Alberta Human Rights Commission dismisses Edmonton mask complaints

Alberta Human Rights Commission dismisses Edmonton mask complaints

The Alberta Human Rights Commission has dismissed a pair of complaints filed by two men who say they were discriminated against when they didn’t wear masks inside retail stores last fall.

One incident took place at a Costco store last November and the other at a Peoples Jewellers store in October.

The decisions were released Aug. 16, 2021, signed by Michael Gottheil, chief of the commission and tribunals.

In both cases, Gottheil found the companies were reasonable in insisting customers and employees wear masks to protect public health during the COVID-19 pandemic.

On Nov. 17, 2020, Peter Szeles went into a Costco in Edmonton and told staff he had a disability that exempted him from wearing a face mask.

An employee suggested Szeles could wear a face shield instead, but he refused. Szeles argued that a face shield was stigmatizing, was meant to single him out as a person with a disability and would subject him to humiliation.

An altercation ensued, the police were called over and Szeles was removed from the store, the written decision says.

A clip of the interaction is also posted on Szeles’s Facebook page. The video shows Szeles on his knees, refusing to stand up and leave the store, with two officers carrying him out and putting him in a police van.

WATCH | Police remove Szeles from the Costco:

Man arrested in Edmonton Costco after refusing to wear mask 1:53 In November 2020, Peter Szeles was arrested in an Edmonton Costco following an altercation that occured after the man refused to wear a mask inside the store. Szeles' complaint to the Alberta Human Rights Commission was dismissed in August 2021. 1:53

Costco submitted several arguments in response to Szeles’s complaint, including that it provided appropriate alternatives, like the option to wear a face shield in the store and various online shopping and home delivery options.

In the second case, James Beaudin was blocked from entering a Peoples Jewellers store in Edmonton. He said health reasons prevented him from wearing a mask.

The store staff pointed out alternatives, including phone and online shopping, with free delivery or curb-side pickup. Beaudin objected, but the store staff was firm, and he was told to leave, the written decision says.

Balance of rights

Jessica Eisen, a University of Alberta law professor specializing in human rights, said the commission’s decisions are understandable based on the Alberta Human Rights Act.

According to the decisions, the companies showed they were responding in good faith to the seriousness of the pandemic, she said.

“They presented lots of evidence to the effect that there was a really good reason for these policies — they were needed to protect their employees and to protect the other customers in the stores,” she said.

Eisen said human rights laws are based on balance.

“I think a lot of people are under the misconception that human rights acts and codes generally protect people’s right to do whatever they want in all circumstances,” Eisen said. “In fact, human rights laws are designed to protect fundamental interests in a range of circumstances.”

Discrimination on the basis of race, religion and disability is covered in human rights legislation, but in these cases, businesses showed they were trying to do the right thing in protecting people’s health while providing options to customers, she said.

The two decisions are among more than 100 complaints the Alberta Human Rights Commission has received since March 2020 related to mandatory masks and vaccines. Cam Stewart, a spokesperson with the HRC, said the commission has accepted them as formal complaints and is in the process of reviewing them.

Most complaints are resolved in conciliation, investigation or at the director’s office before going to a tribunal hearing, he noted.

While investigators are going through the complaints process, the details of the complaints are confidential, Stewart said.

@natashariebe

Mandatory Mask Policy Does Not Breach Human Rights Act

In Szeles v Costco Wholesale Canada Ltd.,[1] the Chief of the Commission and Tribunals (the “Chief”) of the Alberta Human Rights Commission (the “Commission”) dismissed a complaint alleging that Costco had discriminated against a customer with a disability who refused to wear a mask or face shield.

What happened?

In November 2020, the customer attended at a Costco store in Edmonton, Alberta and was told that he had to wear a mask under the company’s COVID-19 policy. The customer indicated that he was exempt from masking requirements because of a disability. The customer also refused Costco’s offer to wear a face shield as an alternative. An altercation ensued, the police were called and the customer was removed from the store.

The customer filed a complaint with the Commission alleging that Costco had discriminated against him in the area of goods, services and accommodation on the ground of physical disability, in contravention of the Alberta Human Rights Act (the “Act”).

A Human Rights Officer assigned under the Act conducted an investigation and recommended that the customer’s complaint be dismissed. The customer then requested that the Chief review the Human Rights Officer’s recommendation.

Are mandatory mask policies discriminatory?

1. Adverse Impact

The initial question for the Chief was whether Costco’s policy had an adverse impact on persons protected under the Act. In this case, the Chief found that Costco’s policy did have an adverse impact on persons with certain disabilities who may be unable to wear masks. However, limitations on human rights can be justified in certain circumstances.

In particular, a limitation is justifiable where it is:

instituted for valid reasons;

instituted in the good faith belief that it is necessary; and

reasonably necessary, meaning it is impossible to accommodate persons who may be adversely affected without incurring undue hardship.

To establish the third aspect of the test, Costco needed to show that it considered the least intrusive options, and made every effort to accommodate the customer’s disability-related needs, short of undue hardship.

2. Valid Reasons

The Chief found that Costco had a valid business purpose for instituting the policy in light of the mandatory public health regulations in place. Costco also provided substantial information, based on public health guidance and epidemiological research, that its policy was instituted for a valid business and safety purpose.

3. Good Faith

The customer provided no basis for his allegation that Costco’s policy had been established in bad faith, and with the purpose of singling out persons with disabilities for humiliation. The Chief also noted that there was nothing in the provincial and municipal public health regulations that prohibited businesses like Costco from instituting policies requiring the use of masks by employees or customers.

4. Reasonably Necessary Limitation

The customer argued that the alternative offered by Costco; namely, wearing a face shield, was unreasonable because it did not offer protection against the transmission of COVID-19. In his view, the use of a face shield was also stigmatizing, was meant to single him out as a person with a disability, and would subject him to humiliation. He also argued that other available alternatives such as curbside pickup and on-line shopping did not provide equivalent service (among other things).

The Chief was not persuaded by the customer’s arguments. Costco had provided substantial information from local and international health organizations that face shields may be an alternative to, albeit not as effective as, wearing masks. Moreover, according to the Chief, a less effective measure does not undermine the reasonableness of the restriction.

The Chief also noted that the customer’s concerns regarding curbside pickup and on-line shopping were purely hypothetical. There was no evidence that any of the concerns raised actually impacted the customer. The Chief did not agree that these alternatives would impose any serious limitations on the customer.

Therefore, the Chief upheld the Human Rights Officer’s recommendation and dismissed the customer’s complaint. However, the Chief was cautious to note that he was making no decision on what outcome might be appropriate in other circumstances.

Other Cases

Recently, the Chief also released his decision in Beaudin v Zale Canada Co. o/a Peoples Jewellers,[2] wherein he dismissed a similar human rights complaint from a customer against a business’ mandatory mask policy even though there was no government mandate requiring mask wearing at the time. In that case, the business had offered online and telephone shopping as alternatives.

Key Takeaways

These are promising decisions for businesses that have implemented robust measures to protect the health and safety of customers and employees during the COVID-19 pandemic. Businesses should continue to follow provincial and municipal regulations, and also institute their own written policies expressly offering accommodations for persons with disabilities (such as curbside pickup, on-line shopping and telephone shopping). Businesses should be prepared to apply their policies reasonably and flexibly based on the particular circumstances of each case.

Signet: A Jewel of a Value Stock By StockNews

Signet: A Jewel of a Value Stock

Stock Markets Sep 08, 2021 03:30PM ET

© Reuters. Signet: A Jewel of a Value Stock With valuations sky high on many stocks, you might think it would be hard to find a great value stock. But that’s not the case if you use our POWR Ratings service. Signet Jewelers Limited (NYSE: ) is not only trading at a low valuation, but is also growing, giving you the best of both worlds.Signet Jewelers Limited (SIG) is one of the seven stocks featured in a new special report. Claim your copy now! 7 SEVERELY Undervalued Stocks. Signet Jewelers Limited (SIG) is a retailer of diamond jewelry. Its merchandise mix includes bridal, fashion, watches, and others. The bridal category includes engagement, wedding, and anniversary purchases. You may know its brands that include Kay, Jared, Zales, and Piercing Pagoda. Its Canadian stores operate as Peoples Jewellers and Mappins Jewellers. Outside of North America, is legacy UK Jewelry division operates stores in the United Kingdom, Republic of Ireland, and the Channel Islands. These stores operate as H.Samuel and Ernest Jones in shopping malls and off-mall locations. Continue reading on StockNews

Signet: A Jewel of a Value Stock

Related Articles