Mandatory Mask Policies and Human Rights

Published on: April 2021 | What's Trending

Five different signs showing that masks are required before entry

The Human Rights Tribunal of Ontario (the “Tribunal”) recently released a decision regarding a municipal by-law requiring businesses to implement mask policies during the COVID-19 pandemic.

In Sharma v. Toronto (City), 2020 HRTO 949, the applicant brought an application against the City of Toronto (the “City”), alleging that the City had discriminated against him contrary to the Ontario Human Rights Code (the “Code”) on the protected grounds of “creed” and “disability”. The City had enacted By-Law 541-2020 (the “By-Law”), which required public-facing businesses to adopt a policy requiring members of the public to wear a face-covering while in an enclosed space. The applicant claimed that the City discriminated against him because he was denied service at several businesses due to the City’s By-Law. The Tribunal dismissed the application following a summary hearing on the basis that there was no reasonable prospect it would succeed.

The Tribunal found that the ground of creed was not engaged in this case. While creed is not defined in the Code, it generally engages an applicant’s sincerely held religious beliefs or practices. Mere political opinion does not engage creed. In this case, the Tribunal found that the applicant disagreed with the By-Law because he did not believe the efficacy of masks had been sufficiently proven. The Tribunal held that this was not sufficient to engage creed within the meaning of the Code.

Conversely, the Tribunal found that the ground of disability was engaged. The applicant provided details about two of his medical conditions which fell within the broad definition of disability under the Code.

Nonetheless, the Tribunal found that the application had no reasonable prospect of success because the applicant did not allege adverse treatment by the City. The Code is only engaged where an applicant alleges adverse treatment by the respondent because of a protected ground.  In this case, the applicant alleged that he had been lectured, harassed, turned away, and banned in one instance when he advised businesses of his inability to wear a mask. While the Tribunal acknowledged that those businesses may have breached the Code, the applicant failed to provide a basis to attribute that alleged conduct to the City.

The Tribunal rejected the applicant’s submission that bringing an application against every business that denied him service would “become a full-time job”. Ultimately, it was the applicant’s choice not to file such applications, and the required time investment does not somehow assign those businesses’ alleged conduct to the City.

The Tribunal also rejected the applicant’s argument that it would be unreasonable to bring applications against the businesses because the By-Law is unclear. In fact, the By-Law specifically requires mask policies to provide exemptions for people with medical conditions and people needing other accommodations, and that a person claiming such an exemption must not be required to provide proof. The City could not be blamed for the alleged conduct of businesses who incorrectly apply the By-Law. Accordingly, the Tribunal found that the applicant had no reasonable prospect of success in proving discrimination by the City.

The takeaway from this decision for businesses is that they may be subject to discrimination claims by individuals with medical conditions who are denied a service due to the company’s unwillingness to accommodate their inability to comply with the By-Law.  At the very least, businesses should confirm whether a medical condition prevents the individual from complying with the masking requirement.  They should not, however, require documentary proof of the medical condition, or require the individual to disclose a specific medical diagnosis. Businesses should also explore alternative options for providing services to those unable to wear masks for medical reasons.  For example, in the context of retail establishments, this might require the company to have an employee obtain and bring the requested product to the individual outside of the store.  The Tribunal’s decision also provides assurance to businesses that individuals will be unable to assert human rights claims where their refusal to wear a mask is simply because of a personal belief that they are ineffective or unnecessary.

The authors would like to thank Allan Tung, Articling Student, for his assistance with this article.