CASUAL LEGAL: Human Rights Unmasked – Mask Policies and Discrimination

Human Rights Unmasked – Mask Policies and Discrimination

By Lauren Chalaturnyk

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

The Alberta Human Rights Commission has released a new decision regarding the validity of mandatory mask policies under the Alberta Human Rights Act (the “Act”).

In Szeles v Costco Wholesale Canada Ltd., the Chief of the Alberta Human Rights Commission considered whether the mandatory masking policy in place at a Costco location in Edmonton was discriminatory under the Act. The Complainant, Mr. Szeles, had attempted to enter a Costco without a mask on November 17, 2020. An employee advised him that he would not be permitted to enter the store, at which point, he indicated he was exempt on the basis of a disability. The Costco employee offered Mr. Szeles a face shield, as opposed to a mask, but Mr. Szeles refused. Ultimately, an altercation ensued and police were called. Mr. Szeles filed a human rights complaint against Costco on the basis that it had discriminated against him because of a disability.

Mr. Szeles’ main argument was that offering a face shield to someone who cannot wear a face mask did not amount to a fulsome enough accommodation. The Chief of the Commission disagreed.

The Alberta Human Rights Act accept that limitations to the right to be free from discrimination may be justified where:

a) the limitation or rule is instituted for valid reasons;

b) it is instituted in the good faith belief that it is necessary; and

c) it is impossible to accommodate persons who may be adversely affected, without incurring undue hardship.

In this case, the Chief of the Commission found that Costco had instituted its mandatory masking policy for a valid business and safety purpose. Costco presented public health and epidemiological evidence that supported the necessity of the policy. Further, the Complainant, Mr. Szeles, failed to present evidence to the Commission that indicated Costco “instituted the policy in bad faith, or without the belief that it was reasonably necessary for the safety of its employees and customers.” The Chief of the Commission also found that even if the Complainant was right about face shields being an inappropriate accommodation, it did not follow that he was permitted to enter the Costco without a face mask.

On that basis, the Chief of the Commission decided there was insufficient evidence to proceed and dismissed Mr. Szeles’ complaint.

In light of the number of these policies implemented by businesses, the Chief of the Commission was also careful to state his decision only applied to Costco’s policy and it was based purely on the evidence before him. The takeaway is the Alberta Human Rights Commission’s assessment of these types of policies will be fact-specific and will depend on the circumstances at the time the policy at issue was in place.