BC Human Rights Tribunal

Leading cases: Services customarily available to the public

Page contents

• Section 8
• How do you define a service
• When is a service “customarily available to the public”
• What is the test for a “bona fide and reasonable justification”

Section 8

Section 8 of the Human Rights Code prohibits discrimination in accommodations, services, and facilities.  It says:

Discrimination in accommodation, service and facility

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 the Indigenous identity, race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or class of persons.

(2)A person does not contravene this section by discriminating

(a)on the basis of sex, if the discrimination relates to the maintenance of public decency or to the determination of premiums or benefits under contracts of life or health insurance, or

(b)on the basis of physical or mental disability or age, if the discrimination relates to the determination of premiums or benefits under contracts of life or health insurance.

How do you define a service

Moore v. BC (Ministry of Education), 2012 SCC 61. Services should not be defined too narrowly. In this case, a student had disabilities that required accommodation. The service that the student was entitled to was an education. Defining the service as “special education” was too narrow. Special education is not the service. It is the way that students with disabilities receive meaningful access to education.

When is a service “customarily available to the public”

University of British Columbia v. Berg, [1993] 2 SCR 353.  The Human Rights Code only applies to public, not private services. The question is whether the nature of the service creates a public relationship between the service provider and the service user. A service does not have to be available to everyone to be a public service.  The “public” for a service may be clients, students, customers, or a subset of the public which is eligible for the service. In this case, Ms. Berg was a master’s student at the university. The university discriminated against her when it did not offer her certain benefits that it offered to other master’s students, because of her depression. Even though those benefits were only available to a small group of people who qualified for the master’s program, they were still “customarily available to the public” that the university served.

Marine Drive Golf Club v. Buntain, 2007 BCCA 17. The court decided that a mens’ lounge at a private golf club was a purely private service that was not customarily available to the public.

Examples of services are customarily available to the public are:

• A local government’s enforcement of its bylaws: James v. Salmon Arm (City), 2009 BCHRT 285.
• Municipalities’ decisions to approve and permit development: Riddle v. Town of Gibsons, 2017 BCHRT 148.
• A bed and breakfast operated out of the respondents’ home: Eadie and Thomas v. Riverbend Bed and Breakfast and others (No. 2), 2012 BCHRT 247.
• Issuing a drivers’ licence: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20.
• Being arrested or questioned by the police: BC v. Crockford, 2005 BCSC 663, rev’d on other grounds, 2006 BCCA 360.
• Detaining people in jail: Dawson v. Vancouver Police Board (No. 2), 2015 BCHRT 54.
• Comedy entertainment in a restaurant: Ismail v. British Columbia (Human Rights Tribunal), 2013 BCSC 1079.
• Karaoke and dancing inside a pub: C.L. v. Amrit Investments and Bob, 1998 BCHRT 70.
• A volunteer training program: Nixon v. Vancouver Rape Relief Society, 2005 BCCA 601.
• Services provided by a strata council to its owners, including parking, intercom services, swimming pools, by-laws, and rules: Konieczna v. The Owners Strata Plan NW 2489, 2003 BCHRT 38.
• Services offered by recreational sporting associations: Beacon Hill Little League Major Girls Softball Team – 2005 v. Little League of Canada, 2009 BCHRT 12.

What is the test for a “bona fide and reasonable justification”

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 at para. 20. Once a complainant proves that a protected characteristic was a factor in adverse treatment regarding a service, the respondent can defend itself by proving that it had a “bona fide and reasonable justification” for its behaviour. It has to show:

1. its behaviour was for a purpose or goal that is rationally connected to the function being performed;
2. it behaved in good faith; and
3. its behaviour was reasonably necessary to accomplish its purpose or goal, in the sense it cannot accommodate the complainant without undue hardship.