Davies v. BC Ministry of Public Safety and Solicitor General and others, 2025 BCHRT 121
Date Issued: May 15, 2025
File(s): CS-003546
Indexed as: Davies v. BC Ministry of Public Safety and Solicitor General and others, 2025 BCHRT 121
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Brian Davies
COMPLAINANT
AND:
His Majesty the King in Right of the Province of British Columbia as represented by the Ministry of Public Safety and Solicitor General, BC Liquor Distribution Branch and Fawn Last Name Unknown
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c) and 27(1)(d)(ii)
Tribunal Member: Ijeamaka Anika
On their own behalf: Brian Davies
Counsel for the Respondent: Julia Roe
I INTRODUCTION
[1] Brian Davies alleges he was denied service in March 2021 when he went to a BC Liquor Store operated by the BC Liquor Distribution Branch. Mr. Davies identifies as a person with disabilities and says he cannot wear a mask due to his disabilities. He says the BC Liquor Store manager, Fawn, together with the BC Liquor Distribution Branch [the Respondents ] would not serve him even though he told them he was medically exempt from wearing a mask. Therefore, Mr. Davies says, the Respondents discriminated against him in services on the basis of disability pursuant to s. 8 of the Human Rights Code.
[2] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code. The Respondents argue that there is no reasonable prospect that the complaint will succeed because Mr. Davies has not provided evidence of a disability that prevented him from wearing a mask. The Respondents argue that, further and in any event, they took steps to accommodate Mr. Davies but Mr. Davies failed to participate in the accommodation process. The Respondents also apply to dismiss the complaint against the Individual Respondent, Fawn under s. 27(1)(d)(ii) of the Code . It argues that proceeding against the individual respondent would not further the purposes of the Code.
[3] Mr. Davies provided the Tribunal with details of his disability but has otherwise not made submissions in response to the dismissal application.
[4] I find that I can decide the application most efficiently under s. 27(1)(c).
[5] For the following reasons, I grant the dismissal application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[6] This background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[7] BC Liquor Distribution Branch [ LDB ] operates a BC Liquor Store in Kimberly, BC.
[8] On March 18, 2020, the Province of BC declared a state of emergency because of the COVID‐19 pandemic. The Respondents say that in the spring and summer of 2020, under the guidance of and pursuant to orders from the Provincial Health Officer, it implemented safety measures to control the health and safety hazards presented by COVID-19. It encouraged customers to wear masks and limited the number of customers that could be in a store at once. By October 30, 2020, LDB recommended that all staff and customers wear masks.
[9] Following the Provincial Health Officer’s press conference on December 14, 2020, announcing mandatory mask wearing in indoor public spaces, on December 15, 2020, the Respondents implemented a mandatory mask policy:
a. All employees and customers were required to wear masks;
b. Customers who refused to wear masks were refused entry to LDB’s stores;
c. Customers who could not wear masks due to a medical exemption or disability were exempt from the mask wearing requirement.
[ Mask Policy ]
[10] The Respondents posted signage informing customers of the mandatory Mask Policy on their front window and doorway.
[11] On December 14, 2020, the Provincial Health Officer provided further guidance that people who could not wear masks should be accommodated but should not necessarily be provided with maskless access to a space or service.
[12] In March 2021, the Respondents established a process for accommodating customers who said they had a medical condition that prevented them from wearing a mask. On March 9, 2021, LDB sent an email with updated signage to the BC Liquor Stores to remind them of this process:
a. The manager on duty speaks to the customer and makes a note of the interaction in a Mask Compliance Log;
b. The manager informs the customer that the customer’s products will be collected while the customer waits near the front entrance;
c. The manager assigns a staff member to collect these products and to bring them to the nearest checkout till;
d. Once the products have been collected and brought to the till, the manager directs the customer to the till to pay for the products.
[the accommodation ]
[13] Customers could view the store’s product selection at the BC Liquor Store website.
[14] The details of the interaction that gave rise to this complaint are not seriously in dispute. On March 15, 2021, Mr. Davies entered the store without wearing a mask. He told the store staff that he had a medical exemption. The manager told him to wait in front of the store while a staff member shopped for him and gave him a copy of the mask policy. Mr. Davies continued into the store and selected the items he needed. When Mr. Davies came to pay for the items, the manager refused to check out Mr. Davies’ items. Mr. Davies left the store.
III DECISION
[15] In this decision, the burden is on the Respondents to show that the complaint should be dismissed because there is no reasonable prospect that it would succeed after a full hearing: s. 27(1)(c).
[16] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[17] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[18] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , 1989 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill , 2011 BCCA 49 at para. 27. The threshold to move the complaint forward to a hearing is low.
[19] To prove his complaint at a hearing, Mr. Davies will have to prove that (1) he has a disability, (2) he was adversely impacted in services, (3) that his protected characteristics were a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33.
[20] If he does that, the burden will shift to the Respondents to justify the impact as a bona fide reasonable justification. If the Respondents justify the impact, there is no discrimination.
[21] I find that I can decide this application by determining whether the Respondents are reasonably certain to prove that they discharged their obligation to reasonably accommodate Mr. Davies. For that reason, I will assume without deciding that Mr. Davies has taken the elements of his case out of the realm of conjecture.
[22] The Supreme Court of Canada set out the three-stage analysis for determining a bona fide reasonable justification defence in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [ Grismer ]. To justify denying Mr. Davies services at a hearing, the Respondents would have to prove that: (1) they adopted the standard for a purpose rationally connected to the function being performed; (2) they adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to the accomplishment of that legitimate purpose. This third element encompasses the Respondents’ duty to accommodate Mr. Davies to the point of undue hardship and Mr. Davies’ duty to cooperate in the accommodation process: Grismer at para. 20 .
[23] As noted above, Mr. Davies has not submitted a response to this dismissal application beyond providing the details of his disability and stating that he qualified for a mask exemption. Nonetheless, I have considered the whole of the evidence before me, and I am satisfied that the Respondents are reasonably certain to establish the three elements of Grismer at a hearing. I set out my reasons next.
[24] I do not doubt that the Respondents are reasonably certain to prove the first and second elements of Grismer at a hearing. The Respondents say LDB adopted the mask policy to reduce the transmission of COVID-19 in accordance with the provincial public health orders. There is also no dispute that LDB adopted the mask policy to provide a safe work environment for employees and a safe shopping environment for customers. Nothing in Mr. Davies’ complaint suggests that he took issue with the Mask Policy.
[25] The crux of the issue is the third element of the test: whether the Respondents are reasonably certain to prove that they accommodated Mr. Davies to the point of undue hardship. The Court has stated that “the search for accommodation is a multi-party inquiry”: Central Okanagan School District No. 23 v. Renaud , 1992 SCR 970. Renaud stands for the proposition that while the duty to accommodate rests principally with a service provider, service users may also have obligations. For example, the duty to cooperate in the accommodation process.
[26] Therefore, I must consider whether the Respondents are reasonably certain to prove that they discharged their duty when Mr. Davies failed to participate in the accommodation process: Renaud . What is reasonable and what constitutes accommodation short of undue hardship is fact specific and will turn on the specific circumstances of each case. Like all those seeking an accommodation, Mr. Davies is entitled to a reasonable accommodation, not a perfect one: Coelho v. Lululemon Athletica Canada Inc ., 2021 BCHRT 156; Renaud at p. 994‐995.
[27] For the reasons below, I am satisfied that the Respondents are reasonably certain to prove that they fulfilled their duty to provide Mr. Davies with reasonable accommodation.
[28] I must only consider the evidence before me and cannot speculate about what evidence might be called at hearing: Chan at para. 77. The Respondents say that when the manager told Mr. Davies how he could be accommodated – that staff would shop for him while he waited in front of the store – he refused, disregarding the store’s policy and the PHO’s order by entering the store without a mask and shopping. Mr. Davies did not include in his complaint any particulars about why the accommodation the Respondents offered him was unreasonable, nor did Mr. Davies dispute that the manager told him she would shop for him and asked him to wait in front of the store.
[29] I find it is reasonably certain that the Respondents will establish that Mr. Davies failed to participate in the accommodation process as required and expected, thereby bringing the Respondents’ duty to an end. As in Coelho, the complaint has no reasonable prospect of success because Mr. Davies “thwarted the accommodation process” when he failed to cooperate with the accommodation process: para. 34.
[30] Contrary to Mr. Davies’ argument, an exemption from wearing a mask did not mean that he could disregard the mask policy and enjoy “unfettered, maskless physical access” to the store: Coelho at para. 31. Rather, human rights protections under the Code obliged the Respondents to accommodate Mr. Davies to the point of undue hardship in order to mitigate any disability-related impact its Mask Policy had on him. That Mr. Davies preferred to enter the store to select the products he needed himself, did not make the Respondents accommodation proposals inherently unreasonable: Coelho at para. 33.
[31] Accordingly, I am satisfied that there is no reasonable prospect the complaint would succeed at a hearing.
IV CONCLUSION
[32] The complaint is dismissed.
Ijeamaka Anika
Tribunal Member