Human rights tribunal puts anti-maskers on notice, saying complaints require proof of disability

The B.C. Human Rights Tribunal has made it clear that anyone thinking of filing a complaint because they were told to wear a mask in a store will actually have to prove they have a disability that prevents them from doing so.

In a screening decision handed down Wednesday, tribunal member Steven Adamson wrote that "a large volume of complaints" have been filed over B.C.'s COVID-19 measures requiring face coverings in public indoor spaces like grocery stores, libraries and community centres.

The tribunal normally doesn't publicize this type of decision, which determines if a complaint contains a possible violation of the B.C. Human Rights Code. But Adamson said he wanted to publish one anonymized example for the purpose of public education.

"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," Adamson said.

"Rather, the Code only protects people from discrimination based on certain personal characteristics, including disability."

B.C.'s Office of the Human Rights Commissioner has recommended that people, like store owners, who are only having brief interactions with customers shouldn't demand medical proof that someone is unable to wear a mask before offering accommodations, which may mean options like curbside pickup, rather than shopping maskless. 

But filing a human rights complaint is a different matter, and it requires evidence.

"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," Adamson wrote.

Grocery store customer said she has 'health issues'

The example outlined in Wednesday's decision concerns a woman who visited her local grocery store on Sept. 28. The identities of both the store and the customer have been protected by the tribunal.

The shopping trip happened before the B.C. government brought in an order making masks mandatory, but the store already had its own policy requiring face coverings, the decision says.

The woman told the tribunal she was stopped by a security guard because she wasn't wearing a mask.

She says she told him she had "health issues," and when he asked for more details, she said it was private. She "explained that these things cause breathing difficulties, and [she] was therefore exempt," the decision says.

The security guard told her to put on a mask or leave. She left, but alleges she heard other store employees describe the mask policy as a "hoax."

Adamson said the customer refused to provide the tribunal with any information about her alleged disability, saying only that "it is very difficult to breathe with masks, and it causes anxiety." She told the tribunal she should not have to provide private health information to a government body.

That wasn't good enough, Adamson said.

"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,'" he said.

He also noted that despite the recommendation from the human rights commissioner, the tribunal has not yet determined how much medical information a customer needs to give a retailer in order to be exempt from the mask law.

Adamson said a ruling on that issue will have to wait for a more appropriate complaint.