Yukon v. McBee et al., (2010) 292 B.C.A.C. 218 (YukCA)

• Judge: Saunders, Bennett and Garson, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: May 21, 2010
• Jurisdiction: Yukon
• Citations: (2010), 292 B.C.A.C. 218 (YukCA);2010 YKCA 8

Yukon v. McBee (2010), 292 B.C.A.C. 218 (YukCA);

    493 W.A.C. 218

MLB headnote and full text

Temp. Cite: [2010] B.C.A.C. TBEd. OC.006

Government of Yukon (respondent/appellant) v. Yukon Human Rights Commission (appellant/respondent) and Donna McBee a.k.a. Donna Molloy and Yukon Human Rights Board of Adjudication (respondents/respondents)

(09-YU647; 2010 YKCA 8)

Indexed As: Yukon v. McBee et al.

Yukon Court of Appeal

Saunders, Bennett and Garson, JJ.A.

October 5, 2010.

Summary:

The Yukon government terminated the employment of McBee (aka Molloy). Molloy filed a complaint of discrimination against the government. Following an investigation, the Yukon Human Rights Commission referred the complaint to the Human Rights Board of Adjudication for a hearing and determination. The Board found that the government had discriminated against Molloy and ordered the government to conduct a wide-ranging investigation, but made no award to Molloy. The government appealed. Molloy cross-appealed.

The Yukon Territory Supreme Court, in a decision reported at [2009] Yukon Cases Uned. 73, allowed the appeal and cross-appeal, set aside the Board's decision, remitted the matter to the Commission and ordered the parties to bear their own costs. The Commission appealed the remittal order, asserting that the Supreme Court lacked jurisdiction to order the remittal and that the Commission had no power to re-assess a complaint already heard and determined by the Board.

The Yukon Court of Appeal allowed the appeal and set aside the remittal order. The decision of the Commission to refer the matter to the Board was never before the Supreme Court and, therefore, the Supreme Court lacked the ability to refer the matter to the Commission for reconsideration.

Administrative Law - Topic 554

The hearing and decision - Decisions of the tribunal - Finality (functus officio) - Power of tribunal to amend or reopen decision - [See Civil Rights - Topic 7078 ].

Civil Rights - Topic 7078

Federal, provincial or territorial legislation - Commissions or boards - Jurisdiction - Reconsideration of decisions (incl. reopening of hearings) - The Yukon government terminated the employment of McBee (aka Molloy) - Molloy filed a complaint of discrimination against the government - Following an investigation, the Yukon Human Rights Commission referred the complaint to the Human Rights Board of Adjudication for a hearing and determination - The Board found that the government had discriminated against Molloy and ordered the government to conduct a wide-ranging investigation, but made no award to Molloy - The Supreme Court set aside the Board's decision and remitted the matter to the Commission - The Yukon Court of Appeal allowed an appeal and set aside the remittal order - The decision of the Commission to refer the matter to the Board was never before the Supreme Court and, therefore, the Supreme Court lacked the ability to refer the matter to the Commission for reconsideration - As the matters now stood, the complaint, as it was referred to the Board by the Commission, still existed - The Commission could reconsider its decision to refer the case to the Board - However, if it did not withdraw the referral, the Board would proceed with a new hearing and the Commission would become functus officio - See paragraphs 32 to 42.

Civil Rights - Topic 7186

Federal, provincial or territorial legislation - Remedies - Judicial review - [See Civil Rights - Topic 7078 ].

Civil Rights - Topic 7186

Federal, provincial or territorial legislation - Remedies - Judicial review - Section 28(3) of the Yukon Human Rights Act provided that "(3) An appeal under this section may be made on questions of law and the court may affirm or set aside the order of the board and direct the board to conduct a new hearing." - The Human Rights Commission asserted that on appeal a court had a choice of remedy: the court could either affirm or set aside the order of the Human Rights Board of Adjudication - If the court chose to set aside the order, then it had to also direct a new hearing - The Yukon Court of Appeal rejected the assertion - The court could set aside a Board's decision without ordering a new hearing - On the Commission's reading of s. 28(3), the court would also have to direct the Board to conduct a new hearing if it affirmed the decision - The section read "affirm or set aside the order of the board and direct the board to conduct a new hearing", not "affirm the order of the board, or set aside the order of the board and direct the board to conduct a new hearing" - It would be a nonsensical reading to compel the court to always order a new hearing - The wording of the section was permissive - The section outlined two options, but they were not the only options - Also, to compel the court to always order a new hearing was neither practical nor economical - See paragraphs 22 to 31.

Statutes - Topic 2402

Interpretation - Interpretation of words and phrases - General principles - Avoidance of absurdity - [See second Civil Rights - Topic 7186 ].

Statutes - Topic 2417

Interpretation - General principles - "May" and "shall" - [See second Civil Rights - Topic 7186 ].

Statutes - Topic 5105

Operation and effect - Enabling acts - Permissive acts - What constitutes a permissive power - [See second Civil Rights - Topic 7186 ].

Cases Noticed:

Baker, Re; Nichols v. Baker (1890), 44 Ch. D. 262, refd to. [para. 29].

Zutter v. Council of Human Rights (B.C.) et al. (1995), 57 B.C.A.C. 241; 94 W.A.C. 241; 122 D.L.R.(4th) 665 (C.A.), leave to appeal denied (1995), 198 N.R. 395; 79 B.C.A.C. 320; 129 W.A.C. 320 (S.C.C.), refd to. [para. 38].

Statutes Noticed:

Human Rights Act, R.S.Y. 2002, c. 116, sect. 28(3) [para. 23].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 9-15 [para. 26].

Counsel:

C. Harrington, for the appellant;

P. Csiszar, for the respondent, Government of Yukon;

S. Roothman, for the respondent, Donna McBee (Molloy).

This appeal was heard at Whitehorse, Yukon Territory, on May 21, 2010, by Saunders, Bennett and Garson, JJ.A., of the Yukon Court of Appeal. Bennett, J.A., delivered the following reasons for the court at Vancouver, British Columbia, on October 5, 2010.