Human Rights Act Applies to University

University of British Columbia v. Berg (1993), 18 C.H.R.R. D/310 (S.C.C.)

The Supreme Court of Canada restores the decision of the B.C. Council of Human Rights and rules that the University of British Columbia discriminated against a student, Janice Berg, because of her mental disability when it refused her a rating sheet required for an application for a dietician's internship program and a key to university facilities.

Janice Berg was a student with an above-average academic record in the Master's program at the University of British Columbia's School of Family and Nutritional Sciences in 1979. She experienced recurring depression and one day in 1981 she wrote "I am dead" on the mirror in the School's washroom. Later the same day she was frightened by R.C.M.P. and security personnel in the hallway and attempted to jump through a plate glass window.

When the School moved to new premises in 1982 Ms. Berg was denied a key to the building, although graduate students were regularly issued keys so that they could use computer and research facilities after hours. Ms. Berg was also denied a rating sheet required for an application for a hospital internship.

The B.C. Council of Human Rights found that Ms. Berg had been discriminated against after the incident in 1981 and that the refusals to issue her a key and a rating sheet were due to her mental disability. The Council found that Ms. Berg had been discriminated against with respect to a service customarily available to the public, contrary to s. 3 of the B.C. Human Rights Act.

The University of British Columbia appealed this decision and the B.C. Supreme Court set it aside, ruling that the key and the rating sheet could not be considered services which were customarily available to the public. The B.C. Court of Appeal affirmed the decision of the B.C.S.C.

Chief Justice Lamer, writing for the majority, finds that the question of what constitutes a service customarily available to the public is a general question of law with wide social implications. No deference to the B.C. Council of Human Rights’ expertise is required when a general question of law is at issue, though deference is due to the Council's factual findings regarding what is customarily available to the students in the Faculty of Family and Nutritional Sciences.

The majority of the Court rejects the distinction made by the respondent University and the lower courts between admission to the University's services and discrimination with respect to services to those already admitted. The University of British Columbia argued, and the lower courts agreed, that s. 3 of the B.C. Human Rights Act applied to admission to the University, but not to services provided to students once admitted. The Supreme Court of Canada finds that since the Charter does not apply to universities, and no other recourse is available, this interpretation would leave students once enroled in university with no protection from discrimination. This would allow institutions to admit students without discrimination and then deny them the accommodations, services and facilities they require to make their admission meaningful.

The Court rejects the argument that services do not fall within the provisions of s. 3 of the Act unless they are available to all members of the public. Focussing on a quantitative analysis is not satisfactory when any subset of the public as a whole loses its identity as "the public" and consequently can be discriminated against. No service is available to every member of the public and therefore this quantitative analysis robs human rights protections of their impact. Rather, every service has its own public and once that public has been defined by eligibility criteria, the B.C. Human Rights Act prohibits discrimination within that public.

The Court finds that rather than focussing on a quantitative analysis or numerical approach to the meaning of public, it is more fruitful to adopt a relational approach, analyzing the relationship between the offerer of the service and the service user. The Court concludes in this case that the key and the rating sheet were incidents of the public relationship between the School and its representatives and the student, Janice Berg.

The Court accepts the Council's findings of fact that keys to the facilities were customarily provided to graduate students, that rating sheets were also customarily issued to students, and that at least one of the reasons for Ms. Berg's being denied these services was her mental disability.

Additionally, the Court rules that where the service provider has discretion with respect to the granting or withholding of a service, or where a personal evaluation is involved, the service provider is not insulated from human rights scrutiny. Discretion must be exercised in a non-discriminatory way and personal evaluations must also be non-discriminatory.

The Court rules that Ms. Berg was discriminated against with respect to a service customarily available to the public because of a mental disability. The decision of the B.C. Council of Human Rights is restored and costs against the University of British Columbia are awarded to Ms. Berg.

In a dissenting opinion, Major J. finds that the B.C. Human Rights Act does not apply to the internal operation of a university regarding services not customarily available to the public. The discrimination exercised by members of the University in refusing Ms. Berg a key and of professors refusing to fill out a rating sheet are matters unique to the University and not thought of as customarily available to the public. If a student is unfairly treated in respect of matters such as grades, hours of class, and length of terms, the remedy lies with the University not with the B.C. Council of Human Rights. Major J. finds that the Council had no jurisdiction to consider the issues complained of. He would dismiss the appeal.

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