S.C.C. Upholds Right of Club to Refuse Membership to Women

Gould v. Yukon Order of Pioneers (1996), 25 C.H.R.R. D/87 (S.C.C.)

The Supreme Court of Canada rules that a refusal of membership in a men's organization is not a discriminatory denial of services contrary to the Yukon Human Rights Act.

The complainant Madeleine Gould had been refused membership in the Yukon Order of Pioneers because of her sex. She filed a complaint under the Act, which was heard by a Board of Adjudication. The Yukon Status of Women Council intervened in support of Gould's position. The Board of Adjudication ruled in favour of Gould based upon an Agreed Statement of Facts. The Board heard no testimony.

It was not disputed before the Board of Adjudication that the Order's action in rejecting Gould's application amounted to discrimination on the basis of sex contrary to s. 6(f) of the Act. The Board found that in preserving and collecting the literature and incidents of Yukon's history, the Order was "offering or providing services...to the public" and concluded that the discrimination was prohibited under s. 8(a) of the Act. The Board reasoned that the public service of collecting and preserving the Yukon's history could not be performed properly without the active input, through membership in the Order, of female members of the population. The Board's decision was overturned on appeal to the Yukon Supreme Court. In turn, the Yukon Court of Appeal also found that the Board had erred.

On appeal to the Supreme Court of Canada, the issue is whether the whether membership in the Yukon Order of Pioneers constituted services offered or provided to the public within the meaning of s. 8(a). The Yukon Human Rights Commission argues that the collection and recording of historical materials constitutes a public service. The Yukon Status of Women Council argues that membership in the Order itself constitutes a bundle of public services.

A majority of the Supreme Court of Canada dismisses the Commission's appeal and orders costs in favour of the Yukon Order of Pioneers. For the majority Iacobucci J. finds that the relevant standard of review in this case, where the issue is not the facts but rather the inferences to be drawn from the facts, is correctness. Section 8(c) suggests an intention to deal with membership and services separately. Section 8(a) does not does not apply to membership, and s. 8(c) which does apply to membership is restricted to organizations that deal with livelihood and economic relationships. Section 8(c) does not extend to the Order which is close to the social end of a spectrum. Finally, the service offered to the public in this case is neither membership nor the collection process but rather the end product -- namely, the data or documents produced, which the Order provides to the public, without discrimination.

La Forest J. writes a concurring minority opinion finding that s. 8(a) requires only that the historical service be supplied to the public on a non-discriminatory basis. He finds further that s. 8(a) must be read in light of rights to freedom of expression and association. Finally, the Agreed Statement of Facts does not indicate that the Order is distorting the history of the Yukon. La Forest J. would apply s. 8(a) in a case where membership is offered to the public, but the Order exists to serve its own members -- not the public -- by offering members the opportunity to socialize in an all-male environment to enhance the emotional development of its members.

McLachlin J. dissents on the basis that the Order provides sufficient benefits of a public nature and importance that membership itself constitutes a service offered or provided to the public.

L'Heureux-Dubé J. writes a separate dissent holding that correctness is not the standard of review where the Board's decision is not based on general questions of law, but rather the application of law to the facts. The Board could reasonably conclude on the evidence that the history collection, preservation, and publication activities of the Order represent work done for the benefit of the public, and there is no reason to sever the preparation of the historical record from the communication to the public.

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