**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
Following the Board’s decision on McConnell v YTG, the Complainant wrote the Yukon Human Rights Board of Adjudication (“the Board”) asking it to consider the following outstanding matters:
- Whether the Board had the power to reconvene after it had made its final decision in September 1998
- Whether the Board had the power to consider the implementation and enforcement of certain terms of its final decision in September 1998
- Whether the Board was obliged to assess costs pursuant to section 15 of the Regulations of the Act
- Clarification of the interest rate to be used in the calculation of “simple interest”
- Clarification of the deductibility of disability benefits received by the Complainant
First, the Board found that it had the power to reconvene after it had made its final decision.
Second, as per section 25 of the Yukon Human Rights Act (“the Act”), an order of the Board of Adjudication can be filed in the Supreme Court of Yukon and then it will be enforceable as an order of the Supreme Court.
Third, Section 15 of the Regulations state that the Board must assess costs in the same manner and on the same basis as if the hearing had been in front of the Supreme Court of Yukon. Therefore, the Board ordered that the costs shall be assessed by the Registrar of the Supreme Court.
Fourth, the Board’s decision in September 1998 stated that “simple interest shall be calculated and added to the award for financial loss”. The Board found that the calculation of “simple interest” will be in accordance with the Judicature Act. The calculation of interest will be as if this was an order of the Supreme Court of Yukon.
Finally, in its final decision, the Board clarified that any award given to Complainant would be deducted by the income earned by the Complainant during the first two years after the discrimination. The Complainant and the Yukon Human Rights Commission (“the Commission”) both submitted that the sum of money that was paid to the Complainant by her disability insurer should not be deducted from actual income earned by the Complainant. The Board found that the disability insurance benefits should be deducted for the following reasons:
- The Complainant had not lost the value of her insurance benefits. She had received the full value of her insurance benefits for two full years. She was seeking to claim the sum of money that was provided to assist her in finding a new job, but this sum of money was essentially a bonus that she had not contributed to.
- Using the reasoning of Mr. Justice Hudson in the Yukon Supreme Court in Kennth Smith v. Shakir Alwarid and Government of Yukon Territory, although the Complainant contributed to the long-term disability plan, the plan was not subject to negotiation and was unrelated to any foresight on the part of the plaintiff.