Mask exemptions don't allow shoppers to 'simply do what they please,' B.C. tribunal says

Two new decisions from a B.C. tribunal have made it clear that store policies requiring masks for in-store shopping do not violate human rights law.

Both decisions outline how face-covering policies implemented by some businesses are justified if they're adopted in good faith to protect staff and customers from COVID-19, and reasonable alternatives like curbside pickup are available.

In a decision dismissing a complaint against Lululemon, B.C. Human Rights Tribunal chair Emily Ohler explained that while there may be legitimate medical reasons preventing someone from wearing a mask, that doesn't mean they can "simply do what they please" in a store that requires face coverings. 

That complaint was filed by Yvonne Coelho, who has been an active member of the movement against COVID-related restrictions in Vancouver and who filmed her confrontation with Lululemon staff in November 2020.

"The fact that Ms. Coelho said that she could not wear a mask did not give her an 'exemption' from the mask policy that allowed her to simply disregard it and enjoy unfettered, maskless physical access to Lululemon's stores, which is what she appeared to assert in the video," Ohler wrote on Wednesday.

"Rather, it obliged Lululemon to reasonably accommodate her to the point of undue hardship to mitigate any disability‐related impact on her."

In this case, Coelho was told she could shop online or outside of the store, the decision says. She refused and left, saying she preferred browsing in-store.

"This alone would support a finding that Ms. Coelho herself thwarted the accommodation process in all the circumstances," Ohler wrote.

This week's decisions are part of a flood of human rights complaints about mask and vaccine rules that have overwhelmed tribunal staff for more than a year. 

Ohler told CBC News earlier this fall that the tribunal is on track to be inundated with triple the number of complaints it's designed to handle in a year. She explained at the time that many of those complaints are rooted in "a misunderstanding of what discrimination is."

As a result of the rapidly growing backlog of cases, the tribunal announced emergency measures in early November, suspending the acceptance of new applications to dismiss complaints. 

'I will pass out and smash my head on your damn floor'

Both Coelho's complaint and one filed by Karleigh‐Laurel Ratchford against Creatures Pet Store in Victoria involve businesses that implemented their own mask policies before face coverings were mandated by provincial health officials. Both allege discrimination on the basis of disability.

Coelho provided the tribunal with a note from her naturopath that says she has a "medical condition that enhances her stress response and leads to an increased risk of panic attack," while Ratchford said she has asthma, but did not provide any proof.

In Ratchford's case, when she visited the pet store in August 2020, staff offered her a $5-face shield as an alternative to a mask if she wanted to enter the store, the decision says.

She refused, and store employees told the tribunal she raised her voice, said they were breaking the law, and explained that she was a friend of the owner and they would be fired.

After the store owner emailed Ratchford to explain that she could use curbside pickup if she couldn't wear a mask, Ratchford replied to say the mask policy was against "human rights law" and that masks are ineffective but "you go ahead and live in your irrational psychotic fears fuelled by media bullshit."

In that reply, quoted in the tribunal's decision, she wrote, "I'll explain this slowly. If I wear a mask, I will be short of breath within 30 seconds, dizzy within a minute, and I will pass out and smash my head on your damn floor where you'll then be sued tens of thousands of dollars for forcing me to jeopardize my health."

In dismissing both Coelho and Ratchford's complaints, Ohler wrote that there was no reasonable chance of success, and the stores appeared certain to prove they had taken steps to accommodate shoppers who couldn't wear masks.

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 B.C. Human Rights Tribunal's website has also been updated with information about how to determine if a mask or vaccine-related beef warrants a human rights complaint.