Dier v. Trail Bay Home Hardware and another (No.2), 2026 BCHRT 11
Date Issued: January 7, 2026
File(s): CS-002684
Indexed as: Dier v. Trail Bay Home Hardware and another (No.2), 2026 BCHRT 11
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:
Scott Dier
COMPLAINANT
AND:
Trail Bay Home Hardware and Matt Kennedy
RESPONDENTS
REASONS FOR DECISION
Tribunal Member: Amber Prince
On their own behalf: Scott Dier
Agent for the Respondents: John Kennedy
Date of Hearing: July 22-23, 2025
Location of Hearing: video conference
I INTRODUCTION
[1] This is a decision on the merits of Scott Dier’s complaint after a hearing.
[2] During the mask mandate, due to the Covid-19 pandemic, Mr. Dier entered the Trail Bay Home Hardware [store] without a mask. He says that he could not wear a mask due to a deviated septum. He filed a complaint after store staff told him he could not be in the store without a mask and insisted on knowing why he could not wear a mask. Mr. Dier says that the conduct of the store, and its owner Matt Kennedy [the Respondents], discriminated against him, in the area of services, based on disability, in violation of s. 8 of the Human Rights Code.
[3] There is no dispute that store staff did not allow Mr. Dier to shop at the store without a mask. Mr. Kennedy disputes that Mr. Dier had a disability preventing him from wearing a mask. He also says that even if Mr. Dier had a disability, he thwarted the store’s ability to offer an accommodation because he would not identify the medical reason he could not wear a mask and became combative.
[4] I find this case turns on whether Mr. Dier has proven that he had a disability which prevented him from wearing a mask at the store. For reasons that follow, I have decided that he has not, and I dismiss his complaint on that basis.
II BACKGROUND
[5] The sequence of events leading up to Mr. Dier’s complaint are not in dispute and situate his complaint in the context of the Covid-19 pandemic.
[6] On March 18, 2020, the provincial government declared a state of emergency because of the Covid-19 pandemic.
[7] The store is a small family retail business. During the Covid-19 pandemic, Mr. Kennedy initiated steps to prevent the spread of Covid at the store. By July, 2020, Worksafe BC [Worksafe] also required Mr. Kennedy to take specific steps to protect workers and customers from getting Covid. The steps evolved depending on information, recommendations, and orders stemming from the province’s Public Health Office.
[8] On October 26, 2020, in a media briefing, Provincial Health Officer, Dr. Henry, communicated the expectation that people wear masks in indoor public places and asked workplaces to review their Covid-19 safety plans in light of this guidance: Simon Little, “B.C.’s top doctor toughens tone on masks in public: ‘It is now the expectation’”, Global News (October 26, 2020). In turn, on November 2, 2020, Worksafe inspected Mr. Kennedy’s store, and provided an inspection report the following day stating:
Workers stock shelves in areas where customers are present. This employer has considered all avenues to ensure safe physical distancing is maintained between workers and customers, but there are circumstances where they are within 2 [metres] of proximity. Barriers are not practicable in these circumstances. This employer should require its workers to wear masks, and should require or promote the use of masks by customers since they will be coming into proximity to workers:
Exhibit 6.
[9] Based on the Worksafe inspection, Mr. Kennedy implemented a mandatory masking policy for workers and customers at the store. By November 19, 2020, the BC government also issued a public health order making masks mandatory in indoor public spaces: Andrew Weichel, “B.C. announces mask mandate, temporary social lockdown for entire province”, CTV News (November 19, 2020).
[10] The store’s mask mandate was in effect when Mr. Dier visited the store on November 27, 2020. He went into the store without a mask to buy motor oil. He entered the store, found the oil, approximately 100 feet within the store, and went to pay for it at the checkout. It was at this point that staff noticed that Mr. Dier was not wearing a mask and told him he could not be in the store. Mr. Dier captured what transpired next between him and staff on video.
[11] Ultimately Mr. Dier left the store without purchasing the oil and filed a human rights complaint the same day alleging discrimination based on disability.
III ANALYSIS AND DECISION
[12] To prove his complaint, Mr. Dier must meet the three steps of the discrimination test: (1) he has a disability: (2) the store’s conduct had an adverse impact on him regarding a service; and (3) his disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61, para 33. After a hearing on the evidence, I find that Mr. Dier has not proven the first step of the discrimination test – namely, that he has a disability.
[13] This 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, para. 14; Oldham v. Actton Super-Save Gas Stations Ltd. dba Super Save Gas, 2024 BCHRT 52, para. 15. Therefore, I have considered Mr. Dier’s evidence in this regard.
[14] Mr. Dier’s evidence at the hearing was that he has a deviated septum and cannot breathe out of one of his nostrils. His testimony was supported by photos showing his nose has some asymmetry and a doctor’s note: Exhibit 4. For three reasons, I do not accept this evidence as proving that Mr. Dier has a disability that interferes with his ability to wear a mask.
[15] First, while I accept that Mr. Dier has a deviated septum, and difficulty breathing out of one nostril, this is not evidence that he could not wear a mask. Mr. Dier’s evidence, in cross-examination, was that he had no issue with mouth breathing. He did not explain why breathing through his mouth would interfere with his ability to wear a mask. Indeed, plugged nostrils is a common human experience for a range of reasons, such as a cold or allergies, and mouth breathing does not prevent the ability to breathe. Consider, for example, snorkeling.
[16] Second, while I acknowledge that Mr. Dier’s plugged nostril may be a permanent condition, this does not explain his inability to breathe through his mouth when wearing a mask during the temporary circumstance at issue—namely, shopping in an indoor public space.
[17] Third, I place little weight on Mr. Dier’s medical note from Dr. SR. While the note says that Mr. Dier has difficulty breathing through his nose, Dr. SR does not explain why mouth breathing would interfere with Mr. Dier’s ability to wear a mask. Mr. Dier did not call Dr. SR as a witness. Dr. SR could have given evidence about: the authenticity of his note; his qualifications; the date he saw Mr. Dier; his independent assessments of Mr. Dier’s ability to wear a mask; and Mr. Dier’s ability to mouth-breathe during the temporary circumstance of shopping in indoor public spaces. Importantly, Mr. Kennedy did not have the opportunity to cross-examine Dr. SR about his note: Kozak v. Lakeridge Health, 2020 HRTO 630, paras. 7-10.
IV CONCLUSION AND ORDER
[18] Because Mr. Dier has not proven that he had a disability that prevented him from wearing a mask when he went to the store, his complaint cannot succeed.
[19] I dismiss Mr. Dier’s complaint against the store and Mr. Kennedy under s. 37(1) of the Code.
Amber Prince
Tribunal Member