As a result of the ongoing Covid-19 pandemic, a number of jurisdictions around the world have imposed mask-wearing requirements in various settings, including workplaces and public places. In Canada, the specific rules have varied by province and setting, but the consistent approach of public health authorities has been to require or strongly encourage masks in an effort to reduce the risk of viral transmission.

Conflicts over masking rules have emerged in a variety of circumstances, with one challenge being that certain individuals have objected to wearing masks for “personal” reasons.

A recent decision from Ontario’s Human Rights Tribunal (HRTO) provides some helpful guidance about the limits to the accommodation requirements in these situations.

In Sharma v. Toronto (City), 2020 HRTO 949, the HRTO reviewed a case where an individual, Rishi Sharma, claimed that his creed prevented him from wearing a mask in cases where “unsubstantiated” recommendations for mask-wearing were in place. In dismissing the case, the HRTO held that the accommodation requirements which organizations must contend with only apply to cases which involved grounds protected under human rights legislation, and there is not an obligation to accommodate personal objections.

Mr. Sharma’s Application before the HRTO claimed that the relevant City of Toronto face covering By-Law discriminated against him because certain businesses refused to provide services to him due to his refusal to comply with the By-Law. His stated rationale for refusing to wear a face covering was based on two arguments, both of which Mr. Sharma claimed were protected by the Ontario Human Rights Code. First, he claimed that his “creed” (and beliefs) required that he not “blindly accept” government rules such as the City of Toronto By-Law because of his civic duty, and his genuine view that the face covering rules were not supported by scientific evidence. Second, Mr. Sharma claimed that wearing a mask or face covering would impeded his breathing, thus placing an undue obligation on him and others to need to explain their need for accommodation.

The HRTO held a summary hearing and dismissed Mr. Sharma’s Application, finding that there was no reasonable prospect of success. On the question of creed, the HRTO noted that this ground is protected under the Code, but only with respect to “sincerely held religious beliefs or practices”. The scope of the Code’s protections regarding creed do not extend to what was described as “mere political opinion” which is not part of a recognized system of beliefs. Since Mr. Sharma’s anti-masking views were based solely on his disagreement with the underlying scientific evidence, his argument on the basis of creed failed.

On the claim of discrimination based on disability, the HRTO accepted that there can be medical grounds associated with breathing challenges or impairments which may be and are protected by the Code. However, that does not form a blanket rationale for preventing the enforcement of the City’s By-Law. If Mr. Sharma needed accommodation from a specific business or organization, he would have had to show that such a request was refused. In the absence of this process, the HRTO had no basis to find that there had been a breach of the Code. Simply put, there cannot be a failure to accommodate a person who has not made an accommodation request.

While individuals are not generally required to disclose a disability or medical condition to others, they also cannot expect to be accommodated if they are not prepared to explain what restrictions apply. In this regard, the accommodation process is characterized by what the HRTO had described as the “shared responsibility” which requires individuals who seek to have their disability-related needs accommodated.

The City of Toronto By-Law which Mr. Sharma sought to challenge provided for exemptions relating to medical conditions or other accommodation. Given these provisions, the HRTO held that it was not unreasonable to require individuals to identify which exemption they were seeking to rely upon in order to invoke the duty to accommodate. This duty rests, however, with the relevant business or organization as opposed to at the City level. This reasoning is consistent with the Code’s framework of protections relating to services being provided to the public – it is the party providing service which has the obligation to provide service in a non-discriminatory manner, and relevant government organizations are not tasked with policing the enforcement of these obligations.

Key Points For Employers

This decision confirms the importance that organizations carefully review any refusals to comply with mask-wearing or face covering requirements. Each situation will need to be examined on an individual basis to assess whether or not there is a proper Code-protected ground (such as creed or disability) which needs to be addressed. There will be cases where “mere belief” is the reason for the refusal. There will also be cases where there will be a creed or disability-related reason for the refusal. In all cases, employers will be entitled to request reasonable information which will allow for a proper determination of whether there are human rights needs, and if so what proper accommodation will consist of in the specific circumstances. Simply having an anti-masking opinion will not be enough to require accommodation, and it will be important for organizations to establish and adopt procedures which distinguish between political views and genuine Code-based reasons which must be accommodated.