The Malcom & Baker and YHRC v Yukon College case was appealed to the Supreme Court of Yukon (“the Court”). The facts relevant to the appeal are as follows. Ms. E was the Chief Adjudicator with the Yukon Board of Adjudication (“the Board”) for this case. She heard the parties’ final arguments in September 2010. Ms. E’s term as Chief Adjudicator ended in December 2010. She signed her decision with respect the Complainants’ complaint in May 2011. The central concern in this appeal was whether Ms. E had the power to issue a decision after her term had expired.
The Respondents brought forth the following issues to the Court:
- Did the Respondents waive their right to question Ms. E’s power to issue the decision?
- Was the decision “made” prior to the expiration of Ms. E’s term?
- If not, should the Court read in a “grace period” allowing members of the Board to complete decisions after the expiration of their term?
- If not, did Ms. E continue to have the power to hear the complaint after the expiration of her term?
First, the Court found that the validity of Ms. E’s decision depended solely on whether she had the legal power. It did not matter whether any party questioned it.
Second, the Court considered whether the decision was “made” prior to the expiration of Ms. E’s term. The Board concluded that a decision is not “made” until it is in writing or formally announced orally. A final decision is one that cannot be changed. As such, the Board concluded that the decision was made in May 2011, after the termination of her term.
Third, the Court was unable to decide whether it could read in a “grace period” allowing members of the Board to complete decisions after the expiration of their term. The Supreme Court of Canada has stated that there is an obvious need to allow members to continue beyond the expiry of their tenure. Some hearings are lengthy, and it is difficult to enlist a new member in the middle of a lengthy hearing. As it stands, the Yukon Human Rights Act (“the Act”) does not provide a provision enabling members of a Board to continue beyond the expiry of their tenure until the completion of a hearing. The Court concluded that the Act was lawful and practical, and it was not the Court’s role to imply terms into the Act.
Fourth, the Court found that the expiration of Ms. E’s tenure did not rob her of her power to make the decision. Section 22 of the Act establishes two distinct bodies: the Panel of Adjudicators (“the Panel”) and the Board. The Panel is comprised of members appointed for a fixed three-year term. The Board is a distinct body established to hear a particular complaint. Section 22(4) of the Act broadly states that when the Chief Adjudicator establishes the Board, she “shall… determine its membership”. A plain reading of these words suggests that the Chief Adjudicator does not need to select members only from the Panel. Although section 22(1) of the Act suggests that members of the Panel are meant “to be called on” to hear complaints, the Court concluded that it could not deviate from the plan language reading of section 22(4). Therefore, nothing in the Act requires members of the Board to be appointed members of the Panel. As a result, the expiration of Ms. E’s tenure did not rob her of her tenure.
As a result of these conclusions, the Court affirmed the Board’s decision. The Court ordered the Complainants and Respondents to seek costs against each other by arranging for a costs hearing.