Vandervelde v. Goodlife Fitness Centres Inc., 2012 HRTO 1042

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Steven Vandervelde

Applicant

-and-

Goodlife Fitness Centres Inc.

Respondent

DECISION

Adjudicator: David A. Wright

Decision Date: May 25, 2012

Citation: 2012 HRTO 1042

Indexed as: Vandervelde v. Goodlife Fitness Centres Inc.

APPEARANCES

Steven Vandervelde, Applicant

Self-represented

Goodlife Fitness Centres Inc., Respondent

Elizabeth Traynor, Counsel

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of sex. The respondent, Goodlife Fitness Centres Inc., operates a chain of fitness clubs. Some clubs are for women and children only and others are co-educational. The legal question before the Tribunal is whether it is discrimination based on sex for the respondent to offer child minding services, based on demand, at a women-only club without offering the same service at a nearby co-educational club.

BACKGROUND

2Mr. Vandervelde, who is a father and the primary caregiver for his child born in 2010, exercises primarily at Goodlife’s co-educational Markville Mall club. There is a women-only club located in a Loblaws grocery store approximately 600 metres away that offers child minding.

3The respondent offers child minding services at some of its clubs for a fee. The hours of the service vary and do not necessarily correspond to the club hours. Pursuant to its contract with Loblaws, the service is offered in all clubs in Loblaws stores, all of which are women-only. It is undisputed that in non-Loblaws locations, the service is offered based on demand, and that child minding services are offered at some co-educational clubs. As a result of the Day Nurseries Act, R.S.O. 1990, c. D.2, a parent must remain on the premises while leaving a child with the service.

4The Markville Mall location had a child minding service until June of 2010, when it was closed due to lack of demand. Therefore, to have access to child-minding services the applicant must travel to another co-educational Goodlife location. According to the respondent, there are two co-educational clubs within 15 km of the Markville Mall that offer child minding services. The applicant states that the closest co-educational location with child minding services takes 15-25 minutes longer to get to from his house than the Markville location.

RELEVANT STATUTORY PROVISIONS

5Section 1 of the Code reads as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.

6Section 20(3) reads:

The right under section 1 to equal treatment with respect to services and facilities is not infringed where a recreational club restricts or qualifies access to its services or facilities or gives preferences with respect to membership dues and other fees because of age, sex, marital status or family status.

ANALYSIS

7The hearing was held on April 30, 2012. In an Interim Decision, 2012 HRTO 651, the Tribunal directed that the hearing would commence with oral submissions on whether the Application has no reasonable prospect of success.

8Having considered the parties’ submissions, I find that the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at para. 8, the Tribunal held that an Application has no reasonable prospect of success where, assuming all the allegations to be true, a legal analysis shows there is no Code violation. This is such a case. There is no need to hear evidence, as the applicant’s legal arguments cannot succeed.

9The applicant does not dispute that the respondent has made decisions about where to offer child minding services based on demand for those services, and that it offers these services at some co-educational clubs. However, he argues that s. 20(3) does not permit a women-only fitness facility and that, even if it does apply, the respondent is required to offer the same services to those available at any women-only facility to men at a nearby co-educational facility. He relies upon Dickason v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103, for the principle that in statutory human rights legislation like the Code, rights must be interpreted broadly, and exceptions narrowly.

10The respondent asserts that there is no substantive discrimination in the circumstances of this case. It asserts that it is not obligated to offer child-minding services at any of its clubs and that there is nothing in its decision-making around where it offers such services that could come under the scrutiny of the Tribunal, since it is agreed that the relevant criterion is demand. It relies upon Harrington v. Hamilton (City), 2010 HRTO 2395, Mortillaro v. Ontario (Transportation), 2011 HRTO 310, and Law v. Thames Valley District School Board, 2011 HRTO 953.

11I find that this Application has no reasonable prospect of success because of the application of s. 20(3) of the Code and the principles of substantive equality. The fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105, at para. 42. In applying this principle in the context of the Code, as the applicant argues, rights are to be interpreted broadly and exceptions narrowly. Particular provisions of the Code must be interpreted in light of the Code’s purposes of promoting equality and the dignity and worth of every person.

12Section 20(3) allows a recreational club to restrict access to its services or facilities because of sex. In my view, a “recreational club” clearly includes a fitness facility such as the respondent’s clubs. I do not agree with the applicant’s argument that this provision does not apply to the respondent.

13Substantive equality does not always require treating people the same. Its purposes are often served by recognizing and responding to difference and remedying discrimination and stereotyping: see generally Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 174; R. v. Kapp, 2008 SCC 41; Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593; Weatherall v. Canada (Attorney General), 1993 CanLII 112 (SCC), [1993] 2 S.C.R. 872. For various reasons, including gender dynamics, experiences with male violence or aggression, or religious beliefs, women may want or need to exercise in a female-only atmosphere. For many women, exercise is a very personal activity that they prefer to carry out with persons of the same sex. The respondent’s fitness centres are “recreational clubs” within the meaning of s. 20(3), and this provision promotes substantive equality when it allows for exercise in single-sex spaces. Section 20(3) applies here.

14The applicant argues, though, that even if s. 20(3) does permit a female-only space, s. 1 of the Code and substantive equality require that the respondent provide identical services at a nearby co-educational club when it offers them at a women’s-only club. I do not agree that the Code imposes such broad obligations, and in my view, the applicant’s interpretation would defeat the equality-promoting purposes and effects of s. 20(3).

15There is no dispute that the respondent made its decisions about the locations and hours of child minding services based solely on economic considerations: usage of the service and its contract with Loblaws. It offers child minding at some co-educational clubs. There is no suggestion that its decision about where it would offer such services was based on or influenced by stereotyping or prejudice. The applicant points out, and the respondent agrees, that it is often co-educational clubs near women-only clubs that have less demand for child-minding services and that therefore do not offer child minding. Notwithstanding this, it is clear that there is no substantive discrimination in the circumstances of this case, given in particular that there are child-minding services offered at some co-educational clubs, and the decision about where to offer child minding was made exclusively based on demand and contractual obligations.

16The applicant states that his argument is limited to circumstances in which there is a co-educational club near a women-only club. However, the proximity of the existing clubs, in my view, is not relevant to the discrimination analysis. Taken to its logical conclusion, the applicant’s argument would require any facility that falls under the protection of s. 20(3) to offer identical services at a nearby location open to everyone. In my view, s. 20(3) intends the opposite and it would be inconsistent with the purposes and intent of s. 20(3) and substantive equality to require identical services.

17For these reasons, the Application has no reasonable prospect of success and it is dismissed.