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We had previously written about two cases out of British Columbia relating to human rights complaints regarding COVID-19 policies. The first complaint challenged a grocery store’s mandatory mask policy, while the second challenged the province’s proof of COVID-19 vaccination requirement. Both cases were dismissed by the British Columbia Human Rights Tribunal. 

This week, we review a related Alberta case, in which a Costco customer filed a human rights complaint against the store with the Alberta Human Rights Tribunal (the “Tribunal”) alleging that the store’s mask policy was discriminatory on the basis of disability. The Tribunal’s decision was released on August 21, 2021.

Customer Refuses to Wear Mask in Store

The customer went to a Costco store in Edmonton, Alberta, on November 17, 2020. 

Upon arrival, he was told by a store employee that he would be required to use a face mask, in accordance with Costco’s policy, which had been instituted in response to the COVID-19 pandemic. 

However, the customer stated that because of a disability he was exempt from the requirement to wear a face mask. The store employee offered, as an alternative, that the customer could use a face shield, but he refused. An altercation ensued, the police were called, and the customer was removed from the store.

Customer Files Human Rights Complaint

The customer subsequently filed a human rights complaint, alleging that the store discriminated against him in the area of goods, services and accommodation on the ground of physical disability, in contravention of section 4 of the Alberta Human Rights Act (the “Act”). Section 4 states:

Discrimination re goods, services, accommodation, facilities 

4   No person shall

                           (a)    deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or

                           (b)    discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public,

because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or class of persons or of any other person or class of persons.

Specifically, the customer alleged that the store’s refusal to allow him to enter the store, without wearing a face mask, constituted an infringement of his rights under the Act. He argued that the alternative of wearing a face shield was not reasonable, since it did not offer protection against transmission of COVID-19. He further submitted that the use of a face shield, as an alternative to face masks, was stigmatizing, was meant to single him out as a person with a disability, and would subject him to humiliation. He argued that provincial and municipal requirements in place at the time recognized that some persons might not be able to wear face masks for medical or other reasons, and provided for exemptions. As such, he claimed that the exemptions meant the store’s policy was contrary to law.

In response, Costco argued that in response to the public health emergency precipitated by COVID-19, it had developed and implemented a policy to protect its employees, members and customers. The policy included a mandatory requirement to use face coverings – either a face mask, or, for those who were unable or unwilling to use a mask, a face shield. The store submitted that its policy was reasonable and justifiable given the severity and dangers of the COVID-19 pandemic and provided appropriate accommodation for those unable to wear a face mask. It further argued that while the provincial and municipal regulations requiring the mandatory use of face masks provided for exemptions, this did not prevent private businesses from instituting face mask and other safety policies. Finally, it submitted that the customer had not provided information regarding his inability to wear a mask and his decision was a personal choice, which was not protected under the Act.It also suggested that the complaint was filed in bad faith, as the customer’s social media posts suggested that the COVID-19 pandemic was a hoax and a conspiracy.

Human Rights Tribunal Sets Out Legal Framework

The customer’s complaint had been dismissed by both a Human Rights Officer and, subsequently, the Director. The customer therefore sought review of those decisions with the Tribunal. Thus, the Tribunal was tasked with determining whether there was a reasonable basis to proceed with a hearing before the Tribunal regarding the complaint.

The Tribunal began by setting out the applicable legal principles, stating:

“There is no question that the [store] instituted a policy that had an adverse impact on persons with certain disabilities, such as those who were unable to use face masks. In this respect, the policy, on its face, limited the rights of persons who could not wear a face mask because of a disability. This, however, does not end the inquiry. The Act and human rights jurisprudence accept that limitations to the right to be free from discrimination may be justified where a) the limitation or rule is instituted for valid reasons; b) it is instituted in the good faith belief that it is necessary; and c) it is impossible to accommodate persons who may be adversely affected, without incurring undue hardship. To establish the third and final aspect of the test, the [store] must show they have considered the least intrusive options, and made every effort to accommodate the complainant’s disability-related needs, short of undue hardship.” 

Tribunal Dismisses Customer’s Human Rights Complaint

Turning to the customer’s complaint, the Tribunal first found that the store had established a valid business purpose for instituting its mask policy. Further, the Tribunal stated:

“[T]he complainant alleged that the [store] instituted the policy (or at least the alternative of face shields) in bad faith, and with the purpose of singling out persons with disabilities for humiliation. Apart from asserting that face shields were not effective in preventing the transmission of the COVID-19 virus, he provided no basis for this allegation. I cannot accept the complainant’s submission. Even if he were correct about the limited effectiveness of face shields, there is no reasonable basis in the information to support the position that the [store] instituted the policy in bad faith, or without the belief that it was reasonably necessary for the safety of its employees and customers.”

The Tribunal also dismissed the customer’s claim that the store’s policy was inconsistent with mandatory public health regulations, stating: 

“There is nothing in those regulations that prohibits businesses from requiring the use of face masks by employees or customers, and indeed both specifically provide that businesses may institute their own policies. Subject to specific prohibitions, there is nothing in the public health regulations that “exempted” the complainant from complying  with the [store]’s policy.”

Finally, the Tribunal held that the store’s policy was reasonably necessary to achieve a legitimate business purpose and adequately provided appropriate accommodation for those persons who could not wear masks. 

In the result, the Tribunal therefore upheld the Director’s decision to dismiss the customer’s complaint.

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