Keith v. Cypress: Keeping minors out of your bar is not discrimination

Many British Columbians consider access to alcohol a serious issue.  In fact the laws surrounding access to alcohol in British Columbia are the very reason this blog exists. Still for others, access to alcohol is not just a serious or even a legal issue – its a matter of human rights.

On December 17, 2016 at about 5:00 pm Brendan Keith, his spouse, and their 12 year old son attempted to have dinner at the Crazy Raven Bar & Grill on Cypress Mountain (a ski hill located in a provincial park in West Vancouver). The Crazy Raven has a liquor primary liquor licence.  Mr. Keith observed a sign outside the entrance to the Crazy Raven stating that persons under the age of 19 were prohibited from entry.

Rather than proceed to have dinner at the Cypress Creek Grill, conveniently located next door and which is licensed as a food primary establishment (the two establishments literally share a wall), Mr. Keith engaged in an argument first with a Crazy Raven staff member, which he then escalated to the Crazy Raven’s guest relations manager. Mr. Keith explained to these individuals that recent changes to British Columbia’s liquor laws permitted minors in liquor primary establishments. Mr. Keith’s seminar on British Columbia’s liquor laws did not carry the day and he left the ski hill “disgusted, upset and embarrassed”, and drove back to Vancouver to have dinner. Mr. Keith says his family’s entire evening was wasted and the incident really upset the family.

The facts above are not set out in a complaint to the Better Business Bureau, or a Yelp review; they are contained in a recent decision of the British Columbia Human Rights Tribunal, Keith v. Cypress Bowl Recreations, 2017 BCHRT 273. The full decision can be read here.

Issues

Mr. Brendan Keith brought a complaint before the British Columbia Human Rights Tribunal complaining that when he and his 12 year old son were refused admittance to the Crazy Raven he was discriminated against and more specifically it was a violation of section 8 of the B.C. Human Rights Code – denial of a service customarily available to the public on the basis of family status. The respondent Cypress Bowl Recreations (which operates both the ski resort and the restaurants located in the lodge at the base of the hill ) sought to have Mr. Keith’s complaint dismissed at a preliminary stage for having no prospect of success.

Like all liquor licensees in British Columbia,  the Crazy Raven must operate subject to the terms and conditions of its liquor licence as well as the confines of the Liquor Control and Licensing Act. Both the Act (section 79(1)), and the Guide for Liquor Licensees in British Columbia, stipulate that liquor primary licensees must not allow minors (individuals under the age of 19) in their establishment unless otherwise permitted by the terms of their licence.

The Crazy Raven’s licence has in fact been approved for what is known in the industry as a family food service term and condition. This means that minors accompanied by their parents or guardian may, if otherwise permitted by the Crazy Raven, be present in the Crazy Raven until 10 pm. This is a relatively new term and condition that was made available to licensees as a result of the recommendations contained int the Yap Report.

However, despite being approved for the option of permitting minors in its establishment until 10 pm, the Crazy Raven is not required to at all times avail itself of that option.  The policy directive stipulates that establishments approved for the family food service term and condition are not obligated to permit entry to minors. Instead, establishments like the Crazy Raven may choose to restrict or prohibit minors from entry at any time without prior approval or notification to Liquor Control and Licensing Branch.

In short, the respondent Cypress Bowl Recreations submitted that the family food service permit in no way functions as an obligation to permit entry to minors. Rather it operates as an exercisable “option”, which the Crazy Raven exercises during the slower summer months.

Mr. Keith, who represented himself before the tribunal, asserted that he was denied access to the Crazy Raven because he was with his son, therefore he was denied service on the basis of family status.  Mr. Keith claimed that the respondent had breached the Code by knowingly enacting policies, fully within its control, which deliberately denied service to minors accompanied by their parents. Since this discrimination could be fully avoided by a simple change of policy without any modification or change to the respondent’s liquor licence, Mr. Keith argued that the Crazy Raven’s treatment of him was prima facie discriminatory.

The Tribunal’s view was that Mr. Keith’s submissions failed to recognize that he did not allege that he personally received any adverse treatment because of his family status.  The facts before the Tribunal confirmed that Mr. Keith himself was permitted to enter the Crazy Raven on the day in question. He simply chose not to enter because he was accompanied by his son who was 12 years of age, and no minors were at that time permitted in the Crazy Raven.

The Tribunal noted that section 41(2) of the Code specifically exempts from its purview “a distinction on the basis of age if that distinction is permitted or required by an act or regulation”. Therefore the age of Mr. Keith’s son does not fall under the protection of the Code.  Moreover, the Code only protects individuals 19 years or older from differential access to services. Thus as his son was only 12 years old on the date Mr. Keith and his family sought access to the restaurant, differential treatment because of his son’s age did not constitute discrimination.

The Tribunal went on to observe that Mr. Keith’s urging of the Crazy Raven to change its policy shows that Mr. Keith did not allege that he was denied entrance because of his relationship to his son; he was denied because his son was 12 years old. It did not matter to the Crazy Raven whether the person accompanying Mr. Keith was his son, his nephew or a stranger. What mattered was that the individual was 12 and therefore a minor. Complaint dismissed.

If you have questions or concerns about British Columbia’s liquor laws, or related issues, and their impact on your business contact Dan Coles at Owen Bird.

*Alcohol & Advocacy publishes articles for information purposes only. They are not a substitute for legal advice, and persons requiring such advice should consult legal counsel.

Dan Coles
Retired bartender. Young lawyer. From the East, living in the West. Interested in British Columbia's producers and purveyors of wine, beer and spirits.