Kayla Bergsson Talks on Danish Podcast About Human Rights in Times of Crisis
Area – Accommodation, Service, & Facility
A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
COVID-19 Amounts to Disability & Employers Must Accommodate Employees Amidst the Crisis, BC Human Rights Commissioner States
On March 23, 2020, BC’s Human Rights Commissioner Kasari Govender released a statement on COVID-19, saying that in her view, COVID-19 amounts to a disability. While she recognized that in the rapidly changing circumstances, there has not been time for courts of the BC Human Rights Tribunal to weigh in on the matter, she was prepared to provide her opinion. She gave the following reasoning:
The seriousness of this illness – and the potential stigma that attaches to it – make it more akin to the legal protections that apply to HIV than to the common cold. Therefore, discrimination on the basis of someone having (or appearing to have) COVID-19, is prohibited under the Code except where the duty bearer can justify such treatment (for example, to prohibit or diminish the transmission of the virus).
Commissioner Govender also asserted that in addition to the BC Human Rights Code protecting people with the virus from being discriminated against, it also protects people from being discriminated against based on the ethnicity, place of origin, race, colour, or ancestry. This means employers, landlords, and service providers “cannot discriminate against someone on the basis of whether a person comes from (or appears to come from) a COVID-19 hotspot such as Italy or China.”
Additionally, she stated, discrimination based on family status is protected. This means that with the closure of daycares and schools, duty bearers must accommodate parents so that they can ensure their children are cared for.
According to Commissioner Govender, employers have a number of duties in the midst of COVID-19. They cannot make discipline or firing decisions based on someone having (or exhibiting symptoms of) COVID-19 (although they can lay employees off if there is not enough work for the as a result of the impacts of COVID-19). They must accommodate employees that may have COVID-19, or are particularly vulerable to COVID-19 (for example if they are elderly or immunocompromised) by providing flexible arrangements, such as working from home.
Commissioner Govender also presented a survey for citizens to complete in order to assist her with carrying out her duties and advocate for people facing discrimination during the pandemic. The survey asks about how your human rights are being impacted during COVID-19 and you are encouraged to fill it out.
Tribunal Allows Timely Complaint About Rejection of Assistance Dog
The Complainant in Vanderhoek by Favell v. Strata Plan No. KAS742, Lavelle Vanderhoek, reports having depression and hearing loss. When her neighbour passed away and left her their dog, the Respondent Strata began raising issues. Vanderhoek filed a human rights complaint against the Strata for allegedly discriminating against her in services based on her mental and physical disability. The Human Rights Tribunal decided that the complaint was filed on time.
The BC Human Rights Code section 22 (1) requires human rights complaints to be filed within one year of the alleged contravention. According to section 22(2), if the complainant is alleging a continuing contravention, the complaint “must be filed within one year of the last alleged instance of the contravention.”
The Strata raised issues with the dog in mid-2017. According to Vanderhoeck, someone from the Strata said in October, 2017, that she would be sued if she did not get rid of the dog. Vanderhoek argued her case for keeping the dog before the Strata in a hearing during December, 2017. Then, in January, 2018, she was told she could keep the dog if she produced a “Guide Dog and Service Dog Certification” by no later than April 2, 2018. In September, 2018, the Respondents sent Vanderhoek a letter stating that the Strata voted against a bylaw change that would allow owners to have pets. Vanderhoek filed her complaint on March 18, 2019.
Tribunal Member Steven Adamson decided that the complaint was filed on time. This was based on the September, 2018 letter from the Strata constituting a new decision. The Strata also acknowledged its previous deadline of April 2, 2018 in the letter.
The Tribunal considered whether the events in 2017 to 2018 were part of a “continuing contravention” and ruled that they were.
Human Rights Tribunal Agrees to Hear Complaint from Stay at Home Mom that BC Speculation Tax Sets Women Back Many Decades
In a news article published by CBC, Victoria BC Complainant Melany Startek alleges that BC’s speculation and vacancy tax discriminates against stay at home parents (who are most often women) because her contributions of raising a family, volunteering, and community involvement are not considered in the assessment regarding implementation of the tax.
Since those aspects of her life are not considered, and her husband works in the US, she is considered a “satellite” of her husband and an “untaxed worldwide earner” in a “vacant” home. To the contrary, Ms. Startek is a BC resident. She lives in her home full time raising her children and is not a “speculator.” If the work that she does at home were valued, she would not be considered someone who makes less than 50% of the household income and this wouldn’t be the case. Instead, she’s been hit with a $13,250 tax bill for 2019.
The tax was designed to target foreign speculators who leave properties empty while they live and pay taxes abroad.
Startek’s lawyer told CBC that the tax has made certain family the scapegoats of BC and that if the Human Rights complaint is successful, it could open up the government to a realm of human rights complaints.
Complaint About Hair Salon's Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed
In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.
When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.
X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.
Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:
[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.
[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.
Complaint About Hair Salon’s Alleged Refusal to Provide Hair Cut to Transgender Woman Dismissed
In reasons for decision regarding X v Hot Mess Hair Salon (No 2), 2020 BCHRT 42, the BC Human Rights Tribunal dismissed a complaint against Hot Mess Hair Salon for allegedly refusing to provide a transgender woman hair style and cut services.
When complaint X inquired on a hair stylist’s Facebook page about pricing for a style and cut, the stylist replied that she only does women’s hair. When the complainant stated “actually I’m a girl ha, ha (it happens a lot lol)” and then went on to ask about availability, she received no answer. It appeared to her that the stylist blocked her from Facebook.
X then searched for the stylist on the internet and found that she worked for Hot Mess. X contacted Hot Mess to express her frustration, the owner apologized, assured her that she had not been blocked (she said the stylist’s Facebook page had been “locked”), and offered her a free hair style and cut. The stylist did the same. X refused and filed the Human Rights Complaint.
Ultimately, the tribunal dismissed the complaint, finding that X did not establish a connection between her gender identity and her inability to schedule a hairstyling appointment. It stated the following:
[32] In order for the complaint to succeed it would be necessary for the Tribunal to draw the inference that her gender was at least a factor in her being prevented from making an appointment to have her hair styled and cut. I am unable to draw such an inference for the following reasons.
[33] I have the evidence of X that she is satisfied that the stylist was not actually locked out of Facebook. Unfortunately, her reasons for reaching that conclusion are not supported by any expert evidence with respect to the use of Facebook or Instagram. Combine that with apparent efforts by the stylist to have a conversation with X and to book her in for a style and cut and then an attempt by Ms. Simpson to do the same, and I am not in a position to conclude that the events of March 5 were precipitated by X’s gender. It is just as probable that they were precipitated by the stylist’s expressed inability to respond to X via Facebook.