2005 BCSC 1434 Marine Drive Golf Club v. Buntain, Charles et al

Before: The Honourable Madam Justice Boyd

Reasons for Judgment

Counsel for the Petitioner:	G.K. Macintosh, Q.C. and C.J. Doucet
Counsel for the Respondents:	J. Doulis
Date and Place of Trial/Hearing:	September 15-16, 2005
	Vancouver, B.C.

Introduction:

[1] This is a petition for a judicial review of the decision of the B.C. Human Rights Tribunal (“the Tribunal”) in which the Tribunal Member dismissed the Petitioner’s preliminary application to dismiss the Respondent’s human right complaint on the grounds that the Tribunal had no jurisdiction to hear the complaint.

[2] The petitioner seeks an Order that the Tribunal is without jurisdiction over the complaint that women members are excluded from entry to the Men’s Lounge at the Marine Drive Golf Club (the “Golf Club”). The petitioner says that Men’s Lounge is not an “accommodation, service or facility customarily available to the public” within the meaning of s. 8(1) of the Human Rights Code, (“the Code”), and that accordingly on the facts of this proceeding, the Code does not apply to the Petition.

[3] The respondents oppose the Petition. They say the Tribunal has jurisdiction to hear the complaint and that the services complained of are services “customarily available to the public” within the meaning of s. 8 of the Code.

[4] There is no dispute that the standard of correctness applies to this judicial review.

Relevant Legislation- Human Rights Code:

S.3 The purposes of this Code are as follows:

(a) to foster a society in British Columbia in which there are no impediments to full and free participation in the economic, social, political and cultural life of British Columbia;

(b) to promote a climate of understanding and mutual respect where all are equal in dignity and rights;

(d) to identify and eliminate persistent patterns of inequality associated with discrimination prohibited by this Code;

(e) to provide a means of redress for those persons who are discriminated against contrary to this Code;

(f)and (g) [Repealed 2002-62-2.]

...

S.8(1) A person must not, without a bona fide and reasonable justification,

(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 regarding any accommodation, service or facility customarily available to the public,

because of 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.

Background Facts:

[5] The Golf Club is a golf and social club located on South West Marine Drive in Vancouver. It was incorporated under the Society Act in 1929 and is a non-profit society for the purposes of the Income Tax Act.

[6] The objects of the Golf Club are: (a) to own, operate and maintain for the benefit and use of its members and guests, an organization with club house, golf course , and other recreational facilities; (b) to promote golf and other sports; and (c) to engage in any activities…or use the property owned by the Society for any purpose as may from time to time be decided.

[7] Apart from the golf course, practice range, and Pro Shop, the Golf Club facilities include a members–only lounge reserved for women, a members-only lounge reserved for men (the Men’s Lounge), and a “mixed-grill” for use by both men and women members. The complaint before the Tribunal centers on the Men’s Lounge (also known as the “Bullpen”).

[8] In recounting the history of the Men’s Lounge, the Member Designate noted at ¶ 3-5 of her Reasons:

Para 3: The complainants alleged that, prior to June 1, 2004, the men’s only status of the Bullpen was an unwritten tradition. Between February 2003 and June 1, 2004, the Bullpen was open to women on Saturdays, Sundays and holidays from 6:00 p.m. until closing. As of June 1, 2004, both the men’s and women’s lounges were opened to both sexes, pursuant to a resolution of the Board.

Para 4: On July 13, 2004, the Golf Club had an extraordinary meeting, at which three members of the Board who had supported opening the Bullpen to both sexers were recalled and replaced by the respondents Blake Cook and Brian Gardiner, both of whom supported closing the Bullpen to women. A third individual was also elected to the Board at that meeting, but he has since resigned.

Para 5: On July 15, 2004, a majority of the newly constituted Board voted not to close the Bullpen to women at that time, but issued a notice asking members to voluntarily respect the “traditional use of the Club”. In late August 2004, through a Board resolution, the Golf Club again restricted access to the Bullpen to men only at all times. The complainants filed the complaint with the Tribunal shortly thereafter, on September 24, 2004.

[9] The respondents allege that by not allowing women any access to the Men’s Lounge, the Golf Club has discriminated against them with respect to an accommodation, service or facility customarily available to the public on the basis of their sex and sexual orientation, contrary to s. 8 of the Code.

[10] One of the contentious issues at the hearing of the Golf Club’s preliminary objection concerned the matter of the formality and intensity of the “selection process” for membership.

[11] The Golf Club submitted, relying on the Gardiner affidavit, that the matter of application for membership was strictly controlled by the Golf Club’s Bylaws. While “any person of good moral character” is entitled to make application to join the Golf Club, his or her application requires the support of two voting members of at least two years’ standing as proposer and seconder. The applicant is then subject to an interview by the Membership Committee. If recommended rather than rejected by the Membership Committee, the applicant’s application is then posted within the Golf Club for a designated period. Notice of the posting is also sent out by mail to Golf Club members. Any voting member has the right to object to any applicant. The application then goes before the Board of Governors and may be accepted or denied. If accepted the applicant must pay the requisite entrance fee before becoming a member of the Golf Club.

[12] At the Tribunal hearing of the preliminary objection, the respondents complained that the membership application process was nowhere near as vigorous as contended by the Golf Club. In response, the Golf Club submitted “there should be an oral hearing on the jurisdictional issue, and that the issue should be heard on affidavit evidence, including any cross-examination on the affidavits which the parties may wish to conduct.” (¶ 51 of Tribunal Member’s Reasons) This request for an oral hearing was denied by the Tribunal Member who concluded she could determine the jurisdictional issue “on the basis of facts which are not in dispute”.

[13] Ultimately the Tribunal Member disposed of the issue of application for membership, concluding:

It is clear that the Golf Club has a formalized selection process in place with respect to its members. (see ¶ 66)

[14] The Tribunal Member’s reasons continue at that point to address the general status of UDG’s—that is Unidentified Dining Guests—who also have access to the Golf Club facilities. It should be noted that the only non-members and invitees who are permitted to use the Men’s Lounge are the male spouse, male sibling or male child of a member, if they have become enrolled as “Unaccompanied Dining Guests” (UDGs), and the male guests of those people. As the Hornibrook Affidavit provides:

Para 15: A Club member can propose a member of his or her immediate family for Unaccompanied Dining Guest (“UDG”) privileges at the Club. A UDG is entitled to use the Club’s dining facilities (in accordance with Club Rules and Customs).

Para 16: A Club member must fill out a form requesting UDG status for a guest; however the UDG application is not vetted in the manner of a membership application since UDG status can be revoked at any time bay the Board of Directors or the proposing member….

Para 17: A UDG can bring their own guests into the Club with them and may use the Clubhouse dining facilities in the absence of their proposing member. A UDG is given his or her own guest dining account with the Club; however the proposing member will be held responsible for charges on the UDG account in the vent that account is not kept current.

Para 18. There is no charge for the privilege of being a UDG; however a separate quarterly minimum spending requirement is applied to UDG accounts.

Para 19: UDG’s are not screened by the membership committee or posted because they are not members. They are, as their designation implies, guests of the member who has sponsored them, who remains responsible for their account and their conduct at the Club.

[15] While the Tribunal Member accepted there was a formalized selection process in place regarding Golf Club members, she noted that to some degree the UDG’s were an exception to that rule:

The Golf Club also has some indirect control over who can be given UDG status (that is, they must be an immediate family member of Club member). However, the parties agree that a UDG application is not vetted in the manner of a membership application. Further, the Golf Club has no control (at least initially) over those individuals who members or UDGs choose to bring to the Golf Club as their guests. Thus, for example, while the Golf Club has a formalized selection process for its members, UDGs are one step removed from that process, and guests of UDGs are two steps removed form that process…” (¶ 66)

[16] Based on that finding of fact, the Tribunal Member concluded at ¶ 66:

In these circumstances, it cannot be said that those who have access to the Golf Club lounges come together as part of a private selection process, or that they would be excluded from “the public” for the purposes of the Code.

Issue:

[17] The respondents have raised many issues and complaints in these proceedings concerning alleged systemic gender discrimination at the Golf Club and the retaliatory actions which the Golf Club Board and various members have allegedly taken since this Human Rights complaint has been launched.

[18] It is crucial for the public-at-large and members of the Golf Club to understand that this Judicial Review will not address nor resolve those many complaints. The very narrow issue before the Court is whether the services at the Men’s Lounge at the Golf Club are “customarily available to the public” under s. 8 of the Code. This is a question of law for which the applicable standard of review is correctness.

[19] If the services are “customarily available to the public” within the legal meaning of that section, then s. 8 applies, the complaint falls within the jurisdiction of the Human Rights Tribunal, and this Petition for Judicial Review must be dismissed.

Interpretation of Human Rights Legislation:

[20] At the heart of this Judicial Review is the manner in which s. 8 of the Code ought to be interpreted.

[21] There is no dispute that in approaching the interpretation of Human Rights legislation, the Court must adopt a broad and liberal reading of the legislation so as to give effect to the legislation’s equality aims and goals. (O’Malley v. Sipsons-Sears Ltd. (1985), 7 C.H.R.R. D/3102 (S.C.C.); Robichaud v. Canada (Treasury Board) [1987] 2 S.C.R. 84 (S.C.C.)).

[22] Further, as the Supreme Court of Canada noted in Zurich Insurance Co. v. Ontario (Human Rights Commission) (1992), 16 C.H.R.R. D/255 (S.C.C.), because of the quasi-constitutional nature of human rights legislation, statutory exceptions to such legislation must be narrowly construed. As the Court noted at ¶ 18:

In approaching the interpretation of a human rights statute, certain special principles must be respected. Human rights legislation is amongst the most pre-eminent category of legislation. It has been described as having a “special nature, not quite constitutional, but certainly more than the ordinary”…One of the reasons such legislation has been so described is that it is often the final refuge of the disadvantaged and the disenfranchised. As the last protection of the most vulnerable members of society, exceptions to such legislation should be narrowly construed.

[23] Our own British Columbia Court of Appeal recently addressed this issue of interpretation of human rights legislation in School District No. 44 (North Vancouver) v. Jubran 2005 BCCA 201. There Levine J.A. noted:

More recently, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City) [2000] 1 S.C.R. 665, L’Héureux-Dubé J., for the Court affirmed this approach to the interpretation of human rights legislation, when she said (at ¶ 30-31):

This Court has repeatedly stressed that it is inappropriate to rely solely on a strictly grammatical analysis, particularly with respect to the interpretation of legislation which is constitutional or quasi-constitutional in nature: Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571; Ontario Human Rights Commission and O’Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.

The Courts are increasingly recognizing that all statutes, whether or not they are constitutional in nature, must be interpreted contextually… .

[24] Nevertheless Levine J.A. noted that the scope of human rights legislation is not unlimited and that the words of the statute cannot be ignored. She noted the admonition of Lamer C.J.C. in University of British Columbia v. Berg [1993], 102 D.L.R. (4th) 665 (S.C.C.), after referring to the broad approached developed in O’Malley (supra) and Robichaud (supra), who stated (at 371):

This interpretative 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. 8, that some relationships will not be subject to scrutiny under human rights legislation. It is the duty of boards and courts to give s. 8 a liberal and purposive construction, without reading the limiting words out of the Act or otherwise circumventing the intention of the legislature.

(my emphasis)

Interpretation of Section 8 of the Code:

[25] The essential difference in the parties’ positions concerns the interpretation of the word “public” found in Section 8. Section 8(1)(b) forbids a person, without a bona fide and reasonable justification, discriminating against a person or class of persons regarding any accommodation, service or facility customarily available to the public.

[26] It is agreed that the Men’s Lounge may be regarded as either an “accommodation, service or facility”. The only issue is whether it is “customarily available to the public” within the meaning of Section 8.

[27] The Golf Club submits that the relationship between itself and its members (and their guests and UDGs) is a “private” rather than a “public” relationship and that accordingly, the service or facility in issue (the Men’s Lounge), does not fall within the governance of s. 8 of the Code.

[28] By contrast, the respondents submit that the issue is not the nature of the relationship between the service provider and the service user but rather whether the service being offered is one which is “customarily available to the public”. They say the services being provided (ie. the provision of food and beverages in a commercial or quasi-commercial setting) are services which are classically available to the public. Further they say that the particular sub-set of the public which has access to this “public” service are all members of the Golf Club and their invitees, including the UDGs and their invitees. Secondly, as I noted earlier, the respondents contest the rigour of the alleged formalized membership selection process in place at the Golf Club.

The Berg decision:

[29] Since both parties rely on the Supreme Court of Canada’s decision in Berg (supra) to support their contrasting interpretations of Section 8 of the Code, I will review that decision in detail.

[30] In Berg (supra) the appellant was a graduate student who was accepted in the Master’s program at the University of British Columbia’s School of Family and Nutritional Services. Notwithstanding her history of recurrent depression, she was able to continue to attend classes and to perform well as a student. However in 1981, during a recurrence of her depression, she exhibited depressive behaviour (writing “I am dead” on a mirror in the School washroom and later attempting to jump through a plate glass window to avoid security personnel). When the School moved to new premises in 1982, she was denied a key to the building, although other graduate students were provided with one. She also requested a rating sheet—a form of transcript of marks—in order to apply for further studies. This was also denied. Ultimately, Berg applied for but was denied entry to a dietetic internship at Vancouver General Hospital. That decision was apparently based on the School’s refusal to provide a rating sheet when it was first requested.

[31] Berg filed a complaint against the University alleging it had discriminated against her 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.

[32] In an 8:1 decision, Lamer C.J.C. overturned the decision of the British Columbia Court of Appeal, and held the School’s withholding of the key and rating sheet amounted to a denial of services “customarily available to the public”.

[33] For the purposes of this judicial review, several important points were made:

1. The limiting words in the legislation (“customarily available to the public”) reflect the Legislature’s basic motivation, namely that human rights legislation do not regulate “all of the private activities of its citizens”. In this regard Lamer C.J.C. adopted the remarks of Lord Reid in Charter v. Race Relations Board (1973) 1 All E.R. 512 (H.L.):

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 impractical to attempt to apply legal sanctions in situations of a purely private character”. (my emphasis) (see p.672c-d)

2. In determining whether an accommodation, facility, or service is customarily available to the “public”, the Court must not apply a purely quantitative analysis. It must be recognized that no service or facility is absolutely available to everyone who desires it. Rather the service will likely only be available to a subset of the public. Thus the Court must avoid a purely numerical approach to the definition of “public”. As Lamer C.J.C. notes at p. 686, ¶ h:

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.

3. In determining which services fall within the scope of the Code, “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”—what is referred to as the “relational approach”. Some services or facilities will create public relationships between the provider and the user while other services or facilities may establish only “private relationships” between them. (see p. 687, ¶g)

4. Under the “relational approach”, “(t)he 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…” (see p. 688, ¶ 9). This concept of focusing on these two factors—the nature of the services and the relationship between the provider and the user—is repeated again at p. 689, ¶ h:

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.

Adopting this approach both the key to the School and the rating sheet were found to be incidents of the “public educational relationship” between the School and its students.

5. Where the service provider exercises some measure of discretion in determining which individuals will receive the services, such services will not necessarily be exempted from the scope of the Code. Where the provider (of services) does not exercise any measure of personal selection in providing the services to the public, it cannot rely on the formal existence of any selection process or discretion to avoid the application of the Code. (See Singh v. Royal Canadian Legion, Jasper Place (Alta.), Branch No. 255, (1990) 11 C.H.R.R. D/357 (Alta.). The provider of the services will not be allowed to exercise its discretion 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 (Code)”.

[34] Thus, in Berg (supra), the Court concluded:

…by virtue of having passed through a selective admission process, (Berg) did not cease to be a member of the “public” to which the School provided its educational services and facilities. The key and the 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.

The Gould Decision:

[35] The second key case which was considered by the Tribunal was the Supreme Court of Canada decision in Gould v. Yukon Order of Pioneers [1996] 1 S.C.R. 571 (S.C.C.). There G, a female, had applied for membership in the Order, a fraternal order whose primary objectives are social, historical and cultural, with its paramount concern being the welfare and well-being of its members.

[36] The Order’s activities included (a) responding to requests from the public for information on the Order’s past members and on the history of the Order; (b) providing historical data, records and materials on the Order and its members to the Yukon archives; (c) soliciting information on the history of the Order and its members from members and other individuals and organizations; and (d) collecting data, records, photos and other historical material respecting the Order and its members.

[37] G applied for membership to the Order but the application was denied on the grounds she was a female. She filed a complaint under the Yukon Human Rights Act.

[38] In the end result the majority (6:2) held that the only service in question which was offered to the public was the end product, namely the historical data or documents produced. Since those services were offered to the public without discrimination, the Act was found not to apply.

Analysis:

[39] Here, in determining that the services in issue fall within the jurisdiction of the Code, the Tribunal Member has focused and relied heavily on the concurring minority judgment of La Forest J. in Gould (supra). At ¶ 61 of her Reasons, she noted that in determining whether “services” can be said to be “customarily available to the public”, La Forest J. stated at ¶ 55 of his Reasons:

…What is equally important is that a determination ...should not be centered upon the nature of the enterprise or the service provider, but more accurately, upon the service being offered. In this regard, the analysis becomes service-driven.

[40] This passage appears to be the foundation of the critical test she articulates at ¶ 63 of her Reasons:

Thus, a determination of whether or not an organization provides a service customarily available to the public involves a focus on the service being offered, rather than on the nature of the service provider itself.

[41] Thus focusing on the nature of the “services”, she concluded that the services in issue in the case at bar—namely the provision of food and drink in a lounge—was a commercial function customarily available to the public. The nature of the enterprise offering the service, a private golf club, was apparently irrelevant to the analysis.

[42] In my view, the Tribunal Member has erred in law in articulating such a test.

[43] First, it ought to be noted that in Gould (supra), while La Forest J. agreed with the conclusion reached by the majority of the Court, the majority explicitly declined to follow his Reasons, and stated it would neither derogate from nor add to the principles established in Berg (supra), implying that LaForest J. had done so.

[44] On reviewing the reasons in Gould (supra), it appears the majority’s real quarrel with La Forest J. lay in his attempt to more specifically define what constitutes a “public relationship” and in particular, to consider the American experience in undertaking that private-public distinction analysis. But on a careful reading of La Forest J.’s Reasons, it seems clear to me that the excerpted portion of his Reasons quoted earlier (¶ 55) has been taken out of context by the Tribunal Member. The full paragraph reads as follows:

What is to be gleaned from these various provisions is that they all prohibit discrimination with respect to services that are offered to the public, or to which the public has access or to which it is admitted. There is, therefore, a requisite public relationship between the service provider and the service receiver, to the extent that the public must be granted access to or admitted to or extended the service by the service provider. There is a transitive connotation from the language employed by the various provisions; it is not until the service, accommodation, facility, etc., passes from the service provider and has been held out to the public that it attracts the anti-discrimination prohibition. …This is consistent with and reinforced by the common purpose that underlies these provisions: the elimination of discrimination in enterprises that serve the public. In relation to this common purpose, it needs to be said however, that an enterprise need not purport to serve the public before a service it offers to the public is caught within the scope of s. 8(a), or analogous provision. For, indeed it would be simple for an enterprise to purport not to serve the public, and then to engage in the provision of services to the public in a discriminatory manner. The intention of the enterprise should not be determinative of whether a service offered by the enterprise is in fact offered to the public. What is equally important is that the determination under s. 8(a) should not be centered upon the nature of the enterprise or the service provider, but more accurately, upon the service being offered. In this regard, the analysis becomes service-driven.

(my emphasis)

[45] I reject the Tribunal Member’s interpretation of this passage and her conclusion that it directs an analysis focussed simply on the nature of the services provided. Rather, in my view, in that portion of his Reasons, La Forest J. was clearly rebutting the proposition the analysis should focus only on the nature of the service provider. As he states later at ¶ 58, such an analysis might reach the erroneous finding that “an intimate and apparently private organization maintained only private relationships, when in fact, it did offer some services to the public.” He goes on to conclude:

Thus, the correct approach is to identify the service in question, and then to determine whether that service gives rise to a public relationship between the service provider and the service user. (¶ 58)

[46] In my view, by virtue of her error in conducting a service-driven analysis, the Tribunal Member failed to properly proceed to address the second part of the test articulated in both Berg (supra) and Gould (supra) That is, having considered the nature of the services, she did not go on to properly consider whether the service-provider’s (the Golf Club’s) services created either a public or a private relationship with the service–users (the members and their guests, and the UDGs and their guests) when those individuals used the Men’s Lounge. To the contrary, the Tribunal Member simply moved to defining that sub-set of the public which would constitute the “public” for the purposes of the services in issue as including all members, their guests, and the UDGs and their guests. Since those services were thus customarily available to that public, she concluded the Tribunal had jurisdiction.

[47] The Tribunal Member only addressed the issue of the private nature of the Golf Club by way of a consideration and rejection of the Golf Club’s argument that this was a case where a group of people had come together as a result of a “private selection process”. While accepting the Golf Club did have a formalized selection process in place with respect to its members, she rejected the notion that all of the persons who had access to the Golf Club lounges “came together as part of a private selection process”, since the Club had no control (at least initially) over those individuals who members and their UDG’s chose to bring to the Golf Club as their guests. Assuming she was actually considering whether a private relationship existed between those users and the Golf Club (which I find she was not), I nevertheless reject the notion that this “control” test was an appropriate one to apply in determining that issue.

[48] I agree with the Petitioner that while a club’s discretion over admission can be a factor in favour of it being held to be private in nature, in law, the legitimacy of a private selection process does not rely upon the direct supervision of the members of the club or a selection committee.

[49] The two leading cases which address this issue of the legitimacy of the personal or private selection process are the House of Lords’ decisions in Race Relations Board v. Charter (1973) A.C. 868 (H.L.) and Dockers’ Labour Club v. Race Relations Board, (1974) 3 All E.R. 592 (H.L.). Both decisions considered the same section of the Race Relations Act 1968, which expressly applied only to “person(s) concerned with the provision to the public or a section of the public…of any goods, facilities or services.”

[50] Charter (supra) establishes that, in the context of membership, the essence of a private relationship is personal selection of applicants on the basis that they are acceptable on personal grounds to other members.

[51] Dockers (supra) considered the further question of whether access to the club by guests and associate or reciprocal members moved the club from the private to the public sphere. The House of Lords unanimously decided that it did not. The principle articulated in Dockers (supra) is that direct selection by the club itself (ie. Its membership-at-large or a committee of the membership) of those who will access the club is not necessary to found a private relationship. Rather, selection indirectly—such as by members or by reciprocal clubs—is sufficient, since even such an indirect selection process maintains the essential requirement that selection is on personal grounds. As Lord Reid stated in Dockers (supra), “(s)election at second hand is sufficient. (see p. 595d).

[52] The respondents have submitted that neither Charter (supra) nor Dockers (supra) are of any assistance to the Court, since both cases are very dated and were decided many years before the Code was enacted. In my view such a submission cannot be sustained. I note that in the leading case of Berg (supra), Lamer C.J.C. relied on Charter (supra) in supporting the notion that in including the limiting provisions, the Legislature did not intend human rights Legislation to “regulate all of the private activities of its citizens”. There is nothing in his Reasons which reflects any rejection of the legal principles articulated in Charter (supra). Indeed, to the contrary, later in his Reasons, in considering the definition of the word “public” found in the legislation, Lamer C.J.C. approved of the reasoning in Rawala v DeVry Institute of Technology (1982), 3 C.H.R.R. D/1057 (Ontario Board of Inquiry) as demonstrating “the proper significance of an eligibility or admission threshold” (see p.687a). It is noteworthy that the Rawala (supra) decision in turn relies heavily on the Charter decision in resolving that issue (see ¶ 9376-9380).

[53] Thus, I reject the Tribunal Member’s apparent conclusion that the Golf Club’s lack of direct or indirect control (at least initially) over the choice of the members’ guests or their UDG’s or their guests was determinative of whether the Golf Club had a private or public relationship with the service-users. Rather the test in my view is whether the UDGs and guests are allowed access by virtue of having been deemed acceptable on personal grounds by those the Club trusts to make that judgment. The relationship is a private one if it can be said, as Lord Diplock said of the guests and reciprocal members in Dockers (supra), that “(t)hose who were allowed in were not admitted in their roles as member of the public but by reason of their having been chosen because of their characters as private individuals.” (see p. 599h).

[54] Applying the test articulated above I conclude:

(1) The services in issue (provision of food and drink in a lounge) are services which are commonly available in both private and public as well as commercial and non-commercial settings.

(2) In the context of the facts of this case, the services do not create any public relationship between the service provider (the Golf Club) and the service receivers (the members, their guests, and the UDG’s and their guests). Here the public is in no way granted access to nor admitted to nor extended the services within the Men’s Lounge. The “requisite public relationship” referred to in Gould (supra), which public relationship underlies the reasoning in Berg (supra), is absent here. The fact that the general public may have some access to the Golf Club Pro Shop or to a round of golf or at least some golf tournaments does not alter this finding.

(3) The Golf Club is a private club. There is a formalized selection process in place under which its members are selected. While the Golf Club lacks direct or indirect control (at least initially) over the choice of the members’ guests or their UDGs or their guests, the relationship between the Golf Club and those persons remains a private one. As in Dockers (supra) the Club trusts certain people to select other appropriate people to be granted access to the Club on a limited basis. They have determined that they will trust individual members to select appropriate guests and to select (if they wish) one immediate family member to be a UDG. The members have also decided that they will trust (to a limited extent) UDGs to select appropriate guests. This trust is limited in that the Club can unilaterally terminate a person’s UDG privileges at any time.

Conclusion:

[55] In conclusion, I find that the Tribunal Member has not applied the proper legal tests in determining whether the facilities or services in issue are “customarily available to the public”. The Reasons reflect two fundamental legal errors in interpreting the governing legislation, which I have set out above.

[56] I am satisfied that on a consideration of the facts in this case and on an application of the proper test, it cannot be concluded that the services in issue are “customarily available to the public”. Thus Section 8(1) of the Code does not apply and the Tribunal has no jurisdiction over the complaint in issue.

“M.E. Boyd, J.”
The Honourable Madam Justice M.E. Boyd

Citation:	*Marine Drive Golf Club v. Buntain, Charles et al.,*
	2005 BCSC 1434