Case information

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Constitutional law - Division of powers - Labour relations - Jurisdiction - Whether Native Child and Family Services of Toronto is subject to provincial regulation - Native Child and Family Services carrying out matters within provincial jurisdiction - Whether the services Native Child and Family Services provides are sufficiently connected to “Indianness” to bring them within federal jurisdiction under s. 91(24) of the Constitution Act, 1867 - Whether the Canada Labour Code, R.S.C. 1985, c. L-2, is constitutionally applicable to the Respondent in view of Parliament’s legislative authority under s. 91(24) of the Constitution Act, 1867?

Native Child and Family Services of Toronto is a children’s aid society under the Child and Family Services Act, R.S.O. 1990, c. 11. Along with several other children’s aid societies, it provides child protection and family support services to members of Toronto’s aboriginal community. It strives to take aboriginal culture, values and family models into account in its programs and operations. The majority of its clientele, directors and employees have been aboriginal, but that is not mandated. There is no formal band involvement in NCFS’s governance, but it claims to be “under the direct control and management of the native community”. The federal government has no history of regulation or governance of NCFS, and it is not the subject of any intergovernmental agreement.

In 2007, the Communications, Energy and Paper workers Union (the “CEPU”) filed an application to be certified as the bargaining agent for NCFS’s employees. The Board found that the services provided by NCFS are related to and at the core of “Indianness” and form an integrated part of the federal jurisdiction over Indians and lands reserved for Indians, as set out in s. 91(24) of the Constitution. Accordingly, its labour relations were within federal jurisdiction. NCFS sought judicial review of the Board’s decision. The Federal Court of Appeal found that NCFS’s labour relations were within provincial jurisdiction under s. 91(13). It granted the application for judicial review and set aside the Board’s order.