Employee’s Opinion on Mask Wearing Not Protected Under the BC Human Rights Code – Tribunal Dismisses Claim Against Employer

Author: Chris Drinovz, Partner, KSW Lawyers Employment & Labour Group (cdd@ksw.bc.ca)

The BC Human Rights Tribunal issued a decision on April 8, 2021 confirming that an employee’s objection to wear a mask, based on his opinion that it does not stop the transmission of COVID‐19, was not a belief protected by the Human Rights Code (The Worker v The District Managers, 2021 BCHRT 41).

In this case the Complainant was contracted to do work at a District facility, and was asked to wear a face mask upon entering the workplace. He refused to wear a mask, saying it was his “religious creed.” The Employer subsequently terminated his work contract.

The Complainant filed a human rights complaint against the Employer, alleging discrimination based on religion, in violation of s. 13 of the Code. The Tribunal dismissed the complaint and found that the Complainant:

has not set out facts that could establish that his objection to mask‐wearing is grounded in a sincerely held religious belief. Rather, his objection is based on his opinion that wearing a mask does not stop the transmission of COVID‐19. This is not a belief protected by the Code.

Under human rights legislation, protection of a religious belief or practice is triggered when a person can show that they sincerely believe that the belief or practice (a) has a connection with religion; and (b) is “experientially religious in nature”: Syndicat Northcrest v. Amselem, 2004 SCC 47 at para. 69.

In this case at para 10, the Complainant described his religious belief as follows:

“We are all made in the image of God, a big part of our image that we all identify with is our face. To cover‐up our face arbitrarily dishonors God”. The Worker says it is his freedom of expression to show his face in the general public and his religious liberty to identify his face to others. He says the mask requirement infringes on his “God given ability to breath”. The Worker does not believe that mask wearing is effective. He says, “God makes truth of high importance that I must follow ethically and morally”, “forced mask wearing does not help protect anyone from viruses”, and, therefore, he cannot “live in that lie.”

At para 11, the Tribunal Member set out the reasons for his finding that the complaints set out cannot be a contravention of the Code:

These facts, if proven, could not establish that the Worker’s objection to wearing a mask is “experientially religious in nature”. He has not pointed to any facts that could support a finding that wearing a mask is objectively or subjectively prohibited by any particular religion, or that not wearing a mask “engenders a personal, subjective connection to the divine or the subject or object of [his] spiritual faith”: Amselem at para. 43. Rather, his objection to wearing a mask is his opinion that doing so is “arbitrary” because it does not stop the transmission of COVID‐19.

(…)

The Worker’s opinion that masks are ineffective is not a belief or practice protected from discrimination on the basis of religion. While the Worker states his belief that it dishonours God to cover his face absent a basis for doing so, the Workers’ complaints, in essence, are about his disagreement with the reasons for the mask‐wearing requirement set out in the Orders.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Chris Drinovz at cdd@ksw.bc.ca.

Chris Drinovz is an experienced employment and labour lawyer in Abbotsford, Langley, Surrey & South Surrey, a Partner at KSW and Head of the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP). Chris has been assisting local businesses with workplace issues since 2010. His expertise covers all facets of the workplace including wrongful dismissal, employment contracts, workplace policies, and WorkSafeBC matters, including occupational health & safety. Chris is on the Executive of the Employment Law Section of the Canadian Bar Association BC, and a Director for Surrey Cares and Greater Langley Chamber of Commerce.

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