The Complainant filed a complaint with the Yukon Human Rights Commission (“the Commission”) alleging that she was discriminated against in the employment context on the basis of her marital status. The facts of the case are as follows. At the time of the alleged incident, the Complainant was an employee with the Government of Yukon (“the Respondent”). Her common-law spouse, T, had a well-known criminal record. The identity of her spouse created workplace issues – both in her substantive position and at her temporary assignments.

T was independent contractor seeking to establish himself as a facilitator specializing in teambuilding. For several months, he had unsuccessfully pursued government contracts. When the Yukon Tourism Education Council (YTEC) sought to facilitate a training program for its employees, the Complainant recommended her husband. T was subsequently hired. Once employees learned of T’s criminal record, the program was abruptly cancelled. An investigation was conducted with regard to the Complainant’s involvement with the contract between T and the YTEC. Subsequently, the Respondent fired the Complainant, alleging breach of their Conflict of Interest Policy.

The Yukon Human Rights Board of Adjudication identified the following issues in this case:

  • Did the Respondent discriminate against the Complainant because of her relationships, and more specifically, her relationship to T, who had a well-known criminal record?
  • Was discrimination a factor in the termination of the Complainant’s employment?

First, the Board found that the Complainant was subject to discrimination because of her marital status. Based on the evidence, the Board found that the Complainant’s relationships within the workplace changed shortly after she became involved with T. In particular, the Complainant’s supervisor, Ms. VB became increasingly involved with the Complainant’s personal life. For instance, she recommended that the Complainant leave T. She also asked the Complainant if she was aware of T’s abusiveness towards women.

A number of issues also arose as a result of T’s presence at the Complainant’s workplace. For example, the Complainant’s co-workers complained that T spent too much time in the Complainant’s office with the door closed. The Board also found that Ms. VB did very little to address the personal safety and performance issues of the Complainant. For example, performance evaluations of the Complainant were not conducted. Based on this sum of evidence and the situational factors leading up to the termination of the Complainant’s employment, the Board believed that the Complainant was discriminated against based on her marital status.

Second, the Board found that the Respondent’s decision to fire the Complainant was in part based on her marital status, including the identity of her common-law spouse and his criminal record. The Complainant’s relationship with Mr. T had created difficulties for the Respondent. Firing the Complainant would erase all the problems linked with Mr. T.

The Board ordered the Respondent to investigate its role and ability to ensure that no employee is at risk due to spousal abuse arising from an employment situation. They ordered the Respondent to implement a prevention strategy based on the findings from the investigation.  They also ordered costs to the Yukon Human Rights Commission from the Respondent. The Board made no award to the Complainant who they found did not cooperate in the adjudication of her complaint and refused to return to complete her cross-examination by the Respondent.

Government of Yukon v. McBee, Yukon Human Rights Commission and Yukon Human Rights Board of Adjudication, 2009 YKSC 73 (Yukon Supreme Court decision)

The Respondent appealed the McBee Molloy v Yukon Government decision made by the Yukon Human Rights Board of Adjudication (“the Board”). The appeal was brought to the Supreme Court of Yukon (“the Court”).

The Respondent brought forth the following issues which they considered errors in law:

  • The Board was incorrect in finding that discrimination was a factor in the Complainant’s firing;
  • The Board should not have considered or given weight to the testimony of the Complainant since she did not finish her cross-examination; or alternatively, the Board failed to indicate what weight was given to the complainant’s evidence; and
  • The Board granted a remedy that was outside of its power.

In cross-appeal, the Complainant argued the following:

  • The Board made a decision about remedies without hearing from the parties;
  • The Board granted a remedy that was outside of its power; and
  • The Board penalized her non-attendance and should have granted her a personal remedy.

The Commission took no position on the appeal.

The following paragraphs will explain the Court’s position on both the Respondent’s and Complainant’s issues.

Pertaining the first issue, the Respondent argued that the Board did not provide a clear analysis of the evidence or its application to the question of whether there was discrimination. The Board did not provide the logical connection between the evidence and their conclusions. The Court agreed with this argument. Indeed, the Board’s decision provided no indication of how it came to the conclusion of finding discrimination. There was also no analysis of the Respondent’s Conflict of Interest policy, nor their justification for dismissing the Complainant.  The Board also did not ask whether the Complainant had indeed breached the Conflict of Interest of Policy. This would have been important in determining whether the Respondent was being genuine in firing the Complainant on that basis.

Second, the Court considered the issue pertaining the Complainant’s testimony. In this case, the Board did distinguish the Complainant – who had gone through substantial, though incomplete, cross-examination – and someone who would have gone through no cross-examination. Nevertheless, the Court found that the Board should have still considered how much weight it would have given to the Complainant’s testimony evidence. The Board should have also assessed the credibility of the witnesses.

Then, the Court considered to the issues brought forth by both the Respondent and the Complainant regarding remedies. Both parties argued that the Board granted a remedy that was outside its legal powers. The argument was that the Board’s power to grant remedies is limited by section 24(1) of the Yukon Human Rights Act (“the Act”). Section 24(1)(b) allows the Board to award a remedy that would rectify the discrimination. Both parties argued that the remedy ordered by the Board was unrelated to the alleged discrimination in this case – which was that the marital status of the Complainant or the criminal record of her common-law spouse had played a factor in her dismissal. Instead, the Board ordered the Respondent to prevent situations of spousal abuse in the workplace.

The Court agreed with both parties’ positions. The complaint before the Board was not about whether the Complainant was a victim of spousal abuse. Further, the Court concluded that the Board should not have decided on a remedy without hearing from both parties. Though this is not the typical procedure, in this case, the case transcripts revealed that the Board left the impression that they would allow for separate evidence and arguments on remedies that could be heard later.

Ultimately, the Court set aside the Board’s decision and advised that the matter be returned to the Commission.

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