The Yukon government is appealing to the territory’s Supreme Court to overturn a decision from the Yukon Human Rights Board of Adjudication which found the government discriminated against a Whitehorse woman when its policies prevented her from accessing midwifery services.

In January, the Yukon Government was ordered to pay the woman over $36,000 – the largest amount ever awarded in the territory for general damages.

Now, the government is contesting the decision, claiming the Yukon Human Rights Board of Adjudication “erred in law” by finding the government’s actions discriminatory.

In 2021, Marsha Cooke was unable to access midwifery care in the territory due to Yukon government policies. Following a hearing, Yukon Human Rights Board of Adjudication found the government’s actions were discriminatory, as “she was left with [the government] creating her choices for her.”

In an appeal filed to Yukon Supreme Court on Feb. 11, the government asked for the Human Rights Board decision to be set aside, the complaint dismissed, and all court costs to be held against the Human Rights Commission. 

‘Deprived of her inherent dignity and worth’

The case concerns a situation that began in 2021, when the Yukon government introduced new midwifery regulations without having developed a midwifery program. The regulations prohibited midwives from practicing until they were licensed and registered – but did not provide a clear way for midwives to legally register.

That left women like Cooke without access to care. She filed a complaint which alleged systemic discrimination on the basis of sex, as the Yukon government’s policies created a service gap for pregnant people.

During the hearing, the government argued being female and being pregnant was not the cause of adverse impacts, but rather access to midwifery, which is not a protected characteristic.

As part of their ruling, adjudicators looked to legal precedent which states, “discrimination occurs when a seemingly neutral law has a disproportionate impact on [protected] groups.” 

The board ultimately found Marsha Cooke had been discriminated against and that leaving her without access to a midwife “deprived her of her inherent dignity and worth.”

The board declined to make a formal finding of systemic discrimination, but noted that the Yukon Human Rights Act provides a “not particularly helpful” definition for determining whether discrimination is systemic.

Under a heading outlining systemic discrimination, the Act simply states that “any conduct that results in discrimination is discrimination.”

“The decision highlights how the absence of a robust statutory definition limits the ability to address broad, structural discrimination, even where government policies adversely affect an entire protected group,” the Human Rights Commission later said in a summary of the decision.

Commission: further litigation ‘not in public interest’

Karen Moir, Yukon Human Rights Commission director, told CBC in an email that human rights law is intended to be remedial, not punitive – and said the commission has made every reasonable effort to settle the complaint since it was filed in 2021. 

“Litigation is costly and the commission is of the view that further proceedings are not in the public interest,” wrote Moir. “Nonetheless, we will respond to the government’s legal action in a way that is […] consistent with our mandate to eliminate discrimination in Yukon.”

The complainant, Marsha Cooke, did not respond to a request for an interview, and the Yukon government declined to comment.