The British Columbia Human Rights Tribunal released a screening decision about a customer’s complaint of having to wear a mask in a store.
Recently, the British Columbia Human Rights Tribunal declined to accept a complaint in a case called The Customer v The Store, 2021 BCHRT 39 (The Customer). Since November of 2020, due to COVID-19, masks have been mandatory indoors in B.C. Before that, many businesses followed recommendations to make face coverings mandatory. Most recently, under Ministerial Orders passed under the authority of the Emergency Program Act, a visitor to an indoor public space must wear a face covering. There are exemptions to the rule. These include where a person is unable to wear a face covering because of a “psychological, behavioural or health condition” or “a physical, cognitive or mental impairment” (see s. 4 of the Order).
“The Customer” went into a grocery store without a mask. A security guard stopped her and asked her to wear a mask. She said she was exempt. When asked to provide a reason why she was exempt, she refused to provide many details, except to say they cause “breathing difficulties”. When the security guard insisted that she wear a mask, she left the store.
The Customer complained that “The Store” discriminated against her based on physical and mental disability, thereby violating s. 8 of B.C.’s Human Rights Code. This ruling was made at the screening stage of the human rights complaint process. When asked, the Customer refused to provide the Tribunal with any information about her disability, or how it interfered with her ability to wear a mask. The Tribunal declined to proceed with the complaint.
The Customer argued that the Store’s mask policy was discriminatory. The Customer also argued that, even if there was an order, there are exemptions and duties to accommodate. However, the Customer also had an obligation to demonstrate 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: Moore v. British Columbia (Education), 2012 SCC 61 at para 33.(The Customer, para 12)
The Tribunal held that the Customer had shown an adverse impact regarding a service—she could not enter the Store unless she wore a mask. However, she had not set out facts that, if proved, could establish that she has a physical or mental disability that was a factor in this adverse impact.
The Customer refused to tell the Tribunal whether she had a disability. She only said that wearing a mask causes her anxiety and makes it difficult for her to breathe. She argued that she should not have to disclose health conditions that are private—not to the Store nor the Tribunal.
The Tribunal declined to rule on the amount of information a claimant must disclose to a service provider. It did note: “whenever a person is asking for human rights‐related accommodation, they are required to bring forward the ‘facts relating to discrimination’: Central Okanagan School District No. 23 v. Renaud,  2 SCR 970” (The Customer, para 16). The Tribunal went on to hold:
[T]here is no question that when a person files a human rights complaint with this Tribunal, they must set out facts which could, if proven, establish that they have a disability. Without a disability, they are not entitled to accommodation or any potential remedy for discrimination under the Code. It is not enough, as the Customer has done in this complaint, to simply say that ‘specific mental and physical disabilities are private matters’.(The Customer, para 17)
While there are very few decided cases on this issue, many human rights commissions across Canada have released guidance on masks and accommodation:
- British Columbia: A human rights approach to mask-wearing during the COVID-19 pandemic
- Alberta: COVID-19 and Human Rights
- Saskatchewan: COVID-19, Disability, and the Code
- Manitoba: COVID-19 and The Human Rights Code
- Ontario: COVID-19 and Ontario’s Human Rights Code
- Quebec: Your rights and COVID-19
- New Brunswick: Mandatory masks in compliance with Human Rights Act
- Nova Scotia: Nova Scotia Human Rights Commission Statement on COVID-19 Pandemic
- Northwest Territories: COVID 19 Statement
- Newfoundland and Labrador: COVID-19 and Human Rights – Best Practices
- Prince Edward Island: Frequently Asked Questions on Mask Wearing Requirements
- Yukon: COVID-19 FAQs
- Canada: Statement COVID-19
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The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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