The Ombudsman’s Report on the Yukon Human Rights Commission

The Yukon Human Rights Commission (the “Commission”) wishes to address the Ombudsman’s report published following an investigation into three complaints concerning the Commission that he received between May 25, 2021 and April 12, 2023. These complaints concern three separate matters that were filed with the Commission in September 2018, November 2020 and December 2019. This report provides five recommendations directed to the Commission and three to the Department of Justice suggesting areas of policy development that they believe should be prioritized and underscores structural challenges to human rights protections in Yukon.

The Yukon Human Rights Commission was established by the Legislative Assembly in 1987 to promote equality and diversity through research, education, and enforcement of the Human Rights Act (the “Act”). It aims to discourage and eliminate discrimination through education, research, and enforcement of the Act, as well as pursue the settlement of human rights complaints and causing complaints that are not settled to be adjudicated by the independent Yukon Human Rights Panel of Adjudicators.

The three human rights complaints that were the subject of complaints to the Ombudsman were all accepted for investigation by the Commission according to section 20(1) of the Act and engaged settlement, mandated by section 16(d) of the Act, at some stage. Each complaint was active under the Commission’s procedures for two years during a leadership change and the onset of the pandemic. The facts of each complaint were otherwise different.  Below is a summary of the Ombudsman’s findings.

OMB-FILE	Complaint One May 21, 2021	Complaint Two March 22, 2022	Complaint Three April 12, 2023
COMMISSION PROCESS	Human Rights Complaint filed to referral to adjudication	Human Rights Complaint filed to early resolution	Human Rights Complaint filed to stopping of investigation under s. 20(1)(g)
COMMISSION TIME	September 2018 to September 2020 ·         24 months	November 2020 to December 2022 ·         25 months	December 2019 to November 2021 ·         23 months
OMB-PROCESS	Informal Case Resolution later referred to Formal Investigation		Referred Directly to Formal Investigation
Application of s.20(1)(g)	Not raised	Not raised	Report States Substantiated
Perceived settlement bias	Report States Substantiated	Not raised	Report States Substantiated
Perceived procedural bias	Not substantiated	Not raised	Report States Substantiated
Statutory framework	Not raised	Not raised	Report States Substantiated
Perceived delays	Not substantiated	Not substantiated	Report States Substantiated

 

To continuously strengthen how human rights are promoted and discrimination is combatted in the territory, the Commission accepts all five recommendations directed to it in the report and also agrees with the recommendations to the Government of Yukon. We welcome the opportunity to work with our Justice partners to address operational barriers and update norms that no longer serve our stated purpose. Additional information can be found in our response dated July 26, 2024.

Recommendations by the Ombudsman to the Commission:

1. Implement a written policy on the Director’s exercise of discretion regarding the application of each applicable subsection of s. 20(1) of the Act within 12 months.
2. Expand and clarify the Commission’s written procedures for the Act’s “fair and reasonable evaluation in s.20(1)(g) within 6 months.
3. Submit recommendations to the Executive Council to harmonize the Act with its regulations such that it addresses gaps within 12 months.
4. Map current duties of general counsel for the authority and identify instances where the activities could be performed by the Director of Human Rights or a human rights officer, operational constraints notwithstanding, within 12 months.
5. Evaluate and select comprehensive case management software which monitors and tracks key performance indicators for all relevant statistics within 12 months.

Recommendations to the Department of Justice from the Ombudsman:

1. Amend the Act so that the [Commission] is funded directly by the Legislative Assembly or allow them to make submissions directly to Management Board.
2. Remedy the gaps identified in the report, in consultation with the [Commission], new or amended regulations for clarity and harmonization with the Act.
3. Amend the Act so that the Commission, as described in sections 3 and 4 of the Act, is increased from a maximum of five to a maximum of seven members.

The investigation report also contains some points that require correction or clarification. We have previously and principally addressed those to the Ombudsman. We encourage concerned individuals to read our formal response for background, and to visit the Commission’s website for any information regarding our policies or procedures. An advance copy of the 2023-24 Annual Report is also available online. It will be translated and presented to the Legislative Assembly during the fall sitting. We welcome you to read this for an overview of our operations.

We thank the Ombudsman and his team for their efforts to support the services we offer to the public. Our steps forward will be guided by the recognition that everyone in Yukon is free and equal in dignity and rights, and the acknowledgment of our role in ensuring that an effective human rights mechanism is accessible to all those who need it.

 

Karen Moir, Director

 

 

Quick Facts

• Discrimination is an action or a decision that results in the unfair or negative treatment of person or group because of any ground protected by the Act.
• Complaint services, specifically settlement of complaints (subsection 16(d) of the Act) and causing them to be adjudicated (subsection 16(e) of the Act) are just two aspects of the Commission’s mandate. The Commission also undertakes research and education projects and robust inquiry process.
• Over the last three years, the Commission has responded to an average of 305 inquiries per year from individuals, employers, service providers, witnesses, support persons and community organizations. Any one seeking information on human rights can call, write or walk-in to request an inquiry appointment.
• The Commission is a “forum of last resort”, meaning that complainants are generally required to have exhausted grievance or other available redress procedures before the Commission can investigate accepted complaints. Matters that come before the Commission are often complex and protracted.
• The Commission is a neutral party throughout the complaint process. Commission staff provide information and assistance to both parties, and cannot provide legal advice or representation to either party.
• The Commission’s practices are informed by the Act, the Regulations, jurisprudence from across Canada, nearly 30 operational policies and more than 150 internal legal memos on file.
• The Commission is fully independent from the Yukon Human Rights Panel of Adjudicators. Also created by the Act, the Panel receives complaints which are referred to it by the Commission as a part of its screening role. This two-part system is the most commonly used structure for national human rights institutions in Canada.
• The Act was last amended in 2002.
• The Commission cooperated extensively for more than three years with the Ombudsman’s informal resolution processes between May 2021 and March 2022, and the investigation process from March 2022 to June 2024.
• Like the Ombudsman’s office, the Commission was created by statute to advance administrative justice. It is also arms-length from all levels of government and has a comparable sized workforce of eight employees, when fully staffed.
• Yukon government’s 2024 Budget allocated $913 thousand dollars to the Commission. The Ombudsman’s office was provided with $1.83 million dollars.