
| 18. (1) Subject to section 28, the Trial Division has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. |
| 18. (1) Sous réserve de l'article 28, la Section de première instance a compétence exclusive, en première instance, pour_: a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un jugement déclaratoire contre tout office fédéral; b) connaître de toute demande de réparation de la nature visée par l'alinéa a), et notamment de toute procédure engagée contre le procureur général du Canada afin d'obtenir réparation de la part d'un office fédéral. |
[20] The Minister of DIAND falls under the definition of a federal board, commission or other tribunal. Therefore, the Trial Division has exclusive original jurisdiction to review the legality of the Minister"s decisions. As discussed above, the application for judicial review of the Minister"s decision was dismissed for want of prosecution. In essence, this dismissal affirmed the legality of the Minister"s decision to recognize the IBC as the representative of the Algonquins of Barriere Lake.
[21] The Applicants argue that by relying on a decision that is wrong in law, the Referee"s decision is also wrong in law and that as a result, this Court should have jurisdiction to review such an error. To my mind, this argument broadens excessively the scope of paragraph 18.1(4)(f): Judicial review is to be limited to the decision under review. Paragraph 18.1(4)(f) should not be used to permit the Applicants to reach through the decision under review and attack the legality of an earlier decision. It is trite law to say that the Applicants should not be permitted to do indirectly what they cannot do directly. For these reasons, I am of the opinion that this Court does not have jurisdiction to question the validity of the Minister"s decision when reviewing the decision of the Referee.
| Was it patently unreasonable for the Referee to decide that the individuals concerned were, at the relevant time, employees of the Algonquins of Barriere Lake? |
[22] The Referee applied the relevant case law in his decision in order to determine whether the actual employer, based on the facts, was the Algonquins of Barriere Lake or DIAND. The Referee cited Northern Television Systems Ltd.9 as the test for determining the existence of employer/employee relationships.
| 1) who hires the employees |
| 2) who controls the work |
| 3) who effectively establishes their wages and working conditions |
| 4) who controls any negotiations with respect to wages and terms of employment10 |
[23] The Referee then applied the criteria, analyzing each aspect in light of the facts .
| As to first criterion, the evidence has established that the Complainants were hired by the Interim Band Council acting as the legitimate Council for the Lake Barriere Band. The hiring was made possible through the Comprehensive Funding Arrangement executed by the Minister of Indian Affairs and Northern Development and the Algonquins of Barriere Lake. [...] Furthermore, Interim Band Council"s resolution 96/97, 104, 96/36 and 96/32 [...] indicate in the clearest terms that the respective Complainants were hired by the Interim Band Council which was acting as the legitimate Council for the Band of Barriere Lake. |
As to the second criterion relating to the control of work, such as work assignment, the evidence establishes that the Department did not establish the working condition or assignments but that these were the responsibility of the Band Council as provided by the Comprehensive Funding Agreement. Similar conclusion must be reached with respect to the third criterion as well as the fourth criterion mentioned above. Simply put, the evidence established, through the testimonies of Mr. André Côté and the presentation of Ms. Jacqueline Ratt that Complainants were working on behalf of the Band, their wages were established by the Band and were paid by the Band. There is simply no indication that the Complainants were employees of the Department of Indian Affairs and Northern Development. From a review of the evidence, it is obvious that looking at the realities of the employment relationship, the Band Council was vested with the effective control regarding the essential elements that constitute the employment relationship. [...]11
[24] I am satisfied that in light of the evidence submitted to the Referee, it was not patently unreasonable for him to decide that the Applicants were the employers of the complainants.
[25] This being said, there is another key issue which must be addressed. On June 30, 1996, the Interim Band Council"s mandate expired leaving the Third Party Administration to manage the affairs of the Band.
[26] The Referee found that the third party administrator, appointed by DIAND "in the best interests of community members, and in order to ensure the continuous delivery of programs and services",12 remained in that position after the expiry of the IBC"s tenure.
[27] He concluded that the third party administrator managed the affairs of the Band, in accordance with the Comprehensive Funding Agreement. According to the Referee"s decision, this agreement provides that the role of the third party administrator was to implement financial management and control of the Band. There was at no time a mandate for the third party administrator to enter employment contracts on behalf of DIAND. Therefore, in the opinion of the Referee, there was no evidence that the third party administrator had acted as an agent of DIAND.
[28] As stated above, the Applicants submit that even if the 1996-97 funding agreement entered into by the IBC and DIAND could be construed as giving DIAND authority to appoint an agent on behalf of the First Nation, the agreement expired on March 31, 1997. I agree with the Applicants.
[29] Any authority, the administrator could have derived from this agreement to act as agent of the First Nation ended once the agreement itself expired. Therefore, the 1996-97 funding agreement cannot give the administrator the authority to bind the Algonquins of Barriere Lake for the employment dismissals which occurred in 1997-1998 following the expiration of this agreement.
[30] In addition, on April 8, 1997, DIAND and the administrator entered into a "Third Party Funding Arrangement". As agency is a legal relationship created through consent and the Algonquins of Barriere Lake had not given their consent to this agreement, it cannot be said, in my opinion, that the administrator was acting as agent of the First Nation. Moreover, on the facts of the case, I do not find it possible to conclude that the agency relationship was implied or that one was created through an operation of law.
[31] Given that after March 31, 1997, the administrator was not the agent of the Algonquins of Barriere Lake, the administrator had no authority to act on behalf of the Algonguins at Barriere Lake.
[32] It was patently unreasonable for the Referee to determine that there was a legal continuum between the successive band councils when the facts did not support such a conclusion.
[33] For these reasons, the decision of the Referee Joseph E. Roach dated August 10, 1998 is quashed. The matter is sent back to a different referee for reconsideration in accordance with these reasons. No costs.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
September 8, 1999.
__________________1 R.S.C. 1985, c. L-2 as amended.
2 R.S.C. 1985, ch. I-5, as amended, ss. 2(1), 74 and 79.
3 Letter of J. Laplatte, Associate Director General, Québec Region DIAND to J. Wawatie Jr. (26 April 1994).
4 Letter of P. Napier, Acting Regional Director DIAND to J. Wawatie Jr. (10 July 1995).
5 Fax of D. Chatain, Director General, Québec Region DIAND to the Members of the IBC (23 January 1996).
6 Letter of D. Chatain, Director General, Québec Region DIAND to J-M Matchewan, J-P Ratt and J. Papatie (25 January 1996) [emphasis added].
9 (1976) 76 C.L.L.. 16,031 (C.L.R.B.).
10 C. Foisy, D. Lavery and L. Martineau, Canada Labour Relations Board"s Policies and Procedures (Toronto: Butterworths, 1986) at 34.
11 Cécile Wawatie et al. v. Mitchikanibikong Inik and the Minister of Indian Affairs and Northern Development (29 July 1998), C.L.B. (Referee Roach) at 15-16 [references omitted].