EH v. Dr. K, 2026 BCHRT 238

Date Issued: November 10, 2026
File: CS-006525

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:

EH
COMPLAINANT

AND:

Dr. K
RESPONDENT

REASONS FOR DECISION

APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Devyn Cousineau

On her own behalf: EH

Counsel for the Respondent: Neal Parker

I        INTRODUCTION

[1]             EH booked an appointment to see Dr. K, a dermatologist, in March 2022. At that time, there was a provincial health order requiring people to wear masks in health care facilities. EH attended the appointment without a mask. The clinic asked EH to put on a mask, but she refused, citing a medical exemption. Dr. K refused to allow EH to attend the appointment without a mask. He later offered a tele appointment or referral to another clinic.

[2]             In this human rights complaint, EH alleges that Dr. K’s refusal to treat her without a mask was discrimination based on her disability, in violation of s. 8 of the Human Rights Code. In response, Dr. K denies discriminating.  He asks that the complaint be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c).

[3]             For the reasons that follow, I am satisfied that EH has no reasonable prospect of proving that she could not wear a mask to the appointment because of a disability. Even if she could, Dr. K is reasonably certain to justify the requirement that she wear a mask for an in-person appointment. The complaint has no reasonable prospect of success, and is dismissed under s. 27(1)(c) of the Code.

II      APPLICATION TO LIMIT PUBLICATION

[4]             Dr. K applies to limit publication of the parties’ names in this decision. EH consents to the application. It is granted.

[5]             The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Rules of Practice and Procedure, Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY v. Various Waxing Salons, 2019 BCHRT 106at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37.

[6]             Given the outcome of the application, there is little public interest in Dr. K’s name. At the same time, publishing his name in connection with unproven allegations could threaten his professional reputation and impair his ability to effectively provide care to other patients. I agree with Dr. K that the circumstances are similar to other cases where the Tribunal has anonymized the names of medical professionals at early or interim stages of the process: KS v. Dr. O Corp and another, 2018 BCHRT 273 at para. 7; Ms. H v. Dr. B, 2025 BCHRT 133 at para. 13.

[7]             Regarding EH, the decision discusses private information about her medical conditions. There is an inherent privacy interest in such information. At the same time, there is no public interest in EH’s name, which is only a “sliver” of information.

[8]             I have anonymized the parties’ names in this decision.

III    DECISION

[9]             Dr. K applies to dismiss this complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on Dr. K to establish the basis for dismissal.

[10]         In this application, I do not make findings of fact. Instead, I look 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. I must base my 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.

[11]         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 [Hill] at para. 27.

[12]         To prove her complaint at a hearing, EH will have to prove that she had a disability, and her disability was a factor in Dr. K’s decision not to provide her in-person services on March 18, 2022:  Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. Specifically, she will have to prove that she had a disability which prevented her from wearing a mask to her appointment with Dr. K. In The Customer v. The Store, 2021 BCHRT 39, the Tribunal put it this way:

… the Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask-wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. 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. [para. 14]

In my respectful view, this is where EH’s complaint is bound to fail.

[13]         In her complaint, EH says that her disabilities are (1) an allergy to “components of masks and product on face”; (2) post-traumatic stress disorder [PTSD] (3) extreme anxiety, and (4) claustrophobia. Her response to this dismissal application focuses only on her PTSD. She says that she is triggered by having her breathing obstructed, “making the mask requirement particularly distressing”. She says that she is not comfortable disclosing the full details of her condition publicly, but would be prepared to provide information privately to the Tribunal.

[14]         I appreciate EH’s concerns about the privacy of her medical information. However, as I have said, I can only base my decision on the material the parties have filed. There is no opportunity in this process to provide evidence privately to the Tribunal. This would not be fair to the other party. Again, The Customer is instructive:

The Customer argues that her health conditions are private, and she should not be compelled to disclose them, to the Store or to this Tribunal. I agree that any disclosure of health information should be minimal and strictly limited to the purpose for which the information is required. However, whenever a person is asking for human rights-related accommodation, they are required to bring forward the “facts relating to discrimination”: Central Okanagan School District No. 23 v. Renaud,1992 CanLII 81 (SCC) ….

… when a person files a human rights complaint with this Tribunal, they must set out facts which could, if proven, establish that they have a disability. Without a disability, they are not entitled to accommodation or any potential remedy for discrimination under the Code. It is not enough, as the Customer has done in this complaint, to simply say that “specific mental and physical disabilities are private matters”. As this Tribunal has said, “Parties before the Tribunal, like those before the courts, face an inevitable loss of privacy with respect to the matters in issue between them”: Sinclair v. Blackmore and others, 2004 BCHRT 37 at para. 29. The Customer’s refusal to explain whether she has a disability, and how that disability impacts her ability to wear a mask, means that she has not set out facts which could, if proven, establish discrimination. The Tribunal will not proceed with the complaint. [paras. 16-17]

The same principles apply here. I cannot guess or consider what other evidence EH might have that she did not provide in this process. Like the Customer, she has not set out facts or evidence that could establish discrimination.

[15]         In her complaint, EH referred to a “medical exemption letter”. That letter is not before me. In his affidavit, Dr. K says that he asked to see this letter during their interaction, but EH refused to show it to him. Dr. K says, and it is undisputed, that there was no information in the referral information to indicate that EH had disabilities preventing her from wearing a mask. There is no evidence or information about any of EH’s allergies, or the extent of her limitations related to mask wearing. EH’s assertion that she has disabilities and that wearing a mask is “distressing” would not be enough, on its own.

[16]         I am satisfied that EH has no reasonable prospect of proving the elements of her complaint. This is enough to dismiss the complaint.

[17]         However, even if I had reached a different conclusion about the elements that EH must prove, I would dismiss the complaint because I am also reasonably certain that Dr. K would establish a bona fide reasonable justification for the mask requirement. This defence requires Dr. K to prove that his mask policy was adopted in good faith, for a purpose rationally connected to his function, and that he reasonably accommodated EH: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) [Grismer] at para. 20.The evidence before me is enough to establish all elements of this defence.

[18]         First, it is undisputed that Dr. K was acting in good faith to implement and follow mask mandates ordered by the province, in the context of a global pandemic.

[19]         Second, it is undisputed that Dr. K’s mask requirement was adopted for the valid purpose of complying with provincial health orders and ensuring public safety.

[20]         Finally, it is undisputed that EH did not disclose the nature of her disability-related limitations to Dr. K when he asked. This is necessary to trigger and facilitate the process of accommodation: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC); Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29at para. 373.

[21]         In any event, Dr. K subsequently offered to refer EH to another clinic or meet with her by telephone. In my view, he is reasonably certain to prove these were reasonable alternatives to an in person appointment that day. I appreciate that EH says she required an urgent in-person exam, but this is an issue of medical judgement: McDonald v. O’Malley and BC (Min of Public Safety and Solicitor General), 2005 BCHRT 154 at para. 33. In his affidavit, Dr. K says that it was not urgent and he could have met with EH by phone. The Referral Form from the referring doctor says that a biopsy was negative for “dysplasia or malignancy” but that EH was “still very concerned … and would appreciate dermatologic specialist opinion regarding the lesion and further management plans”. At a hearing, in the face of this evidence, EH’s view that she urgently required an in person medical appointment would not be enough to establish that Dr. K’s offer of a tele appointment was unreasonable. To the contrary, I am satisfied that Dr. K is reasonably certain to prove that this was a reasonable and practical option to accommodate EH’s disability-related needs. Her refusal to accept the option brought his obligations under the Code to an end.

IV    CONCLUSION

[22]         This complaint has no reasonable prospect of success. It is dismissed under s. 27(1)(c) of the Code.

Devyn Cousineau
Vice Chair