Looking back, much of 2020-21 could be remembered as the “Time of the Mask”. Most of us, whether by choice or in compliance with various COVID bylaws and protocols, became inured to wearing masks in stores, public institutions like schools and hospitals, and on public transportation. However, spats and confrontations between strangers happened with enough frequency to make most of us warier than usual as we went about our business in public as normally as we could during those strange days.

To mask or not to mask. That became a fixation for a vocal minority of people who questioned the utility, if not the science altogether, behind mask wearing as a means of helping to prevent the spread of COVID-19 and its variants. Fines and other penalties were handed out to many of the more vocal of the “anti-maskers”, even as the vast majority of the rest of us complied, if begrudgingly, with masking rules. However, there was always an exception to the masking mandate for anyone with a valid medical reason for not wearing a mask, even when the pandemic was spiking,

That somebody would challenge the masking rules and protocols based on a medical exemption argument might seem inevitable in retrospect. That was the situation before the Alberta Human Rights Commission in Orgill v Nova Cannabis Deerfoot City.[1] Tara Orgill had placed an order online for a quantity of cannabis from a Calgary cannabis dispensary called Nova Cannabis Deerfoot City (Nova). On December 11, 2020,she attended the premises to retrieve and pay for her purchase. However, the cashier refused to serve her because she was not wearing a mask. Ms. Orgill said she tried to explain that she was exempt from wearing a mask because of a mental disability. However, the cashier reportedly said the store had a policy of “no mask, no service” and asked her to leave and buy her product elsewhere. Ms. Orgill subsequently filed a complaint of discrimination with the Alberta Human Rights Commission.

The respondent store denied the allegations against it and explained that because of the rising incidence of COVID infections, the parent company had adopted a face mask policy to protect employees and customers from COVID. That policy required employees to ask anyone entering the store to wear a face mask or leave. In accordance with the policy, customers who refused to mask or were unable to mask for medical reasons should be asked to leave and to order cannabis products online for delivery if available. At the time of this incident, Alberta Gaming, Liquor and Cannabis (AGLC) was the only organization legally permitted to sell cannabis products online and provide home delivery service to customers.

A human rights officer investigated the circumstances surrounding the complaint and recommended that it be dismissed. The Director of the Human Rights Commission agreed and dismissed the complaint. Ms. Orgill filed a request for a review of the decision to dismiss. A Human Rights Commission tribunal review officer heard evidence and argument from both sides, then upheld the decision to dismiss the complaint.

In the review of the evidence, the review officer  found that although Ms. Orgill’s medical exemption was in fact accepted, because of the seriousness of the pandemic the store’s cashier informed Ms. Orgill that she could legally obtain cannabis products online through the AGLC and arrange for home delivery through them. Nova could not provide a home delivery service because it lacked the authority and resources to do so. At the time, only the AGLC had the legal authority to both sell cannabis products online and provide home delivery. However, for whatever reason, Ms. Orgill did not proceed with this course and there is no indication in the decision why she failed to do so.  

In coming to a decision to uphold the decision to dismiss the complaint, the review officer found that the store’s COVID mask policy restricted Ms. Orgill’s right to receive services, i.e., she could not buy cannabis products at the store unless she was wearing a protective mask. Furthermore, Ms. Orgill presented a medical note which said she could not wear a mask although no evidence was offered as to the medical condition that necessitated the consumption of cannabis.

There was no question that the mask policy had an adverse impact on Ms. Orgill’s human right. However, an adverse effect on a person’s human right does not end an inquiry. Under human rights law, restrictions to the right to be free from discrimination may be justified in certain circumstances. The circumstances that would justify an otherwise adverse impact on a human right were set out by the Supreme Court of Canada over 20 years ago in British Columbia v BCGSEU:[2]

1. That the employer adopted the standard for a purpose rationally connected to the performance of the job.
2. That the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and
3. That the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose.

The Supreme Court of Canada later applied the three-part test in a case where the human rights complaint concerned discrimination in the provision of goods and services.[3] Limitations to the right to be free from discrimination in the provision of goods and services may be justified where:

1. the limitation is for a valid reason.
2. the limitation is based on good faith; and
3. a person who may be adversely impacted cannot be accommodated without incurring undue hardship.

In conclusion, although a valid medical exemption for wearing a face mask may have been recognized in this case, the store was still justified in strictly adhering to its masking policy in light of the fact that the complainant had the option of both ordering her cannabis product online from the AGLC and arranging for its delivery from them. Why she did not avail herself of this option is unclear from the decision. Furthermore, within the context of a pandemic with a highly contagious virus, strict compliance with the masking policy was rationally connected to the limitation on the human right at issue.

[1] Orgill v Nova Cannabis Deerfoot City, 2022 AHRC 70 (CanLII), <https://canlii.ca/t/jpz9n

[2] British Columbia (Public Service Employee Relations Commission v BCSGEU (Meiorin), [1999] 3 SCR 3.

[3] British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC) (Grismer)