One of the most complicated legal questions for employers is whether their operations are regulated by federal or provincial workplace rules. The answer to this question can have broad implications for employers, as the requirements of provincial workplace laws can differ considerably from their federal counterparts. The confusion over jurisdiction stems from Canada's division of powers between its varying levels of government. While the Constitution Act, 1867 (the "Constitution") does provide a helpful list of federal and provincial powers it is far from complete.

First Nations employers (this term is used here in a broad sense) in Canada have had a particularly tough time on the jurisdictional front. At first glance, the Constitution provides the federal government power over "Indians, and Lands reserved for the Indians." But at the same time, the Constitution is silent on which level of government is responsible for labour and employment issues. Had the founding fathers of Confederation been clearer on this point, it would have spared lawyers and employers a lot of future pain.