Foley v. Apple Canada Inc. and others, 2025 BCHRT 9
Date Issued: January 8, 2025
File(s): CS-004386
Indexed as: Foley v. Apple Canada Inc. and others, 2025 BCHRT 9
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:
Valerie Ann Foley
COMPLAINANT
AND:
Apple Canada Inc. and Reuben Harden and Ellen D’Souza
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Ijeamaka Anika
On their own behalf: Valerie Ann Foley
Counsel for the Respondents: Erin Chamberlain
I INTRODUCTION
[1] Valerie Ann Foley alleges she was denied service on two occasions when she went to an Apple Canada Inc. store. Ms. Foley identifies as a person with disabilities and says she cannot wear a mask because of her disabilities. She says Apple store staff, Reuben Harden and Ellen D’Souza [together with Apple, the Respondents ] would not let her into the store or serve her even though she told them she had a doctor’s note and was medically exempt from wearing a mask. Therefore, Ms. Foley says the Respondents discriminated against her in services on the basis of disability pursuant to s. 8 of the Human Rights Code.
[2] The Respondents deny discriminating and apply to dismiss the complaint under s. 27(1)(c) of the Code . The Respondents argue that there is no reasonable prospect that the complaint will succeed because Ms. Foley has not provided evidence of a disability-related barrier to wearing a face mask. The Respondents argue that, in any event, they took steps to accommodate Ms. Foley but could not reasonably do so because Ms. Foley failed to participate in the accommodation process.
[3] Ms. Foley has not submitted a response to this dismissal application. I am satisfied, on the materials before me, that Ms. Foley had notice of the dismissal application.
[4] For the following reasons, the application to dismiss the complaint is granted and the complaint is dismissed. 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.
[5] I apologize to the parties for the delay in issuing this decision.
II BACKGROUND
[6] This background is taken from the materials filed by the parties. Where there are disputes in the evidence, I indicate it below.
[7] Apple operates a retail store in Richmond BC.
[8] On March 18, 2020, the Province of BC declared a state of emergency because of the COVID‐19 pandemic. Apple reopened its stores in June 2020 after a period of closure due to the COVID-19 pandemic. The Respondents say that upon reopening, Apple implemented a policy to limit the spread of COVID-19. Apple’s “Reopening Store Leadership Guide” included a Mask Policy requiring all persons entering its stores to wear a mask. Under the Mask Policy, children under the age of two and anyone with trouble breathing or otherwise unable to remove the mask without assistance were exempt from the mask requirement. If a customer was not wearing a mask, employees were instructed to offer a mask. If a customer chose not to wear one, they could not enter the store and would be offered alternative shopping options including:
a. Online shopping or telephoning Apple’s contact centre
b. Shopping on the Apple Store app
c. Contacting AppleCare for their service and support needs
d. Contactless, free delivery
e. Curbside pickup
f. Store front services including making a run for a product a customer wishes to purchase and completing the sale outside the store
[the accommodation options ]
[9] The Respondents say that if a customer’s phone required servicing, the customer provided the phone to the employee stationed at the store’s entrance for service, the employee took the device inside the store where an Apple technician completed the service and called the customer to review the available options for any required repair. The Respondents say the whole process would generally take 10-15 minutes and the customer was asked to wait outside the store in the meantime. Following the technician’s review, an employee would provide the customer with additional details regarding the service.
[10] The Respondents also had a policy in place to maintain safety and security. In accordance with its safety policy, when dealing with a customer who was being abusive or threatening, employees were instructed to ask the customer to stop their behaviour, or they would be asked to leave the store. If the customer did not stop, they were asked to leave the building and told employees would contact the police if the customer did not leave. Apple’s “Customer Conduct Store Policy” provides that employees can immediately call mall security in the event of escalating interactions with customers.
[11] The Respondents say on May 17, 2020, Apple communicated its Mask Policy to customers in an online notice. They say there was also an easel outside the Apple Store outlining Apple’s health and safety measures including the Mask Policy.
[12] On January 8, 2021, the province, by order of the Minister of Public Safety and Solicitor General under the Emergency Program Act , Ministerial Order No. M012 ordered that face coverings be worn in indoor spaces except for those who were unable to do so due to a medical condition. The Ministerial Order also required individuals not to engage in abusive or belligerent behaviour towards others in relation to complying with the masking requirements.
[13] On two occasions (June 2 and June 4, 2021), Ms. Foley went to the Apple store to fix her phone. There is no dispute concerning the sequence of events. On both occasions: Ms. Foley joined the line to enter the Apple store without wearing a mask; staff asked Ms. Foley to comply with the Mask Policy; Ms. Foley said she was exempt from wearing a mask; staff did not allow her to enter the store, and she left.
[14] Some of the details of those interactions are in dispute.
[15] I understand from Ms. Foley’s complaint form that she spoke with Apple Care before she went to the Apple store. She says she was provided a case number and told to call when she arrived. Ms. Foley says that when she arrived at the store, she was denied service at the entrance by the individual respondents. Ms. Foley says she telephoned Apple Care and made another appointment. In her complaint form, Ms. Foley does not distinguish between her experiences during the first and second visit except to say that at her second visit, she was surrounded by security. She says she was taunted and humiliated for having a disability.
[16] The Respondents say Ms. Foley called AppleCare to get help for her phone and she was referred to the store. They say that at her first visit, Ms. Foley was told she could not enter the store without wearing a mask and she walked away from the store before she could be offered any alternative service options. Ms. Foley called AppleCare again later that day and stated that she was denied service because she was not wearing a mask. She told AppleCare she had a medical card and doctor’s note confirming her exemption.
[17] On June 4, 2021, Ms. Foley returned to the Apple store. The Respondents say Ms. Foley joined the check-in line outside the store and declined to wear a mask. An Apple store security guard informed Ms. Foley that she could not enter the store without wearing a mask. At this time, Ms. D’Souza says she asked Ms. Foley to step to the side to continue the conversation. Ms. D’Souza says that when she told Ms. Foley that she needed to wear a mask to enter the store, Ms. Foley began yelling and told her that she was discriminating against her condition and that she was going to chemotherapy.
[18] Ms. D’Souza says she advised Ms. Foley as follows:
a. Apple could help her online or over the phone where a technician in their diagnostic team could run diagnostics and create repair notes so that the phone could be taken in for repair; or
b. She could leave her phone with Ms. D’Souza so that diagnostics could be run inside the store while Ms. Foley waited outside.
[19] The Respondents say Ms. Foley declined the options provided. They say Ms. Foley was belligerent, screaming and refusing to listen. They say that Ms. D’Souza called mall security as she was unable to de-escalate the situation and felt personally threatened. A senior manager stepped in to assist Ms. D’Souza and informed Ms. Foley that the store could no longer assist her because of her behaviour. Ms. Foley began walking away as mall security approached, yelling that it was not fair, it was discrimination, and it was despicable. The Respondents say Ms. Foley also stated: “Ok you guys will be getting served” and “I’m so fucking done with these retards and their masks.” The Respondents say the interaction was captured on the video which Ms. Foley disclosed to the Respondents in this proceeding.
[20] Ms. D’Souza says she saw Ms. Foley leaving the mall with mall security following behind her.
III DECISION
[21] In this application, the burden is on the Respondents 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).
[22] 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.
[23] 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.
[24] 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.
[25] To prove her complaint at a hearing, Ms. Foley 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. Foley 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.
[26] If she does that, the burden will shift to the Respondents to justify the impact as a bona fide reasonable justification. If the Respondents justify the impact, there is no discrimination.
[27] I find that I can decide this application by determining whether the Respondents are reasonably certain to prove at a hearing that they discharged their obligation to reasonably accommodate Ms. Foley. For that reason, I will assume without deciding that Ms. Foley has taken the elements of her case out of the realm of conjecture.
[28] 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. Foley services at a hearing, the Respondents would have to prove that: (1) they adopted the standard for a purpose rationally connected to the function being performed; (2) they 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 the accomplishment of that legitimate purpose. This third element encompasses the Respondents duty to accommodate Ms. Foley to the point of undue hardship and Ms. Foley’s duty to cooperate in the accommodation process: Grismer at para. 20 .
[29] As noted above, Ms. Foley has not submitted a response to this dismissal application. I am satisfied that Ms. Foley had notice of the application. Nonetheless, I have considered the whole of the evidence before me, and I am satisfied that the Respondents are reasonably certain to establish the three elements at a hearing. I set out my reasons next.
[30] I do not doubt that the Respondents are reasonably certain to prove the first and second elements of Grismer at a hearing. The Respondents say Apple adopted the COVID-19 Protocols in accordance with the provincial public health orders. There is also no dispute that Apple adopted the COVID-19 Protocols in an honest and good faith belief that it was necessary to provide a safe environment for its employees and customers given the surrounding circumstances of the COVID-19 pandemic.
[31] The crux of the issue is the third element of the test: whether the Respondents are reasonably certain to prove that they accommodated Ms. Foley to the point of undue hardship. The Court has stated that “the search for accommodation is a multi-party inquiry”: Central Okanagan School District No. 23 v. Renaud , 1992 SCR 970. Renaud stands for the proposition that while the duty to accommodate rests principally with a service provider, service users may also have obligations. For example, the duty to cooperate in the accommodation process.
[32] Therefore, I must consider whether the Respondents are reasonably certain to prove that they discharged their duty because Foley failed to facilitate the accommodation process: Renaud . What is reasonable and what constitutes accommodation short of undue hardship is fact specific and will turn on the specific circumstances of each case. Like all those seeking an accommodation, Ms. Foley is entitled to a reasonable accommodation, not a perfect one: Coelho v. Lululemon Athletica Canada Inc ., 2021 BCHRT 156; Renaud at p. 994‐995.
[33] For the reasons below, I am satisfied that the Respondents are reasonably certain to prove that they fulfilled their duty to provide Ms. Foley with reasonable accommodation.
[34] I must only consider the evidence before me and cannot speculate about what evidence might be called at hearing: Chan at para. 77. In the Respondents’ account, during her first visit, Ms. Foley left before the Respondents could provide her with any accommodation options and on her second visit, they say Ms. D’Souza told Ms. Foley how she could be accommodated, and Ms. Foley became irate. Ms. Foley did not address in her complaint whether she gave employees time to offer her accommodation (or whether she asked for a specific accommodation) on her first visit. Similarly, she did not include in her complaint any particulars about whether Ms. D’ Souza offered to accommodate her or why those accommodations were unreasonable. Accordingly, the Respondents’ version is undisputed. I find it is reasonably certain that the Respondents will establish that Ms. Foley failed to participate in the accommodation process as required and expected, thereby bringing the Respondents duty to an end. As in Coelho, the complaint has no reasonable prospect of success because Ms. Foley “thwarted the accommodation process” when she failed to cooperate with the accommodation process: para. 34.
[35] Contrary to Ms. Foley’s argument, an exemption from wearing a mask did not mean that she could disregard the Mask Policy and enjoy “unfettered, maskless physical access” to the Apple store: Coelho at para. 31. Rather, human rights protections under the Code obliged the Respondents to accommodate Ms. Foley to a point short of undue hardship in order to mitigate any disability-related impact its Mask Policy had on her. That Ms. Foley may have preferred to enter the store to get her phone fixed does not make the Respondents accommodation proposals inherently unreasonable: Coelho at para. 33.
[36] Accordingly, I am satisfied that there is no reasonable prospect the complaint would succeed at a hearing.
IV CONCLUSION
[37] The complaint is dismissed under s. 27(1)(c).
Ijeamaka Anika
Tribunal Member