Velasquez v. Mile One Eating House, 2025 BCHRT 153
Date Issued: June 25, 2025
File: CS-003433
Indexed as: Velasquez v. Mile One Eating House, 2025 BCHRT 153
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:
Laura Velasquez
COMPLAINANT
AND:
Mile One Eating House
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Edward Takayanagi
On their own behalf: Laura Velasquez
Agent for the Respondent: Cindy Yu
I INTRODUCTION
[1] In March 2021, during the COVID-19 pandemic, Laura Velasquez was dining indoors at Mile One Eating House. She alleges Mile One discriminated against her in services on the basis of physical disability contrary to s. 8 of the Human Rights Code when the owner of the restaurant harassed and ridiculed her, then asked her to leave because she refused to wear a mask.
[2] Mile One denies discriminating. It disputes that Ms. Velasquez has a disability, says she was not denied a service because she was allowed to sit and finish her meal, and denies harassing or ejecting her from the restaurant. It applies to dismiss the complaint under s. 27(1)(c) of the Code on the basis that the complaint has no reasonable prospect of success.
[3] For the following reasons, I allow the application and dismiss the complaint. My decision turns on whether there is no reasonable prospect Ms. Velasquez will establish that her physical disability was a disability-related barrier that prevented her from wearing a mask. On the evidence before me I am persuaded that Ms. Velasquez’s assertion that she has a disability-related barrier to wearing a mask has not been taken out of the realm of conjecture.
[4] 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.
II BACKGROUND
[5] The background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[6] Mile One operates a restaurant.
[7] In March 2020, the Province of BC declared a state of emergency in response to the COVID-19 pandemic. Mile One says that it implemented a mandatory indoor masking policy to comply with the guidance of the Public Health Officer. Mile One did not provide the Tribunal with a copy of its COVID-19 policy. It says patrons of the restaurant were permitted to be unmasked when seated and dining but were required to wear a mask when walking inside the restaurant.
[8] In February 2021, Ms. Velasquez had an ankle injury and was using crutches to move about. She was pregnant and says she suffered from nausea. She says these conditions prevented her from wearing a face mask.
[9] On February 28, 2021, Ms. Velasquez entered Mile One without a mask, ordered her food and sat down to eat. She says that while she was eating the owner of Mile One came to her table and told her she needed to wear a mask when moving about inside the restaurant.
[10] The parties have different recollections of this interaction. Ms. Velasquez says the owner laughed at her when she said she has a medical exemption from wearing masks. She says the owner told her “there were no exemptions.” She says the owner harassed and yelled at her and told her to leave the restaurant. The owner denies laughing or harassing Ms. Velasquez. She says she did not question Ms. Velasquez’s medical exemption, nor did she say there were no exemptions. She says that after she informed Ms. Velasquez of the mandatory mask policy when moving inside the restaurant, Ms. Velasquez began yelling, disrupting other diners, and escalating the confrontation. The owner agrees that she asked Ms. Velasquez to leave the restaurant but says it was because she was loudly disrupting the other diners.
III DECISION
[11] Mile One applies to dismiss Ms. Velasquez’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on Mile One to establish the basis for dismissal.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
[16] To prove her complaint at a hearing, Ms. Velasquez will have to prove that she has a physical disability protected by the Code, she was adversely impacted in services, and her physical disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to Mile One to justify the adverse impact. They can do so by proving they had a bona fide reasonable justification for this conduct. If the adverse impact is justified, there is no discrimination.
[17] Mile One argues that Ms. Velasquez has not taken her assertion that she has a disability-related need not to wear a face mask out of the realm of conjecture.
[18] The Tribunal has stated “any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask”: The Customer v. The Store, 2021 BCHRT 39 at para. 14.
[19] Based on the materials before me, I am satisfied that Ms. Velasquez is reasonably certain to establish that she had a foot injury requiring the use of crutches and had pregnancy-related nausea.
[20] Whether a complainant has a disability for the purposes of the Code depends on the facts and circumstances of the case: Young v. Vancouver Coastal Health Authority and others, 2018 BCHRT 27 at para. 100. Although the Code does not define what constitutes a disability, it has been interpreted by the Tribunal to mean “a physiological state that is involuntary, has some degree of permanence, and impairs the person’s ability, in some measure, to carry out the normal functions of life: De Medeiros v. Rovalution Automotive Ltd. and another, 2023 BCHRT 182 at para. 23. Temporary and treatable conditions like a cold, flu or a broken bone are generally not considered disabilities under the Code: Morris v. BC Rail, 2003 BCHRT 14 at para. 209.
[21] As evidence of her disability, Ms. Velasquez has put before the Tribunal an x-ray requisition form signed by her doctor on May 11, 2021, which states that Ms. Velasquez has chronic foot and ankle pain. While this may not be enough evidence to ultimately meet Ms. Velasquez’s burden in a hearing, it is sufficient to meet the low threshold required at this stage of the proceeding to put her claim that she had a disability out of the realm of conjecture.
[22] However, I find that the evidence does not take Ms. Velasquez’s assertion that she has a disability-related barrier to wearing a mask out of the realm of conjecture. Ms. Velasquez says that because she had a foot injury, she was using crutches, and her hands were occupied so she could not put a mask on and off. Mile One says that there was nothing preventing Ms. Velasquez from putting on a mask before entering the restaurant and taking it off when she was seated. I agree. There is nothing before me to suggest Ms. Velasquez was unable to wear a mask, rather her assertion is that she was unable to easily put it on and take it off because her hands were occupied. The evidence before me is that it is possible for Ms. Velasquez to wear a mask, though she chose not to because it was inconvenient to put on and off. This satisfies me that her claim to a disability-related barrier to wearing a mask is speculative.
[23] In all of the circumstances, Ms. Velasquez’s assertion that she has a disability-related barrier to wearing a face mask has not been taken out of the realm of conjecture. As such, I am satisfied that there is no reasonable prospect the complaint will succeed, and I dismiss it under s. 27(1)(c) of the Code.
[24] I note the credibility issues raised by the conflicting assertions surrounding the interaction between Ms. Velasquez and Mile One’s owner when she explained the restaurant’s rules about masking. As my decision turns on the specific issue of whether Ms. Velasquez is reasonably certain to prove she had a disability-related barrier to wearing a mask, these are not foundational issues in this application that require a hearing to resolve.
IV CONCLUSION
[25] I allow the application. The complaint is dismissed pursuant to s. 27(1)(c) of the Code.
Edward Takayanagi
Tribunal Member