The requirement to wear face masks in public indoor settings to curb the spread of COVID-19, subject to certain  exemptions, has resulted in a surge of human rights complaints across the country in the context of both accessing services and employment.

Based on the large volume of complaints and the public interest regarding mandatory mask-wearing policies, British Columbia Human Rights Tribunal Member, Steven Adamson (the "Tribunal"), published a screening decision for the purpose of providing education to the public on the issue. Screening decisions are rarely publicized but rather are issued by letter to the complainant only. As a result, the decision was anonymized as: The Customer v The Store, 2021 BCHRT 39.

The complaint was made by a customer who, on September 28, 2020, went to a grocery store that had a mandatory masking policy. At the time, masks were not mandated in public indoor spaces by government order but were strongly encouraged (masks have been mandatory in BC since November 2020). The customer was not wearing a mask and was stopped by the store's security guard and asked to wear a mask. The customer told the guard that she was exempt from wearing one but refused to explain why simply noting that they "cause breathing difficulties". The security guard insisted that the customer wear one, so she left the store.

In her complaint, the customer alleged that the store discriminated against her based on physical and mental disability, in violation of BC's Human Rights Code (the "Code"). The issue before the Tribunal for the purposes of the screening decision was whether the complaint alleged facts that if substantiated, could violate the Code. The customer was required to set out facts in her complaint supporting that: (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 the above test, the Tribunal stated that it was clear that the store's masking policy had an adverse impact on the customer regarding a service: she could not enter the store unless she wore a mask. However, the customer did not set out facts that, if proven, could establish that she had a physical or mental disability that was a factor in the adverse impact. The customer refused to give the Tribunal any information related to her alleged disability or how it interfered with her ability to wear a mask. When asked by the Tribunal for more information in this regard, she amended her complaint to explain "it is very difficult to breath with masks, and it causes anxiety".  She regarded her personal medical information about having a specific mental or physical disability as private matters and argued that they should not be disclosed to government bodies, including the Tribunal. She also argued that people should not have to give out personal health information to get daily essentials. While the Tribunal agreed that the disclosure of personal health information should be minimal and strictly limited to the purpose for which the information is required, whenever a person is asking for human rights-related accommodation, they are required to bring forward facts that establish the basis for the accommodation request.

In deciding that the complaint should not proceed past the screening stage, the Tribunal made clear that the Code does not protect people who refuse to wear a mask as a matter of personal preference. The Code only protects people from discrimination based on certain prohibited grounds, including disability. Therefore, without the customer setting out that she had a disability, she was not entitled to accommodation or any potential remedy under the Code.  The Tribunal concluded that:

[t]he Customer's refusal to explain whether she has a disability, and how that disability impacts her ability to wear a mask, means that she has not set out facts which could, if proven, establish discrimination. The Tribunal will not proceed with the complaint.

Takeaways

As a starting point, in all Canadian jurisdictions, a human rights complaint will not succeed unless the complainant can establish that that they possess a personal characteristic which is protected by human rights legislation (i.e., a prohibited ground of discrimination).

This case makes clear that a personal choice to refuse to wear a mask does not warrant an accommodation under human rights legislation. As we continue to cope with the impact of COVID-19 on our daily lives, we can expect to see further decisions from human rights tribunals and courts which provide guidance on exemptions to mandatory masking policies on the basis of a disability and what the duty to accommodate to the point of undue hardship, may look like in this regard.

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