Tag: face coverings

On August 19, 2021, the BC Human Rights Tribunal issued its first decision considering an application to dismiss a complaint of discrimination arising from a mandatory mask policy.

This decision is of particular relevance to businesses and employers facing mask-wearing complaints, and who may be considering applying to dismiss those complaints.

The Decision

In Rael v. Cartwright Jewellers and another, 2021 BCHRT 106, the Tribunal found that the complainant had failed to allege sufficient facts to establish a disability protected by the BC Human Rights Code (the “Code”), or to establish a nexus between a disability and the adverse impact of being denied entry into the store for failure to wear a mask.

The respondent, Cartwright Jewelers, had implemented a mandatory mask policy as part of its COVID-19 health and safety procedures. This policy was implemented prior to public health issuing a province-wide mask mandate in November 2020.

The complainant alleged in her complaint that she attempted to enter the store without wearing a mask, and was told she would have to leave the store if she would not wear a mask. The complainant described the nature of her disability simply as “breathing issues and cannot wear a mask.”  Cartwright Jewelers acknowledged that they refused the complainant entry into the store, and said that the complainant never advised them that she had a disability or required an accommodation.

Cartwright Jewelers applied to have the complaint dismissed under section 27(1)(b) of the Code. This section of the Code allows the Tribunal to dismiss a complaint if it does not allege facts that could contravene the Code. Under this section, the Tribunal will consider only the facts as alleged in the complaint, and will not consider alternative scenarios or explanations.

The Tribunal first considered whether the complainant had alleged facts sufficient to show she had a characteristic protected from discrimination, i.e., a disability. The Tribunal reiterated its long-standing interpretation of “disability” to mean: “a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life.”

Applying this interpretation to the facts alleged in the complaint, the Tribunal noted that the complainant did not describe the underlying cause of her breathing issues, whether that cause had a degree of permanence (i.e., if it was related to a pre-existing medical condition), or the extent to which it impairs her functionality. The Tribunal found that the complainant failed to allege facts sufficient to show her “breathing issue” was a disability for the purposes of protection under the Code. Elaborating on this finding, the Tribunal stated that if a claim of disability discrimination is based on a mask requirement, a complainant must establish that they have a disability under the Code and explain why this disability interferes with their ability to wear a mask.

The Tribunal then considered whether the complainant alleged facts sufficient to show a connection between her disability and the adverse impact of being denied entry into the store (assuming for the sake of the analysis that the complainant had alleged sufficient facts to establish her disability). The Tribunal recognized its prior decisions which held that unless a service provider had knowledge of an individual’s disability, a complainant will have difficulty establishing a connection between their disability and the adverse impact. The Tribunal then found the complainant failed to establish this connection, as her complaint did not allege that she informed Cartwright Jewelers that she was refusing to wear a mask due to a disability or medical condition.

While the Tribunal does recognize that detailed disclosure of information regarding disability is not required, it explains that individuals should inform service providers that they require some form of disability-related accommodation in order to trigger the serve provider’s duty to accommodate.

Key Takeaways

As we saw with the Tribunal’s publication of its screening decisions on anti-masking complaints earlier this year, this decision further emphasises that the Tribunal will be rigorously evaluating applications to dismiss these types of complaints. The decision should provide relief to employers and service providers that despite the sometimes sparse nature of the allegations provided in these complaints, the Tribunal will continue to require complainants allege a prima facie case of discrimination before allowing the complaint to proceed beyond the application to dismiss stage. Additionally, the decision confirms that the Tribunal will not consider generalized “breathing issues” to meet the definition of disability under the Code, nor will it find a nexus to be established by blanket allegations that mask wearing “is not the law” and a “violation of human rights.”

If you have any questions about this article, please contact Jessica Fairbairn or Nicole Toye.