With mask mandates implemented in various forms across the country, so to attempts to circumvent or avoid those requirements are proliferating. Some businesses have chosen the path of civil disobedience, simply operating without enforcement of the rules requiring masks; these may create a public relations problem for police reluctant to enforce the measures, but are not legally complicated.
On the other hand, numerous individuals and organizations claim or support claims of disability preventing the wearing of a mask, with some producing or carrying fake disability cards claiming a hidden disability that purportedly exempts the holder from mask wearing.
Discrimination in the provision of goods and services on the basis of disability is illegal in Canada, directly contravening Federal and Provincial Human Rights Codes. Where a person suffers from a disability that prevents them from wearing a mask, enforcement of the mask requirements would prevent them from accessing any goods or services and would clearly create a discriminatory effect based on disability.
Health information, however, is personal and private, and in general a person with a disability cannot be required to disclose details of their diagnosis, medical history, or treatment. Sadly, this privacy protection for persons with disabilities opens the door to bad faith actors to claim a disability exemption without any underlying disability while deflecting legitimate inquiries with privacy concerns.
The BC Human Rights Tribunal has stepped into this conflict with its screening decision in Customer vs The Store, 2021 BCHRT 39. The facts were simple: a customer refused to wear a mask while shopping in the store, and on being asked to wear a mask by store employees claimed an unspecified disability exempted her from mask wearing rules. The store insisted that a mask was required, and so the customer left, subsequently bringing a complaint before the HRT of discrimination based on disability.
The Tribunal declined to proceed with the claim.
A screening decision is made by the Tribunal at a preliminary stage, based on information provided by the complainant only, and without responding submissions from the respondent. While normally issued in the form of a letter and kept confidential, the Tribunal chose to publish this screening decision based on the importance of the issues and the frequency with which they are being raised, consistent with its public education mandate.
The Tribunal sets out that to make a finding of discrimination a complainant must establish:
- That they have a disability
- That the respondent’s conduct had an adverse impact on them; and
- The disability was a factor in the adverse impact.
While the adverse impact was clear, the complainant had not disclosed any facts that could support either the finding that she had a disability or that the disability was a factor in the adverse impact.
The customer’s assertion that masks make it “difficult to breathe” or “cause anxiety” do not disclose any disability falling within the protections of the Human Rights Code. The Code does not protect people who refuse to wear a mask as a matter of personal preference or because they do not believe that masks are effective, but rather requires an actual disability that interferes with their ability to wear a mask.
In terms of disclosure of health information, the Tribunal was clear that while this information is private and disclosure should be limited and strictly limited to the purpose for which the information is required, a person seeking a human rights accommodation is required to bring forward “facts relating to discrimination”: Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970.
The Tribunal was not prepared to be more specific about the facts a claimant should disclose to a service provider, preferring instead to refer to the general advice of the BC Human Rights Commissioner:
“Where the relationship is brief, I recommend duty bearers accommodate those who are unable to wear masks without requiring them to provide medical information, as this is sensitive personal information”
The Tribunal was clear, however, that in order to file a human rights complaint a complainant must set out facts which could, if proven, establish that they have a disability. A complainant cannot, as in this case, simply assert that her disability is a private matter: “Parties before the Tribunal, like those before the courts, face an inevitable loss of privacy with respect to the matters in issue between them.” (Sinclair v. Blackmore and others, 2004 BCHRT 37at para. 29).
In the result, the complaint failed to set out facts which, if proven, could establish that the complainant had a disability, and so the complaint was rejected. And while the decision offers scant guidance to businesses in enforcing their mask mandates, it has made clear that the mere declaration of disability by a complainant without supporting facts cannot form the basis of a human rights complaint.
