The Government of Yukon v. McBee, Yukon Human Rights Commission and Yukon Human Rights Board of Adjudication case was appealed to the Court of Appeal (“the Court”). The Yukon Human Rights Commission (“the Commission”) brought forth the following issues:

  • The Supreme Court of Yukon (“Supreme Court”) does not have the power to order the remedies that it did, and;
  • The Commission does not have the power to re-assess a complaint already heard and determined by the Yukon Human Rights Board of Adjudication (“the Board”).

First, the Court concluded that the Supreme Court was acting within its power. The Supreme Court chose to set aside the Board’s decision but did not order a new hearing. Section 28 of the Yukon Human Rights Act (“the Act”) deals with appeals of Board decisions. Section 28(3) states that “the court may affirm or set aside the order of the board and direct the board to conduct a new hearing”. In this appeal, the Commission argued that as per the Act, once the Supreme Court decided to set aside the Board’s decision, it was obligated to also order a new hearing. The Court did not agree with this assertion. Courts can set aside the decisions of the Board without ordering a new hearing. Obliging a court to order a new hearing every time it sets aside a decision of the Board is neither practical nor economical.

Second, the Court considered whether the Commission had the power to re-assess a complaint already heard and determined by the Board. The Court stated that this was not the correct line of questioning. The Commission’s decision – which was to refer the complaint to the Board – was not what was appealed to the Supreme Court. It was the Board’s decision that was appealed. Therefore, the Supreme Court did not have the ability to refer the matter to the Commission for reconsideration. As it stands, the Supreme Court set aside the Board’s decision. Therefore, it was as though the Board never decided the matter. Therefore, the complaint – as it was referred to the board – continued to exist. The Commission could still reconsider its decision to refer the case to the Board. If it chose not to withdraw the referral, the Board would proceed with the hearing.

The Court allowed the appeal and set aside the Supreme Court’s order to remit the matter to the Commission. The Court found that the Complaint must proceed to a new hearing before a Board unless the Commission (or the Complainant) withdrew the request to the Board to decide the case.

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