The B.C. Human Rights Tribunal has dismissed a complaint from a Costco shopper in Nanaimo who told staff during the COVID-19 pandemic that she couldn't wear a mask, but shopped there several times afterward while wearing a mask.
The tribunal accepted Costco Wholesale Canada's application to dismiss the complaint from Jae Lazar stemming from an incident on Dec. 16, 2020. The tribunal made its ruling April 29 and the decision was published this week.
The B.C. Ministry of Health mandated masks to reduce the spread of COVID-19 and while people with certain health conditions were initially excluded from the mandate, increased infections led to a change in November 2020, with Costco offering face shields among other accommodations.
At the checkout, the complainant was told masks were mandatory, at which time "her support person tied a face mask onto her and she completed her purchase." The complainant maintained that Costco singled her out and staff intimidated her, "causing her a panic attack, burning fever, distorted vision, and shortness of breath," according to the tribunal's decision.
The complainant said she lives with "hypophosphatemic rickets, serious compound brain injuries, seizures and vertigo, post-traumatic stress disorder, an anxiety/panic disorder, claustrophobia, and comprehension difficulties."
Costco, in its application to have the complaint dismissed, contended that the shopper had "no reasonable prospect of proving that she has a disability-related barrier to wearing a face covering," the ruling stated.
The tribunal noted that additionally, "[she] would have to establish that she has a disability, that Costco treated her adversely, and that the adverse treatment was connected to her physical or mental disability."
Laila Said Alam, tribunal member, stated that the complainant is reasonably certain to establish that she has a disability; however, the tribunal is not satisfied that the complainant is reasonably certain to establish that her disabilities interfere with her ability to wear a face covering.
The tribunal also noted that the shopper wore a "see-through, breathable mesh mask" in subsequent trips to Costco – she shopped there 10 times between November 2020 and October 2021.
"She does not differentiate how she was able to tolerate this mask in light of her submission that she cannot tolerate anything near her eyes, on or over her face, especially near her nose, mouth, and airway … Absent an explanation for why she was unable to wear a face covering [originally] and the mask she wore subsequently. I am satisfied there is no reasonable prospect her complaint will succeed," the tribunal member said.
