Manitoba judge dismisses parent's claim for exemption from school mask requirement

A Manitoba judge has dismissed a parent’s request for a court injunction exempting her children from being forced to wear masks at school in the Division scolaire franco-manitobaine.

Parent filed court application against French school division

Back to school in Surrey has brought with it at least 56 COVID exposure notices in the first month of reopening. (Paul Chiasson/The Canadian Press)

A Manitoba judge has dismissed a parent's request for a court injunction exempting her children from being forced to wear masks at school.

She wrote to the principal of her children's school, in the Division scolaire franco-manitobaine, on Sept. 7, and cited a number of reasons for her request, "Including mental, dental, medical and personal choice, and noted that a doctor's note was not needed," according to a court decision delivered on Thursday.

"I find that this motion must be dismissed as the application has failed to persuade the court that irreparable harm would befall the applicant should the injunction not be granted," wrote Manitoba Court of Queen's Bench Justice Gerald Chartier.

"I am satisfied that the COVID-19 policies in relation to masks in the schools are required for the safe operation of the schools and while the policy acknowledges that the knowledge of the wearing of non-medical masks is evolving, the wearing of masks can play a role in reducing the transmission of COVID-19," the judge said.

CBC is not naming the parent because she told the judge she had received hateful emails and asked for privacy for her children.

The Manitoba government issued a policy on masks at school on Sept. 2, requiring the parent to give notice in writing if their child could not wear a mask, but it did not require a note from a health-care provider if a child is unable to wear a mask, the decision said.

The policy requires non-medical masks in schools for students in Grades 4 to 12 when physical distancing of two metres is not possible, and it also requires masks be worn by everyone on school buses. 

The policy was updated Sept. 18 to say a school "may request a note be provided by a parent/guardian from a health care provider", to explain a child's limitation on wearing a mask.

Court heard that when the school division asked the parent what her children's limitations were in wearing masks, she said "they cannot wear a mask for any period of time and the reasons for those limitations are medical and therefore private in nature," the court document said.

She was then told by the school division "that unless she would let the school know of her children's medical conditions, he would ask that she keep her children at home for security reasons."

The parent subsequently provided the DSFM with two doctor's notes saying that in the case of her two children, "For medical reasons, this patient will not be able to tolerate continuously wearing a mask."

The parent also advised the school division that her children might be reluctant to come forward to teachers or other authority figures if problems developed in the length of time they were required to wear a mask.

The school division took the position that the parent failed to provide sufficient medical information to accommodate her request.  

Now that the province has updated its policy on masks in school, "It now specifically states that school divisions may request such medical notes," the decision says. 

Arguments lacked merit: Chartier 

While Justice Chartier said nearly all the parent's arguments lacked merit, she "raised a serious issue to be tried in relation to the issue of reasonable accommodation in relation to the wearing of masks for her children."

"COVID-19 is, of course, a new phenomenon, but so too is the issue of the effects of children wearing masks for long periods of time."

Chartier said he is satisfied the pandemic has introduced an increased level of risk for students and staff at schools. He said he did not agree that the school division in this case acted arbitrarily toward the parent or her children. 

He said the DSFM is charged with the important responsibility of ensuring the safety of children in the schools.

"Indeed, their responsibility also impacts society at large given that so many households in Manitoba have school-age children," Chartier said.

Mother sought financial damages 

In addition to the unsuccessful court application for an injunction, the mother also filed a statement of claim September 16 seeking financial damages from the school board. 

For the mother's loss of income, the claim was seeking $1,000 per school day that the children are not in school. 

She filed an affidavit saying she has suffered extreme hardship to her livelihood by having her children at home while she tries to work and run a business, and therefore needed them to attend school.

The lawsuit sought up to $25,000 for each child for discrimination under the Manitoba Human Rights Code, and the same amounts under the Canadian Charter of Rights and Freedoms.

It also sought aggravated and punitive damages, and $10,000 per child for breach of privacy under the Freedom of Information and Protection of Privacy Act.

The claim alleged the DSFM breached the children's privacy rights with repeated requests for personal medical information, and "the requirement that personal medical information must be disclosed in order to access their education and transportation services." 

The judge did not make a decision Thursday on financial claims.