HUMAN RIGHTS | Disabilities, Accommodation and Mask Rules: Human Rights Commission weighs in.

• Author: Panos, Linda Mckay

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...