University of British Columbia v. Berg, (1991) 1 B.C.A.C. 58 (CA)

• Judge: Toy, Legg and Taylor, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: June 06, 1991
• Jurisdiction: British Columbia
• Citations: (1991), 1 B.C.A.C. 58 (CA)

B.C. Univ. v. Berg (1991), 1 B.C.A.C. 58 (CA);

    1 W.A.C. 58

MLB headnote and full text

The University of British Columbia and the School of Family and Nutritional Sciences (petitioners/respondents) v. Janice Berg and British Columbia Council of Human Rights (respondents/appellants)

(CA009983)

Indexed As: University of British Columbia v. Berg

British Columbia Court of Appeal

Toy, Legg and Taylor, JJ.A.

June 6, 1991.

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 British Columbia Council of Human Rights held that she was discriminated against and awarded her $2,000 damages. The University and the Nutrition School applied for judicial review.

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

The British Columbia Court of Appeal dismissed the appeal.

Civil Rights - Topic 2

Interpretation of human rights legislation - The British Columbia Court of Appeal stated that although human rights legislation must be liberally interpreted to advance the broad purposes of the legislation, the ordinary meaning of the words should not be strained or tortured - See paragraphs 29 to 36.

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 - Accordingly, the student was not accepted as an intern - The student suffered from depression and claimed she was discriminated against because of her mental disability (Human Rights Act, s. 3) with respect to a service "customarily available to the public" - The British Columbia Court of Appeal held that s. 3 did not apply, because the discretionary providing of a rating sheet or key to enrolled Masters students in Nutrition was not a service "customarily available to the public".

Cases Noticed:

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.), refd to. [para. 26].

Canadian Union of Public Employees v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417; 79 C.L.L.C. 14,209, refd to. [para. 26].

Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; 27 N.R. 117; 97 D.L.R.(3d) 577, refd to. [para. 28].

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. 29].

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.), refd to. [para. 31].

Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 35].

Brennan v. Canada and Robichaud, [1987] 2 S.C.R. 84; 75 N.R. 303, refd to. [para. 29].

Bourque v. Board of Trustees of Westlock School Division No. 37 (1987), 8 C.H.R.R. D/3746 (Alta. Q.B.), refd to. [para. 36].

Sonnenberg v. Centre Universitaire St.-Louis-Maillet (1988), 9 C.H.R.R. D/5100 (N.B. Bd. Inq.), refd to. [para. 36].

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. 36].

Bloedel v. Board of Governors of the University of Calgary (1980), 1 C.H.H.R. D/25 (Alta. Bd. Inq.), dist. [para. 39].

Hobson v. British Columbia Institute of Technology (1988), 9 C.H.H.R. D/4666 (B.C.H.R. Council), dist. [para. 39].

Schmidt v. Calgary Board of Education, [1975] 6 W.W.R. 279 (Alta. S.C.), revsd. [1976] 6 W.W.R. 717 (C.A.), dist. [para. 39].

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. 39].

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; 62 D.L.R.(4th) 512 (C.A.), refd to. [para. 41].

Calgary Board of Education v. Deyell (1987), 8 C.H.H.R. D/3668 (Alta. Q.B.), refd to. [para. 42].

Statutes Noticed:

Human Rights Act, S.B.C. 1984, c. 22, sect. 3 [para. 24]; sect. 11(1) [para. 49]; sect. 11(4), sect. 13 [para. 50]; sect. 22(2) [para. 29].

Counsel:

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

   David W. Mossop and Judith Ashbourne, for Janice Berg;

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

This appeal was heard on April 31 and May 1, 1991, at Vancouver, B.C., before Toy, Legg and Taylor, JJ.A., of the British Columbia Court of Appeal.

On June 6, 1991, Legg, J.A., delivered the following judgment for the Court of Appeal.