University of British Columbia v. Berg

University of British Columbia v. Berg
Collection
Supreme Court Judgments
Date
1993-05-19
Report
[1993] 2 SCR 353
Case number
22638, 22640
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
British Columbia
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 22640, 22638
Decision Content
University of British Columbia v. Berg, [1993] 2 S.C.R. 353
British Columbia Council of Human Rights Appellant
v.
University of British Columbia
School of Family and Nutritional Sciences Respondent
and
Janice Berg Respondent
and
Canadian Human Rights Commission Intervener
and between
Janice Berg Appellant
v.
University of British Columbia
School of Family and Nutritional Sciences Respondent
and
British Columbia Council of Human Rights Respondent
and
Canadian Human Rights Commission Intervener
Indexed as: University of British Columbia v. Berg
File Nos.: 22640, 22638.
1993: January 27; 1993: May 19.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for british columbia
Civil rights ‑‑ Discrimination in public facilities ‑‑ Services customarily available to the public ‑‑ Master's student denied rating sheet and key to faculty building because of mental disability ‑‑ Whether university discriminated against student with respect to services "customarily available to the public" ‑‑ Meaning of the word "public" -- Human Rights Act, S.B.C. 1984, c. 22, s. 3.
Judicial review ‑‑ Standard of review -- Human rights tribunal.
In 1979, the appellant Berg was accepted into the master's program of the University of British Columbia School of Family and Nutritional Sciences. As a student, she consistently performed above average. Although she experienced a recurrence of depression in 1981, she continued to attend classes and was capable of responding to the same demands and expectations as other students. During that period, on a particularly stressful day, the appellant wrote "I am dead" on the mirror in the School's washroom and, later the same day, when frightened upon seeing RCMP and security personnel in the hall, she attempted to jump through a plate glass window. When the School moved to new premises in 1982, the appellant was denied a key to the building although other graduate students were provided with one. The School's Director was later assured by a physician that there was no risk and issued the appellant a key. In 1983, a faculty member refused to complete the appellant's rating sheet required for an application for a hospital internship on the basis of her observation of the appellant's behaviour and problems. The faculty member later testified that she was not obliged to fill out the sheet and that she had refused to do so on a number of occasions every year. This testimony was contradicted by that of the Director of the School. Following a complaint by the appellant, the member‑designate of the British Columbia Council of Human Rights found that the School had contravened s. 3 of the Human Rights Act by denying the appellant the key and rating sheet because of her mental disability. The British Columbia Supreme Court set aside the decision, holding that the provision of a key or a rating sheet did not constitute services "customarily available to the public" within the meaning of s. 3, and that the member‑designate therefore had no jurisdiction to determine the complaint. The Court of Appeal affirmed the judgment. In this Court, the School conceded that the key and rating sheet were "services" within the meaning of the Act. The real issue in these appeals is whether such services are, on the correct interpretation of s. 3 and the evidence, "customarily available to the public".
Held (Major J. dissenting): The appeals should be allowed.
Per Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context but does not extend to general questions of law. The question in this case of what constitutes a service customarily available to the public is a general question of law with wide social implications in which the member-designate of the British Columbia Council of Human Rights has no particular expertise, and the correctness test applies. However, while the Court will not defer to the member-designate's interpretation of s. 3 of the Act, it will defer to his factual findings with respect to what is or is not customarily done.
The word "public" in s. 3 of the Act cannot be required to include every member of a community. The distinction found in Gay Alliance and in Beattie between discrimination at the threshold of admission to a facility and discrimination once admission to the facility has been obtained is artificial and unacceptable. Such a distinction would allow institutions to frustrate the purpose of the legislation by admitting people without discrimination, and then denying them access to the accommodations, services and facilities they require to make their admission meaningful. This distinction leads to results the legislature cannot have intended. A liberal and purposive interpretation of s. 3 would define "public" in relational terms, not in terms of quantity. Every service has its own public, and once that "public" has been defined through the use of eligibility criteria, the Act prohibits discrimination within that public. Eligibility criteria, as long as they are non‑discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries. All of the activities of an accommodation, service or facility provider, however, are not necessarily subject to scrutiny under the Act. In determining which activities of an institution are covered by the Act, one must take a principled approach which looks to the relationship created between the service or facility provider and the service or facility user by the particular service or facility. Some services or facilities will create public relationships between the institution and the users, while others may establish only private relationships. Under the relational approach, the "public" may turn out to contain a very large or very small number of people.
In the circumstances of this case, the member‑designate was correct in assuming jurisdiction and examining the reasons for the denial of the rating sheet and the key. The appellant, by virtue of having passed through a selective admissions process, did not cease to be a member of the "public" to which the School provided its educational services and facilities. The key and rating sheet were incidents of this public relationship between the School and its students. They were also, as a matter of law and fact, "customarily available" to the School's public. The member‑designate clearly found that keys and rating sheets were customarily provided to other graduate students in the appellant's situation. Deference is owed to this factual finding. Neither the existence of a discretion, when it is habitually exercised in a certain way, nor the element of personal evaluation attached to these services, necessarily excludes the Act, both on principle, and because of the member‑designate's factual finding.
Per Major J. (dissenting): The provision of a key or a rating sheet did not constitute a service "customarily available to the public" within the meaning of s. 3 of the Act and, accordingly, the member‑designate had no jurisdiction to consider the appellant's complaint. While human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic. Here, if s. 3 was given the reach sought in these appeals there would be, in effect, no services that would not fall within the scope of services "customarily available to the public". A university, like other public institutions, is not immune from the operation of the Act. The Act would clearly apply to services provided to members of the public seeking admission to the university, and to those services within the university that are customarily available to members of the public. However, the discretion exercised by the School's Director in refusing the appellant the key to a university building, and by a faculty member in refusing to fill out a rating sheet on her behalf, are matters unique to the university. If the student has been unfairly treated in respect of those matters, the remedy lies with the administrators of the university and not with the Human Rights Council.
Cases Cited
By Lamer C.J.
Applied: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; distinguished: Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; not followed: Beattie v. Governors of Acadia University (1976), 72 D.L.R. (3d) 718; disapproved: Re Jenkins and Workers' Compensation Board of Prince Edward Island (1986), 31 D.L.R. (4th) 536; referred to: Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Charter v. Race Relations Board, [1973] 1 All E.R. 512; Ontario Human Rights Commission v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979), 26 O.R. (2d) 134; Nova Scotia (Human Rights Commission) v. Canada Life Assurance Co. (1992), 88 D.L.R. (4th) 100; Sonnenberg v. Lang (1989), 100 N.B.R. (2d) 413 (Q.B.), rev'g (1987), 9 C.H.R.R. D/5100 (Bd. Inq.) on the jurisdictional issue; New Brunswick School District No. 15 v. New Brunswick (Human Rights Board of Inquiry) (1989), 10 C.H.R.R. D/6426; Kelly v. British Columbia (1990), 12 C.H.R.R. D/216; Hobson v. British Columbia Institute of Technology (1988), 9 C.H.R.R. D/4666; Rawala v. DeVry Institute of Technology (1982), 3 C.H.R.R. D/1057; Bourque v. Westlock School Division No. 37 (1986), 8 C.H.R.R. D/3746; LeDrew v. Council for Nursing Assistants (1989), 10 C.H.R.R. D/6259; Peters v. University Hospital Board, [1983] 5 W.W.R. 193; Bloedel v. University of Calgary (1980), 1 C.H.R.R. D/25; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Saskatchewan (Human Rights Commission) v. Saskatchewan (Department of Social Services), [1988] 5 W.W.R. 446 (Sask. C.A.), rev'g (1987), 8 C.H.R.R. D/4240 (Q.B.), aff'g (1987), 8 C.H.R.R. D/4139 (Bd. Inq.) (sub nom. Chambers v. Saskatchewan (Department of Social Services)); Singh v. Royal Canadian Legion, Jasper Place (Alta.), Branch No. 255 (1990), 11 C.H.R.R. D/357; Calgary Board of Education v. Deyell (1984), 8 C.H.R.R. D/3668 (Alta. Q.B.), aff'd (1986), 9 C.H.R.R. D/4979 (C.A.) (sub nom. Alberta (Department of Education) v. Alberta (Human Rights Commission)).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms .
Canadian Human Rights Act, R.S.C., 1985, c. H‑6, s. 5 .
Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, s. 12.
Fair Practices Act, R.S.N.W.T. 1988, c. F‑2, s. 4(1).
Human Rights Act, R.S.N.B. 1973, c. H‑11, s. 5(1) [rep. & sub. 1976, c. 31, s. 2; am. 1985, c. 30, s. 7; 1992, c. 30, s. 5].
Human Rights Act, R.S.N.S. 1989, c. 214, s. 4 [rep. & sub. 1991, c. 12, s. 1].
Human Rights Act, R.S.P.E.I. 1988, c. H‑12, s. 2(1).
Human Rights Act, R.S.Y. 1986, c. 11 (Supp.), s. 8.
Human Rights Act, S.B.C. 1984, c. 22, s. 3.
Human Rights Amendment Act, 1992, S.B.C. 1992, c. 43, s. 2.
Human Rights Code, R.S.N. 1990, c. H‑14, s. 6(1).
Human Rights Code, R.S.O. 1990, c. H.19.
Human Rights Code, S.M. 1987‑88, c. 45, C.C.S.M., c. H175, s. 13(1).
Individual's Rights Protection Act, R.S.A. 1980, c. I‑2, s. 3 [am. 1985, c. 33, s. 2; 1990, c. 23, ss. 2, 3].
Interpretation Act, R.S.C., 1985, c. I‑21, s. 12 .
Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, s. 3.
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 12 [am. 1989‑90, c. 23, s. 8].
Authors Cited
Baer, Marvin G. "A Famous Victory: Insurance Corporation of British Columbia v. Robert C. Heerspink and Director, Human Rights Code" (1983), 17 U.B.C. L. Rev. 299.
Greschner, Donna. "Why Chambers is Wrong: A Purposive Interpretation of `Offered to the Public'" (1988), 52 Sask. L. Rev. 161.
Keene, Judith. Human Rights in Ontario. Toronto: Carswell, 1983.
APPEALS from a judgment of the British Columbia Court of Appeal (1991), 56 B.C.L.R. (2d) 296, 81 D.L.R. (4th) 497, 1 B.C.A.C. 58, 1 W.A.C. 58, affirming a decision of Lander J. (1988), 10 C.H.R.R. D/6112, which set aside a decision of the British Columbia Council of Human Rights (1987), 9 C.H.R.R. D/4673. Appeals allowed, Major J. dissenting.
David W. Mossop, for the appellant/respondent Berg.
George H. Copley, for the appellant/respondent the British Columbia Council of Human Rights.
Bruce F. Fraser, Q.C., for the respondent the University of British Columbia School of Family and Nutritional Sciences.
William F. Pentney, for the intervener.
//Lamer C.J.//
The judgment of Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by
Lamer C.J. --
I. Facts
On July 2, 1985, Janice Berg filed a complaint against the University of British Columbia School of Family and Nutritional Sciences (the "School"), alleging
that the University of British Columbia and the School of Family and Nutritional Sciences discriminated against me with respect to a service customarily available to the public because of a mental disability, contrary to Section 3 of the Human Rights Act of British Columbia.
Since the early 1970's, Berg has had a history of controllable recurrent depression. In 1979, she was accepted into the Master's program of the School. As a student, Berg consistently performed above average and, following her nomination by the School, was awarded a National Research Council Scholarship. Although she experienced a recurrence of depression in the fall of 1981, she continued to attend classes and, according to the evidence, was capable of responding to the same demands and expectations as other students.
In the fall of 1981, on a particularly stressful day, Berg wrote "I am dead" on the mirror in the School's washroom. Later the same day, when frightened upon seeing RCMP and security personnel in the hall, she attempted to jump through a plate glass window. These events were referred to as the "incident" in the judgments.
In August 1982, Berg was advised by one of the School's instructors, Dr. Schwartz, that one of the requirements which had to be satisfied in order for a student to be considered for a Canadian Dietetic Association ("CDA") hospital internship was that the School submit a rating sheet completed by faculty members. Berg was further advised that the blank forms were sent to Dr. Schwartz and that, upon a request from a student, faculty members were to fill out the rating sheets. In August 1983, Berg applied through the CDA for an internship and asked Dr. Schwartz that a rating sheet be completed on her behalf. Dr. Schwartz refused to arrange the completion of the rating sheet on the basis of her "experience of" Berg and her "observation of [Berg's] behaviour and her problems." Dr. Schwartz testified that she was not obliged to fill out the sheet and that she had refused to do so on a number of occasions every year. However, the Director of the School, Dr. Rodgers, testified that he had never heard of a student other than Berg being denied a rating sheet.
In 1984, Berg applied but was denied entry to a dietetic internship at Vancouver General Hospital. Douglas J. Wilson, the member-designate of the British Columbia Council of Human Rights who conducted the inquiry, found that the decision was based on the School's refusal to provide a rating sheet when it was first requested.
Graduate students were also granted keys to facilitate their after-hours building access. Berg had a key to the School's old building, but when the School moved to new premises in 1982, Berg was denied a key although other graduate students were provided with one and she was never asked to surrender her key to the old building after the incident. Assured by a physician that there was no risk, Dr. Rodgers issued Berg a key approximately one year after she had first requested one. The member-designate found that the refusal caused Berg humiliation and embarrassment.
In his decision, the member-designate found that the School had contravened s. 3 of the Human Rights Act, S.B.C. 1984, c. 22, by denying Berg a key to the School and by denying her a rating sheet by reason of her mental disability: (1987), 9 C.H.R.R. D/4673. He awarded her $2,000 for the indignity and humiliation she suffered.
The School sought judicial review of that decision and a declaration that the member-designate lacked jurisdiction to make his decision and erred in his interpretation of the Act. Lander J. of the British Columbia Supreme Court set aside the decision of the member-designate: (1988), 10 C.H.R.R. D/6112. Berg and the Human Rights Council (the "Council") appealed the decision to the British Columbia Court of Appeal which dismissed the appeals: (1991), 56 B.C.L.R. (2d) 296, 81 D.L.R. (4th) 497, 1 B.C.A.C. 58, 1 W.A.C. 58. Berg and the Council then sought and obtained leave to appeal to this Court, [1992] 1 S.C.R. vi.
II. Statutory Framework
The British Columbia Human Rights Act, like many human rights statutes, contains words limiting the application of the Act. At the time of Berg's complaint, s. 3 of the British Columbia Act provided as follows:
3. No person shall
(a)deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b)discriminate against a person or class of persons with respect to any accommodation, service or facility customarily available to the public,
because of the race, colour, ancestry, place of origin, religion, marital status, physical or mental disability or sex of that person or class of persons unless the discrimination relates, in the case of sex, to the maintenance of public decency or, in the case of sex or physical or mental disability, to the determination of premiums or benefits under contracts of life or health insurance.
Thus, the legislature demonstrated an intention to restrict the application of the Act to what may be described, subject to considerable refinement below, accommodations, services or facilities provided in the "public" sphere. Although many legislatures have chosen different verbal formulae to so restrict the application of human rights legislation, the basic motivation behind such limiting words is clear: the legislature did not wish human rights legislation to regulate all of the private activities of its citizens. In this respect, the comments of Lord Reid in Charter v. Race Relations Board, [1973] 1 All E.R. 512 (H.L.), at p. 516, are applicable:
I would infer from the Act as a whole that the legislature thought all discrimination on racial grounds to be deplorable but thought it unwise or impracticable to attempt to apply legal sanctions in situations of a purely private character.
It hardly requires repeating, however, that the words "public" and "private" have no self-evident meaning, and serve as the starting point, rather than the conclusion, of the analysis in this case.
Unlike many human rights codes, the British Columbia Act at the relevant time did not contain any defence to a finding that a complainant had been denied accommodations, services or facilities on prohibited grounds. That is, it was not open to the respondent School to argue that the treatment of the complainant, although based on a prohibited ground of discrimination, was nevertheless reasonably justified. As I discuss below, this aspect of the legislation may have influenced the decision of the British Columbia Court of Appeal in this case. Section 3 of the Act has since been amended by S.B.C. 1992, c. 43, s. 2. It now reads:
3. (1) No person, without a bona fide and reasonable justification, shall
(a)deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b)discriminate against a person or class of persons with respect to any accommodation, service or facility customarily available to the public,
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons. [Emphasis added.]
The School's application for judicial review of the decision of the member-designate was brought under s. 3 of the Judicial Review Procedure Act, R.S.B.C. 1979, c. 209:
3. The power of the court to set aside a decision because of error of law on the face of the record on an application for relief in the nature of certiorari is extended so that it applies to an application for judicial review in relation to a decision made in the exercise of a statutory power of decision to the extent it is not limited or precluded by the enactment conferring the power of decision.
The Human Rights Act contains no privative clause, nor does the Act contain an appeal procedure.
III. The Judgments Below
British Columbia Council of Human Rights
The member-designate accepted that Berg's mental illness was a mental disability under the Act, and did not accept that the School had reasonably accommodated Berg's disability. He then addressed each of Berg's eight complaints, which were:
(i) that she was excluded from faculty activities,
(ii) that she was harassed during the oral defence of her thesis,
(iii) that the School disclosed her mental illness to a prospective employer,
(iv) that the School made adverse decisions with regard to her welfare and progress,
(v) that she was denied enrolment in two courses,
(vi) that her computer funds were withdrawn without reason,
(vii) that she was denied a key to the faculty building when she first requested one, and
(viii) that she was denied a rating sheet necessary to secure a position.
The member-designate found that all but the last two complaints were either unsupported by Berg's evidence, or the result of reasonable or routine actions by the School unrelated to Berg's mental disability.
However, with respect to the key, the member-designate found that the key had been denied solely on the basis of Dr. Rodgers' scant, second-hand knowledge of Berg's mental disability and Dr. Schwartz's reaction to it, and as a result was neither reasonable nor responsible.
As for the rating sheet, Dr. Schwartz's testimony that there was no obligation for any faculty member to provide such a sheet was seriously undermined, the member-designate found, by Dr. Rodgers' testimony that he knew of no other student who had ever been denied such a rating sheet. Furthermore, the member- designate noted that the School did file two rating sheets for Berg after she filed human rights complaints. The member-designate also found that there was no directive or policy produced by the School indicating that its faculty members were not required to provide such rating sheets. This refusal, the member-designate found, was the result of Berg's mental disability (at p. D/4680):
Therefore, the only reasonable explanation for Dr. Schwartz's refusal to complete the rating sheet is that she was influenced by both the events leading up to "the incident," whereby the close relationship of Dr. Schwartz as [Berg's] helper and advisor ended, and the events of "the incident" itself.
Accordingly, the member-designate found that the School violated the Act by denying Berg a key to the faculty building and by denying her a rating sheet, both because of her mental disability.
British Columbia Supreme Court
The first issue considered by Lander J. was whether the provision of a key or a rating sheet constituted a "service customarily available to the public". He first noted that the member-designate did not provide reasons as to his conclusion that s. 3 of the Act applied, but rather proceeded upon the assumption that he had jurisdiction. Lander J. relied on Martland J.'s emphasis on the limiting nature of s. 3 in Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435, and then applied the reasoning in Beattie v. Governors of Acadia University (1976), 72 D.L.R. (3d) 718 (N.S.C.A.). While Lander J. accepted that human rights legislation must be interpreted liberally, he nevertheless concluded (at p. D/6114):
How can it be said that [Berg] was seeking a service customarily available to the public? She was a graduate student seeking a rating sheet from a professor who was not under any duty to provide it. The university policies did not dictate that rating sheets or references for students be provided. The rating sheet was a document of an organization independent of the university.
...
The other issues, and specifically the key to the faculty building, must also fail because of the above reasons. I, therefore, have concluded that the decision of the Member Designate of the Human Rights Council dated December 24th, 1987, must be set aside and I so order.
British Columbia Court of Appeal
Although Legg J.A. assumed, in his decision for the court, that the provision of a rating sheet or a key to the building was an "accommodation, service or facility", noting that the word "service" was to be interpreted broadly, he did not agree that it constituted a service "customarily available to the public" within the meaning of s. 3 of the Act. In reaching that conclusion, he referred to decisions of this Court stating that human rights legislation should be interpreted so as to advance the broad policy consideration underlying it, but he also argued that this did not mean that the ordinary meaning of words should be strained. He held that the reasoning in Beattie applied in this case and dismissed Berg's submission that it was not a sound decision and that (following the decisions of this Court in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, and Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84) it would not be upheld today, noting that Beattie had been recently followed. He held (at p. 307 B.C.L.R.):
In my opinion, s. 3 of the Act has no application to the facilities or services of the type under consideration here which were available only to students who were registered at the university and who were enrolled as students at the school. Human rights legislation obviously applies to members of the public seeking admission or entrance to the university from outside the university. The legislation may also have a place within the university setting. It does not apply, however, to the type of service under consideration here which was only available to students with particular qualifications who were enrolled in courses at the school.
Legg J.A. also dismissed Berg's submission that the fact that accommodations, services and facilities were not provided to the public at large had not prevented legislation equivalent to s. 3 of the Act being interpreted to apply to such services or facilities, distinguishing each case submitted by Berg.
Legg J.A. felt that the provision of a service which requires the exercise of a discretion is a circumstance which may weigh against it being a service customarily available to the public, but recognized that there may be instances where such services, although discretionary, are customarily available to the public. However, he stated (at p. 309 B.C.L.R.):
But the personal nature of the assessment required by the rating sheet and the discretionary nature of the decision whether to provide such assessment to the individual student indicate that under all the circumstances of this case the providing of the rating sheet was not an accommodation, service or facility that was customarily made available to members of the public.
As to the issue of the key, Legg J.A. expressed doubts that Berg had filed a complaint on this issue which complied with the requirements of the Act. However, he held that the denial of a key was not a denial of an accommodation, service or facility customarily available to the public, nor was the refusal discrimination with respect to any accommodation, service or facility customarily available to the public. Legg J.A. followed the same reasoning he applied to the rating sheet and held, considering the circumstances, that the decision was discretionary. Thus, he concluded that the member-designate had no jurisdiction to determine a complaint in regard to the denial of a key or to determine whether there was discrimination with regard to the refusal to provide a key to Berg.
IV. Issues
(a)What is the standard of judicial review of the member-designate's decision?
(b)Do services or facilities offered by a university to a student already enroled in the university come within the protection afforded by s. 3 of the Act against discrimination in the provision of "accommodations, services or facilities customarily available to the public?"
(c)Does the element of discretion or personal evaluation in the providing of a service or facility affect the applicability of the protection afforded in s. 3 of the Act against discrimination in the provision of such a service or facility?
V. Analysis
A. The Standard of Review
Recently, in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, this Court considered the appropriate standard of judicial review of certain decisions of human rights tribunals. La Forest J. wrote that courts have deferred to administrative tribunals' reasonable decisions on questions of law where those tribunals are protected by a privative clause. He also noted that courts have also deferred to tribunals not so protected, for reasons of relative expertise, but observed (at p. 584) that, in relation to general questions of law such as the one in question in that case,
the position of a human rights tribunal is not analogous to a labour board (and similar highly specialized bodies) to which, even absent a privative clause, the courts will give a considerable measure of deference on questions of law falling within the area of expertise of these bodies because of the role and functions accorded to them by their constituent Act in the operation of the legislation.
Accordingly, La Forest J. concluded (at p. 585) that "a human rights tribunal does not appear to me to call for the same level of deference as a labour arbitrator" on such general questions of law.
As La Forest J. noted in Mossop, the superior expertise of a human rights tribunal does relate to fact-finding and adjudication in a human rights context, but "does not extend to general questions of law". Turning to the issue before the Court, it is clear that the question of what constitutes a service customarily available to the public is a general question of law with wide social implications, in which the Council has no particular expertise. There being no reason why deference should be given to the Council on this question, the appropriate standard of review is one of correctness.
However, I would add the important qualification that the member- designate's decision with respect to s. 3 includes an important factual component. Whereas the meaning and scope of the phrase "accommodation, service or facility customarily available to the public" are, in the context of s. 3, legal determinations, a determination of whether the Act applies also requires the member-designate to turn his or her mind to what is "customarily" done on the facts of the particular case. That is, while there is a legal meaning to the term "customarily", there is also the question whether, on the evidence, a "custom" has been sufficiently established and demonstrated so that a deviation from that custom may be attributable to discrimination. Therefore, while the Court will not defer to the member-designate's interpretation of s. 3, the Court will defer to his factual findings with respect to what is or is not customarily done.
B. Section 3
(a) Interpreting Human Rights Legislation
In my reasons in Heerspink, I commented on the unique nature of human rights legislation (at p. 157-58):
When the subject matter of a law is said to be the comprehensive statement of the "human rights" of the people living in that jurisdiction, then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others.
Following Heerspink, this Court has had many occasions to comment on the privileged status of human rights legislation. In Ontario Human Rights Commission v. Simpsons-Sears Ltd., supra, McIntyre J. observed (at p. 547) that "[l]egislation of this type is of a special nature, not quite constitutional but certainly more than the ordinary -- and it is for the courts to seek out its purpose and give it effect." This Court has repeatedly stressed that a broad, liberal and purposive approach is appropriate to human rights legislation, and that such legislation, according to La Forest J. in Robichaud, at p. 89, "must be so interpreted as to advance the broad policy considerations underlying it". These comments serve to underline the importance of the mandate of s. 12 of the Interpretation Act, R.S.C., 1985, c. I-21 , which directs that "[e]very enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects."
This interpretive approach does not give a board or court license to ignore the words of the Act in order to prevent discrimination wherever it is found. While this may be a laudable goal, the legislature has stated, through the limiting words in s. 3, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 3 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.
(b) Interpretation of Section 3
(i)Analogous Provisions
Most, but not all, human rights Acts contain similar limiting provisions. The Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 5 , provides that discrimination on prohibited grounds in the "provision of goods, services, facilities or accommodation customarily available to the general public" is prohibited. Some statutes prohibit discrimination in the same field as the British Columbia Act's "customarily available to the public" (see Alberta's Individual's Rights Protection Act, R.S.A. 1980, c. I-2, s. 3). New Brunswick's Human Rights Act, R.S.N.B. 1973, c. H-11, s. 5(1), refers more broadly to services, etc., "available to the public"; Quebec's Charter of Human Rights and Freedoms, R.S.Q., c. C-12, s. 12, refers to goods and services "ordinarily offered to the public", and the Yukon Territory's Human Rights Act, R.S.Y. 1986, c. 11 (Supp.), s. 8, applies to any person "offering or providing services, goods, or facilities to the public".
Other statutes phrase the limitation in more spatial terms: see Newfoundland's Human Rights Code, R.S.N. 1990, c. H-14, s. 6(1) ("to which members of the public customarily have access or which are customarily offered to the public"); The Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, s. 12(1) ("to which the public is customarily admitted or which are offered to the public"); the Northwest Territories' Fair Practices Act, R.S.N.W.T. 1988, c. F‑2, s. 4(1) ("available in any place to which the public is customarily admitted"), and Prince Edward Island's Human Rights Act, R.S.P.E.I. 1988, c. H-12, s. 2(1) ("to which members of the public have access").
Some legislatures have addressed the issues in these appeals directly. In Manitoba, The Human Rights Code, S.M. 1987-88, c. 45, C.C.S.M. c. H175, s. 13(1), prohibits discrimination in the provision of a list of services "available or accessible to the public or to a section of the public", and Nova Scotia's Human Rights Act, R.S.N.S. 1989, c. 214, s. 4, defines discrimination in terms of the denial of "opportunities, benefits and advantages available to other individuals or classes of individuals in society". (Emphasis added.)
The human rights legislation of Ontario (Human Rights Code, R.S.O. 1990, c. H.19) contains no such limiting words. This was not always the case in Ontario, where the former wording of the Code resulted in decisions from the Ontario Court of Appeal severely restricting the application of the legislation. It has been suggested that these decisions of the Ontario Court of Appeal were the catalyst for the amendment (see Judith Keene, Human Rights in Ontario (1983), at p. 14).
As is clear from this brief survey, the legislatures of the various provinces have chosen a number of different limiting formulae, but it is also clear that they have done so to achieve the same end. That end was simply articulated by Linden J.A. of the Federal Court of Appeal in Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391, at p. 398: "The essential aim of the wording is to forbid discrimination by enterprises which purport to serve the public." Furthermore, it appears that the specific wording of the particular sections at issue was rarely the determinative element in previous decisions. For example, Wilson J.A. (as she then was), dissenting in Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979), 26 O.R. (2d) 134 (C.A.), referred to the differences between provincial codes, but stated (at p. 141) that "despite the difference in wording ... a number of the observations made by the learned Supreme Court Justices in the Gay Alliance case have to be considered in the context of this appeal". If human rights legislation is to be interpreted in a purposive manner, differences in wording between provinces should not obscure the essentially similar purposes of such provisions, unless the wording clearly evinces a different purpose on behalf of a particular provincial legislature. In Rosin, Linden J.A. rightly observed (at p. 401) that "[w]e should not inspect these statutes with a microscope, but should, as mentioned above, give them a full, large and liberal meaning consistent with their favoured status in the lexicon of Canadian legislation."
(ii) "Accommodations, Services or Facilities"
The courts below assumed, and the School conceded, that the key and rating sheet were "services" within the meaning of the Act. The real issue between the parties was whether such services were, on the correct interpretation of s. 3 and the evidence, customarily available to the public. This in turn entails two inquiries: first, whether the student body of a university (or a faculty within the university) is the "public", and if so, second, whether the services in this case were, as a matter of law and fact, customarily available to that public.
(iii) "Public"
The parties in these appeals, and the decisions on which they rely, in turn rely heavily on two previous decisions defining the limiting word "public". The first is the judgment of Martland J. in Gay Alliance, which is often cited as establishing an indicative, even exhaustive, list of institutions to which human rights legislation will apply. The second is Beattie, one of the few appellate decisions considering alleged discrimination against students already admitted to a university.
In Gay Alliance, a complaint was filed by the Gay Alliance Toward Equality agains