



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


