The Alberta Human Rights Tribunal (ABHRT) dismissed complaints earlier this month from two men, Peter Szeles and James Beaudin, who refused to wear protective masks inside two separate businesses. The decision was made public on Monday.
Szeles and Beaudin argued that their respective disabilities prevented them from wearing masks and that the businesses’ health and safety policies were discriminatory in violation of § 4 of the Alberta Human Rights Act (AHRA).
Szeles entered an Edmonton Costco in November 2020 and refused to wear a mask citing a disability. The employees offered Szeles a face shield or drive-by pick-up as alternatives, which Szeles also refused. The situation escalated and police were called who eventually forcefully removed Szeles out of the store when he refused to leave.
A human rights investigator assigned to the incident recommended the complaint be dismissed on grounds that Costco’s policies were reasonable considering the COVID-19 pandemic. The investigator found that, while the provincial government did provide exemptions to the mask mandate, it recommended businesses institute their own policies regarding mask use. Additionally, the investigators noted that Szeles did not offer any medical proof that wearing a face covering or mask would be impossible given his disability. Thus, the investigator concluded that Szeles’s decision was a matter of personal choice. Szeles then requested a review of this determination.
Chief of the Commission and Tribunals for the ABHRT, Michael Gottheil, upheld the investigator’s findings. While agreeing with Szeles that Costco “issued a policy that had an adverse impact on persons with certain disabilities,” Gottheil noted that Costco offered reasonable accommodations for Szeles.
Limitations to the right to be free from discrimination maybe justified under the AHRA when the limitation or rule has been adopted for valid reasons in the good faith belief that it is necessary, and it is impossible to accommodate persons who may be adversely affected without incurring undue hardship. This three-part test was established by the Supreme Court of Canada in Meiorin, which adjudicated the discriminatory termination of a disabled employee.
To satisfy the third part of the test, “the respondent must show they have considered the least intrusive options, and made every effort to accommodate the complainant’s . . . needs.” Gottheil wrote that this approach is “premised on the need to develop standards that accommodate the potential contribution of all.”
In dismissing Szeles’ request, Gottheil stated that the restrictions are reasonable in the face of public health and epidemiological information regarding COVID-19 that face shields are an accepted alternative to face masks. Gottheil added that Szeles provided no material evidence showing that the various other accommodation efforts provided by Costco were unreasonable given the circumstances.
James Beaudin made similar allegations against a Peoples Jewellers store, also in Edmonton, after he was barred from entry in October 2020 for refusing to wear a mask at the request of the store’s employees. Beaudin insisted that he was “exempt” from the public health policy at the time because of health reasons. Beaudin, like Szeles, filled a complaint with ABHRT that he was discriminated against by not being allowed to enter the store.
As with Szeles, an investigator assigned to Beaudin’s case recommended that his complaint be dismissed on grounds that the store’s policies were reasonable in light of the pandemic. Beaudin’s request for review of this determination was also dismissed because the store “provided information that it developed and introduced the policy for a valid purpose (employee and public safety), and that the policy was introduced in good faith.” Gottheil wrote that the “obligation…[is] to accommodate the effects of a discriminatory policy, to the point of undue hardship,” and that the respondent “developed a comprehensive and scientifically based policy” to address the safety risk posed by COVID-19.
