Mask and vaccine complaints swamp human rights tribunal, but many aren't about true discrimination

A deluge of complaints about mask and vaccine mandates has overwhelmed staff at the B.C. Human Rights Tribunal, and it could mean unacceptable delays for people with urgent concerns that need to be resolved.

The number of new complaints submitted to the tribunal last year was about double what it's equipped to deal with, and if things continue the way they have this year, the workload could hit triple the capacity, tribunal chair Emily Ohler told CBC News this week. 

Among this unusually heavy caseload are hundreds and hundreds of complaints about public health measures related to COVID-19, and many of those complaints show a lack of understanding about the tribunal's role or what constitutes discrimination under B.C. law.

"I'm kind of a hopeless optimist, so with these sorts of challenges, I think there are some opportunities to ultimately improve our process," Ohler said.

"But at the time that you're stuck in these moments, it's hard to look at it as a positive because we have people working internally who are feeling overwhelmed, and of course, we have a public who is overwhelmed by the realities of living through a pandemic who aren't getting the kind of service that we would like to be able to offer."

Right now, anyone who emails the B.C. Human Rights Tribunal (BCHRT) will receive an automated email warning of "significant delays at many stages in the complaint process."

Ohler put those delays in perspective, explaining that the tribunal has a staff of 30 people and is set up to handle between 1,000 and 1,200 new complaints every year.

In the pre-pandemic year ending in March 2020, there were 1,460 new complaints, which meant the tribunal was already strained.

Last year, there were 2,431 new complaints, or about double the BCHRT's capacity. Close to two-thirds of those came in during the second half of the year, when the mask mandate was introduced. 

In less than six months this year, there have been another 1,412 complaints.

So far, the tribunal estimates there are 585 complaints in the system related to mask or vaccine requirements, but that figure comes with a major caveat — there are still 1,431 complaints that haven't been processed.

Ohler said she couldn't guess at the content of those, but it's likely there's a significant number related to the B.C. vaccine card and other vaccine-related rules that have just come into effect.

'It almost feels insulting'

The delays at the tribunal have caused serious problems for Natasha Reaney, a health-care worker who filed a complaint against her Vancouver employer late last year, alleging a failure to accommodate her documented disability.

She said she got word in March that the complaint had been accepted for consideration but has heard nothing since then.

"I eventually just quit because it was so awful and excruciating to work there. My health was just getting worse," Reaney said.

"I have trauma. I got a diagnosis of PTSD after that. I've been trying to process everything about that situation but I can't because I don't have closure."

She said it's hard to hear the reason behind the delays.

"To be bogged down by something like a mask complaint, it almost feels insulting," Reaney said.

Ohler said BCHRT staff usually try to identify and fast-track complaints about discrimination where someone is in imminent danger of harm — cases where someone is facing eviction because of their sexual orientation or job loss because of their ethnicity, for example.

"With this volume, it's been more difficult to effectively do that," Ohler said. "The delay is impacting people whose complaints were in our system since before COVID, and obviously they're impacting people who are trying to get access to recourse now." 

'The code does not protect personal choice'

Ohler stressed that there are valid human rights complaints about COVID-19 measures and they aren't "inherently frivolous."

"We are going to look at 100 per cent of the complaints that come through our door, but at the same time, many of the complaints that we've seen coming through are based on a misunderstanding of what discrimination is," she said.

In recent months, the tribunal has posted a number of "screening decisions" about rejected mask and vaccine cases, in an effort to educate the public about what constitutes a valid complaint. The BCHRT website has also been updated with information about how to determine if a mask or vaccine-related beef warrants a human rights complaint.

Ohler said the public needs to understand that the tribunal's powers are strictly defined, and they only involve resolving alleged violations of the B.C. Human Rights Code.

"The code does not protect personal choice or personal preference. The code protects personal characteristics like disabilities or sex or race or gender identity," Ohler said.

"We cannot help people who think their charter rights are being violated. We cannot help people who don't like the government's approach to the pandemic."

Anyone who believes that B.C.'s rules about masks or vaccines violate the Charter of Rights and Freedoms should go through the courts, not the tribunal.

Despite the challenges of the pandemic, Ohler is proud of how her little team has offered virtually uninterrupted service over the last two years.

"It sounds so hokey, but truly, we're doing our best," she said.

"If people could do the homework that they can upfront so that they are satisfied that this could be a discrimination complaint, that would help."