A Yukon Supreme Court judge has reserved his decision on how much time an adjudicator has to rule on Yukon Human Rights Board of Adjudication cases.

Justice Richard Marceau heard arguments Wednesday in the appeal by Yukon College of a decision released earlier this year by former chief adjudicator Barb Evans.

The case dates back to 2004, when twins Susan Malcolm and Sarah Baker were registered in the college's community support worker program.

The sisters filed a formal human rights complaint, claiming they had been harassed and discriminated against by two of their instructors.

After years of hearings and meetings, Evans awarded the sisters $10,000 each for "damages to dignity, feelings and self-respect” as well as $30,000 in legal costs.

She ruled the college discriminated against and harassed the pair based on "physical and cognitive disability or the perception thereof.”

The decision is signed May 11, 2011.

A board of adjudication normally has three members, however in this case the long-time adjudicator heard the case on her own.

The college filed the appeal, claiming Evans no longer had the power to make the ruling when she signed it last May, since her term as an adjudicator ended in December 2010.

Adjudicators responsible for deciding complaints are chosen from a panel of candidates who are appointed by the legislature and are independent of the government and the human rights commission.

The act gives adjudicators a three-year term which can be renewed by the government.

Evans had been chief adjudicator for nine years before her term was not renewed.

Larry Page, the lawyer representing the college, argued that Evans' power to make a decision ended when her term was complete, and therefore her decision must be set aside and a new hearing ordered.

Until a decision is signed, it is still considered a work in progress and cannot have any legal standing, he argued.

Unlike the Canadian Human Rights Act, there is no provision in Yukon legislation that specifically states an adjudicator can continue a case if his or her term is not renewed.

Even in the federal legislation, a ruling has to be made to allow the adjudicator to continue; it is not automatic, Page said.

The sisters' lawyer, Zeb Brown, disagreed.

He claimed the correct interpretation of the law is that the three-year time limit applies to the length of time a person is eligible to be an adjudicator, not the length of time he or she has to finish ruling on a case.

Brown called the college's interpretation on the act "simplistic” and encouraged the judge to look at the intent of the law.

Brown maintained that even though the act does not specifically state that an adjudicator should be allowed to complete a case, that is clearly what is intended.

Based on the college's interpretation, a case could go on for six or seven years before having everything fall apart, he said.

"That doesn't make any sense; why would that be what's intended?”

The board of adjudication's standing as an independent body, at arm's length from the government, would be in real danger if the legislature was able to end a case by failing to renew an adjudicator's appointment, Brown said.

It is not uncommon for a board hearing to last multiple years, he said.

"Why would they plant that time bomb in the middle of any case where everyone could end up back here?” Brown asked.

The lawyer then presented a list of the members currently eligible to be a part of a new board of adjudication if the court sets aside the current ruling.

If the law is interpreted the way the college suggests, the maximum amount of time left in a potential adjudicator's term is 13 months, he said.

The original case being appealed began approximately seven years ago.

Brown then argued that the other parties had a responsibility to raise the issue of Evans' appointment coming to an end.

He claims it was clear in the legislature on Nov. 9, 2010, that Evans' appointment was coming to an end.

The commission was in the legislature that day, Brown said.

Had the issue been brought up at that time, Evans could have been asked for more information as to why her decision had yet to be made, he said.

Evans did not file an affidavit in the appeal and was not compelled to come before the court, the judge was told.

At one point, the judge appeared to question why the case reached this point, asking all the parties why they didn't sit down and talk about the situation.

"The only payer here is the taxpayers of the Yukon,” he told the four lawyers present. They included representation from the Yukon Human Rights Commission and the Yukon Human Rights Board of Adjudication.

The Star has made attempts to find out how much money the college has spent on the case to date.

So far, all requests have been denied.

No date was mentioned for the release of Marceau's written decision.