Political opinion about masks does not attract protection on the basis of creed

30 mars 2021 | Nadya Tymochenko

( Disponible en anglais seulement )

A recent decision of the Human Rights Tribunal of Ontario (the “Tribunal”) may assist school boards, many of which have received requests for mask exemptions on the basis of “a sincerely held belief” by a parent that their child should not be required to wear a mask because they are ineffective or also have health impacts.

In Sharma v City of Toronto, 2020 HRTO 949 (CanLII), the applicant Mr. Sharma alleged that the City of Toronto bylaw 541-2020 requiring that members of the public entering a premises open to the public must wear a mask or face covering in an effort to reduce the spread of SARS-COV-2 (coronavirus) constituted a breach of his rights pursuant to the Human Rights Code (the “Code”) on the basis of creed and disability.

While the decision of the Tribunal was dismissed on a summary basis because the application against the City of Toronto did not have any reasonable prospect of success (it was individual businesses, and not the City, that refused the applicant access), the Tribunal did consider the grounds of discrimination on which the applicant relied.

The applicant argued that he was unable to wear a mask for the following reason:

[3]My creed disagrees with covering my face for unsubstantiated claims. Claims that masks prevent or stop the spread of Sars-Cov-2 (otherwise commonly known as coronavirus) is not substantiated by scientific evidence (e.g. peer-reviewed randomized control trials). Instead, City of Toronto only loosely references anecdotes of « masks being effective » — this is not evidence. My creed requires that I do not blindly accept what government or agencies claim, mandate or enact into laws (or by-laws). Instead, it is my civic duty to be critical of government and their decisions. By-Law 541-2020 makes no exception for creed.

The applicant also argued that he had a disability that prevented him from wearing a mask, and he argued that he should not be required to disclose the disability when seeking services without a mask.

The Tribunal held that the applicant’s objection did not fall within the meaning of creed pursuant to the Code.  Creed is not defined by the Code, however, most cases have characterized creed as engaging sincerely held religious beliefs or practices.  While the Tribunal’s case law has left open a potential for the Code to also be applied to protect a recognizable cohesive political belief system or structure, the adjudicator in this case found that a mere political opinion does not engage creed as a protected ground pursuant to the Code.

Therefore, the applicant’s belief that the efficacy of masks has not been proven, did not engage creed as identified in the Code.  The Tribunal held that the Applicant’s recourse was to engage politically with the City’s elected officials.

With respect to the applicant’s position that he should not be required to disclose his disability when seeking services, the Tribunal stated that,

[20]The accommodation process is a shared responsibility. This means that there must be a co-operative sharing of information. Many medical conditions are invisible. In order to engage the duty to accommodate, human rights law requires an individual to identify that they have disability-related needs that require accommodation. In the context of the By-Law, this means that, if questioned, an individual must identify to a business that they have a medical condition or other reason requiring an accommodation that exempts them from the business’ policy’s requirement to wear a mask.

[21] It is important to note, however, that the By-Law and human rights law generally do not require an individual seeking accommodation to disclose that they have a specific medical diagnosis. In some cases, an individual seeking accommodation will be required to provide information to verify their accommodation needs.

The Tribunal also indicated that the bylaw regarding businesses open to the public did not require individuals to provide proof of exemption.

While the many bylaws passed across the Province of Ontario with respect to wearing masks in places accessed by the public do not apply to schools, which are not public places, this case does assist to clarify that a belief that masks are ineffective or otherwise inappropriate, regardless of whether it is sincerely held, does not engage protection under the Code on the ground of creed.

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