‘Personal objections’ to masks: accommodation not required

George Waggott
George Waggott Law, Toronto
george@georgewaggott.com

Alexandra Szabo
George Waggott Law, Toronto
​​​​​​​alexandra@georgewaggott.com

​​​​​​​As a result of the Covid-19 pandemic, a number of jurisdictions around the world have imposed mask-wearing requirements in various settings, including workplaces and public places. In Canada, the specific rules have varied by province and setting, but the consistent approach of public health authorities has been to require or strongly encourage masks in an effort to reduce the risk of viral transmission.

Conflicts over masking rules have emerged in a variety of circumstances, with one challenge being that certain individuals have objected to wearing masks for ‘personal’ reasons.

A decision earlier this year from Ontario’s Human Rights Tribunal (HRTO or the ‘Tribunal’) provides some helpful guidance about the limits to the accommodation requirements in these situations.

In Sharma v Toronto (City) 2020 HRTO 949 (‘Sharma’), the HRTO reviewed a case where an individual, Rishi Sharma, claimed that a by-law enacted by the City of Toronto that required businesses and other establishments to adopt a policy that members of the public were not permitted entry to, or otherwise remain within, any unless they were wearing a mask or face covering was discriminatory. Specifically, Sharma claimed that his creed prevented him from wearing a mask in cases where ‘unsubstantiated’ recommendations for mask wearing were in place. In dismissing the case, the Tribunal held that the accommodation requirements that organisations must contend with only apply to cases that involved grounds protected under human rights legislation, and there was not an obligation to accommodate personal objections.

Sharma’s stated rationale for refusing to wear a face covering was based on two arguments, both of which he claimed were protected by the Ontario Human Rights Code (the ‘Code’). First, he claimed that his ‘creed’ (and beliefs) required that he not ‘blindly accept’ government rules such as the City of Toronto by-law because of his civic duty, and his genuine view that the face covering rules were not supported by scientific evidence. Second, Sharma claimed that wearing a mask or face covering would impede his breathing, thus placing an undue obligation on him and others to need to explain their need for accommodation.

The HRTO held a summary hearing and dismissed Sharma’s application, finding that there was no reasonable prospect of success. On the question of creed, the HRTO noted that this ground is protected under the Code, but only with respect to ‘sincerely held religious beliefs or practices’. The scope of the Code’s protections regarding creed do not extend to what was described as ‘mere political opinion’ which is not part of a recognised system of beliefs. Since Sharma’s anti-masking views were based solely on his disagreement with the underlying scientific evidence, his argument on the basis of creed failed.

On the claim of discrimination based on disability, the HRTO accepted that there can be medical grounds associated with breathing challenges or impairments which may be and are protected by the Code. However, that does not form a blanket rationale for preventing the enforcement of the by-law. If  Sharma needed accommodation from a specific business or organization, he would have had to show that such a request was refused. In the absence of this process, the HRTO had no basis to find that there had been a breach of the Code. Simply put, there cannot be a failure to accommodate a person who has not made an accommodation request.

While individuals are not generally required to disclose a disability or medical condition to others, they also cannot expect to be accommodated if they are not prepared to explain what restrictions apply. In this regard, the accommodation process is characterised by what the HRTO had described as the ‘shared responsibility’ which requires individuals who seek to have their disability-related needs accommodated.

The by-law that Sharma sought to challenge provided for exemptions relating to medical conditions or other accommodation. Given these provisions, the HRTO held that it was not unreasonable to require individuals to identify which exemption they were seeking to rely upon to invoke the duty to accommodate. This duty rests, however, with the relevant business or organisation as opposed to at the City level. This reasoning is consistent with the Code’s framework of protections relating to services being provided to the public – it is the party providing service which has the obligation to provide service in a non-discriminatory manner, and relevant government organisations are not tasked with policing the enforcement of these obligations.

The Sharma decision has since been followed in subsequent HRTO decisions including Dubé v Dutch Love Cannabis 2021 HRTO 300, where the applicant, Dubé, alleged he was discriminated against in receiving services from  a store employee who required a mask be worn before entering the store as a result of the pandemic. Dubé attempted to invoke a creed exemption which encompasses a belief that the requirement to wear a mask does harm medically, physically and spiritually. He further submitted that creed includes non-religious belief systems that, like religion, substantially influence a person’s identity, worldview and way of life.

In dismissing the application by Dubé, the HRTO found that it was plain and obvious that the allegations were not connected in whole or in part to one of the protected grounds as set out in the Code. The Tribunal noted that it did not have jurisdiction over general allegations of unfairness unless the alleged unfairness was connected in whole or in part, to one of the grounds in the Code, which must be connected to human rights issues. Therefore, a mere ‘personal’ objection to not wearing a mask is not enough to trigger the obligations associated with accommodation that apply to a business or organization under the Code.

In the most recent HRTO matter to deal with mask-related accommodation, Longley v Kingston Mazda Dealership 2021 HRTO 643, the applicant claimed that they were asked to leave an automotive dealership because they were not wearing a mask, despite having explained that they were exempt from doing so. The applicant alleged that, in the context of the pandemic, they had a mask exemption due to a disability. However, upon the HRTO requesting that the applicant identify their disability within the meaning of the Code that prevents them from wearing a mask, the applicant refused to provide the information stating that their medical information was private. The applicant insisted that they were not obligated to explain why they are exempt from wearing a mask and provided generalised commentary on why they do not believe in the Covid-19 mask mandates.

The HRTO again reiterated that it did not have jurisdiction over general allegations of unfairness unrelated to the Code. To fall within the HRTO’s jurisdiction and have the right to be accommodated by a business or organisation, an individual must provide some factual basis beyond a bald assertion about the possible connection between a protected ground and the actions that are alleged to be discriminatory in nature. Here, by refusing to provide information pertaining to their disability, the applicant did not meet the onus of proving they had a disability within the meaning of the Code. Without this evidence, there was no proof of the applicant choosing to not wear a mask for anything other than a ‘personal’ reason which is not enough for accommodation. The Tribunal therefore dismissed the application since it did not involve any proper allegations of a breach of the Code and its related protections under human rights law.

Key points for employers 

These decisions confirm the importance that organisations carefully review any refusals to comply with mask-wearing or face-covering requirements. Each situation will need to be examined on an individual basis to assess whether or not there is a proper Code-protected ground (such as creed or disability) which needs to be addressed. There will be cases where ‘mere belief’ is the reason for the refusal. There will also be cases where there will be a creed or disability-related reason for the refusal. In all cases, employers will be entitled to request reasonable information which will allow for a proper determination of whether there are human rights needs, and if so, what proper accommodation will consist of in the specific circumstances. Simply having an anti-masking ‘personal’ opinion will not be enough to require accommodation under Canadian human rights law, and it will be important for organisations to establish and adopt procedures that distinguish between political views and genuine Code-based reasons that must be accommodated.