**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
The Gould v Yukon Order of Pioneers was appealed to the Supreme Court of Yukon. The Intervenor – the Yukon Status of Women Council – argued that the decision made by the Yukon Human Rights Board of Adjudication (“the Board”) would affect women in a substantial way. The decision could have a bearing on whether females could become members of a variety of organizations currently restricting membership to males only. Further, the Intervenor argued that the Respondent’s organization of exclusion of females from membership has “far-reaching implications”, as it would result in ignoring the women’s roles in Yukon history.
The Respondent organization brought forth the following grounds of appeal:
The Board was wrong in its interpretation of the Yukon Human Rights Act (“the Act”);
The Board was wrong in making findings that were contrary to the evidence or unsupported by the evidence;
The Board was wrong in accepting evidence from an intervenor;
The Board failed to conduct its hearing in accordance with the principles of fundamental justice and acted outside its power
The Board was wrong in its interpretation and application and failure to the apply the Canadian Charter of Rights and Freedoms (“the Charter”);
The Board was wrong in finding that the Respondent organization’s rejection of the Complainant’s membership was discrimination.
The Court framed this case as a conflict between freedom and equality. The Court began by considering the following question: Did the exclusion of the Complainant from membership constitute discrimination within the Act? Section 6(f) prohibited discrimination on the basis of sex. Section 11 pertained to systemic discrimination and stated that any conduct that results in discrimination is discrimination. Section 8 offered five situations in which discrimination cannot be found. The Court stated that these three sections of the Act must be read together. In the Court’s view, it is necessary to interpret the situations outlined in section 8 in its social, political and legal context. The Court found that the differential treatment of women by the Respondent company is not discriminatory as per section 8 of the Act. This was because the Respondent organization did not provide goods, facilities or services of the type that the Act sought to protect from findings of discrimination. There are various ways to characterize business and services. The Act prohibits discrimination in the provision of public accommodation, services, and facilities.
The Court stated that human rights law seeks to strike an appropriate balance between promoting equality and eliminating discrimination, and the right of individuals to form associations with others based on a characteristic. The right to form such associations is encoded in the Act: “every individual and every group shall… enjoy the right to peaceable assembly with others”. The Court found that in failing to consider that the members of the Respondent organization might have the right to associate with one another – and that this interest must be balanced with the Complainant’s right to equality – the Board made a mistake.
The Court set aside the Board’s decision and directed the Board to conduct a new hearing.