( Disponible en anglais seulement )
Companies in Canada have had to take unprecedented measures to respond to the COVID-19 pandemic over the past 18 months. While provincial and municipal governments have at times made it mandatory for people to wear face coverings while in indoor public spaces, many retail businesses found it prudent to implement their own mandatory mask policies for patrons and staff. The Alberta Human Rights Commission (the “Commission”) has recently released two decisions dismissing complaints that these policies caused a breach of human rights laws.
The first decision is Szeles v Costco Wholesale Canada Ltd., 2021 AHRC 154. The complainant, Peter Szeles, identifies as having a disability that prevents him from wearing a face mask. On November 17, 2021, Mr. Szeles attended at one of Costco’s stores in Edmonton, and was told by an employee that he would be required to use a face mask to enter the store, in accordance with Costco’s policy. Mr. Szeles advised that he was exempt from the requirement to wear a face mask because of a disability. The employee offered Mr. Szeles a face shield as an alternative, but Mr. Szeles refused and there was an altercation. The police were called, and Mr. Szeles was removed from the store.
Mr. Szeles argued that Costco’s refusal to allow him to enter the store without a face mask breached his human rights. He took the position that the alternative that was offered (the face shield) was unreasonable, since it did not provide protection against COVID-19 and was meant to single him out as a person with a disability.
Costco’s policy required the use of a face mask (or a face shield, for those who were unable or unwilling to wear a mask) in order to shop in its stores. It also provided various online shopping and home delivery options. Costco argued that in light of the safety risk posed by the pandemic, the policy was reasonable and justifiable. It took the position that the alternatives to wearing a face mask were appropriate accommodations for those who could not do so as a result of protected characteristics under the Alberta Human Rights Act.
The Chief of the Commission agreed with Costco and dismissed the complaint. The Commission Chief found that Costco’s policy was instituted for a valid business and safety purpose, and that it was reasonable and justifiable given the evidence presented by Costco about the public health impacts of COVID-19.
The second decision released by the Commission is Beaudin v Zale Canada Co. operating as Peoples Jewellers, 2021 AHRC 155. Like in the Szeles decision, the complainant, James Beaudin, has a disability that prevents him from wearing a face mask. On October 9, 2020, he entered a Peoples Jewellers retail store in Edmonton. A staff member told him that the company’s policy was that he was not able to be in the store without a face mask. Mr. Beaudin replied that he was “exempt” from the requirement to wear a mask because of health reasons. The staff members told Mr. Beaudin that he could not enter the store, but that other options were available, including telephone and online shopping with free delivery or curbside pick-up. Mr. Beaudin objected, but he was asked to leave. Peoples Jewellers argued that the policy was reasonable and justifiable in the circumstances, and was introduced in good faith to protect the health and safety of staff.
Again, the complaint was dismissed. The Commission Chief agreed with Peoples Jewellers that the policy was introduced for the valid purpose of employee and public safety, and that it was introduced in good faith. Mr. Beaudin argued that the mandatory mask policy was not necessary, but he provided no evidence to support his position.
These decisions are encouraging for businesses that have had to take unprecedented measures to protect the health and safety of their staff and patrons, and will serve as solid legal precedents for similar complaints.
Miller Thomson is able to assist businesses with implementing COVID-19-related policies in good faith, for reasons that are reasonable and justifiable, and in a manner that contemplates accommodations for individuals who need them due to characteristics that are protected under human rights legislation.
