Maskless Burnaby shopper loses human rights complaint

Maskless shopper loses

A man who tried to shop maskless inside a Burnaby store during the second wave of the COVID-19 pandemic has lost his case at the B.C. Human Rights Tribunal.

Alexander Kim launched a human rights complaint against the Hot Topic store at Metrotown mall after he was asked to leave the establishment on Nov. 16, 2020 because he wasn’t wearing a mask covering his nose and mouth, according to a tribunal ruling earlier this month.

Kim claimed he couldn’t wear a mask because of disabilities and Hot Topic had violated the B.C. Human Rights Code by not accommodating them.

He told the tribunal that, after being asked to leave the store, he had asked the store manager, Tina Zakaria, whether she could bring products outside the store for him to review and buy, but she had said no.

Zakaria, however, testified she had offered to bring items to the door and also helped Kim make two back-to-back appointments to return and browse the store in private at 7 p.m. that evening, but he hadn’t shown up.

Kim later explained to the tribunal that it is not safe for him to travel after dark because of his vertigo. He said he had called the store the following day but no one ever called him back.

In her ruling, tribunal member Devyn Cousineau noted Kim’s and Zakaria’s evidence conflicted on some points but only one of those conflicts was material – whether or not Zakaria had offered Kim storefront service.

Cousineau ultimately said she preferred Zakaria’s evidence about the encounter because the store had a corporate policy to offer non-mask wearing customers three alternatives to in-person shopping: online shopping, store-front service and private appointments after regular store hours.

The policy was posted prominently in the store, and Zakaria said it was “standard procedure” to offer the three accommodations to customers who could not, or did not, wear face masks.

Cousineau also noted Kim’s evidence about why he can’t wear a face mask changed over the course of his complaint.

In his original complaint, he said he had asthma.

In an amendment, he said he had “multiple health conditions” affecting his breathing but the most immediate danger was the risk of falling.

“He explains that he made this decision after seeing information that asthma may not be enough to exempt him from mask-wearing requirements,” stated the ruling.

Cousineau said Kim’s “minimal evidence” made it difficult for her to conclude he has a disability that prevents him from wearing a mask, but she concluded she didn’t have to.

“Ultimately, I find I do not have to decide whether Mr. Kim had a disability-related reason for not wearing a face mask or whether he experienced an adverse impact because I find that Hot Topic offered him the exact accommodation he now says he was seeking, which was a reasonable one.”

Cousineau ruled Hot Topic had not discriminated against Kim, and she dismissed his complaint.

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