April 29, 2021
The British Columbia Human Rights Tribunal (the “Tribunal”) recently dismissed a complaint which alleged that it was discriminatory for a grocery store to refuse to allow a customer to enter without wearing a mask. In a decision dated March 31, 2021, The Customer v. The Store, 2021 BCHRT 39 (CanLII) the Tribunal dismissed the complaint without a hearing on the basis that the facts, even if they were proven to be true, could not establish discrimination contrary to British Columbia’s Human Rights Code (the “Code“).
The complainant was a customer who sought to enter her local grocery store on September 28, 2020. A security guard stopped the complainant from entering because she was not wearing a mask. The security guard told the complainant that the store had enacted a mask-wearing policy and she had to put a mask on or leave. At the time of this incident, British Columbia did not have any orders in effect requiring masks to be worn while indoors in public spaces. However, the grocery store had its own policy requiring customers to wear a mask.
The complainant told the security guard that she was exempt from wearing a mask because they “cause health issues”. However, she refused to tell the security guard what her health issues were, stating they were private. The complainant also told the security guard that “there were exemptions for health matters, that there was a duty to accommodate, and that health matters or disabilities were covered under the Human Rights Code“. In addition, she told the security guard that “these …[masks] cause breathing difficulties” and that she was exempt. The complainant ultimately left the grocery store when the security guard remained firm that she would need to don a mask in order to enter.
The customer then filed a complaint with the Tribunal alleging the grocery store had discriminated against her on the basis of a physical or mental disability contrary to s. 8 of the Code by requiring her to wear a mask to enter the store. As part of her complaint, the customer alleged that “the guard never said the mask-wearing policy was necessary for public safety”, “that several employees have made comments that they knew this was a ‘hoax'”, that the government had not mandated masks in stores at the time of the incident and that, even if there was a mask order, there were both exemptions and obligations to accommodate. In addition, the complainant alleged that the “sudden and arbitrary decision to force customers to wear masks is discriminatory”, that the grocery store’s mask policy was “pointless” and discriminated against people with health issues and that “people should not have to give out personal health information to get daily essentials”.
The Tribunal requested that the complainant “provide more information about the nature of her alleged disabilities and how they related to her inability to wear a mask”. The complainant provided an explanation that “it is very difficult to breathe with masks, and it causes anxiety”. The complainant also stated “Being difficult to breathe and causing anxiety makes it a hardship [to] wear a mask”. However, she refused to disclose any information about a specific mental or physical disability to the Tribunal.
The Tribunal dismissed the complaint on the basis that even if the facts alleged were found to be true, they would not establish discrimination contrary to the Code. In reaching this conclusion, the Tribunal notes that, in order to establish discrimination contrary to the Code, the facts pled by the complainant would need to establish “(1) she has 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”. In applying this test, the Tribunal found that, while the complainant had set out facts that establish that she experienced an adverse impact with respect to service (i.e. she could not enter the grocery store unless she wore a mask), she did not establish that she had a mental or physical disability. The Tribunal explained that a refusal to wear a mask due to personal preference is not protected under the Code:
“ 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. 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.”
The Tribunal also state that explanations such as wearing a mask makes it “very difficult to breathe” and “causes anxiety” are not sufficient to trigger protection under the Code.
While the Tribunal’s decision may not necessarily apply in Ontario, it demonstrates that adjudicators are unlikely to treat personal viewpoints or opinions regarding masks, including generic statements that masks cause breathing difficulties, as sufficient to trigger human rights protections, including the duty to accommodate. Rather, people will likely need to be able to identify a physical and/or mental disability (and provide proof thereof) in order to be protected under human rights legislation if they cannot wear a mask in a situation where a mask would otherwise be mandatory.