It's Your Mask Preference That's Pointless

BC Human Right's Tribunal decisions arising from the pandemic are starting to appear, and the HRT has sent a clear message to people asserting homespun legal reasons for not wearing a mask.

Robert Smithson, whose employment law articles are some of the best and no-nonsense we’ve seen on the subject of COVID-19, explains below one of the first Tribunal decisions dismissing an anti-mask claim. 

The original version of this article can be found on Smithson Employment Law Corporation. 

It’s been over a year since a little thing called COVID-19 arrived in Canada, and much has changed in the employment world in that timeframe.  One challenge lawyers have had is that – in our lifetime, at least – a global pandemic is unheard of and so we had little to go on but common sense in advising our clients.

We have often had to tell clients something along the lines of, “This is what I think you should do, but I really can’t guarantee how the courts or tribunals will view it.”  I regularly told clients, starting at this time last year, that it would be upwards of a year before related decisions started to be released by courts and tribunals and other adjudicators. 

It was going to take time for cases to arise, to get into the system, and to get decided.  We would have to just use our best judgment and then wait and see.  (Perhaps not exactly the kind of advice you’re hoping to receive from your lawyer.)

Now – a year later – we’re starting to see such decisions emerge.  One of the first was a “screening decision” by B.C.’s Human Rights Tribunal, dismissing an anti-mask claim.  It involved a person who falls into the category of what I call an “armchair lawyer”, asserting her legal right not to be discriminated against, to be accommodated, etc.

Employment lawyers have been confronted with all kinds of such instances in the workplace setting over the last year.  Employees have refused various reasonable, COVID-related directions from their employer and, as a result, the employers have sought out legal advice.

According to the Tribunal, in this instance the unnamed complainant went to shop at a grocery store while not wearing a face mask.  (At the time, masks were not mandated by any B.C. government order, but the store had implemented its own policy requiring customers to wear a mask.)  

A security guard stopped the customer and asked her to wear a mask.  She told the guard that she was “exempt” from wearing one but refused to explain why, other than to say they “cause breathing difficulties”.  The guard insisted that she wear one or leave and so she left the store.

In her complaint to the Tribunal, the woman alleged that, in requiring that she wear a mask, the store discriminated against her based on physical and mental disability, in violation of s. 8 of the B.C. Human Rights Code.  She refused, however, to give the Tribunal any information related to her alleged “disability” or how it interfered with her ability to wear a mask.

(Note to potential complainants… if you’re going to file a legal complaint alleging discrimination based on a disability, you might expect that you’re going to be asked what your disability is.  Just sayin’.)

The Tribunal noted that, since October, it has received a large volume of complaints alleging discrimination in connection with the requirement to wear face coverings indoors.  The Tribunal referred to it as an issue “of considerable public interest and concern”.

Back to the grocery store…  The complainant stated that she told the security guard she was exempt from wearing a mask because they “cause health issues”.  (When the guard pressed her, she told him her health issues were “private”.)  She then asserted that “these things cause breathing difficulties, and [she] was therefore exempt”.  The stalwart security guard stood firm on her having to wear a mask or leave.

The complainant asserted to the Tribunal that the store had an obligation to accommodate her, that the “sudden and arbitrary decision to force customers to wear masks is discriminatory”, and that the store’s policy was “pointless” and discriminates against people with health issues.

She informed the Tribunal that “it is very difficult to breathe with masks, and it causes anxiety”, while refusing to disclose any information about having a specific mental or physical disability.  She stated, “Being difficult to breathe and causing anxiety makes it a hardship [to] wear a mask”.

The Tribunal had no difficulty rejecting her complaint, and did so summarily.  It stated…

“The Code does not protect people who refuse to wear a mask as a matter of personal preference, because they believe wearing a mask is “pointless”, or because they disagree that wearing masks helps to protect the public during the pandemic. Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability.  …  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.”

Score one victory for logic and common sense.  The moral of the story, here, is that spouting homespun ideas about your perceived rights is no path to a legal victory in front of an expert Tribunal.  Oh, and that your personal preference or view that wearing masks is pointless doesn’t make you “exempt”.

I see it as a good thing that we’re starting to receive these decisions.  Maybe, as a result, businesses won’t have to deal with as many of these ill-informed, armchair lawyers.