COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Hong
          v. Young Kwang Presbyterian  Church of Vancouver,

2007
          BCCA 29

Date: 20070111

Docket: CA033948

Between:

Taek
Ky
Hong and Young Ha
    Jung

Appellants

(
Petitioners
)

And

Young
    Kwang Presbyterian Church of Vancouver

Respondent

(
Respondent
)

Before:

The
          Honourable Madam Justice Ryan

The
          Honourable Madam Justice Newbury

The
          Honourable Mr. Justice Hall

Oral Reasons for Judgment

T.
          Armstrong

C. Alexander

Counsel for the Appellant

B.
          Clark

Counsel for the Respondent

Place
          and Date of Hearing:

Vancouver
,
British Columbia

9 January 2007

Place
          and Date of Judgment:

Vancouver
,
British Columbia

11 January 2007

[1]

RYAN, J.A.
: On 8 March 2006 Mr. Justice Crawford dismissed
    the petition of Mr. Hong and Mr. Jung which sought an order setting aside
    the 15 August 2004 amended bylaws of the respondent Young Kwang Presbyterian
    Church of Vancouver (the Church) on the basis that substantive notice of the
    proposed amendments was not given pursuant to the provisions of the
Society
    Act
, RSBC 1996 c. 433 and the bylaws of the Church passed thereunder.

[2]

The appellants say that while the Supreme Court Justice adverted to
    the proper test for notice, he erred in its application to the facts of this
    case.

[3]

The appellants are members of the respondent Church.  On 15 August
    2004 the Church held a general meeting at which, by special resolution, a
    number of amendments to the existing bylaws were passed by the membership.

[4]

Section 23 of the
Society Act
provides that a society
    may amend its bylaws by special resolution.  A special resolution is defined
    in s. 1 as :

(a)    a resolution passed in a general
    meeting by a majority of not less than 75% of the votes of those members of
    a society who, being entitled to do so, vote in person

(i)         of which the notice that the bylaws provide,
    and not being less than 14 days' notice, specifying the intention to propose
    the resolution as a special resolution has been given

[5]

Section 60 of the
Society Act
requires that the members
    must be given 14 days notice of a general meeting.

[6]

Section 13 of the bylaws of the Church in effect as of 15 August 2004
    required that:

(1)
    Notice of a general meeting must specify the place, day and hour of the meeting,
    and, in case of special business, the general nature of that business.

(2)        The accidental omission to give notice of a meeting to, or
    the non-receipt of a notice by, any of the members entitled to receive notice
    does not invalidate proceedings at that meeting.

[7]

Special business is defined in s. 15 of the bylaws as all business
    conducted at the meeting with the exception of specified matters.  Special
    resolutions are not listed as an exception.

[8]

If there are regulations to the
Society Act
which relate
    to special resolutions, they were not referred to us.

[9]

Thus, so far as I have been able to discern, the
Society Act
requires only that notice be given specifying the intention to propose the
    resolution as a special resolution.  And, the bylaws only demand notice of
    the general nature of the special business.

[10]

The parties are agreed however, that the case law requires a member
    of a society be given sufficient notice to allow the member to consider the
    proposal so that he or she may determine whether the member wishes to attend
    the meeting, and to determine the questions or concerns the member may have
    surrounding the proposal for discussion.

[11]

The appellant also relies on the decision of
Armstrong v. Clark
[2002] B.C.J. No. 1009 where Scarth J., following English authority, held
    at para. [30] that:

In the case of special resolutions they must be passed in the exact form
    appearing in the notice and may not be amended at the meeting.

[12]

The facts in the case at bar are complicated by the fact that the members
    of the Church are Korean speaking, that all notices sent to the members are
    in Korean, all meetings are conducted in the Korean language, but the bylaws
    of the Church filed under the
Society Act
are in English.

[13]

In the case at bar a notice of the general meeting, in Korean, was
    sent on 28 July 2004 to the members of the Church.  The notice package contained
    other documents as well.  English translations of the documents were provided
    to the court by the appellants.  The respondent Church accepted that the translations
    were accurate.  In his examination of the material the Supreme Court Justice
    remarked that the translations were stilted.  This is an understatement.
    The translations may be literal translations but their meaning is almost impossible
    to comprehend.

[14]

The Supreme Court Justice accepted that the 28 July notice was accompanied
    by a complete set of the proposed new bylaws in the Korean language.

[15]

On 1 August 2004 a question and answer session about the upcoming
    meeting was held in the church after the regular church services.

[16]

The general meeting was held on 15 August 2004.  The membership of
    the Church is said to be approximately 140.  The appellant provided an English
    translation of the proceedings of the meeting.  The translation indicates
    that 137 members attended the meeting.  Some, but not all of the proposed
    amendments were discussed by the members attending the meeting.  The amendments
    were passed by the required majority.

[17]

The appellants complain that the notice sent to the members would not
    have made clear to the members that the enclosed package of bylaws were in
    fact the proposed amendments.  In particular, they submit that the package
    did not contain a set of the existing bylaws so that a member could make a
    comparison between those bylaws and the proposed changes.

[18]

The appellants submit that the amendments to the bylaws resulted in
    a concentration of power in the hands of the directors by changing their numbers,
    changing quorums and voting majorities and the definition of a member in
    good standing.  They say that the notice was confusing at best and conveyed
    nothing to the membership that would enable them to make an informed decision
    about whether they ought to attend the meeting or to formulate questions that
    might arise had the proper information been given to them.

[19]

As I stated at the beginning of these reasons, the appellants accept
    that the Supreme Court Justice enunciated the proper test he was to apply.
    Their point is that his conclusion that the proper notice was given, was unreasonable
    in the circumstances.

[20]

The respondents position is that the appellants have not demonstrated
    that the conclusion of the Supreme Court Justice that the notice was sufficient
    was unreasonable.  Given the difficulties with the English translations of
    the notices and accompanying documents, I am inclined to agree.

[21]

That said, I am also of the view, that the sub-text of the reasons
    for judgment reveals the conclusion of the Supreme Court Justice that by the
    time of the vote the membership, almost all of whom attended the meeting,
    had an understanding of the nature and consequences of the proposed amendments.
    In such circumstances, I would apply the provisions of s. 85 of the
Society
    Act
which provides:

85
(1)  Despite anything in
    this Act, if an omission, defect, error or irregularity occurs in the conduct
    of the affairs of a society by which

(a) a
    breach of this Act occurs,

(b) there is default in compliance with the constitution or bylaws
    of the society, or

(c) proceedings at, or in connection with, a general meeting, a meeting
    of the directors of the society or an assembly purporting to be such a meeting
    are rendered ineffective,

the
    court may

(d) either of its own motion or on the application of an interested
    person, make an order

(i)  to rectify or cause to be rectified or to negate or modify or
    cause to be modified the consequences in law of the omission, defect, error
    or irregularity, or

(ii)  to validate an act, matter or thing rendered or alleged to
    have been rendered invalid by or as a result of the omission, defect, error
    or irregularity, and

(e) give
    the ancillary or consequential directions it considers necessary.

[22]

I would find that proper notice was given and dismiss the appeal.

[23]

NEWBURY, J.A.
: I agree.

[24]

HALL, J.A.
: I agree.

[25]

RYAN, J.A.
: The appeal is dismissed.

The Honourable Madam Justice Ryan


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Marine
          Drive Golf Club v. Buntain et al and B.C. Human Rights Tribunal,

2007
          BCCA 17

Date: 20070111

Docket: CA33502

Between:

Marine
    Drive Golf Club

Respondent

(Petitioner)

And

Lynn
    Buntain, Rhiannon Charles, Judy Clarke, Jenny Francis,

Lana
    Gustavson, Dianne Guy, Dianne Hardouin, Ingrid Hart,

Debbie
    Heffel, Sheila Hughson, Louise Jean, Mary Anne Keilty,

Jennifer
    Kerr, Carol Kirkwood, Lindy Kirkwood, Andrea Kon,

Janelle
    Lacroix, Anne Lippert, Joan McMaster, Carrie Mak,

Louise
    Martin, Janet Pau, Penny Paul, Barbara Perry, Janet Reid,

Barbara
    Renwick, Sheila Ritchie, Shirley Skillen, Dianne Snyder,

Karen
    Thompson, Vicki Torbet, Jeane Treloar, Deborah Upton,

Lesley
    Williams, Carol Wishart and Sandy Young

Appellants

(Respondents)

And

British
    Columbia Human Rights Tribunal

Respondent

(Respondent)

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Rowles

The
          Honourable Mr. Justice Thackray

R.L.
          Basham, Q.C. and V.H. Stewart

Counsel for the Appellants

G.K.
          Macintosh, Q.C. and T.A. Dickson

Counsel for the Respondent

Marine Drive Golf Club

Place
          and Date of Hearing:

Vancouver, British Columbia

November 10, 2006

Place
          and Date of Judgment:

Vancouver, British Columbia

January 11, 2007

Written
          Reasons by
:

The
          Honourable Mr. Justice Thackray

Concurred
          in by:

The
          Honourable Chief Justice Finch

The
          Honourable Madam Justice Rowles

Reasons for Judgment of the Honourable Mr. Justice Thackray:

[1]

This is an appeal of an order of the Supreme Court of British Columbia
    which held that the British Columbia Human Rights Tribunal did not have jurisdiction
    to hear and decide the appellants complaint that Marine Drive Golf Club discriminated
    against them contrary to section 8(1) of the
Human Rights Code
,
    R.S.B.C. 1996, c. 210.  The Tribunals reasons are reported at 2005 BCHRT
    119, [2005] B.C.H.R.T.D. No. 119 (Q.L.).  Madam Justice Boyds reasons are
    reported at 2005 BCSC 1434, 50 B.C.L.R. (4
th
) 167.

[2]

The most relevant provisions of the
Code
are as follows:

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;

(c) to prevent discrimination prohibited by this Code;

(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;

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 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

[3]

Boyd J. included the following useful background in her reasons:

[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 Mens Lounge), and a mixed-grill for use by both men and women
    members.  The complaint before the Tribunal centers on the Mens Lounge
    (also known as the Bullpen).

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

Para 3:    The complainants alleged that, prior to June 1, 2004,
    the mens 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 mens and womens 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 [sexes] 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 Mens
    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 Clubs 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 Clubs 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 applicants
    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 Members 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 [paragraph] 66)

[14]
The Tribunal
    Members reasons continue at that point to address the general status of UDGs-that
    is Unaccompanied 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 Mens 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 Clubs 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 by 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 event 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:  UDGs 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 UDGs
    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 a 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 from that
    process  ([paragraph] 66)

[16]
    Based on that finding of fact, the Tribunal Member concluded at [paragraph] 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
.

Reasons for Judgment of Boyd J.

[4]

In her reasons for judgment Boyd J. defined the issues as follows:

[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 Mens
    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.

[5]

At paragraphs 21 to 23 Boyd J.
noted that when interpreting human rights
    legislation courts must adopt a broad and liberal reading so as to give effect
    to the legislations equality aims and goals.  Further, that as stated in
Zurich Insurance Co. v. Ontario (Human Rights Commission)
, [1992]
    2 S.C.R. 321 at 339: exceptions to such legislation should be narrowly construed.
    She referred to
School District No. 44 (North Vancouver) v. Jubran
,

2005 BCCA 201 in support of the premise that all statutes  must
    be interpreted contextually, but she said that nevertheless this Court
    in
Jubran
had noted that the scope of human rights legislation
    is not unlimited and the words of the statute cannot be ignored.

[6]

Boyd J., at paragraphs 25 and 26, said that the essential difference
    between the positions of the parties was in their interpretation of the word
    public as found in section 8 of the
Code
and whether the Mens
    Lounge was customarily available to the public within the meaning of that
    section.  In coming to her decision the judge noted that the cases relied
    upon by the parties and the Tribunal were
University of British Columbia
    v. Berg
, [1993] 2 S.C.R. 353 and
Gould

v. Yukon
    Order of Pioneers
, [1996] 1 S.C.R. 571, and at paragraph 39 that the
    Tribunal focused and relied heavily on the concurring minority judgment of
    La Forest J. in
Gould
.

[7]

In
Gould
Mr. Justice La Forest said at paragraph 55 that
    in determining whether services are customarily available to the public the
    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.

Boyd J. said that this passage appeared to be the foundation
    of the test used by the Tribunal and at paragraph 44 she found that it took
    La Forest J.s passage out of context and erred in law when it said at paragraph
    63 that a determination of whether 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.

[8]

At paragraphs 49 to 52 Boyd J. considered
Charter v. Race Relations
    Board,
[1973] 1 All E.R. 512 (H.L.) and
Dockers Labour Club
    v. Race Relations Board
,

[1974] 3 All E.R. 592 (H.L.).
    She noted that the appellants

(respondents before her) submitted that
    neither of those cases was of assistance since they were very dated and were
    decided many years before the
Code
was enacted.  She held at
    paragraph 52 that such a submission cannot be sustained and remarked that
Charter
had been relied upon by Lamer J. in
Berg
to support 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.

[9]

Boyd J. concluded her reasons for judgment as follows:

[53]      Thus, I reject the Tribunal Members apparent conclusion that
    the Golf Clubs lack of direct or indirect control (at least initially) over
    the choice of the members guests or their UDGs 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 UDGs and their
    guests).  Here the public is in no way granted access to nor admitted
    to nor extended the services within the Mens 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 persons 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.

Errors in Judgment Alleged by the Appellants

[10]

The errors alleged in the appellants factum are as follows:

The
    Chambers Judge erred in finding that the services in issue are not customarily
    available to the public such that s. 8(1) of the
Code
does not apply.
     In particular:

a.         The Chambers Judge failed to give a broad and liberal interpretation
    to s. 8(1) consistent with the aims and goals of the
Code
such that
    her decision contradicts those aims and goals and is contrary to the principles
    set down by the Supreme Court of Canada (SCC);

b.         The Chambers Judge misdirected herself when she began her analysis
    with the nature of the Club rather than the nature of the services involved
    and when she either misinterpreted or failed to interpret public in s. 8(1),
    which, as defined by the SCC, includes the Clubs members, UDGs, and their
    respective guests and not the general public; and

c.         Even if public does mean general public, the Chambers Judge
    misdirected herself on, or failed to properly consider, the evidence that
    the general public has access to the Clubs services and facilities.

Further,
    the Chambers Judge erred when she substituted her own conclusions for the
    Tribunals findings that:

a.         the services in question did create a public relationship between
    the Club and the appellants;

b.         those who have access to the Club lounges do not come together
    as part of a private selection process; and

c.         those who have access to the Club lounges would not be excluded
    from the public for purposes of the
Code
;

which
    findings followed the law set down by the SCC and were reasonably supported
    on the evidence and on the authorities.

Position of the Parties on this Appeal

[11]

Ms. Basham, counsel for the appellants, opened her oral submissions
    by posing the following question:

Can
    section 8 of the
Code
be interpreted in a manner that allows discrimination
    based on a prohibited list in circumstances where members and non-members
    of Marine Drive Golf Club are discriminated against on the basis of gender
    in their use of the services and facilities?

She then submitted that in answering that question this
    Court should be governed by the principles set out in
Berg
and
Gould
.

[12]

Ms. Basham referred in particular to what she called the defence provision
    found in section 8 of the
Code
.  She took this term from the
    reasons for judgment of Lamer C.J. in
Berg
at 362-63 and 393-94.

What he was discussing were the words in section 8 that no person
without
    a bona fide and reasonable justification
 shall deny to, or discriminate
    against a person with respect to, accommodation, service or a facility customarily
    available to the public.  The underlined words were not in the
Human
    Rights Act
, S.B.C. 1984, c. 22, s. 3 (now the
Code
s.
    8) when
Berg
was heard by this Court, but had been added by
    the time the case was heard by the Supreme Court of Canada.  The Chief Justice,
    at 394, said:

the absence of a defence provision in the Act as it stood at the time of Bergs
    complaint should not lead us, as I think it did the Court of Appeal in this
    case, to interpret s. 3 in an overly restrictive fashion.  The Act must be
    allowed its full scope of application, and its particular operation in situations
    such as this, if undesirable, is a matter for legislative attention.  The
    recent amendments to the Act show that such responses are always possible.

Ms. Basham submitted that the passages from
Berg
support the proposition that the onus was on the Golf Club to establish
    a
bona fide
and reasonable justification for its discriminatory actions.

[13]

Ms. Basham acknowledged that the Court in
Berg
at 362-63
    adopted the words in
Charter
at 516 that while racial discrimination
    is deplorable, the legislature in framing the English
Human Rights Act
thought it unwise or impractical to attempt to apply legal sanctions in situations
    of a purely private character.  However, her emphasis was on the words from
Berg
that immediately followed that passage:

It
    hardly requires repeating, however, that the words public and private
    have no self-evident meaning, and serve as the starting point, rather than
    the conclusion, of the analysis in this case.

[14]

The starting point, in Ms. Bashams submission, was for the Golf Club
    to prove that it is private and in that regard the judge was required to defer
    to the factual findings of the Tribunal.  She referred this Court to the concluding
    paragraphs in the reasons of the Tribunal and asserted that the findings of
    fact therein are not subject to correction by a reviewing court.  Those
    paragraphs read as follows:

[65]
    The respondents argue that
Berg
suggests that where a group of people
    come together as part of a private selection process, that group will not
    be subject to the provisions of the Code.  This is certainly not the ratio
    of the
Berg
decision, as it was not central to the issue before the
    Court.  Further, in my view, this is not an argument that is decisive of the
    issue before me. Again, what is at issue is not membership in the Club itself.
     While it may be argued that members of the Club have come together as part
    of a "private selection process", in this case it is not solely
    the members of the Golf Club who are entitled to the service in question.
     It is not disputed that, at a minimum, not only members, but also their guests,
    those approved as UDGs, and their guests, are all entitled to the members-only
    lounge services at the Golf Club.  This is the subset of the public to whom
    the service in question is customarily available.

[66]
    It is clear that the Golf Club has a formalized selection process in place
    with respect to its members.  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
    and 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
    from that process. 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.

[67]      For the above reasons, I find, first, that access to the lounges
    and the food and beverage services provided at the Golf Club are "customarily
    available" to members, members' guests, UDGs and guests of UDGs.  There
    was no argument to the contrary.  Second, I find that members, members' guests,
    UDGs and guests of UDGs constitute the 'public' for the purposes of the service
    in question.  I therefore find that the service in question constitutes a
    service customarily available to the public, and therefore that the Tribunal
    has jurisdiction with respect to this service.  I therefore dismiss the respondents'
    application pursuant to s. 27(1)(a) of the
Code
. As the respondents'
    application pursuant to s. 27(1)(d)(i) of the
Code
is based on the
    same jurisdiction issue, I dismiss that part of the application as well.

[15]

Ms. Basham cited the following comments by LHeureux-Dubé (in dissent)
    from
Gould
:

[135]
    My colleague La Forest J. notes that 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 (para. 58).  I agree, and would add only that this task, being essentially
    factual, is within the exclusive purview of the Board.  In reviewing the Boards
    conclusions, this Court must not intervene unless the Boards decision is
    not reasonably supportable on the evidence.

She submitted, with references to
Berg
at pages 382 to 394, that the respondents were members of the public within
    the meaning of that word in the
Code
and that there was a denial
    of services customarily available to that group.  She referenced the following
    from
Berg
at 393:

Therefore,
    I would conclude that Berg, by virtue of having passed through a selective
    admissions process, did not cease to be a member of the public to which
    the School provided its educational services and facilities.

The submission that followed was that the appellants
    all passed the threshold test for membership and that the Golf Club could
    not subsequently apply a further test for eligibility to access the Mens
    Lounge, namely being of the male gender.

[16]

Ms. Basham referred to the following from the minority concurring reasons
    of La Forest J. in
Gould
:

[55]      What is to be gleaned from these various provisions [within
    the legislation in various provinces] 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.   a determination under s. 8(a) should
    not be centred 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.

Ms. Basham proffered this passage to say that the Supreme
    Court of Canada has ordered a service driven approach.

[17]

The response of Mr. Macintosh, counsel for the Golf Club, to the question
    posed by Ms. Basham was as follows:

There
    is nothing wrong with the question as posed.  In this case the members and
    non-members meet the threshold test, thus raising the issue of whether there
    can be discrimination against them.  The analysis starts with the purpose
    of the
Human Rights Code
.  Then, consideration should be given to the
    nature of the services followed by an analysis of the relationship between
    the Golf Club and people who use the club.  A determination must be made as
    to whether it is a private or public relationship.  The definition of public
    must be decided and in the case at bar that is not the general public.  The
    public policy issues must then be considered in interpreting and applying
    the provisions of the
Code
.

[18]

Mr. Macintosh submitted that the issue is not whether it is discriminatory
    to exclude females from the Mens Lounge.  He agreed that such exclusion is
    discriminatory.  He submitted, however, that the issue is whether the Mens
    Lounge at the Golf Club is customarily available to the public.  He pointed
    out that the only people allowed in the Mens Lounge are male Golf Club members
    and male Unaccompanied Dinner Guests.  This group is not, in the contention
    of the Golf Club, the public for the purposes of section 8 of the
Code
.

[19]

Mr. Macintosh submitted that the principles set out in
Berg
and
Gould

are fully supportive of what is contended by the
    Golf Club in the case at bar.  That is, that the words customarily available
    to the public as they appear in section 8 must be given a sensible, not a
    strained, interpretation.  He said that to say that the Mens Lounge is customarily
    available to the public because it has a food and beverage service, a service
    that outside of the Mens Lounge is customarily available to the public,
    is to exert an unacceptable and illogical strain on the analysis.  Similarly,
    the Golf Club is a private place, according to Mr. Macintosh, in any ordinary
    sense of the word and that should be the end of the matter.

[20]

More particularly, Mr. Macintosh submitted that simply because there
    are guests at the Golf Club does not signal that it is a public place.  He
    contended that the Tribunal erred, specifically at paragraph 67 of its reasons,
    in holding that members, members guests, UDGs and guests of UDGs constitute
    the public for the purposes of the service in question.  He argued that
    all of those categories of people are undoubtedly in a private relationship
    with the Club when they enter the Mens Lounge.

[21]

Mr. Macintosh referred to the reasons for judgment of Boyd J. at paragraphs
    10 to 13 and noted that she had quoted from the Tribunals reasons when it
    said at paragraph 66:

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

That, according to Mr. Macintosh, is the basis upon which
    this case turns.  That is, everyone who enters the Golf Club does so because
    of their private relationship to the Golf Club - relationships made private
    through the Golf Clubs direct or delegated formalized
selection process.

Standard of Review

[22]

In
Berg
at 369 Lamer C.J. stated that the question of
    what constitutes a service customarily available to the public is a general
    question of law with wide social implications and  the appropriate standard
    of review is one of correctness.  The parties in the case at bar agree that
    correctness is generally the appropriate standard of review in this appeal.
     As such this Court is free to replace the opinion of the trial judge with
    its own:
Housen v. Nikolaisen,
[2002] 2 S.C.R. 235 at paragraph
    8.

[23]

Both parties urge this Court to defer to certain alleged factual findings
    made by the Tribunal, although they differ on which findings were factual.
    The appellants submit that it was for the Tribunal to examine the relationship
    between the Golf Club and its users and characterize it as either public or
    private.  They contend that this was a finding of fact and, subject to legal
    error, it is not open to the courts to disturb that conclusion.

[24]

However, the Tribunal, at paragraph 51, said that it found that it
    could determine the jurisdictional issue on the basis of facts which are
    not in dispute.  It therefore declined to order an oral hearing and decided
    the issue on facts as agreed to by both parties.  Therefore, the Tribunal
    made no factual findings
per se
.  Further, if the findings of the
    Tribunal were based on the wrong legal principle, as was found to be so by
    Boyd J., then they are subject to judicial scrutiny.

[25]

In the case at bar the parties agree that the Mens Lounge is a service
    or facility and that the issue is whether such service or facility, on a correct
    interpretation of section 8 of the
Code
and the evidence, is
    customarily available to the public?  An analysis of this issue commences
    with a consideration of
Berg
and
Gould
.

University of British Columbia v. Berg

[26]

At page 362 Lamer C.J.,  referring to the British Columbia legislation,
    said:

the legislature demonstrated an intention to restrict the application of the
    Act to what may be described, subject to considerable refinement below, accommodations,
    services or facilities provided in the public sphere.  Although many legislatures
    have chosen different verbal formulae to so restrict the application of human
    rights legislation, the basic motivation behind such limiting words is clear:
    the legislature did not wish human rights legislation to regulate all of the
    private activities of its citizens.

[27]

At pages 373 to 374 the Chief Justice said that an analysis of the
    issue set forth in paragraph 25 above entails two inquiries: first, whether
    the student body of a university (or a faculty within the university) is the
    public, and if so, second, whether the services in this case were, as a
    matter of law and fact, customarily available to that public.

[28]

The first inquiry requires a determination whether the
Code
applies at the initial stage of admission.  An eligibility threshold such
    as a selection process may establish a private institution from which members
    of the general public will generally be excluded and to which the
Code

may not apply.

[29]

If the
Code

does
apply at the initial stage of
    admission, then the second inquiry examines whether the users of the organization
    are the public for the purpose of section 8 of the
Code
, determined
    by focusing on the nature of the service or facility and the relationship
    it establishes between the service or facility provider and the service or
    facility user to determine whether the relationship is predominantly private
    or public.  If the users of the organization are the public for the purpose
    of section 8 of the
Code
, then there must be a determination
    whether the services at issue were, as a matter of law and fact, customarily
    available to that public.  Only if the users of the organization are the public
    for the purpose of section 8 of the
Code

and
the services
    at issue were customarily available to that public, does section 8 of the
Code
apply.

[30]

The Supreme Court of Canada was not required to elaborate on the first
    inquiry in
Berg
because it was obvious that the
Act
applied to the University which offered educational services to members of
    the general public who sought admission.  The Court went directly to the second
    inquiry, pointing out that drawing a distinction between discrimination amongst
    the general public in the admissions process and discrimination in the provision
    of services and facilities to those already admitted to the University would
    be subversive of the purpose of human rights legislation.  The Court focused
    on the nature of the service and the relationship it established between the
    University and the students admitted to the School of Family and Nutritional
    Sciences, which inquiry disclosed a
public
relationship. Section 3
    of the
Act
(now section 8 of the
Code
) was found
    to apply.

[31]

The Chief Justice reiterated the Courts position that human rights
    legislation is of a special nature and it is for the courts to seek out its
    purpose and give it effect.  He said the Court had repeatedly stressed that
    a broad, liberal and purposive approach is appropriate to human rights legislation
    and it must be interpreted so as to advance the broad policy considerations
    underlying it.  He
noted that the
Interpretation Act
, R.S.C. 1985, c. I-21
    directs that enactments are to be deemed remedial, and shall be given such
    fair, large and liberal construction and interpretation as best ensures the
    attainment of its objects
.  The
Interpretation Act
,
    R.S.B.C. 1996, c. 238, s. 8 reads similarly.  However, at page 371 he added:

This
    interpretive 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. 3, that some relationships will not be subject to
    scrutiny under human rights legislation.  It is the duty of boards and courts
    to give s. 3 a liberal and purposive construction, without reading the limiting
    words out of the
Act
or otherwise circumventing the intention of the
    legislature.

[32]

After noting that human rights legislation in various provinces has
    different wording, the Chief Justice said at page 373 that they all achieve
    the same end, that is to forbid discrimination by enterprises which purport
    to serve the public.  He then proceeded to define public, noting at page
    380 that the University of British Columbia is a public institution operated
    with public funds performing a public service.
At pages 381 to 382 he said,

I find the distinction between discrimination in the admissions process and
    discrimination in the provision of  services and facilities to those already
    admitted unconvincing and subversive of the purpose of human rights legislation.

such a distinction would allow such institutions to frustrate the purpose
    of the legislation by admitting students without discrimination, and then
    denying them access to the  services and facilities they require to make
    their admission meaningful.

one need do no more than ask the question Can the legislature have intended
    that such activity would not be subject to scrutiny under the Act? to make
    the answer, I think, clear.

[33]

Commencing at page 383 the Chief Justice directed that for the purposes
    of the test courts must address the definition of the community.  He said,

no service or facility is absolutely available to everyone who desires it.
      an absolute position, requiring the public to include every member of
    a community, cannot be maintained if human rights legislation is to have
    any impact.

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.

He continued by saying that eligibility criteria, as
    long as they are non-discriminatory, are necessary, but that such screening
    tools should not come at the cost of excluding the protection of human rights
    legislation.  He added at page 384:

This
    is not to say that
all
of the activities of an accommodation, service
    or facility provider are necessarily subject to scrutiny under the
Act
just because
some
are.   [I]n determining which activities of the
    School [of Family and Nutritional Sciences] are covered by the
Act
,
    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.  Some services or facilities will
    create public relationships between the Schools representatives and its students,
    while other services or facilities may establish only private relationships
    between the same individuals.

He continued at page 387:

There
    is nothing in the nature of the student body which suggests that the School
    and its students have come together as the result of a private selection process
    based on anything but the admissions criteria, which the School agrees cannot
    be discriminatory.  Therefore, I would conclude that, generally, the natures
    of the service-provider School and the service-user students in this case
    indicate a very public relationship with respect to ordinary educational services
    (such as the provision of instructors, testing, and grading).

Gould v. Yukon Order of Pioneers

[34]

Mr. Justice Iacobucci, writing for the majority, stated at paragraph
    11 that it was evident that the Orders males-only membership policy contravenes
    s. 6(f) of the
Act
(discrimination on the basis of sex).  Therefore
    it [was] necessary to determine whether this discrimination [was] prohibited
    by s. 8 of the
Act
.  He found at paragraph 12 that the Yukon legislature
    has turned its mind to
the question of membership as a category of prohibited
    discrimination
, and that it had not included social or cultural organizations
    within the scope of section 8(c) of the
Act
(similar to section
    14 of the
Code
).  He also refused at paragraph 14 to interpret
    section 8(a) of the
Act
(similar to section 8 of the
Code
)
    in a manner in which membership could constitute a service offered to
    the public because such a reading would deprive section 8(c) of all meaning.

[35]

At paragraph 18 Iacobucci J. said:

I
    find it unnecessary to expand upon the principles or tests set out in
Berg
.
    My resolution of this appeal is consistent with
Berg

and, in
    that connection, I have neither derogated from nor added to the principles
    established in
Berg
.

Analysis

i) Customarily available to the public

[36]

Ms. Basham, in her opening statement, said as follows:

In
Gould
, the Supreme Court of Canada also made it clear that in determining
    whether or not a service is one customarily available to the public, the
    focus is not on the service provider (i.e. the Club), but on the service being
    offered (here the provision of food and beverages) [Citing the reasons of
    La Forest J. at paragraph 55 of
Berg
in support.]  The Tribunal correctly
    followed this approach but the learned Chambers Judge did not.  She wrongly
    conflated the nature of the Club with the nature of the services it provides.
    The services in this case are of a commercial nature, that is, the supply
    of food and beverages.  As such, the services are of a public nature.

[37]

That submission is based upon a minority concurring opinion which,
    as pointed out by Boyd J. at paragraph 43 in her reasons, the majority explicitly
    declined to follow.  However, even if it was found that the reasoning of
    La Forest J. in
Gould
was persuasive, the approach of the appellants
    is not in keeping with his reasoning.  In considering the service being offered
    the appellants say that the supply of food and beverages are of a commercial
    nature therefore the services in the mens lounge are of a public nature.
    La Forest J. said that to determine what services are caught by s. 8(a),
    it is necessary to examine the jurisprudence.  He then noted:

[58]
    According to Lamer C.J. [for the majority in
Berg
], [t]he 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]
    (p. 387).  It is, in my view, essential to such a determination that the nature
    of the service is the context within which the relationship must be considered.
    It is important to avoid an analysis that inquires into the nature of the
    relationship first and in a manner abstracted from the services in question.
    Such analysis could lead to a finding that an intimate and apparently private
    organization maintained only private relationships, when in fact, it did offer
    some services to the public.  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
.                                                                [Emphasis
    added.]

[38]

Both the Tribunal and the appellants, with reference to La Forest J.s
    approach underlined above, fail to do more than identify the service in question.
    Both Lamer C.J. and La Forest J. said, using different words, that the analysis
    must go further and determine if the nature of the service gives rise to
    a public relationship between the service provider and the service user.

[39]

A review of the paragraphs in the decision of the Tribunal relied upon
    by the appellants illustrates my point:

[62]
    As noted by the respondents, the majority of the Court in
Gould
found
    that it was not necessary to take this step in order to decide the case (at
    para. 1).  However, this portion of La Forest J.'s approach is consistent
    with the decision of the Court in
Berg
, where the Court stated, "[t]he
    crux of the determination in these appeals is the nature of the services themselves
    and the relationship they establish" (at para. 66).

[63]
    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.

[64]
    In this case, the service at issue is not membership in the Golf Club, but
    rather access to lounge and food and beverage services within the Golf Club,
    and specifically, access to the Bullpen.  Thus, the service at issue in this
    case is very different than the service described in
Gould
.  Access
    to, and the service of food and drink in, a lounge is a commercial function.
     In the normal course, the service of food and drink in exchange for money,
    such as in a restaurant or bar, would be a service customarily available to
    the public.  The factor which distinguishes this case, and the aspect relied
    on by the respondents, is the nature of the Golf Club. However, as noted by
    the Supreme Court in
Berg
and
Gould
, it is the nature of the
    service, rather than the nature of the enterprise offering the service, which
    is the focus of the analysis.

[40]

The Tribunals error was relied on by the appellants who, in their
    factum, state: The services in this case are of a commercial nature, that
    is, the supply of food and beverages.  As such, the services are of a public
    nature.  Mr. Macintosh replied to this as follows: Simply because both the
    Golf Club and The Keg serve steak does not make the Golf Club or the relationship
    between it and its users public.

[41]

The appellants then extended their error by asserting that Boyd J.
    wrongly conflated the nature of the club with the nature of the services
    it provides.  To illustrate this point Ms. Basham referred to several paragraphs
    in the reasons of Boyd J., commencing with paragraph 44 where she said that
    the Tribunal had taken the words of La Forest J. in
Gould
out
    of context.  Boyd J. continued:

[45]
    I reject the Tribunal Members interpretation of this passage [paragraph 55
    of the reasons of La Forest J. in
Gould
] and her conclusion that it
    directs an analysis focussed simply [I read simply to mean exclusively]
    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 [paragraph] 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
. ([paragraph] 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-providers (the
    Golf Clubs) 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 Mens 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.

[42]

Boyd J. then canvassed the Tribunals reasoning with respect to the
    private selection process, dealt with the law relative thereto, and came
    to her conclusions.  In my opinion there was no error of conflation.  What
    she did was consider each of the segments of the test that had to be applied
    and found that the Tribunal had failed to consider the full test.  In my opinion
    Boyd J., in her analysis of the circumstances of the case, followed the dictates
    of the Supreme Court of Canada in
Berg
.

ii) Intention of the legislature

[43]

The Chief Justice in
Berg
,

commencing at
    page 370, dealt with interpreting human rights legislation and discerning
    the intention of the legislature.  He said that some relationships will
    not be subject to scrutiny under human rights legislation.  There can be
    no doubt that by the wording of section 8 of the
Code
the legislature
    demonstrated an intention to restrict its application to services or facilities
    provided in the public sphere.

[44]

The intention of the legislature, in the submission of the appellants,
    was to exclude from the
Code
only highly personal or intimate
    relationships such as are found in private book clubs.  Some paragraphs from
    the appellants factum are illustrative of the interpretation that they would
    put upon the legislation:

[45]
     By focusing on the Club simply as a private club, the Chambers Judge disregarded
    the importance of the degree of intimacy of the relationship in which the
    services are provided and that the only affiliations escaping characterization
    as public should be highly personal relationships [citing LHeureux-Dubé
    J. dissenting in
Gould
at paragraphs 154, 159].

[46]
    On a broad and liberal interpretation of s. 8(1), with the purposes of the
Code
in mind, it must be concluded that what the legislature intended
    to exclude from the scrutiny of the
Code
are highly personal or intimate
    relationships such as a book club comprised of friends and acquaintances.
    If the legislature had intended to exclude organizations like the Club it
    could have included an exemption in the
Code
.

. . .

[70]
    In
Gould
, LHeureux-Dubé J. concluded that the only affiliations escaping
    characterization as public should be highly personal relationships having
    the features outlined in [
Roberts v. United States Jaycees
, 468 U.S. 609 (1984)
], and emphasized that

the expression private selection process does not simply refer to
    eligibility criteria or a discretion on the part of the service-provider.
     Neither of these elements would remove a relationship from the public sphere:
Berg, supra
, at pp. 383 and 390-392.  Rather, what is required is a
    process of personal selection akin to the manner in which one chooses ones
    friends.  Viewed in this way, the sphere of private relationships is very
    narrow. [at para. 159]

[71]
    For selectivity to be relevant at all to the analysis, it must be based on
    personal values and personal preferences, that is, criteria that are appropriate
    to forming a friendship.  Not just any degree or type of selectivity will
    create a relationship that escapes the reach of the
Code
.

[45]

The appellants argue that the legislative intention was to exclude
    only groups of intimate friends from the scope of the legislation.  It is
    correct that groups of intimate friends were meant to be excluded from the
    legislation, but it does not follow that the legislative intention was to
    include all associations that go beyond a group of intimate friends, or that
    go beyond the characteristics of highly personal or intimate relationships
    such as a book club.

[46]

Section 14 of the
Code
is of assistance in considering
    legislative intent:

14
     A trade union, employers organization or occupational association must not

(a) exclude any person from membership,

(b) expel or suspend any member, or

(c) discriminate against any person or member

because
    of the race, colour, ancestry, place of origin, political belief, religion,
    marital status, family status, physical or mental disability, sex, sexual
    orientation or age of that person or member, or because that person or member
    has been convicted of a criminal or summary conviction offence that is unrelated
    to the membership or intended membership.

If organizations are seen as ranging across a spectrum
    from the purely economic to the purely social, trade unions, employers organizations
    and occupational associations are at the economic end.  The legislature intended
    them to fall within the scope of the legislation.  There are then a large
    number of combined economic/social organizations, and finally, at the other
    end, purely social religious and cultural organizations.

[47]

Without putting too fine a point on it, private golf clubs must rank
    at the social end of the spectrum.  Boyd J. said: The Golf Club is a golf
    and social club.  The objects are to operate a golf course and to promote
    golf and other sports.  The legislature addressed membership as a ground
    of discrimination in section 14 of the
Code
, and it chose not
    to venture even to the middle of the spectrum.  In my opinion the legislative
    intent did not encompass the circumstances present in the case at bar.

Conclusion

[48]

The underlying premise of the appellants argument is that discrimination
    is generally repugnant.  More particularly, the appellants challenge the denial
    of service to women in the Mens Lounge at Marine Drive Golf Club.  Why Marine
    Drive Golf Club considers it necessary, or even acceptable, to cordon off
    a prime part of the clubhouse and restrict its use to one gender is worthy
    of debate.  However, what is before this Court is not a debate.  The issue
    is whether such an action is subject to section 8 of the
Code
.

[49]

The Golf Club and its members have come together as a result of a private
    selection process based on attributes personal to the members.  Thus, the
    nature of the service-provider and the service-user indicate a private, not
    a public, relationship.  T
he Golf Club
is closer
    to the purely social rather than purely economic end of the organizational
    spectrum.  It is entitled to discriminate at the initial stage of admission
    to its organization.  Since the
Code
does not apply at the initial
    stage of admission to membership, it does not apply within the private organization.

[50]

While the
Code
does not specifically exempt private
    enterprises, it provides that there shall not be discrimination with respect
    to a service or facility customarily available to the public.  This forms
    the basis for the concentration in the case at bar on the definitions of public
    and private.  In my opinion, as I have attempted to illustrate, the Mens
    Lounge facility and services therein that are not available to female members
    are not customarily available to the public within the meaning of that phrase
    as found in section 8 of the
Code
.

[51]

The Golf Club to which the appellants sought and attained membership
    has a selection process, a dress code, and a high financial obligation to
    its members.  The entire structure of the Golf Club, as revealed in the evidence,
    forecloses any suggestion that it is a public club, but rather illustrates
    that the Golf Club is private and that the relationship between the Golf
    Club and its users is private.  The appellants joined the Golf Club knowing
    that it considered itself private within any definition of that concept.
    All members - male and female - knew upon joining that there were rules restricting
    access to certain areas of the clubhouse based on their genders.  They joined
    accepting the benefits of membership and, in my view, subjecting themselves
    to the Golf Clubs restrictions.

[52]

Mr. Macintosh referred to remarks by Lord Diplock in
Dockers
.
    He said that the categories of non-member persons admitted to the Mens Lounge
    are limited to male guests of a Club members immediate family.  He no doubt
    had in mind the following comments of Lord Diplock at page 598:

in the field of domestic or social intercourse differentiation in treatment
    of individuals is unavoidable.  No one has room to invite everyone to dinner.
    The law cannot dictate ones choice of friends.  The legal process is not
    adequate to analyse the multifarious and inscrutable reasons why a Dr. Fell
    remains unloved.

Thus,
    in discouraging the intrusion of coercion by legal process in the fields of
    domestic or social intercourse, the principle of effectiveness joins force
    with the broader principle of freedom to order ones private life as one chooses.
    Conformably with this the
Race Relations Act 1968
does not attempt
    to proscribe by legal sanctions all forms of discrimination against another
    person because of his colour, race or ethnic or national origins, but only
    discrimination which takes place in particular situations

[53]

In the case at bar the particular situation pertains to the Mens
    Lounge facility and the services carried out therein at Marine Drive Golf
    Club.  In my opinion the
Code
does not attempt to proscribe
    legal sanctions on discrimination that denies access to, and service within,
    the Mens Lounge to a class of persons within the membership of the private
    Golf Club.

[54]

The appellants case strains to interpret the
Code
in
    a manner that would make it applicable to private places and matters over
    which there is no basis to suggest legislative intention.  The appellants
    would have this Court adopt La Forest J.s reasoning in
Gould
as an extension of
Berg
, but the majority in
Gould
did
    not adopt La Forest J.s reasoning and held that some relationships will
    not be subject to scrutiny under human rights legislation.  The relationship
    in the case at bar is, in my opinion, such a relationship.

[55]

I adopt the findings of Boyd J. at paragraph 54 of her reasons:

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.

[56]

I would dismiss the appeal.

The Honourable Mr. Justice Thackray

I
    Agree:

The
    Honourable Chief Justice Finch

I
    Agree:

The Honourable Madam Justice Rowles


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

Prince
          v. Nelson,

2007
          BCCA 583

Date: 20070111

Docket: CA034633

Between:

Arnoux
    Prince

Appellant

(
Plaintiff
)

And

Prince
    Rogers Nelson

Respondent

(
Defendant
)

Before:

The
          Honourable Madam Justice Rowles

(In
          Chambers)

Oral Reasons for Judgment

Appellant appearing In Person

No One appearing on behalf of the Respondent

Place
          and Date:

Vancouver, British Columbia

11 January 2007

[1]

ROWLES, J.A.
: This is an application brought for indigent status
    in an appeal.

[2]

I understand the background to be that an application was made before
    a Master to have the statement of claim filed by the appellant struck under
    Rule 19(24) on the basis that the claim disclosed no cause of action.

[3]

An appeal was brought from the order of the Master striking the statement
    of claim and that appeal came before Mr. Justice Myers.  Mr. Justice Myers
    dismissed the appeal saying that, in his view, the Master had not made an
    error of law.  In his reasons, Mr. Justice Myers said this:

[3]
    The statement of claim refers to book written by the plaintiff called
The
    Soul Exposed
and to television appearances by the defendant, who is the
    famous singer and songwriter known as Prince.

[4]
    The statement of claim refers to Prince and others having commented on the
    book and to white pigeons flying in many episodes.  It claims $18.5 million
    in damages for 2005 and $21 million in damages for 2004, but does not say
    for what.  The statement of claim does not allege, or lay any factual background
    for a claim in passing off, breach of privacy, breach of copyright, defamation,
    or any other cause of action that I can conceive of as relating to the bare
    facts that have been pleaded.

[5]
    Accordingly the appeal is dismissed.

[4]

It appears to me that an appeal from Mr. Justice Myers order would
    be bound to fail and, for that reason, I am not prepared to grant an order
    for indigent status.

The Honourable Madam Justice Rowles


COURT
    OF APPEAL FOR BRITISH COLUMBIA

Citation:

R.
          v. Berikoff,

2007
          BCCA 31

Date: 20070111

Docket: CA027463

Between:

Regina

Respondent

And

Ronald
    Carl Berikoff

Appellant

Before:

The
          Honourable Chief Justice Finch

The
          Honourable Mr. Justice Donald

The
          Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

R.A.
          Ross

Counsel for the Appellant

S.J.
          Brown

Counsel for the (Crown) Respondent

Place
          and Date:

Vancouver, British Columbia

11 January 2007

[1]

FINCH, C.J.B.C.
: This is an appeal from a judgment of the
    B.C. Supreme Court pronounced 29 June 2000 declaring Mr. Berikoff to be a
    dangerous offender, and imposing a sentence of detention for an indeterminate
    term.

[2]

The appellant advanced two grounds of appeal initially.  The first
    ground was that the learned sentencing judge failed to apply the correct burden
    of proof and evidentiary standard in determining that the appellant was a
    dangerous offender.  This ground of appeal has now been abandoned.

[3]

The second ground of appeal is based upon the appellants application
    to adduce fresh evidence.  Counsel asserts that the fresh evidence would reasonably
    have affected the sentencing judges decision to designate the appellant a
    dangerous offender.  The appellant seeks an order allowing the appeal, declaring
    that the appellant is not a dangerous offender and sentencing him for the
    predicate offences.  Alternatively, the appellant seeks an order that he is
    not a dangerous offender, but is rather to be declared a long-term offender.
    In the further alternative, the appellant seeks a new trial.

[4]

The proposed fresh evidence includes a psychiatric evaluation prepared
    by Dr. Shabehram Lohrasbe dated 26 September 2005, a psychiatric report from
    Dr. Rakesh Lamba dated 5 September 2004, and a program review from the Regional
    Treatment Centre dated 28 September 2004.

[5]

It is Dr. Lohrasbes opinion that the appellants situation has changed
    significantly since his detention as a dangerous offender, and that he now
    presents a greatly reduced risk of future acts of violence.

[6]

The Crown opposes the application to adduce fresh evidence.  It submits
    that the proposed fresh evidence could not reasonably have affected the sentencing
    judges conclusion that the appellant was a dangerous offender within the
    meaning of s. 753(1)(a)(i), s. 753(1)(a)(ii) and s. 753(1)(b) of the
Criminal
    Code
and could not support the imposition of straight determinate
    sentence, followed by a long term supervision order.  In the event that the
    fresh evidence were to be admitted the Crown also submits a body of further
    evidence to be considered along with it.

[7]

The Crown contends that any evaluation of the risk that the appellant
    now presents, and how that risk should be managed, should be made by the parole
    authorities.  The appellants next review by the Parole Board will be in April
    2007, and the Crown says the Board will be in the best position to evaluate
    the appellants progress in detention, his participation in programs, and
    whether he has developed true insight into his history and condition.

[8]

There are therefore potentially two issues to be addressed on this
    appeal.  The first is whether the proposed fresh evidence meets the test for
    admissibility under s. 687 of the
Criminal Code
on an appeal
    against sentence.  The second is whether, in any event, the Court should refuse
    to exercise its discretion to admit the evidence, and defer to the parole
    authorities to review the appellants position.

[9]

On 2 October 2003 while the appellant was in detention at Mountain
    Institute, he was involved in a hostage taking incident.  As a result he was
    transferred to the Regional Treatment Centre where he was certified under
    the
Mental Health Act
, and began receiving anti-psychotic medication.

[10]

Dr. Lambas report of 5 September 2004 addressed two issues, first
    the appellants mental state at the time of instructing previous counsel to
    abandon his sentence appeal, and second, the appellants mental state at the
    time of the hostage taking incident on 2 October 2003.  Dr. Lamba diagnosed
    the appellant as paranoid schizophrenic.

[11]

A charge of unlawful confinement and others was laid as a result of
    the hostage taking incident.  It went before a Provincial Court judge and
    on 23 November 2004 the court concluded that the appellant was not criminally
    responsible by reason of mental disorder.

[12]

Following that verdict, the appellant was transferred to the Forensic
    Psychiatric Hospital in Port Coquitlam and became subject to the continuous
    supervision of the Review Board.  In early 2005 he was transferred back to
    the Regional Treatment Centre.  He is subject to the direction of the Review
    Board indefinitely.

[13]

Dr. Lohrasbes report of 26 September 2005 confirms the diagnosis of
    paranoid schizophrenia.  He says this under the heading of Risk Management:

Although
    risk management blends seamlessly with risk assessment in actual clinical
    practice, it is useful to consider it separately as a concept.  Risk management
    involves both the application of
external
monitoring and controls to
    unwanted behaviour as well as supporting and strengthening the
internal
controls of the offender.

With
    Mr. Berikoff, future risk management at the community (these strategies are
    already in effect at the present time, with the last recommendation likely
    to be implemented soon) will ideally consist of the following:

1.         Ongoing Psychoeducation; although he has developed
    substantial insight, it needs to be continuously built on and reinforced.

2.         Ongoing monitoring of his mental state; so
    that any deterioration can be quickly acted on.

3.         Continuous monitoring of treatment compliance
    and response to medications; this is now clearly recognized as a key component
    to his risk management.

4.         Monitoring of any relapse into substance abuse;
    which would obviously be a clear signal of a relapse into prior attitudes
    and behaviours.

5.         Supportive psychotherapy; aimed at strengthening
    his commitments to his mental health, the continuing development of prosocial
    attitudes, and recognition of danger signs within himself.

6.         Completion of a sex offender treatment program;
    to build on the changes he has made in his attitudes towards women, sexuality,
    and his prior victims.

It
    is worthwhile noting that Mr. Berikoff is not an individual who would be difficult
    to monitor.  His file is replete with illustrations of his in-your-face
    communicative style.  He is not psychologically sophisticated and would have
    difficulty hiding his true feelings, attitudes, and behaviours.  Any decline
    in mental state is likely to be picked up quickly by those charged with his
    supervision.  This perspective is illustrated by a comment from Dr. Hunter
    in his report of 2004/09/21.
Along with other clinical staff here I feel
    confident in our abilities to recognize any deterioration in Mr. Berikoffs
    mental status.
Risk management relies to a heavy extent on the transparency
    of the offender and in my opinion it will be relatively straightforward to
    monitor Mr. Berikoffs progress or decline in the foreseeable future.

In particular, it can be anticipated that monitoring two key risk factors
    will be viable and tangible.  Firstly, his compliance with prescribed medications
    can be determined through blood levels.  Additionally, regular mental state
    examinations are likely to reveal any non-compliance, as his paranoia announces
    itself readily, and will reemerge quickly if he discontinues his medications.
    Secondly, compliance with an abstinence (from intoxicants) condition can be
    monitored through unexpected home visits, curfews, and urine sampling, both
    randomly and if clinically indicated.

Overall, my view is that risk management within the community with Berikoff
    is quite feasible in the near future.

[14]

In Dr. Lohrasbes summary he says:

Mr.
    Berikoff was once a high-risk violent offender who committed numerous acts
    of violence, including sexual violence.  At the time of his designation as
    a dangerous offender, there was little reason to believe that change could
    reasonably be expected through available treatment interventions.  The situation
    has changed significantly, principally through the combination of the identification
    and subsequent treatment of a major mental disorder, Paranoid Schizophrenia,
    and the delivery of intense and continuous psychosocial, educative, and cognitively
    based treatment programs.

Although
    there is no cure at present for his major mental disorder, control of its
    symptoms is feasible, and routinely carried out in the community.  Mr. Berikoff
    has cooperated with treatment after a prolonged period of disagreement with
    the diagnosis and subsequent non-compliance with treatment.  Along with treatment
    for paranoid schizophrenia, there has been a steady improvement in behavioural
    control.  Additionally, likely as a side effect to his medications, there
    has been a decline in his sexual drive.

Although
    it cannot be said that the symptoms of Paranoid Schizophrenia
caused
his past acts of violence, including sexual violence, it is highly likely
    that he suffered from pre-psychotic symptoms, or prodromal Schizophrenia,
    wherein suspiciousness, jealousy, easy reactivity, hostility, and violence
    were indirectly promoted, especially when he was intoxicated.  In my view,
    continuous treatment of his paranoid schizophrenia is, in itself, likely to
    drastically reduce the risk for future acts of violence.  Put together with
    other risk management options, outlined earlier, it is my view that the risk
    that he poses can be managed with available resources within the community
    in the relatively near future.

Although postulating a time frame within which further treatment interventions
    can be implemented is a little artificial, I am hopeful that after he completes
    a second course of the sex offender treatment program at RTC, he can be managed
    through a careful release program.  I am of course mindful of the fact that
    Mr. Berikoff is a dual status offender, having been found Not Criminally
    Responsible by reason of Mental Disorder following charges resulting from
    the hostage taking of a correctional officer, and is therefore also under
    the jurisdiction of the B.C. Review Board.  If, as expected, he completes
    the Odyssey (sex offender treatment) program for the second time in 2006 or
    2007, I am optimistic that his treatment, monitoring, and release plan can
    be implemented through Forensic Psychiatric Services and supervised by the
    B.C. Review Board, as is typically the case with individuals with a major
    mental disorder.

[15]

In my respectful opinion, the proposed fresh evidence taken as a whole
    could not reasonably be expected to have affected the result of the sentencing
    hearing.  The essence of Dr. Lohrasbes opinion is an expression of hope or
    optimism that in the carefully controlled environment he describes the appellants
    management in the community would be feasible at some time in the future.

[16]

Dr. Lohrasbes recommendations include continuous monitoring of treatment
    compliance and response to medications as well as unexpected home visits and
    curfews to enforce drug and alcohol abstention.  Those recommendations tacitly
    acknowledge that the appellant is unlikely to comply with such conditions.
    They are essentially an expression of hope that with constant and vigilant
    supervision nothing untoward will happen.  It is, in my view, unrealistic
    to think that continuous monitoring take place in the community.  That is
    the level of supervision he presently receives in a maximum security psychiatric
    hospital.

[17]

Dr. Lohrasbe says the appellant must maintain medication indefinitely
    and abstain from drug and alcohol abuse for the rest of his life.  He does
    not predict when if ever the appellant will cease to need the high level of
    supervision presently necessary to maintain compliance.

[18]

It is evident in my view therefore that had this evidence been before
    the judge at the time of sentencing the result would have been the same.

[19]

I would not admit the fresh evidence for this reason.

[20]

I also agree with the Crowns submission that the proper forum for
    a review of the appellants situation is before the Parole Board.

[21]

I would dismiss the application to adduce fresh evidence and I would
    dismiss the appeal.

[22]

DONALD, J.A.
: I agree.

[23]

CHIASSON, J.A.
: I agree.

[24]

FINCH, C.J.B.C.
: The appeal is dismissed.

The Honourable Chief Justice Finch