Human Rights Tribunal of Ontario, Canada Supplies Employers with Roadmap for Responding to Requests for Exemptions from Masks-Carrying Insurance policies

In Sharma v Toronto (City), 2020 HRTO 949, the Human Rights Tribunal of Ontario (HRTO) provides a roadmap for how employers should determine whether to include workers and customers requesting exemptions from wearing the Toronto City mask requirement. Enacted in response to the pandemic, Law 541-2020 (Law) requires that businesses and other publicly accessible entities adopt a policy to ensure that no member of the public is allowed access to or otherwise within another will remain an enclosed space unless they are wearing a mask or face covering (collectively a “mask”).

background

In his human rights motion, the applicant alleged that the City of Toronto (i.e., the Respondent) discriminated against him in relation to services because of his creed and disability, in violation of the Ontario Code of Human Rights because the law allowed him to serve denied in a number of companies.

The applicant alleged that he could not wear a mask for the following reasons:

1. Creed: His creed contradicts wearing a mask for making unfounded claims, and claims that masks prevent or stop the spread of the coronavirus are not supported by scientific evidence (e.g., expert-reviewed randomized control studies); and
2. Disability: He was unable to wear a mask due to physical / biological / medical conditions. Although the statutes exempt persons whose underlying medical condition interferes with the ability to wear a mask, persons with disabilities or illnesses should not be required to explain or prove this to companies / institutions.

The HRTO instructed that a summary hearing should be held to determine whether the lawsuit should be dismissed.

decision

The HRTO denied the application at the recapitulative hearing because the applicant did not allege any specific acts of discrimination against the city and so his application had no reasonable chance of success.

In conducting its analysis, the HRTO focused on whether the applicant’s allegations could reasonably be considered a violation of the Code. It was found that the applicant’s objection to wearing a mask did not fall under the meaning of “creed”, which is not defined in the Code:

… But most of the time, an applicant’s sincere religious beliefs or practices are invoked … mere political opinion does not take up a creed.

In essence, the applicant disagrees with the city’s political decision to enact the statutes, believing that the effectiveness of masks has not been adequately demonstrated. This is not a creed for the purposes of the Code. (Paragraphs 11 and 12)

Regarding disability, the applicant provided details of two specific medical conditions during the hearing and the HRTO concluded that both fall under the broad definition of “disability”. However, the application failed due to a disability, as the Articles of Association, in accordance with the provisions of the Human Rights Act under the Code: (a) recognize that companies are required to accept people with disabilities, and (b) require a company. “Guidelines to Include Exemptions for Those Unable to Wear Masks for Medical Conditions.

The HRTO noted that as part of the shared placement process, a person must determine that they have a disability-related need that requires placement:

In the context of the Articles of Association, this means that if a person is interviewed, they must establish to a company that they have an illness or any other reason that requires accommodation that relieves them of the company’s obligation to wear a mask carry.

It is important to note, however, that the statutes and human rights law in general do not require that a person seeking shelter disclose that they have a particular medical diagnosis. (Paragraphs 20 and 21)

The HRTO acknowledged that in some cases a person seeking accommodation must provide information to verify their accommodation needs, but noted that the statutes provide that company policy cannot require members of the public to provide evidence of an exemption; Whenever a person declares they have an illness or otherwise require accommodation that exempts them from the mask-wearing policy, the person should be allowed access to the service. The HRTO also stated that “a company’s obligation to provide accommodation is not infinite, but ends at a point of unreasonable need.” (Para. 21)

The HRTO also considered that, depending on the facts and evidence, it is possible that companies that instructed, harassed, dismissed and banned the applicant after telling them that he could not wear a mask could be in breach of the Code to have. However, since the applicant did not name any companies as defendants for its application, this issue was not before him.

Ultimately, the HRTO rejected the application on the grounds that it had no reasonable chance of success, as the applicant had not alleged adverse treatment by the city but by companies that were not named as respondents. The HRTO found that the city itself did not discriminate against the applicant and “… the alleged behavior of the companies that the applicant claims to have refused to provide services cannot be put at the city’s feet.” (Para. 29)

Conclusion for employers

Sharma v. Toronto reminds employers:

1. If an employee or customer refuses to wear a mask in accordance with the Articles of Association because he is discriminated against on a protected ground under the Code, the employer is obliged to check whether the objection falls on such a ground. If the employer determines that the objection falls in a protected area, the employer is obliged to accommodate the individual to an unreasonable degree of hardship.
2. According to the Code, it is illegal to discriminate on the basis of your “creed”. A person’s objection to wearing a mask does not result in a “creed of faith” for the purposes of the Code if the objection is based on the assumption that the ability of masks to stop or prevent the spread of COVID-19 is supported by scientific evidence is unfounded.
3. If an employee or client claims they have a disability that requires accommodation (i.e., an exception to a mask wearing policy), the employer should not require them to disclose their specific medical diagnosis.
4. Although in some cases an employee or customer seeking human rights shelter may be required to provide information to verify their housing needs, the Articles of Association state that company policies should not require such evidence. Once a person states they have a disability that exempts them from a mask wearing policy, the employer must take the person up to an unreasonable degree of hardship. “Inappropriate hardship” includes, among other things, the consideration of health and safety risks.
5. Any placement out of a mask-wearing policy must take into account the employer’s obligation under the Occupational Safety and Health Act to take reasonable precautions to protect workers from the risk of interacting with unmasked individuals during the COVID-19 pandemic. As more people are vaccinated, the urgency of such protection is likely to decrease. In the meantime, to ensure such protection, employers should consider asking workers exempted from the Mask Wearing Directive to work from home if possible.

Employers faced with discrimination claims based on mask wearing guidelines should assess whether the claim is warranted. If the employer finds that the objection falls in an area protected by the code, he is obliged to accommodate the individual to an unreasonable degree of hardship. Employers are encouraged to consult an experienced employment counselor to determine if housing is required in a particular case.