Gay Alliance Toward Equality v. Vancouver Sun

Gay Alliance Toward Equality v. Vancouver Sun
Collection
Supreme Court Judgments
Date
1979-05-22
Report
[1979] 2 SCR 435
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
British Columbia
Subjects
Constitutional law
Decision Content
Supreme Court of Canada
Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435
Date: 1979-05-22
The Gay Alliance Toward Equality Appellant;
and
The Vancouver Sun Respondent.
The British Columbia Human Rights Commission Appellant;
and
The Vancouver Sun Respondent.
1978: October 5; 1979: May 22.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Civil rights—Refusal of newspaper to publish advertisement promoting sale of subscriptions to homosexual publication—Whether board of inquiry erred in law in holding no reasonable cause for refusing advertisement—Human Rights Code of British Columbia, 1973 (B.C.) (2nd Sess.), c. 119, ss. 3, 18.
Section 3 of the Human Rights Code of British Columbia provides, in part, that no person shall deny to any person or class of persons any service customarily available to the public unless reasonable cause exists for such denial. The Code provides for the establishment of a Human Rights Commission and the appointment of a director. Where the director is unable to settle an allegation of breach of the Code, provision is made for the appointment of a board of inquiry which investigates the allegation. The board of inquiry, if it is of the opinion that an allegation is justified, may order a person who has contravened the Code to cease such contravention and may order such person to make available to the person discriminated against such rights, opportunities, or privileges which, in the opinion of the board, he was denied. An appeal is given from a decision of the board of inquiry to the Supreme Court on any question of law or jurisdiction or any finding of fact necessary to establish its jurisdiction that is manifestly incorrect.
A complaint was filed by an individual complainant on behalf of the appellant Alliance alleging that the respondent, The Vancouver Sun, had refused to publish an advertisement promoting the sale of subscriptions to “Gay Tide” in the classified advertising section of The Sun in violation of s. 3 of the Code. The Sun advised the Alliance by letter that the advertisement was “not acceptable for publication in this newspaper”.
The Sun’s refusal to print the advertisement was because it promoted subscriptions to “Gay Tide”. “Gay Tide” is a publication which reflects the purposes of the Alliance, i.e. to establish recognition for the thesis that homosexuality is a valid and legitimate form of human sexual and emotional expression in no way harmful to society or the individual and completely on a par with heterosexuality.
A board of inquiry was constituted to consider the complaint of the Alliance. After conducting a hearing, the board found that there had been a violation of s. 3 of the Human Rights Code. The board ordered The Sun to make the facilities of its classified advertising section available to the Alliance. An appeal was then taken by way of stated case to the Supreme Court of British Columbia in accordance with s. 18 of the Code. The Sun’s appeal was dismissed by MacDonald J., but a further appeal to the Court of Appeal was allowed by a majority decision. The Alliance then appealed to this Court, pursuant to leave.
Held (Laskin C.J., Dickson and Estey JJ. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Spence, Pigeon, Beetz and Pratte JJ.: The law has recognized the freedom of the press to propagate its views and ideas on any issue and to select the material which it publishes. As a corollary to that a newspaper also has the right to refuse to publish material which runs contrary to the views which it expresses.
The service which is customarily available to the public in the case of a newspaper which accepts advertising is a service subject to the right of the newspaper to control the content of such advertising. In the present case, The Sun had adopted a position on the controversial subject of homosexuality. It did not wish to accept an advertisement seeking subscription to a publication which propagates the views of the Alliance. Such refusal was not based upon any personal characteristic of the person seeking to place that advertisement, but upon the content of the advertisement itself.
Section 3 of the Human Rights Code does not purport to dictate the nature and scope of a service which must be offered to the public. In the case of a newspaper, the nature and scope of the service which it offers, including advertising service, is determined by the newspaper itself. What s. 3 does is to provide that a service which is offered to the public is to be available to all persons seeking to use it and the newspaper cannot deny the service which it offers to any particular member of the public unless reasonable cause exists for so doing.
The board of inquiry erred in law in considering that s. 3 was applicable in the circumstances of this case.
Per Laskin C.J., dissenting: As held by the judge before whom the appeal by way of stated case first came, and by the judge who dissented in the Court of Appeal, the board’s conclusion that no reasonable cause was shown under s. 3 was, in the circumstances, a conclusion of fact. At most, it was a conclusion of mixed fact and law. Therefore, the majority judgment of the Court of Appeal was not well founded. Branca J.A.’s conclusion was that a bias against homosexuals, if honestly held by the newspaper, provided reasonable cause under s. 3 unless there was bad faith. Robertson J.A. came to the same conclusion. In each instance, there was a direct substitution of the judge’s opinion for that of the board.
As to the preoccupation of the Court of Appeal majority with the term “motivation”, a matter also emphasized in this Court by counsel for the respondent, the board, a lay group, could properly use the word motive as a synonym for reason or ground. What appeared to have occurred in this case was a concern with “motive” as if it was being differentiated from “intent” for criminal law purposes. Intent is not, however, an issue under s. 3 of the Human Rights Code.
With reference to the respondent’s main argument, the gist of which was that the Human Rights Code proscribes discrimination only on the basis of an attribute or characteristic of a person or class of persons, the argument was a desperate one, seeking to circumvent the question of reasonable cause, which is the only question to be decided once it is determined that a service or facility customarily available to the public has been denied to a person, whatever be his attributes. The attributes or characteristics may themselves provide reasonable grounds for refusal (so long as they do not fall within s. 3(2) of the Human Rights Code) and, if not, there may be transcending grounds that may afford reasonable cause, but it is impossible to begin the inquiry into reasonable cause by excluding everything except a consideration of a complainant’s characteristics or attributes. That flies in the face of the Human Rights Code and in the face of the plain words of s. 3. There is no limitation to personal characteristics or attributes. The findings in this case amounted to a rejection of the respondent’s contention that the refusal of the advertisement was motivated by a concern for public decency or that such a concern had anything to do with the refusal. It was, indeed, difficult to square such concern with the various illustrated advertisements of films which appear regularly in The Sun, advertisements whose occasional vulgarity and offensiveness to decency were conceded by counsel for the newspaper. The board of inquiry was entitled to find as a fact, as the majority did, that the violation of s. 3 was based on a bias against homosexuals and homosexuality and that this was not a reasonable cause. The board member who dissented on the finding of bias, nonetheless took the view that apart from any question of such bias, there was no reasonable cause established to justify the discrimination. There was no basis on which a Court could or should decide otherwise.
Per Dickson and Estey JJ., dissenting: Whatever else it may have done, the board of inquiry in this case found the fact of “reasonable cause” adversely to the respondent. From that finding, there was a very limited right of appeal under the appeal provisions of the Code. The jurisdiction of the board of inquiry was not challenged. Insufficiency of evidence was not even argued in this Court or in the Courts below.
Counsel for The Sun argued that the Human Rights Code does not purport to be, and should not be employed as, an instrument to compel a newspaper to accept advertisements which it can reasonably be said will harm its reputation and standing. If the paper had taken that position before the board and had established adverse economic impact, the board’s conclusions might well have been different. What counsel was really asking this Court to do was make new findings of fact. This the Court could not undertake unless there was no evidence to support the board’s findings or unless those findings were perverse.
In an alternative argument, counsel submitted that if the board did address itself to whether reasonable cause for the refusal existed on an objective basis, then the board erred in failing to construe the term “reasonable cause” solely in relation to the characteristics of the person tendering the advertisement. The argument would limit the Code to unreasonable refusals based upon the characteristics of the persons seeking the public service. It was said the board erred in considering the text of the advertisement which gave rise to the denial of service. The paper, at most, discriminated against the idea of a thesis of homosexuality, and it is no offence to discriminate against ideas. The argument, although an interesting one, should be rejected for the reasons given by the Chief Justice.
A newspaper or any other institution or business providing a service to the public, cannot insulate itself from human rights legislation by relying upon “honest” bias, or upon a statement of policy which reserves to the proprietor the right to decide whom he shall serve.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], allowing the respondent’s appeal from a judgment of MacDonald J. dismissing an appeal from a decision of a board of inquiry under the Human Rights Code of British Columbia. Appeal dismissed, the Chief Justice, Dickson and Estey JJ. dissenting.
Harry Kopyto, for the appellant, The Gay Alliance Toward Equality.
M.R. V. Storrow, for the appellant, The British Columbia Human Rights Commission.
Jack Giles and Peter Parsons, for the respondent.
THE CHIEF JUSTICE (dissenting)—This appeal, which is here by leave of this Court, involves a recurring question in administrative law, namely, the reviewability on questions allegedly of law or of jurisdiction, of the decision of a statutory tribunal. The problem in this case is whether or not a board of inquiry, established under the British Columbia Human Rights Code, 1973 (B.C.) (2nd Sess.), c. 119, as amended, made a finding of fact or committed an error of law in deciding that no reasonable cause was shown by the respondent Vancouver Sun for denying to the appellant, The Gay Alliance Toward Equality, access to a service or facility customarily available to the public, namely, the classified advertising section of that daily newspaper and, also, discriminated against this appellant with respect to that service or facility. This issue engages, in the main, two sections of the Human Rights Code, they being ss. 3 and 18, reading as follows:
3. (1) No person shall
(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or
(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public,
unless reasonable cause exists for such denial or discrimination.
(2) For the purposes of subsection (1),
(a) the race, religion, colour, ancestry, or place of origin of any person or class of persons shall not constitute reasonable cause; and
(b) the sex of any person shall not constitute reasonable cause unless it relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of insurance.
…
18. An appeal lies from a decision of a board of inquiry to the Supreme Court upon
(a) any point or question of law or jurisdiction; or
(b) any finding of fact necessary to establish its jurisdiction that is manifestly incorrect,
and the rules under the Summary Convictions Act governing appeals by way of stated case to that court apply to appeals under this section, and a reference to the word “Justice” shall be deemed to be a reference to the board of inquiry.
Following the decision of the board of inquiry a case was stated, at the request of the Vancouver Sun, in which the relevant facts leading to the board’s challenged decision were set out and three questions were posed for determination by the Supreme Court of British Columbia. These are the three questions:
1. Was the Board of Inquiry correct in law in holding that pursuant to Section 3(1) of the Human Rights Code of British Columbia that classified advertising was a service or facility customarily available to the public? 2. Was the Board of Inquiry correct in law in holding that the Appellant herein denied to any person or class of persons any accommodation, service or facility customarily available to the public or discriminated against any person or class of persons with respect to any accommodation service or facility customarily available to the public pursuant to Section 3(1) of the Human Rights Code of British Columbia?
3. Was the Board of Inquiry correct in law in holding that pursuant to Section 3(1) of the Human Rights Code of British Columbia that the Appellant herein did not have reasonable cause for the alleged denial and did not have reasonable cause for the alleged discrimination?
Only the third question was argued on the appeal heard by MacDonald J. and on the further appeal to the British Columbia Court of Appeal. Indeed, in this Court too no issue was taken by the Vancouver Sun that its classified advertising section was a service customarily available to the public, nor was there any dispute about the denial to the appellant association of access to that service or of discrimination against it with respect to use of the service.
The factual background of this case is not in dispute. The Gay Alliance Toward Equality is an association of homosexuals, men and women, whose main object is to protect the social and legal interests of its members and to advance their claim to equality of treatment with all other members of society. It is not doubted that the association is a lawful one. On October 23, 1974, a representative of the association sought to insert an advertisement in the business personals column of the Vancouver Sun’s classified advertising section. The advertisement was as follows:
Subs. to GAY TIDE, gay lib paper. $1:00 for 6 issues. 2146 Yew St., Vancouver.
There was and is no suggestion that the contents of the proposed advertisement were in any way unlawful.
The Vancouver Sun refused to accept the advertisement for publication. Its letter of rejection stated only that the proffered advertisement “was not acceptable for publication in this newspaper”. The rejection did not turn on the contents of the journal which the appellant association wished to advertise. There followed attempts to have the newspaper reconsider the rejection and thereafter a complaint was made to the British Columbia Human Rights Commission. Efforts at settlement, in accordance with the primary mandate of the Commission, proved unavailing and, finally, the Minister of Labour appointed a board of inquiry pursuant to s. 16 of the Human Rights Code, reading as follows:
16. (1) Where the director is unable to settle an allegation, or where he is of the opinion that an allegation will not be settled by him, the director shall make a report to the Minister of Labour, who may refer the allegation to a board of inquiry and
(a) appoint a board of inquiry consisting of one or more panel members appointed under section 13; and
(b) fix a place at which and a date on which the board of inquiry shall hear and decide upon the allegation.
(2) A board of inquiry and every member thereof has, for the purposes of a reference under subsection (1), the powers of a commissioner appointed under the Public Inquiries Act.
(3) For the purposes of a reference under subsection (1), the persons who are entitled to be parties to a proceeding before the board of inquiry are
(a) the director, commission, or person who made the allegation;
(b) the person alleged to have been discriminated against contrary to this Act;
(c) the person who is alleged to have contravened this Act; and
(d) any other person who, in the opinion of the board of inquiry, would be directly affected by an order made by it.
(4) A board of inquiry shall give the parties opportunity to be represented by counsel, to present relevant evidence, to cross-examine any witnesses and to make submissions.
(5) The board of inquiry may receive and accept, on oath, affidavit, or otherwise, such evidence or information as it, in its discretion, considers necessary and appropriate, whether or not such evidence or information would be admissible in a court of law.
… The Vancouver Sun’s contention of reasonable cause, that is, reasonable grounds, for its rejection of the proffered advertisement, which promoted subscriptions to the official publication of the appellant association, was, as set out in the stated case, a three-fold one:
(1) That homosexuality is offensive to public decency and that the advertisement would offend some of its subscribers;
(2) That the Code of Advertising Standards, a Code of Advertising Ethics subscribed to by most of the daily newspapers in Canada includes the following section:
“Public decency—no advertisement shall be prepared, or be knowingly accepted which is vulgar, suggestive or in any way offensive to public decency.”
and that the advertisement in question did not conform to the standards therein set out; and
(3) That the Appellant newspaper had a duty to protect the morals of the community.
After hearing evidence the board of inquiry concluded unanimously that no reasonable cause was shown. Paragraph 12 of the stated case, which was the focus of considerable argument in this Court, is as follows:
12. Assessing all the evidence offered on the question of the cause or motivation behind the Appellant’s refusal to publish the Respondent’s advertisement, the majority of the Board of Inquiry found the inevitable conclusion to be that the real reason behind the policy was not a concern for any standard of public decency, but was, in fact, a personal bias against homosexuals and homosexuality on the part of various individuals within the management of the Appellant newspaper. Board Member Dr. Dorothy Smith dissented on this point and held that there was no evidence whatsoever on which the Board could make such a finding; and that, in particular there was no evidence to rebut the Appellant’s repeated statements that its policy was predicated on a desire to protect a reasonable standard of decency and good taste.
(I should note that the dissent of board member Dr. Dorothy Smith in respect of one of the findings by the board majority did not affect her concurrence in the conclusion that the Vancouver Sun violated s. 3 of the Human Rights Code.) I agree with MacDonald J., before whom the appeal by way of stated case first came, and with Seaton J.A., who dissented on the British Columbia Court of Appeal, that the board’s conclusion that no reasonable cause was shown under s. 3 was, in the circumstances, a conclusion of fact. At most, it was a conclusion of mixed fact and law. In my opinion, therefore, the majority judgment of the British Columbia Court of Appeal was not well founded. Indeed, although it was argued strenuously in this Court that “reasonable cause” involved an objective standard, Branca J.A. took a different view, one that can only be seen as destructive of the substance of s. 3 and of the policy embodied in it. It was his conclusion that a bias against homosexuals, if honestly held by the newspaper, provided reasonable cause under s. 3 unless there was bad faith. (Quaere, whether honesty and bad faith can co‑exist!) I quote several passages from his reasons:
The Board did not find that the various individuals within the management of the appellant newspaper were impelled towards their bias because of base views or by spite, malice or in bad faith or indeed, in circumstances other than good faith. In the absence of a finding of a bias based on bad faith, how can it be justly said that the bias held by such individuals is one that might not have been reasonable and honestly entertained by them? This was never determined by the Board. If the bias was honestly entertained, then there was not an unreasonable bias.
To go one step further, if the policy was motivated by an honest bias, why then is the policy unreasonable?
Alternatively, let us assume that the bias was one held in bad faith by the individuals mentioned by the Board. The question still remained: was the policy of the newspaper based on reasonable cause? The Board did not attribute bad faith to the bias of the individuals. It did not consider the second question at all and that is whether or not the policy, despite the bias, constituted reasonable cause.
The last-quoted paragraph is nothing more than a direct substitution of the learned judge’s opinion for that of the board. Robertson J.A., who came to the same conclusion as Branca J.A. and thus formed with him the majority of the British Columbia Court of Appeal, was more restrained in his assessment of the issue of reasonable cause. He viewed it as turning upon an objective test and then chided the board of inquiry for applying what he said was a subjective test, namely what motivated the Vancouver Sun in its denial or discrimination and was this motivation reasonable cause? In short, it was the learned judge’s opinion that the board erred in law in applying what he said was the test of motivation. He went on to say that in applying the wrong test the board “gave no effect to evidence that the advertisement would offend some of the newspaper’s subscribers, which in addition would, of course result in a loss of subscribers and afford reasonable cause for declining to accept the business”.
I find this no less a plain substitution of the learned judge’s opinion for that of the board than that which was expressed in the reasons of Branca J.A. Was the board not entitled to say that the potential loss of subscribers, a subjective opinion of the Vancouver Sun, would not be a reasonable ground for refusing the advertisement? If Robertson J.A. is right, a person who operates a service or facility customarily available to the public can destroy the prohibition against denial of its service, save for reasonable cause, by parading his apprehensions that he will lose some business. Moreover, this would destroy the prohibition not only in respect of a class of persons such as the appellant association, but against a complaining black person or a Catholic or any other person in the categories mentioned in s. 3(2)(a) of the Human Rights Code. “It is not because of their race or colour or religion that we deny our service” would be the submission, “but because of the possible loss of customers.” It is the very kind of subjective analysis which the Court of Appeal majority charged against the board and, wrongly, in my opinion.
I take first that Court’s preoccupation with the term “motivation”, a matter also emphasized in this Court by counsel for the Vancouver Sun. The term was used in para. 12 of the stated case as a disjunctive with the word “cause”. It would, I am sure, have been less confusing if the Legislature had used the phrase “reasonable grounds” rather than “reasonable cause”, but in context there is no doubt that the exonerating principle is that of reasonable grounds. “Cause” in any sense of causation is not involved in the operation of the Human Rights Code. The board was using a word which in Black’s Law Dictionary (1968, revised 4th ed.), for example, is defined as “cause or reason that moves the will and induces action”. The Oxford English Dictionary (1970, vol. 6) at p. 698 defines “motive” as, inter alia, “that which moves or induces a person to act in a certain way”. Wigmore on Evidence (1940, 3rd ed. vol. 1), at p. 561, s. 119 recites various uses of the word “motive” as a fact in issue and one of such uses is as follows:
“(3) motive may be in issue in the sense of reason or ground for conduct.”
Again, Chadman’s Dictionary of Law (1909) at p. 74 defines “causa” to mean, inter alia, “motive, ground, reason or consideration”.
I refer to the foregoing to show that the board, a lay group, could properly use the word motive as a synonym for reason or ground. Certainly, its meaning, as does the meaning of “reasonable cause”, depends on the context in which it is used. What appears to me to have occurred in this case is a concern with “motive” as if it was being differentiated from “intent” for criminal law purposes. Intent is not, however, an issue under s. 3 of the Human Rights Code.
Secondly, I wish to refer to what counsel for the Vancouver Sun put forward as his main argument in this Court. It was not, it seems, an argument addressed to the Courts below. The gist of the argument was that the Human Rights Code proscribes discrimination only on the basis of an attribute or characteristic of a person or class of persons; it does not prohibit all unreasonable denials or discriminations and, hence, as in this case, a denial or discrimination based on a newspaper policy or even on “some personal quirk” (to use counsel’s words in his supplementary factum) of the newspaper publisher would be outside the scope of the statute. This is an untenable submission, however beguiling it may seem at first blush. It evades the very questions which arise under s. 3 or under the comparable s. 8 which deals with discrimination in employment.
I confine myself here to s. 3. It deals not with all services or facilities but only with those services or facilities which are customarily available to the public. The policy embodied is plain and clear. Every person or class of person is entitled to avail himself or themselves of such services or facilities unless reasonable grounds are shown for denying them or discriminating in respect of them. This Court is obliged to enforce this policy regardless of whether it thinks it to be ill-advised. There is more, however, that needs to be said. Counsel for the Vancouver Sun would have it that although it could not discriminate against a person on the ground that he had only one eye—that would be a discrimination related to an attribute of the person—it could refuse an advertisement soliciting subscriptions to a periodical for the blind because of newspaper policy against accepting such an advertisement.
The argument is a desperate one, seeking to circumvent the question of reasonable cause, which is the only question to be decided once it is determined that a service or facility customarily available to the public has been denied to a person, whatever be his attributes. The attributes or characteristics may themselves provide reasonable grounds for refusal (so long as they do not fall within s. 3(2) of the Human Rights Code) and, if not, there may be transcending grounds that may afford reasonable cause, but it is impossible to begin the inquiry into reasonable cause by excluding everything except a consideration of a complainant’s characteristics or attributes. That flies in the face of the Human Rights Code and in the face of the plain words of s. 3. There is no limitation to personal characteristics or attributes.
This brings me back to the findings in this case. They amount to a rejection of the Vancouver Sun’s contention that the refusal of the advertisement was motivated (if I may use the word) by a concern for public decency or that such a concern had anything to do with the refusal. It is, indeed, difficult to square such concern with the various illustrated advertisements of films which appear regularly in the Vancouver Sun, advertisements whose occasional vulgarity and offensiveness to decency were conceded by counsel for the newspaper. The board of inquiry was entitled to find as a fact, as the majority did, that the violation of s. 3 was based on a bias against homosexuals and homosexuality and that this was not a reasonable cause. The board member who dissented on the finding of bias, nonetheless took the view—one which I have expressed here—that apart from any question of such bias, there was no reasonable cause established to justify the discrimination. I can find no basis on which a Court could or should decide otherwise.
There was some reference in the respondent’s factum and in the argument of its counsel to constitutional issues respecting freedom of the press but they were not pursued and, indeed, could not be without proper notice to the Attorney General of the Province and to the Attorney General of Canada.
The appeal should be allowed, the judgment of the British Columbia Court of Appeal should be set aside and the judgment of MacDonald J. and the order of the board of inquiry restored. The appellant association is entitled to costs throughout. There will be no costs to the British Columbia Human Rights Commission.
The judgment of Martland, Ritchie, Spence, Pigeon, Beetz and Pratte JJ. was delivered by
MARTLAND J.—The issues in this appeal arise in respect of the application of the provisions of s. 3 of the Human Rights Code of British Columbia Act, 1973 (B.C.) (2nd Sess.), c. 119. That section appears under a heading “Discriminatory Practices” and it read at the relevant time as follows:
3. (1) No person shall
(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or
(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public,
unless reasonable cause exists for such denial or discrimination.
(2) For the purposes of subsection (1),
(a) the race, religion, colour, ancestry, or place of origin of any person or class of persons shall not constitute reasonable cause; and
(b) the sex of any person shall not constitute reasonable cause unless it relates to the maintenance of public decency.
The Act established a commission, the British Columbia Human Rights Commission. It provided for the appointment of a director, who is the chief executive officer of the Commission. When the director receives a complaint alleging a contravention of the Act, he is required to investigate and endeavour to effect a settlement of the alleged contravention. If he is unable to settle an allegation, provision is made for the appointment of a board of inquiry which investigates the allegation. The board of inquiry, if it is of the opinion that an allegation is justified, may order a person who has contravened the Act to cease such contravention and may order such person to make available to the person discriminated against such rights, opportunities, or privileges as, in the opinion of the board, he was denied. The board is also empowered to direct the payment of compensation and to make orders as to costs.
An appeal is given from a decision of the board of inquiry to the Supreme Court on any question of law or jurisdiction or any finding of fact necessary to establish its jurisdiction that is manifestly incorrect. The rules under the Summary Convictions Act, R.S.B.C. 1960, c. 373, governing ap- peals by way of stated case are made applicable.
A complaint was filed by an individual complainant on behalf of the appellant, The Gay Alliance Toward Equality, hereinafter referred to as “Alliance”, alleging that the respondent, The Vancouver Sun, hereinafter referred to as “Sun”, had refused to publish an advertisement promoting the sale of subscriptions to “Gay Tide” in the classified advertising section of The Sun newspaper in violation of s. 3 of the Act. The Sun advised the Alliance by letter that the advertisement was “not acceptable for publication in this newspaper”.
The Sun’s refusal to print the advertisement was because it promoted subscriptions to “Gay Tide”. “Gay Tide” is a publication which reflects the purposes of the Alliance, i.e. to establish recognition for the thesis that homosexuality is a valid and legitimate form of human sexual and emotional expression in no way harmful to society or the individual and completely on a par with heterosexuality.
A Board of Inquiry was constituted to consider the complaint of the Alliance. After conducting a hearing, the Board found that there had been a violation of s. 3 of the Human Rights Code. From this decision The Sun appealed. A case was stated by the Board as required under the Act. The stated case referred to the facts previously mentioned. Paragraphs 10, 11 and 12 of the stated case are as follows:
10. The refusal by the Appellant to publish the advertisement in question was stated to be the result of a policy which the paper has in its advertising department (as distinct from its editorial department) to avoid any advertising material dealing with homosexuals or homosexuality, and the Appellant argued that this policy was justified on three grounds:
(1) That homosexuality is offensive to public decency and that the advertisement would offend some of its subscribers;
(2) That the Code of Advertising Standards, a Code of Advertising Ethics subscribed to by most of the daily newspapers in Canada includes the following section:
“Public decency—no advertisement shall be prepared, or be knowingly accepted which is vulgar, suggestive or in any way offensive to public decency.”
and that the advertisement in question did not conform to the standards therein set out; and
(3) That the Appellant newspaper had a duty to protect the morals of the community.
11. This Board of Inquiry found that the central theme of the Appellant’s argument was that the policy in question was predicated on a desire to protect a reasonable standard of decency and good taste.
12. Assessing all the evidence offered on the question of the cause or motivation behind the Appellant’s refusal to publish the Respondent’s advertisement, the majority of the Board of Inquiry found the inevitable conclusion to be that the real reason behind the policy was not a concern for any standard of public decency, but was, in fact, a personal bias against homosexuals and homosexuality on the part of various individuals within the management of the Appellant newspaper. Board Member Dr. Dorothy Smith dissented on this point and held that there was no evidence whatsoever on which the Board could make such a finding; and that, in particular there was no evidence to rebut the Appellant’s repeated statements that its policy was predicated on a desire to protect a reasonable standard of decency and good taste.
The questions of law stated in the stated case are as follows:
The appellant desires to question the finding that a violation did take place on the grounds that the said Judgment was erroneous in point of law or in excess of jurisdiction, the questions submitted being:
1. Was the Board of Inquiry correct in law in holding that pursuant to Section 3(1) of the Human Rights Code of British Columbia that classified advertising was a service or facility customarily available to the public?
2. Was the Board of Inquiry correct in law in holding that the Appellant herein denied to any person or class of persons any accommodation, service or facility customarily available to the public or discriminated against any person or class of persons with respect to any accommodation, service or facility customarily available to the public pursuant to Section 3(1) of the Human Rights Code of British Columbia?
3. Was the Board of Inquiry correct in law in holding that pursuant to Section 3(1) of the Human Rights Code of British Columbia that the Appellant herein did not have reasonable cause for the alleged denial and did not have reasonable cause for the alleged discrimination?
Sun’s appeal to a judge of the Supreme Court of British Columbia was dismissed, but its appeal to the Court of Appeal succeeded by a majority decision. It is from that judgment that the present appeal, with leave, has been brought to this Court.
The following excerpts from the judgments of Branca J.A. and Robertson J.A., who comprised the majority in the Court of Appeal, state the basis upon which they were of the opinion that Sun’s appeal should be allowed:
Per Branca J.A.:
The Board concluded that having assessed all of the evidence that it was a personal bias on the part of various individuals, within the management of the advertising department of the newspaper, which was the real reason motivating the refusal to publish and not a genuine concern on the part of the newspaper for any standard of public decency. It seems to me that the real question for determination was not whether certain individuals within management had a bias against homosexuals or homosexuality which may have motivated the policy, but whether or not the resultant policy dealing with public decency even though motivated by a bias on the part of certain individuals constituted a reasonable cause for the refusal to publish. In other words, despite the fact that certain individuals may have had that bias and that bias might well have motivated the refusal, the vital question remained: did the resultant policy of the newspaper furnish reasonable cause within the meaning of those words as used in s. 3 of the Human Rights Code which in that event might constitute a lawful ground for refusal.
Per Robertson J.A.:
It is my view that the words in s. 3(1) of the Code, “unless reasonable cause exists” require the application of an objective test: does such a cause exist? It is wrong in law to substitute for this the subjective test that the Board applied: what motivated the person who denied or discriminated and was this motivation reasonable cause for the denial or discrimination? To put it another way: If reasonable cause does in fact exist, the person discriminated against cannot claim the benefit of s. 3, even though the other person did not know of the existence of the cause; conversely, if reasonable cause does not in fact exist, the other person cannot justify his act of discrimination by a genuine belief that a reasonable cause did exist.
Of course, in applying the Code the “cause” must be considered in relation to the person and the circumstances. Also, it must be borne in mind that the members of majorities have rights and sensibilities. I do not think that it is the intention of the Code that these are generally to be ignored for the benefit of those who are different. The words “unless reasonable cause exists” make this abundantly clear.
If the grounds upon which the Board reached its decision are to be gathered from the stated case alone, it appears from paragraph 12 that the Board went wrong, in that it applied the wrong test, that of motivation, and gave no effect to