COURT OF APPEAL FOR BRITISH COLUMBIA
Marine Drive Golf Club v. Buntain et al and B.C. Human Rights Tribunal,
2007 BCCA 17
Marine Drive Golf Club
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
British Columbia Human Rights Tribunal
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:
 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 Tribunal’s reasons are reported at 2005 BCHRT 119,  B.C.H.R.T.D. No. 119 (Q.L.). Madam Justice Boyd’s reasons are reported at 2005 BCSC 1434, 50 B.C.L.R. (4th) 167.
 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.
 Boyd J. included the following useful background in her reasons:
 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.
 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.
 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 Men’s Lounge), and a “mixed-grill” for use by both men and women members. The complaint before the Tribunal centers on the Men’s Lounge (also known as the “Bullpen”).
 In recounting the history of the Men’s Lounge, the Member Designate noted at ¶ 3-5 of her Reasons:
Para 3: The complainants alleged that, prior to June 1, 2004, the men’s 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 men’s and women’s 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.
 The respondents allege that by not allowing women any access to the Men’s 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.
 One of the contentious issues at the hearing of the Golf Club’s preliminary objection concerned the matter of the formality and intensity of the “selection process” for membership.
 The Golf Club submitted, relying on the Gardiner affidavit, that the matter of application for membership was strictly controlled by the Golf Club’s 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 applicant’s 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.
 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 Member’s 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”.
 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)
 The Tribunal Member’s 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 Men’s 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 Club’s 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.
 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)
 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.
 In her reasons for judgment Boyd J. defined the issues as follows:
 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.
 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 Men’s 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.
 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.
 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 legislation’s equality aims and goals. Further, that as stated in Zurich Insurance Co. v. Ontario (Human Rights Commission),  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.”
 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 Men’s 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,  2 S.C.R. 353 and Gould v. Yukon Order of Pioneers,  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.”
 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.”
 At paragraphs 49 to 52 Boyd J. considered Charter v. Race Relations Board,  1 All E.R. 512 (H.L.) and Dockers’ Labour Club v. Race Relations Board,  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’.”
 Boyd J. concluded her reasons for judgment as follows:
 Thus, I reject the Tribunal Member’s apparent conclusion that the Golf Club’s 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)
 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 Men’s 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 person’s UDG privileges at any time.
 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.
 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
 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 Club’s 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 Club’s services and facilities.
Further, the Chambers Judge erred when she substituted her own conclusions for the Tribunal’s 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
 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.
 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 Berg’s 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.
 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.
 The starting point, in Ms. Basham’s 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:
 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.
 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.
 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.
 Ms. Basham cited the following comments by L’Heureux-Dubé (in dissent) from Gould:
 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 Board’s conclusions, this Court must not intervene unless the Board’s 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 Men’s Lounge, namely being of the male gender.
 Ms. Basham referred to the following from the minority concurring reasons of La Forest J. in Gould:
 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.
 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.
 Mr. Macintosh submitted that the issue is not whether it is discriminatory to exclude females from the Men’s Lounge. He agreed that such exclusion is discriminatory. He submitted, however, that the issue is whether the Men’s Lounge at the Golf Club is “customarily available to the public.” He pointed out that the only people allowed in the Men’s 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.
 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 Men’s Lounge is “customarily available to the public” because it has a food and beverage service, a service that outside of the Men’s 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.”
 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 Men’s Lounge.”
 Mr. Macintosh referred to the reasons for judgment of Boyd J. at paragraphs 10 to 13 and noted that she had quoted from the Tribunal’s 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 Club’s direct or delegated formalized selection process.
Standard of Review
 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,  2 S.C.R. 235 at paragraph 8.
 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.
 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.
 In the case at bar the parties agree that the Men’s 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
 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.
 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.”
 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.
 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.
 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.
 The Chief Justice reiterated the Court’s 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.
 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.
 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 School’s 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
 Mr. Justice Iacobucci, writing for the majority, stated at paragraph 11 that it was “evident that the Order’s 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.”
 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.
i) “Customarily available to the public”
 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.
 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 men’s 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:
 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.]
 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.”
 A review of the paragraphs in the decision of the Tribunal relied upon by the appellants illustrates my point:
 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).
 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.
 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.
 The Tribunal’s 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’.”
 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:
 I reject the Tribunal Member’s 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)
 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-provider’s (the Golf Club’s) 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 Men’s 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.
 Boyd J. then canvassed the Tribunal’s 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
 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.
 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:
 … 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 L’Heureux-Dubé J. dissenting in Gould at paragraphs 154, 159].
 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.
. . .
 In Gould, L’Heureux-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 one’s friends. Viewed in this way, the sphere of private relationships is very narrow. [at para. 159]
 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.
 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.
 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.
 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.
 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 Men’s 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.
 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. The 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.
 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 Men’s 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.
 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 Club’s restrictions.
 Mr. Macintosh referred to remarks by Lord Diplock in Dockers. He said that the categories of non-member persons admitted to the Men’s Lounge are limited to male “guests of a Club member’s 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 one’s 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 one’s 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’…
 In the case at bar the “particular situation” pertains to the Men’s 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 Men’s Lounge to a class of persons within the membership of the private Golf Club.
 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.
 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.
 I would dismiss the appeal.
“The Honourable Mr. Justice Thackray”
“The Honourable Chief Justice Finch”
“The Honourable Madam Justice Rowles”