** Note: This document contains some vulgar language that may be upsetting to some readers.

The Complainant submitted a complaint to the Yukon Human Rights Commission (“the Commission”). In the complaint, he alleged that the Town of Faro (“the Town”) had discriminated against him on the basis of his “ancestry, including colour and race” during the hiring process to fill the position of Chief Administrative Officer (“CAO position”) of the Town. Therefore, the Complainant alleged that the Town was in contravention of the following sections of the Yukon Human Rights Act (“the Act”):

1)   Section 7 (a), which prohibits discrimination on the basis of ancestry including colour and race; and

2)   Section 9 (b), which prohibits discrimination in connection with any aspect of employment or application for employment.

The facts of this case are as follows:

  • The Complainant’s girlfriend told a Town Councillor V that the Complainant was thinking of applying for the CAO position.
  • Subsequently, a colleague of the Complainant’s girlfriend alleged that she heard another Town Councillor B saying something to the effect of “We don’t need his kind representing the Town”.
  • The application process for the CAO position closed and Complainant did not apply. The Town offered the position to two candidates. Both did not accept. The position was reopened.
  • The Complainant’s girlfriend contacted the mayor of the Town and informed her that the Complainant was interested in learning more about the position. Several days later, he met with the mayor at a breakfast meeting.
  • Then, the Complainant and his girlfriend arranged a meeting with Town Councillor V and Town Councillor B, where the Complainant gave them his résumé. He informed them that he had a full résumé which was available on request. However, the shorter résumé was filed with the others.
  • During this time, another witness testified that she heard Town Councillor B say “there is no fxxking way we want an Indian with a braid down his back as our CAO.” Eventually, the Complainant’s girlfriend was informed of the comments made by Town Councillor B. The Complainant was then informed by his girlfriend.
  • The position was ultimately offered to a non-aboriginal person.
  • Then, the Complainant submitted his complaint to the Commission, who brought the case to the Yukon Human Rights Board of Adjudication (“the Board”).

First, the Board considered if there was prima facie discrimination. In other words, at the first blush, does this appear to be a case of discrimination? The Commission put forth two different legal tests to argue that there was prima facie discrimination.

The first test is outlined in the case Radek v Henderson Development (Canada) Ltd. According to the Radek test, the Complainant must prove the following:

1)   that he is the member of one or more of the protected groups against whom discrimination is prohibited by the Act (which are listed in Section 7)

2)   that he was denied a service, or he received differential treatment in relation to a service – and as a result experienced some sort of adverse effect

3)   membership in the protected group was a factor in the denial of service or differential treatment.

Though the Radek test was developed in a British Columbia case, the Board stated that it is applicable to Yukon law and is relevant to the employment context.

First, the Board concluded that since the Complainant is an Aboriginal person, he was a member of a protected group under section 7(a) of the Act. Next, the Board considered whether the Complainant received differential and unfavourable treatment. The Commission argued that there were three situations in which the Complainant was treated differently and unfavourably: (1) in having to meet with the members of Town Council prior to applying, (2) in not being asked for his full résumé, and (3) in being screened out at the review of résumés. The Board concluded that the pre-application meetings were held at the request of the Complainant or his girlfriend. Though such meetings could be considered irregular, the Board found no evidence that there was unfavourable treatment at these meetings. It also did not find that these meetings later impacted the formal screening process. Further, the Board did not find that it was unusual that the Town Council did not ask for the Complainant’s full résumé. Other candidates had also stated that further information was available on request, but no such requests were made by the Town Council. The Board found that the screening process did not treat the Complainant differently from the other applicants. It was clear that he was screened out at the same time as all the other candidates, other than those short-listed for the position. Finally, the Board considered whether the Complainant’s aboriginal ancestry was a fact in how he was treated. Though the Board found that there was considerable evidence proving that Town Councillor held negative stereotypes regarding aboriginal peoples, this was not enough to prove that this was a factor in the Council’s decision to screen out the Complainant. Therefore, the Board did not find prima facie discrimination under the Radek test.

The second test recommended to the Board was outlined in Shakes v Rex Pak Ltd. The Shakes test requires the following:

1)   that the complainant was qualified for the particular employment

2)   that the complainant was not hired; and,

3)   that someone no better qualified but lacking a distinguishing feature that is the subject of the complaint (i.e. ancestry)

The Board applied the Shakes test to the case as well. Based on the qualifications outlined the job description, the Board found that the Complainant may have been qualified for the position. It is clear that he was not hired. In order to assess the third prong of the test, the Board reviewed the hand-written notes of the councillors that were involved in their decision-making. The Board found that the Complainant was screened out based on job description-related criteria and not on the basis of any aboriginal persons-related stereotypes. Therefore, the complaint failed the Shakes test as well.

Ultimately, the Board concluded that there was no discrimination in connection with any aspect of employment or application of employment. Therefore, it dismissed the complaint.

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