New Requirements for Complaints About Mask-wearing in Services

This practice direction is an interim emergency measure to address the significantly increased workload at the Tribunal, including the large number of complaints about a requirement to wear a mask to access a service under s. 8 of the Human Rights Code [Code].

Of the complaints processed to date, almost all have not set out facts that, if proven, could violate the Code. It appears that almost all were filed based on a misunderstanding of the Code:

• Almost all complaints are based on disability, and do not state what the disability is or how it prevented the complainant from wearing a mask for the time needed to access the service.

• Most complainants said the respondent failed to comply with the Provincial mask mandate which provides exemptions. This is not relevant to a human rights complaint as the Tribunal does not apply or enforce Ministerial Orders.

In the very few cases where a complaint alleged a possible violation of the Code, the respondent had often offered reasonable accommodation such as on-line shopping and curb-side pick-up. In these cases, there is no reasonable prospect the complaint will succeed.

The Tribunal will not proceed with complaints that do not meet the following requirements. It will not give complainants any further opportunity to provide missing information.

Complaints must include:

• The protected personal characteristic.
• If the protected characteristic is disability, the complaint must identify a disability related to mask wearing, for example, state its permanence and limitations.

Note: it is not enough to say “breathing issues”, “medical exemption”.

• If the protected characteristic is disability, the complaint must explain how the disability prevents them from wearing a mask for the time required to access the service.

Note: it is not enough to say “I cannot wear a mask because I have [disability].” Many people with disabilities are able to wear a mask. You must explain how the disability prevents you from wearing a mask for the time required to access the service.

• The date, time, and place of the alleged service denial.
• Statement of the other means of accessing the service the respondent provides; for instance, on-line shopping, curbside pick-up, telephone order or consultation.

Complaints must not include a complaint based on:

1. Orders of the Provincial Health Officer or the Provincial Government

The Tribunal does not apply or enforce Ministerial Orders. The Tribunal deals only with complaints of discrimination contrary to the Human Rights Code: Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156 at paras. 28-30.

2. The Canadian Charter of Rights and Freedoms

The Tribunal does not apply or enforce the Charter. Further, the Charter applies only to acts of governments. It does not apply to the acts/behaviour of individuals or private businesses.

Effective period of Practice Direction

This practice direction is effective March 31, 2022 and will remain in effect until further notice.

Emily Ohler
Chair
March 24, 2022