Difference between revisions of "BC Human Rights Code (6:III)"

Section 8 states that any accommodation, service, or facility customarily available to the public may not be denied to an individual for reasons based on that person’s race, colour, ancestry, place of origin, religion, marital status, physical or mental disability, gender, or sexual orientation.  

''British Columbia Council of Human Rights v Berg'', [1993] 2 SCR 353 at para 10 provides the definition of “customarily available to the public”. A service is customarily available to the public if the nature of the relationship is public. Look at the relationship between the facility and the victim and the nature of the service itself. The court found that a university is its own public and that the relationships between students and professors, who present the public “face” of the university, are public in this context. Please refer to ''HMTQ v McGrath'', 2009 BCSC 180 at para 89-93 for a more recent case that cites the definition of what is “customarily available to the public” following Berg.  

While there is no enumerated list of relationships that count as public, locales such as pubs, night clubs, hotels, theatres, transportation  services, education facilities, insurance, medical treatment in hospitals, management services in condominiums, and participation in sporting events have all been found to entail public relationships. Licensing services and facilities may also involve public relationships; for  example, discrimination prohibited by s. 8 was ultimately found when the BC Motor Vehicle Branch maintained a blanket refusal to issue drivers licenses to those with certain visual impairments regardless of actual driving ability. Please refer to ''BC (Superintendent of Motor Vehicles) v BC (Council of Human Rights)'', [1999] 3 SCR 868 (“Grimmer”) who applied the three-part "Meiorin" test. For a recent case that applied the three-part “Meiorin” test, please see Moore v British Columbia (Education) 2012 SCC 61, a Supreme Court of Canada case about a School district cancelling special education program requiring a dyslexic student to enroll in specialized private school and questioned whether the school district discriminated against the student by failing to provide necessary remediation.

The three-part “Meiorin” test is:

1. “Identify the general purpose of the impugned standard and determine whether it is rationally connected to the performance of the job.”

2. “Demonstrate that the employer adopted the particular standard with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant.”

3. “Demonstrate that the impugned standard is reasonably necessary for the employer to accomplish its purpose, which by this point has been demonstrated, to be rationally connected to the performance of the job.”

''British Columbia (Public Service Employee Relations Commission) v. BCGSEU'', [1999] 3 SCR 3, para 57-68.

'''Exceptions:''' There are a number of circumstances where discrimination is permitted, if it can be shown to be supported by “''bona fide'' and reasonable justification” (BFRJ) (as per the wording of s 8(1)). For the most authoritative perspective, see the “Grismer” case (cited above), which applied the three-part “Meiorin” test to services: ''British Columbia (Public Service Employee Relations Commission) v British Columbia Government Service Employees' Union'' [1999] 3 S.C.R. 3, a Supreme Court of Canada case that created a unified test to determine if a violation of human rights legislation can be justified as a ''bona fide'' occupational requirement(BFOR).