A Closer Look at the Rights of People with Allergies

It is estimated that 7% of Canadians live with a food allergy, representing nearly one in ten people [1]. Although normal, their lives are complicated by the ever-present risk of exposure to an allergen that could be fatal to them. They work, they spend time in public places and they are an integral part of society. But do they have the same rights as others?

A question of discrimination

The highly publicized case of Simon-Pierre Canuel [hyperlien](in French), a man severely allergic to seafood and salmon who was mistakenly served a salmon tartar in a Sherbrooke restaurant, has sparked a debate on the rights of allergic people when frequenting public places.

Section 15 of the Charter of Human Rights and Freedoms stipulates that “No one may, through discrimination, inhibit the access of another to public transportation or a public place, such as a commercial establishment, hotel, restaurant, theatre, cinema, park, camping ground or trailer park, or his obtaining the goods and services available there.”

According to the Quebec Human Rights and Youth Rights Commission (Commission des droits de la personne et des droits de la jeunesse du Québec), discrimination occurs when an individual is treated differently on account of personal characteristics, such as race, sex, or disability.

Therefore, if it leads to discrimination, a food allergy can be considered a disability. Being denied access to a particular service because of a food allergy could, therefore, constitute a form of discrimination on a case-by-case basis.

Food allergy and access to public places

As mentioned above, denying a person access to a public place on the grounds of them having a food allergy is discriminatory and goes against section 15 of the Charter of Human Rights and Freedoms.

With that in mind, it is the allergic person’s responsibility to assess the risk and determine whether it is safe for them to visit the place in question, and if it is a restaurant, whether it is safe or not to eat there.

It’s important to remember that there is a body of case law dealing with food allergies [2] [hyperlien](in French),. However, it revolves around food catering contexts and plaintiffs being mistakenly told that their food did not contain particular allergens, causing them to have allergic reactions.

It is well known that daycares that have allergic children under their care must have a procedure in place in the event of an anaphylactic reaction. But could they refuse to accept a child with allergies?

The answer is not straightforward. Refusing a child on the grounds that they have allergies is discriminatory, except in cases where the daycare is not able to provide the child a safe environment, in which case refusal is legal.

On a more positive note, parents whose child lives with food allergies may be eligible, under certain conditions, for financial assistance (i.e. supplement for handicapped children). An allowance to facilitate integration of disabled children into childcare facilities  may also be granted to daycares when the child meets certain conditions. The objective here is to help families, to facilitate the child’s integration, and to ensure their safety.

With regard to the rights of allergic workers, there is no obligation for an employer to put measures in place to reduce the risk of allergen contamination in the workplace [3]. On the other hand, all companies in Québec are subject to the First-aid Minimum Standards Regulation, which stipulates that employers must “make sure that at least one first-aider is present at all times during working hours.” The required number of first-aiders on site depends on the number of employees.

As you can see, the guidelines are not always clear when it comes to the rights of allergic people in society. It seems that the law, which operates on a case-by-case basis, has not kept up with the current knowledge on food allergies.

Of course, it is primarily up to the allergic person to ensure their own safety, whether at home or in a public place. On the other hand, under no circumstances should a food allergy constitute grounds for discrimination. If you feel that your rights are being violated because you live with food allergies, do not hesitate to contact the Quebec Human Rights and Youth Rights Commission. 

[1] Soller, L. et coll. (2012). Overall Prevalence of Self-reported Food Allergy in Canada. Journal of Allergy and Clinical Immunology, 130(4):986-8. DOI : 10.1016/j.jaci.2012.06.029
[2] Selon le Réseau juridique du Québec, la jurisprudence « représente l’ensemble des décisions rendues par les tribunaux ». Dans le cas de conflits similaires, la jurisprudence ayant mené à un jugement est donc susceptible d’être suivie par le juge.
[3] La Loi sur les normes du travail prévoit cependant qu’un salarié comptant trois mois de service continu chez le même employeur peut s’absenter du travail pour une période d’au plus 26 semaines sur une période de 12 mois, sans salaire, en raison d’une maladie, dont fait partie la réaction allergique.