An application to dismiss a disability discrimination complaint has been denied by the British Columbia Human Rights Tribunal, allowing a claim against Civeo Corporation to proceed to a hearing after the company refused to accommodate a woman’s disability-related inability to wear a mask during an artisan market event.
The Tribunal’s decision highlights the importance for employers and service providers of engaging in the duty to accommodate individuals with disabilities, even amid public health measures like mandatory masking policies.
Background
Civeo Corporation operates a workforce accommodation lodge in Kitimat, B.C., providing lodging for 400 to 500 workers. In August 2021, Civeo organized an artisan market event at the lodge, inviting local artisans to sell their products to lodge guests. The event was coordinated by A.H., a Civeo employee responsible for community outreach.
L.B., a local artisan, applied to participate as a vendor in the market. A.H. informed L.B. that while she was welcome to participate, Civeo had a mandatory mask-wearing policy in place due to the COVID-19 pandemic, and “there were no exemptions to the masking requirement.”
L.B. informed A.H. that she had a “health condition or physical or mental impairment” that prevented her from wearing a mask. She provided links to provincial government and human rights commission guidelines on mask exemptions. A.H. responded that Civeo was “unable to budge on the requirement of wearing a mask or face covering while on Civeo property” and suggested L.B. could participate in future events when COVID-19 restrictions were lifted.
As a result, L.B. did not participate in the event. She filed a complaint with the British Columbia Human Rights Tribunal, alleging discrimination on the grounds of disability in the area of services, contrary to section 8 of the Human Rights Code.
Respondents’ application to dismiss
Civeo Corporation and A.H. applied to dismiss the complaint on two grounds. First, under section 27(1)(c) of the Code, they argued that the complaint had no reasonable prospect of success because:
- L.B. had not disclosed a disability that prevented her from complying with the mandatory mask policy.
- The artisan market event was not a service customarily available to the public.
- They were reasonably certain to prove that their actions were justified because accommodating L.B. without a mask would have caused undue hardship due to safety concerns.
Second, under section 27(1)(d)(ii), they argued that the complaint should be dismissed against A.H., the individual respondent, on the basis that proceeding against her would not further the purposes of the Code.
Tribunal’s analysis and decision
The Tribunal considered whether the complaint had no reasonable prospect of success under section 27(1)(c).
Disability
The Tribunal found that L.B. had provided sufficient evidence to take her claim of having a disability out of the realm of conjecture. L.B. described her disability as Pulmonary Stenosis and Syncope, providing two medical notes: one from her chiropractor stating she was “unable to tolerate wearing a face covering due to an underlying medical condition,” and another from her family doctor confirming her diagnoses.
The Tribunal noted that, at this stage, L.B. did not need to prove her case but only needed to show that her evidence was more than speculation. The Tribunal concluded that L.B. had met this low threshold regarding the existence of a disability.
Adverse impact in services
Regarding whether L.B. experienced an adverse impact in services customarily available to the public, the Tribunal found that there was a reasonable prospect that L.B. could prove that the artisan market event was a service customarily available to the public. Although the event was held at a private lodge and limited to selected vendors, it was advertised publicly through the Kitimat Chamber of Commerce and word of mouth.
The Tribunal stated that “the ‘public’ for a service may be a subset of the community eligible for the service” and that “at the hearing, the Tribunal could find that the Respondents advertised the event to a subset of the public: local artisans in the Kitimat community who met the Respondents’ selection criteria for becoming a vendor at the event.”
Nexus between disability and adverse impact
The Tribunal found that L.B. had taken the nexus between her disability and the adverse impact out of the realm of conjecture. L.B. provided evidence of how wearing a mask impacted her health condition, leading to feelings of claustrophobia, irregular breathing, anxiety, and fainting spells due to her Pulmonary Stenosis and Syncope.
Duty to accommodate
The burden then shifted to the respondents to show that they were reasonably certain to prove at a hearing that they had accommodated L.B. to the point of undue hardship.
The Tribunal was not satisfied that the respondents had met this burden. While recognizing the legitimate purpose of the mask policy in preventing COVID-19 transmission, the Tribunal found that the respondents had not demonstrated that accommodating L.B. would have caused undue hardship.
The Tribunal noted that the respondents did not provide L.B. with any accommodation options or request further medical information about her disability. “On the evidence before me, the Respondents did not provide Ms. [B.] with any accommodation options,” the Tribunal stated. “Under human rights law, a service provider does not discriminate if they offer reasonable accommodation and… what is reasonable will depend on the circumstances.”
L.B. had suggested possible accommodations, such as providing a negative COVID-19 test, installing plexiglass barriers around her booth, or setting up her booth before other vendors arrived. The respondents did not address these suggestions or explain why they would cause undue hardship.
As a result, the Tribunal denied the application to dismiss under section 27(1)(c), allowing the complaint to proceed to a hearing against Civeo Corporation.
Dismissal of complaint against individual respondent
Regarding the application to dismiss the complaint against A.H. under section 27(1)(d)(ii), the Tribunal granted the application. The Tribunal considered factors such as whether proceeding against the individual respondent would further the purposes of the Code, the nature of the alleged conduct, and whether the employer acknowledged responsibility.
The Tribunal found that A.H. was acting in her official capacity as a representative of Civeo, enforcing company policy, and there was no evidence of personal culpability beyond her role. “The evidence before me supports Civeo’s assertion that Ms. [H.] was acting in their capacity as the Recreation Coordinator and Community Outreach Manager for Civeo,” the Tribunal stated.
Implications for employers and HR professionals
This decision underscores the importance for employers and service providers of actively engaging in the duty to accommodate individuals with disabilities, even when enforcing public health measures like mandatory mask policies.
Employers should ensure that:
- They have processes in place to assess accommodation requests on an individual basis.
- They engage in dialogue with individuals requesting accommodation to understand their needs and explore possible solutions.
- They do not dismiss accommodation requests outright without considering whether accommodations can be provided without causing undue hardship.
Additionally, employers should document the steps taken in the accommodation process, including any inquiries made and accommodations offered.
The decision also highlights that while individual employees enforcing company policies may not be held personally liable when acting within the scope of their employment, employers remain responsible for ensuring compliance with human rights obligations.
For more information, see Beaudette v. Civeo Corporation and another, 2024 BCHRT 263 (CanLII).
