The Human Rights Tribunal of Ontario (“HRTO”) and the British Columbia Human Rights Tribunal (“BCHRT) have both recently decided matters involving an individual’s objection to wear a mask and allegations of discrimination under the provinces respective Human Rights Codes. Due to the Covid-19 pandemic, the City of Toronto enacted By-Law 541-2020 (the “Toronto By-Law”) requiring businesses and other establishments open to the public to develop a policy requiring individuals to wear masks or face coverings when entering and remaining within any enclosed space. British Columbia has similarly required individuals to wear masks or face coverings in indoor areas pursuant to Ministerial Orders M425 and M012 (“BC Orders”)

In Sharma v. Toronto (City), 2020 HRTO 949 (“Sharma”), the Applicant, Mr. Sharma, brought an application to the HRTO alleging with the enactment of the Toronto By-Law, the City of Toronto discriminated against him based on his creed and disability.

The HRTO first considered whether “creed” was engaged and found that the Applicant’s refusal to wear a mask did not fall under “creed” within the meaning under the Ontario Human Rights Code (the “ Ontario Code”). The Adjudicator noted that “creed” while not defined in the Ontario Code usually involves an Applicant’s “sincerely held religious beliefs or practices”. She further stated that “creed” is not engaged by a political opinion. It was found that the Applicant’s belief that masks stop or prevent the spread of COVID-19 is unsubstantiated by scientific evidence, does not engage “creed” within the meaning of the Code.

The HRTO did find that disability within the meaning of the Ontario Code was engaged. The Applicant met the onus of proving he had a disability within the meaning of the Ontario Code. The Adjudicator stated that the Toronto By-law recognizes that businesses have the duty to accommodate those with disabilities and that businesses must have exemptions in their policies for those who cannot wear masks for medical reasons. The Adjudicator further stated that generally, an individual seeking accommodation does not have to disclose their medical condition. However, in some cases individuals will have to provide information to verify accommodation needs. In the case of the Toronto By-Law, it does not require individuals to “provide proof of any of the exemptions” to wearing a mask. If the individual identifies that they have a medical condition or requires accommodation that, in itself, exempts that individual from wearing a mask under the business’ policy, and they cannot be denied services.

The Adjudicator ultimately dismissed the application as there was no reasonable prospect of success. The application was brought against the City of Toronto and there were no allegations of adverse treatment by the City of Toronto. Rather, the adverse treatment alleged was against the businesses that had refused to provide services to the Applicant and the City could not be responsible for their conduct. It was noted that the Applicant was open to bringing application against those businesses. The Adjudicator also stated that depending on the facts, those businesses that denied services to the Applicant, may have breached the Ontario Code.

In The Worker v The District Managers the BCHRT refused the filing of a Complaint by an employee who was terminated due to refusing to wear a mask. These types of decision are usually communicated by letter, however the BCHRT decided to publish the decision due to the number of complaints being filed alleging discrimination in connection with the requirement to wear a mask.

The Complainant claimed that he could not wear a mask due to his religious beliefs and in part that “God makes truth of high importance that [he] must follow ethically and morally”, “forced mask wearing does not help protect anyone from viruses”, and the Applicant could not “live in that lie”.

The BCHRT found that if proven, the facts alleged could not establish that the Complainant’s objection to wearing a mask was “essentially religious in nature”. There were no facts identified that supported a finding that wearing a mask was prohibited by any religion or that not wearing a mask engendered a personal, substantive connection to the divine or spiritual faith. The Complainant’s objection to wearing a mask because it does not stop the spread of COVID-19 was found to be his opinion and arbitrary. As such it was found that the complaint did not set out a possible contravention of the BC Code.

Take Away

As indicated in both the HRTO and BCHRT decisions, an applicant’s “creed” or “religion” will not be engaged within the meaning of the Ontario or BC Code when the allegation is based on the belief that masks do no stop the spread of Covid-19.

Sharma does provide a reminder to businesses and employers that under the Ontario Code, businesses have a duty to accommodate those with disabilities. This includes when someone cannot wear a mask due to a disability. Pursuant to the Toronto By-Law, if an individual or employee discloses that they cannot wear a mask due to medical reasons or a disability, the individual or employee does not have to disclose the specific medical condition. Further, businesses cannot refuse service to an individual that cannot wear a mask due to medical reasons. In accordance with the Toronto By-Law, individuals and employees do not need to show proof of the exemption from wearing masks.