A divided Yukon human-rights board ordered the territorial government to pay Marsha Cooke $36,587.28 after finding that gaps in access to midwifery care discriminated against her because of sex, including pregnancy.
The majority's January 12, 2026 decision in Marsha Cooke v Government of Yukon, Department of Health and Social Services, YHRPA File 2024-03 awarded $35,750 for injury to dignity, feelings and self-respect, plus $837.28 for birthing supplies.
In a separate costs decision signed May 7, 2026, the Yukon Human Rights Board of Adjudication unanimously refused additional costs for Cooke and the Yukon Human Rights Commission. Those requests were not further damages awards.
A gap between regulation and care
The case concerned two disruptions in access to midwifery services, not whether home births are generally safer than hospital births.
Before April 15, 2021, people in Yukon could privately hire a midwife. Regulations taking effect that day required midwives to be registered and licensed, but the government had not yet established the program and registration arrangements needed to deliver the new publicly funded service. The majority found that this left Cooke without either a private or public midwife during a pregnancy.
A publicly funded program began providing services in July 2022. In January 2023, staffing shortages led to another interruption: prenatal and postnatal care remained available, but midwives would not attend births. Cooke, who had been accepted into the program during another pregnancy, again lost access to the birthing care she sought. The reasons record that full-service midwifery resumed on February 12, 2024.
Cooke wanted a midwife-supported home birth. She ultimately gave birth at home during both affected pregnancies without a midwife. The majority considered her distress and loss of control over that choice when assessing compensation.
Service delivery, not an attack on the regulation
The government argued that the complaint challenged legislation beyond the board's jurisdiction. It also maintained that the lack of available midwives affected everyone, rather than denying Cooke a benefit others received because of her sex or pregnancy.
Chief adjudicator Judith Hartling and adjudicator Roxane Larouche rejected those arguments. They treated publicly funded, regulated midwifery as a service offered to the public. In their analysis, the problem was not the regulation's validity but the discriminatory way access to the service had been withheld or limited.
The majority applied the human-rights test requiring a protected characteristic, an adverse impact in a protected area such as public services, and a connection between the two. It found that sex, including pregnancy, was a factor in Cooke's inability to obtain the care. The absence of a precise comparison group did not defeat her claim.
Once discrimination was established, the government had to demonstrate justification, reasonable cause or accommodation. The majority found the evidence insufficient. A letter saying the program was being developed did not explain why it was not ready; references to staffing shortages did not establish what efforts had been made to address them.
An interim travel policy allowed applications for assistance to seek midwifery elsewhere, but did not secure the actual services. Cooke would have had to find an available midwife outside Yukon, and obtaining the full benefit of care could require a lengthy stay. The majority found that arrangement inadequate. Referral to a doctors' maternity practice also did not provide the home-birth service she sought.
The majority did not find an intention to discriminate. It acknowledged that the government appeared to want to improve access to publicly funded care, but held that good intentions did not answer the discriminatory effects established on the record.
A dissent on the limits of human-rights law
Adjudicator Victoria Chan would have dismissed the complaint. She viewed the initial regulatory transition and the later staffing interruption as separate events.
For the first, Chan considered that a poor policy decision or failure to implement a licensing system did not itself establish discrimination on a prohibited ground. For the second, she was not satisfied that a broken service promise or reduced staffing equated to discrimination because of sex and pregnancy. Her reasons emphasized limits on the board's role in reviewing legislation and allocating public resources. Chan also concluded that the regulation did not create a positive entitlement to the optional midwifery service or alternative birth choice Cooke sought.
The majority nevertheless granted individual compensation. It declined a declaration of systemic discrimination or broader corrective relief because the evidence showed the midwifery program had resumed full service.
No additional costs
The later costs application sought $30,217.35 for the commission and $217.42 for Cooke. The board emphasized the risk that costs could discourage legitimate human-rights complaints and found no misconduct by the government in the proceeding. It refused both requests, leaving the January damages awards separate and unchanged by the costs ruling.
