Canadian Odeon Theatres Ltd. v. Human Rights Commission (Sask.) and Huck, (1985) 39 Sask.R. 81 (CA)

• Judge: Hall, Cameron and Vancise, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 04, 1985
• Jurisdiction: Saskatchewan
• Citations: (1985), 39 Sask.R. 81 (CA);1985 CanLII 183 (SK CA);1985 CanLII 183 (BS SC);18 DLR (4th) 93;[1985] 3 WWR 717;39 Sask R 81;6 CHRR 2682

Cdn. Odeon Theatres Ltd. v. HRC (1985), 39 Sask.R. 81 (CA)

MLB headnote and full text

Canadian Odeon Theatres Ltd. v. Saskatchewan Human Rights Commission and Huck

(No. 7924)

Indexed As: Canadian Odeon Theatres Ltd. v. Human Rights Commission (Sask.) and Huck

Saskatchewan Court of Appeal

Hall, Cameron and Vancise, JJ.A.

March 4, 1985.

Summary:

A disabled person filed a complaint of discrimination, contrary to s. 12(1)(b) of the Saskatchewan Human Rights Code, after he went to a movie theatre and was given a choice of sitting in a seat or in his wheelchair at the front of the theatre. A Board of Inquiry under the Code found that the disabled person was discriminated against. The theatre appealed under s. 32(1) of the Code.

The Saskatchewan Court of Queen's Bench, in a decision reported in 29 Sask.R. 256, allowed the appeal and held that there was no discrimination.

The Saskatchewan Human Rights Commission and the complainant both appealed.

The Saskatchewan Court of Appeal allowed the appeal and restored the finding of discrimination of the Board of Inquiry.

Administrative Law - Topic 6207

Judicial review - Statutory appeal - Scope of review - Question of law - The Saskatchewan Court of Appeal held that the question of what service or facility was customarily offered to the public within the meaning of s. 12(1)(b) of the Saskatchewan Human Rights Code was a question of fact, which was not reviewable by the courts under s. 32(1) of the Code, unless unsupported by the evidence - See paragraphs 19 to 22, 78 to 84.

Administrative Law - Topic 6207

Judicial review - Statutory appeal - Scope of review - Question of law - The Saskatchewan Court of Appeal affirmed that whether a disabled person was discriminated against because of the lack in a movie theatre of accommodations specially suited to his needs was a question of law, which could be appealed under s. 32(1) of the Saskatchewan Human Rights Code - See paragraphs 23 to 24.

Civil Rights - Topic 2

Interpretation of human rights legislation - The Saskatchewan Court of Appeal stated that a statute which guarantees fundamental rights and freedoms and which prohibits discrimination to ensure the obtainment of human dignity should be given the widest interpretation possible - See paragraphs 25, 50.

Civil Rights - Topic 902

Discrimination, defined - The Saskatchewan Court of Appeal defined discrimination in a human rights context - The court held that identical treatment does not necessarily mean lack of discrimination - The court further held that the treatment of a person differently from others may or may not amount to discrimination - See paragraphs 44 to 48, 85 to 88.

Civil Rights - Topic 906

Discrimination - Relevance of intention to discriminate - The Saskatchewan Court of Appeal held that absence of a motive to discriminate is not determinative of whether there has been discrimination - The court held that discriminatory intent is not prohibited by the Saskatchewan Human Rights Code, but a discriminatory result is - See paragraph 43.

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of physical disability - The Saskatchewan Court of Appeal set out the three elements which must be proved for a complainant to establish discrimination based on physical disability respecting a service or facility customarily offered to the public, pursuant to s. 12(1)(b) of the Saskatchewan Human Rights Code - See paragraph 12.

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of physical disability - A disabled person went to a movie theatre and was given the choice of sitting in a seat or in his wheelchair at the front of the theatre - The Saskatchewan Court of Appeal held that this treatment, plus the failure to provide the disabled person with a choice of a place to view the movie comparable to that offered to other members of the public, was discrimination within s. 12(1)(b) of the Saskatchewan Human Rights Code - See paragraphs 49 to 55.

Statutes - Topic 2261

Interpretation - Presumptions and rules in aid - Presumption against abridgment of proprietary rights - The Saskatchewan Court of Appeal held that the presumption that a statute should not interfere with existing property rights applies only if the language of the statute is ambiguous - Thus the court held that the presumption is inapplicable to s. 12(1)(b) of the Saskatchewan Human Rights Code, which is clear in meaning - See paragraphs 64 to 69, 89.

Statutes - Topic 2272

Interpretation - Presumptions and rules in aid - Presumption against retrospective operation - The Saskatchewan Court of Appeal held that the presumption against the retrospectivity of the Saskatchewan Human Rights Code was rebutted - The court held that the discrimination provisions of the Code could be applied to a service or facility (a movie theatre) existing before the Code was enacted - See paragraphs 57 to 65, 89.

Cases Noticed:

British Launderers' Research Association v. Borough of Hendon Rating Authority, [1949] 1 K.B. 462, refd to. [para. 16].

Peters et al. v. University Hospital Board, [1983] 5 W.W.R. 193; 23 Sask.R. 123, refd to. [para. 18].

Inland Revenue Commissioners v. Lysaght, [1928] A.C. 234, refd to. [para. 18].

Reid v. Inland Revenue Commrs., [1926] S.C. 589, refd to. [para. 18].

Shotts Iron Company Ltd. v. Fordyce, [1930] A.C. 503, refd to. [para. 18].

Brutus v. Cozens, [1973] A.C. 854; 56 Cr. App. Rep. 799; [1972] 2 All E.R. 1297, refd to. [para. 18].

Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435; [1979] 4 W.W.R. 118; 27 N.R. 117, dist. [para. 20].

Smart et al. v. Livett (1951), 1 W.W.R.(N.S.) 49, appld. [para. 25].

A.G. of Canada v. Canadian Human Rights Commission (1980), 1 C.H.R.R. 91, refd to. [para. 25].

Bailey et al. and Canadian Human Rights Commission v. Minister of National Revenue (1980), 1 C.H.R.R. 193, refd to. [para. 25].

Re Attorney General for Alberta and Gares (1976), 67 D.L.R.(3d) 635, refd to. [para. 25].

Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145; 43 N.R. 168, refd to. [para. 25].

R. v. Mojelski (1968), 65 W.W.R.(N. S.) 565 (Sask. C.A.), refd to. [para. 30].

Griggs v. Duke Power Co. (1971), 401 U.S. 424, consd. [para. 37].

Ontario Human Rights Commission et al. v. Borough of Etobicoke (1982), 40 N.R. 159; 132 D.L.R.(3d) 14 (S.C. C.), refd to. [para. 43].

Heerspink v. Insurance Corporation of British Columbia (1981), 121 D.L.R.(3d) 464 (B.C.C.A.), consd. [para. 46].

Rocca Group Limited v. Muise (1980), 22 Nfld. & P.E.I.R. 1; 58 A.P.R. 1, refd to. [para. 47].

Post Office and Union of Post Office Workers, [1974] 1 W.L.R. 89, refd to. [para. 47].

Phillips v. Eyre (1870), L.R. 6 Q.B. 1, refd to. [para. 57].

In re a Solicitor's Clerk, [1957] 1 W.L.R. 1219, refd to. [para. 58].

Public Utility Board v. Nova Scotia Power Corp. (1976), 18 N.S.R.(2d) 692; 20 A.P.R. 692, refd to. [para. 59].

Upper Canada College v. Smith (1920), 61 S.C.R. 413, consd. [para. 60].

Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, consd. [para. 66].

A.G. for Canada v. Hallet and Carey Ltd., [1952] A.C. 427, refd to. [para. 68].

R. v. Halliday, [1917] A.C. 260, refd to. [para. 68].

Statutes Noticed:

International Covenant on Civil and Political Rights and the Optional Protocol to the International Covenants, United Nations General Assembly (1966), [para. 26].

Declaration of the Rights of Disabled Persons, United Nations General Assembly (1975), Resolution 347(30), sect. 3 [para. 26]; sect. 8 [para. 26].

Civil Rights Act (1964), 42 U.S.C., sect. 2000(d), Title 2 [para. 35]; sect. 2000(e), Title 7 [para. 36].

Human Rights Code, S.S. 1979, c. S-24.1, sect. 3 [para. 26]; sect. 12(1)(b) [paras. 10-12, 23-24, 44, 49-50, 5455, 66, 80, 85, 88-89]; sect. 29 [para. 13]; sect. 31 [paras. 13, 56]; sect. 31(9) [paras. 51-52, 87]; sect. 32(1) [paras. 8, 11]; sect. 44 [para. 26].

Human Rights Code Regulations, Reg. 36 [para. 51].

Authors and Works Noticed:

Murenik, Etienne, The Application of Rules: Law or Fact? (1982), 98 L.Q. Rev. 587 [para. 17].

Driedger, E.A., The Construction of Statutes (2nd Ed.), pp. 1-2 [para. 29]; 87 [para. 29]; 191-192 [para. 62]; 243 [para. 25].

Oxford Dictionary [para. 31].

Webster's New World Dictionary of the American Language [para. 32].

Webster's Dictionary [para. 33].

Emery, C.T., and Smythe, B., Error of Law in Administrative Law (1984), 100 L.Q.R. 612 [para. 79].

Concise Oxford Dictionary [para. 86].

Counsel:

Milton C. Woodard, for appellant, Saskatchewan Human Rights Commission;

G.J.D. Taylor, Q.C., for appellant, Michael Huck;

D.K. MacPherson, Q.C., and Janis D. Busse, for respondent, Canadian Odeon Theatres Limited.

This appeal was heard before Hall, Cameron and Vancise, JJ.A., of the Saskatchewan Court of Appeal, whose decision was delivered on March 4, 1985, when the following opinions were filed:

Vancise, J.A. - see paragraphs 1 to 70;

Cameron, J.A. - see paragraphs 71 to 90.

Hall, J.A., concurred with Vancise, J.A.