The Court dismissed an appeal from a judicial review decision which had held that the British Columbia Human Rights Tribunal had erred when it found that it had jurisdiction to hear the complaint of some female members of a private golf club who were excluded from the men’s lounge. The Court found that the services provided in the men’s lounge were not customarily available to the public and therefore, s.8 of the Human Rights Code did not apply and the Tribunal did not have jurisdiction to hear the complaint.

27. February 2007 0

Administrative law – Human Rights Complaints – Discrimination – Gender – Sexual orientation – Customarily available to the public – Compliance with legislation – Decisions of administrative tribunals – Human Rights Tribunal – Jurisdiction to hear a complaint – Judicial review – Standard of review – Correctness

Marine Drive Golf Club v. Buntain, [2007] B.C.J. No. 37, British Columbia Court of Appeal, January 11, 2007, Finch C.J.B.C., Rowles and Thackray JJ.A.

The Respondent is a private golf club located in Vancouver, British Columbia. The golf club facilities include a members-only lounge reserved for men. The Appellants alleged 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.

A threshold issue before the British Columbia Human Rights Tribunal was whether the Tribunal had jurisdiction to hear the complaint. Section 8(1) of the Code prohibits denial to “a person or class of persons an accommodation, service or facility customarily available to the public…” At issue was whether the men’s lounge is a service that is “customarily available to the public” under s. 8.

The golf club had a formalised selection process in place with respect to its members; however, there were provisions in the club’s rules to permit unaccompanied dining guests access to the golf club facilities. The Tribunal member had found that in these circumstances, it could not be said that those who had access to the golf club lounges come together as part of a private selection process, or that they would be excluded from “the public” for the purposes of the Code.

The golf club petitioned for judicial review of the Tribunal’s decision. The BC Supreme Court found that the Tribunal member had applied the incorrect legal test in determining whether the facilities or services in issue were “customarily available to the public”. The Court held that on an application of the proper test, it could not be concluded that the services were such, and thus s. 8(1) of the Code did not apply and the Tribunal did not have jurisdiction over the complaint in issue.

The decision of the BC Supreme Court was appealed to the Court of Appeal. The parties agreed that the appropriate standard of review in the appeal was “correctness”. The Court of Appeal upheld the decision of the reviewing Judge and held that the Tribunal had failed to properly interpret the term “customarily available to the public”, in accordance with the test established by the Supreme Court of Canada in University of British Columbia v. Berg, [1993] 2 S.C.R. 253. According to that test, the Tribunal was required to first identify the service in question and then determine if the nature of the service gives rise to a public relationship between the service provider and the service user.

Through the wording of s. 8 of the Code, the legislature demonstrates an intention to restrict the Code’s application to services or facilities provided in the public’s sphere. Organisations can be seen as ranging across a spectrum from the purely economic to the purely social. Private golf clubs rank at the social end of the spectrum. The legislative intent does not encompass the circumstances present in this case.

In the result, the appeal was dismissed.

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