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B.C. Costco shopper ordered to produce medical evidence for face mask exemption

B.C.'s Human Rights Tribunal says a complaint about being discriminated against based on a disability must include medical evidence proving such a disability indeed exists
Complaints about face masks based on disability exemptions must include medical evidence of that disability, according to a recent B.C. Human Rights Tribunal ruling.

A B.C. Human Rights Tribunal member says a man’s discrimination complaint about having to wear a mask must be backed up with relevant medical evidence.

Robert Jackson filed a complaint against Costco Wholesale Ltd. and Mark Tyszka. He alleges they discriminated against him in the area of services on the basis of a physical disability.

In the complaint, filed November 2020, Jackson said he was forced to wear a face mask or plastic fullā€face shield to shop for food and other items.

Jackson asserted the requirements violated Charter of Rights and Freedoms rights and privacy law.

“I was told to leave if I do not comply with their company policy after I had informed them that company policy does not override the charter,” he said in the complaint. “I was denied entry to the store.

“Demanding someone to ignore their charter rights to freedom of thought, belief and opinion is humiliating and dehumanizing at the least,” Jackson wrote.

Tribunal member Marlene Tyshynski said the charter only applies to acts of government.

“It does not apply to the acts/behaviour of individuals or private businesses,” she wrote. “Therefore, the charter is not relevant to this complaint against respondents who are a private business and an individual.”

She said B.C.’s Privacy Act does not apply where a complainant is required “to prove disability as an element of a discrimination case based on disability.”

The respondents had told Jackson in November he was required to provide evidence of his disability that prevents him from wearing a mask. They told him if he did not provide such proof, they would request an order to produce such evidence or apply to have his case dismissed.

Soon, they did just that.

“I have decided to order the complainant to amend his complaint, identifying his disability and stating why it prevented him from wearing a mask,” Tyshynski said in a Feb. 8 decision.

Jackson said he had a doctor’s note but, said Tyshynski, he refused to disclose it. Jackson asserts that would be a violation of his right to keep medical information private under provincial law.

The respondents have asserted Jackson’s refusal to produce the note “has put the existence of his disability at issue.”

Tyshynski noted Jackson has said he would bring the note to his hearing; proper document disclosure assures a fair process for all parties, the tribunal member said.

Jackson must produce the doctor’s note as well as all medical records relating to his disability, including but not limited to medical and clinical notes, prescription records, treatment plans and names and addresses of all medical professionals who have treated his disability.

Jackson must also produce all other documents which may be relevant to the complaint, including but not limited to notes, documents or recordings made during or after the event that is the subject of the complaint.

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