Leach v. OSO Negro, 2025 BCHRT 55
Date Issued: February 28, 2025
File(s): CS-003490
Indexed as: Leach v. OSO Negro, 2025 BCHRT 55
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:
Shelby Leach
COMPLAINANT
AND:
OSO Negro
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
On their own behalf: Shelby Leach
Agent for the Respondent: Jon Meyer
I INTRODUCTION
[1] This complaint arises in the unique circumstance of the COVID-19 pandemic, where there was great uncertainty and heightened concern across the Province of British Columbia and the world. At the time, the Province had mandated mask wearing in all public indoor spaces in response to the Covid-19 pandemic.
[2] Shelby Leach alleges OSO Negro discriminated against her in the area of services customarily available to the public on the grounds of physical disability, contrary to s. 8 of the Human Rights Code . Specifically, she alleges that the café refused to serve her because she was medically exempt from having to wear a mask. Ms. Leach asked to make an order to go, but OSO Negro refused her request for accommodation. She says OSO Negro staff called the police, and she was aggressively arrested.
[3] OSO Negro denies discriminating. They say Ms. Leach would not comply with the requirement to wear a mask inside the café; she did not prove that she had a medical exemption to wearing a mask, and it was not they but another customer who was in the café at the time who called the police. They apply to dismiss the complaint under s. 27(1)(c) of the Code on the basis it has no reasonable prospect of success because 1) Ms. Leach has not set out information about her physical disability or why it prevented her from wearing a mask, and 2) they offered to accommodate her by serving her outside.
[4] Ms. Leach did not respond to the application, but I am satisfied she had notice of the application and an opportunity to respond.
[5] The only issue I need to decide is whether Ms. Leach has taken a disability-related barrier to wearing a mask out of the realm of conjecture.
[6] 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
[7] In March 2020, the Province declared a state of emergency because of the COVID‐19 pandemic. In November 2020, the Province mandated wearing a mask in all indoor public spaces.
[8] On December 31, 2020, during the pandemic, Ms. Leach visited the OSO Negro café. She was denied entry because she was not wearing a mask, and refused to wear a mask after OSO Negro told her that a mask was required for entry.
[9] The staff asked her to show them a card stating that she was medically exempt from wearing a mask. She did not show them that she had a medical exemption. She advised the staff that such cards do not exist and showed them “documentation…of how masking was harmful” to her. The documentation did not have her name on it, and staff told her that it was not sufficient to allow her an exemption to enter the café. The manager told her that she was trying to keep her staff safe.
III DECISION
[10] OSO Negro applies to dismiss Ms. Leach’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on OSO Negro to establish the basis for dismissal.
[11] 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.
[12] 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 .
[13] 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 .
[14] 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.
[15] To prove her complaint at a hearing, Ms. Leach will have to prove that she has a physical disability, that OSO Negro treated her adversely, and that the adverse treatment was connected to her physical disability: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. She will need to prove that her physical disability interfered with or prevented her from wearing a mask on the date the complaint arose: McLintock v. Starbucks Coffee Company and another , 2023 BCHRT 200 at para. 20. Ms. Leach is not required to prove the complaint at this time; rather, the evidence must take the complaint “out of the realm of conjecture”: Berezoutskaia at para. 24 .
[16] Based on the materials before me, I am persuaded that Ms. Leach has no reasonable prospect of establishing that she has a disability that interfered with her ability to wear a mask
[17] OSO Negro says Ms. Leach has not set out information about a disability or why a disability prevented her from wearing a mask.
[18] Of her physical disability, Ms. Leach only says that she was “exempt” from wearing a mask “due to health implications”. She does not provide any details about the “documentation” she shared with OSO Negro staff.
[19] Ms. Leach has not provided the Tribunal with any evidence that she has a physical disability, let alone a physical disability that prevents her from wearing a mask. She has not identified her disability or why the disability prevents her from wearing a mask. This Tribunal has stated, “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 Customer v. The Store, 2021 BCHRT 39 at para. 14 . It is not sufficient to simply assert one has a physical disability and therefore one cannot wear a mask. With no information before me to take this part of the case out of the realm of conjecture, I am satisfied there is no reasonable prospect Ms. Leach will prove a physical disability prevented her from complying with OSO Negro’s mask policy.
[20] I note the credibility issues raised by the conflicting assertions about what happened on December 31, 2020, that gave rise to OSO Negro denying Ms. Leach service, whether it called the police, and whether it offered her reasonable accommodations at that time. As this application turned on the specific issue of whether Ms. Leach has no reasonable prospect of proving that she had a disability-related barrier to wearing a mask at OSO Negro that day, these are not foundational issues in this application that require a hearing to resolve. Therefore, I am not persuaded a hearing is required.
IV CONCLUSION
[21] The application is allowed. The complaint is dismissed pursuant to s.27(1)(c) of the Code .
Laila Said Alam
Tribunal Member