Proof of Disability Required for those Alleging Discrimination Relating to Masking Rules

  • April 27, 2021
  • Khalid Mahdi

A recent screening decision by the British Columbia Human Rights Tribunal (“BCHRT”) held that any complaints of disability discrimination arising from a requirement to wear a mask must be substantiated by evidence of the existence of a disability. This decision sheds light on the response to B.C.’s provincial mask wearing requirements, an issue that has been at the centre of a growing number of complaints that have been filed with the BCHRT.

In The Customer v The Store, 2021 BCHRT 39 (CanLII) (The Customer) a complaint was filed by a customer after she was stopped at a local grocery store for failing to wear a mask. When asked by security to wear a mask, the customer replied that she was exempt from the requirement because they “cause health issues” (at para 9). The Tribunal requested further information on the nature of her alleged disabilities and how it might be related to her inability to wear a mask. The customer’s position was that it was very difficult to breathe while wearing a mask, and that doing so causes her anxiety (at para 11). The customer did not disclose any information about a disability that prevented her from wearing a mask.  Ultimately, the Tribunal decided not to proceed with the complaint.

The decision reinforces the purpose of human rights legislation, which is to protect individuals with disabilities or other Code-protected characteristics from discrimination. Individuals seeking accommodation due to their inability to wear a mask must be able to substantiate that it is linked to a disability. The implications of this decision in Ontario are yet to be seen. However, the Ontario Justice System may look to this decision when dealing with cases involving individuals who may wish to challenge mask wearing policies under the Ontario Human Rights Code.  You can read more about this case in a CBC article here (link).

Human rights don’t go away in a pandemic (JL v Empower Simcoe, 2021 HRTO 222 (CanLII) at para 150). While this case is notable in that it is one of, if not the first mask related case coming out of the B.C. Human Rights Tribunal, the principles articulated in the decision are nothing new. If you are alleging discrimination, you have to prove it. We can help with that. If you have been denied a service, or employment or educational accommodations arising from your inability to wear a mask due to a disability, and are considering filing a complaint, reach out to the bakerlaw team to see how we can help (link). Click here (link) to learn more about the services we offer.

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