**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.

The Complainant was a female and she made an application to join the Respondent organization as a member. Her application was rejected on the basis of her gender. The Respondent organization’s constitution and tradition deemed that its memberships were restricted to male persons. The primary goals of the Respondent organization were social, historical and cultural in nature. Its main concern was the welfare and well-being of its members. Indeed, the Constitution of the Respondent organization stated that its purpose was to unite its members “in the strong tie of brotherhood”. Other stated purposes included “the advancement of the Yukon Territory” and the collection and preservation of “the literature and incidents of Yukon’s history”. As a consequence of her rejection, the Complainant filed a complaint with the Yukon Human Rights Commission. When the complaint reached the Yukon Human Rights Board of Adjudication (“the Board”), an intervenor – the Yukon Status of Women Council – also made written submissions to the Board. An intervenor is someone who is not party to the issue joining the complaint. The basic rationale behind intervention is that a decision in a particular case could affect the rights of non-parties.

The Board recognized that the actions of the Respondent organization constituted discrimination against the Complainant and women in general, as defined in section 6(f) of the Yukon Human Rights Act (“the Act”). Therefore, discrimination was established in an abstract sense. However, the Board posed the following questions:

  1. Was the discrimination a prohibited conduct within the meaning of section 8(a) of the Act?
  2. If so, was the exemption clause at section 10(1) of the Act applicable?

First, the Board found that the discrimination was prohibited conduct within the meaning of section 8(a) of the Act. Section 8(a) of the Act stated that “no person shall discriminate when offering or providing services, goods or facilities to the public”. As with most human rights law, the Board interpreted this provision in a liberal manner. As per section 8(a), discrimination cannot occur while providing a public service. Though the Board recognized that the predominant activity of the Respondent organization was not public service, the Board also considered the purposes set out in its Constitution. The Constitution referred to the “advancement of the Yukon Territory”, and the collection and preservation of “the literature and incidents of Yukon’s history”. Therefore, the Board concluded that there was an important public service element in the Constitution.

The Board then investigated whether the Respondent organization discriminated when offering public services. In arriving at its decision, the Board indicated that section 8(a) is applicable to govern the membership policies of organizations in at least two situations:

  1. Where membership election is a mere formality, an organization would be considered to be acting in a discriminatory manner if it refuses to provide services of a public nature by withholding membership
  2. Where the quality of the service is affected by discriminatory acts, such as screening memberships.

The Board held that the first situation was not applicable because the membership screening process, in this case, was genuine. As to the second situation, the Board found that by excluding females from obtaining membership, the Respondent company affected the quality of the public service. Indeed, the role of the Respondent organization in collecting and preserving Yukon’s history cannot be properly performed without the active input – through membership – of the female segment of the population.

Second, the Board concluded that Section 10(1) of the Act was inapplicable in this case. Section 10 offered exemptions or situations where discrimination cannot be found. Section 10(1) stated “it is not discrimination for a… social [or] cultural… organization to give preference to its members or to people the organization exists to serve”. The Board reached the conclusion that “the people the organization exist[ed] to serve” – at least in relation to the collection and preservation of Yukon history – is the whole community, both male and females. Therefore, the exemption could not be applied.

Therefore, the Board found discrimination in this case. The Board ordered the Respondent organization to consider the application for membership of the Complainant without references to her sex.

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