Berg was a graduate student at the University of British Columbia (UBC) and required a reference letter in order to get an internship that was needed for her to graduate. She also had severe depression and had some bad "incidents" in the past. She required a key to enter into school buildings after hours to complete research. She was denied the key while all other graduate students were granted one. The professor she asked for the reference also refused on the grounds of his experiences and observations of her behaviour. Berg was successful at the Human Rights Tribunal but the decision was overturned by the British Columbia Court of Appeal.
- Do these instances fall within the protected practice of "services offered to the public" under s.3 of the British Columbia Human Rights Act (now s.8 of the British Columbia Human Rights Code)?
Appeals allowed, decisions of the British Columbia Supreme Court and Court of Appeal quashed and the decision of the Tribunal restored and costs awarded to Berg.
The main issue on appeal is whether the "offered to the public" stipulation becomes obsolete once you are a member of a smaller group of the public, such as a student of UBC. This was the basis of the Court of Appeal decision; these services were not offered to the general public and thus there was no protected activity violated.
The Supreme Court held that it is really the nature of the relationship that must be public. Here it is between an institution and an individual – this is a public relationship (even the professor is acting as an agent of UBC). The majority make it very clear that subsections of the public do not matter when determining if it is a service offered to the public; all that matters is if the nature of the relationship between the parties is public. She is entitled to the key because the only thing that is keeping her from it is her disability. She is entitled to the rating sheet because everyone else who has ever asked has been given one. She isn't entitled to a good reference, but they must supply a reference.
In the dissent, Major J argues that if things are not available to the public as a whole, then the Act does not apply. Although you have to interpret human rights legislation widely, you cannot completely change the meaning of the words in the statute. Note there was no bona fide occupational requirement test available at this time which would probably at least have allowed them to not give her the key.
- Subsections of the public do not matter when determining if it is a service offered to the public – all that matters is if the nature of the relationship between the parties is public.