Whether mask refusal was due to religious beliefs or personal choice needs further assessment
A complaint of religious discrimination stemming from denial of service at a license registry office for not wearing a mask during the pandemic has been allowed to proceed to a hearing, after it was initially dismissed for having no reasonable prospect of success.
In & Out Registry is an authorized registry agent for provincial licenses in Edmonton. On June 18, 2021, an individual arrived at its office with the intention of renewing his vehicle license registration.
However, the individual was not wearing a face mask. At the time, the City of Edmonton had enacted a bylaw requiring people to wear face masks in certain indoor environments as part of measures to reduce the spread of COVID-19. In & Out Registry also had a policy requiring all employees and clients to wear masks its office.
The individual did not wear a face mask because he practices the Fellowship of the Wolf religion, which included tenets that his body was his temple and “I wear what I feel is comfortable… I have the God-given right to reject what I deem is contrary to my health of mind, body, soul, spirit.”
The company’s policy allowed for accommodation for anyone who didn’t wear masks, regardless of the reason. The accommodation options included wearing face shields, sending others to complete license renewals on their behalf, doing renewals online, or waiting until the registry office was cleared of other people.
A worker’s mask refusal was not based on a religious belief, the BC Human Rights Tribunal found.
Challenged mask policy
When staff informed the individual that company policy and the city bylaw required him to wear a mask, he became “rude, very aggressive, and would not listen to any options and forced his way into the office.” Because of this behaviour, staff refused to provide service. The individual tried to force his way inside and then started crying. A supervisor arrived and discussed things with him, but it became heated. Eventually, the individual was asked to leave.
The individual filed a human rights complaint alleging that In & Out Registry discriminated against him on the ground of religious beliefs. In & Out countered that the reason its staff did not serve him was not because of his failure to wear a mask, but because of his rude and aggressive conduct.
The director of the Alberta Human Rights Commission reviewed the complaint and determined that it should be dismissed as having no reasonable prospect of success in a hearing.
The individual appealed to the Alberta Human Rights Tribunal, arguing that since people with medical issues were accommodated at the registry office, he should have been accommodated for his religious beliefs preventing the wearing of a mask. He also said that other accommodations such as the availability of online services were only made clear to him after he had already been asked to leave.
The tribunal noted that it had already been established that employers and service providers introducing mask policies during COVID-19 restrictions were justified, especially if reasonable accommodations were available. All businesses were “operating in an environment of a world-wide pandemic, with evolving science and health requirements,” said the tribunal.
Sikh security guards in Toronto were caught between safety rules and their religious beliefs.
Three-part discrimination test
The tribunal also noted that if the matter proceeded to a hearing, the onus would be on the individual to show prima facie discrimination. To do this, he would have to follow the established three-part test and show that he had a characteristic protected by the Alberta Human Rights Act, he experienced an adverse effect, and that there was a connection between the protected ground and the adverse effect.
The evidence about the individual’s religion, Fellowship of the Wolf, indicated that members were allowed to honour their own bodies and make their own choices about what to wear, but the tribunal found that there was nothing requiring them to avoid covering their faces or wearing mask. Since the individual chose not to wear a mask, there needed to be an assessment as to whether this choice was an expression of religious belief or simply a personal choice, said the tribunal, noting that further evidence would be needed to perform such an assessment.
The tribunal noted that it was clear that the individual suffered an adverse effect, as he did not receive his vehicle registration and was asked to leave.
However, while the evidence – and In & Out’s arguments – indicated that the registry office had accommodation options available for people who couldn’t or didn’t want to wear a mask, it wasn’t clear that the options were clearly communicated to the individual, the tribunal said, noting that this was a “live issue” that might have to be determined in a hearing if the individual could prove that there was prima facie discrimination – including whether accommodation was offered and whether the individual’s behaviour prevented In & Out from offering accommodation.
Given the issues that need to be further examined with additional evidence, the tribunal overturned the director’s decision and accepted the complaint into the next step of the hearing process.
See Schifer v. Norsen Management Inc. o/a In & Out Registry, 2022 AHRC 139.
