Human Rights Tribunal Establishes Acceptable COVID-19 Accommodation Process and Requirements for Policies

by Grant Ferguson | Aug 31, 2021

Rishi Sharma v. City of Toronto 2020 HRTO 949

In the midst of the COVID-19 pandemic, the HRTO evaluated municipal by-laws establishing mandatory masking.  In that process, it also outlined the expected process for requesting exceptions to these by-laws (“accommodation”) under the Ontario Human Rights Code (the “Code”).

The Applicant, in this case, was a member of the public who asserted he could not wear a mask due to his “creed” and “disability”.  His reported creed was his disbelief that masks prevent or stop the spread of COVID-19.  His undisclosed disability was that he was “impaired by face coverings”.  On these bases, the Applicant sought to challenge the existing City of Toronto By-Law 541-2020 (the “By-law”) that set out expectations for wearing of masks indoors in Toronto during the height of the COVID-19 pandemic.

The HRTO directed a summary hearing to evaluate the Applicant’s assertions as it “was not clear that, assuming all the allegations in the Application to be true, [there was] a Code violation” [para 4].  At the summary hearing, both parties made submissions as to whether the application should be dismissed.  The prevailing reason accepted by the HRTO was that the application could not survive as none of the alleged “discriminatory” actions were alleged ever to have been committed by the City of Toronto.  All issues concerned individual businesses who the Applicant did not name.

However, the HRTO did not end its analysis there.  Rather, it proceeded to define “creed” and “disability” to evaluate the existing by-law’s merits.  It then proceeded to opine on its expected process for seeking accommodation during the COVID-19 pandemic.

On the definition of Creed, the HRTO held that the Applicant’s stated disbelief in the basis for masking was not a “Creed”.  “Creed” is not defined by the Code. However, it was accepted to require “sincerely held religious beliefs or practices.” [para 11].  However, “mere political opinion does not engage creed.”[para 11] Reference was made to the definition established in Vezina v. Elections Ontario 2016 HRTO 994. Concerns of the type raised in this case should be directed to “the City’s elected officials[para 12].

On the definition of “Disability”, however, the HRTO took a different view.  The Applicant never advised what was his disability.  He did not advise it to any businesses and did not advise it in the Application.  This was not fatal to his Application, however.  Rather, all that was required was that the Applicant provide information at a hearing, which he did here, sufficient to suggest to the HRTO that the definition of disability “could be engaged”. Naming two potential disabilities off the record to the hearing chair was sufficient for his case to survive on that basis.

The scope of “disability”, as defined in the Code was held to be exceptionally broad.  The approach in Vetricek v. 642518 Canada 2010 HRTO 757 was affirmed here in broadening the definition.  Any physical or psychological condition that might be impinged by masking was sufficient to meet “the broad definition of disability.”

The HRTO then proceeded to evaluate the By-Law itself as to whether it discriminated generally.  The HRTO accepted that the By-Law here did not discriminate for three reasons.  The first was that the By-Law expressly permitted exemptions be made for mask wearing for “persons with an underlying medical condition”[para 19].  The second was that the By-Law was expressly subject to any accommodation rights established by the Code. The third was that the By-Law did not require any proof of disability.  Those three elements justified the By-Law.  The City could not be faulted for incorrect application of such a By-Law [para 28].

Finally, the HRTO outlined how seeking of accommodation in situations of masking specifically during COVID-19 should work.  The Tribunal held it was a multi-step process.

First, the individual needs to identify they have disability-related needs.  If questioned, the individual must identify to a business that they have a medical condition or other reason requiring and accommodation that exemptions them from the business’ policy requirement to wear a mask”[para 20]

Second, the individual never needs to disclose they have a specific medical diagnosis.

Third, once there is a medical basis, the onus shifts to the business to adapt to the individual’s specific needs, even if that means the masking policy is ignored in that case.  The “individual ought to be permitted to access the service” [para 21] even in the midst of the COVID-19 pandemic.

In this case, the Applicant had told various businesses that he was “unable to wear a mask”.  To the extent that he was turned away, the HRTO held that “those businesses may have breached the Code”.  However, because the Applicant had not named those businesses, the HRTO could not specifically rule against them.  That misinterpretation of the By-Law by these Third-Party businesses (given the HRTO’s approval of the By-Law’s elements themselves) did not create any liability on the City.

This decision was to clarify the approved elements for COVID-19 restrictions and policies in evaluating the City of Toronto’s masking By-Law during the pandemic.  It clarified what elements were key to such a policy being upheld by the HRTO, as this By-Law was.  The decision further outlined the accommodation process and how it would work in practice during the pandemic.  This included key points on the individual never having any responsibility to identify a medical diagnosis and never needing to provide any proof of disability to secure a complete exemption to a COVID-19 restriction.

In this case, the HRTO emphasized that the accommodation requests begin with merely a request for an exemption.  Once that request is made, the respondent may question the basis for the request but never has a right to proof or specificity.  Any business is then expected to accommodate such a request. The individual “ought to be permitted” their exemption even in the height of a pandemic.  While the HRTO mentioned that a business can deny such a request only in a case of “undue hardship”, they were silent in this case on that standard or the elements thereof.  For a more detailed discussion on the limits of “undue hardship”, the HRTO would later issue a decision in the case of JL v. Empower Simcoe 2021 HRTO 222 that builds on the framework outlined here.

In this case, the HRTO creates an easy route for those seeking exemptions from mandatory masking policies and COVID-19 restrictions generally to challenge the rules without proof or specificity.  The HRTO expressly shifts the onus to businesses to accommodate without proof of actual need.  Policies wishing not to be discriminatory need to have that exemption onus built-in, including clarity that no proof will ever be required.  This low standard for triggering accommodation rights would later result in awards of damages against such businesses for enforcing “good faith” public health policies during the pandemic (See 2021 HRTO 222).

The HRTO has now set the process for individual rights to supersede the social rights and genuine risks of an ongoing pandemic without medical proof or need required.