The complainant alleged belief and disability discrimination under the Ontario Human Rights Code (Code). In particular, he gave the following reasons in his application:
“1. Creed. My creed does not agree to cover my face on unsubstantiated claims. Claims that masks prevent or stop the spread of Sars-Cov-2 (also commonly known as coronavirus) are not supported by scientific evidence (e.g., expert-reviewed randomized control studies). Instead, the city of Toronto loosely refers to anecdotes of “masks work” – this is not evidence. My creed requires that I not blindly accept what governments or agencies claim, mandate, or translate into law (or statutes). Instead, it is my civic duty to criticize the government and its decisions. Bylaws 541-2020 make no exception to the creed.
“2. Disability. My body functions are affected by covering my face as it hinders my breathing. I don’t know if not wearing a mask is a disability, but I know that I cannot wear a mask due to physical / biological / medical conditions. While I understand that the law provides exemptions for “those with an underlying medical condition that affects their ability to wear a mask or face covering,” those with disabilities or medical conditions should not bear the brunt of explaining or proving it to companies / institutions . as this is humiliating and frightening. In Ontario, companies are not allowed to inquire about a person’s health. “
The Respondent successfully filed a motion to reject the motion, claiming that it had no reasonable chance of success if heard on the matter. While the court recognized that 1) the applicant had a disability within the meaning of the Code and 2) the statutes included recognition of the duty of accommodation, the statutes required that a business policy contain certain exceptions such as the inability to wear masks for medical reasons.
The court dismissed the suit because it had no reasonable chance of success at an oral hearing. The complainant alleged that various companies that refused to provide him with services violated the statutes, but did not name them as parties and only filed the application against the city. The tribunal found that while the law provides that commercial policy does not require proof of exemption, the city cannot be held responsible for the alleged conduct of such companies.
Interestingly, the Tribunal noted that “creed” is not defined in the Code but “most often involves an applicant’s sincere religious beliefs or practices” and that “mere political opinion does not imply a creed”. The court found, however, that the protected ground of “disability” was claimed and that the scope of a disability under the Code is broad. The tribunal stated: “Once a person finds that he or she has an illness or otherwise requires housing that exempts him from the policy of wearing a mask, the person should be allowed access to the service until an inappropriateness become. “Not. That is a high threshold.
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