Introduction
The 2020/21 school year brought Ontario schools many COVID-19-related challenges. Among them was the requirement that schools develop and enforce policies requiring students, faculty and staff to wear facemasks.
In Ontario, the Ministry of Education (MOE) issued guidance in July 2020 requiring students in grades 4 to 12 to wear masks while indoors. The guidance encouraged but did not require kindergarten to grade 3 students to wear masks. The MOE later updated its guidance to require that all students in grades 1 to 12 wear masks in school and outdoors during recess where physical distancing is not possible.
Masking requirements in Ontario schools are subject to the duty to accommodate under the Human Rights Code. This duty to accommodate comes into play when an individual requires an accommodation based on a protected ground – for example, disability or creed. allegations that schools, as well as other business and employers, have failed to accommodate employees, students and customers regarding masking requirements have already been raised before the Human Rights Tribunal of Ontario (Tribunal).
Under the Ministry of Education’s return to school guidance, updated on Sept. 2, 2021, masks are required for students from grades 1 to 12 for the 2021/22 school year. This year schools have the benefit of reviewing some early decisions released by the Tribunal regarding challenges to masking requirements, providing guidance for educators to comply with human rights legislation.
Sharma v. Toronto
The first Tribunal decision dealing with a challenge to a masking requirement was Sharma v. Toronto. In that case, the applicant brought a complaint against the City of Toronto, alleging that a city bylaw requiring retail customers to wear a mask discriminated against him on the basis of creed and disability.
The applicant refused to wear a mask, alleging there is no scientific evidence that masks prevent the spread of COVID-19. He also alleged that he could not wear a mask due to a medical condition.
At a summary hearing to determine whether the complaint had any reasonable prospect of success, the Tribunal determined that the first allegation was based on political opinion, which does not fit within the definition of “creed” and is therefore not protected by the Code. The Tribunal did issue a warning, however, stating it was possible that businesses turning away the applicant may have breached the Code by discriminating on the basis of disability.
The decision in Sharma confirms that objections to masking based on political opinion are not protected under the Code. The decision also confirms that, depending on the facts of the case, a refusal to provide a masking accommodation on the basis of disability may be in breach of the Code.
Evidence of disability or protected creed required
After the Sharma decision, human rights tribunals in Ontario and British Columbia released decisions clarifying the evidence required to demonstrate that an applicant has a disability or creed that engages the Code.
In one of the decisions, the applicant complained to the Tribunal that a store discriminated against her on the basis of disability when she wasn’t allowed to enter without wearing a mask. However, the applicant refused to provide the Tribunal with any information on her alleged disability or how it interfered with her ability to wear a mask. All the applicant was willing to submit was that wearing a mask makes it “very difficult to breathe” and “causes anxiety.” The Tribunal found that this explanation was insufficient to trigger protection of the Code:
[T]he Code only protects people from discrimination based on certain personal characteristics, including disability … Any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask.
The Tribunal dismissed the application on a preliminary basis without proceeding to a full hearing.
In Civiero v. Habitat for Humanity Restore, the Tribunal similarly dismissed an application on a preliminary basis when the applicant failed to submit evidence of her disability. However, the Tribunal later agreed to reopen the application when the applicant submitted evidence of her disability.
These decisions demonstrate that the Tribunal requires actual evidence that an applicant has a disability that fits under the Code.
In another application, the applicant was refused entry to his workplace for not wearing a mask. The applicant claimed that masking contravened his “religious creed.” The Tribunal dismissed the application on a preliminary basis, stating:
“[The applicant] 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.’”
This case demonstrates that a human rights tribunal will require proof of an actual religious creed prohibiting wearing a mask in order for to engage a human rights code.
CL v. Toronto District School Board
In February 2021, the Human Rights Tribunal of Ontario issued its first preliminary decision considering an objection to masking in the school context. In CL v. Toronto District School Board, a parent brought a human rights application on behalf of his child against the Toronto District School Board (the “Board”), as well as the Ontario Ministry of Education, the Ontario Ministry of Health, Toronto Public Health, Dr. David Williams, Dr. Eileen de Villa, Stephen Lecce, Christine Elliott and Doug Ford.
The parent alleged that the public health mandate requiring children to wear masks at school is too severe, unnecessary, unwarranted and unconstitutional. He also alleged that his child had a speech impediment and that the requirement to wear a mask impeded his child’s learning and communication. The parent submitted correspondence between himself and the Board with respect to his request for a masking exemption.
In a preliminary decision, the Tribunal found that it does not have jurisdiction over general allegations of unfairness with respect to public health mandates and dismissed the application against all respondents except the Board, as well as the majority of the allegations against the Board that dealt with “philosophical and political disagreement.” However, the Tribunal ordered that the allegations relating to the student’s disability that allegedly required an exemption from masking at school would continue in the Tribunal’s process.
Takeaways for educators
The masking cases to date offer several important lessons:
- Objections to masking based on personal preferences or singular belief will not engage the protection of the Code. The Ontario Human Rights Commission confirmed in a public statement that it is not aware of any tribunal or court decision that found a singular belief against masks amounted to a creed under the meaning of the Code. The Tribunal requires proof of an actual medical reason or religious creed prohibiting wearing a mask in order for the Code to be engaged. This onus may be difficult for many applicants to meet.
- At the Tribunal, an applicant claiming a disability-based exemption will be required to provide proof of their disability and its restrictions and limitations. However, the Tribunal may be willing to provide applicants with a second chance to provide evidence of their disability.
- Some individuals have misunderstood regulations that apply to retail stores to mean that schools may not require documentation of a need for masking accommodations from students or staff. This is not the case. Employees and students seeking accommodations at their places of work or study should follow the regular accommodation processes when seeking masking accommodations.
- The Code requires that schools accommodate employees and students up to the point of undue hardship in administering masking requirements. Schools should be aware of the difference between masking exemptions and masking accommodations. Appropriate accommodations may be available to address a student or employee’s needs while maintaining health and safety and stopping short of providing a complete exemption. Possible accommodations may include complete exemptions, periodic breaks from masking, installing physical barriers, alternate workspace arrangements, remote work, remote learning and alternative forms of personal protective equipment. Individual needs for accommodation must be assessed on a case-by-case basis.
If you have further questions regarding masking in schools, please reach out to the author or one of the key contacts below.
