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As the pandemic wears on, more cases about mandatory masking and other precautionary measures are making their way through Human Rights processes.
The Human Rights Tribunal of Alberta recently issued a decision related to a complaint filed by a customer against a natural food store in Calgary, Pelletier v. 1226309 Alberta Ltd. o/a Community Natural Foods. This is another case in a growing collection of decisions where complaints of this nature have failed.
There is nuance to this case as there is in every decision, but the primary takeaway from this decision is this: assertions and vague information or documentation will not simply do when claiming human rights violations on the basis of religious beliefs or disability.
In Alberta, when a human rights complaint is made and an investigation is completed, the Director of the Commission can do one of the following (based on the findings of the investigation):
- Attempt to settle the complaint;
- Dismiss or discontinue the complaint; or
- Refer the complaint to the Human Rights Tribunal for a full hearing.
In this situation, Mr. Pelletier’s complaint was dismissed by the Director following an investigation. Where this happens, the law allows a complainant to request a review of the dismissal. Mr. Pelletier pursued this option and the Director’s dismissal was reviewed by the Chief of the Commissions and Tribunals.
The Chief of Commissions and Tribunals issued a written decision. In his decision, he upheld the Director’s initial decision to dismiss Mr. Pelletier’s complaint.
Mr. Pelletier filed a complaint against Community Natural Foods because the store implemented a mandatory mask policy, requiring everyone who entered the store to wear a mask.
Where a person could not wear a mask (or did not want to enter the store masked), the store offered alternatives including online shopping with curb-side pickup or home delivery free of charge.
In his complaint and other submissions, Mr. Pelletier stated that if he wears a mask even for a very short time, he will become immediately and violently ill.
His evidence included a doctor’s note which stated that he was “medically exempt from wearing a mask due to a medical condition” but which contained no detail about the nature of any disability, or on what basis any diagnosis was made.
Mr. Pelletier also asserted that wearing a face mask infringes on his religious beliefs. His evidence included bible passages, an assertion that his beliefs were sincerely held.
He also stated, among other things, that “face masks are useless.”
Interesting comments respecting claims of discrimination on the basis of religion or disability
The decision offers comments and analysis about human rights complaints on the basis of religious beliefs or disability.
Different legislation serves different purposes
The decision provides some clarity about the interaction between different legislative schemes, specifically:
- human rights processes vis-à-vis city bylaws, and
- human rights processes vis-à-vis the Canadian Charter of Rights and Freedoms.
The decision clarifies that the City of Calgary’s mandatory mask bylaw (and specifically the exemptions it establishes) does not preclude private businesses from having their own policies.
Also, the fact that the bylaw contains exemptions is not relevant to this case. The exemptions in the bylaw provide a defense to someone who is charged with violating the bylaw. That does not translate into a right for that person to enter into a business without a mask.
The decision also clarifies that the Charter (which does not apply to private businesses) grants broader protections than those in the Alberta Human Rights Act (which does apply to private businesses). The protection from discrimination on the ground of religious beliefs under human rights legislation is narrower than the concepts of freedom of conscience and freedom of thought under the Charter.
This analysis is helpful and is worth a review if you are grappling with these issues. There is much thrown around in the COVID context about rights, and freedom and discrimination generally. But often claims are made without due regard for the actual scope of what is set out in different pieces of legislation enacted by different orders of government for different contexts.
Assertions and generalities are not enough
This decision also reinforces that allegations of discrimination based on protected grounds under the Alberta Human Rights Act must be supported by sufficient evidence. There is a threshold that must be met.
Specifically, with respect to a complaint of discrimination based on disability, more is required to support their complaint than a note indicating that they are “medically exempt because of a medical condition.”
As this decision sets out, “there should be information that certifies that the individual has been diagnosed with a disability, the nature of the disability, and the nature and scope of the restrictions that flow from that disability. Ideally, it should set out the accommodations the individual requires.”
With respect to religious beliefs, “an individual must do more than identify a particular belief, claim that it is sincerely held, and claim that it is religious in nature.” That is not enough. “They must provide a sufficient objective basis to establish that the belief is a tenet of a religious faith (whether or not it is widely adopted by others of the faith), and that it is a fundamental or important part of expressing that faith.”
Interesting comments about accommodation
With respect to the store’s duty to accommodate in this situation, Mr. Pelletier asserted that the alternatives to in-person shopping offered by Community Natural Foods were not reasonable because:
- he does not use computers or the internet (although it was apparent that he had access to mobile services and email);
- he could not afford the home delivery or curbside pickup offered by the store (although these services were free); and
- it was “impossible to shop for [his] own personal use without being in the store [himself].”
Beyond assertions, he did not offer any evidence.
The Chief of the Commission and Tribunals was clear: “The fact that an accommodation that limits an individual’s ability to peruse grocery products, as a trade-off to limiting the spread of a disease that has reportedly caused the death of 5 million people worldwide, does not mean that it is unreasonable.”
If there is one takeaway, from this decision it is this: One should think twice before bringing forth a human rights complaint based on assertions and insufficient evidence. Such a complaint is likely to fail, particularly in the face of an ongoing global pandemic. The case is a good reminder that core issues of alleged discrimination must be proven, not simply alleged.
If you have any questions about this case or about mandatory masking policies in private businesses, reach out to the author or to a member of our Employment Law team.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.