BC Human Rights Tribunal

 

I          INTRODUCTION

[1]               This complaint arises in the unique circumstance of the COVID-19 pandemic, where there was great uncertainty and heightened concern across the Province of British Columbia and the world. At the time, the Province had mandated mask wearing in all public indoor spaces in response to the COVID-19 pandemic.

[2]               Ms. Parlett alleges His Majesty the King in Right of the Province of British Columbia as Represented by the Ministry of Public Safety and Solicitor General (Liquor Distribution Branch) [Respondent] discriminated against her on the basis of mental disability in how it treated her when she went to shop at a BC Liquor Store. She does not say what the disability is, other than she has “a spectrum disorder which is neurobiological in nature”.

[3]               The Respondent denies discriminating and says the confrontation between Ms. Parlett and the manager arose because she refused to wear a mask in the store, refused to follow the store’s accommodation policy, and became rude and aggressive. The Respondent says it called the police because the Complainant refused to leave the store. The Respondents say Ms. Parlett has no reasonable prospect of establishing a nexus between her protected characteristic and the Respondent’s request for her to leave the store. They also say that they are reasonably certain to establish a defense at a hearing.

[4]               Ms. Parlett did not file a response to the application, but I am satisfied from her communications with the Tribunal and the Respondent that she had notice of the application and an opportunity to respond.

[5]               The issue in this case turns on whether there is no reasonable prospect Ms. Parlett will establish a nexus between her protected characteristic and the Respondent’s request for her to leave the store.

[6]               For the following reasons, I grant the 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

[7]               The BC Liquor Distribution Branch is one of the two branches of the provincial government responsible for the liquor and cannabis industry of British Columbia. It operates the wholesale distribution of beverage alcohol and non-medical cannabis within BC, as well as the household retail brands of BC Liquor Stores and BC Cannabis Stores. The BC Liquor Distribution Branch operates nearly 200 BC Liquor Stores in BC.

[8]               In March 2020, the Province of BC declared a state of emergency because of the COVID‑19 pandemic. In November 2020, Minister of Public Safety and Solicitor General issued Ministerial Order No. M425 under the Emergency Program Act, RSBC 1996, c. 111, s. 10 which required the use of face coverings in all indoor public spaces, exempting those with a medical condition.

[9]               In response, the BC Liquor Distribution Branch implemented a mask policy as part of its measures to control the health and safety hazards presented by the COVID-19 pandemic. The mask policy required all employees and customers in any BC Liquor Store to wear a mask.

[10]           The mask policy had set out the following alternative accommodation process for customers who indicated they had a medical exemption from wearing a mask:

a.      The Manager-On-Duty speaks to the customer and makes a note of the interaction in the Mask Compliance Log.

b.      The Manager-On-Duty informs the customer that the customer’s products will be collected while the customer waits near the front entrance.

c.       The Manager-On-Duty 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 checkout till, the Manager-On-Duty directs the customer to the checkout till to pay for the products.

[11]           While the mask policy was in effect, Ms. Parlett had previously shopped at the BC Liquor Store in accordance with the above accommodation process without incident. On the day that gave rise to this complaint, she entered the BC Liquor Store without wearing a mask and walked up to the checkout till. She idled around at the checkout tills and further into the retail area of the store while a staff member walked through the store to collect Ms. Parlett’s requested items. A few minutes later, the manager returned from their break and approached Ms. Parlett and asked her to wear a mask. Ms. Parlett refused. The manager explained that she needed to either wear a mask or wait outside until her products were ready to be purchased. At this point, the staff member had not brought Ms. Parlett’s requested items to the checkout till. It is not in dispute that Ms. Parlett became upset and called the manager a communist and said something to effectively suggest that they go back to China.

[12]           Another customer witnessed the interaction and told Ms. Parlett to wear a mask. The two engaged in a verbal confrontation and, while the customer kept her distance from Ms. Parlett, Ms. Parlett physically gestured toward the customer and closed the space between them.

[13]           The manager asked Ms. Parlett to leave the store or else she would need to call the police, but she refused. The manager called the police, who arrived and removed Ms. Parlett from the store.

III     DECISION

A.    Section 27(1)(c) – No reasonable prospect of success

[14]           The Respondent applies to dismiss Ms. Parlett’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondent to establish the basis for dismissal.

[15]           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.

[16]           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.

[17]           Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.

[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.

[19]           Ms. Parlett advised the Tribunal that she was not going to disclose any documents in support of her complaint. Given these communications, I am satisfied that Ms. Parlett had notice and an opportunity to provide documents in support of her complaint and in response to this application.

[20]           To prove her complaint at a hearing, Ms. Parlett will have to prove that she has a characteristic protected by the Code, she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If they did that, the burden would shift to the Respondents to justify the impact as a bona fide reasonable justification. If the impact is justified, there is no discrimination.

[21]           The Respondents say that Ms. Parlett has no reasonable prospect of proving any of the elements of her case. I agree, in part.

[22]           For the purposes of this application, I accept that Ms. Parlett has taken her disability out of the realm of conjecture. I rely on her statement that she has “a spectrum disorder which is neurobiological in nature” and the Respondent’s evidence that she told the store’s staff that she had ADHD. Furthermore, on the low threshold required at this stage, I am persuaded that Ms. Parlett has taken the second element of the Moore test out of the realm of conjecture and, at a hearing, the Tribunal could find that – at the very least – the denial of a service constituted an adverse impact.

[23]           Ms. Parlett alleges other adverse impacts in her complaint, which I set out in this paragraph. I then explain why she has no reasonable prospect of successfully proving these adverse impacts at a hearing. First, Ms. Parlett says she waited by the door, in accordance with the mask policy, as she had without issue on multiple previous occasions. When she was ready to pay, the manager allegedly interrogated the cashier for serving Ms. Parlett’s “type”, told her to stop serving her, and made inappropriate comments about her disability. Ms. Parlett says she was very hurt and started to cry but the manager did not care. She says the manager berated her in front of other customers, and encouraged other customers to punch her in the head for not wearing a mask. She says she was “gang stalked” around the store. She alleges another customer raised her fist at Ms. Parlett and threatened to punch her in the face. She says the manager told her to leave the store for “no obvious reason” and called the police.

[24]           The Respondent submits video evidence that captures the entirety of the alleged incident from 4 separate angles, and the manager’s contemporaneous incident report. Ms. Parlett’s version of events, including waiting by the door, crying, being “gang stalked”, and being physically threatened by another customer is incompatible with the contemporaneous documentary evidence and raises serious questions about her credibility. From the review of the evidence, Ms. Parlett did not wait by the door; she walked straight to the checkout till and the front area of the store where the merchandise was kept, and walked around the checkout tills. There is also no evidence that she was “gang stalked” around the store; the video shows her moving toward staff and the customer. She was agitated and made expressive hand movements at staff and to the customer who she alleges threatened to punch her in the head. I note that this is the same customer Ms. Parlett later described as a “complacent and compliant person”. It was while Ms. Parlett was in this agitated state that the manager gestured to other customers to keep their distance from Ms. Parlett and the checkout till area, generally. The police arrive and escort her out of the store. There is no reasonable prospect Ms. Parlett will succeed at proving any of these allegations at the hearing.

[25]           I note that the video evidence does not contain audio, so what was communicated between her and the Manager is not readily apparent. I rely on Ms. Parlett’s evidence to conclude there is no reasonable prospect she will successfully prove the comments constituted an adverse impact. Ms. Parlett’s evidence is only a bare assertion, and the only allegedly inappropriate comment she particularizes is the manager saying not to serve her “type”. Regarding her allegation that the manager said they would not serve her “type”, Ms. Parlett does not say whether the “type” of person referred to is a person with a spectrum disorder or ADHD, or an agitated person gesticulating at staff and other customers and requiring the intervention of the police. Considering the lack of specifics in either the complaint or Ms. Parlett’s communication with the Tribunal, I am satisfied that any adverse impact she experienced from the Manager’s comments remains speculative.

[26]           On the third element of the Moore test, the Respondent submits that Ms. Parlett has no reasonable prospect of establishing that her disability prevented her from wearing a mask, and was not connected to the denial of service. I agree. The Tribunal has stated, “any claim of disability arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interfered with their ability to wear a mask”: The Customer v. The Store, 2021 BCHRT 39 at para. 14. The evidence before me is Ms. Parlett’s disability is “a spectrum disorder which is neurobiological in nature” and ADHD. Ms. Parlett has not provided any evidence of how the disability interfered with her ability to wear a mask or comply with the store’s mask policy which she says she had complied with previously. Without this information, Mr. Parlett’s disability-related barrier to wearing a mask remains speculative. She has no reasonable prospect of successfully proving a connection between her disability and being denied a service.

IV    CONCLUSION

[27]           The complaint is dismissed in its entirety under s. 27(1)(c) of the Code.

Laila Said Alam

Tribunal Member