A. INTRODUCTION
The human rights legislation in each Canadian province or
territory contains a provision that prohibits discrimination
with respect to the provision of a service ("Service
Provision"). In each jurisdiction, except Ontario and
Nova Scotia, this Service Provision applies only to services
that are made generally available to the public.1
This Charity Law Bulletin ("Bulletin") examines
the recent British Columbia Court of Appeal decision, Buntain
et al. v. Marine Drive Golf Club,2
which outlines when a private, membership based, non-profit
organization will be considered 'providing services generally
available to the public', and thus when that organization
may be subject to a Service Provision under applicable human
rights legislation.
B. BACKGROUND TO MARINE DRIVE GOLF CLUB
The case involves a dispute between the Marine Drive Golf
Club ("Golf Club") and a group of its members and
their guests ("Members"). The Golf Club's Board
of Directors passed a resolution that prevented females from
having the ability to enter or use the 'men's lounge' located
in the Golf Club. The Members filed a complaint to the British
Columbia Human Rights Coalition alleging that the Golf Club,
a private club and non-profit society for the purposes of
the Income Tax Act,3
and its Board of Directors had discriminated against them
contrary to the British Columbia Human Rights Code4
("the Code"), on the basis of their sex and sexual
orientation.
The question before the Court in Marine Drive Golf Club
was not one of discrimination; the Members and the Golf Club
were in agreement that the Board of Director's decision to
prohibit females from being able to enter or use the 'men's
lounge' was discriminatory. Rather, the Court was asked to
determine whether this discrimination fell under the jurisdiction
of the Service Provision in the British Columbia Human
Rights Code5 ("the
Code"). This Service Provision, section 8 of the Code,
prohibits discrimination against a person or class of persons
regarding any 'accommodation, service or facility that is
customarily available to the public'. While the Members submitted
that the 'men's lounge' was a service customarily available
to the public, the Golf Club submitted that the 'men's lounge'
was a private service, not customarily available to the public,
and they requested the claim be dismissed on the basis that
the Code had no application to their actions.
C. SUPREME COURT OF CANADA JURISPRUDENCE
Judicial consideration in Marine Drive Golf Club and
earlier decisions in that case by the Human Rights Tribunal
and British Columbia Court of Justice,6
were based in part on the Supreme Court of Canada precedent
decisions of Gould v. Yukon Order of Pioneers7
and University of British Columbia v. Berg.8
Each of these Supreme Court of Canada decisions is comparable
to the facts of Marine Drive Golf Club because they concern
a Service Provision complaint that was filed against a non-profit
organization in their role as a service provider.
In Gould, a complaint of gender-based discrimination
was filed by a woman against an all-male organization that
had as its purpose the preserving and collecting of historical
literature and materials ("Yukon Order"). The cause
of the complaint was the denial of the complainants request
for membership to the organization on the basis that she was
not a male. Under Yukon Territory legislation, discrimination
in granting 'membership' was dealt with separately from the
Service Provision, but because the membership provision was
held to apply to economic organizations rather than social
ones, the Supreme Court of Canada held that the refusal to
extend membership to the complainant was the refusal to provide
a service. Despite this, the Court held that the only service
Yukon Order provided generally to the public was the supply
of historical literature and materials for public review,
and this service was provided without discrimination. The
Court found that the service of providing membership carried
out by Yukon Order was a private service creating no public
relationship and therefore causing no violation of the Service
Provision.
In Berg, a complaint was filed based on discrimination
because of mental disability. The complaint was filed by a
graduate student at the University of British Columbia ("UBC")
against UBC because of their refusal to both issue her the
standard building key that all other graduate students received
and to complete a rating sheet she required in order to apply
for an internship. The Supreme Court of Canada held that the
legislature did not intend the word 'public' to be interpreted
so that a service was only public if all members of the public
had access to it. Instead, 'public' was to be interpreted
in relational terms. The Court set out the test to be used
in these circumstances as a principled approach that examines
both the nature of the service and the relationship created
between the service provider and the service user.
The Court in Berg elaborated on further the test.
They confirmed that the test is so dependant on the specific
relationship between the service provider and the service
user, that some services may create a public relationship
between the provider and the user, while other similar services
may create a private relationship between similar parties.
It is not simply the nature of the service that is determinative,
but the specific details of the relationship at issue.
Using this test with the facts of Berg, the Court
held that the services involved in the complaint were customarily
available to the public, regardless of the fact that the admission
process restricted those to whom UBC customarily offered their
services.
D. THE REASONING IN MARINE DRIVE GOLF CLUB
At the Human Rights Tribunal9
hearing of the Members complaint in Marine Drive Golf Club,
the Tribunal found that the Golf Club had provided the 'men's
lounge' as a service customarily available to the public.
In making their decision, the Tribunal reasoned that when
the Court looks to the service in question, it is important
to focus not on the nature of the enterprise or the service
provider, but on the nature of the service being offered.
The Tribunal found that the commercial service of providing
food and beverage was customarily available to the public.
Further, although a majority of the individuals who use the
Golf Club were members that had been privately screened and
accepted, the member's guests and the guests of their family
members who attended at the club were not privately selected.
On this basis the Tribunal found that access to the 'men's
lounge' was customarily available to the public of the Golf
Club and thus it was within the jurisdiction of the Tribunal
to find that discrimination had taken place.
Following this decision, the Golf Club, appealed. They argued
that because they were a private club, they were not providing
a service customarily available to the public and that the
Tribunal had erred in their application of the test. The Supreme
Court of British Columbia allowed the Golf Club's appeal.10
After further reviewing the decisions of Gould and
Berg, the Supreme Court of British Columbia found that
the Tribunal had erred in law by focusing only on the nature
of the service provided. The Court indicated that the correct
test as outlined in Berg involves first considering
the nature of the service, and then going on to consider whether
the service provided creates either a public or private relationship
between the provider and the user. The Tribunal, they argued,
had failed to address the later portion of this test and merely
went on to define the public for the purpose of the service
in issue. The only opportunity that the Tribunal had provided
for recognition that the Golf Club was of a private nature
was their consideration of whether the service at issue was
ever available to anyone not selected through a private selection
process.
The Supreme Court of British Columbia relied on the British
cases of Dockers' Labour Club v. Race Relations11
and Race Relations Board v. Charter12
to reject the Tribunal's conclusion that the Golf Club's lack
of direct control over the choice of all the individuals that
attended at the Golf Club was determinative of whether there
was a public or private relationship between the Golf Club
and its users. They held instead that the relationship which
is created must be examined in light of the nature of the
service.
On the portion of the test that examines the nature of the
service, the Supreme Court of British Columbia ultimately
concluded that the service of providing food and beverage
is one that is commonly available in private and public as
well as commercial and non-commercial settings. In proceeding
to examine the relationship between the Members and the Golf
Club, they found that the requisite public relationship referred
to in Gould and found in Berg was absent on
the facts of Marine Drive Golf Club.
The Court emphasized that the general public had no access
to the Golf Club, and although some unapproved guests of members
enjoyed limited access, the relationship between the Golf
Club and its users remained primarily private. The Court further
cited the formalized selection process for determining members
as evidence of a private relationship. They held that the
allowance of visitors to the Golf Club should be regarded
only as the Golf Club trusting their members to privately
select appropriate users rather than automatic indicia of
a public relationship.
Following this decision, the Members appealed. The British
Columbia Court of Appeal adopted the findings of the Supreme
Court of British Columbia and held that the Golf Club is a
private club, with a formal selection process for determining
its members. While the Golf Club may lack control over all
of the users of its service, the relationship between the
Golf Club and those users remains a private relationship and
thus, the Golf Club and the 'men's lounge' were found not
to be services customarily available to the public and accordingly
not to be subject to the scrutiny of the Service Provision
in the Code.
The Members applied for leave to the Supreme Court of Canada
and were denied that leave on June 28, 2007 without reason.13
E. COMMENTARY
Marine Drive Golf Club confirms that a principled
approach should be used to determine whether a public relationship
exists when non-profit organizations provide services to their
members. Courts will consider both the nature of the service
as well as the actual relationship that the service provided
creates between the service provider and the service user.
Factors such as the selection of members or the portion of
the public who have access that service are relevant, but
not determinative. In each circumstance, various factors may
become relevant in making that determination.
This decision makes it clear that the traditional limitation
on the application of Human Rights legislation to private
acts remains. Yet there is an obvious willingness by the courts
to extend that application if it is found that a seemingly
private organization delivers a service to a user and creates
a public relationship in the process.
The decision in Marine Drive Golf Course provides
a useful test, but the wide variety of services that can be
provided by non-profit organizations prevents those organizations
from having the ability to anticipate when their services
could become subject to a valid discrimination complaint.
Nonetheless, this decision can provide organizations with
grounds to remain aware of possible discrimination in the
services they provide and to implement and evaluate 'access
to service' policies that can assist them in preventing the
violations of human rights in services they may be found to
provide to the public in general.
Further, as mentioned above, the issues examined in this
Bulletin pertain only to those jurisdictions that restrict
the application of their Service Provision to services generally
available to the public. Both the Ontario Human Rights
Code and the Nova Scotia Human Rights Act contain
no such restriction.14 In Ontario, the phrase "to which
the public is customarily admitted" was purposely removed
from the relevant section of their Human Rights Code in 1981.15
In these jurisdictions, individuals have a general right to
services without discrimination-the service need not be available
to the public.
1 Legislation that requires a service to be generally
available to the public in order for it to apply include;
Human Rights, Citizenship and Multiculturalism Act,
R.S.A. 2000, c. H-14, s. 4; Human Rights Code, C.C.S.M.
c. H175, s. 13; Saskatchewan Human Rights Code,
S.S. 1979, c. S-24.1, s. 12; Charter of human rights and
freedoms, R.S.Q. c. C-12, s. 15 and s 111; Human Rights
Act, R.S.P.E.I. 1988, c. H-12, s. 2; Human Rights Act,
R.S.N.B. 1973, c. H-11, s. 5; Human Rights Code, R.S.N.L.
1990, c. H-14, s. 6; Human Rights Act, S.N.W.T. 2002,
c. 18, s. 11; Human Rights Act, S.Nu. 2003, c. 12,
s. 12; Human Rights Act, R.S.Y. 2002, c. 116, s. 9;
and Human Rights Code R.S.B.C. 1996, c. 210., s. 8.
2 (2007) 278 D.L.R. (4th) 309. [Marine Drive Golf Club].
3 R.S.C. 1985, c. 1 (5th Supp.).
4 R.S.B.C. 1996, c. 210.
5 Ibid at s. 8 (1).
6 Buntain v. Marine Drive Golf Club, [2005]
B.C.H.R.T.D. No. 119. [Human Rights Tribunal Decision], Marine
Drive Golf Club v. Buntain, [2007] B.C.J. No. 37 [B.C.
Supreme Court Decision].
7 (1996), 133 D.L.R. (4th) 449. [Hereafter referred to as Gould].
8 (1993), 102 D.L.R. (4th) 665. [Hereafter referred to as Berg].
9 Human Rights Tribunal Decision, supra note 6.
10 B.C. Supreme Court Decision, supra note 6.
11(1974) 3 All E.R. 592 (H.L.).
12 (1973) All E.R. 512 (H.L.).
13 Marine Drive Golf Club v. Buntain, [2007] S.C.C.A. No. 112.
14 Human Rights Code, R.S.O. 1990, c. H.19, s. 1 and Human Rights
Act, R.S.N.S. 1989, c. 214, s 5.
15 Barclay v. Royal Canadian Legion, Branch
12 (1997), CarswellOnt 6135. Commenting on this removal
the adjudicator in this case indicated at P. 69 that the removal
of reference to the public from the Ontario statute "clearly
shows that the legislature did not intend to insulate the
provision of services in a private club from human rights
provisions."
