N.C. v. Curve Lake First Nation #35, 2018 HRTO 1235 (CanLII)
Overview
The applicant filed an Application alleging discrimination under the Ontario Human Rights Code. The Application relates to two incidents that allegedly occurred between two girls while they were under the care of O’shkiigmong Early Learning Centre (“OELC”). The alleged incidents took place while the girls were taking part in an overnight cultural summer program run by OELC on Kutang Island, an island held jointly by the Curve Lake First Nation #35 (“CLFN”) and two other First Nations. When the applicant reported the incidents to an Officer of the Anishinabek Police Service (“Police Service”), she alleges she was discriminated against based on the treatment she received from the Officer and the Police Service. In response, the respondents (CLRN, OELC and their representatives) requested that the Application be dismissed on the basis that OELC is a federal undertaking and therefore beyond the Tribunal’s jurisdiction. While the Police Service and the Officer did not participate in the preliminary hearing, they accepted the jurisdiction of the Tribunal for the purpose of the allegations against them.
Issue
The issue in this case is whether OELC’s services are within provincial jurisdiction.
Facts
OELC is a licensed facility located on CLFN land and created and operated exclusively by CLFN. It provides critical early learning opportunities and services to a maximum of 91 First Nation children. OELC uses Anishnaabe cultural teachings as the foundation to guide and develop the curriculum and has three programs aimed at developing Anishnaabemowin language skills, cultural values, knowledge and integrity, beginning at the age of six weeks through 14 years old. OELC includes 13 full-time Native Early Childhood Educators who work in collaboration to develop the curriculum for these programs, one program being an annual summer camp at Kutang Island.
CLFN is governed by an elected Council comprising its Chief and eight Councillors, who are the overriding or final authority of OELC. The Council created an Education Committee comprised of two councillors responsible for the education portfolio, as well as an Education Department. While CLFN employed an Education Manager with a mandate to oversee OELC and other educational programming of CLFN, the Council has the final authority to approve policies and procedures that govern the day-to-day operations of OELC and are responsible for allocating annual funds to OELC. CLRN is the employer of OELC’s employees, who are governed by the Curve Lake Human Resources Management Manual, which was developed and approved by CLFN.
In addition to CLFN’s policies and procedures, employees of OELC must abide by obligations imposed by the Ministry. Some of the Ministry’s guidelines include following the Ministry’s professional learning resource guide How Does Learning Happen? Ontario’s Pedagogy for the Early Years and the Ministry’s Child Care Centre Licensing Manual. The Ministry visits OELC on an annual basis to ensure compliance with its licensing scheme and to review programs, curriculum, children, staff files, and the site of the building. In terms of serious incidents that may affect the well-being of children, the Ministry imposes a legal obligation on the employees to make a detailed report. Once the report is done, the Ministry reviews it and makes recommendations, which OELC is required to comply with.
Employees of OELC must also abide by the legal obligations under the Child Care and Early Years Act (“CCEYA”) and its regulations. The CCEYA provides the Ontario framework for regulating the provision of childcare and the operation of childcare and early years programs and services. Its purpose is to “foster the learning, development, health and well-being of children and to enhance their safety.” Section 60(1) of the CCEYA gives the authority to a First Nation or group of First Nations to “establish, administer, operate and fund childcare and early years programs and services.” Amongst other obligations, O. Reg. 137/15 (“General Regulation”), adopted pursuant to the CCEYA, provides that every licensee shall have a parent handbook, written policies and procedures and a program statement. The General Regulation further provides that the program statement must describe the goals of the program and the approaches that will be implemented to:
- promote the health, safety, nutrition and well-being of the children;
- support positive and responsive interactions among the children, parents, child care providers and staff;
- encourage the children to interact and communicate in a positive way and support their ability to self-regulate;
- foster the children’s exploration, play and inquiry;
- provide child-initiated and adult-supported experiences;
- plan for and create positive learning environments and experiences in which each child’s learning and development will be supported;
- incorporate indoor and outdoor play, as well as active play, rest and quiet time, into the day, and give consideration to the individual needs of the children receiving child care;
- foster the engagement of and ongoing communication with parents about the program and their children;
- involve local community partners and allow those partners to support the children, their families and staff;
- support staff, home child care providers or others who interact with the children at a child care centre or home child care premises in relation to continuous professional learning; and
- document and review the impact of the strategies set out in clauses (a) to (j) on the children and their families.
Test
The applicable legal test to determine jurisdiction is set out in the Supreme Court of Canada’s decision in NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, 2010 SCC 45 (“NIL/TU,O”). In that case, the Supreme Court of Canada adopted a “functional test” that calls for an inquiry into the nature, habitual activities and daily operations of the entity in question to determine whether it constitutes a federal or provincial undertaking. The majority of the Court held at para. 18 that, if the functional test is inconclusive, further examination is necessary to determine whether provincial regulation, in that case of the employer’s labour relations, “would impair the core of the federal head of power at issue.”
Analysis
Although NIL/TU,O involves labour relations, it too was an agency established by a group of First Nations to provide services for First Nations’ families and children. Despite being operated by First Nations for the benefit of First Nations, the essential nature of the agency’s operation was to provide child and family services, a matter within the provincial sphere. As such, the agency was a provincial undertaking and its labour relations fell under provincial jurisdiction.
In the court’s evaluation of OELC, they concluded that their services fall under provincial jurisdiction as it is regulated exclusively by the province. The delivery of its programs are governed by the CCEYA, which sets out a framework to foster the learning, development, health and well-being of children and to enhance their safety. The Act is administered, in a similar way as in NIL/TU,O, by directors appointed by the Minister of Education.
While section 60(1) of the CCEYA gives the authority to First Nations to operate childcare facilities, the provincial licensing requirements remain applicable. The goals and standards of the legislation are upheld through the licensing requirements of childcare facilities across the province, regardless of the location of the facility as on or off reserve. The CCEYA and the General Regulation include protective measures, detailed licensing requirements, inspection provisions and enforcement mechanisms. They impose legal obligations on childcare organizations, including OELC, to have a parent handbook, written policies and procedures, and a program statement that is consistent with the goals outlined in the General Regulation. OELC and the CLFN Council must ensure that they are always in compliance with the CCEYA and any Ministry recommendations, otherwise if there was a serious breach of the CCYEA, their licence could be revoked or suspended.
While OELC has a distinct character in that it provides learning opportunities to promote
and preserve CLFN’s cultural practices, its habitual activities foster not only learning butalso the development, health and well-being of children and their safety. As described in the Parent Guide, OELC offers a “high quality program that meets the need of the children and families of the community and creates a ’home away from home‘ environment.” In this context, OELC offers an environment for children to learn, play and be well taken care of.
Further, while OELC receives funding by virtue of agreements with both the federal and
provincial governments, 75% of its funding comes from the province. Under the
agreement, OELC is to be abide by specific conditions related to its operations, the
aims of its programs, its values, its accessibility and its activities. The Respondents
were unable to establish that these conditions rise to the level of federal operational
involvement that would make OELC a federal undertaking, service or business. As
such, the functional test is conclusive and there is no need to determine whether
provincial regulation “would impair the core of the federal head of power.”
Holding / Decision
Applying the functional test set out in NIL/TU,O, the Court found that OELC’s services
fall within provincial jurisdiction. As such, the Application will continue in the Tribunal
process.