LABOUR RELATIONS |
Sports InterAction v. Jacobs
T-1411-04
2005 FC 123, Tremblay-Lamer J.
26/1/05
15 pp.
Judicial review of decision of adjudicator, appointed under Canada Labour Code--Applicant online gaming operation duly licensed by Kahnawake Gaming Commission, operating in Mohawk Territory of Kahnawaka, Quebec--Respondent, employed as line manager prior to dismissal--MSN Messenger transcripts of conversations between respondent and co-worker discovered--Applicant alleging respondent improperly using company's internet connection during working hours; making disrespectful, threatening, obscene remarks against immediate supervisor, applicant--Respondent filing complaint with Labour Canada under Code, s. 240, also filing complaint with La Commission des normes du travail du Québec (CNT)--CNT ruling matter ultra vires provincial jurisdiction--Respondent discontinuing complaint before CNT after adjudicator requesting respondent choose which jurisdiction to pursue complaint under--Adjudicator finding respondent unjustly dismissed, ordering reinstatement with benefits as of seventh month following dismissal from applicant's employ-- Also finding respondent's behaviour not impacting negatively on applicant's operations; internet chatting not prohibited in applicant's policies or rules; applicant failing to give respondent fair warning before dismissal--Whether labour complaint by dismissed employee ultra vires federal adjudicator--Such inquiry conceptually distinct from subsequent assessment of "excess of jurisdiction"--Labour relations generally falling within pro-vincial sphere under Constitution Act, 1867, s. 92(13) except where labour relations at issue engaging integral element of federal competence under Constitution Act, 1867--Supreme Court of Canada establishing clear guidelines, providing that exception comprising mainly "labour relations in underta-kings, services and businesses which . . . can be characterized as federal undertakings, services or businesses"--Absent demonstration going concern under scrutiny is federal work, undertaking, business because impacting on Indian status (Act, s. 91(24) conferring jurisdiction over "Indians" to Parliament), general rule applying--Concept of Indian status ("Indianness") narrow in scope and provincial labour laws applying unless matters clearly governed by federal legislation affected or Indian rights or status infringed upon--Evidence not showing labour relations at issue touching upon integral element of primary federal jurisdiction --Act, s. 52 enshrining overarching principle of Canadian law: Constitution supreme law of Canada--Whether labour relations matter of provincial, federal jurisdiction not to be determined solely on basis of which party is applicant in judicial review--Doctrine of waiver also not applying to determine jurisdictional issue if issue not raised before administrative tribunal at first instance --Onus on party invoking jurisdictional exception to establish constitutional facts necessary for exception to apply--Because respondent invoking exception, onus on respondent to demonstrate applicant's business, activities touching upon element integral to federal jurisdiction, such as "Indianness" --Respondent not meeting onus and Court having to apply general rule: labour relations ultra vires federal jurisdiction-- Application allowed --Canada Labour Code, R.S.C. 1985, c. L-2, s. 240 (as am. by R.S.C., 1985, (1st Supp.), c. 9, s. 15)--Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1), [R.S.C., 1985, Appendix II, No. 5], ss. 52, 91(24), 92(13).