BC Human Rights Tribunal Shuts Down Complaint of “Anti-Masker”

The BC Human Rights Tribunal issued a screening decision on March 31, 2021 in the case of a customer who refused to wear a mask in a grocery store.

The store’s security guard asked the customer to wear a mask.  The customer said she was exempt from wearing a mask but refused to say why.  She made a statement about masks causing health issues, and causing breathing difficulties.   The guard insisted the customer had to wear a mask so the customer left the store.  

The customer filed a complaint with the BC Human Rights Tribunal alleging discrimination.  Specifically, the customer alleged that, by requiring her to wear a mask or leave, the store had discriminated against her based on a physical and mental disability, in contravention of the BC Human Rights Code (the “Code”). 

The customer refused to provide any information to the Tribunal about her alleged disability or how it interfered with her ability to wear a mask.   The customer simply alleged, “it is very difficult to breathe with masks, and it causes anxiety”.  She refused to disclose any information about her specific physical or mental disability. 

The Tribunal dismissed the customer’s complaint.  The Tribunal found that it did not contain a possible contravention of the Code.  The customer had not alleged any facts to establish that she had a physical or mental disability that was a factor in her being asked to wear a mask or leave the store.  Specifically, the Tribunal said:

“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 a pandemic”.  

The Tribunal said that any claim of disability discrimination relating to wearing a mask must start by establishing the person has a disability that interferes with their ability to wear a mask.  

The Tribunal can require disclosure of this health information to assess a complaint.  In this case, the complainant refused to provide any evidence of her alleged disability. 

The full text of the decision can be found here.

This case serves as a useful reminder that personal preferences are not enough to support a complaint of discrimination.  The complainant must prove they fall within a protected class or have a protected characteristic like a disability, and then prove adverse treatment connected to that protected class or characteristic.  

This update was authored by Harper Grey lawyer, Scott Marcinkow. Have questions regarding this post? Contact Scott at smarcinkow@harpergrey.com or anyone else listed on the authors page.