Carscallen Blog

B.C. Tribunal dismisses anti-mask discrimination complaints

Posted by Carscallen LLP on Apr 20, 2021 10:47:03 AM

Written by Suzanne M. Porteous and Catherine A. Crang, Q.C.

The B.C. Human Rights Tribunal (the “Tribunal”) recently dismissed two allegations of discrimination by complainants in connection with the province’s requirement to wear face coverings indoors (the “Mask Mandate”) pursuant to Ministerial Orders M425 and M012[1]. The first complaint, The Customer v. The Store[2] (“The Customer”), was made by a customer (“First Complainant”) who refused to wear a face mask at a grocery store based on an alleged disability and was denied entry. The second complaint, The Worker v. The District Managers[3] (“The Worker”), was made by a B.C. worker (“Second Complainant”) who was fired for refusing to wear a mask while working.

The Tribunal issued screening decisions in both cases (the “Decisions”) on March 31 and April 8, 2021, respectively, under Section 27(1)(b) of the B.C. Human Rights Code[4] (the “Code”) and Rule 12(2) of the Tribunal’s Rules of Practice and Procedure[5] (the “Rules”).

Although the Tribunal ordinarily issues its screening decisions by letter, it published the Decisions due to the large volume of complaints it has received and continues to receive alleging discrimination in connection with the province’s Mask Mandate and public interest in the issue. However, the Tribunal decided not to publish the names of either Complainants, the respondents, or the location of the complaints to protect the individuals’ privacy.

Protection from discrimination based on disability

In The Customer, the Tribunal dismissed the First Complainant’s allegation of discrimination based on disability under s. 8 of the Code because she refused to provide the Tribunal with any information about the nature of her alleged disabilities and how they related to her inability to wear a mask. Specifically:

  • She refused to disclose any information about having a specific mental or physical disability, which she regarded as private matters that should not be disclosed to government bodies, including the Tribunal;
  • In response to the Tribunal’s further request for such information, she stated: “Being difficult to breathe and causing anxiety makes it a hardship [to] wear a mask”[6];
  • The First Complainant stated that the “sudden and arbitrary decision to force customers to wear masks is discriminatory” and that the [store’s mask] policy was “pointless” and discriminates against people with health issues”; and
  • The First Complainant stated that people should not have to give out personal health information to get daily essentials.[7]

The Tribunal dismissed the complaint because it did not provide the Tribunal with facts establishing that: (1) the First Complainant had a disability; (2) the store’s conduct had an adverse impact on her regarding a service; and (3) her disability was a factor in the adverse impact[8].

Protection of religious beliefs and practices

In The Worker, the Second Complainant filed a complaint against the district managers of the facility where he worked, alleging a violation of s. 13 of the Code. Specifically, the Second Complainant alleged his employer discriminated against him based on his religion by terminating his employment for refusing to wear a face mask, arguing he could not wear a mask based on his “religious creed”.

According to the Second Complainant, his religious beliefs included, among other things, that:

  • “We are all made in the image of God, a big part of our image that we all identify with is our face. To cover up our face arbitrarily dishonours God”;
  • It was his freedom of expression to show his face in the general public and his religious liberty to identify his face to others;
  • B.C.’s Mask Mandate infringed on his “God given ability to breathe”;
  • He did not believe that mask wearing was effective, and “forced mask wearing does not help protect anyone from viruses”; therefore, he could not “live in that lie”; and
  • He also included in the complaint his disagreement with the safety and efficacy justifications of the Mask Mandate.

According to the Supreme Court of Canada (“SCC), a worker’s religious belief or practice is protected by human rights legislation when a person can show that they sincerely believe that the religious belief or practice: (1) has a connection with religion; and (2) is experientially religious in nature.[9]

In this case, the Tribunal dismissed the complaint because the Second Complainant could not establish his objection to mask-wearing was grounded in a sincerely held religious belief. Rather, his objection was based on his opinion that wearing a mask did not stop the transmission of COVID-19, which belief is not protected by the Code.

In Alberta, the Human Rights Commission (the “Alberta Commission”) has stated that it may accept a complaint based on an assertion that wearing a mask interferes with a religious belief. However, the complainant would still need to provide sufficient information in the complaint that not wearing a mask is a sincerely held belief related to their religion. More information from the Alberta Commission regarding COVID-19 and human rights can be found here.

Personal preference is not protected in human rights law

Given the number of discrimination complaints stemming from mask mandates, both of these decisions reinforce the fact that personal preferences and opinions are not protected grounds under human rights legislation. In its decision in The Customer, the Tribunal explained:

  • The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic;
  • Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability;
  • This protection is reflected in exemptions to mask‐wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering; and
  • Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.[10]
Human rights complaints should include sufficient information

These decisions also demonstrate the importance of including sufficient information in a human rights complaint, including providing further or clarifying information if requested by the Tribunal.[11] This is reflected in Rule 12(2), which requires that a complaint must allege facts that, if proven, could be a contravention of the Code against each person named as a respondent. The First Complainant, in refusing to provide the Tribunal with information regarding her alleged disability and how it would interfere with mask wearing, ultimately did not set out sufficient facts in her complaint that, if proved, could establish she had a physical or mental disability.[12]

The Alberta Commission’s website echoes this, stating that a complainant will most likely need to provide medical information [to the Commission] early in the complaint process confirming they have a disability that prevents wearing a mask.

The Tribunal emphasized in The Customer that any disclosure of health information should be minimal and strictly limited to the purpose for which the information is required. However, the Tribunal left undecided the specific issue of how much information a complainant must give a retailer in order to qualify for a human-rights accommodation in the case of a disability requiring accommodation. It may be that human rights tribunals in Canada specifically consider and address that issue in the coming months, although the Tribunal did note the recommendation of the B.C. Office of the Human Rights Commissioner that “where the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information”.

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*This update is intended for general information only on the subject matter and is not to be taken as legal advice.

 

[1] B.C. Ministerial Order Nos. M425 and M012, ss. 3-4, online: https://www.bclaws.gov.bc.ca/civix/document/id/mo/mo/m0425_2020 and https://www.bclaws.gov.bc.ca/civix/document/id/mo/mo/m0012_2021.

[2] The Customer v. The Store, 2021 BCRT 39 [The Customer].

[3] The Worker v. The District Managers, 2021 BCHRT 41.

[4] Human Rights Code, RSBC 1996, c. 210.

[5] Rules of Practice and Procedure, BC Human Rights Tribunal, online: http://www.bchrt.gov.bc.ca/shareddocs/rules/2021RulesOfPracticeAndProcedure.pdf [Rules].

[6] The Customer at para 11.

[7] The Customer at para 10.

[8] Moore v. British Columbia (Education), 2012 SCC 61 at para 33.

[9] Syndicat Northcrest v. Amselem, 2004 SCC 47 at para 69.

[10] The Customer at para 14.

[11] Rules, ss. 12(4)-(5).

[12] The Customer at para 13.

Topics: Employment, Labour and Human Rights Law, Case Comments

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