Gould v. Yukon Order of Pioneers

Gould v. Yukon Order of Pioneers
Collection
Supreme Court Judgments
Date
1996-03-21
Report
[1996] 1 SCR 571
Case number
23584
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
Yukon
Subjects
Administrative law
Constitutional law
Notes
SCC Case Information: 23584
Decision Content
Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571
Yukon Human Rights Commission and
Madeleine Gould Appellants
v.
Yukon Order of Pioneers,
Dawson Lodge Number 1 and Walter Groner Respondents
and
Yukon Status of Women Council Intervener
Indexed as: Gould v. Yukon Order of Pioneers
File No.: 23584.
1995: October 3; 1996: March 21.
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 the yukon territory
Civil rights ‑‑ Discrimination ‑‑ Services to the public ‑‑ Woman denied membership in fraternal order because she was female ‑‑ Fraternal order collecting and preserving historical materials ‑‑ Materials made available to public ‑‑ Whether order "offering or providing services . . . to the public" ‑‑ Whether membership in order is itself a service offered to public ‑‑ Whether refusal of membership to women constitutes prohibited discrimination ‑‑ Human Rights Act, R.S.Y. 1986 (Supp.), c. 11, ss. 8(a), (c), 10(1).
Judicial review ‑‑ Standard of review ‑‑ Human rights tribunal.
G applied for membership in the Yukon Order of Pioneers («Order»), a fraternal order whose primary objectives are social, historical and cultural, with its paramount concern being the welfare and well-being of its members. According to its constitution, the Order is dedicated to the advancement of the Yukon Territory, the mutual protection of its members, the uniting of these members in the strong tie of brotherhood, the preservation of the names of all Yukon Pioneers on its rolls and the collection and the preservation of the literature and incidents of Yukon's history. The historical materials on the Order and its members collected by the Order are made available to the public. G's application for membership was denied on the ground that she was female. She filed a complaint with the Yukon Human Rights Commission. It was not disputed before the Board of Adjudication constituted by the Commission that the Order's action in rejecting the application amounted to discrimination on the basis of sex under s. 6(f) of the Yukon Human Rights Act. The Board found that in preserving and collecting the literature and incidents of Yukon's history, the Order was "offering or providing services . . . to the public" and concluded that the discrimination was thus prohibited under s. 8(a) of the Act and that s. 10(1) ‑‑ an exemption clause ‑‑ did not apply to the Order. The Supreme Court of the Yukon Territory set aside the Board's decision and the Court of Appeal upheld that judgment. Both courts found that G's exclusion from membership in the Order did not amount to prohibited discrimination under s. 8(a).
Held (L'Heureux‑Dubé and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: For the reasons given by La Forest J., the relevant standard of review in this case is correctness. Further, while courts customarily defer to tribunals, including human rights tribunals, on questions of fact, on the ground that these tribunals are situated and equipped to make such findings, where, as in this case, the issue is not the facts themselves but rather the inferences to be drawn from agreed facts, the policy considerations which ordinarily militate in favour of deference are significantly attenuated.
The need to approach human rights legislation purposively, giving it a fair, large and liberal interpretation with a view to advancing its objects, is well accepted, and it is also well established that the wording of the statute is an important part of this process. A true purposive approach looks at the wording of the statute itself, with a view to discerning and advancing the legislature's intent. Here, while it is evident that the Order's males‑only membership policy contravenes s. 6(f) of the Yukon Human Rights Act, this discrimination is not prohibited by s. 8. When s. 8 is considered as a whole, it is apparent that the legislature in para. (c) has turned its mind to the question of membership as a category of prohibited discrimination. Membership is dealt with expressly and separately from "services, goods, or facilities" in para. (a). Further, s. 8(c) forbids discrimination "in connection with any aspect of membership" in certain listed types of organizations. These organizations collectively deal with livelihood and economic relationships but not social or cultural ones. There might be a situation in which membership could constitute a service offered to the public, but s. 8(a) should not be read in a way that would deprive s. 8(c) of all meaning. Moreover, although s. 8(c) may itself be subject to a large and liberal interpretation, such that the types of organizations listed might be interpreted generously, it does not extend to the Order. If organizations are conceptualized as ranging across a spectrum from the purely economic to the purely social, the Order is close to the social end of that spectrum. Finally, since in this case the service offered to the public within the meaning of s. 8(a) is neither membership nor the collection process but rather the end product ‑‑ namely, historical data or documents produced ‑‑ and since this is provided to the public without discrimination, it follows that the appeal must be dismissed. It is unnecessary in this appeal to expand upon the principles set out in Berg, to consider the American constitutional jurisprudence, or to discuss s. 10 of the Act.
Per La Forest J.: The question of what constitutes "services . . . to the public" for the purposes of s. 8(a) of the Yukon Human Rights Act is a general question of law, one which an appellate court must review on the basis of correctness. The superior expertise of a human rights tribunal relates to fact‑finding and adjudication in a human rights context. It does not extend to general questions of law.
Human rights legislation should be given a broad, liberal and purposive approach to ensure that the underlying objects of the legislation are given full effect. Though the words of the statute must be interpreted generously, this does not permit rewriting the legislation. An interpretation of s. 8(a) should proceed in light of analogous provisions in the various human rights statutes in Canada and should be guided by the similar purpose underlying these provisions. These analogous provisions prohibit discrimination with respect to services that are offered to the public, or to which the public has access or to which it is admitted. To attract the anti‑discrimination prohibition, a service must thus create a public relationship between the service provider and the service user. This is consistent with the common purpose that underlies these provisions: the elimination of discrimination in enterprises that serve the public. However, the intention of the enterprise should not be determinative of whether a service offered by the enterprise is in fact offered to the public, and such a determination under s. 8(a) should not be centred upon the nature of the enterprise or the service provider but upon the service being offered. A proper interpretation of s. 8(a) gives rise to a two‑part analysis. The first step involves a determination of what constitutes the "service", based on the facts before the court. The second step requires a determination of whether the service creates a public relationship between the service provider and the service user. Inherent in this determination is a decision as to what constitutes "the public" to which the service is being offered, recalling that public is to be defined in relational as opposed to quantitative terms. In ascertaining a "public relationship" arising from a service, criteria including, but not limited to, selectivity in the provision of the service, diversity in the public to whom the service is offered, involvement of non-members in the service, whether the service is of a commercial nature, the intimate nature of the service and the purpose of offering the service will all be relevant. None of these criteria operate determinatively. A public relationship is to be determined by examining the relevant factors in a contextual manner.
In this case, the Order has not engaged in prohibited discrimination within the meaning of s. 8(a) in excluding G and women in general from its membership. The collection and preservation of Yukon history by the Order are not services covered by s. 8(a) because they do not give rise to a public relationship, a conclusion supported by the agreed statement of facts. There is also no evidence that the Order makes its facilities for collection and recording of Yukon history available to the public. Participation in these services is selective and the preparation of the historical data is purely private. The Order's historian collects and records the historical materials. The public is not involved in any way in the Order's historical research. The only service which implicates the public is the service of providing the historical materials of the Order and its members to the public, but this service does not encompass the collection and recording of those materials. In this appeal, there is no allegation of discrimination in making these materials available to the public. A reading of s. 8(a) which simply requires that the historical service supplied to the public be made freely and equally accessible to every individual without discrimination on the prohibited grounds fully conforms with the stated object of the Act. Further, the legislature had to balance competing rights in determining the scope of prohibited discrimination and s. 8(a) must be read in the context of the statute as a whole. If collection and recording of the history of the Yukon is made subject to s. 8(a), a paralysing effect would be felt upon the rights to freedom of expression and association recognized elsewhere in the Act. To force a private organization to compile history in a particular way would have serious implications for the freedom of association and of expression of those who join a particular group for that purpose. The Order does not purport to provide the definitive history of the Yukon and those who wish to present a different view of history are free to do so. Finally, the facts, as presented to this Court, do not indicate the Order is distorting the general history of the Yukon in its exclusion of women from its membership. The history the Order seeks to collect and preserve is primarily a history of the Order and its members.
In some circumstances, membership as a spectrum of benefits in an organization may constitute a service offered or provided to the public, and thereby require scrutiny of its membership policies under the Act. It is not whether an organization is public that determines whether membership in the organization is a service offered to the public, but rather whether the spectrum of benefits constituting membership is offered to the public. Courts must be willing to look beyond the seemingly private characteristics of an organization, including its membership policies, to discern whether in reality the organization offers services and opportunities to the public. Selectivity in membership will not insulate an organization from anti‑discrimination legislation if membership is found to constitute a service offered to the public. Here, on the basis of the agreed facts, membership in the Order does not constitute a service offered or provided to the public within the meaning of s. 8(a). A review of the benefits that adhere to members of the Order reveals that membership does not give rise to a public relationship. The Order membership exists to serve its own members, past and present, and to preserve a Klondike brotherhood, founded upon moral values and male camaraderie. What the Order offers to its members is an intimate association, an opportunity to socialize in an all male environment intended to enhance the emotional development of its members. The Order does not purport to represent a diverse membership. Its membership policies are selective. Meetings of the members are exclusively attended by members. Moreover, the Order does not, in essence, exist to further commercial or other such public objects. Its foremost concern is with the welfare and well‑being of its members. In this respect, the membership offered by the Order more closely resembles membership in a familial relationship than membership that is generally offered or provided to the public.
To conclude that s. 8(a), which deals with the provision of services, goods or facilities to the public, does not apply to membership in an organization because membership in certain associations has been contemplated by the legislature in s. 8(c), is to give a restrictive interpretation to an Act which should be liberally construed. The mention of "membership" in s. 8(c) does not disclose an intention to deal with membership generally. The paragraphs of s. 8 are complementary and supportive of one another and of the goal of prohibiting discrimination. They should not be construed as exclusive logic‑tight compartments. Discriminatory conduct that fairly falls within one category cannot be excluded from that category simply because another category deals with other activities that may bear on the same matter. The restrictive approach of confining membership issues to s. 8(c) cannot be significantly expanded by a broad interpretation of the associations there listed. However generously one may interpret the statute, one cannot rewrite it or add to the exhaustive list of groups of associations set forth in s. 8(c) so as to cover situations other than those for which it provides.
With respect to s. 10(1) of the Act, this section was not intended to be used as a broad justificatory shield against allegations of discrimination described in s. 8(a). The exempted discrimination must be of a kind necessary to the furtherance of the fundamental objects of the organization. Section 10(1) was probably intended to do little more than to give expression to our constitutionally guaranteed freedom of association.
Per McLachlin J. (dissenting): The collection and distribution of historical material constitute a service to the public within the meaning of s. 8(a) of the Yukon Human Rights Act, but the Order does not discriminate in the provision of this service since it provides its historical research to anyone who seeks it, male or female. The aim of s. 8(a) is essentially to ensure that those who provide services make those services available to the public generally, without discrimination on the basis of sex or any other prohibited ground.
The Order, however, provides sufficient benefits of a public nature and importance that membership itself constitutes a service offered or provided to the public within the meaning of s. 8(a). Selectivity, purpose, seclusion and smallness are factors to be considered in making this assessment. The Order has a prominent public profile which is inconsistent with a seclusive group. The Order has arrogated to itself a number of public functions and conferred benefits and important public status on its members. The Order is small, but so is the community in which it operates. Moreover, the Order’s public purpose and persona is large, extending to all pioneers in the Yukon Territory. Apart from gender, the Order is not particularly selective in choosing members. While close camaraderie may be consistent with privateness, the camaraderie enjoyed by the members of the Order flows from the public purpose of the Order. It is the members' common status and history as pioneers, rather than as men, which forms the common bond between them. Finally, the non‑commercial benefits conferred on members of the Order are as worthy of protection as commercial services. In excluding women from membership, the Order therefore discriminates in the provision of this service.
Per L'Heureux‑Dubé J. (dissenting): Correctness is not the appropriate standard of review in this case. The Order's challenge to the Board of Adjudication's decision is not based on "general questions of law". The Board's impugned findings are primarily factual in nature. Although the meaning of the phrase "service . . . to the public" is an ordinary question of law on which no deference is warranted, the Board's finding that the Order's activities fell within this definition involves the application of the law to the facts. Moreover, in order to carry out its purpose, the Yukon Human Rights Act establishes a specialist tribunal composed of adjudicators having expertise and an acute understanding of human rights issues. The resolution of the factual issues in this case fell squarely within the Board's specialized mandate and, when as here the right to appeal provided by the Act is limited to questions of law, an appellate court has no jurisdiction to overturn the Board's findings of fact unless they are so unreasonable as to amount to an error of law. This Court therefore should show deference to the Board's findings. The standard of review should be most deferential to findings which are purely factual or where the factual and legal elements are inseparable as in the application of the law to the facts. At the same time, some deference must be shown to the Board's findings on legal questions which raise policy concerns within the Board's special mandate.
The interpretation of human rights legislation must, on the one hand, be large and liberal so as to advance the overall purpose of the statute. On the other hand, it must be rationally supportable on the wording of the particular provision and the other admissible evidence of the legislature's purpose in enacting the provision. Here, the Order's policy excluding women from membership is discriminatory and the Board held that this discrimination was prohibited by s. 8(a) of the Act. In reaching this conclusion, the Board did not commit any error that would warrant the intervention of an appellate court. The Board's decision is consistent with the text of the relevant provisions and with the broad policy considerations underlying the Yukon's anti‑discrimination statute.
First, the Board found that the Order provides services to the public, by collecting and preserving materials relating to the history of the Yukon and making them available to the public. A broad range of activities may constitute services generally available to the public and the correct approach is to identify the service in question, and then to determine whether that service gives rise to a public relationship between the service provider and the service user. This task, being essentially factual, was within the exclusive purview of the Board and the record supports its finding. On the evidence, the Board could reasonably conclude that the Order's activities involving the collection, preservation and publication of the history of the Yukon represent work done for the benefit of members of the public at large. As well, there is no reason automatically to sever the preparation of a historical record from its communication to the public. On the contrary, it seems logical to treat the Order's historical activities holistically, as a single service. The Board's conclusion cannot therefore be described as unreasonable.
Second, the Board found that discrimination occurred when services were provided to the public, because the exclusion of women from membership had an impact on the quality of the historical record created and maintained by the Order. Although on the broad wording of s. 8(a), it may not be necessary in all cases to show that discrimination had an impact on the quality of the service, there is no error in the proposition that such an impact would create a nexus sufficient to support the conclusion that the discrimination occurred "when offering or providing services . . . to the public". There is also no principle of law requiring the Board to restrict the application of s. 8(a) to situations where the discrimination is directed against potential users of the service. The test applicable is whether the discrimination occurred "when offering or providing services . . . to the public". The Board committed no error in its interpretation of this test. Its conclusion that the discrimination, consisting of the exclusion of women from membership, occurred when the Order was providing services to the public flows from its finding that the discrimination had an adverse impact on the quality of the services provided by the Order to the public. On the evidence, this finding was reasonably open to the Board.
Accordingly, this Court cannot interfere with the Board's finding that the Order's membership policy violates s. 8(a). It is important to note that the Board's decision does not rest on any finding that the presentation of a distorted historical record, or a record prepared without the input of women, is discrimination against women. The Order discriminates against women by excluding them from membership. The Order's activities, including its activities in producing the historical record, are simply the context in which this discrimination occurs.
Although it is unnecessary to address the alternative argument, it seems that membership in the Order is a service provided to the public. Membership can be a service within the meaning of s. 8(a). What is important is the degree of intimacy of the relationship in which the benefits are provided. A human rights tribunal must thus examine the relationship between the club and its potential members, and characterize the membership relationship as either public or private. In making that determination, factors such as the selectivity, purpose, seclusion and smallness of the group should be considered. In this case, it seems that the Order is not sufficiently intimate that the relationship between the Order and its potential members can be characterized as private. The membership criteria are relatively unselective and the Order has a public image and importance which is inconsistent with a seclusive group. While the membership is quite small, this factor is of lesser importance. Neither the male camaraderie enjoyed by the members of the Order, nor the non‑commercial nature of the benefits extended to the Order's members, bring the Order outside the public sphere.
Finally, on the facts before the Board, it was clear that the Order was not an organization entitled to the protection of s. 10(1) of the Act. The record amply supports the Board's conclusion that the Order is not dedicated to promoting the interests of an identifiable group. Instead, the Order exists to serve the interests and welfare of the entire population of the Yukon.
Cases Cited
By Iacobucci J.
Referred to: University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Workmen's Compensation Board v. Greer, [1975] 1 S.C.R. 347.
By La Forest J.
Considered: University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Roberts v. United States Jaycees, 468 U.S. 609 (1984); Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987); New York State Club Assn. v. New York City, 487 U.S. 1 (1988); referred to: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Ontario Human Rights Commission and O'Malley 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; Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; Anvari v. Canada (Employment and Immigration Commission) (1991), 14 C.H.R.R. D/292; Rogers v. Newfoundland (Department of Culture, Recreation and Youth) (1991), 15 C.H.R.R. D/375; Singh v. Royal Canadian Legion, Jasper Place (Alta.), Branch No. 255 (1990), 11 C.H.R.R. D/357; Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
By McLachlin J. (dissenting)
Roberts v. United States Jaycees, 468 U.S. 609 (1984); University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435.
By L'Heureux‑Dubé J. (dissenting)
U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Commission scolaire régionale de Chambly v. Bergevin, [1994] 2 S.C.R. 525; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Large v. Stratford (City), [1995] 3 S.C.R. 733; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; Dickason v. University of Alberta, [1992] 2 S.C.R. 1103; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; Edwards v. Bairstow, [1956] A.C. 14; R. v. Lampard, [1968] 2 O.R. 470; Workmen's Compensation Board v. Greer, [1975] 1 S.C.R. 347; Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Canadian National Railway Co. v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114; Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536; Canada (Attorney General) v. Rosin, [1991] 1 F.C. 391; Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; Re Jenkins and Workers' Compensation Board of Prince Edward Island (1986), 31 D.L.R. (4th) 536; Re Winnipeg School Division No. 1 and MacArthur (1982), 133 D.L.R. (3d) 305; Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979), 26 O.R. (2d) 134; Peters v. University Hospital Board (1983), 23 Sask. R. 123; Nowegijick v. The Queen, [1983] 1 S.C.R. 29; Roberts v. United States Jaycees, 468 U.S. 609 (1984); Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S. 537 (1987); Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279.
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) [am. 1995, c. 23, s. 2].
Human Rights Act, R.S.N.B. 1973, c. H‑11, s. 5(1) [rep. & sub. 1985, c. 30, s. 7; am. 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 (Supp.), c. 11, ss. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26.
Human Rights Act, S.B.C. 1984, c. 22, s. 3 [rep. & sub. 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, s. 1.
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; am. 1990, c. 23, ss. 2, 3].
Interpretation Act, R.S.Y. 1986, c. 93, s. 10.
Saskatchewan Human Rights Code, S.S. 1979, c. S‑24.1, s. 12(1) [am. 1989‑90, c. 23, s. 8; am. 1993, c. 61, s. 7].
Authors Cited
Concise Oxford Dictionary, 8th ed. Oxford: Clarendon Press, 1990, "service".
Laframboise, Celia, and Leigh West. "The Case of All‑Male Clubs: Freedom to Associate or Licence to Discriminate?" (1987‑1988), 2 C.J.W.L. 335.
Marshall, William P. "Discrimination and the Right of Association" (1986), 81 N.W.U. L. Rev. 68.
Nouveau Petit Robert. Paris: Le Robert, 1993, "service".
Yukon Hansard, February 12, 1987, p. 715.
APPEAL from a judgment of the Yukon Court of Appeal (1993), 18 C.H.R.R. D/347, 100 D.L.R. (4th) 596, 79 B.C.L.R. (2d) 14, dismissing the appellants' appeal from a judgment of Wachowich J. (1991), 14 C.H.R.R. D/176, 87 D.L.R. (4th) 618, reversing a decision of a board of adjudication (1989), 10 C.H.R.R. D/5812 constituted under the Yukon Human Rights Act. Appeal dismissed, L'Heureux‑Dubé and McLachlin JJ. dissenting.
Mary Eberts and Sharon Greene, for the appellants.
J. J. Camp, Q.C., and Richard A. Buchan, for the respondents.
Gwen Brodsky and Nitya Iyer, for the intervener.
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
1 Iacobucci J. -- I have had the benefit of the reasons of my colleagues La Forest, L'Heureux-Dubé and McLachlin JJ. Although I agree with La Forest J.'s disposition of this appeal and with his reasoning on several points, I do not share his views on the necessity, in this appeal, of expanding upon this Court's decision in University of British Columbia v. Berg, [1993] 2 S.C.R. 353, considering the American constitutional jurisprudence, or discussing s. 10 of the Yukon Human Rights Act, R.S.Y. 1986 (Supp.), c. 11. My colleague and I are also in disagreement about the relevance and application of s. 8(c) of the Act to the main issue to be resolved.
2 La Forest J. has summarized the facts, decisions below, and submissions of the parties and the intervener, and there is no need for me to repeat or comment on them. As my colleague states, the key issue in this appeal is whether the exclusion of the appellant Gould from membership in the respondent Yukon Order of Pioneers ("Order") on the ground that she is female contravenes s. 8(a) of the Yukon Act, a provision which prohibits discrimination "when offering or providing services, goods or facilities to the public".
3 My colleague has also explained that the relevant standard of review is correctness. I agree with what he has said on this subject, and would only add that the approach taken by the unanimous Court in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, confirms the use of this standard. In Pezim, the Court stated (at pp. 590-91):
Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed a spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated a principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where a tribunal protected by a true privative clause, is deciding a matter within its jurisdiction and where there is no statutory right of appeal. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756.
At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of a provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is a statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, and University of British Columbia v. Berg, [1993] 2 S.C.R. 353. [Emphasis added.]
4 My colleague L'Heureux-Dubé J. relies heavily upon the fact-finding expertise of the Board of Adjudication. To the extent that the deference she advocates is predicated on this tribunal's expertise in the circumstances of the case at bar, I would make, in passing, one observation. Courts customarily defer to tribunals, including human rights tribunals, on questions of fact, on the ground that these tribunals are situated and equipped to make such findings: see, e.g., Berg, supra, and Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554. But in the case at bar, I note that the Board of Adjudication heard no testimony. Apart from two facts which were agreed upon orally at the hearing, all of the evidence was in written form. Moreover, the evidence of the parties was presented entirely by admission and agreement. In these circumstances, where the issue is not the facts themselves but rather the inferences to be drawn from agreed facts, the policy considerations which ordinarily militate in favour of deference are significantly attenuated: see Workmen's Compensation Board v. Greer, [1975] 1 S.C.R. 347.
5 On the subject of the appropriate interpretive approach for human rights statutes, the need to approach the legislation purposively, giving it a fair, large and liberal interpretation with a view to advancing its objects, is well accepted. But it is also well established that the wording of the statute is an important part of this process. I do not read my colleagues as disagreeing on this point: see para. 50 of La Forest J.'s reasons and para. 123 of L'Heureux-Dubé J.'s reasons.
6 On the one hand, as the Chief Justice explained in Berg, supra, at p. 373 (in a passage which is also quoted in part by my colleague La Forest J., for somewhat different purposes),
[i]f 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 Berg it was held that the fact that s. 3 of the British Columbia legislation prohibited discrimination with respect to accommodations, services or facilities "customarily available to the public", while other statutes used phrases such as "ordinarily offered to the public" or "available in any place to which the public is customarily admitted", should not result in divergent interpretations, because these provisions are functionally synonymous. However, on the other hand, as the Chief Justice explained, at p. 371,
[t]his interpretive approach [i.e., a broad, liberal and purposive 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 [i.e., the phrase "customarily available to the public"], 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.
7 A true purposive approach looks at the wording of the statute itself, with a view to discerning and advancing the legislature's intent. Our task is to breathe life, and generously so, into the particular statutory provisions that are before us.
8 Applying this approach to the Yukon Act, I note that, like its counterparts in other jurisdictions, it lists as its objects "to further . . . the public policy that every individual is free and equal in dignity and rights"; "to discourage and eliminate discrimination"; and "to promote recognition of the inherent dignity and worth and of the equal and inalienable rights of all members of the human family, these being principles underlying the Canadian Charter of Rights and Freedoms and the Universal Declaration of Human Rights and other solemn undertakings, international and national, which Canada honours" (s. 1). There is also an interpretive provision relating to the "preservation and enhancement of the multi-cultural heritage of the residents of the Yukon" (s. 2 ). The "Bill of Rights" portion of the Act affirms, inter alia that "[e]very individual and every group shall, in accordance with the law, enjoy the right to freedom of religion, conscience, opinion, and belief" (s. 3 ); that every individual and group "shall, in accordance with the law, enjoy the right to freedom of expression, including freedom of the press and other media of communication" (s. 4); and that every individual and group "shall, in accordance with the law, enjoy the right to peaceable assembly with others and the right to form with others associations of any character" (s. 5 ).
9 These objects may sometimes be in tension. Even within the associational right there may be a tension between a group's interest in self-definition and an outsider's interest in joining or associating with the group.
10 The structure of the Act is that once discrimination (as defined in s. 6) is found, one turns to s. 8 to determine whether the discrimination is of a prohibited kind, and if it is one then proceeds to ss. 9 and 10 (and other provisions which are not relevant to this appeal) to determine whether the prohibited discrimination can nevertheless be justified under those provisions.
11 In the case before us, it is evident that the Order's males-only membership policy contravenes s. 6(f) of the Act (discrimination on the basis of sex). Therefore, it is necessary to determine whether this discrimination is prohibited by s. 8 of the Act. That section must be considered as a whole. It appears under the heading "Prohibited discrimination", and reads:
8. No person shall discriminate
(a) when offering or providing services, goods, or facilities to the public,
(b) in connection with any aspect of employment or application for employment,
(c) in connection with any aspect of membership in or representation by any trade union, trade association, occupational association, or professional association,
(d) in connection with any aspect of the occupancy, possession, lease, or sale of property offered to the public,
(e) in the negotiation or performance of any contract that is offered to or for which offers are invited from the public. [Italics and underlining added.]
12 It is immediately apparent that the legislature has turned its mind to the question of membership as a category of prohibited discrimination. Membership is dealt with expressly -- and separately from "services, goods, or facilities". Further, s. 8(c) forbids discrimination "in connection with any aspect of membership" in certain listed types of organizations. These organizations collectively deal with livelihood and economic relationships but not social or cultural ones.
13 When I apply a liberal and purposive approach as I have described it above to these provisions, it is clear to me that s. 8(a) cannot bear the interpretation that the intervener and the appellant Gould would ascribe to it.
14 With regard to the intervener's position, I would not rule out the possibility that there might be a situation in which membership could constitute a service offered to the public. But s. 8(c) is