The Molloy v Property Management, Yukon Government case was appealed to the Supreme Court of Yukon (“the Court”). In the appeal, the Yukon Human Rights Commission (“the Commission”) sought to overturn the Yukon Human Rights Board of Adjudication’s (“the Board”) decision to allow the no-evidence motion.
The Court found that the Board did have the power to hear the no-evidence motion. However, the Court found that the Board was incorrect in finding no evidence on the two issues that it considered.
First, the Court found that the Board might have been correct in holding that there was no evidence proving that the Respondent was the Complainant’s employer. However, the Court found that establishing an employer-employee relationship was not necessary to find a violation of the Yukon Human Rights Act (“the Act”). Section 9(b) of the Act states that no person can discriminate “in connection with any aspect of employer or application for employment”. In the Court’s view, section 9 does not focus on the employer-employee relationship. Rather, it focuses on the activity engaged in by the Complainant. Therefore, the correct question to pose was whether the Complainant was discriminated against in connection with his employment. The Court found that there was some evidence worthy of consideration pertaining this question and as such, the no-evidence motion on the employment issue should not have succeeded.
The second issue asked whether there was evidence proving that the Complainant’s criminal record was a factor in his firing. The Board found that there was no evidence. The Court did not agree with the Board’s finding. The Court found that the Board had no direct evidence to show that the Complainant’s criminal record was a factor. There was some evidence that could have allowed one to infer that the criminal record was a factor. For example, there was evidence that the Complainant had a criminal record, that it had been well publicized and that at least one workshop participant had complained about his criminal record. Though this evidence was not strong, it still allowed for an inference. Therefore, the Court found that the no-evidence motion on this issue should not have succeeded.
The Court concluded that the Board should not have allowed the no-evidence motion. The Court concluded that the evidence taken thus far was admissible evidence. The Board had the discretion to decide whether the case ought to be revisited.