The Town of Faro (“the Town”) was looking for a new Chief Administrator Officer. A competition was held. In the first round, the Complainant did not apply. An offer was made to a successful candidate, but that person declined the offer. As a result, there was a second competition. The Complainant applied for the position but was not given an interview. The Complainant advised the Town that he had been told by friends that during the hiring process, one of the councillors had made disparaging remarks about aboriginal peoples and indicated that the Town would not be hiring an aboriginal person. Subsequently, the Complainant filed a complaint with the Yukon Human Rights Commission (“the Commission”). After a preliminary investigation, the Commission decided that the complaint warranted further investigation. An investigator completed a report to the Commission. The Town argued that the report was biased and that it tainted the entire process so that the Town would not have a fair chance in this case. The Town brought this matter to the Supreme Court of Yukon (“the Court”).

The test for finding bias was outlined in the dissenting and concurring opinions of Supreme Court of Canada case Justice and Liberty v National Energy Board. The test asks: Would an informed person – who views the matter realistically and practically – conclude that the decision-maker would not make a decision fairly? In this case, the Commission was separate from the investigator and the Yukon Human Rights Board of Adjudication (“the Board”). The Board does not conduct investigations and adjudicators on the Board are not appointed by or are accountable to the Commission. As such, bias in an investigation or the Commission should not create bias in the Board.

The Court also addressed the Town’s argument that there had been an unreasonable delay such that the complaint should be dismissed. The Court was guided by Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 and quoted Justice Bastarache who said:

[t]here must be more than merely a lengthy delay for an abuse of process; the delay must have caused actual prejudice of such magnitude that the public’s sense of decency and fairness is affected (para. 133).

Therefore, the Court denied the Town’s petition. The Court stated that this matter should proceed directly the Board.

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