Wednesday, June 22, 2016

The Alberta Court of Queen's Bench has determined that the Alberta Human Rights Act applies to condominiums

I have written on the topic of the Alberta Human Rights Act, RSA 2000, c A-25.5 before at:

Based on the recent decision of the Court of Queen's Bench in Condominium Corporation No 052 0580 v Alberta (Human Rights Commission) (the "Goldsack case") the Alberta Court of Queen's Bench has determined that the Alberta Human Rights Commission has jurisdiction to hear human rights complaints. 

My original blog was partly in response to a blog by Jenifer Koshan of the University of Calgary.  Ms. Koshan has blogged in response to the Goldsack decision and I thank her for her collegiality.  I will not exhaustively respond to the further comments of Ms. Koshan.  However, I can comment that the reasoning in the University of British Columbia v. Berg case is worthy of further study.

The Berg case was the core basis upon which the Court of Queen's Bench made its determination in the Goldsack case. I contemplate going forward that the tests identified in Berg may have application to complaints made to the Human Rights Commission in Alberta.  In this respect, and without limitation, whether the alleged accommodation, service or facility subject of a complaint satisfies the relational test.  I quote from the Supreme Court of Canada decision in Berg in this regard:

"This reasoning is directly applicable to any selection process used by the School in this case.  Eligibility criteria, as long as they are non-discriminatory, are a necessary part of most services, in that they ensure that the service reaches only its intended beneficiaries, its "public", thereby avoiding overuse and unnecessary depletion of scarce resources.  The benefits of such screening tools, however, should not come at the cost of excluding the protection of human rights legislation.

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.  But a quantitative approach still does not help to define what smaller segment of the entire population might suffice.  As long as the debate remains centred on the number of people who can use the service or facility, it will be very difficult to draw lines of inclusion and exclusion on a principled basis because of the varied nature of the services and facilities and service and facility providers which will fall to be considered.

Instead, in determining which activities of the School 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."


"The idea of defining a "client group" for a particular service or facility focuses the inquiry on the appropriate factors of the nature of the accommodation, service or facility and the relationship it establishes between the accommodation, service or facility provider and the accommodation, service or facility user, and avoids the anomalous results of a purely numerical approach to the definition of the public.  Under the relational approach, the "public" may turn out to contain a very large or very small number of people.

 For example, Canada or Quebec Pension Plan benefits are provided to millions of Canadians, yet not to the equally large number of Canadians who have not yet attained the qualifying age.  Can it be said that the provision of such benefits should not be free from discrimination because of the established eligibility criteria which ensure that such benefits reach only those who have paid into the fund and are intended to receive them?  Or consider a privately-owned centre which publicly advertises its services or facilities to treat a rare disease, from which only two or three people in Canada suffer.  Statistically speaking, 99.99 percent of the population cannot use this service or facility, since they do not suffer from the disease and are not part of its "public".  Yet could the legislature have intended that the institution could purport to serve the public, then extend its services or make its facilities available only to male applicants?"

The relational test may be applied in some circumstances to suggest that the accommodation, service or facility provided by a condominium corporation and subject of a complaint may not have a public.  The following words from the dissenting opinion from the Berg case express this sentiment and the concern with the decision of the majority in Berg:

"While I agree that human rights legislation should, where possible, be given a broad and purposive interpretation, that interpretation has to be realistic.  If s. 3 of the British Columbia Human Rights Act is given the reach sought in these appeals there would be, in effect, no services that would not fall within the scope of "services customarily available to the public"."

Notwithstanding this minority decision, the Berg decision has been referred to in almost 300 decisions.  As an example of the types of decisions which will have to be made a search of CanLii lead me to the 1996 Supreme Court of Canada decision in Gould v. Yukon Order of Pioneers.  The Court considered the Berg decision and concluded that the services provided by the Yukon Order of Pioneers were outside of the ambit of the subject Human Rights legislation. I think this may be a portent of the type of analysis which may have to be made by the Courts in Alberta  as a consequence of the Goldsack decision.