Administrative law – Human rights complaints – Discrimination – Gender – Private clubs – Customarily available to the public – Definition – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction – Judicial review – Compliance with legislation – Standard of review – Correctness
Marine Drive Golf Club v. Buntain,  B.C.J. No. 2181, British Columbia Supreme Court, October 14, 2005, Boyd J.
The Golf Club was a golf and social club located on South West Marine Drive in Vancouver incorporated under the Society Act in 1929. The objects of the Golf Club include the ownership and operation of a clubhouse, a golf course, and other recreational facilities for the benefit and use of its members and guests. Apart from the golf course, practice range and Pro Shop, the Golf Club facilities include a members-only lounge reserved for women, a members-only lounge reserved for men (the “Men’s Lounge”), and a “mixed grill” for use by both men and women members. A number of women members brought a complaint before the B.C. Human Rights Tribunal (the “Tribunal”) alleging that by not allowing women any access to the Men’s Lounge, the Golf Club had discriminated against them with respect to an accommodation, service or facility customarily available to the public on the basis of their sex and sexual orientation, contrary to s. 8 of the Human Rights Code, (“the Code”). The Golf Club brought a preliminary application to dismiss the complaint on the grounds that the Tribunal had no jurisdiction to hear the complaint. This application was dismissed by the Tribunal. The Golf Club filed a Petition seeking judicial review of that decision.
The court noted that the very narrow issue before the court was whether the services at the Men’s Lounge of the Golf Club were “customarily available to the public” under s. 8 of the Code. This was a question of law for which the applicable standard of review is correctness.
There was no dispute between the parties that in approaching the interpretation of human rights legislation, the court must adopt a broad and liberal reading of the legislation so as to give effect to the legislation’s equality, aims and goals: Robichaud v. Canada (Treasury Board),  2 S.C.R. 84. Further, as noted by the Supreme Court of Canada in Zurich Insurance Co. v. Ontario (Human Rights Commission),  2 S.C.R. 321, because of the quasi-constitutional nature of human rights legislation, statutory exceptions to such legislation must be narrowly construed. However, the court noted that the scope of human rights legislation is not unlimited and that the words of the statute cannot be ignored.
In this case, the court found that the limiting words in the legislation (“customarily available to the public”) reflected the Legislature’s basic motivation, namely that human rights legislation do not regulate “all of the private activities of its citizens”, citing Lamer C.J.C.’s decision in University of British Columbia v. Berg (1993), 102 D.L.R. (4th) 665 (S.C.C.). In determining whether an accommodation, facility or service is customarily available to the “public”, the court must not apply a purely quantitative analysis as the service will likely only be available to a subset of the public. Instead, it is necessary to take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user, the “relational approach”. Under the “relational approach”, the idea of defining a “client group” for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user. Where the service provider exercises some measure of discretion in determining which individuals will receive the services, such services will not necessarily be exempted from the scope of the Code. Where the provider of the services does not exercise any measure of personal selection in providing the services to the public, it cannot rely on the formal existence of any selection process or discretion to avoid the application of the Code.
In the case at bar, the Tribunal member reviewing the jurisdictional application focused solely on the nature of the “services” and concluded that the services in issue in the case, namely the provision of food and drink in a lounge, was a commercial function customarily available to the public. The court held that the Tribunal Mediator had erred in law in articulating the test in this manner. The court indicated that the Tribunal member failed to properly proceed to address the second part of the test, in that she did not properly consider whether the service provider’s services created either a public or a private relationship with the service users when those individuals used the Men’s Lounge. The court concluded that in the context of the facts of this case, the services did not create any public relationship between the Golf Club and the service receivers. The public was in no way granted access to, nor admitted to, nor extended the services within the Men’s Lounge. The Golf Club was a private club with a formalized selection process in place. While the Golf Club lacked direct or indirect control over the choice of the members’ guests, the relationship between the Golf Club and those persons remained a private one.
In conclusion, the court found that the Tribunal member had not applied the proper legal test in determining whether the facility or services in issue were “customarily available to the public”. The court found that it could not be concluded that the services in issue were “customarily available to the public” in the circumstances of this case and, consequently, s. 8(1) of the Code did not apply, and the Tribunal had no jurisdiction over the complaint.
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