Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the Canada Industrial Relations Board’s refusal to reconsider its earlier decision dismissing the unjust dismissal complaint for lack of jurisdiction

• Adequacy of the diligence shown by Conseil en Éducation des Premières Nations in disclosing the June 23, 2022 funding agreement during the original CCRI proceedings

• Effect of the June 23, 2022 tripartite agreement between the Conseil, its member First Nations and the Government of Canada on whether the Conseil’s labour relations fall under federal or provincial jurisdiction

• Proper application of the exceptional reconsideration mechanism under section 18 of the Canada Labour Code to alleged new facts

• Weight to be given to confidentiality and sensitivity of negotiations as a basis for withholding information later relied on as “new” evidence

• Practical implications of a jurisdictional impasse where both Quebec’s CNESST and the CCRI decline to hear Steven Gros-Louis Germain’s unjust dismissal complaint

Facts and procedural background

Conseil en Éducation des Premières Nations is an education body serving member First Nations. Its employee, Steven Gros-Louis Germain, filed an unjust dismissal complaint after his employment ended. In December 2020, Quebec’s Commission des normes, de l’équité, de la santé et de la sécurité du travail refused to examine the complaint on the basis that it fell under federal jurisdiction. The Canada Industrial Relations Board (CCRI) later reached the opposite conclusion, finding that the Conseil’s labour relations were within provincial jurisdiction and that the CCRI therefore lacked competence. On December 4, 2023, the CCRI dismissed Mr. Gros-Louis Germain’s unjust dismissal complaint for want of jurisdiction.

Reconsideration request and new agreement

The Conseil asked the CCRI to reconsider that decision under section 18 of the Canada Labour Code, which allows reconsideration only on exceptional grounds such as new facts that could not, with reasonable diligence, have been presented earlier and that would likely change the result. The Conseil relied on a June 23, 2022 agreement between itself, its member First Nations and the Government of Canada dealing in part with federal funding of the Conseil’s services. It argued that this agreement supported federal jurisdiction over its labour relations and that lengthy, confidential negotiations justified not raising it during the original proceedings.

Decision of the CCRI

The CCRI rejected the reconsideration request. It held that reconsideration is an exceptional remedy and that the Conseil had not satisfied the diligence requirement. Even if the agreement was signed after written submissions were filed, the Conseil could have informed the CCRI of the ongoing negotiations and, once the agreement was executed, sought leave to file it. The CCRI also concluded that, in any event, the agreement would not have altered its original jurisdictional analysis.

Judicial review before the federal court of appeal

On judicial review, Conseil en Éducation des Premières Nations challenged the CCRI’s refusal to reconsider. Both sides accepted that the applicable standard of review was reasonableness under the framework in Canada (Minister of Citizenship and Immigration) v. Vavilov. The court focused on whether the CCRI’s assessment of diligence and new facts fell within a reasonable range of outcomes.

Analysis of diligence and confidentiality

The Conseil maintained that disclosing the existence of the funding negotiations to the CCRI would have jeopardised sensitive talks with the federal government. The court acknowledged that confidentiality concerns can be real while negotiations are ongoing. However, it stressed that the agreement had been signed in June 2022, roughly 18 months before the CCRI’s December 2023 decision. By that time, the existence of the agreement could and should have been communicated to the CCRI, at least to seek permission to file it. In these circumstances, the court held it was open to the CCRI to find that the Conseil had not exercised reasonable diligence and therefore did not meet the threshold for reconsideration. Because this was sufficient to dispose of the matter, the court declined to decide whether the agreement would actually have changed the jurisdictional result.

Outcome and consequences

The court also chose not to rule directly on whether federal or provincial authorities ultimately have jurisdiction over the Conseil’s labour relations. It confined itself to the narrow issue of the reconsideration decision, concluded that the CCRI’s reasoning was reasonable, and dismissed the application for judicial review. Costs were awarded in favour of Steven Gros-Louis Germain as the successful party, while no specific amount of damages was ordered in this judgment.