Is an elected deputy chief of a First Nation an employee?

Linklater v. Fort Albany First Nation, 2004 CarswellOnt 2062 (Ont. S.C.J.)

In July 2002 Andrew Linklater was elected deputy chief of the Fort Albany First Nation, to serve a two-year term. As required by the First Nation Custom for Governance and Election Procedures, Linklater resigned from his previous job as housing co-ordinator and director of the First Nation, to assume his office.

In April 2003 Linklater was terminated as deputy chief following a vote of the chief and the council. The termination was under a section of the governance code that states the position of deputy chief becomes vacant when the person who holds that office engages in “any wrongful conduct that affects, interrupts, or interferes with the performance of their official duties, as determined by a quorum of council.”

Linklater filed an action for wrongful dismissal. The Fort Albany First Nation then filed a motion for summary judgment to dismiss Linklater’s claim, on the basis the relationship between the parties was not that of an employer-employee at the time of Linklater’s termination.

The Ontario Superior Court of Justice rejected the appeal for summary judgment. An individual being elected to a position does not mean the relationship can’t be categorized as that of an employee, ruled Justice O’Neill Sr. — that assessment is a factual one, and must be conducted on a case by case basis.

In this case Linklater was paid biweekly wages, from which Employment Insurance premiums were deducted and an employee attendance record was maintained of his attendance at the First Nations administrative offices.

Linklater received coverage under the First Nations’ group insurance policy, and on the insurance form his occupation was shown to be deputy chief and he signed it in the space marked employee’s signature. In addition he received all the materials and supplies he required, including an office, a telephone and office supplies and the First Nation also paid for his travel expenses.

The First Nation’s governing body clearly had the authority to “dismiss” the deputy chief, noted Justice O’Neill. That Linklater was required to resign his previous job before becoming deputy chief also is an indication, he ruled: “In some respects, he traded one position for the other.”

The court dismissed the First Nation appeal for summary judgment, and awarded costs to Linklater on the partial indemnity scale.

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