BC Human Rights Tribunal

I          INTRODUCTION

[1]               Ms. H filed a complaint after she was turned away from a specialist appointment, with Dr. B, at a medical clinic. Ms. H alleges that Dr. B turned her away because, due to a disability, she could not wear a mask. Ms. H says that Dr. B’s conduct was discrimination, in the area of services, based on her disability in violation of s. 8 of the Human Rights Code.

[2]               Dr. B applies to dismiss Ms. H’s complaint on the basis that Ms. H has no reasonable prospect of proving discrimination: Code, s. 27(1)(c).

[3]               I allow Dr. B’s application to dismiss Ms. H’s complaint. I explain the reasons for my decision in the analysis section below. Before I do, I address a preliminary matter – Dr. B’s application to limit publication of the parties’ identities: Rule 5(6), Tribunal’s Rules of Practice and Procedure.

[4]               I apologize to the parties for the delay in issuing this decision.

II       Preliminary issue – Dr. B’s application to limit publication

[5]               Dr. B applies to limit publication of the parties’ identities. The basis for her application is to protect her privacy, reputational interests, and Ms. H’s sensitive medical information: Application, para. 7. Ms. H opposes the application. She says that both parties should be identified. In the alternative, she says neither party should be identified. For reasons that follow, I allow Dr. B’s application to limit publication and limit the publication of both parties.

[6]               The Tribunal may limit the publication of personal information in a decision about a complaint. The Tribunal will assess whether privacy interests outweigh the public interest in access to the Tribunal’s proceedings: Rule 5(6). To make this assessment, the Tribunal has considered a non-exhaustive list of factors. I set out those factors next and explain why they support limiting publication.

A.    Factors

[7]               To assess an application to limit publication, the Tribunal has considered:

a.    The stage of the complaint – There is a greater scope for limiting publication at an earlier stage in the process, when the Tribunal is assessing unproven allegations: The Complainant v. BC Ministry of Social Development and Poverty Reduction and others, 2023 BCHRT 29, para. 15. Once the Tribunal makes findings on the merits of a complaint, the public may have a greater interest in knowing whether a complainant proved the respondent discriminated or not: JY v. Various Waxing Salons, 2019 BCHRT 106, para. 30(a).

b.    The nature of allegations – Certain types of allegations are more likely to attract undue sensationalized attention: JY, para. 30(b); R. v. Nyznik, 2016 ONSC 2775, para. 10.

c.     Private details in the complaint – The Tribunal hears complaints which engage, by their nature, very personal details. Where a complaint involves private medical or counselling information, that factor may weigh in favour of limiting publication. The Tribunal will also consider whether the nature of the complaint concerns aspects of a person’s identity that they choose to keep private, for example, mental illness, sexual orientation or gender identity: JY, para. 30(c).

d.    Harm to reputation – The Tribunal will consider the nature of a person’s profession and the allegations to assess whether reputational risks justify limiting publication: JY, para. 30(d).

e.    Other harm – Where a person faces further victimization or hardship as a result of public disclosure, that weighs in favour of limiting publication: JY, para. 30(e).

Applying the Factors to this Complaint

[8]               Stage of complaint – The complaint is at an early stage and the allegations against Dr. B are unproven. This weighs in favour of limiting identifying information about the parties.

[9]               Nature of allegations – The allegations are about a mask mandate. Responses to the Covid -19 pandemic, including mask mandates, are a politicized and polarized topic: Calgary (Corporation of the City) v. Amalgamated Transit Union, Local 583, 2023 CanLII 78847 (AB GAA), paras. 132-134 and 139; J.W.T. v. S.E.T., 2023 ONSC 977, para. 30. In this context, the risks of undue sensationalism are on the higher end. This weighs in favour of limiting publication at this early stage.

[10]           Private details in the complaint – Ms. H’s medical information is directly at issue in this complaint: She alleges she has a disability which prevented her from wearing a mask. She has provided medical information about her stated disability, and alleged harms from Dr. B’s conduct. While Ms. H opposes Dr. B’s application to limit publication, she also acknowledges that she has a privacy interest in her medical information: Response to Limited Publication Application, paras. 3-9. The Tribunal recognizes that medical information is highly personal and clearly engages privacy interests: SK v. Dr. F, 2023 BCHRT 196, para. 13. To the extent that the Tribunal needs to discuss, at least to some degree, Ms. H’s private medical information, this weighs in favour of limiting publication of Ms. H’s identity: SK, paras. 11-13.

[11]           It is not clear to me whether identifying Dr. B would indirectly identify Ms. H and undermine Ms. H’s privacy interests. However, it is appropriate for Dr. B to apply to protect a patient’s privacy: Patient X v. The Clinic and another, 2012 BCHRT 118, para. 32. This is especially so, since Ms. H has raised her privacy interest in her medical information as an ongoing concern.

[12]           Harm to reputation – Dr. B is a specialist in a small community. I accept that she faces a risk of harm to her reputation if she were identified in the face of unproven allegations about an issue likely to attract sensationalized attention. That risk weighs in favour of limiting publication.

[13]           Other harm – There appears to be no dispute that Ms. H required a referral to see Dr. B and waited close to a year for an appointment. This suggests that Dr. B’s services are high in demand, and that she provides critical, specialized health care in a small community. If she suffers reputational harm, it could undermine her ability to provide effective health care, including patient confidence in her care. The Tribunal has reasoned that this type of potential harm weighs in favour of limiting publication: CN v. Health Authority and another, 2014 BCHRT 265, para. 50; Dental Hygienist v. Dental Corporation (Dental Clinic) and another, 2024 BCHRT 301, para. 14. I agree.

[14]           The factors present in this case weigh in favour of limiting publication of the parties’ identities in this case. Accordingly, I allow Dr. B’s application to limit publication as set out in my order below.

III     Background

[15]           Below, I summarize the background to Ms. H’s complaint, for context. The background is taken from the materials filed by the parties. I have considered all of the materials but only refer to what is necessary to explain my decision. I make no findings of fact.

[16]           Ms. H was a registered nurse. She says that she developed Post Traumatic Stress Disorder [PTSD] working in the operating room, where she was required to wear a surgical mask for long hours. She says that her PTSD is triggered by medical settings and processes. During the Covid-19 pandemic, she says she became aware that seeing others in masks and wearing a mask triggered her PTSD symptoms. She describes her PTSD symptoms as: over-arousal, shortness of breath, hyperventilation, panic and anxiety leading to a “fight or flight” response: Response to Dismissal Application, paras. 1-2 and 8-10.

[17]           On December 10, 2019, Ms. H’s family doctor, Dr. T, referred her to see Dr. B for a specialist assessment: Affidavit of Dr. B, paras. 18-19 and Exhibit I. In the referral letter, Dr. T describes Ms. H as a previous registered nurse who has been dealing with chronic pain and PTSD after suffering a workplace injury and later work-related stressors.

[18]           On March 18, 2020, the provincial government declared a state of emergency because of the Covid-19 pandemic.

[19]           On or about November 5, 2020, a medical office assistant with Dr. B’s clinic contacted Ms. H to offer her an in-person appointment at the clinic. The medical office assistant did not tell Ms. H that she would have to wear a mask: Dr. B Affidavit, Exhibit J; Response to Dismissal Application, para. 18.

[20]           On November 5, 2020, the clinic was advised via the Doctors of BC, that the BC Ministry of Health was requiring all healthcare facilities to implement mask mandates for patients and staff, as part of preventing the spread of Covid-19: Dr. B Affidavit, para. 17 and Exhibit H.

[21]           On November 10, 2020, Ms. H attended the clinic for her in person appointment without a mask. Upon entry, the clinic staff told her that she would need to wear a mask and could provide one to her. Ms. H told the staff that she was exempt from wearing a mask. The staff  asked her to explain what the exemption was. Ms. H says that she was reluctant to share her medical information with two other patients in the waiting room. Despite this, she explained that she was suffering from PTSD, which prevented her from wearing a mask: Complaint, p. 11; Response to Dismissal Application, para. 21.

[22]           The clinic staff consulted Dr. B. Dr. B came out into the waiting room and explained to Ms. H that the clinic had a mandatory mask policy due to Covid-19 directives it had received. Dr. B told Ms. H she needed to wear a mask for an in-person appointment or could book a video appointment instead: Dr. B’s affidavit, para. 23; Exhibit J.

[23]           On Ms. H’s account of her conversation with Dr B:

a.      She attempted to put on a mask but was pulling it away from her face because she could not breathe, felt like an elephant was sitting on her chest, and her chest was getting heavier and heavier;

b.      The conversation occurred within earshot of another patient and the office staff;

c.       She told Dr. B that she was also from the medical profession and had PTSD;

d.      She asked whether she and Dr. B could stay two metres apart, but Dr. B replied that it was no longer the policy for indoor contact; and

e.      She was unable to breathe in the mask but had no option for an in-person appointment without a mask, so she left: Complaint, p. 15.

[24]           On the same day as Ms. H’s scheduled appointment, Dr. B wrote to Ms. H’s family physician, Dr. T, stating:

a.      Given Dr. T’s referral, Dr. B’s clinic booked an in-person appointment for Ms. H. She tries to see new referrals in person, with follow-up appointments by phone/video;

b.      When booking the appointment, the medical office assistant did not tell Ms. H she would need to wear a mask. This was an understandable mistake because the medical office assistant gives a lot of instructions to new patients;

c.       When Ms. H arrived for her appointment, she at first refused to wear a mask;

d.      Ms. H mentioned she had PTSD from an in-hospital incident and said that she is exempt from wearing masks;

e.      When the medical office assistant told Ms. H the clinic had a mandatory mask policy, Ms. H did put one on but held it off her face;

f.        Dr. B apologized to Ms. H for the clinic’s mistake in not telling her about the mask mandate and acknowledged that the situation increased Ms. H’s distress; and

g.       She requested that Ms. H leave if she was not able to wear a mask properly and offered to book her a video appointment: Dr. B Affidavit, Exhibit J.

 

[25]           After her in-person appointment did not go ahead, neither the clinic nor Ms. H followed up to book a video appointment: Complaint Amendment, p. 2; Dr. B Affidavit, para. 5.

[26]           After the encounter at Dr. B’s clinic, Ms. H filed a complaint on March 9, 2021. The Tribunal asked Ms. H for more information about her complaint and accepted the complaint after she filed an Amendment on May 4, 2022.

[27]           Ms. H alleges that Dr. B denied her reasonable medical care and privacy. She says that as a result of the encounter, her mental health is worse, she has had to access therapy, and struggles to trust providers: Complaint, p. 15; Amendment p. 2.

IV    ANALYSIS

[28]           Having summarized and considered the background from the parties’ materials, I return to the question of whether Ms. H’s complaint has no reasonable prospect of success, under s. 27(1)(c) of the Code. I begin with the relevant legal principles, then I apply them.

B.     Section 27(1)(c) principles

[29]           Section 27(1)(c) is part of the Tribunal’s gate-keeping function. As part of this gate-keeping function, the Tribunal has discretion to dismiss a complaint under s. 27(1)(c) if the complaint has no reasonable chance of succeeding at a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176, para. 19.

[30]           The Tribunal does not make findings of fact on a dismissal application, as it would at a hearing. Instead, the Tribunal considers the whole of the evidence to decide whether there is no reasonable prospect that a complaint could be proven, after a full hearing of the evidence: Byelkova v. Fraser Health Authority, 2021 BCSC 1312, para. 24; Francescutti v. Vancouver (City), 2017 BCCA 242, para. 52. The Tribunal bases its decision on the materials filed by the parties; not on what evidence might be given at the hearing: University of British Columbia v. Chan, 2013 BCSC 942, para. 77; Conklin v. University of British Columbia, 2021 BCSC 1569, para. 32.

[31]           If there is no reasonable prospect of a complaint succeeding after a full hearing of the evidence, then it serves no purpose to proceed with the time and expense of a hearing: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49, para. 27.

[32]           The onus is on the applicant to show there is no reasonable prospect a complaint will succeed: Byelkova, para. 27. At this stage, the complainant must show that their allegations are based on more than speculation: Lord, para. 19.

[33]           To prove discrimination at a hearing, Ms. H would have to prove three criteria: (1) she had a disability protected by the Code; (2) she was adversely impacted by Dr. B; and (3) her disability was a factor in the adverse impact(s): Moore v. British Columbia (Education), 2012 SCC 61, para. 33. If, based on the dismissal application materials, Ms. H has no reasonable chance of proving discrimination, I may dismiss her complaint under s. 27(1)(c) of the Code.

[34]           Even if a complainant has a reasonable prospect of proving discrimination, the Tribunal may still dismiss their complaint, under s. 27(1)(c), if it is reasonably certain that a respondent will establish a defence at the hearing: Purdy v. Douglas College and others, 2016 BCHRT 117, para. 50. If it is reasonably certain that a respondent would prove that their conduct is justified, then there is likely no reasonable prospect that the complaint will succeed: Purdy, para. 50.

[35]           In her dismissal application, Dr. B argues that Ms. H has no reasonable prospect of proving discrimination and, in any event, Dr. B is reasonably certain to prove that her conduct was justified. I find that I can decide this application by determining whether Dr. B is reasonably certain to justify her conduct. For that reason, I will assume without deciding, that Ms. H has a reasonable prospect of proving discrimination, based on the criteria.

C.     Applying the s. 27(1)(c) principles to this complaint

[36]           To justify her conduct, Dr. B would have to prove that: (1) she adopted the mask policy for a legitimate purpose, rationally connected to the health care services she provided; (2) she adopted the mask policy in an honest and good faith belief that it was necessary to fulfill that legitimate purpose; and (3) the mask policy was reasonably necessary to accomplish its purpose, in the sense that Dr. B could not accommodate Ms. H without facing undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer], paras. 20-21.

[37]           With respect to the third step, a reasonable accommodation short of undue hardship is fact specific and will turn on the specific circumstances of each case: Central Okanagan School District No. 23 v. Renaud, [1992] SCR 970.[1] While it is a respondent’s duty to offer a reasonable accommodation, the complainant also has a duty to assist in securing an accommodation: Renaud. Further, a complainant has a duty to facilitate and accept a reasonable accommodation proposal. A respondent is not required to offer a perfect solution. If a respondent offers a reasonable accommodation, their duty is discharged: Renaud.

[38]           Ms. H does not appear to dispute the first two justification steps, and I am prepared to accept, on the materials, that Dr. B is reasonably certain to prove the first two steps. On the first step, Dr. B has provided evidence that she adopted a mask policy for the clinic, as part of evidence-based science to prevent the spread of Covid-19, and because it was mandated by the Ministry of Health: Dr. B Affidavit, para. 12, Exhibits E and G. I accept without finding, that Dr. B adopted the mask policy for a legitimate purpose, rationally connected to the health care services she provided.

[39]           I also accept on the materials, without finding, that Dr. B adopted the mask policy in an honest and good faith belief that it was necessary to protect staff, patients and the public from the spread of Covid-19: Application to Dismiss, para. 64; Dr. B Affidavit, paras. 6, 12, 13, and 22.

[40]           With respect to the third  step, I accept on the materials that Dr. B is reasonably certain to prove that she accommodated Ms. H to the point of undue hardship.

[41]           First, I have considered the specific circumstances in this case. Dr. B was working in a health care setting in the midst of a global pandemic. On or about March 11, 2020, she had information from the World Health Organization [WHO] that thousands had died from Covid‑19, thousands were fighting for their lives in hospitals, and that the number of people affected, including more deaths, was expected. The WHO stated they were deeply concerned by the “alarming levels of spread and severity” and the need for each country to take urgent and aggressive action to save lives and minimize impact. A key action recommended by the WHO was a comprehensive strategy to prevent the spread of Covid-19: Dr. B Affidavit, Exhibit B.

[42]            On March 18, 2020, the provincial government declared a state of emergency because of the Covid-19 pandemic.

[43]           On May 14, 2020, the Provincial Health Officer ordered Dr. B’s clinic to create a Covid-19 Safety Plan to protect workers, patients and members of the public from the risk of contracting and spreading Covid-19: Dr. B Affidavit, Exhibit D. As a result, in June 2020, the clinic created a Covid-19 Safety Plan, which included reduced staff and patients at the clinic, social distancing, more reliance on virtual appointments, and all staff donning surgical masks when in contact with patients: Dr. B Affidavit, Exhibit E.

[44]           The clinic’s Covid-19 Safety Plan also set out special measures for patients deemed “higher risk”, including patients who were immunocompromised, had multiple comorbidities, and/or were seniors. The Clinic provided masks for those higher risk patients and encouraged all patients to wear masks. I accept without finding that the clinic’s Covid-19 Safety Plan included masking based on the evidence-based science Dr. B understood at the time: Dr. B Affidavit, para. 12.

[45]           I also accept without finding that patients at a higher risk of contracting Covid-19 are part of the Clinic’s patient population, and that Dr. B took those higher risk patients into account as part of the clinic’s Covid-19 Safety Plan: Dr. B Affidavit, para. 6 and Exhibit E.

[46]           On November 5, 2020, the Clinic was advised, through Doctors of BC, that the Ministry of Health now required all health facilities, including the clinic, to implement a mandatory mask mandate for all staff, patients, and other visitors entering or moving around the clinic. The Ministry of Health explained the rational for the mask mandate, including that: Covid-19 is “spread by liquid droplets that come from the mouth and nose when a person coughs, sneezes, and sometimes, when a person talks”; and masks are “one part of the hierarchy of infection prevention”: Dr. B Affidavit, Exhibit G.

[47]           The context of Dr. H requiring Ms. B to wear a mask at the Clinic, was during a global pandemic, in a state of emergency in BC, and based on a Ministry of Health mask mandate as an aspect of preventing the spread of Covid-19.

[48]           There is no dispute that, within this context, Dr. B did not allow Ms. H to proceed with an in-person appointment at the clinic without a mask. There is also no dispute that Dr. B offered Ms. H a video appointment as an alternative.

[49]           In my view, if this complaint proceeded to a hearing, Dr. B would be reasonably certain to show that a video appointment was a reasonable accommodation for Ms. H. The materials before me indicate that Dr. B routinely saw patients virtually at that time. Ms. H has not otherwise put evidence forward that a video appointment was not possible for her or would not meet her health needs.

[50]            I appreciate that the clinic booked Ms. H’s initial appointment in person, as part of its usual practice to offer first appointments in person and then move to appointments virtually. This suggests that Dr. B found it ideal or preferable to see patients in person at the first visit. However, none of the materials before me suggest that it was essential for Dr. B to see Ms. H in person for the first visit. Further, I accept without finding that in-person appointments, at the time of Ms. H’s appointment, were premised on patients adhering to the mask mandate.

[51]           There is also no dispute that when the clinic booked Ms. H’s appointment, on or about November 5, 2020, the medical office assistant did not confirm the mask mandate to Ms. H. Dr. B acknowledged to Ms. H that this was an error and apologized for it. While the clinic did not mention the mask mandate when booking the appointment, there is no evidence before me to show that Ms. H inquired either.

[52]           Given Ms. H’s concern about wearing a mask, it is unclear to me why she did not raise this when booking an in person appointment at a medical clinic, at a time when masks were increasingly recommended and used to prevent the spread of Covid-19: Simon Little, “Coronavirus: Masks mandatory on B.C. transit, ferries, starting Monday”, Global News (August 23, 2020); Nicholas Johansen, “Masks required at Canadian Superstore”, No Frills on Aug. 29, Castanet (August 22, 2020); Brendan Kergin, “Major Canadian retailer makes masks mandatory at all stores”, Vancouver is Awesome (August 17, 2020); Amy Judd, “Walmart Canada making masks mandatory in all stores starting Aug. 12”, Global News (August 6, 2020).

[53]           There is no evidence before me that Ms. H assisted in securing her accommodation when her appointment was booked or in advance of her in-person appointment. To the extent the Clinic had a duty to inform Ms. H of the mask mandate in advance of her appointment, Ms. H also had a duty to alert the clinic that her disability prevented her from wearing a mask. Instead, the evidence points to Ms. H showing up for her appointment, indicating that she could not wear a mask, and Dr. B needing to make a decision on the spot about Ms. H’s request, while adhering to a mandatory mask mandate – in place to protect staff, patients and visitors from a life-threatening virus.

[54]           In my view, Dr. B is reasonably certain to show that she decided on a reasonable accommodation – that Ms. H could book a video appointment instead. As this Tribunal, and the BC Human Rights Commissioner has said, an inability to wear a mask – in the context of a mask mandate to prevent the spread of a potentially deadly virus – does not trigger an automatic right to maskless, physical entry into indoor spaces: Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156, paras. 33-34; Customer v. Fabricland (Nanaimo), 2023 BCHRT 34, paras. 24-26; Baptie v. Memory Express, 2023 BCHRT 222, para. 27; Emslie v. Costco Wholesale Canada Ltd. (Kamloops), 2024 BCHRT 46, para. 43; BC Human Rights Commissioner, A human rights approach to mask-wearing during the Covid -19 pandemic (November 2020, updated September 29, 2021).

[55]           I acknowledge Ms. H’s evidence that the clinic did not follow-up with her to book a virtual appointment. While it may have been helpful for the clinic to do so, Ms. H has not put forward evidence to show that she was prevented from calling the clinic to inquire about the video appointment offered by Dr. B. Further, there is evidence before me that Dr. B contacted Ms. H’s family doctor, Dr. T, on the day of Ms. H’s appointment, to clarify that a virtual appointment was available for Ms. H. Again, Ms. H did not assist in securing an accommodation for herself, or facilitate the accommodation offered.

[56]           While the clinic could have told Ms. H about the mask mandate before her appointment and could have followed up with her about a video appointment, respondents are not held to a standard of a perfect accommodation – only a reasonable one.

[57]           On the specific circumstances in this case, I am satisfied that Dr. B is reasonably certain to prove that she accommodated Ms. H to the point of undue hardship. As a result, there is no reasonable prospect that Ms. H’s complaint will succeed, and I dismiss it under s. 27(1)(c) of the Code.

V       ORDER

[58]            I allow Dr. B’s application to limit publication of information that could identify the parties as follows:

a.     The case name will change to reflect the anonymization of Ms. H’s and Dr. B’s names.

b.   No person shall publish in any way any information disclosed in or in relation to this complaint that could identify Ms. H or Dr. B.

c.    Tribunal documents that may be accessible to the public will, before their release, be redacted to remove identifying information about Ms. H or Dr. B.

[59]           I dismiss Ms. H’s complaint under s. 27(1)(c) of the Code.

 

Amber Prince

Tribunal Member