Child (by the Parent) v. Dance School and another, 2024 BCHRT 175
Date Issued: June 5, 2024
File: CS-002910
Indexed as: Child (by the Parent) v. Dance School and another, 2024 BCHRT 175
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Child (by the Parent)
COMPLAINANT
AND:
Dance School and Owner
RESPONDENT
REASONS FOR DECISION
APPLICATION TO Dismiss a complaint
Section 27(1)(c)
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Tribunal Member: |
Laila Said Alam |
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On behalf of the Child: |
Parent |
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Counsel for the Respondent: |
Rosalyn Lau |
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I INTRODUCTION
[1] I have anonymized the parties’ names in this decision to protect the Child’s privacy. I explain my rationale later in the decision.
[2] A parent [Parent] filed this complaint on behalf of their minor child [Child]. The Parent says the owner [Owner] and Dance School [together, Respondents ] discriminated against the Child in the area of services on the basis of physical and mental disability, contrary to s. 8 of the Human Rights Code. In particular, the Parent alleges that the Respondents failed to accommodate the Child’s disability-related barrier to wearing a mask during a singing class on December 8, 2020, and subsequently excluded the Child from future classes at the Dance School because of his disability.
[3] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code on the basis that there is no reasonable prospect the complaint will succeed. The Respondents argue that the Complainants have not established that the Child has a disability that interferes with his ability to wear a mask, or that the adverse treatment was connected to a disability. The Respondents also argue that they are reasonably certain to establish the defense of bona fide and reasonable justification for their conduct because they could not have known that the Child had a disability that required accommodations; they offered the Child reasonable accommodations after learning of the Child’s disabilities, and the Parent refused their offer, and; they had a non-discriminatory reason for excluding the Child from future classes at the Dance School.
[4] I find that I can decide this application on the issue of whether the Respondents are reasonably certain to prove that they satisfied their duty to accommodate the Child. First, I will consider the Respondent’s argument that they were not aware of or could not reasonably have been aware of the Child’s disability-related barrier to wearing a mask on or before the December 8, 2020 class. Second, I will consider the Respondent’s argument that once they learned of the Child’s disability-related barrier to wearing a mask, they offered the Child a reasonable accommodation, and the Parent refused their offer.
[5] For the following reasons, I allow the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[6] The Owner owns, operates, and instructs at a dance school [Dance School].
[7] In March 2020, the Province of British Columbia declared a state of emergency because of the COVID-19 pandemic. As a result, the Dance School was closed from March 13, 2020, to July 5, 2020, for in-person classes. Sometime in late April 2020, the Dance School began offering online classes.
[8] The Dance School resumed in-person classes on July 6, 2020. At the same time, the Dance School adopted a mask policy which, amongst other requirements, required anyone who entered the public areas of the Dance School to wear a mask [Mask Policy]. The Mask Policy was posted on the Dance School’s Facebook page on July 7, 2020, and August 26, 2020.
[9] Sometime in September 2020 or October 2020, the Parent registered the Child in the Dance School’s singing class. The Parent completed the Child’s registration form on the Child’s behalf. The front page of the registration form contains a section for the person registering to indicate “any past injuries” and “allergies and medical information.” These are Yes/No questions. If the section is answered in the affirmative, the form states “please specify.” The form includes space for the person completing the registration form to provide details of any past injuries, allergies, and medical conditions of the student. This section of the Child’s form is blank.
[10] Between October 2020 and November 2020, the Child attended several in-person singing classes while the Mask Policy was in place. It is not in dispute that neither the Parent nor the Child advised the Respondents that he had a disability or medical condition that created a barrier to wearing a mask until after December 8, 2020, when the Child wore a mask for the duration of a singing class.
[11] On November 19, 2020, the Province issued a public health order requiring masks to be worn in all public indoor spaces. The Dance School revised its Mask Policy to require all students to wear masks when inside the Dance School, including the studio. The revised mask policy was attributed to “new public health orders.” [Revised Mask Policy]. The Dance School posted signs and notices around the Dance School and on their Facebook page to notify their students, parents, and the public about the Revised Mask Policy.
[12] On November 24, 2020, the Province ordered the suspension of certain indoor group activities, including those at the Dance School. The same day, the Respondents messaged the Parent to inform her of the Province’s announcement and that the Dance School would be closed for two weeks. The Respondents switched to online classes exclusively.
[13] On December 2, 2020, the Parent responded to the Dance School. She thanked the Dance School for reaching out and wrote that she preferred her son to attend class in-person rather than online.
[14] On December 3, 2020, the Province allowed in-person indoor group activities to resume for people under the age of 19 years old if COVID-19 safety protocols were put in place.
[15] The Dance School reopened on December 7, 2020. The COVID-related safety protocols that were put in place required: all students to wear a mask while in class; all staff to discuss the Revised Mask Policy in class, and; staff to offer virtual classes to students who could not attend class in-person [Protocols]. The Dance School posted the Protocols and Revised Mask Policy around the Dance School and on their Facebook page. The Facebook post says “Just reminding everyone that classes ARE open again as of this week. Hope to see you all back. Masks still required!”
[16] Sometime on December 8, 2020, the Dance School posted the following message on its Facebook page: “Students must wear masks in the Dance School. This is a mandatory health order out of our control. If any parents or students have concerns or issue with this order, particularly with singing as we know it is difficult, we can discuss virtual options for any students in class. Please reach out to us with your inquiries. Thank-you for continuing to understand and be patient with us all at the Dance School during this pandemic.”
[17] Also on December 8, 2020, the Parent messaged the Dance School on their Facebook page asking for the link to that day’s virtual class. The Dance School advised the Parent that in-person classes had resumed, and that the Child could attend in person. The Child went to the class in-person and wore a mask for the duration.
[18] That evening, the Parent messaged the Dance School using Facebook messenger. She wrote, ““Hi, [the Child] is not able to wear mask. I [should] have been notified they have to have it when singing. I am extremely upset with you guys. You as school do realise how kids brains get out of ard especially when they sing? And with my sons condition now he has to deal with effects of it” [as written]. This message was the beginning of a back and forth between the parties that lasted throughout the day.
[19] The Respondents responded by offering the Child virtual classes. The Respondents explained that they had to implement the Revised Mask Policy to comply with the Province’s public health order, and that they had posted it on Facebook and in the school.
[20] The Parent reiterated that they should have been notified
of the Revised Mask Policy. She said had she known, she would have opted
for the Child to attend the December 8, 2020, class virtually. The Parent
referred to the Child’s “condition” and asked, “I have to deal with side
effects now?” The Parent did not specify what the Child’s condition was or
how it impacted his ability to wear a mask. The Parent’s messages contained
profanities. The Respondents continued to offer the Parent the option for
the Child to attend class online if the Child was unable to wear a mask.
[21] Shortly after the Parent sent her last message, the Parent began calling the Dance School. She called 8 times between 6:55 p.m. and 8:03 p.m. The secretary says she told the Parent that the Owner was teaching a class and couldn’t speak to her at that time. The Parent asked when the class would end, and the secretary gave the Parent the class schedule. The secretary says that during the call the Parent blamed her for injuring the Child and that it was the Dance School’s fault that her Child had a medical condition. She told the secretary that her Child has “irreversible brain injury” and that she was “rushing [the Child] to emergency.” The secretary says she apologized. The Parent allegedly yelled at the secretary, used profanities, and threatened to sue the Dance School. The secretary said she let the Parent know that she could no longer be of assistance and would let the Owner contact her as soon as possible. The secretary says she disconnected the call.
[22] Later that evening, the Parent arrived outside the Dance School during its business hours. According to the Respondents, the Parent harassed a student and reduced the student to tears, screamed profanities at Dance School staff, persistently knocked on the locked doors, and banged violently on the windows. The Parent disputes the allegations of harassing, disruptive behaviour. At the same time, the Parent states in an email to the Owner that she “would have calmed down” if the Owner had spoken to her when she attended the Dance School. It is not in dispute that the Respondents filed a police report against the Parent after this incident, and the Respondents determined that the Child would not be permitted to return to the Dance School.
[23] On December 9, 2020, the Owner emailed the Parent to respond to the Parent’s complaints. The Owner summarized the events as they understood them. The Owner reiterated that the Revised Mask Policy had been in effect since November 18, 2000. The Owner restated that at no time has the Parent given the Dance School documentation stating that the Child could not wear a mask due to a medical condition. The Owner said that the Child voluntarily wore a mask on December 8, 2020, when they entered the building and did not disclose that they could not wear a mask.
[24] The Parent responded to the Dance School by email. The Parent wrote that the Child is okay to wear masks for short periods of time, but not for extended periods. The Parent said had she known that masks were required while singing, she would have opted for the Child to attend class online. The Parent wrote, “And [of] course [the Child] will not be attending classes due to [their] inability to stand this number of time and sing in mask. [The Child’s] body was placed into this condition first time and [they] reacted sadly not well.”
[25] The Parent wrote in a follow up email that this was [the Child’s] first experience wearing a mask and singing for a prolonged period of time, “therefore no way reaction was predictable.” The Parent later writes that the Child had a severe reaction to singing in a mask.
[26] On December 16, 2020, the Child’s other parent delivered a
“Notice of Liability” to the Dance School. It stated that the Complainants
intended to sue the Respondents for causing the Child mental harm. The
Notice of Liability said, “when parents arrived to pick up their child,
[the Child] informed that was crying and stated [they were] feeling sick
and that they sang wearing the masks at all times. Subsequently minor
started having severe headaches and other side effects” [as written].
III DECISION
A. Anonymization
[27] Rules 5(6) and (7) of the Tribunal’s Rules of Practice and Procedure [Rules] deal with limiting publication of personal information. The Tribunal recognizes that complaints often involve highly personal, sensitive information. Sometimes, the privacy interests of parties or others will outweigh the public interest in access to information. To this end, the Tribunal has the power to make orders limiting the disclosure of personal information: Tenant A v. Landlord and Manager, 2007 BCHRT 260at paras. 6‐8; Lai v. Gateway Casinos and others, 2010 BCHRT 338.
[28] The strong public interest in the openness of, and access to, the Tribunal’s processes and proceedings yields only when outweighed by privacy interests: Kandola v. University of British Columbia and others (No. 3) , 2006 BCHRT 391.
[29] Consistent with the best interests of the child, the Tribunal may anonymize names on its own motion to protect the identity of minors: Rule 2(2). This complaint involves a child, highly personal medical information, and the child’s ability to wear a mask. As children are inherently vulnerable, the Rules provides a presumption that the minor’s privacy interests outweigh the public interest in access to the Tribunal’s proceeding: Rule 5(7). The Dance School is in a relatively small community and the child may be identified if the Dance School and its Owner’s name is published.
[30] To ensure the child’s identity is protected, I find it necessary to anonymize the child’s name, their parent’s name, the name of the dance school, and the name of its owner on this application.
B. Application to Dismiss
[31] The Respondents apply to dismiss this complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c).
[32] Section 27(1)(c) of the Code gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing:Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia at para. 22.
[33] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority, 2021 BCSC 2176at para. 20; SEPQA v. Canadian Human Rights Commission, 1989 CanLII 44 (SCC), [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [Hill] at para. 27.
[34] The onus is on the Respondents to establish the basis for the dismissal. They must establish either that (1) the Child has no reasonable prospect of proving the elements of his case at a hearing, or (2) the Respondents are reasonably certain to establish a defence: Purdy v. Douglas College and others, 2016 BCHRT 117at para. 50.
[35] There are two time periods related to the allegations at issue here: before and during the December 8, 2020 class, and after the December 8, 2020 class. To prove his allegations at a hearing, the Child will have to prove for each time period that he was adversely impacted in services and that his disabilities were a factor in that adverse impact: Moore v. British Columbia (Education), 2012 SCC 61at para. 33. Because my decision turns on whether the Respondents are reasonably certain to prove their conduct was justified, I assume, without deciding, that the Complainants have taken their case out of the realm of conjecture and have satisfied Moore.
[36] The Respondents argue they are reasonably certain to justify any adverse impacts by proving a “bona fide and reasonable justification.” If the impacts are justified, there is no discrimination. In my view, I can most efficiently decide this application by considering whether the Respondents are reasonably certain to prove that they met their duty to accommodate the Child for both time periods at issue here.
[37] The elements of a bone fide and reasonable justification were set out in British Columbia (Superintendent of Motor Vehicles) v British Columbia (Council of Human Rights) , [1999] 3 SCR 868 at para. 20. Applied to the circumstances of this complaint, the Respondents will have to prove:
a. the Revised Mask Policy or Protocols requirement that everyone had to wear a mask in the studio was for a purpose or goal rationally connected to the function being performed;
b. the service provider adopted the requirement in good faith; and
c. the requirement was reasonably necessary to accomplish the service provider’s purpose or goal, in the sense that it could not accommodate the complainant without undue hardship.
[38] At this stage, there is no dispute about the first two elements of this defence; rather, the focus is on whether the Respondents are reasonably certain to prove they met their obligations to accommodate the Child’s disability-related barrier to wearing a mask.
[39] I will now discuss, in turn, the Respondent’s defense that they are reasonably certain to establish that they satisfied their duty to accommodate the Child during the two time periods at issue in this complaint.
[40] For the following reasons, I am satisfied that before and during the December 8, 2020, class the Respondents are reasonably certain to establish at a hearing that they were not aware of, or could not reasonably have been aware that, the Child had a disability-related barrier to wearing a mask. As a result, the Respondents are reasonably certain to establish that their conduct before and during the December 8, 2020, singing class was justified and they did not fail to accommodate the Child’s disability-related barrier to wearing a mask.
[41] The Tribunal has held that a respondent is not responsible to accommodate a disability that it was not aware of or could not reasonably have been aware of: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 367.
[42] As I understand it, the Child’s alleged inability to wear a mask is because the Child had a “severe reaction” after wearing a mask during his singing lessons. The Parent describes the severe reaction as including headaches, a relapse episode of concussion symptoms, an inability to focus while wearing the mask and after wearing the mask, and challenges comprehending communications and expressing himself. He also cried, felt sick, and had “other side effects” after wearing the mask during the singing lesson. The Parent says that since this was the Child’s first experience wearing a mask and singing for a prolonged period, there was no way to predict that he would have a severe reaction.
[43] In this case, the Parent “does not assert that there was any express awareness” that the Child was suffering from a disability at the time of the incidents on the part of the Respondents, or even the Child and the Parent themselves: A obo B v. School District No. C and another , 2009 BCHRT 256 B at para. 95. They do not dispute that they did not disclose that the Child could not wear a mask at any time before or during the class. Additionally, the Parent says that the Child’s reaction to prolonged mask wear was unexpected. She acknowledged that, “[the Child’s] body was placed into this condition first time and [they] reacted sadly not well.” The Parent said in a message to the Dance School that since it was the Child’s first time singing in a mask for a long period of time, there was “no way reaction was predictable.”
[44] I also consider the Parent’s submission that the Dance School did not ask them to fill any registration form or ask if the student had any conditions. The Parent’s assertion is inconsistent with the material before me. The Parent completed a registration form on behalf of the Child. The Parent did not include any answer on the registration form areas to the questions of whether the student has any past injuries, allergies, and medical information that the Respondents should be aware of.
[45] In all of the circumstances, I am satisfied that the Respondents are reasonably certain to prove that they were not aware of and could not reasonably have been aware of the Child’s alleged disability-related barrier to wearing a mask on December 8, 2020. As a result, I am satisfied that the Respondents are reasonably certain to prove that their conduct was justified, and they did not owe the Child a duty to accommodate their disability-related barrier to wearing a mask on December 8, 2020. I dismiss that aspect of the complaint.
[46] I turn now to whether the Respondents are reasonably certain to establish at a hearing that they discharged their duty to accommodate the Child after learning of his disability. I am satisfied on the materials before me that they are.
[47] Like all those seeking an accommodation, the Child is entitled to a reasonable accommodation, not a perfect one: Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156; Renaudat para. 994‐995. What is reasonable is fact specific and will turn on the circumstances of a particular case: Renaud.
[48] Accommodation is a collaborative process, requiring active participation and cooperation by the Respondents and the Parent: Renaud. An accommodation may be reasonable even if it does not give full access to the service. The Parent’s responsibility would be to facilitate, and not impede, a reasonable accommodation process and proposal. For the reasons below, I am satisfied that the Respondents are reasonably certain to prove that it fulfilled its duty to provide the Child, through his Parent, a reasonable accommodation, and that duty came to an end when the Parent refused to participate in the accommodation process .
[49] The Parent messaged the Dance School after the December 8, 2020 singing class. She advised them that the Child could not wear a mask while singing. In response, the Respondents offered the Child to attend singing class virtually. They did so multiple times. The Parent responded to the Dance School’s various offers to accommodate the Child’s disability related-barrier to wearing a mask with profanity, and demanded to know why she had not been informed of the Revised Mask Policy. I note that while she wrote in her message that she would have opted for a virtual option had she known that he had to wear a mask on December 8, 2020, she does not accept the Dance School’s multiple offers for the Child to attend subsequent classes virtually.
[50] Here, the Respondents offered the Child virtual singing classes as soon as the Parent notified them that the Child had a disability-related barrier to wearing a mask. The Parent, on behalf of the Child, had an obligation to participate in the accommodation process, and to accept a solution that was reasonable: Renaud, at para. 944-945. The Respondents are reasonably certain to prove that the Parent did not accept the multiple accommodation offers. The Respondents say that they had other accommodation options they could have offered, including granting an exemption to the Child wearing a mask in class. The Respondents are also reasonably certain to prove that the Parent’s escalated response ultimately thwarted the accommodation process.
[51] Overall, I am satisfied that if this complaint proceeded to hearing, the Respondents are reasonably certain to prove that they discharged their duty to accommodate the Child. Accordingly, I am satisfied that there is no reasonable prospect the complaint would succeed at a hearing. The complaint is dismissed in its entirety pursuant to s. 27(1)(c).
IV CONCLUSION
[52] The application to dismiss the complaint is allowed.
Laila Said Alam
Tribunal Member