**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.
The Bergeron v B.Y.G Natural Resources Ltd. case was brought on appeal to the Supreme Court of the Yukon Territory (“the Court”). The Complainant brought forward several issues pertaining the Yukon Human Rights Board of Adjudication (“the Board”) decision. The Court considered the following issues:
- The Board used the wrong standard of proof when considering whether Mr. F’s comments amounted to sexual harassment.
- The Board was incorrect in finding that the comments made by Mr. F did not constitute sexual harassment (as defined by section 13(2) of the Act).
- The Board was incorrect in finding that there was no evidence proving that the Complainant expressed to Mr. F that his comments were unwelcome.
First, the Court found that the Board did apply the wrong standard of proof. The standard of proof refers to the level of certainty and the degree of evidence needed to prove a claim in a legal proceeding. The Court emphasized that in this case, the Complainant simply needs to prove that there was prima facie discrimination. In other words, at the first blush, does there appear to be discrimination? The Board did not apply this standard.
Under the law, the second issue brought forth by the Complainant would be typically characterized as a question of fact. Questions of fact refer to questions that can be answered by referring to facts and evidence. Section 26 of the Act states that complainants can appeal decision made by the Board when it pertains a question of law – questions pertaining the interpretation of the law. In this situation, the Court relied on the case Gould v Yukon Orders of Pioneers to determine whether it could accept the Complainant’s second issue. Gould states that the Court could consider findings of fact that are so unreasonable. For this particular issue, the Court found that the findings of the Board were so contrary to the evidence and so unreasonable that they should be considered errors of law. Indeed, the Court found that the Board was incorrect in finding that Mr. F’s comments did not constitute sexual harassment. Further, the Complainant’s evidence with respect to her reactions to Mr. F clearly indicate that his comments were unwelcome.
In that same vein, the Court found that the Board was incorrect in find that there was no evidence proving that the Complainant expressed to Mr. F that his comments were unwelcome.
The Complainant also sought to appeal the Board’s decision regarding the liability of the Respondent company. The Court concluded that there were no errors of law made by the Board on this point.