Case Comment: Mediated Agreement Between David Morrison, the City of Coquitlam, and the Deputy Chief Commissioner, British Columbia Human Rights Commission (1999)

Why This Case May Interest You

This case involved a settlement reached by the parties in a human rights complaint. The complaint alleged gender discrimination in municipal subsidies to sport and recreation facilities and programs. Although the case is not precedent-setting as a court case would be, the case has made it clear that complaints about municipal subsidies disproportionately favouring male-dominated sports over female-dominated sports will likely be heard by human rights tribunals. As a result, this case is significant to municipalities, school boards and sport organizations throughout Canada.

The Complaint

This matter involves a human rights complaint brought by David Morrison against the City of Coquitlam alleging that the way the City allocated financial resources to sport and recreation facilities discriminated against certain groups of persons on the basis of sex, contrary to Section 8(1) of the British Columbia Human Rights Code [R.S.B.C. 1996 c. 210]. Section 8(1) of the Code reads as follows:

"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 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."

Specifically, Mr. Morrison"s complaint alleged that the allocation of resources, either as direct financial subsidy or tax relief, by the City of Coquitlam to sport and recreation facilities and organizations, disproportionately benefited male-dominated sports over female-dominated sports.

At the time of the complaint, Mr. Morrison was a director of the Omega Gymnastics Club in the City of Coquitlam and had two daughters who participated in the programs of the Club. He also had a son who played minor hockey. Mr. Morrison brought this "class action" complaint on behalf of all members of the Omega Gymnastics Club and other young female gymnasts in the City of Coquitlam.

In order to succeed in a complaint under Section 8 of the Code, the Complainant (Mr. Morrison) must prove, on a balance of probabilities, that:

1. there is discrimination; and

2. the discrimination relates to one of the prohibited grounds in the Code, in this case, sex; and

3. the discrimination relates to a service which is customarily offered to the public.

Mediated Settlement

This complaint never went to a Tribunal Hearing and thus Mr. Morrison did not have to meet the onus of proof described above. Instead, the complaint was resolved through a mediated settlement pursuant to Section 29 of the Human Rights Code, which states:

"29(1) The commissioner of investigation and mediation, a human rights officer or any person appointed, engaged or retained under section 17 may assist the parties to a complaint, through mediation and other means, to achieve a settlement."

The Parties were able to reach agreement on a series of principles and initiatives that came to form the basis of a specific Gender Equity Program to be implemented by the City of Coquitlam as part of its sports and physical activity services.

Terms of any settlement reached through mediation under the Code cannot be made public without the consent of the Parties. In this case the Parties agreed to make the terms public and went one step further by having them approved by the Deputy Chief Commissioner as a special program in accordance with Section 42(3) of the Code, which reads as follows:

"42(3) The chief commissioner or deputy chief commissioner may approve any program or activity that has as its objective the amelioration of conditions of disadvantaged individuals or groups."

Approval of the Special Program was granted until March 31, 2009 (the date agreed upon by the Parties as the date by which the terms of the Gender Equity Program were to be fully implemented) unless withdrawn earlier by the Deputy Chief Commissioner.

The Special Program involved appointing a Gender Equity Committee and Gender Equity Co-ordinator for the City of Coquitlam and establishing a Gender Equity Fund, all specifically relating to gender equity issues in sport. Funding criteria for the allocation of monies and other subsidies from the Gender Equity Fund were established.

The long-term goal of the Special Program is to achieve gender equity in sport in the City of Ccquitlam. In the short-term the intention is to achieve a 50% reduction in gender inequities within five years and a corresponding increase in the participation of young girls in sport in the City of Coquitlam.

Issues on Which the Parties Agreed

In the preamble to their Agreement, the Parties recognized and agreed that females were under-represented in many sport and recreation activities. They acknowledged that a significant reason (although not the sole reason) for such under-representation could be attributed to gender inequities at all junctures of the sport continuum including "the management of sport facilities and marketing and the establishment and availability of sport programs".

The Parties went on to recognize the fiscal constraints which exist and which "both compound that difficulty [of gender inequities] and require creative solutions to effect appropriate change".

The Parties also agreed that the provision of subsidies to municipal sport and recreation facilities and sport organizations by the City of Coquitlam is a "service customarily available to the public" within the meaning of Section 8(1) of the British Columbia Human Rights Code.

Scope of Application of the Settlement

The complaint in this matter was resolved by way of a mediated settlement. There was therefore no decision of the Human Rights Tribunal with regard to whether or not discrimination had in fact taken place. The mediator explicitly commented in the transcript of the formal terms of settlement that he "[does] not believe it can be said (without a hearing and a finding of fact by the Tribunal) that inequities do exist". Although two of the Parties (David Morrison and the City of Coquitlam) acknowledged certain "past systemic inequities", this was a voluntary settlement between the Parties without an actual finding of discrimination on a prohibited ground.

To put this settlement, and the legislation under which the complaint was brought, into perspective, the Code is not intended to be punitive in nature but ameliorative and remedial. In other words, where possible, solutions and settlement agreements are preferable to the adversarial process of a Tribunal hearing. Where a solution to a complaint is found without the need for a hearing, it is binding only on those parties involved in that specific complaint.

The scope of application of the mediated settlement and subsequent Special Program approved by the Deputy Chief Commissioner is thus limited to the Parties who were part of the settlement. Specifically, it is binding only on the City of Coquitlam. Should another group or individual bring a similar complaint, it would be necessary for them to meet the onus of proving, on a balance of probabilities, that discrimination on a prohibited ground took place. Or alternatively, the party against whom such a complaint were made might be prepared to accept the underlying premise of the complaint and enter into a settlement agreement as did the City of Coquitlam.

In this specific case, the City of Coquitlam developed a research methodology which they used to analyze their own situation. Based on that research, the City of Coquitlam was satisfied that girls were adversely affected by the subsidy policy of the City. The Deputy Chief Commissioner, who was a party to the mediation process and eventual settlement, took the position that the settlement agreement "constitutes an appropriate remedial means for eliminating any systemic barriers to female participation in sport [in the City of Coquitlam], including participation by young female gymnasts".

It is clear that the settlement relates only to the City of Coquitlam in the provision of its sport services, although the broader implications for the participation of women and girls in sport are acknowledged. It is partly for this reason that the Parties agreed to have the final mediated settlement, and the complete text of the terms of such settlement, made public.

Discrimination on Prohibited Ground

As noted earlier, it was not necessary in this case for the Complainant to prove discrimination on a prohibited ground as the Parties agreed to a mediated settlement of the complaint.

The term "discrimination" is not defined in the British Columbia Human Rights Code, or in any other human rights statute in the country, but the term has been interpreted through various legal decisions. Andrews v. Law Society (British Columbia)(1) is perhaps the leading case defining discrimination. Mr. Justice McIntyre of the Supreme Court of Canada wrote in that decision:

" ... discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages, on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual"s merits and capacities will rarely be so classed."

Services  Customarily Offered to the Public

As stated previously, the Parties in this case agreed that the provision of subsidies to municipal sport and recreation facilities and sport organizations by the City of Coquitlam is a "service.customarily available to the public" within the meaning of Section 8(1) of the British Columbia Human Rights Code. Previous case law (2) makes it clear that it is not necessary that all members of the public have access to a particular service -- it is enough for a segment of the public to have access to bring that service within the "public" domain. Thus, while the City of Coquitlam may put some limitation on which facilities and organizations would receive a subsidy or who might use City-owned facilities, the service may be deemed, and in this case, was considered by the Parties, to be a service "customarily available to the public".

Determining whether the service, facility or accommodation in issue is essentially "public" or "private" is a threshold test for the application of the Human Rights Code. Thus, it may be useful to broaden this discussion to address the "public" or "private" nature of services offered by other public bodies, including sport and recreation organizations.

It is clear that public recreation facilities and municipally-operated programs are subject to human rights legislation and are precluded from engaging in discriminatory practices on any prohibited ground. However, if the service, facility or accommodation (3) is not public in nature, a human rights complaint may not be accepted. Some of the earlier cases involving the participation of girls in boys" sport programs failed because the organizations running the programs were seen to be private, based on an analysis of their constitutions and membership provisions, and the "services" they offered were thus not deemed to be customarily available to the public (4) as required by the legislation. More recent case law has seen a broader, more liberal interpretation of what it means to be "customarily available to the public" and, as a result, both provincial and federal human rights authorities have been asserting jurisdiction over sport organizations operating at both the national and provincial levels, although not necessarily those operating at the club level. (5)

University of British Columbia v. Berg (6), a decision of the Supreme Court of Canada arising out of a decision under the British Columbia Human Rights Code, sets out the general principles which are used to determine the "public" nature of services. This case said that such a determination is to be made using a broad and liberal analysis of the relationship between the service provider and the service user, not just by looking at the number of persons to whom the service may be available and declaring a service to be "public" where the quantity of usage might dictate.

In other words, a simple quantitative approach is not adequate. It is not a requirement that a service must be available to all members of the public in order for it to be "customarily available to the public". In fact, there are few services which are available to the entire public that do not require qualifying criteria or standards be met. For example, in order to receive employment insurance (EI) benefits an individual must be without a job. Thus anyone with a job is precluded from EI benefits but still, such benefits are considered to be a service "customarily offered to the public". Similarly, a certain academic standard must be reached to gain admission to university in Canada but a university education is still considered a service "customarily offered to the public". Thus, a private organization such as a sport organization may put certain constraints on who may have access to certain services, and those services could still be considered "customarily available to the public". The question is whether the relationship between the service provider and the service user is a "public" one.

In Berg, he various aspects of educational services of a specific faculty of a university were found to be a public service. The court described the faculty in question as an extension of the university and the facilities, services and staff of the faculty as part of the "public" face of the university. The court commented that the only distinction between the students and the general population came as a result of the admissions procedure that was open to all to test themselves against. In other words, the educational services of the faculty were available to any member of the public who could meet the selection criteria. (The court did comment that the fact the university was publicly funded was not a determinative factor in assessing its public nature.)

Berg can be contrasted with the decision in Gould v. Yukon Order of Pioneers (7) where the Supreme Court of Canada recognized the distinction between the internal private activities of a private club offered to, and participated in, strictly by its own members, from those services of the same club that were offered to the general public. The Yukon Order of Pioneers is a private men"s club. The services in question were the collection and recording of historical records and the public access to such records. Based on its analysis of the services, the court described the collection and recording of historical facts as private activities of the club but the access to those records by the community as a whole as a service "customarily available to the public". The first two services thus do not attract the jurisdiction of human rights legislation while the third does, notwithstanding the private nature of the club.

As a general statement, virtually any service or facility offered by a municipal, regional, provincial or federal government would be considered a service or facility offered to the public. Thus, any municipality offering a subsidy or tax concession to certain facilities or certain groups (such as the City of Coquitlam) would be said to be offering "a service customarily available to the public", however that "public" might be defined. However, it is equally clear that the activities (services) of even a private club (such as the Yukon Order of Pioneers or a sport club) can attract the attention of human rights legislation where such services are of a "public" nature due to the relationship between that club and the users of its programs and services.

A finer analysis such as the relational one set out in the Berg and Gould decisions would need to be carried out to determine whether the services or facilities of a private organization, such as a sport or recreation club, are considered "public" or "private" in nature. The Gould decision identified a number of factors one could look to in making this determination, including selectivity in the provision of the service, diversity of those to whom the service is offered, whether the service is commercial as opposed to social or benevolent, and the objectives or purpose of offering the service. Such an analysis might conclude certain services of a particular organization or institution are of a "public" nature and subject to human rights legislation, and certain other services of the same organization or institution are "private" and thus not subject to the scrutiny of human rights legislation.

Implications for Municipalities

Clearly, the settlement reached by the City of Coquitlam is not binding on any other municipality in British Columbia, or elsewhere. However, the settlement does demonstrate that a complaint of the sort brought by Mr. Morrison will be considered by the British Columbia Human Rights Commission, and quite likely will be considered by Commissions in other jurisdictions across Canada.

A critical element of any such complaint is the need for the Complainant to prove, on a balance of probabilities, that female athletes or participants are disproportionately and adversely affected by the provision of certain services of the Respondent. Specifically, the Complainant would have to prove that females are under-represented in sport, recreation and physical activity experiences within the authority of the Respondent municipality; and that such under-representation was largely (though not necessarily solely) attributable to gender inequity in the provision of some accommodation, service or facility.

Being able to prove this depends largely on the validity and reliability of the way, or ways, in which up-to-date data is collected regarding participation rates and demographics across all sport activities in the municipality, as well as patterns in municipal subsidy and resource allocation.

Note: This summary was prepared by the Centre for Sport and Law for a collective group of organizations and individuals including the Canadian Association for the Advancement of Women and Sport and Physical Activity; Promotions Plus, the British Columbia Organization for Girls and Women in Physical Activity and Sport; the British Columbia Parks and Recreation Association; the Canadian Parks/Recreation Association, and several other interested individuals. The views expressed in this summary are the views of the Centre for Sport and Law and not necessarily the views of the collective group. This summary is used with permission.

1. [1989] 1 S.C.R. 143, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 10 C.H.R.R. D/5719, 36 C.R.R. 193, 56 D.L.R. (4th) 1, 91 N.R. 255.

2. See for example: Rosin v. Canada (Canadian Forces) (1990), [1991] 1 F.C. 391, 34 C.C.E.L.179, 16 C.H.R.R. D/441, (Canada (Attorney General) v. Rosin) 91 C.L.L.C. 17,011, 131 N.R. 295 (C.A.) - a parachuting course offered by the Canadian Armed Forces is a public service even though it is available only to qualified cadets. Chaing v. Natural Sciences & Engineering Research Council of Canada (1992), 17 C.H.R.R. D/63, 92 C.L.L.C. 17,013 (Cdn. Human Rights Trib.) - Awarding research grants to natural scientists constitutes provision of services to the general public. Fact that the monies were aimed at a particular group does not detract from such a finding.

3. The terms "services", "facilities" and "accommodation" have been used interchangeably by the Canadian courts and broadly interpreted.

4. Re Cummings and Ontario Minor Hockey Association (1979), 26 O.R. (2d) 7, 104 D.L.R. (3d) 434 (C.A.); (1978), 21 O.R. (2d) 389, 90 D.L.R. (3d) 568 (Div. Ct.); (1977), 29 R.F.L. 259 (Bd. Of Inq.);em Ontario Human Rights Commission v. Ontario Rural Softball Association/em (1979), 26 O.R. (2d) 134, 102 D.L.R. (3d) 303 (C.A.); (Re Ontario Rural Softball Association v. Bannerman) 1978), 21 O.R. (2d) 395, 90 D.L.R. (3d) 574 (Div. Ct.); unreported, May 19, 1977 (Bd. Of Inq.), Lederman.

5. note 1. See also Solin v. B.C. Amateur Hockey Association (1988), 9 C.H.R.R. D/5266 (B.C. Human Rights Council).

6. [1993] 2 S.C.R 353, 13 Admin. L.R. (2d) 141, 79 B.C.L.R.(2d) 273, 18 C.H.R.R. D/310, 26 B.C.A.C. 241, 44 W.A.C. 241, 102 D.L.R. (4th) 665, 152 N.R. 99

7. Gould v. Yukon Order of Pioneers (1989), 10 C.H.R.R. D/5812 (Y.T. Bd. of Adjudication), rev"d (1991), 14 C.H.R.R. D/176, 87 D.L.R. (4th) 618 (Y.T.S.C.), aff"d (1993), 79 B.C.L.R. (2d) 14,, 100 D.L.R. (4th) 596, 18 B.C.L.R. (3d) 1, 133 D.L.R. (4th) 449, [1996] 1 S.C.R. 571, 25 C.H.R.R. D/87, 194 N.R. 81, 72 B.C.A.C. 1, 119 W.A.C. 1 (S.C.C.)

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