Provision of health services to Indians was long standing federal undertaking

Applicants P Inc. and NITHA were non-profit health services corporations that delivered health services to PB Cree Nation pursuant to health agreements with federal government. Applicants provided registered pension plans to employees and registered them with federal authority, Office of Superintendent of Financial Institutions of Canada (OSFI). Private Pension Plans Division of OSFI notified applicants that their pension plans did not fall under federal jurisdiction and were transferred to provincial pension regulator. Applicants brought application for judicial review. Application granted. Constitutional question of division of powers was reviewed for correctness, while findings of fact were reviewed for reasonableness. OSFI decision-maker erred in conducting functional test, by unreasonably failing to consider treaty relationship between First Nations and federal government when deciding whether applicants’ delivery of health services was federal undertaking. Declaration was made that delivery of health services for on-reserve First Nations members pursuant to health agreements between federal government and applicants constituted federal undertaking that came within definition in s. 4(4)(i) of Pension Benefits Standards Act. Historical treaty record showed that provision of health services to Indians was long standing federal undertaking made in keeping with treaty relationship. Applying functional test, nature of applicants’ activities was delivery of health services promised in treaties and realized through federal government’s undertaking to provide health services to First Nations, which came within federal jurisdiction pursuant to s. 91(24) of Constitution Act, 1867. To alter jurisdiction for delivery of health services to provincial jurisdiction was impermissible abandonment of federal treaty promises to provide health services.

Northern Inter-Tribal Health Authority Inc. v. Canada (Attorney General) (2018), 2018 CarswellNat 7409, 2018 CarswellNat 8538, 2018 FC 1180, 2018 CF 1180, Leonard S. Mandamin J. (F.C.).