Navigating the Ins and Outs of the Yukon Human Rights Act

By Garima Karia

During my time at the Yukon Human Rights Commission (the “Commission”), I drafted legal memos for the Legal Counsel and Director. The subject matters of these legal memos often arose out of ongoing Commission investigations, or live matters before the Director, which made them both timely and interesting. The memos also often dealt with interpreting and potentially expanding the scope of the Yukon Human Rights Act. In this blog, I will highlight my findings from my largest undertaking during the internship: a memo I drafted on section 12 of the Yukon Human Rights Act. Currently, section 12 of the Act reads as follows:

Systemic discrimination: “Any conduct that results in discrimination is discrimination.”

My colleagues at the Commission and I thought that this definition of systemic discrimination could use some work as it lacks clarity and specificity. Therefore, my task was to do a deep dive into how the term should be defined, and to propose a series of reforms to this section of to the Act that could clarify the definition of systemic racism/discrimination.  To ensure that I proposed a comprehensive set of recommendations, I surveyed all Canadian human rights legislation (provincial, territorial, federal) and jurisprudence to assess if and how other jurisdictions drafted provisions relating to systemic discrimination, and how these provisions were interpreted by tribunals and courts. I also looked broadly at academic commentary on the matter.

I found that, currently, no exemplary definition of systemic discrimination exists in Canadian legislation. However, upon surveying different definitions and interpretations of the term, I identified six key characteristics that, if combined, could make up a comprehensive definition of systemic discrimination. These key elements are the following:

  1. The effect or impact of a policy or act, rather than its intention, is at the crux of systemic discrimination. In other words, if a well-intentioned policy or act has the effect or impact of disadvantageous treatment of a particular protected group, it may be considered to perpetuate systemic discrimination despite its intent.
  2. Facially neutral policies or acts may cause systemic discrimination.
  3. Systemic discrimination is often subtle or “hidden.”
  4. Systemic discrimination is rooted in long-standing social and cultural attitudes and norms.
  5. Systemic discrimination may be embedded or detected in patterns/series/continuing phenomena that have significant cumulative effects. In other words, “the whole is greater than the sum of its parts” when it comes to the collective effect of various instances of discrimination or differential treatment that result in systemic discrimination.
  6. Systemic discrimination often contains an element of intersectionality.

In addition to the Yukon, Manitoba and Saskatchewan are the only other jurisdictions that define or include systemic discrimination in a meaningful way in their human rights legislation. While Saskatchewan’s Code does not include a definition, it empowers its Commission to prevent and address systemic patterns of discrimination. Manitoba’s definition is more specific than Yukon’s in that it includes elements of “effect/impact over intent” and “pattern/series/continuing phenomena resulting in significant cumulative effects,” but is still missing other key elements from the list above. As such, I proposed that a re-formulation of section 12 include all six key elements, as well as a provision that empowers the Commission to tackle the issue of systemic discrimination specifically.

Amending the systemic discrimination provision of the Act is important because manifestations of systemic discrimination undoubtedly make their way into human rights complaints. Even in cases of more “overt” systemic discrimination (e.g. if a pattern of behaviour is apparent or a complainant has been able to track acts of discrimination and their cumulative effect over time), a clear definition of the term and all that it may entail will empower complainants as well as Commissions and Tribunals to better interpret and deal with the impacts of systemic discrimination. Moreover, giving Commissions the agency to address and combat systemic discrimination as part of their mandates may produce creative and productive results.

Through my in-depth research and broad survey of how systemic discrimination has been conceptualized by courts, legislatures, human rights commissions, and academics across Canada, I have identified a list of key features that I argue should be integrated into any legislation or body’s definition of the term. In so doing, these bodies will give courts, complainants, and the public a clearer idea of what systemic discrimination entails, and how we can go about dismantling it.

Access to Justice in Action at the Yukon Human Rights Commission

By Garima Karia

This summer, I have had the immense fortune of moving to Whitehorse, Yukon to work alongside the fantastic humans at the Yukon Human Rights Commission (“the Commission”). As I read my peers’ reflections on their own human rights internship experiences, many of which include musings and lessons surrounding remote work, I feel both incredibly lucky and guilty – lucky that I was able to spend nine out of twelve weeks in the Yukon, and guilty that I happened upon this rare privilege in the midst of a pandemic. All that I can say is that I’m deeply grateful, and that I hope to do right by the opportunity.

At the Commission, my main duties are three-fold: I take “duty” shifts, during which I am the point-person in the office for inquiries from members of the public; I draft legal memos on questions of law and procedure that come up in human rights complaint investigations; and I support the human rights investigators by transcribing interviews, editing investigation reports, and talking through various aspects of human rights and administrative law as they apply to investigations. I have also been lucky enough to witness our Director facilitate settlement discussions and shadow him in his role as the “gatekeeper” at the threshold stage of the human rights complaint process.

Thus far, my favourite part of the job has been taking human rights inquiries from the public. This arm of the Commission operates similarly to a legal clinic (like the Legal Information Clinic at McGill, where I have been a caseworker in the past). We listen to an inquirer’s story or question (sometimes multiple questions!), and then provide relevant information about the Yukon Human Rights Act and the Commission’s human rights complaint process. Two key elements of an inquiry are explaining, in simple terms, the prima facie test for discrimination and the duty to accommodate. Both are core elements of the Act that work to guard against human rights violations and discrimination. The “ground-harm-nexus” model underlying the prima facie test can sometimes be justifiably difficult for inquirers to grasp. Many will state that they are a member of a vulnerable group that is protected under the Act, and that they experienced a harm in one of the protected areas (e.g. employment or accessing goods and services), but the nexus – the idea that the harm was driven by and sufficiently connected to discrimination based on a protected characteristic (such as gender expression, race, religion, or family status) – is the hardest to grasp.

Inquiries are challenging because they can often be very personal and emotional for the individual seeking assistance from the Commission. During my time here, I have dealt with inquiries pertaining to wrongful dismissal for disability or family status reasons to visitation rights of inmates and discrimination perpetuated by medical professionals. I have also encountered numerous COVID-related inquiries about vaccine status “discrimination” and mask mandates. Even though I am unable to provide legal advice as a Commission employee, I can comfort those who sought assistance from the Commission and assure them that I would do my best to guide them through the process. Engaging with Yukoners in this way – hearing and responding to their inquiries – feels like the most “human” part of my job. Although I love legal research and diving deeply into a niche question of law, I sometimes find that theoretical exercises leave me feeling distant from the actual practice of law and access to justice. Inquiries, on the other hand, illustrate how legal information can empower people to autonomously make informed decisions and choices that are attuned to their particular situation(s) or lived experience(s), which is what I think access to justice is all about. It’s rewarding to equip someone who felt powerless in their situation with resources and information that empower them to seek recourse and feel supported in doing so.

I am also learning a lot from the exercise of explaining human rights law without legal jargon. I am able to see, first-hand, how easily digestible the law can be without the opacity I often come across in law school settings. Many inquirers who come to the Commission cannot afford direct legal action and have exhausted many other avenues for resolution. They are often frustrated and losing hope – many have told me that they aren’t ready to give up on their cases but are tired of losing time and facing dead ends. Something as simple as understanding a legal test and filling out a complaint form, thereby commencing a dispute resolution process, gives some degree of reprieve to many people.

Human rights commissions and tribunals across the country provide free access to discrimination-related dispute resolution. In doing so, individuals who have experienced discrimination can seek justice in a very tangible and inexpensive way, unlike through the courts. However, like other useful bodies in the legal sphere, many human rights commissions are understaffed and underfunded, which can lead to significant delays. I plan to learn more about access to justice efforts in the administrative legal space in order to (hopefully) raise more awareness about and increase support for this avenue for dispute resolution in Canada.

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