Insurance Corporation of British Columbia v. Heerspink, [1982] 2 SCR 145

Supreme Court of Canada

Insurance Corporation of British Columbia v. Heerspink et al., [1982] 2 S.C.R. 145

Date: 1982-08-09

Insurance Corporation of British Columbia Appellant;

and

Robert C. Heerspink Respondent;

and

Director, Human Rights Code Respondent.

File No.: 16525.

1982: February 3; 1982: August 9.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Civil rights—Insurance policy cancelled without stated reasons—Risk analysis conducted after press reports of drug trafficking—Termination effected pursuant to statutory procedure—Whether or not termination a denial of service customarily available to public contrary to Human Rights Code—Human Rights Code of British Columbia, 1973 (B.C.), 2nd Sess., c. 119, s. 3—Insurance Act, R.S.B.C.  1960, c. 197, s. 208, Statutory Condition 5(1).

Appellant terminated the insurance coverage on respondent’s buildings after conducting a “risk analysis” initiated after the press reported respondent’s committal to trial on a charge of trafficking in marijuana. Notice of termination, without reasons, was given pursuant to the statutory conditions contained in all insurance contracts. Respondent filed a complaint under s. 3 of the Human Rights Code of British Columbia alleging that insurance coverage had been denied without reasonable cause. That section provided that reasonable cause was necessary to deny a person or class of persons a service customarily available to the public or to discriminate against a person or class of persons with respect to such service. The British Columbia Court of Appeal set aside the judgment of Munroe J. in a case stated to him by a Board of Inquiry which was designed to test that Board’s finding that the Code had been violated.

Held (Martland, Beetz and Chouinard JJ. dissenting): The appeal should be dismissed.

Per Laskin C.J. and Ritchie and Dickson JJ.: The question of ‘reasonable cause’, where it is an essential

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element in determining the application of s. 3 of the Human Rights Code, is a question of fact and not the proper subject of an appeal by way of stated case. Appeals to the British Columbia Supreme Court lay from a decision of a board of inquiry on any question of law or jurisdiction or on any finding of fact, necessary to establish the board’s jurisdiction, that is manifestly incorrect. The Statutory Requirements of the Insurance Act and the Human Rights Code can stand together as there is no direct conflict between them.

Per Estey, McIntyre and Lamer JJ.: Although the two statutory enactments under review can stand together as there is no direct conflict between them, the Code would govern even if there were such a conflict. The Code is a fundamental law intended to supersede all other legislation except where a contrary intention is clearly and unequivocally expressed by the Legislature. The reasons for a denial of services through the operation of a termination clause should be no more and no less subject to s. 3 of the Code when denied initially. That the termination clause is made part of all contracts by statute does not make the clause part of the services customarily available to the public and consequently beyond s. 3(1) of the Code.

Per Martland, Beetz and Chouinard JJ., dissenting: Section 3(1) cannot be applied to limit an insurer in the exercise of the rights given by the statutory conditions under the Insurance Act and which the insured, by contract, has agreed the insurer should have. The power of the Human Rights Commission to interfere whith such a right spelled out by the Legislature must be more clearly expressed than in s. 3(1). Furthermore, respondent in that he received his policy was not denied the service customarily available by an insurer to the public. The insurance service customarily available to the public was the provision of an insurance policy, subject to the statutory conditions imposed by the legislature as a part of such policy.

[Seward v. “Vera Cruz” (1884), 10 App. Cas. 59; Toronto Railway Company v. Paget (1909), 42 S.C.R. 488, referred to; Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435, distinguished.]

APPEAL from a judgment of the British Columbia Court of Appeal (1981), 121 D.L.R. (3d) 464, 27 B.C.L.R. 1, [1981] 4 W.W.R. 103, allowing an appeal from a judgment of Munroe J., allowing an appeal from a decision of a Board of Inquiry appointed under the British Columbia

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Human Rights Code. Appeal dismissed, Martland, Beetz and Chouinard JJ. dissenting.

K.C. Mackenzie and Bruce Fraser, for the appellant.

John Hall, for the respondent.

The judgment of Laskin C.J. and Ritchie and Dickson JJ. was delivered by

RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal of British Columbia which set aside a judgment rendered by Munroe J. in Chambers, pursuant to a case stated before him by the Chairman of the Board of Inquiry appointed under s. 16 of the Human Rights Code of British Columbia, 1973 (B.C.), Second Session, c. 119, (hereinafter referred to as the Human Rights Code) which case was designed to question the finding of the Board that the Insurance Corporation of British Columbia (hereinafter referred to as the Insurer) had committed a violation of s. 3 of the Human Rights Code in refusing insurance coverage to the respondent without reasonable cause.

The first paragraph of the stated case discloses the origin of the problem which has concerned the courts. That paragraph recites that:

On the 11th day of August, 1976, Robert C. Heerspink filed a complaint under Section 3 of the Human Rights Code of British Columbia, S.B.C. 1973 (Second Session) Chapter 119 alleging that the Insurance Corporation of British Columbia had refused insurance coverage without reasonable cause in violation of Section 3 of the Human Rights Code.

The insurer alleged that it was within its statutory rights under the Insurance Act, R.S.B.C. 1960, c. 197, to cancel its policy without assigning any reason for cancellation and in this regard it relied on Statutory Condition 5(1) contained in s. 208 of the Insurance Act which forms a part of every fire insurance contract in force in British Columbia and which reads as follows:

5. (1) This contract may be terminated

(a) by the insurer giving to the insured fifteen days’ notice of termination by registered mail, or five

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days’ written notice of termination personally delivered; or

(b) by the insured at any time on request.

Standing alone the provisions of this section make it lawful for either the insurer or the insured to terminate the policy of fire insurance at will upon giving the requisite notice without assigning any reason therefor and there can be no doubt that at the time of its enactment the insurance company would have been amply justified in terminating the policy here in question under the provisions of this section. The difficulty which arises in this case is occasioned by the fact that some thirteen years after the enactment of the Statutory Condition, the Human Rights Code was enacted which, by s. 3(1) provided that:

3. (1) No person shall

(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or

(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public,

unless reasonable cause exists for such denial or discrimination.

It is the insurer’s contention that the Human Rights Code did not have any effect on the terms of Statutory Condition 5 which is required to be included in every contract of insurance in British Columbia by reason of the provisions of s. 208(1) which provide that:

208. (1) The conditions set forth in this section shall be deemed to be part of every contract in force in the Province, and shall be printed on every policy with the heading “Statutory Conditions,” and no variation or omission of or addition to any statutory condition shall be binding on the insured.

These circumstances had initially been made the subject of a stated case submitted to Mr. Justice Meredith under date of April 29, 1977 at which time objection was taken to the jurisdiction of the Board of Inquiry and after Mr. Justice Meredith had concluded that there was such jurisdiction an appeal was taken from his judgment to the Court of Appeal of British Columbia where Mr. Justice Robertson rendered a per curiam judgment dis-

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missing the appeal and affirming the Board’s jurisdiction. No appeal has been taken from this judgment and the Board’s jurisdiction in the matter must now be taken as accepted.

The jurisdiction of the Board having been thus established, it was reconvened on January 16, 1979 to hear evidence and consider the merits of the case. Pursuant to this hearing the Board concluded in a written decision given on March 8, 1979 that the insurer had committed a violation of s. 3(1) of the Human Rights Code.

In reaching this conclusion the said Board found the following facts:

(a) Mr. Robert C. Heerspink is the registered owner of a fourplex and a triplex in Sydney, British Columbia in respect of which the Insurance Corporation of British Columbia had issued a composite mercantile insurance policy.

(b) On April 24, 1976, the Victoria Columnist newspaper reported that Mr. Heerspink had been committed for trial “following a preliminary hearing on a charge of trafficking in marijuana in Sydney, December 11, 1972”.

(c) Knowledge of the fact of the charge came to the attention of the Underwriting Department of the Insurance Corporation of British Columbia.

(d) After engaging in a process of “risk analysis” in accordance with its normal internal procedures, the Insurance Corporation of British Columbia decided to cancel the insurance policy.

(e) On June 16, 1976, the Insurance Corporation of British Columbia sent a registered letter to Mr. Heerspink cancelling the insurance policy upon the expiration of fifteen days notice. This notice was given pursuant to Statutory Condition 5 of the Policy.

(f) No reasons for cancellation were given.

(g) The ground for cancellation of Mr. Heerspink’s policy was that he had been charged with trafficking in marijuana.

(h) The officials of the Insurance Corporation of British Columbia believed that the essence of a charge of trafficking in marijuana is an allegation that the person so charged has been dealing in the drug for profit.

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(i) The decision to cancel the insurance policy was taken on the grounds of “moral hazard”. The Board of Inquiry accepted the evidence of expert witness R.J. McCormick that: “Moral hazard is the intangible element of the risk which produces a negative aspect as to the acceptability of the piece of business. It pertains not to the physical property but to the insured. That is, his character, reputation, and circumstances. Moral hazard creates a serious doubt about his business transaction in the mind of the underwriter. He has reason to believe that the risk is not as he had contemplated, that it has a greater exposure to loss than he could care to accept. Since this possibly increased exposure cannot be corrected by rating or engineering because it deals with the intangible rather than the physical, the underwriter no longer wishes to be a party to the transaction and cancels the contract. This is a business decision not a legal judgment. The underwriter is not willing to take a chance of exposing his Company’s assets on this risk.”

(j) The only information that the officials of the Insurance Corporation of British Columbia who dealt with the matter had at their disposal at the time the decision was made to cancel, was that contained in the newspaper report that Mr. Heerspink had been “ordered to higher court trial on a charge of trafficking in marijuana,” together with information supplied by Mr. Heerspink’s insurance agent, who had expressed surprise at news of the charge, indicated that he was impressed with the insured who seemed a hard-working individual with lots of money, and apparently agreed with the decision of the Corporation to cancel.

(k) In the minds of the relevant officials of the Insurance Corporation of British Columbia, persons engaged in the drug trade are unusually vulnerable to property damage and present an increased risk to the property insurer.

(l) There was no evidence about the loss record of persons charged with trafficking in drugs.

(m) The officials of the Insurance Corporation of British Columbia were acting bona fide in an attempt to assess risk.

(n) The decision of the Insurance Corporation of British Columbia was made not with reference to personal characteristics of Mr. Heerspink relevant to the risks insured against but with reference to his assumed characteristics as a member of the group of persons comprised of those charged with trafficking in marijuana.

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The appeal by way of stated case, and indeed the present appeal to this Court, is founded on these facts and basically it poses the question of whether the insurer was justified in terminating Mr. Heerspink’s policy of insurance having regard to the provisions of Statutory Condition 5(1) under s. 208(1) of the Insurance Act, or whether s. 3 of the Human Rights Code is applicable in the present circumstances. We have not been favoured with a full account of the facts found by the Board, but Mr. Justice Hinkson, who wrote the majority judgment of the Court of Appeal for British Columbia allowing the appeal from Mr. Justice Munroe and restoring the judgment of the Board, including its finding that the insurance company had acted without just cause in terminating Mr. Heerspink’s policy, offered the following critically important item:

On March 8, 1979, in a written decision, the Board of Inquiry concluded that the Insurance Corporation of British Columbia had committed a violation of s. 3(1) of the Human Rights Code. It found that the complainant was discriminated against with respect to the service which the Insurance Corporation of British Columbia offered to the public. As a result of that conclusion it held that the provisions of s. 3 of the Human Rights Code had application. The Board of Inquiry then went on to consider whether or not the Insurance Corporation of British Columbia had reasonable cause for doing so. The Board of Inquiry concluded as a fact that no reasonable cause had been established. What is “reasonable cause” is not a question of law alone. It is, therefore, not the subject of an appeal by way of stated case.

It is my personal view that a mere allegation of criminal conduct accompanied by the finding of a preliminary inquiry that a prima facie case exists against an accused is not enough to warrant the conclusion that such a person is a member of the criminal classes or, as in this case, one associated with trafficking in marijuana. Left to myself I would have concluded that there was no “reasonable cause” for the termination of Mr. Heerspink’s policy.

I am, however, in agreement with Mr. Justice Hinkson in his conclusion that the question of ‘reasonable cause’, where it is an essential element in determining the application of s. 3 of the Human Rights Code, is a question of fact and is

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not the proper subject of an appeal by way of stated case, and in this regard I have special reference to s. 18 of the Human Rights Code which provides:

18. An appeal lies from a decision of a board of inquiry to the Supreme Court upon

(a) any point or question of law or jurisdiction; or

(b) any finding of fact necessary to establish its jurisdiction that is manifestly incorrect,

and the rules under the Summary Convictions Act governing appeals by way of stated case to that court apply to appeals under this section, and a reference to the word “Justice” shall be deemed to be a reference to the board of inquiry.

Under these circumstances, the Supreme Court of British Columbia was without jurisdiction to determine the validity of Mr. Heerspink’s complaint and accordingly the judgment of the Board of Inquiry must stand.

It was contended on behalf of the insurer in conformity with the views expressed by Mr. Justice Munroe, that the Insurance Act Statutory Condition 5 takes precedence over the Human Rights Code s. 3 because the former is particular and specific legislation while the latter, which was subsequently enacted, is of a more general nature and does not purport to alter any of the provisions of any part of the Insurance Act.

These conclusions were reached in apparent compliance with the legal proposition which over the years has been dignified with the latin title generalia specialibus non derogant. That proposition finds some support in the oft-cited case of Seward v. “Vera Cruz” which was decided in the House of Lords in (1884), 10 App. Cas. 59, but it must be remembered that in that case the statutory provisions there under consideration were found to be “absolutely at variance” with each other and in my opinion the reasons for judgment of Duff J. (as he then was) in Toronto Railway Company v. Paget (1909), 42 S.C.R. 488, represent the true Canadian view of this subject. It was there said of the two statutes under consideration [at p. 491]:

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One possible view is that in such cases the provision in the general Act is to be wholly discarded from consideration; the other is that both provisions are to be read as applicable to the undertaking governed by the special Act so far as they can stand together, and only where there is repugnancy between the two provisions and then only to the extent of such repugnancy the general Act is to be inoperative.

I agree with Mr. Justice Hinkson that in the present case the two statutory enactments under review can stand together as there is no direct conflict between them. The position is that the insurer’s right to terminate its contract is unaffected by the provisions of s. 3 of the Human Rights Code wherever “reasonable cause exists” for such termination. This might be termed a modification of the Statutory Condition but it certainly does not in my view constitute repugnancy so as to alter the fact that “reasonable cause” is the touchstone in the construction of the two provisions here at issue.

It was further submitted, however, that the case of Gay Alliance Toward Equality v. Vancouver Sun, [1979] 2 S.C.R. 435, applied to the facts here disclosed, but that was a different case altogether, involving the alleged denial by a newspaper of the right of the Gay Alliance Toward Equality to publish an advertisement propagating its views favouring homosexuality of which the newspaper disapproved. There was no question in that case of the newspaper acting in accordance with a statutory authority such as Statutory Condition 5 of the Insurance Act and no issue arose as to the interaction of two statutory provisions.

The central question arising in that case was the effect, if any, to be given to s. 3 of the Human Rights Code on the freedom of the press which has long been recognized in our law, and whether a newspaper affords the public with the facility available for the free expression of its views. This question clearly involves the co-existence of the right of freedom of speech and the right of freedom of the press but it is not involved in the present case except to the extent described by Mr. Justice Martland in the Gay Alliance case in the

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penultimate paragraph of his judgment at p. 456 where he said:

Section 3 of the Act does not purport to dictate the nature and scope of a service which must be offered to the public. In the case of a newspaper, the nature and scope of the service which it offers, including advertising service, is determined by the newspaper itself. What s. 3 does is to provide that a service which is offered to the public is to be available to all persons seeking to use it and the newspaper cannot deny the service which it offers to any particular member of the public unless reasonable cause exists for so doing. [The italics are my own]

This appears to me to reinforce the significance to be attached to the presence of reasonable cause wherever s. 3 of the Human Rights Code is to be invoked.

As I have indicated, I agree with the Court of Appeal that “reasonable cause” is not a question of law alone and having regard to the provisions of s. 18 of the Human Rights Code its existence cannot be the subject of an appeal such as the present one by way of stated case.

It accordingly follows that the finding of the Board of Inquiry is re-established and the appeal is dismissed with costs.

The reasons of Martland, Beetz and Chouinard JJ. were delivered by

MARTLAND J. (dissenting)—The basic facts in this appeal are as follows. The respondent, Robert C. Heerspink, is the owner of land in Sydney, British Columbia, upon which buildings were constructed. The appellant issued to him a composite mercantile policy in respect of the buildings. On April 24, 1976, the Victoria Columnist newspaper reported that Mr. Heerspink had been committed for trial following a preliminary hearing on a charge of trafficking in marijuana in Sydney on December 11, 1975.

Knowledge of the fact of the charge came to the attention of the appellant’s underwriting department. After engaging in a process of “risk analysis” in accordance with its normal internal procedures, the appellant decided to terminate the policy. Notice of termination was sent to the respondent terminating the policy upon the expira-

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tion of fifteen days notice. The notice of termination did not state any reasons for termination.

The notice was given pursuant to Statutory Condition 5 of the policy. The relevant portion of s. 208 of the Insurance Act, R.S.B.C. 1960, c. 197, as amended, provided as follows:

208. (1) The conditions set forth in this section shall be deemed to be part of every contract in force in the Province and shall be printed on every policy with the heading “Statutory Conditions,” and no variation or omission of or addition to any statutory condition shall be binding on the insured.

STATUTORY CONDITIONS

5. (1) This contract may be terminated

(a) by the insurer giving to the insured fifteen days’ notice of termination by registered mail, or five days’ written notice of termination personally delivered; or

(b) by the insured at any time on request.

The policy issued by the appellant to the respondent was a contract containing the above provision which was required by statute to be included as a part of it.

The respondent filed a complaint under s. 3 of the Human Rights Code of British Columbia, 1973 (B.C.), Second Session, c. 119, alleging that the appellant had refused insurance coverage without reasonable cause in violation of that section. Section 3 provides as follows:

3. (1) No person shall

(a) deny to any person or class of persons any accommodation, service, or facility customarily available to the public; or

(b) discriminate against any person or class of persons with respect to any accommodation, service, or facility customarily available to the public,

unless reasonable cause exists for such denial or discrimination.

The complaint was considered by a Board of Inquiry appointed pursuant to the provisions of the Human Rights Code which conducted a hearing and which concluded that the appellant had committed a violation of s. 3(1) of the Human Rights Code. The appellant appealed from this decision.

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Munroe J. allowed the appeal. The respondents appealed from this decision and their appeal was allowed by the Court of Appeal, which restored the decision of the Board of Inquiry. The appellant, with leave, has appealed to this Court from that judgment.

The respondent’s complaint was that he had been refused insurance coverage by the appellant and that this constituted a denial to him of a service customarily available to the public and which constituted a violation of s. 3(1) of the Human Rights Code in the absence of reasonable cause. In my opinion it is necessary to consider what was the nature of the service provided by the appellant which was customarily available to the public.

The service which the appellant provided to the public was the provision of fire insurance coverage to persons who entered into insurance contracts with it. Some of the provisions of the contracts made by appellant with persons to be insured were dictated by statute. Statutory Condition 5 was such a provision.

The appellant did not deny to the respondent the service which it customarily made available to the public. It issued a policy to him. He accepted the policy and, in so doing, agreed that his policy would be subject to the terms of Statutory Condition 5, imposed by the Legislature. That term of the contract gave to both parties the absolute right to terminate it at will. The appellant exercised its contractual right. The termination of the contract by the appellant was not a denial of a service. It was the exercise of a contractual right.

Section 3(1) of the Human Rights Code does not purport to define the scope of the services which are customarily available to the public. What it does is to prohibit the denial of a service which is customarily available to the public. In the case of insurance companies the nature of the service provided by the insurer to the insured has been defined by statute. The Legislature has prescribed the conditions attaching to an insurance policy and the insurer is required to include those conditions as a part of the policy. The provision of

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insurance policies subject to those conditions is the service customarily provided by insurance companies to the public. The Human Rights Code does not require the provision of services other than those customarily available to the public.

What the respondent is seeking to do is to apply s. 3(1) of the Human Rights Code in a manner which would limit an insurer in the exercise of the rights given by the statutory conditions under the Insurance Act and which the insured, by contract, has agreed that the insurer should have.

I do not interpret s. 3(1) as having that effect. It deals with the denial of a service. I have already pointed out that the respondent was not denied the service customarily available by an insurer to the public. He got his policy. His contention is that, notwithstanding the contractual termination provision, the Human Rights Commission can require the insurer to show reasonable cause of the exercise of its contractual right. In my opinion such a power to interfere with contractual rights would require very clear words to justify, particularly when the contractual right is one spelled out by the Legislature itself. In my opinion s. 3(1) does not extend that far.

I would allow the appeal, set aside the judgment of the Court of Appeal and restore the order of Munroe J. The appellant should be entitled to its costs throughout.

The reasons of Estey, McIntyre and Lamer JJ. were delivered by

LAMER J.—I have had the advantage of reading the reasons for judgment of my brothers Martland and Ritchie. While concurring in the reasons of my brother Ritchie, I should like to add a few comments. I need not here set out anew the facts giving rise to this case, quote the relevant legislation or summarize the findings below. This has been most adequately done by my two colleagues.

The Human Rights Code of British Columbia

When the subject matter of a law is said to be the comprehensive statement of the “human rights” of the people living in that jurisdiction,

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then there is no doubt in my mind that the people of that jurisdiction have through their legislature clearly indicated that they consider that law, and. the values it endeavours to buttress and protect, are, save their constitutional laws, more important than all others. Therefore, short of that legislature speaking to the contrary in express and unequivocal language in the Code or in some other enactment, it is intended that the Code supersede all other laws when conflict arises.

As a result, the legal proposition generalia specialibus non derogant cannot be applied to such a code. Indeed the Human Rights Code, when in conflict with “particular and specific legislation”, is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law.

Furthermore, as it is a public and fundamental law, no one, unless clearly authorized by law to do so, may contractually agree to suspend its operation and thereby put oneself beyond the reach of its protection.

Therefore, whilst agreeing with my brother Ritchie that “the two statutory enactments under review can stand together as there is no direct conflict between them”, I should add that were there such a conflict, the Code would govern. I find nowhere in the laws of British Columbia that s. 5 of the Statutory Conditions set forth in s. 208 of the Insurance Act, R.S.B.C. 1960, c. 197, as amended, is to be given any special treatment under the Human Rights Code.

Section 208 of the Insurance Act

It is said that, given the mandatory inclusion of termination clause 5 in all insurance contracts through s. 208 of the Insurance Act, the nature of the service provided by insurers to the insured has been defined by statute and that the unilateral terminability by the insurer of the policy is part of the services “customarily available to the public”, and that, as such, the reasons for termination are beyond any scrutiny of s. 3 of the Code.

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In my view, the fact that the termination clause is in the insurance contract by virtue of a law is of little help to the appellant. Indeed, the only effect of the law is to impose upon the parties to any insurance contract the inclusion of a specific termination clause. Once that is achieved, the fact that the clause was legislatively imposed puts it, as regards the Code, in no better position than if it had been included in the contract solely through the will of the parties. The fact that it is included in all contracts of insurance does not make it part of the services customarily available to the public. The proposition that it is, though not without some logic and at first sight appealing, with respect, is not supportable.

Such a proposition would defeat the purpose of the Act by indirectly placing insurance policies beyond the reach of s. 3 of the Code. As I have already said, nowhere in the laws of British Columbia is it stated that insurance policies should enjoy any special treatment under the Code and I can see no reason why insurance was not intended by the legislature to be a “service” in the sense in which the word is used in s. 3 of the Code.

The suggested interpretation of “customarily available to the public” would enable an insurer to accomplish by termination of a policy that which would be clearly forbidden on an application for the issuance of a policy, and to insulate such action from any investigation of the reasons therefor. Worse it could even do with impunity, because it is done beyond reach of the section, what under the section can never, as a matter of law, be a reasonable cause.

On this interpretation of the law, that an insurance company terminated fire insurance coverage of a building upon learning that the insured owner rented the premises to coloured persons would not even trigger s. 3. Had the company for that very same reason denied the coverage at the outset, not only would the section be triggered but also successfully for the complainant. The legislature cannot have intended such a result.

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Termination Clauses

A termination clause is a mechanism for denying the continuation of services the provision of which had been agreed to at the beginning. Once exercised, the right to terminate results in a denial of services not differing from a denial, had there been one, at the outset. Therefore the reasons for a denial of services through the operation of a termination clause should be no more but also no less subject to s. 3 of the Code than when denied initially.

The reasons for denying services at the outset are, whether they be expressed or not, subject, if there is a complaint, to being investigated and their reasonableness subject to determination by the commission through boards of inquiry. The same applies to reasons for denial of service by virtue of a termination clause even where no reasons need be given.

The Legislature by enacting s. 3 of the Code has, as a matter of policy, subjected to the Code the exercise of many traditionally unhindered contractual rights and given the commission very wide powers. Be that as it may, I agree with the Chief Justice when he said in Gay Alliance Toward. Equality v. Vancouver Sun, [1979] 2 S.C.R. 435, at p. 447:

The policy embodied is plain and clear. Every person or class of person is entitled to avail himself or themselves of such services or facilities unless reasonable grounds are shown for denying them or discriminating in respect of them. This Court is obliged to enforce this policy regardless of whether it thinks it to be ill-advised.

I would therefore, for these reasons and those of my brother Ritchie, dismiss the appeal with costs.

Appeal dismissed with costs, MARTLAND, BEETZ and CHOUINARD JJ. dissenting.

Solicitors for the appellant: Guild, Yule & Company, Vancouver.

Solicitors for the respondents: DuMoulin, Black, Vancouver.