COVID-19: BC Human Rights Updates
Update by Parmvir Padda, Lawyer and Erin Brandt, Cofounder
In the early stages of the COVID-19 pandemic, the British Columbia Human Rights Tribunal (the “Tribunal”) was flooded with complaints of discrimination relating to COVID-19 mask and vaccine mandates. It is established law that to be successful in a discrimination complaint under the British Columbia Human Rights Code (the “Code”) an individual must show:
They have a characteristic protected from discrimination under the Code (see our post on protected characteristics to learn more);
They suffered an adverse impact; and
The protected characteristic was a factor in the adverse impact.
These three factors are known as the “Moore Test” (see Moore v. BC (Education), 2012 SCC 61).
Below we summarize a few of the early key decisions on mask and vaccine complaints filed on the grounds of physical disability, religion and political belief and explain how the Tribunal applied the Moore Test to these cases.
Physical Disability
The Customer v The Store, 2021 BCHRT 39
The Customer was stopped by a security guard at her local grocery store (the “Store”) because she wasn’t wearing a face mask, contrary to the Store’s mask policy. The Customer claimed she was exempt from wearing a mask due to breathing difficulties. The Customer was refused entry into the Store.
The Tribunal concluded the Customer failed to show the Store’s conduct was discriminatory under the Code because the Customer failed to demonstrate she had a disability that interfered with her ability to wear a mask (the first factor in the Moore Test). The Tribunal clarified: the Code does not protect people who refuse to wear a mask due to personal preference.
Complainant v Dr. Bonnie Henry, 2021 BCHRT 119
The Complainant filed a human rights complaint against the British Columbia Provincial Health Officer, Dr. Bonnie Henry, on the grounds that the provincial government’s requirement for proof of vaccination to access certain services was discriminatory against him based on physical disability (the Complainant suffered from asthma).
While the Complainant’s asthma could constitute a physical disability (the first factor in the Moore Test), he did not allege that he suffered any actual adverse impact (the second factor in the Moore Test). Rather, he referenced a prospective adverse impact based on his personal view of an “experimental vaccine”. The Tribunal dismissed the complaint, stating an ideological opposition to or distrust of the vaccine is not enough to prove discrimination.
Religion
The Worker v The District Managers, 2021 BCHRT 41
The Worker was contracted to work at a District facility. When the Worker arrived at the facility, a District manager told him he could not enter without a mask. The Worker refused, arguing that wearing a mask was against his religious creed. The District terminated the Worker’s contract for his refusal to wear a mask.
The protection of a religious practice or belief is triggered when an individual is able to show they have a belief or practice that is sincerely held, and has a connection with religion (for a more detailed discussion of these elements, see Syndicat Northcrest v Amselem, 2004 SCC 47).
The Worker took the position that it was his religious right to show his face in public, and that wearing a mask prevented him from exercising his religious right to breathe freely.
The Tribunal concluded that the Worker’s refusal to wear a mask based on personal preference did not amount to a religious belief warranting protection under the Code. The Worker failed to show any evidence that wearing a mask was prohibited by a religion, or that not wearing a mask is in some way connected to the Worker’s personal connection to a “divine” entity or his spiritual faith. As a result, the Worker’s complaint was dismissed.
Political Belief
Complainant obo Class of Persons v John Horgan, 2021 BCHRT 120
The Complainant filed a human rights complaint against the provincial government asserting that the provincial government’s requirement for proof of vaccination to access certain services was discriminatory based on political belief.
Under the Code, protection of political belief covers public discourse on matters of public interest involving governmental action (for a more detailed discussion on the definition of political belief, see Fraser v B.C Ministry of Forests, Lands and Natural Resource Operations (No.4), 2019 BCHRT 140).
The Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. However, protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs.
In this case, the Complainant alleged no facts related to any adverse impact in employment (the second factor in the Moore Test). Since the Code does not permit a direct challenge to a public health order based merely on disagreement with it, the complaint was dismissed.
Summary
The Covid-19 pandemic brought a host of new legal arguments to the BC Human Rights Tribunal. In the decisions summarized above, the Tribunal provided clear guidance on what will not constitute discrimination under the Code. In particular, the Tribunal emphasized that the Code does not protect personal preference.
Key Takeaway for Employees
An employee that objects to a mandatory vaccine or mask mandate and wishes to pursue a human rights complaint will need to demonstrate more than a personal or ideological opposition. The decisions above demonstrate a strict application of the Moore Test, meaning that a complainant must allege and prove the existence of a protected characteristic, an actual adverse impact suffered, and a connection between the adverse impact suffered and the protected characteristic.
Key Takeaway for Employers
Employers with a vaccine and/or mask mandate should include exemptions for those entitled to accommodation under the Code. While the complaints outlined above were all dismissed, an employer who fails to take a legitimate request for accommodation seriously could face significant financial penalties at the Tribunal.
