The Supreme Court of Yukon has rejected the Yukon Human Rights Commission’s request to become a respondent in a lawsuit alleging discrimination in the territory’s school and health systems.
The lawsuit was filed by a Yukon man who says, via a guardian, that two government departments discriminated against him on the basis of his physical disability.
The petitioner is arguing that barriers in place within the education system affected him even though the barriers were not specifically directed at him.
The man, who has hearing impairments, alleges the departments failed to accommodate him appropriately.
The commission wants to be a party in the lawsuit alongside the government, however, the commission is still adjudicating parts of the complaint in question.
The commission is requesting party status because it wants the right to appeal, in the case the government won’t.
The commission had denied parts of the human rights complaint because those parts were not considered to be a continuing contravention and fell outside of the 18-month time limit set out in the Human Rights Act.
In a written decision dated June 30, Chief Justice Suzanne Duncan said a fix is being sought in the judicial review to quash the decision by finding that the complaint was in fact an ongoing breach and a declaration that the current interpretation of the act “cannot effectively meet the goals of human rights legislation and society of eliminating systemic discrimination.”
In the decision document, the commission says they are the decision-maker and thus they are entitled to be a party in any event they are directly affected by the order sought in this petition.
The commission says the petitioner is disputing the scope of the acceptance or rejection of complaints for investigation under the act, and they say they cannot rely on the government to appeal if they are unhappy with the court’s decision.
The commission wants to preserve its right to appeal by becoming a party.
Duncan said that allowing the commission to appeal the decision which they consider unfavourable to them – in the context of the ongoing complaint adjudication between the same parties – “risks discrediting their impartiality.”
The decision indicates being directly affected has been the subject of “very little judicial interpretation” and even less so when it comes to what it means for decision-makers.
“Generally, if a third party to the dispute has its legal rights or financial position affected, or is affected by the precise outcome of the matter between the main parties, it will be directly affected.”
The decision explains the application may be renewed if the circumstances change or if parts of the complaint that remain to be adjudicated by the commission are resolved, or the arguments of the petitioner turn out to be different than articulated, thus changing the analysis of what it means to be directly affected.
Contact Dana Hatherly at dana.hatherly@yukon-news.com