B&B Accommodation – Discrimination in Canada and England

The owners of the Chymorvah Private Hotel at Marazion, Cornwall and those of the Riverbend B&B in Grand Forks, BC, have both been found to be discriminatory in their refusal to let a double-bed room to a same-sex couple.  Whilst the facts concerning the two cases – Bull v Hall & Preddy [2012] EWCA Civ 83 and Eadie and Thomas v Riverbend Bed and Breakfast & ors (No. 2),2012 BCHRT 247 – and their respective outcomes bear a striking similarity, they raise important questions regarding importance of a Bill of Rights currently under consultation in England and Wales, and the weight given by the courts to religious beliefs.

Comment

An analysis of Bull v Hall & Preddy has been reported by Marina Wheeler of 1 Crown Office Row, and Neil Addison has commented on Eadie and Thomas v Riverbend Bed and Breakfast & ors (No. 2).  Whilst both concern human rights issues associated with same-sex couples, the legal reasoning behind each was different.  For the former, Wheeler states:

‘[t]he case required the Court to construe the Equality Act (Sexual Orientation) Regulations 2007 (provisions which are now contained in the Equality Act 2010) and, if this construction led to a finding of discrimination whether this would be compatible with the European Convention on Human Rights (“ECHR”)’.

By contrast, the Canadian case concerned the more prescriptive requirements of section 8 of the British Colombia Human Rights Code and the discrimination by the Respondents on the basis of the sexual orientation of the Complainants in the provision of a service customarily available to the public.  Section 8 relates to discrimination in accommodation, service and facility, and states:

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 regarding 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, sexual orientation or age of that person or class of persons.

Section 8(2) contains certain exception to these provisions, such as the maintenance of public decency.  Importantly, Section 2 of the Code provides that:

2 Discrimination in contravention of this Code does not require an intention to contravene this Code

The owners of the Riverbend B&B – Susan and Les Molnar – are members of the Mennonite Brethren Church, who regard their home as ‘a gift from God . . . to be used for His ministry’. The home was blessed by the pastor in 2002 after its purchase, and is used some church activities, such as bible studies and home groups.  The Court accepted that the Molnars hold a sincere, personal and core religious belief that:

‘marriage is between a man and a woman and that sex outside of such a marriage, including same-sex sexual relations, is a sin . . . . [and] to allow a same-sex couple to stay in a single bed in their home would harm their relationship to their Lord . . . [and] that they would not rent a room in their home for a purpose that conflicted with, or was contrary to, their personal religious beliefs.’ [para.139]

However, the Court did not accept the Monars’ argument that made a distinction between their obligations to God ‘in the public sphere; and in their home, [para. 131-132], and the issue turned on the use of the B&B accommodation.  The Court ruled:

‘the function of the Riverbend was to offer temporary accommodation, without any express restriction, to the general public, . . . . . {It] was operated as a for-profit business, and that the Molnars managed it as individual citizens.  . . . [The Respondents] did not operate the Riverbend on behalf of the Church, and the Church had no direct involvement in its operations.

[It] was advertised to the general public over the internet and throughout the Grand Forks community in various ways, including brochures the internet advertisements included any reference to any religious affiliation or operation.’ [para. 141-2].

This echoes the decision reached in Bull v Hall & Preddy, albeit on the basis of different legal considerations, which Cooper LJ summarized as:

‘Although described as private, the hotel owned and run by Mr and Mrs Bull is available to all. Moreover the rooms available to the guests are not in the part of the building Mr and Mrs Bull occupy as their home. The religious beliefs of Mr and Mrs Bull do not exempt them from observing the regulations in their ownership and management of the Hotel.  In short, they are not obliged to provide double bedded rooms at all, but if they do, then they must be prepared to let them to homosexual couples, at least if they are in a civil partnership, as well as to heterosexual married couples.’

Future Considerations

The introduction of equal civil marriage/same-sex marriage, as proposed in UK and Scottish government consultations, could result in a range of different outcomes for circumstances such as those in Bull v Hall & PreddyPeter and Hazelmary Bull’s letting restrictions were directed at sex outside of marriage – whether heterosexual or homosexual – and if the law changes, such a refusal may not be considered discriminatory where the couple are within a same-sex marriage, although it will remain so for couples in a civil partnership or where no formal relationship exists.

However, if the UK were to introduce a Bill of Rights containing a clause such as that in the British Colombia Code, a B&B owner would not be able to deny accommodation to any unmarried couple, or to discriminate against them by only offering single-bedded room(s).

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