Sean Kelly and Will Wojcik

A recent decision of the Human Rights Tribunal of Alberta (“Tribunal”) dismissing a customer’s allegations of discrimination based on physical disability and religious belief against a Natural Food Store’s mandatory mask policy confirms our recent thoughts that triers of fact will take a measured and principled approach to enforcing mandatory mask policies in the retail sector. Pelletier v 1226309 Alberta Ltd. o/a Community Natural Foods, 2021 AHRC 192 adds to the body of developing case law upholding health and safety policies aimed at reducing the spread of COVID-19.

Key takeaways include:

• Robust medical documentation is needed to support an exception to a mask-wearing policy on the basis of disability;
• Religious-based challenges to a mask or vaccination policy will be construed narrowly for human rights purposes – personal beliefs of a complainant about COVID-19 and preventative measures, even if couched in religious terms, will not amount to discrimination on the basis of religion.
• To support not adhering to a mandatory mask policy, complainants will have to provide a sufficient objective basis to establish that the belief is a tenet of a religious faith and a critical part of expressing that faith.
• The duty to accommodate does not require service providers or employers to remedy all inconvenience or hardship – the purpose of the restriction and surrounding circumstances are important.

Background

On January 31, 2021, Mr. Pelletier entered Community Natural Foods store but refused to wear a mask, claiming he was “medically exempt” and that the mask mandate infringed upon his religious beliefs. The grocery store denied him entry but offered various accommodations, such as online shopping, free home delivery, curbside pick up, and use of a personal shopping assistant.

He was unsatisfied with the alternatives and filed a human rights complaint claiming, amongst other things, that if he wore a mask, he would become immediately and violently ill. Supporting evidence included:

• A doctor’s note stating only that he was “medically exempt from wearing a mask due to a medical condition”;
• Wearing a face mask infringes on his religious beliefs which he supported with Bible passages and an assertion that his beliefs were sincerely held; and
• Personal statements/beliefs that “face masks are useless”.

Decision

The Tribunal dismissed the complaint finding that there was insufficient information to support a claim of discrimination.

With respect to disability, the Tribunal explained that allegations of discrimination based on disability should be supported by sufficient evidence including a formal diagnosis and the restrictions that flow from the disability and the accommodations required.

As to religious belief, the Tribunal cited a recent British Columbia decision (The Worker v The District Managers, 2021 BCHRT 41) dealing with a similar complaint, highlighting:

The 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. 

The Tribunal went on to confirm that to successfully establish a claim of religious discrimination there must be a sufficient objective basis to establish that a particular belief is a tenet of a religious faith (whether or not it is widely adopted by others of the faith) that is a fundamental or important part of expressing that faith.

Mr. Pelletier failed to meet these requirements.

Lastly, with respect to the accommodations offered by the retailer, the Tribunal confirmed that accommodations need not be perfect or be the complainant’s preferred accommodation.  Rather, the analysis must take all of the circumstances into account and be applied with a practical, “common sense” approach.  Here, the retailer was making best efforts to operate during a global pandemic, tasked with balancing competing interests of customer service versus adequate safety precautions, while trying to stay up-to-date with the evolving science and government-mandated health requirements.  Very simply, even if there had been a finding of discrimination, reasonable accommodations were offered and providing an exemption to the Complainant would have resulted in undue hardship in the circumstances.

Implication for Businesses

The case acknowledges the challenges of operating a business during a pandemic and provides continued support for implementing stringent measures to protect the public from the spread of COVID-19. It confirms our inclination that the bar for establishing discrimination and deviation from mandatory policies will be high and that “personal preferences” do not justify exemptions from policies aimed at promoting health and safety.

While more decisions will inevitably follow, we encourage businesses to continue to monitor the changing landscape and seek advice from our team regarding implementation of mandatory polices, accommodations or exemptions.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact a member of our Labour and Employment group.

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