Mask Wearing Complaints
During the COVID-19 pandemic, the government has made public health orders requiring masks in some settings.
Many people are filing complaints related to mask wearing when seeking services. Often, people say that they can’t wear a mask because of a disability. They say the store denied them services.
The Tribunal has set requirements for complaints about mask-wearing in services. The Tribunal will dismiss a complaint that does not include the requirements. The Tribunal will not give you any further chance to provide more information.
Effective March 21, 2022, the Tribunal has also paused processing complaints about mask requirements in services for one year. For more information, see the Notice.
Rights and duties under the Human Rights Code – Mask wearing complaints
The Human Rights Code does not protect people who object to mask rules because of their personal beliefs.
The Human Rights Code only protects people who cannot wear a mask because of a protected characteristic, like disability.
People who cannot wear a mask because of a protected characteristic have a right to “reasonable accommodation”.
Employers and service providers are allowed to make rules requiring masks. The rules do not discriminate, if:
- evidence supports the need for the rule
- the rule is made in good faith
- the employer or service provider offers reasonable accommodation.
What is reasonable accommodation?
A service provider or employer does not discriminate if they offer reasonable accommodation.
An accommodation may be reasonable even if it does not give full access to the service. For example, a business may offer to serve a customer outside or may offer online shopping. This could be a reasonable accommodation. What is reasonable will depend on the circumstances.
An accommodation is not reasonable if it causes undue hardship.
The Human Rights Tribunal of Alberta has issued decisions about reasonable accommodation. In two cases, a store had a mask policy to protect employees and customers. The stores based the policy on public health regulations and scientific information. In both cases, a customer could not wear a mask due to a disability. The Alberta Tribunal said that human rights law requires a balancing of rights.
- In one case, the store offered the customer a face shield. It also offered online and other shopping options. The Alberta Tribunal found the store’s policy was reasonable and justified. It dismissed the complaint without a hearing. See: Szeles v. Costco Wholesale Canada Ltd., 2021 AHRC 154.
- In another case, the store offered the customer online shopping with free delivery or curb-side pick-up. The store had a science-based reason for its policy. The customer disagreed but did not have evidence. The Alberta Tribunal dismissed the complaint without a hearing. See: Beaudin v Zale Canada Co. o/a Peoples Jewellers, 2021 AHRC 155.
The BC Tribunal has also issued decisions about reasonable accommodation. It has said a customer is entitled to a reasonable, not perfect solution:
- A store adopted a mask policy in good faith to implement a COVID safety plan. The store offered the customer services at the door. The Tribunal dismissed the complaint as having no reasonable chance of success: Ratchford v. Creatures Pet Store, 2021 BCHRT 157.
- A store adopted a mask policy in good faith ensure the health and safety of its employees and members of the public in a global pandemic. The store offered the customer options of shopping outside or online. The customer’s assertion that she was “exempt” from a mask order did not give her unfettered access to the store. The Tribunal dismissed the complaint has having no reasonable chance of success: Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156.
Tribunal decisions about whether the complaint could violate the Code
The Tribunal has publicly issued decisions about whether a complaint about a mask requirement set out facts that could violate the Code:
- A store did not allow the customer to enter without a mask. The customer said wearing a mask made it “very difficult to breathe” and “causes anxiety”. She did not give information to the Tribunal to show she has a disability that prevents her from wearing a mask. This information is necessary for a human rights complaint. The Tribunal did not let the complaint proceed. See: The Customer v. The Store, 2021 BCRT 39.
- A worker refused to wear a mask because he said it dishonored God. The worker did not set out facts that could show a particular religion banned masks. He believed masks are ineffective. The Human Rights Code does not protect this belief. The Tribunal did not proceed with the complaint. See: The Worker v. The District Managers, 2021 BCHRT 41.
- A store did not allow the customer to enter without a mask. The customer said she has “breathing issues”. She did not say that she has a disability that interferes with her ability to wear a mask. She did not say that she asked the store to accommodate a disability. This information is necessary for a human rights complaint. The Tribunal dismissed the complaint. See Rael v. Cartwright Jewelers and another, 2021 BCHRT 106.
Vaccine Requirement Complaints
The Tribunal can only deal with complaints that allege someone violated the Human Rights Code.
The Tribunal cannot deal with a complaint that only says someone disagrees with a vaccine requirement. See the Tribunal’s decision in Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120.
A complaint must set out:
- What is the vaccine requirement.
- How did the vaccine requirement negatively affect a person or group.
- How does the negative effect relate to a protected area such as employment or public services.
- How is the person the complaint is against [respondent] responsible for the negative effect.
- How is a protected characteristic a factor in the negative effect.
For example, disability is a protected characteristic. A complaint must explain how the disability is connected to the adverse effect, such as the disability prevents the person from being vaccinated. See the Tribunal’s decision Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119.
For more information, see: