Why this law prof says N.S. retailers shouldn't enforce mandatory mask rule

A law professor at Dalhousie University says Nova Scotia retailers shouldn't have to enforce the province's mandatory mask rule if the government won't.

In Nova Scotia, masks are mandatory in most indoor public spaces, but the province said from the get-go it won't penalize people who disobey the rule.

The Canadian Federation of Independent Business said this has led to questions among some retailers who aren't sure what authority they have when a customer refuses to wear a mask.

"Essentially, staff may remind patrons there is a mask policy. However, if the customer says they have a medical exemption, then that is the end of it. Pressing someone on why is a human rights violation," spokesperson Jordi Morgan wrote in an email to CBC News. 

Elaine Gibson, who works at Dalhousie's Health Law Institute, said she appreciates the province's approach and advises business owners and employees not to take enforcement upon themselves. 

Her conversation with CBC Radio Mainstreet host Jeff Douglas has been edited for length and clarity.

What is the letter of the law on this? Do I, as an employee, have the right to tell someone, 'Hey, put a mask on or get out'? 

It's a very good question and one that is, in fact, a little bit troubling. 

When Nova Scotia made masks mandatory as of July 31, the government announced that ... they would not be enforcing the mask policy. And this is a very unusual step for a law to come in like that, and also at the same time, for the government to actually announce that it wouldn't be enforcing it, so we start with that rather peculiar situation. 

However, it's actually a situation, an approach, that may be the most appropriate in that it would be difficult to start to enforce it. I was pleased at the time that there was no requirement of stores to enforce the mask policy either because I think the last thing we would want is for some 16-year-old store clerk ... to have to get in an altercation with someone about them wearing or not wearing a mask.

The person  ... who says they don't need to provide evidence that they have a medical exemption, that's correct. And we actually don't want vigilantism happening here. 

There's one exception to this, and that is if the business owner has a concern for their employees, that their employees health and safety is at risk, then they may have further steps that they wish to take. But that would be a very unusual situation of someone kind of indiscriminately coming there every day and, you know, kind of flaunting in the face of the employees the fact that they were not wearing a mask, and I doubt that that would happen. 

I forgot a mask at one point early on and was politely but quite firmly told, you know, that I couldn't come in … so businesses can have their own requirements, right? 

That's right. They are entitled to prevent access or to ask someone to leave, but what I'm urging ... is that they not actually do that unless there's actually a concern for the health and safety of their employees. 

If the government had made it mandatory and said yes, there's going to be a fine, then it makes things clearer for the business operators and their employees because right now it seems like they're caught between a rock and a hard place. They have no recourse to approach someone who is not wearing a mask, but similarly they are going to get the pressure from the people who are fearful because this person isn't wearing a mask. 

Well, there would be a lot more calls to the police if the government was to enforce it. But I guess that my bottom line on this is if the government is not willing to enforce it, then nor should small business owners or large business owners be enforcing it, or at least required to enforce it. 

You realize there was an altercation in Ontario in which someone died in this circumstance where the store was ... refusing the person entry and the person got violent. They left. Eventually, police tracked them down and there was a shooting by the police of the person and he died. And heaven knows, we sure don't want that happening.

I agree that there's a bit of a rock and a hard place, but … store employees need to be educated on what they can do in this circumstance. And it's entirely appropriate for a customer at the store who's complaining to be told that they can speak to the individual they're complaining about individually if they want to, but that it's not for the store to be enforcing it. 

And that could be rife with its own potential for calamity. 

Absolutely and you don't want that. And, you know, New Brunswick on their website talks about this being a situation that requires compassion and caring for others, and I think that that's more what we're into here is a requirement of compassion and knowing that people may have medical reasons that they can't wear a mask and that they are entitled to have those respected.