British Columbia’s Human Rights Tribunal (the “Tribunal”) has experienced an influx of complaints related to the donning of masks on one’s face since such mask policies were enacted in November of 2020.
The first decisions on these mask-related complaints have recently been published.
Today, we summarize four of the most recent decisions on whether wearing a mask is a contravention of one’s human rights. Three of the complaints discussed below allege discrimination on the basis of disability, and one complaint alleges discrimination on the basis of religion.
All complaints were dismissed*.
As more decisions are published, we expect to develop a better understanding of when a request to wear mask constitutes a contravention of the BC Human Rights Code (the “Code”).
Style of Cause: The Customer v. The Store, 2021 BCHRT 39
Date Issued: March 31, 2021
Finding: Complaint dismissed.*
In one of the first decisions on the matter, the Tribunal published their reasons for deciding not to proceed with a complaint past the initial stage of complaint screening.
The background facts were summarized as follows:
This complaint concerns a customer who went to shop at a grocery store while not wearing a face mask. At the time, masks were not mandated by government order, but the Store had a policy that required customers to wear a mask. A security guard stopped the Customer and asked her to wear a mask. The Customer told the guard that she was exempt from wearing one but refused to explain why, other than to say they “cause breathing difficulties”. The guard insisted that she wear one, and so the Customer left the Store.at paragraph two
The complainant then filed a complaint with the Tribunal, citing discrimination on the basis of physical and mental disability, which the complainant alleged was a violation of section 8 of the Code.
The complainant’s claim was dismissed as the complainant failed to provide the Tribunal with any information relating to the complainant’s alleged disability, including how the disability interfered with the complainant’s ability to wear a mask. For these reasons, the Tribunal did not proceed with the complainant’s complaint.
Style of Cause: The Worker v The District Managers, 2021 BCHRT 41
Date Issued: April 8, 2021
Finding: Complaint dismissed*
The complainant was contracted to work for the respondent company at a facility. When the complainant arrived at the facility to start work, he was told to wear a face mask. The complainant refused to do so as his “religious creed” prevented him from doing so. The complainant was informed he could not enter the facility without a mask. The complainant’s contract was subsequently terminated, following which, the complainant filed a human rights complaint against the district managers alleging discrimination on the basis of religion, contrary to section 13 of the Code.
The complainant described his religious belief as follows: “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 dishonors God”. The complainant further stated that, “God makes truth of high importance that I must follow ethically and morally”, and “forced mask wearing does not help protect anyone from viruses” (at paragraph 10).
The complainant failed to point to any facts that supported a finding that wearing a mask was “objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43.” (at paragraph 11).
The Tribunal found that the nature of the complainant’s complaint was a disagreement as to whether wearing a mask prevented the transmission of the virus. Such a disagreement did not constitute a religious belief, and the Tribunal did not proceed with the complaint.
Style of Cause: Rael v Cartwright Jewelers and another, 2021 BCHRT 106
Date Issued: August 19, 2021
Finding: Complaint dismissed*
The complainant, a woman with an alleged breathing issue, was denied entry to the respondent’s store when she declined to wear a mask. She then filed a complaint with the Tribunal alleging discrimination contrary to section 8 of the Code.
The complainant failed to provide the Tribunal with any information relating to the extent of her disability and the connection between her disability and the adverse impact of being denied entry into the respondent’s store. Further, the complainant did not inform the store her refusal to wear a mask was connected to a disability or medical condition that she otherwise required accommodation for.
The complaint was dismissed in its entirety.
Style of Cause: Christiansen v MedRay Imaging, 2021 BCHRT 107
Date Issued: August 20, 2021
Finding: Complaint dismissed*
The complainant, a man with a broken foot, walked into a clinic to obtain an x-ray in July 2020. Upon arrival, the un-masked complainant was asked to wear a mask in accordance with the clinic’s policy, was informed that a mask could be obtained at the neighbouring pharmacy, and was further advised that he would not be served without one.
The complainant refused to wear a mask, was refused entry, and walked away.
The complainant subsequently filed a complaint against the clinic, alleging discrimination in the provision of service on the basis of physical disability contrary to section 8 of the Code.
The complainant’s claim was dismissed as the complainant never alleged that he had a disability that prevented him from donning a mask, but instead said, as summarized in paragraph 15 of the decision, that “his broken foot constituted a disability and that he could not obtain a mask to comply with the mask policy because walking to the pharmacy to obtain a mask would have exacerbated his disability.”
Further, the complainant did not inform the clinic that he required accommodation, which is what he should have done. Instead, he claimed that his human rights were being violated.
As stated in paragraph 18, “If indeed it was the case that [the complainant] could not comply with the mask policy because he could not walk to the pharmacy to procure one, it was incumbent on him to bring that to MedRay’s attention. He did not. In the circumstances, I am persuaded that there is no reasonable prospect [the complainant] could succeed in establishing a breach of the Code.”
*for the purposes of this blog post, the phrase “complaint dismissed” encompasses a range of results including but not limited to: complaint dismissed, complaint not accepted for filing, no reasonable prospect of success, or the Tribunal has decided not to proceed with the complaint.
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