For almost a year British Columbia businesses and service providers have been managing provincial health orders which mandate that masks be worn in their premises. Unlike the B.C. Vaccine Passport requirements, the mask mandate leaves a carve-out for businesses to ensure masking requirements are not in violation of the British Columbia Human Rights Code (the “Code”). Pursuant to section 8 of the Code, services or facilities which are customarily available to the public must not discriminate against a person because of, inter alia, their physical or mental disabilities.
The impact on businesses was first canvassed by us in our article “Anti-Maskers Leave Businesses Stuck Between a Rock and a Hard Place”. Months later we consider: how has the British Columbia Human Rights Tribunal (the “Tribunal”) been managing the influx of complaints regarding businesses’ lack of sufficient accommodation?
We canvass this in a review of two recent Tribunal decisions.
Christiansen v. MedRay Imaging, 2021 BCHRT 107
In July 2020, Mr. Christiansen attended the respondent’s clinic to obtain x-ray imaging for his injured foot. At this time, there was no provincial health order mandating masks in this setting, but the respondent clinic had put in place its own mandatory mask policy. The complainant, Mr. Christiansen, refused to wear a mask in the clinic, and the respondent denied him entry.
Mr. Christiansen filed a complaint with the Tribunal, alleging he did not have a mask, and that he could not go to the neighbouring pharmacy to get a mask, because it would have exacerbated the pain in his injured foot. He alleged discrimination in the provision of a service on the basis of physical disability, contrary to the Code.
Upon hearing an application by the respondent to dismiss Mr. Christiansen’s complaint, the Tribunal proceeded to dismiss the complaint, something it can only do when it finds the complaint has “no reasonable prospect of success at a hearing”.
The Tribunal affirmed that if the respondent knew, or should have known, that there was a disability creating a barrier to Mr. Christiansen’s ability to access its services, then it would have to reasonably accommodate him. The Tribunal held that if indeed he could not comply with the mask policy because he could not walk to the pharmacy to procure one, then “it was incumbent on him to bring that to [the respondent’s] attention”, which he did not.
Rael v. Cartwright Jewelers and another, 2021 BCHRT 106
On July 31, 2020, Ms. Rael attended the respondent jewelry store to shop. In a complaint filed with the Tribunal, she alleges she was denied entry for failure to wear a mask, which she says violates section 8 of the Code.
Like in the complaint of Mr. Christiansen, the Tribunal dismissed the claim upon application of the respondent.
Ms. Rael, in her complaint, described the nature of her disability as “breathing issues and cannot wear a mask”. When asked in the Tribunal’s forms to explain how the harm related to her disability she said “My human rights were denied. Mask wearing is not a law”.
Like in Christiansen, at the time of the complaint, there was no provincial health order in effect which mandated masks be worn at the premises, however the respondent had an internal policy to that effect. The respondent said that at no time did Ms. Rael say she had a disability or was in need of an accommodation.
The term “disability” is not defined in the Code, but the Tribunal has previously interpreted it 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”.
The Tribunal noted that the description of “breathing issues” is insufficient to ground a claim: the complainant had not described the underlying cause of the breathing issues or whether that cause had a degree of permanence. Further, she did not describe the extent to which it impaired her functionality. The Tribunal makes it clear: any claim of disability discrimination arising from a requirement to wear a mask must begin by the complainant establishing they have a disability and explaining why it interferes with their ability to wear a mask. A complainant must allege sufficient facts to establish a connection between any alleged disability and an adverse impact.
These decisions are important because they underscore the importance of a complainant’s burden to advise the service provider that they require some form of disability-related accommodation in order to trigger the service provider’s duty to accommodate. If the matter proceeds to a complaint, the complainant will need to establish a real disability, and that they suffered an adverse impact as a result. Further, the complainant will be required to participate in the accommodation process and cannot simply insist on their ideal accommodation.
In addition, while a provincial mask-mandate may come and go throughout the course of this pandemic, businesses can look to these decisions to understand the legality of their internal masking policies are not dependant on the presence of provincial mandates in effect at that time. However, businesses should continue to follow the requirements of the Code and to accommodate where necessary.