Earlier this year, we wrote about a British Columbia Human Rights Tribunal (the “Tribunal”) decision in which a customer’s complaint against a grocery store’s mandatory mask policy was dismissed because she had refused to disclose any health information to support her claim. In that case, the Tribunal had concluded by stating:
“The [Human Rights] 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. Rather, the [Human Rights] Code only protects people from discrimination based on certain personal characteristics, including disability. This protection is reflected in exemptions to mask-wearing rules for people whose disabilities prevent them from being able to wear a mask or other face covering. 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.”
Last week, the Tribunal issued a decision on a complaint against Dr. Bonnie Henry, the province’s Health Officer, in which a citizen alleged that the requirement to provide proof of COVID-19 vaccination to access certain services was discriminatory under British Columbia’s Human Rights Code (the “Code”).
Province Introduces COVID-19 Vaccination Proof Requirement
Beginning on September 13, 2021, the Government of British Columbia now requires proof of COVID-19 vaccination to access various services (the “Services Requirements”). In its August 23, 2021 announcement on the measure, the Government news release stated that:
“A new order from the provincial health officer will require individuals to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated at least seven days after receiving both doses. To enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, like conferences and weddings, people aged 12 and older will be required to show their proof of vaccination.”
Complainant Lodged Against COVID-19 Vaccination Requirement
Subsequent to the Government’s announcement, a British Columbia resident (“the complainant”) filed a complaint against Dr. Bonnie Henry alleging discrimination in the area of services on the basis of physical disability under s. 8 of the Code. He claimed that the Services Requirements were discriminatory.
In his submissions, the complainant stated that he has asthma, had pneumonia as a child, and “does not want your experimental COVID vaccine.” He further submitted that “[i]n a news conference, it was announced that the experimental vaccine is being made mandatory”, and that he does not want services limited “because of your experimental vaccine”.
Tribunal Refuses to Hear Complaint
At the outset of its decision, the Tribunal noted:
“The Tribunal ordinarily issues its screening decisions by letter. However, since the Services Requirements announcement, the Tribunal has received a large volume of inquiries and complaints alleging discrimination in connection with the pending vaccination requirements. This issue has emerged as one of considerable public interest and concern. In light of the volume of these types of complaints and public interest in this issue, I am publishing this screening decision.”
The Tribunal then explained that to establish discrimination a complainant must prove:
- That they have a characteristic protected from discrimination;
- That they have experienced an adverse impact in a protected area; and
- That the protected characteristic was a factor in the adverse impact.
In the present complaint, the Tribunal held that the complainant’s asthma could constitute a physical disability, which is a protected characteristic under the Code.
However, moving onto the second requirement, the Tribunal found that the complainant had not alleged facts of having experienced an actual adverse impact, stating:
“At best, the Complainant references a prospective adverse impact, not one that he has actually experienced.”
As such, the Tribunal held that without proof of an actual adverse impact related to a service, facility or accommodation customarily available to the public, the complaint could not constitute a breach of the Code.
The court then observed:
“Before concluding, I note that it is not enough to prove discrimination to have a protected characteristic and have experienced an adverse impact: there must be a connection between the two. The person making the complaint must establish that connection. Here, even if the Complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID-19, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.”
In the result, the Tribunal therefore refused to allow the complaint to proceed.
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