Kho v. M Café, 2025 BCHRT 32
Date Issued: February 12, 2025
File(s): CS-005917
Indexed as: Kho v. M Café, 2025 BCHRT 32
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:
Boi Kho
COMPLAINANT
AND:
M Café
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
On their own behalf: Boi Kho
Agent for the Respondent: Simon Chan
I INTRODUCTION
[1] In March 2021, during the COVID-19 pandemic, Boi Kho went to M Café restaurant to eat. She was not wearing a mask. Ms. Kho says she has a disability-related barrier to wearing a face mask. She says that an M Café waitress and the restaurant manager would not let her into the restaurant even though she told them she had a doctor’s note and was medically exempt from wearing a mask. Ms. Kho says M Café discriminated against her in services on the basis of disability pursuant to s. 8 of the Human Rights Code.
[2] M Café denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Human Rights Code. At the time of Ms. Kho’s visit, M Café says it had a mandatory mask-wearing policy in response to the COVID-19 pandemic. M Café argues that there is no reasonable prospect that the complaint will succeed because it did not know Ms. Kho had a disability or exemption from wearing masks.
[3] For the following reasons, I deny the dismissal application. 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.
[4] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[5] This background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[6] M Café operates a restaurant in Coquitlam, BC.
[7] On March 18, 2020, the Province of BC declared a state of emergency because of the COVID‐19 pandemic. M Café says that under the Emergency Program Act and the Public Health Officer’s guidance at the time, it implemented an indoor masking policy. M Café did not provide the Tribunal with details of its COVID-19 policy.
[8] In March 2021, Ms. Kho went to M Café with her friend [DK] . There is no dispute that at the entrance of M Café, a waitress told Ms. Kho to put on a mask. However, some details of that interaction are in dispute. Ms. Kho says that she told the waitress that she had a medical condition and was exempt from wearing a mask. She says she offered to show her doctor’s note, the waitress repeated that everyone must wear a mask and “without a mask, we would not serve you.” DK says he and Ms. Kho then asked to be seated in an empty area of the restaurant to the right of the entrance, but M Café’s manager refused and asked them to leave.
[9] M Café has a different version of that interaction. It says that when the waitress told Ms. Kho and DK to put on a mask before entering the restaurant, Ms. Kho and DK began yelling. It says Ms. Kho did not tell the waitress that she had a medical exemption or that she had a medical condition preventing her from wearing a mask. M Café says that after the conversation with the waitress, Ms. Kho and DK remained in the waiting area and continued to cause a disturbance to staff and customers.
[10] Ms. Kho and DK left the restaurant. Later the same day, Ms. Kho returned to M Café by herself to ask about its mask policy. The details of this interaction are also in dispute. Ms. Kho says she asked to see the manager. She says she told the manager that she was denied entrance to M Café earlier that morning and that she was exempt from mask wearing due to a medical condition. She says the manager told her that M Café had a “no mask, no service” policy and that they could not serve her without a mask. M Café disputes this and says that when Ms. Kho returned to the restaurant, she was asked to put on a mask prior to entering the restaurant and she refused without stating that she was medically exempt from wearing a mask. Rather, she asked for the names of the waitress and the manager and stated that she would be filing a complaint about racial discrimination.
III DECISION
[11] In this application, the burden is on M Café, the respondents in this complaint, to show that the complaint should be dismissed because there is no reasonable prospect that it would succeed after a full hearing: s. 27(1)(c).
[12] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[13] 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 v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77.
[14] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission , 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 at para. 27. The threshold to move the complaint forward to a hearing is low.
[15] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para. 67.
[16] To prove her complaint at a hearing, Ms. Kho will have to prove that (1) she has a disability, (2) she was adversely impacted in services, and (3) that her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. Ms. Kho is not required to prove the complaint at this time but need only point to some evidence capable of taking the complaint “out of the realm of conjecture”: Berezoutskaia at para. 24.
[17] If she does that, the burden will shift to M Café to justify the impact as a bona fide reasonable justification. If M Café justifies the impact, there is no discrimination.
[18] I find that I can decide this application by determining whether M Café is reasonably certain to prove at a hearing that it discharged its obligation to reasonably accommodate Ms. Kho. M Café does not dispute that Ms. Kho has a disability or that she was adversely impacted in the restaurant because of her disability. For that reason, I will assume without deciding that Ms. Kho has taken the elements of her case out of the realm of conjecture.
[19] The Supreme Court of Canada set out the three-stage analysis for determining a bona fide reasonable justification defence in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) , 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [ Grismer ]. To justify denying Ms. Kho services at a hearing, M Café would have to prove that: (1) it adopted the standard for a purpose rationally connected to the function being performed; (2) it adopted the standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate purpose; and (3) the standard is reasonably necessary to accomplish that legitimate purpose. This third element encompasses M Café’s duty to accommodate Ms. Kho to the point of undue hardship.
[20] Although M Café has not provided the Tribunal with details of its COVID-19 policy, at this stage, I do not doubt that M Café is reasonably certain to prove the first and second elements of Grismer at a hearing. M Café says it implemented a mask policy in accordance with the provincial public health orders. There is no dispute that M Café implemented the public health order in an honest and good faith belief that it was necessary to provide a safe environment for its staff and restaurant patrons given the surrounding circumstances of the COVID-19 pandemic.
[21] The crux of the issue is the third element of the test: whether M Café is reasonably certain to prove that it took all reasonable steps to accommodate Ms. Kho to the point of undue hardship, specifically whether Ms. Kho engaged in the accommodation process by informing M Café staff that she had a disability or by offering to show her medical note stating that she could not wear a mask.
[22] I am not persuaded by M Café’s argument that it is reasonably certain to prove that it could not accommodate Ms. Kho because she did not disclose her disability or medical exemption. The issue of whether Ms. Kho disclosed her disability or medical exemption from mask wearing is a foundational issue of credibility about what happened when Ms. Kho and DK went to the restaurant. I am unable to reconcile this issue based on corroborative affidavit or contemporaneous evidence: Smyth v. Loblaw, 2017 BCHRT 73 at para. 41. The parties dispute whether Ms. Kho told any of M Café’s staff that she had a disability that prevented her from wearing a mask. They also dispute whether Ms. Kho stated that she had a medical note. M Café has not provided any corroborating evidence of its version of the events. The only corroborating evidence before me is from DK who says they were denied entrance to the restaurant and the manager did not offer any accommodation or alternative. DK also states that when they asked if they could be seated in an empty area of the restaurant, M Café staff refused. M Café has not provided any corroborating evidence of the waitress who Ms. Kho initially spoke to.
[23] Based on the materials before me, I find that a hearing on the merits is required, where sworn evidence is received and subjected to cross-examination. As mentioned above, where there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti at para.67. For that reason, cases like this one, which appear to turn on disputed facts, are not well suited for a dismissal application under s. 27(1)(c): U v. S and others , 2018 BCHRT 88 at para. 46.
[24] I am not finding that Ms. Kho will succeed in her case at a hearing, I am merely finding that on the evidence before me the complaint rises above the level of conjecture and a hearing is required to decide the merits of the complaint. At a hearing, Ms. Kho will need to prove on a balance of probabilities that she has a disability and that her disability prevented her from wearing a mask in M Café on the day in question. If she is unable to do that, she will not have made out her case and her complaint will be dismissed.
IV CONCLUSION
[25] I deny the application to dismiss the complaint.
Ijeamaka Anika
Tribunal Member