Human Rights Tribunal says retail mask rules a ‘balancing’ of Charter rights

"The policy was introduced in good faith," wrote Michael Gottheil, adjudicator with the Alberta Human Rights Tribunal. The Charter Of Rights And Freedoms "requires a balancing of rights," he said, adding that the mask requirement was "not discriminatory."

The ruling comes after Edmonton City Council reinstated its mask bylaw citing rising COVID-19 cases. Edmonton’s per capita caseload now exceeds 200 cases per 100,000 population. For the bylaw to be rescinded before the target end date of December 31, case counts must fall below 100 cases per 100,000 population.

James Beaudin of Edmonton complained he was denied entry to a Peoples Jewellers store last October 9 after he refused to put on a mask for medical reasons. "Staff was firm and the complainant was told to leave," noted the Tribunal.

"This was definitely discrimination against a person suffering from medical disability as stated in our Charter Of Rights And Freedoms of Canada!" Beaudin wrote the Tribunal. However, lawyers for Peoples Jewellers replied that even store employees were required to be masked at all times as a pandemic precaution, and that maskless customers were offered alternatives including telephone shopping and free home delivery.

"The question is whether the policy was introduced for a valid and legitimate business purpose, was introduced in good faith and there were no alternatives available to accommodate those negatively affected without incurring undue hardship," wrote Adjudicator Gottheil. The mask policy "was introduced in good faith," he said.

"We opened too fast in Alberta," said Mayor Don Iveson said. "Many people were concerned about that at the time. Exactly what was predicted at the time by the epidemiologists and the subject matter experts is happening."

Edmonton Chamber of Commerce president and CEO Jeffrey Sundquist welcomed the measure. "With cases increasing, the Edmonton Chamber supports measures that will keep people safe, businesses open and the economy growing," he said.

"That is now contributing to fear," added Iveson, "which ironically, is also bad for the economy."

In a separate case, Peter Szeles of Edmonton complained he was barred from browsing in a Costco Wholesale outlet without a mask last November 17. Costco lawyers submitted evidence that Szeles had published social media posts that "purport to suggest the COVID-19 pandemic is a hoax and a conspiracy, and that public health measures are an unwarranted infringement on civil liberties," wrote the Tribunal.

In the Costco case, employees offered maskless customers free use of a face shield. Szeles declined. "An altercation ensued, the police were called and Szeles was removed from the store."

Szeles argued the offer of a face shield was humiliating since it would “single him out as a person with a disability,” and that there was no medical evidence face shields were effective in preventing infection.

"The Human Rights Act and human rights jurisprudence accept that limitations to the right to be free from discrimination may be justified where the limitation or rule is instituted for valid reasons, and is instituted in the good faith belief that it is necessary," wrote the Tribunal.