Summary

Marsha Cooke (“Cooke”) filed a complaint with the Yukon Human Rights Commission (the “Commission”) against the Government of Yukon (Department of Health and Social Services) on June 20, 2021. Cooke alleged systemic discrimination and that she was discriminated against on the basis of sex, including pregnancy, as a result of the Government of Yukon’s implementation of the Midwives Regulation (the “Regulation”), which resulted in a lack of access to —and later partial suspension of—midwifery services in Yukon between April 2021 and February 2024.

Cooke has five children, of which the first two were born at home with the assistance of a private midwife. Cooke was unable to access midwifery services to deliver her third and fourth children during the gap in midwifery services. Thus, Cooke alleged that the Regulation’s licensing and registration requirements and absence of hired midwives offered through a public midwifery program created a service gap that made midwife-assisted home births impossible in Yukon, resulting in systemic discrimination against pregnant persons.

The Yukon Human Rights Board of Adjudication (the “Board”) heard the complaint over five days from November 3 to 7, 2025.

During the hearing, Commission relied on expert evidence from midwifery advocate Lesley Paulette, O.C., who helped develop midwifery legislation and standards in the Northwest Territories. Ms. Paulette provided testimony on the adverse impact experienced by pregnant persons in not being able to access midwifery services. She also testified on the development and implementation of midwifery legislation, standards, and programs in other Canadian jurisdictions.

Decision

The Board, comprised of three members, issued a majority decision finding discrimination, with one dissenting opinion. The majority of the Board found that:

  • Cooke had a protected characteristic (sex, including pregnancy);
  • Midwifery constituted a service to the public under section 9(a) of the Yukon Human Rights Act (the “Act”) authorized by the Regulation; and
  • The Government of Yukon’s denial of midwifery services by not providing a program for the services, combined with prohibiting private midwifery and later suspending services, caused an adverse impact on pregnant women, including Cooke.
  • The Government of Yukon did not provide a bona fide justification, accommodation, or reasonable cause for the denial of access to services between April 2021 and February 2024, or for the suspension of the service between January 2023 and February 2024.

While the Board declined to make a formal finding of systemic discrimination because it was not essential to decide the complaint, it noted that section 12 of the Act provides an unhelpful definition for systemic discrimination. The decision highlights how the absence of a robust statutory definition limits the ability to address broad, structural discrimination, even where government policies adversely affect an entire protected group.

Remedies Awarded by the Board

In assessing remedies, the Board emphasized the seriousness of the discrimination and found that leaving Cooke without the choice of a midwife deprived her of her inherent dignity and worth.

  • General Damages: $35,750 for injury to dignity and self-respect, representing the highest award for general damages made in Yukon to date.
  • Specific Damages: $837.28 for financial loss suffered as a result of the discrimination.

The Commission asked the Board to award costs, pursuant to section 24 of the Act, in recognition of the public-driven nature of the complaint process and the Commission’s role in advancing the complaints. The Board ordered that a future hearing take place via video conference to determine if costs should be awarded to the Commission and in what amount.

Download the PDF of the decision here.