The Alberta Human Rights Commission (“AHRC”) released several tribunal decisions in the latter half of 2021 relating to allegations by complainants of discrimination against them by businesses refusing entry to their place of business without wearing a mask. In the most recent AHRC decision, Pelletier v 1226309 Alberta Ltd. o/a Community Natural Foods (“Pelletier”), the complainant alleged discrimination on the grounds of both physical disability and religious beliefs. The arguments made by the complainant in Pelletier were very similar to the B.C. Human Rights Tribunal decision we previously wrote about here.

Religious discrimination ground dismissed

With respect to the alleged discrimination of his religious beliefs, the complainant in Pelletier argued that requiring him to wear a face mask was contrary to his religious beliefs, stating that “God created me in his own image and if he cannot see that image because it is covered with a face mask then I have committed sacrilege.”

The AHRC in this case only accepted the Complaint on the grounds of physical disability, and not in relation to the alleged discrimination based on his religious beliefs, holding that it was not at all clear that the complainant had provided sufficient information to support his claim of discrimination based on religious beliefs.

On the issue of the complainant’s religious beliefs being discriminated against, the AHRC held that: “an individual must do more than identify a particular belief, claim that it is sincerely held, and claim that it is religious in nature.  This is not sufficient to assert discrimination under the [Alberta Human Rights Act (the “Act”)]. They must provide a sufficient objective basis to establish that the belief is a tenet of a religious faith (whether or not it is widely adopted by others of the faith), and that it is a fundamental or important part of expressing that faith. This is consistent with what we have seen generally in the jurisprudence and tribunal decisions of alleged instances of discrimination based on religious grounds.

Complaint dismissed by the AHRC

Although the AHRC ultimately dismissed the Complaint, holding that there was no reasonable basis on the evidence to proceed to a hearing, two of the AHRC’s holdings in this decision are also notable: (1) its findings on how the Calgary face mask bylaw (the “Bylaw”) intersects with human rights laws; and (2) its findings on the sufficiency of information required in order to prove a claim of disability.

On the issue of the Bylaw, the complainant initially argued that the masking policy in question was discriminatory and contrary to the Bylaw that recognizes exemptions for those who are medically unable to wear face masks. In response, the AHRC found that the complainant misunderstood the effect of the Bylaw, and its relevance to whether the respondent’s masking policy violated his rights under the Act. On this point, the AHRC found that: “While the bylaw provides for exemptions based on, amongst other reasons, disabilities, it does not prohibit businesses from establishing their own policies. It does not prohibit businesses from requiring all persons to wear face masks, including those who may have disability-related grounds for not doing so. It does not force, as the complainant argues, businesses to allow persons who may be medically unable to wear face masks to enter premises without wearing face masks. The exemption in the bylaw provides a defense to a charge that a person has violated the bylaw. It bestows no positive right to enter a business without a mask.

The AHRC also found in this case that the complainant did not establish that they had a disability, providing only one note from a physician that read: “The above named patient, David Pelletier is medically exempt from wearing a mask due to a medical condition.” On this point, the AHRC stated: “where an individual files a human rights complaint, and seeks to have that complaint adjudicated by a Tribunal in order to obtain monetary and other redress, they require more than the type of note provided here. Without making any finding that would apply in all cases, the Tribunal would need something more than a note that indicates the person is “medically exempt because of a medical condition.” For example, there should be information that certifies that the individual has been diagnosed with a disability, the nature of the disability, and the nature and scope of the restrictions that flow from that disability. Ideally, it should set out the accommodations the individual requires.

Masking requirements for COVID-19 are generally not discriminatory

Generally, the AHRC has upheld masking requirements related to health and safety and COVID-19 as not being discriminatory or prohibited by the Act. Recent AHRC decisions are consistent with this general position.

Additionally, the AHRC website provides the following guidance in relation to masking requirements:

• Simply posting a notice that masks are required is not contrary to the Act.
• Being refused service or reasonable accommodation because you choose not to wear a mask is generally not contrary to the Act.
• Depending on the circumstances, an employer, service provider, or landlord may have the duty to accommodate a person with a disability or on another relevant protected ground, such as religious belief, that supports a reasonable basis for not wearing a mask.
• When accommodating a relevant protected ground, consideration will be given to the need to balance accommodation obligations with other legal obligations to co-workers and/or customers.

For more information on the AHRC’s COVID-19 related guidance, please click here.

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