The BC Court of Appeal recently rendered a decision dealing with private club discrimination in, Marine Drive Golf Club v. Buntain et al and B.C. Human Rights Tribunal, 2007 BCCA 17.

The case concerns restrictions on female club members’ access to a lounge facility. In a nutshell, the BC Human Rights Act did not apply because the golf club was a private club.

Mr. Justice Thakray had this to say on the relevant section of the Human Rights Act:

[50] 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.

And states further on:

[53] 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.

[54] 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.

[55] 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.

[56] I would dismiss the appeal.

The decision is a reminder that human rights legislation and protections extends only so far as a matter can be considered to be of a public nature.