**Note: The listed provisions of the Yukon Human Rights Act (“the Act”) do not reflect the current legislation.

The Supreme Court of Yukon’s (“Supreme Court”) decision pertaining Gould v Yukon Order of Pioneers, Dawson Lodge#1 and Groner, and Yukon Status of Women Council was appealed to the Court of Appeal (“the Court”).

The Court rejected the Supreme Court’s assertion that the Board should have viewed the definition of discrimination in a broader social, political and legal context. Section 6 of the Yukon Human Rights Act (“the Act”) defined discrimination for the purposes of the Act. That section provided that it is discrimination to treat an individual unfavourably based on their sex. As the Act itself provided its own definition of discrimination, it was unnecessary resort to the Supreme Court of Canada in order to determine if the Yukon Human Rights Board of Adjudication (“the Board”) was correct in its interpretation of the Act. Therefore, the Court found that the Board was correct in reaching the conclusion that the Complainant had suffered discrimination.

Next, the Court considered the Board’s application of section 8(a) of the Act. In the Court’s opinion, section 8(a) of the Act is to prohibit discrimination when offering services to the public. The starting point for the interpretation of section 8(a) of the act was to consider the service the Respondent organization was providing to the public. The Board had concluded that the service was the collection and preservation of the history of Yukon. The Board had reasoned that that service could not be performed properly without the proper input of female persons.

However, the Court found that nature of this service was not public. The research conducted was not a public endeavour – it was purely private. It was only the fruits of the research and collection that was provided to the public, at request. The Board’s decision to apply section 8(a) of the Act to consider the collection and preservation of history as a service offered to the public would have far-reaching implications. To begin, it would limit the right to freedom of expression, as protected under section 4 of the Act.

Further, section 2 of the Act stated that the Act should “be interpreted in a manner that is consistent with the preservation and enhancement of the multi-cultural heritage of the residents of the Yukon”. This should be considered in the interpretation of section 8(a) of the Act. The interpretation by the Board of section 8(a) would mean that any person could claim discrimination because something offered to the public only expressed a limited point of view. Section 8(a) of the Act did not seek to restrict freedom of expression.

The Court remitted the matter to the Board to properly apply section 8(a) of the Act. The appeal was dismissed.

The Complainant then appealed the Yukon Court of Appeal’s decision to the Supreme Court of Canada (the “SCC”). The appeal to the SCC was dismissed. The SCC outlined a two-step process for determining what constitutes a “service to the public”. The first step in the analysis involves a determination of what constitutes the “service”, based on the facts before the court. Having determined what the “service” is, the next step requires a determination of whether the service creates a public relationship between the service provider and the service user.

The SCC found that for the gender discrimination against the complainant to attract the protection of s. 8(a), the discrimination had to be linked to a service to the public. The only service the Respondent offered to the public was the provision of the historical data or documents produced by the order, which was offered equally to both male and female members of the public. As such, the discrimination against the complainant was not prohibited under s. 8(a). In other words, “Membership” under s. 8(c) of the Act is treated distinctly and separately from “services, goods or facilities” under s. 8(a).

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