Face Masks: Personal Objections to Wearing Face Coverings does not Trigger the duty to Accommodate in Ontario

In Sharma v. Toronto (City), 2020 HRTO 949 (CanLII), the Applicant alleged that By-Law 541-2020 (the “By-Law”), which requires businesses and other establishments that are open to the public to adopt a policy that members of the public are not permitted entry to, or otherwise remain within, any enclosed space unless they are wearing a mask or face covering (collectively, “mask”) was discriminatory.

The Applicant brought his application against the City of Toronto (the “City”), claiming that as a result of the enactment of the By-Law, the City discriminated against him with respect to services because of his creed and disability, which is in violation of the Ontario Human Rights Code (the “Code”).

The Applicant argued that:

1. his creed prevented him from following government mandates that were not substantiated by scientific evidence and that he not blindly accepts what government or agencies claim, mandate or enact into law. Rather, it is his civic duty to be critical of government and their decisions; and

2. wearing a mask impeded his bodily functions in that he had a difficult time breathing with one on and that those with medical conditions should not bear the burden of proving or explaining their need to evoke the By-Law exemption with respect to same.

Summary Hearing Findings:

The Ontario Human Rights Tribunal (“Tribunal”) directed that a summary hearing be held to address whether the application should be dismissed on the basis that there is no reasonable prospect that it will succeed.   At the summary hearing the parties also made submissions with respect to whether or not the application should be dismissed because the Applicant failed to make specific acts of discrimination by the City.  Rather, the allegations stemmed from conduct taken by individual businesses who were not parties to the complaint.

On a summary hearing, the Tribunal is looking to see whether an application has no reasonable prospect of success.  At this stage the analysis assumes that the applicant’s version of events is true, unless there is some clear evidence to suggest otherwise or it goes undisputed by the applicant.  The Tribunal found for the following reasons that the application could not succeed:

1. Creed refers to “sincerely held religious beliefs and practices” and not “mere political opinion” that does not form a “recognisable cohesive belief system or structure”. The Applicant’s complaint was rooted in disagreement with the evidence relied upon by the government in enacting the By-Law and was not properly characterized as creed related.

2. The health conditions as described by the applicant during the summary hearing broadly fell into the category of disability, as defined by the Code. However, the City was not the proper respondent to be named with respect to the denial of services – he ought to have named the individual businesses.

As well, although businesses per the Code and the By-Law have an obligation to accommodate a disability up to the point of undue hardship, the accommodation process is a shared one.  “In order to engage the duty to accommodate, human rights law requires an individual to identify that they have disability-related needs that require accommodation. In the context of the By-Law, this means that, if questioned, an individual must identify to a business that they have a medical condition or other reason requiring an accommodation that exempts them from the business’ policy’s requirement to wear a mask.”

Reminders:

In certain situations, it may be necessary for an individual seeking an accommodation to provide information to verify their accommodation needs.  However, the By-Law specifically states that such proof is not necessary to trigger the exemption for persons with disabilities.   It is important to note that the exemption triggers a duty to accommodate the individual in the provision of services, including permitting entry without a mask, curbside pick-up, use of a personal shopper, online shopping, etc. A business’ duty to accommodate is not infinite, but rather ends at the point of undue hardship.

The Tribunal, while not tasked to deal with this issue, noted that if a patron who properly triggers the exemption to the By-Law due to disability and thereby requires an accommodation, is then lectured, harassed, turned away or banned from the store the business may, depending on the facts and evidence, be said to be in violation of the Code.

In addition to the reminders from this case, the Ontario Human Rights Commission has published COVID-19 and Ontario’s Human Rights Code – Questions and Answers, which provides additional insight on this issue.  Notably, reminders include that all parties are to work cooperatively together to find a solution and to be flexible in doing so; and employers must be mindful and balance their duty to provide for a healthy and safe work environment as found under the Occupational Health and Safety Act.

Every situation is fact dependent and parties must assess each matter based on the relevant facts and factors in order to best avoid a possible claim of a breach of the Code.  To this end it is advisable for employers to establish clear policies for both the public and their employees as to how a situation arising from the By-Law ought to be addressed and to ensure that staff are properly trained in applying policies, assessing accommodation needs, and finding flexible solutions to ensure patrons can obtain services without facing discrimination due to a Code protected ground.