Discrimination Based on Face Mask Use in Retail Settings

Face mask mandates are now common place across Canada, which started being enshrined in law over a year ago. Many of these can be found in municipal by-laws, but they can also be found in regulations to provincial statutes.

For example, Ontario’s O. Reg. 364/20 – Rules for Areas in Stage 3 under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 states,

(3.1) The person responsible for a business or organization that is open shall ensure that any person in the indoor area of the premises of the business or organization, or in a vehicle that is operating as part of the business or organization, wears a mask or face covering in a manner that covers their mouth, nose and chin during any period when they are in the indoor area…
[emphasis added]

The regulation has a number of exemptions, including children under the age of 2, those in a correctional institution, temporarily removing the mask for eating and drinking, but also for accommodations with the Accessibility for Ontarians with Disabilities Act, 2005 or Human Rights Code.

How such accommodations would work have yet to be fully tested under human rights law. In Sharma v. Toronto (City), the applicant challenged Toronto’s By-Law 541-2020 in 2020 on the basis of the Code, claiming it violated her creed and the protections against disability. The by-law had an exemption for accommodation under the Code, but the applicant claimed he “has been lectured, harassed, turned away and, in one instance, banned from the store.”

Much like many of the claims against vaccines, the ground of creed was dismissed,

[11] “Creed” is not defined in the Code, but most often engages an applicant’s sincerely held religious beliefs or practices. The case law has left open the question of whether a political perspective, such as communism, that is made up of a recognisable cohesive belief system or structure might constitute a creed. However, mere political opinion does not engage creed. See Vezina v. Elections Ontario, 2016 HRTO 994 at paras. 9 and 11 and the cases cited therein.

[12] In essence, the applicant disagrees with the City’s policy choice to enact the By-Law because he does not think that the efficacy of masks has been sufficiently proven. This does not engage creed within the meaning of the Code. The applicant’s recourse is to engage with the City’s elected officials about his concerns, not to file an Application alleging discrimination because of creed.

However, the ground of disability was found to be engaged, because the scope of disability has been defined broadly. In Vetricek v. 642518 Canada, the Tribunal stated,

[35] Plainly, the definition of disability is very broad, including “any degree of physical disability, infirmity…that is caused by bodily injury”. As with all statutory provisions that advance the purpose of human rights legislation, “disability” has also been defined broadly in the jurisprudence. As noted in Chen v. Ingenierie Electro-Optique Exfo Inc. 2009 HRTO 1641 (CanLII):

The definition of disability is interpreted in a broad manner and extends to the actual or perceived possibility that an individual has or may develop a disability in the future: Quebec (Commission des droits de la personne & des droits de la jeunesse) v. Montreal (City), [2000] 1. S.C.R. 665, 2000 SCC 27 (CanLII) [reported 37 C.H.R.R. D/271]. For example, if an employer believes that an employee’s condition will interfere with business operations and or profitability and for that reason dismisses an employee, this perception and consequent treatment can give rise to a finding of discrimination on the basis of a disability under the Code: Boodhram v. 2009158 Ontario Ltd., 2005 HRTO 54 (CanLII) [CHRR Doc. 05-738].
[emphasis in the original]

However, because the application was against the city, and not any of the businesses that had turned him away, this claim was dismissed as having no reasonable prospect of success.

Citing this case, an interim decision in CL as represented by his Litigation Guardian KL v. Toronto District School Board was allowed to proceed.

Other claims have been dismissed, for example, for not having enough information about how a disability is engaged, such as in Civiero v. Habitat for Humanity Restore, Boissinot v. Aiana Restaurant, Dubé v. Dutch Love Cannabis, Beardwood v. Mitrikas, Wall v. Ryans No Frills, Hearn v. The Beer Store, Shelston v. Nature’s Emporium (Newmarket), Longley v. Kingston Mazda Dealership, and The Customer v. The Store,

Retail claims of discrimination over masks have also been dismissed for procedural reasons, as in Ethier v. Magasin Pierre Marchand Inc. oa Store No 102, where the applicant did not appear for a case management conference via telephone. The Tribunal concluded that the failure to participate in the disclosure process or hearing management process was effectively an abandonment of the claim in several claims, as in Quesnelle v. Gagnon’s Independent Grocer, Gervais v. Independent Grocer, and Mumberson v. Costco.

These applicants are generally self-represented, and likely did not include adequate details about the nature of their disability and how it prevented them from wearing a mask. In Civiero, where the applicant included this information in a reconsideration, the application was allowed to proceed.

In some of these unsuccessful cases, applicants have deliberately withheld medical information for privacy reasons. However, the Tribunal requires some factual basis beyond a bald assertion as to which grounds of discrimination are engaged, and why.

The widespread nature of mask mandates, and the sheer number of applications challenging these mandates, suggest that this problem will be with us for some time.

A recent decision by the Human Rights Tribunal of Alberta in Beaudin v Zale Canada Co. o/a Peoples Jewellers provides some indication as to how human rights tribunals across Canada may deal with this challenge. The facts, which are similar to many of the claims listed above, were explained as follows,

[1] The complainant, James Beaudin, alleges that the respondent, Zale Canada Co. o/a Peoples Jewellers, discriminated in the area of goods, services and accommodation on the ground of physical disability (the Complaint), in contravention of section 4 of the Alberta Human Rights Act (the Act).[1]

[2] The complainant is an individual who has a disability which prevents him from wearing a face mask. On or about October 9, 2020, the complainant attended a Peoples Jewellers retail store in Edmonton. He was not wearing a face mask as he entered the store.

[3] The store’s staff indicated to the complainant that, because of the COVID-19 pandemic, and the respondent’s public health policy, he was not able to enter the store without a face mask. The complainant explained that he was “exempt” from the requirement to wear face masks because of health reasons.

[4] While there is some dispute about exactly what was said, the store staff indicated that the complainant could not enter the store, but that other accommodations were available, including telephone and on-line shopping, with free delivery or curb-side pick-up. The complainant objected, but the store staff was firm, and the complainant was told to leave.

[5] The complainant argues that his rights were infringed by not being permitted to enter the store. He argues that his disability prevents him from wearing a face mask. He also argues that there was no mandatory public health requirement in place that supported the respondent’s policy.

This complaint was also dismissed, on the basis that the store’s policies were reasonable and justified in the circumstances, and that the applicant had been provided a number of alternatives for shoppers who could not wear face masks for disability-related reasons. The applicant’s request for review challenged the science around face masks, and pointed out that at the time of the store’s decision there were no mandatory face mask laws in place.

The decision was upheld by the Chief of the Commission and Tribunals on the following basis,

[14] There is no question that the respondent instituted a policy that had an adverse effect on certain persons with disabilities, such as the complainant. The fact that public health officials had not, at the time of the incident, instituted a mandatory mask requirement for retail establishments does not determine the question. Rather, the question is whether the policy was introduced for a valid and legitimate business purpose, was introduced in good faith, and there were no alternatives available to accommodate those negatively affected, without incurring undue hardship.[3]

[15] In my view, the respondent has provided information that it developed and introduced the policy for a valid purpose (employee and public safety), and that the policy was introduced in good faith.

The manner in which human rights apply in the retail context was also addressed,

[17] With respect, human rights law, including the Charter of Rights and Freedoms, requires a balancing of rights, with the obligation of an employer or service provider to accommodate the effects of a discriminatory policy, to the point of undue hardship. As noted above, here the respondent has developed a comprehensive and scientifically based policy. I appreciate that the complainant may not agree with the science supporting the respondent’s policy, or have the resources to challenge it. But in the absence of information challenging the respondent’s evidence about the necessity of a mandatory face mask policy to protect employee, customer and public health, I am unable to find there is a reasonable basis to have this complaint proceed to a hearing.

Retail stores are still private businesses. They are allowed to exclude customers, and even refuse service, as long as it is for a non-discriminatory reason.

Where a customer believes they are being discriminated against through refused entry because they believe they are unable to wear a mask, this refusal may still be valid under human rights law, even if the inability to wear a mask is related to a disability.

What stores should do in these circumstances is ensure that they provide all other options and alternatives to customers, including curb-side pick-up and online shopping, to minimize the impact on the customer. Most importantly, these situations and circumstances should still be dealt with through patience and respect for the customer, even if there is a significant disagreement with them about the necessity of masks or the science behind its use.

The Ontario Human Rights Commission’s 2001 Policy and guidelines on disability and the duty to accommodate states,

Human dignity encompasses individual self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. It is harmed when people are marginalized, stigmatized, ignored or devalued. Privacy, confidentiality, comfort, autonomy, individuality and self-esteem are important factors as well to show whether an accommodation maximizes integration and promotes full participation in society.
Different ways of accommodating the needs of persons with disabilities should be considered along a continuum from those ways that are most respectful of privacy, autonomy, integration and other human values, to those that are least respectful of those values.

However, this policy also states that the principle of dignity with risk, where the person with a disability is able to assume risk to themselves, has to be balanced with health and safety considerations. The issue with masks in retail settings is not simply one regarding the customer seeking the accommodation, but also includes maintaining a safe workplace for all workers, and ensuring the safety of other customers.

While human rights principles may not allow customers to force entry into a business without wearing a mask, it does not mean that such situations necessarily have to be characterized by conflict and controversy. This may often be inevitable given the emotions around this on both sides of the situation, but everyone involved should do their best to properly understand their rights, and their responsibilities, in such circumstances.