University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] 2 SCR 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 CanLII 164 (SCC), [1993] 1 S.C.R. 554; distinguished: Gay Alliance Toward Equality v. Vancouver Sun, 1979 CanLII 225 (SCC), [1979] 2 S.C.R. 435; not followed: Beattie v. Governors of Acadia University (1976), 1976 CanLII 1231 (NS CA), 72 D.L.R. (3d) 718; disapproved: Re Jenkins and Workers' Compensation Board of Prince Edward Island (1986), 1986 CanLII 181 (PE SCAD), 31 D.L.R. (4th) 536; referred to: Insurance Corporation of British Columbia v. Heerspink, 1982 CanLII 27 (SCC), [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 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 S.C.R. 84; Canada (Attorney General) v. Rosin, 1990 CanLII 12957 (FCA), [1991] 1 F.C. 391; Re Ontario Human Rights Commission and Ontario Rural Softball Association (1979), 1979 CanLII 2094 (ON CA), 26 O.R. (2d) 134; Nova Scotia (Human Rights Commission) v. Canada Life Assurance Co. (1992), 1992 CanLII 8509 (NS SC), 88 D.L.R. (4th) 100; Sonnenberg v. Lang (1989), 1989 CanLII 8162 (NB KB), 100 N.B.R. (2d) 413 (Q.B.), rev'g (1987), 1987 CanLII 8588 (NB BHR), 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), 1989 CanLII 208 (NB CA), 10 C.H.R.R. D/6426; Kelly v. British Columbia (1990), 1990 CanLII 12457 (BC HRT), 12 C.H.R.R. D/216; Hobson v. British Columbia Institute of Technology (1988), 1988 CanLII 8900 (BC HRT), 9 C.H.R.R. D/4666; Rawala v. DeVry Institute of Technology (1982), 1982 CanLII 4880 (ON HRT), 3 C.H.R.R. D/1057; Bourque v. Westlock School Division No. 37 (1986), 1986 CanLII 6557 (AB KB), 8 C.H.R.R. D/3746; LeDrew v. Council for Nursing Assistants (1989), 1989 CanLII 9060 (NL HRC), 10 C.H.R.R. D/6259; Peters v. University Hospital Board, 1983 CanLII 2066 (SK CA), [1983] 5 W.W.R. 193; Bloedel v. University of Calgary (1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25; McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229; Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181; Saskatchewan (Human Rights Commission) v. Saskatchewan (Department of Social Services), 1988 CanLII 212 (SK CA), [1988] 5 W.W.R. 446 (Sask. C.A.), rev'g (1987), 1987 CanLII 4945 (SK QB), 8 C.H.R.R. D/4240 (Q.B.), aff'g (1987), 1987 CanLII 8555 (SK HRT), 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), 1990 CanLII 12453 (AB HRC), 11 C.H.R.R. D/357; Calgary Board of Education v. Deyell (1984), 1984 CanLII 5087 (AB KB), 8 C.H.R.R. D/3668 (Alta. Q.B.), aff'd (1986), 1986 CanLII 6475 (AB CA), 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), 1991 CanLII 606 (BC CA), 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), 1988 CanLII 3315 (BC SC), 10 C.H.R.R. D/6112, which set aside a decision of the British Columbia Council of Human Rights (1987), 1987 CanLII 8523 (BC HRT), 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), 1987 CanLII 8523 (BC HRT), 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), 1988 CanLII 3315 (BC SC), 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), 1991 CanLII 606 (BC CA), 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 CanLII 225 (SCC), [1979] 2 S.C.R. 435, and then applied the reasoning in Beattie v. Governors of Acadia University (1976), 1976 CanLII 1231 (NS CA), 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 CanLII 27 (SCC), [1982] 2 S.C.R. 145, Ontario Human Rights Commission v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, and Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [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 CanLII 164 (SCC), [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, 1990 CanLII 12957 (FCA), [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), 1979 CanLII 2094 (ON CA), 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 against a newspaper, the Vancouver Sun, claiming that the newspaper's refusal to print its discreet advertisement was the result of discrimination against homosexuals. For the majority (Laskin C.J., Dickson and Estey JJ. dissenting), Martland J. held that there was no violation. After briefly discussing the nature of freedom of the press in Canada, Martland J. wrote (at pp. 454-55):

In my opinion the general purpose of s. 3 was to prevent discrimination against individuals or groups of individuals in respect of the provision of certain things available generally to the public. The items dealt with are similar to those covered by legislation in the United States, both federal and state. "Accommodation" refers to such matters as accommodation in hotels, inns and motels. "Service" refers to such matters as restaurants, bars, taverns, service stations, public transportation and public utilities. "Facility" refers to such matters as public parks and recreational facilities. These are all items "customarily available to the public". It is matters such as these which have been dealt with in American case law on the subject of civil rights.

Martland J. stated (at p. 455) that a corollary to the right of the freedom of the press was the newspaper's "right to refuse to publish material which runs contrary to the views which it expresses" and accordingly interpreted the limiting words of the B.C. Act to the following effect: "In my opinion 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."

Cases following Gay Alliance to restrict the application of human rights legislation have treated the passage quoted above as an exhaustive list, or emphasized the reference to services or facilities available "generally" to the public. For example, in Nova Scotia (Human Rights Commission) v. Canada Life Assurance Co. (1992), 1992 CanLII 8509 (NS SC), 88 D.L.R. (4th) 100 (N.S.C.A.), Hallett J.A. wrote, for the court (at p. 104):

Although banks have their doors open for business, the open door is a mere invitation to do business; it is not an offer to provide any particular service to everyone who walks in the door. Banks and insurance companies do not provide the type of services referred to by Martland J. in the Gay Alliance decision as being within the meaning of the word "services" as contained in human rights legislation similar to s. 15(1)(a) of the Nova Scotia Act.

Certain decisions of other courts and boards have sought to limit Gay Alliance's influence. One of the most articulate and considered such decisions is the dissent of Wilson J.A. in Ontario Rural Softball Association. Wilson J.A. noted that the issue with respect to Martland J.'s reasons in Gay Alliance was whether the examples he provided were intended to be an exhaustive list, or whether they were merely illustrative of the intended general objects of human rights legislation. She concluded (at p. 142):

... while the illustrations given by the learned Justice are the accommodation, services and facilities which the anti-discrimination legislation was initially designed to ensure would be available to all, the case itself illustrates a totally different kind of service, namely, classified advertising in a newspaper, which was found to be within the scope of s. 3 of the British Columbia Code as a service "customarily available to the public." I do not think therefore that it would be appropriate to refine too much on Mr. Justice Martland's illustrations. I think the learned Justice refers to them because of their historic significance in the development of the law in this area. I do not think he should be taken to have suggested that the categories of accommodation, services and facilities covered by the British Columbia section are closed.

Several decisions have repeated this analysis, including that of Daigle J. in Sonnenberg v. Lang (1989), 1989 CanLII 8162 (NB KB), 100 N.B.R. (2d) 413 (Q.B.) (overruling (1987), 9 C.H.R.R. D/5100 (Bd. Inq.) on the jurisdictional issue), adopting New Brunswick School District No. 15 v. New Brunswick (Human Rights Board of Inquiry) (1989), 1989 CanLII 208 (NB CA), 10 C.H.R.R. D/6426 (N.B.C.A.). Daigle J. in Sonnenberg, wrote (at p. 426):

... in my opinion the majority opinion written by Martland J., although it explained the genesis of human rights contemplated by the statute concerned by providing examples of legally protected rights, did not intend to restrict services and facilities available to the public to these examples alone because it held that the classified section of the Vancouver Sun fell within the scope of the Act.

See also Kelly v. British Columbia (1990), 1990 CanLII 12457 (BC HRT), 12 C.H.R.R. D/216 (B.C. H.R.C.), and Hobson v. British Columbia Institute of Technology (1988), 1988 CanLII 8900 (BC HRT), 9 C.H.R.R. D/4666 (B.C. H.R.C.), which also held that the list in Gay Alliance was not intended to be exhaustive. Note that Hobson was a decision by the same member-designate (Douglas J. Wilson) who heard this complaint, in which he engaged in an extended analysis of this issue on which his decision in this complaint is silent.

Boards and courts have also noted that an important element of the dispute in Gay Alliance was the competing interest of the freedom of the press. Martland J. wrote (at p. 455):

It is true that its advertising facilities are made available, at a price, to the general public. But Sun reserved to itself the right to revise, edit, classify or reject any advertisement submitted to it for publication and this reservation was displayed daily at the head of its classified advertisement section.

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 it expresses.

The School identified no similar competing or compelling interest in these appeals, nor did it suggest that Berg's admission was subject to any explicit restrictions or limitations on her use of its services or facilities which would justify its actions.

Berg submitted that the decision in Gay Alliance is obsolete, given the more recent decisions of this Court. This submission finds support in "Why Chambers is Wrong: A Purposive Interpretation of `Offered to the Public'" (1988), 52 Sask. L. Rev. 161, in which Professor Donna Greschner argues (at p. 173, note 44):

Cases which predate this line of authorities from the Supreme Court, if they have not been implicitly reversed, are now at best of dubious precedential value. Gay Alliance ... could be referred to in support of narrow interpretations of human rights statutes, and specifically a narrow interpretation of "customarily available to the public". It can be treated as overruled by decisions from the Supreme Court since 1982. The Court would need to repudiate what it has said about human rights legislation in the past five years in order to use the same approach today.

What is most often criticized about the decision in Gay Alliance is the fact that the limiting words of the Act were interpreted to allow the discriminatory exercise of the newspaper's discretion, even thought the Act had prohibited discrimination at the "threshold" to the service or facility. That is, the newspaper could not discriminate in soliciting advertisements, but could discriminate in deciding which advertisements it would accept.

I rejected this result in Heerspink, where the Insurance Corporation of British Columbia claimed that its discretionary termination rights in insurance contracts were part of the service customarily available to the public and therefore beyond the scrutiny of the Act. Martland J., dissenting in Heerspink, applied his Gay Alliance reasoning to policies of insurance (at p. 156):

The appellant did not deny the respondent the service which it customarily made available to the public. It issued a policy to him. He accepted the policy and, in so doing, agreed that his policy would be subject to the terms of Statutory Condition 5, imposed by the Legislature. That term of the contract gave to both parties the absolute right to terminate it at will. The appellant exercised its contractual right. The termination of the contract by the appellant was not a denial of a service. It was the exercise of a contractual right.

My response to this argument was as follows (at p. 159):

The suggested interpretation of "customarily available to the public" would enable an insurer to accomplish by termination of a policy that which would be clearly forbidden on an application for the issuance of a policy, and to insulate such action from any investigation of the reasons therefor. Worse it could even do with impunity, because it is done beyond the reach of the section, what under the section can never, as a matter of law, be a reasonable cause.

On this interpretation of the law, that an insurance company terminated fire insurance coverage of a building upon learning that the insured owner rented the premises to coloured persons would not even trigger s. 3. Had the company for that very same reason denied the coverage at the outset, not only would the section be triggered but also successfully for the complainant. The legislature cannot have intended such a result. [Emphasis in original.]

In a comment on Heerspink (1983), 17 U.B.C. L. Rev. 299, Marvin G. Baer wrote of this passage (at p. 309):

This is a succinct refutation of part of the reasoning in the Gay Alliance case, although Mr. Justice Lamer does not expressly say that that part of the judgment in the earlier case was wrong or should be treated as obiter dictum. While the Chief Justice and Dickson J. did not concur in this judgment, in view of their dissent in Gay Alliance, this may now represent the view of the majority of the Supreme Court of Canada.

This reasoning has been repeated in subsequent cases. For example, in Rawala v. DeVry Institute of Technology (1982), 1982 CanLII 4880 (ON HRT), 3 C.H.R.R. D/1057, the Ontario Board of Inquiry wrote (at p. D/1063):

The suggestion [of the respondent] is that provided the admissions decision is made on the basis of criteria which do not offend the Code, those services and facilities which are made available exclusively to students are not made available to the public and hence discriminatory conduct is beyond the reach of s. 2.

Although there is some support in the case law for a notion of this kind, it must be said that on the face of it this proposition seems manifestly unsound. It would be a bizarre reading of s. 2, in my view, which would permit a restaurant which admits into its premises and serves food to customers of any race, colour or creed to discriminate along racial lines with respect to the provision of washroom facilities. Could it be seriously maintained that a hotel which accepted guests on a non-discriminatory basis would nonetheless be permitted to exclude certain ethnic groups from the use of the pool, tennis courts or laundry facilities?

I agree, and would limit the holding in Gay Alliance on two bases: (i) the respondent's competing interest in the freedom of the press was used to limit the complainant's right to freedom from discrimination in that decision, and (ii) the reasoning of Martland J. leads to an artificial and unacceptable distinction between the rights a person has at the threshold of admission to an accommodation, service or facility, and the rights he or she has once admitted to the accommodation, service or facility.

This is the distinction on which the other significant prior decision was premised. In Beattie, the Nova Scotia Court of Appeal held that students denied places on the university basketball team because they were American citizens were not protected by the Nova Scotia legislation. MacKeigan C.J.N.S. (Coffin J.A. concurring) held that membership on the varsity basketball team was not a facility "customarily provided to members of the public" or one "to which members of the public have access" since (at p. 724):

The facilities are not provided for the public at large but are provided only for the registered students of the university. A member of the public has no right of access, unless he is a student, to athletic or other facilities of a university, or to be considered for participation in university athletics.

While MacKeigan C.J.N.S. concentrated in his reasons on the private status of Acadia University, and the University of British Columbia is a public institution operated with public funds performing a public service, I would not distinguish Beattie on this narrow basis. Rather, I prefer to address its conclusion which, like that in Gay Alliance, relies on a distinction between discrimination on the threshold of admission to a facility, and discrimination once admission to the facility has been obtained. As I have stated with respect to Gay Alliance, and as is forcefully illustrated in Rawala, this distinction leads to results the legislature cannot have intended.

Beattie has been applied in two other recent decisions (Bourque v. Westlock School Division No. 37 (1986), 1986 CanLII 6557 (AB KB), 8 C.H.R.R. D/3746 (Alta. Q.B.), and LeDrew v. Council for Nursing Assistants (1989), 1989 CanLII 9060 (NL HRC), 10 C.H.R.R. D/6259 (Nfld. Comm. Inq.)). With due respect to Legg J.A. of the Court of Appeal in this case, I must point out, however, that Beattie was not applied with approval by the Saskatchewan Court of Appeal in Peters v. University Hospital Board, 1983 CanLII 2066 (SK CA), [1983] 5 W.W.R. 193; in that decision, the Court of Appeal held that the interpretation of a similar provision was a question of fact, and rather than applying Beattie, distinguished the decision. Furthermore, the decision of the New Brunswick Board of Inquiry in Sonnenberg, supra, referred to by Legg J.A. as a recent decision following Beattie, was overruled on this jurisdictional point by Daigle J. of the Court of Queen's Bench, who distinguished Beattie on its facts. Beattie has also been distinguished on its facts in Bloedel v. University of Calgary (1980), 1980 CanLII 3916 (AB HRC), 1 C.H.R.R. D/25 (Alta. Bd. Inq.), and Rawala.

As should be clear from the above discussion of Heerspink, Gay Alliance and Beattie, I find the distinction between discrimination in the admissions process and discrimination in the provision of accommodations, services and facilities to those already admitted unconvincing and subversive of the purpose of human rights legislation. The line of cases following Gay Alliance and Beattie admit that institutions like the School cannot engage in discrimination in the former situation, but then seek to maintain that human rights legislation does not protect students who have been admitted to the School. Given that it appears that the Canadian Charter of Rights and Freedoms does not apply to universities in their relations with their members (McKinney v. University of Guelph, 1990 CanLII 60 (SCC), [1990] 3 S.C.R. 229), and that this Court has foreclosed a common law cause of action for discrimination operating in tandem with human rights legislation (Seneca College of Applied Arts and Technology v. Bhadauria, 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181), students enrolled in the university would be denied any protection from discrimination.

This cannot be maintained. As I noted in Heerspink, such a distinction would allow such institutions to frustrate the purpose of the legislation by admitting students without discrimination, and then denying them access to the accommodations, services and facilities they require to make their admission meaningful. Many examples can be imagined such as those enumerated in Rawala, and in each case, one need do no more than ask the question "Can the legislature have intended that such activity would not be subject to scrutiny under the Act?" to make the answer, I think, clear.

Such is the danger of applying a purely quantitative analysis to the problem to decide that as soon as the public as a whole is reduced to a subset through an admissions or eligibility process, the admitted few lose their identity as members of the public. It appears to me that attention in the prior cases to the quantitative characteristics of the group to whom the service or facility is available does not focus adequately on other relevant factors. If the focus is purely quantitative, it is indeed hard to see how anything less than all citizens can be said to be the "public" of a given municipality, province, or country.

This was the approach adopted by the Prince Edward Island Supreme Court, Appeal Division in Re Jenkins and Workers' Compensation Board of Prince Edward Island (1986), 1986 CanLII 181 (PE SCAD), 31 D.L.R. (4th) 536, at p. 546:

... I would construe it [the word "public"] to mean the public at large, as opposed to selected or restricted segments or factions thereof, the people at large who constitute the community.

Accordingly, I would attribute to the phrase "available to the public" the meaning that the service in question must be a service which can be taken advantage of by the public at large and each and every member thereof.

This cannot be the correct approach. The passage quoted ignores the significant problem of defining "the community", for the purposes of the test, as anything other than a subset of a larger "community" or "public"; this is obviously a crucial and determinative definition in such an approach. Furthermore, no service or facility is absolutely available to everyone who desires it. Most of the services and facilities listed in Gay Alliance would be insulated from scrutiny on this test, since, for example, restaurant service is not available to people with no money, nor is tavern service available to those under the legal drinking age. Such an absolute position, requiring the "public" to include every member of a "community", cannot be maintained if human rights legislation is to have any impact.

Therefore, I would reject any definition of "public" which refuses to recognize that any accommodation, service or facility will only ever be available to a subset of the public. Students admitted to a university or school within the university, or people who enter into contracts of insurance with a public insurer, or people who open accounts with financial institutions, become the "public" for that service. 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.

The proper significance of an eligibility or admission threshold in this context was recognized by the Board of Inquiry in Rawala, where such a selection process was not used (at p. D/1062) "to establish an exclusive or private institution from which ordinary members of the public will generally be excluded", but rather to insist "only on such educational qualifications as are necessary to permit the individual to take successful advantage of the services offered".

To the same effect is the decision of the member-designate in Hobson (at p. D/4670):

In the instance of public educational institutions, such as the respondent, it is sufficient, in this respect, if such services or facilities are customarily available to the "public" in the sense of "all persons legally or properly qualified."

This reasoning is directly applicable to any selection process used by the School in this case. 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, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources. The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.

This is not to say that all of the activities of an accommodation, service or facility provider are necessarily subject to scrutiny under the Act just because some are. But a quantitative approach still does not help to define what smaller segment of the entire population might suffice. As long as the debate remains centred on the number of people who can use the service or facility, it will be very difficult to draw lines of inclusion and exclusion on a principled basis because of the varied nature of the services and facilities and service and facility providers which will fall to be considered.

Instead, in determining which activities of the School 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 School's representatives and its students, while other services or facilities may establish only private relationships between the same individuals.

This "relational" approach to defining the public has been described by Professor Greschner in her article. In Chambers v. Saskatchewan (Department of Social Services) (1987), 1987 CanLII 8555 (SK HRT), 8 C.H.R.R. D/4139, a Saskatchewan Board of Inquiry held that social assistance payments were not covered by that province's legislation, since (at p. D/4145):

The services are designed and provided for people in need. The services are not available to the public at large. Being a member of the public does not entitle the person to social assistance benefits. A member of the public must prove eligibility for benefits to the satisfaction of the respondent.

Greschner, supra, criticized this decision (at p. 171): "It is very difficult to think of any significant governmental or private service which is free of any requirements for everyone who asks for it." Instead, she argued at p. 182 that

a purposive interpretation of s. 12 would define "public" not in terms of quantity, as the Chambers Board did, but in relational terms. What s. 12 is about--its purpose--is the regulation of particular relationships between members of the Saskatchewan community, and members and their government.... If we read the entire phrase as talking about a relationship, we would interpret "public" in relational terms: the public is that group with which the offeror has a public relationship. [Emphasis added; italics in original.]

Greschner concluded that any service or facility offered by a government should be considered a service or facility offered to the public.

The Saskatchewan Court of Appeal agreed, overturning the decision of the Board and the Queen's Bench (1987), 1987 CanLII 4945 (SK QB), 8 C.H.R.R. D/4240 upholding that decision: Saskatchewan (Human Rights Commission) v. Saskatchewan (Department of Social Services), 1988 CanLII 212 (SK CA), [1988] 5 W.W.R. 446. Vancise J.A., for the court, quoted Professor Greschner with approval, holding that (at p. 462):

The fact that a service is offered to the public does not mean that it must be offered to all members of the public. The government can impose eligibility requirements to ensure that the program or services reaches the intended client group. The only restriction is that the government cannot discriminate among the client group, that is, the elderly, the poor or others, on the basis of the enumerated characteristics set out in the Code.

The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public. Under the relational approach, the "public" may turn out to contain a very large or very small number of people.

For example, Canada or Quebec Pension Plan benefits are provided to millions of Canadians, yet not to the equally large number of Canadians who have not yet attained the qualifying age. Can it be said that the provision of such benefits should not be free from discrimination because of the established eligibility criteria which ensure that such benefits reach only those who have paid into the fund and are intended to receive them? Or consider a privately-owned centre which publicly advertises its services or facilities to treat a rare disease, from which only two or three people in Canada suffer. Statistically speaking, 99.99 percent of the population cannot use this service or facility, since they do not suffer from the disease and are not part of its "public". Yet could the legislature have intended that the institution could purport to serve the public, then extend its services or make its facilities available only to male applicants?

Illustrating the relational approach by applying it to the services in this case, I conclude that the key and rating sheet were incidents of the public relationship between the representatives of the School and its students.

The School exists to provide accommodations, services or facilities to its students which will further their education and social activities relating to the School. It is a publicly funded institution (although this is not a determinative factor), which makes its educational and recreational resources available to all who are admitted. When individual faculty members act in their capacity as representatives of the university, at least when they are on campus, they are its public face. If a university (and the School which is part of it) is not as "public" an institution as the government, it surely is very close to the "public" end of the spectrum.

Its students have in common only their admission to the School, and they will usually present a microcosm of Canadian society. Any difference between the student body and the public at large will be the result only of the admissions process. There is nothing in the nature of the student body which suggests that the School and its students have come together as the result of a private selection process based on anything but the admissions criteria, which the School agrees cannot be discriminatory. Therefore, I would conclude that, generally, the natures of the service-provider School and the service-user students in this case indicate a very public relationship with respect to ordinary educational services (such as the provision of instructors, testing, and grading).

The crux of the determination in these appeals is the nature of the services themselves and the relationship they establish between the School and its students. The key I would liken to the educational and recreational services of the School generally, since all that is represented by the key is access to the School's physical facilities after normal class or office hours. These facilities surely must be part of the public relationship between the university and its students, since they are a necessary adjunct to the educational process which has brought the university and its students together. Subject to the arguments of the School discussed below, I cannot see any distinction between day-time access to these facilities and after-hours access to these facilities, especially in the case of graduate students like Berg who may have teaching or tutorial responsibilities through the day which leave only the evening hours for their own study and research.

The rating sheet, it seems to me, is very much like a transcript. It serves the same function, in that it presents the student's record of achievement at the School. The sheet asks for a report on the student's knowledge, attitude and interest, rapport with peers and professors, performance, and personality. The person completing the report is invited to check either "Performs above average consistently", "Performs within an average range", "Generally performs below average", and provide comments if the answer is above or below average. It also asks if any reservations about the student's suitability to practise dietetics have been discussed with the student, and asks in which area of dietetics the student would be most effective. Again, subject to the arguments of the School, I do not see any aspect of this rating sheet which suggests that it is not an incident of the public educational relationship between the School's faculty and its students.

(iv) "Customarily Available"

However, the School argues, and the lower courts accepted, that the provision of the key was a discretionary decision made by the Director of the School, and therefore the key was not customarily available to the School's public. Furthermore, the School argues, and the lower courts again accepted, that the provision of the rating sheet was discretionary, and involved a personal evaluation of the student by the faculty member.

It is not strictly necessary to decide whether, in principle, the existence of a discretion in the provision of a service insulates that service from the Act. The member-designate made the finding of fact that, but for her mental disability, Berg would have been granted a key to the faculty building. In his decision, the member- designate stated (at p. D/4675) that "[t]he custom was for the director of the respondent, Dr. Roy Rodgers, to issue keys to graduate students so they could gain access to the laboratories, computer and reading rooms after normal hours...." The discretion was habitually exercised in a certain way. He found a violation of the Act in the denial of the key to Berg, since this denial was because of her mental disability.

The member-designate also found that rating sheets were consistently provided to students who asked for them, and that the main, if not the only, reason for Berg being denied a rating sheet was, again, her mental disability (at p. D/4679):

The explanation [that faculty members were not required to complete rating sheets] is seriously undermined by the testimony of Dr. Rodgers that he knew of no other student, other than the complainant, who was denied a rating sheet. Additionally, the respondent did complete two rating sheets for the complainant after she filed human rights complaints.

The member-designate clearly found that keys and rating sheets were customarily provided to other graduate students in Berg's situation, and the only characteristic separating Berg from these other graduate students was her mental disability. The School cannot rely on the existence of a discretion to remove the provision of a service from the scope of the Act when that discretion is in fact typically and regularly exercised in favour of all students except the complainant.

The decision of K. J. Chapman, sitting as a Board of Inquiry in Singh v. Royal Canadian Legion, Jasper Place (Alta.), Branch No. 255 (1990), 1990 CanLII 12453 (AB HRC), 11 C.H.R.R. D/357 (Alta.), is apposite. In that complaint, Singh was notified by the respondent legion that he would not be allowed to wear his turban, a symbol of his religion, when attending his employer's Christmas party at the legion's hall. The legion claimed that the Alberta Individual's Rights Protection Act did not apply to its actions, as it was a private club and consequently its services and facilities were not customarily available to the public. The Board rejected the contention that the legion was a "private" club when it rented out its facilities, since (at p. D/361) "[t]he facts of the matter show that the house rules regarding guests are either honoured in the breach or ignored." Where the legion never exercised any measure of discretionary personal selection in renting its hall to members of the public, it could not rely on the formal existence of such a selection process or discretion to avoid the application of the Act.

In this case, on the evidence before the member-designate, he made a similar finding with respect to the provision of the keys and rating sheets. Deference is clearly owed to this factual finding.

I would make only a few brief general comments on the effect of discretion in the determination of whether the discretionary provision of a service or facility is customarily available to the public. There is little support in previous cases for the proposition that the exercise of a discretion is not subject to the Act. The Court of Appeal in this case cited two decisions. The first is Calgary Board of Education v. Deyell (1984), 1984 CanLII 5087 (AB KB), 8 C.H.R.R. D/3668 (Alta. Q.B.), aff'd (1986), 1986 CanLII 6475 (AB CA), 9 C.H.R.R. D/4979 (C.A.) (sub nom. Alberta (Department of Education) v. Alberta (Human Rights Commission)), in which Veit J. held that education grants were not "customarily available to the public". However, she did not provide a detailed explanation of her view of discretion. After highlighting the discretionary aspects of the grant process, this is the entirety of Veit J.'s reasoning on the issue of discretion (at p. D/3673):

However, the statutory and regulatory provisions of the School Act and the Department of Education Act indicate that private school grants are not a matter of right but are a matter of discretion. The evidence before me is clearly insufficient to characterize students attending private schools in Alberta, because of learning disabilities caused by physical characteristics or otherwise, as a class of persons to whom a grant is customarily made available.

Legg J.A. also relied (at p. 308 B.C.L.R.) on the decision of the New Brunswick Board of Inquiry in Sonnenberg, supra, which was overruled by Daigle J. of the Court of Queen's Bench on the point (though not in the result, since Daigle J. agreed with the Board that the complaint had no merit). In any event, neither of these cases dealt with a situation in which the exercise of the discretion was found to result in services or facilities which were customarily available to the public.

I do not think that a purposive approach to interpreting this provision can allow a discretion to be exercised on prohibited grounds of discrimination, once the service or facility which is the subject of the discretion is otherwise found to fall within the purview of the Act, i.e., to be customarily available to the public. In making this latter finding, the trier of fact must be careful to exclude from his assessment of whether the discretion is customarily exercised to provide the service those instances where the service has been withheld on discriminatory grounds. Furthermore, it would seem obvious that the fewer the guidelines for the exercise of the discretion, and the greater the scope for the person exercising that discretion to set his or her own criteria, the greater potential there is for invidious discrimination. It is a basic principle of administrative law that a discretion vested in an administrative official or body is only to be exercised on proper grounds. Similarly, in this context, while the existence of a discretion may mean that the person with the discretion is under no obligation or duty to extend the service or facility to everyone who asks for it, he or she is surely under an obligation to not make his or her decision in a discriminatory fashion.

It is also not strictly necessary to state any principles applying to the provision of a service or facility which involves a measure of personal evaluation, for the member-designate found that rating sheets were habitually provided to graduate students in Berg's position. Therefore, the personal nature of the rating sheet had never before been an obstacle to it being provided to students as a matter of course. Again, this factual finding deserves deference, and is sufficient to resolve the matter.

I will say, however, that the element of personal evaluation should not generally exclude the service from the Act. While an instructor may, for personal reasons (i.e., if he or she feels he or she does not know the student well enough) refuse to provide a rating sheet, I do not think that he or she can do so, as a representative of the School, on prohibited grounds of discrimination. As long as the rating is not itself discriminatory, it is always open to the instructor to provide a negative recommendation or reference. However, to deny even that service in the circumstances of this case (where the lack of a rating sheet disqualified Berg from being considered for the internship) because of a mental disability is, on a purposive reading of the section, to deny something that is otherwise available to all students at the School. Berg does not have a right to positive personal opinions about her among the faculty at the School, but surely she must have a right to be free from discrimination in all her public interactions with the School's faculty, including in the process of obtaining an expression of the faculty member's personal opinions.

Therefore, I would conclude that Berg, 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. Neither the existence of a discretion, nor the element of personal evaluation attached to these services or facilities, excludes the Act, both on principle, and because of the member-designate's factual finding that keys and rating sheets were habitually provided to students in Berg's position. The member-designate was correct in assuming jurisdiction in this case and examining the reasons for the denial of the rating sheet and the key. The School did not challenge his decision within that jurisdiction that Berg's mental disability was the reason for the School's actions and that those actions violated the Act. While I might have found otherwise, his finding in that regard is not the subject of review in this case.

(v) Conclusion

Some concluding remarks are in order. An important feature of the Act at the time of Berg's complaint was its absolute prohibition of discrimination. That is, there was no provision allowing a defence where the denial of a service or facility was based on prohibited grounds of discrimination, yet could be justified with reference to competing interests, such as safety. I believe that the School and its representatives acted in good faith, and thought that there were good reasons for acting as they did. Dr. Rodgers might reasonably have had concerns about giving Berg a key not because of her mental disability itself, but because of the safety issues raised by the incident. Similarly, faculty members might have denied the rating sheet because they felt they could not give Berg a useful or positive recommendation. Under the amended s. 3, these issues would, no doubt, have been the focus of the evidence and argument before the member-designate, instead of the issue on these appeals.

However, the absence of a defence provision in the Act as it stood at the time of Berg's complaint should not lead us, as I think it did the Court of Appeal in this case, to interpret s. 3 in an overly restrictive fashion. The Act must be allowed its full scope of application, and its particular operation in situations such as this, if undesirable, is a matter for legislative attention. The recent amendments to the Act show that such responses are always possible.

VI. Disposition

I would allow both appeals, quash the decisions of the British Columbia Supreme Court and Court of Appeal, and restore the decision and award of the member-designate. As the Council has not requested costs, costs will be granted against the respondent School to Berg only in all three courts.

//Major J.//

The following are the reasons delivered by

Major J. (dissenting) -- I have read the reasons of the Chief Justice and respectfully disagree with the result preferring instead the conclusion reached by the British Columbia Supreme Court (1988), 1988 CanLII 3315 (BC SC), 10 C.H.R.R. D/6112 and Court of Appeal (1991), 1991 CanLII 606 (BC CA), 56 B.C.L.R. (2d) 296, 81 D.L.R. (4th) 497, 1 B.C.A.C. 58, 1 W.A.C. 58.

Section 3 of the British Columbia Human Rights Act, S.B.C. 1984, c. 22, reads:

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.

While I agree that human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic. If s. 3 of the British Columbia Human Rights Act is 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".

It is clear that universities and other public institutions are not immune from the operation of the Human Rights Act. The Act would 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. It would not apply to the internal operations of a university regarding services not customarily available to members of the public.

The discretion exercised by members of the university in refusing the appellant Berg the key to a university building, and of professors refusing to fill out a rating sheet for her, are matters unique to the university and not thought of as customarily available to members of the public. If the student has been unfairly treated in respect of those matters or other decisions of the university in relation to services not customarily available to the public such as examination grades, hours of class and length of terms, the remedy lies with the administrators of the university and not with the Human Rights Council.

Like many other human rights statutes in Canada, the British Columbia Human Rights Act uses wording indicative of an intention to limit the scope of the rights provided therein. As attractive as it may be to extend the scope of s. 3 of the Act to encompass all aspects of day-to-day internal conduct within public institutions such as universities, it is not within the purview of the courts to do so. Given the importance placed on human rights issues in Canada, the respective provincial legislatures can be expected to make the necessary amendments to extend the scope of s. 3.

The member-designate had no jurisdiction to consider the questions relating to the matters complained of and should have refused to do so.

I would dismiss the appeals.

Appeals allowed, Major J. dissenting.

Solicitor for the appellant/respondent Berg: The Community Legal Assistance Society, Vancouver.

Solicitor for the appellant/respondent the British Columbia Council of Human Rights: The Ministry of the Attorney General, Victoria.

Solicitors for the respondent the University of British Columbia School of Family and Nutritional Sciences: Richards, Buell, Sutton, Vancouver.

Solicitor for the intervener: William F. Pentney, Ottawa.