University of British Columbia v. Berg, (1993) 26 B.C.A.C. 241 (SCC)

• Judge: Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 19, 1993
• Jurisdiction: Canada (Federal)
• Citations: (1993), 26 B.C.A.C. 241 (SCC)

B.C. Univ. v. Berg (1993), 26 B.C.A.C. 241 (SCC);

    44 W.A.C. 241

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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British Columbia Council of Human Rights (appellant) v. University of British Columbia School of Family and Nutritional Services and Janice Berg (respondents) and Canadian Human Rights Commission (intervenor)

(22638)

Janice Berg (appellant) v. University of British Columbia School of Family and Nutritional Sciences and British Columbia Council of Human Rights (respondents) and Canadian Human Rights Commission (intervenor)

(22640)

Indexed As: University of British Columbia v. Berg

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.

May 19, 1993.

Summary:

A Masters student in Nutrition at the University of British Columbia complained that she was discriminated against because of her mental disability (depression) contrary to s. 3 of the Human Rights Act. A member-designate of the B.C. Council of Human Rights held that she was discriminated against and awarded her $2,000 damages. The University and Nutrition School appealed.

The British Columbia Supreme Court allowed the appeal and set aside the decision. The student appealed.

The British Columbia Court of Appeal, in a judgment reported 1 B.C.A.C. 58; 1 W.A.C. 58, dismissed the appeal. The student and Council of Human Rights appealed.

The Supreme Court of Canada, Major, J., dissenting, allowed the appeals and restored the decision and award of the member-designate.

Administrative Law - Topic 9118

Boards and tribunals - Judicial review - Curial deference to decisions of tribunal - A member-designate of the B.C. Council of Human Rights determined that a person was discriminated against in respect of a service customarily available to the public, contrary to s. 3 of the B.C. Human Rights Act - The Supreme Court of Canada stated 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. ... 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." - See paragraphs 22 to 23.

Civil Rights - Topic 2

Interpretation of human rights legislation - The Supreme Court of Canada stated that "it is the duty of boards and courts to give s. 3 [B.C. Human Rights Act] a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature" - The court stated that this interpretive approach did not give a board or court license to ignore the words of the Act to prevent discrimination wherever it was found, because some relationships will not be subject to scrutiny under human rights legislation - See paragraph 26.

Civil Rights - Topic 964

Discrimination - Facilities and services customarily available to public - What constitutes - A Masters student in Nutrition was initially denied a key to the school building and the faculty refused to complete a "rating sheet" provided by the Canadian Dietetic Association as a prerequisite to internship - The student suffered from depression and complained of discrimination on the basis of mental disability (Human Rights Act, s. 3) respecting a service "customarily available to the public" - The Supreme Court of Canada held that the student was discriminated against contrary to s. 3 - The student, having passed through the 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, excluded the Act, both on principle and because the key and rating sheet were habitually provided to all other students.

Civil Rights - Topic 964

Discrimination - Facilities and services customarily available to public - What constitutes - Section 3 of the Human Rights Act (B.C.) prohibited discrimination respecting any accommodation, service or facility customarily available to the public - A university Masters student complained of discrimination - The university argued that it could not discriminate against anyone applying for admission (the public), but that admitted students (a subset of the public) were not the "public" for the purpose of s. 3 - The Supreme Court of Canada held that the student was a member of the "public" - Holding otherwise would allow universities to admit students without discrimination, but then deny them access to services required to make their admission meaningful - See paragraphs 27 to 54.

Civil Rights - Topic 964

Discrimination - Facilities and services customarily available to public - What constitutes - The Supreme Court of Canada stated that "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." - See paragraph 54.

Words and Phrases

Public - The Supreme Court of Canada defined the word "public", as found in the phrase "service ... customarily available to the public" in s. 3 of the Human Rights Act, S.B.C. 1984, c. 22 - See paragraphs 27 to 54.

Cases Noticed:

Charter v. Race Relations Board, [1973] 1 All E.R. 512 (H.L.), refd to. [para. 9].

Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; 27 N.R. 117; 97 D.L.R.(3d) 577, dist. [para. 16].

Beattie, Ricks and Leighton v. Acadia University, Canadian Intercollegiate Athletic Union, Chapman and Hunt, (1976), 18 N.S.R.(2d) 466; 20 A.P.R. 466; 72 D.L.R.(3d) 718 (C.A.), not folld. [para. 16].

Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 17].

Ontario Human Rights Commission and O'Malley v. Simpson Sears, [1985] 2 S.C.R. 536; 64 N.R. 161; 23 D.L.R.(4th) 321, refd to. [para. 17].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 17].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, appld. [para. 21].

Rosin v. Canada, [1991] 1 F.C. 391; 131 N.R. 295 (C.A.), refd to. [para. 31].

Ontario Human Rights Commission v. Ontario Rural Softball Association (1979), 26 O.R.(2d) 134 (C.A.), refd to. [para. 31].

Human Rights Commission (N.S.) and Slipp v. Canada Life Assurance Co. (1992), 109 N.S.R.(2d) 40; 297 A.P.R. 40; 88 D.L.R.(4th) 100 (C.A.), refd to. [para. 35].

Sonnenburg v. Lang (1989), 100 N.B.R.(2d) 413; 252 A.P.R. 413 (Q.B.), overruling (1987), 9 C.H.R.R. D/5100 (Bd. Inq.), refd to. [para. 37].

Board of Education of District No. 15 v. Human Rights Board of Inquiry (N.B.) et al. (1989), 100 N.B.R.(2d) 181; 252 A.P.R. 181; 10 C.H.R.R. D/6426 (C.A.), refd to. [para. 37].

Kelly v. British Columbia (1990), 12 C.H.R.R. D/216 (B.C.H.R.C.), refd to. [para. 37].

Hobson v. British Columbia Institute of Technology (1988), 9 C.H.R.R. D/4666 (B.C.H.R.C.), refd to. [para. 37].

Rawala v. DeVry Institute of Technology (1982), 3 C.H.R.R. D/1057 (Ont. Bd. Inq.), refd to. [para. 44].

Bourque v. Westlock School Division No. 37 (1986), 8 C.H.R.R. D/3746 (Alta. Q.B.), refd to. [para. 48].

LeDrew v. Council for Nursing Assistants (1989), 10 C.H.R.R. D/6259 (Nfld. Comm. Inq.), refd to. [para. 48].

Peters and Saskatchewan Human Rights Commission v. University Hospital Board, [1983] 5 W.W.R. 193; 23 Sask.R. 123 (C.A.), refd to. [para. 48].

Bloedel v. University of Calgary (1980), 1 C.H.R.R. D/25 (Alta. Bd. Inq.), refd to. [para. 48].

McKinney v. University of Guelph et al., [1990] 3 S.C.R. 229; 118 N.R. 1; 45 O.A.C. 1; 76 D.L.R.(4th) 545; 2 C.R.R.(2d) 1, refd to. [para. 49].

Bhadauria v. Seneca College, [1981] 2 S.C.R. 181; 37 N.R. 455, refd to. [para. 49].

Jenkins v. Workers' Compensation Board (P.E.I.) (1986), 61 Nfld. & P.E.I.R. 206; 185 A.P.R. 206; 31 D.L.R.(4th) 536 (P.E.I.C.A.), disagreed with [para. 52].

Chambers v. Saskatchewan (Department of Social Services) (1987), 8 C.H.R.R. D/4139 (Sask. Bd. Inq.), refd to. [para. 59].

Human Rights Commission (Sask.) and Chambers v. Saskatchewan (Minister of Social Services), [1988] 5 W.W.R. 446; 79 Sask.R. 17 (C.A.), refd to. [para. 60].

Singh v. Royal Canadian Legion, Jasper Place (Alta.), Branch No. 255 (1990), 11 C.H.R.R. D/357 (Alta. Bd. Inq.), refd to. [para. 71].

Alberta (Department of Education) v. Human Rights Commission (Alta.) (1984), 8 C.H.R.R. D/3668 (Alta. Q.B.), affd. (1986), 71 A.R. 253; 9 C.H.R.R. D/4979 (C.A.), refd to. [para. 73].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 5 [para. 27].

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 12 [para. 27].

Fair Practices Act, R.S.N.W.T. 1988, c. F-2, sect. 4(1) [para. 28].

Human Rights Act, R.S.N.B. 1973, c. H-11, sect. 5(1) [para. 27].

Human Rights Act, R.S.N.S. 1989, c. 214, sect. 4 [para. 29].

Human Rights Act, R.S.P.E.I. 1988, c. H-12, sect. 2(1) [para. 28].

Human Rights Act, R.S.Y. 1986 (Supp.), c. 11, sect. 8 [para. 27].

Human Rights Act, S.B.C. 1984, c. 22, sect. 3 [paras. 9, 10, 82].

Human Rights Code, R.S.N. 1990, c. H-14, sect. 6(1) [para. 28].

Human Rights Code, R.S.O. 1990, c. H-19, generally [para. 30].

Human Rights Code, S.M. 1987-88, c. 45; C.C.S.M., c. H-175, sect. 13(1) [para. 29].

Individual's Rights Protection Act, R.S.A. 1980, c. I-2, sect. 3 [para. 27].

Interpretation Act, R.S.C. 1985, c. I-21, sect. 12 [para. 25].

Judicial Review Procedure Act, R.S.B.C. 1979, c. 209, sect. 3 [para. 11].

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1, sect. 12 [para. 28].

Authors and Works Noticed:

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, p. 309 [para. 43].

Greschner, Donna, Why Chambers is Wrong: A Purposive Interpretation of "Offered to the Public" (1988), 52 Sask. L. Rev. 161, p. 173, note 44 [para. 39].

Keene, Judith, Human Rights in Ontario (1983), p. 14 [para. 30].

Counsel:

David W. Mossop, for the appellant/respondent, Berg;

George H. Copley, for the appellant/respondent, British Columbia Council of Human  Rights;

Bruce F. Fraser, Q.C., for the respondent, University of British Columbia School of Family and Nutritional Sciences;

William F. Pentney, for the intervenor.

Solicitors of Record:

Community Legal Assistance Society, Vancouver, B.C., for the appellant/respondent, Berg;

Ministry of the Attorney General, Victoria, B.C., for the appellant/respondent, British Columbia Council of Human Rights;

Richards, Bell, Sutton, Vancouver, B.C., for the respondent, University of British Columbia School of Family and Nutritional Sciences;

William F. Pentney, Ottawa, Ontario, for the intervenor.

These appeals were heard on January 27, 1993, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

On May 19, 1993, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, C.J.C. (La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., concurring) - see paragraphs 1 to 80;

Major, J., dissenting - see paragraphs 81 to 88.