The Court rejected an application for a stay of proceedings preventing a complaint under the Canada Labour Code from proceeding, while a preliminary ruling on jurisdiction is subject to judicial review. The First Nation failed to demonstrate a serious issue, as its application for judicial review was premature; it failed to demonstrate irreparable harm; and the balance of convenience favoured respect for the arbitrator’s autonomy and the availability of a quick and effective remedy for the complainant.
Indigenous Law Centre
Indigenous CaseWatch Blog
Sioux Valley Dakota Nation [“SVDN”] sought a stay of proceedings before an adjudicator hearing Ms. Tacan’s complaint under the Canada Labour Code [“Code”]. In a preliminary ruling, the adjudicator found that Ms. Tacan’s employment fell under federal jurisdiction. SVDN brought an application for judicial review of that preliminary ruling and for the application to be decided before the adjudicator hears the merits of Ms. Tacan’s complaint.
SVDN’s motion is dismissed because the underlying application for judicial review is premature. As a result, the test for granting a stay is not satisfied. (RJR-MacDonald Inc v Canada (AG), [1994] 1 SCR 311 [“RJR-MacDonald”]. The applicant must show that: 1) the underlying application raises a serious issue; 2) the stay is necessary to avoid irreparable harm; and 3) the balance of convenience favours the granting of the stay. Courts will refrain from reviewing interlocutory decisions of administrative bodies, save in exceptional circumstances (Canada (Border Services Agency) v CB Powell Limited, 2010 FCA 61); Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10).
SVDN’s application raises the issue of jurisdiction over labour relations. Applications for judicial review of interlocutory decisions are premature even if they relate to “jurisdictional” or constitutional issues (Black v Canada (AG), 2013 FCA 201; Alexion Pharmaceuticals Inc v Canada (AG), 2017 FCA 241). This Court has concluded that challenges to the adjudicator’s jurisdiction do not justify judicial review of interlocutory decisions (Entreprise Publique Économique Air Algérie, Montréal, Québec v Hamamouche, 2019 FC 272). An application for judicial review is obviously premature, because it challenges an interlocutory decision, does not give rise to a “serious issue” for the purposes of a motion for a stay (Dugré v Canada (AG), 2020 FC 602).
SVDN does not show that a stay is necessary to avoid irreparable harm. It argues that letting the adjudicator rule on the merits would be a “waste of time.” This alone, however, cannot be considered irreparable harm. SVDN also argues that it would suffer irreparable harm because its “constitutional development” is at stake. SVDN has not shown any concrete harm, as Aboriginal and Treaty rights protected by section 35 have no bearing on division of powers issues (Canada (AG) v Northern Inter-Tribal Health Authority Inc, 2020 FCA 63).
At the third stage of the RJR-MacDonald test, it is obvious that granting a stay and allowing SVDN’s application for judicial review to proceed would significantly prejudice Ms. Tacan, who remains unemployed and is unable to pay for legal services.