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HRTO releases first COVID-19 decision interpreting the City of Toronto mask by-law and the Code

In Sharma v. Toronto (City), 2020 HRTO 949 (CanLII), the Human Rights Tribunal of Ontario (HRTO) considered an application challenging the new City of Toronto’s By-Law 541-2020. The By-Law, in effect since July 7, 2020, requires businesses and other establishments that are open to the public to adopt a policy to ensure that no member of the public is permitted entry to, or otherwise remains within, any enclosed space unless they are wearing a mask or face covering. The City enacted the temporary By-law to help stop the spread of COVID-19.

The Case:

The applicant alleged he had been denied service at a number of businesses for not wearing a mask or face covering. The applicant also claimed that the City discriminated against him because he could not wear a mask due to a disability but was being denied service, contrary to the Code. The application stated:

"Disability. My bodily functions are impaired by face coverings, as it impedes my breathing. I do not know whether not being able to wear a mask qualifies as a disability, but what I do know is that I cannot wear a mask due to bodily/biological/medical conditions. While I understand that By-law makes exemptions for "persons with an underlying medical condition which inhibits their ability to wear a Mask or Face Covering", those with disabilities or medical conditions should not bear the brunt explaining or proving this to businesses/establishments, as this is humiliating and anxiety-inducing. In Ontario, businesses are not permitted to inquire about an individual's medical conditions."

The City’s Response:

The City bought a motion at the HRTO to have the application dismissed on a preliminary basis because it had no reasonable prospect of success at a hearing on the merits. The HRTO found the applicant had a disability within the meaning of the Code and then turned to the main issue— whether there was a breach of the Code. The HRTO noted that the By-Law recognized that businesses have a duty to accommodate those with disabilities. The By-Law required a business’ policy to contain certain exemptions, including for individuals who were unable to wear masks for medical reasons:

2.(a) The policy shall include the following exemptions from the requirement to wear a Mask or Face Covering:

(2) persons with an underlying medical condition which inhibits their ability to wear a Mask or Face Covering;

(5) persons who are reasonably accommodated by not wearing a Mask or Face Covering in accordance with the Ontario Human Rights Code.

The Results:

The applicant argued that the businesses who denied him services were not complying with the By-Law. Importantly, however, the applicant did not bring applications against each of the businesses themselves. The HRTO found that it was the applicant’s choice not to file applications against the various businesses that he alleged denied him services and that this did not provide a basis to assign those businesses’ alleged conduct to the City. In the end, the HRTO found there was no alleged discriminatory action by the City itself and that the By-Law required a business’ policy to contain exemptions for those with underlying medical conditions or otherwise requiring accommodation under the Code.

How Toronto’s By-Law Works:

The By-Law further requires that such a business policy must not require a person claiming an exemption to provide proof. In the circumstances, the HRTO held the City could not be faulted for the alleged conduct of businesses who may be incorrectly applying the By-Law. The alleged conduct of those businesses that denied services could not be laid at the City’s feet. The application against the City was dismissed  for having no reasonable prospect of success because the applicant had not alleged any denial of services by the City, as opposed to the denial of services by the various businesses.

This case illustrates some of the pubic policy tensions between the legitimate goal of the general protection of the health and safety of Ontarians and the Code protected duty to accommodate an individual’s disability related needs. Businesses and stores and other organizations have a duty under the Code to accommodate these types of individual needs related to legitimate COVID-19 needs, unless it would amount to undue hardship based on cost or health and safety. In some cases. exemptions to mask requirements may be necessary to accommodate some individuals under the Code. Moreover, in some cases, people with disabilities may be expected to verify, if asked, their Code-related accommodation needs, depending on the specific situation.

For more information about COVID-19 and the Code check out the Ontario Human Rights Commission Q&A section on COVID-19.

More information about the City’s By-law can be found here.