BC Human Rights Tribunal

Gowan v. FW Fitness BC Ltd., 2025 BCHRT 114

Date Issued: May 9, 2025
File: CS-005478

Indexed as: Gowan v. FW Fitness BC Ltd., 2025 BCHRT 114

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:

Thomas Gowan
COMPLAINANT

AND:

FW Fitness BC Ltd.
RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)

Tribunal Member: Andrew Robb

On his own behalf: Thomas Gowan

Counsel for the Respondent: Stephanie O’Connell

I INTRODUCTION

[1] Thomas Gowan filed a human rights complaint against FW Fitness BC Ltd. [ Fitness World ]. Fitness World operates gym facilities in BC. Mr. Gowan had a membership with Fitness World, entitling him to use its gyms. Fitness World terminated his membership after he repeatedly attempted to enter Fitness World gyms without showing valid proof of vaccination against COVID-19, at a time when proof of vaccination was required, under an order of the provincial health officer. Mr. Gowan says he declined to be vaccinated for religious reasons, and Fitness World discriminated against him on the basis of his religion by denying him entry to its gym facilities because he did not show proof of vaccination.

[2] Fitness World denies discriminating. Fitness World says the reasons for Mr. Gowan’s refusal to be vaccinated were unrelated to his religion, so Fitness World’s decisions about him were not connected to his religion. In the alternative, Fitness World says it offered reasonable accommodations to Mr. Gowan, but it would have been undue hardship to offer his preferred accommodation, which was allowing him to use Fitness World gyms without showing proof of vaccination.

[3] Fitness World applied to dismiss the complaint under s. 27(1)(c) of the Human Rights Code , on the basis that it has no reasonable prospect of success. Fitness World says Mr. Gowan has no reasonable prospect of proving a connection between Fitness World’s conduct and Mr. Gowan’s religion, and in any event Fitness World is reasonably certain to prove it discharged its duty to accommodate Mr. Gowan. Fitness World also applies to dismiss the complaint under s. 27(1)(d), on the basis that proceeding would not further the purposes of the Code .

[4] For the reasons set out below, I allow the application, and I dismiss the complaint. I am satisfied that the complaint has no reasonable prospect of success because, even if Mr. Gowan can prove that Fitness World’s conduct was connected to his religion, Fitness World is reasonably certain to prove it discharged its duty to accommodate him. In particular I find Fitness World is reasonably certain to prove that allowing Mr. Gowan to use Fitness World gyms without showing proof of vaccination, in contravention of an order of the provincial health officer, would have amounted to undue hardship.

[5] 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.

II BACKGROUND

[6] In April 2021, Mr. Gowan purchased a Fitness World membership.

[7] On September 10, 2021, the provincial health officer issued an order under the Public Health Act [the PHO Order ]. The PHO Order provided that as of September 13, 2021, proof of vaccination against COVID-19 would be required for people attending certain recreational settings, including fitness centres and gyms. The PHO Order did not allow for exemptions on the basis of a person’s religion. Fitness World’s application to dismiss includes a printout of a provincial government website, from September 29, 2021, with information for businesses about how to comply with the PHO Order. The website said businesses subject to the PHO Order must not permit any customer who has not shown proof of vaccination to remain in the business’s premises, and businesses could be issued a violation ticket if they did not comply with the PHO Order.

[8] While the PHO Order was in effect, Fitness World says it required all customers to show proof of vaccination before entering Fitness World gyms. Fitness World says it offered online fitness classes during this time, and gave all members an opportunity to temporarily suspend their membership, such that they paid 50% of normal membership fees during the suspension.

[9] There is no dispute that, on multiple occasions between September 13 and October 11, 2021, Mr. Gowan attempted to enter a Fitness World gym, without valid proof of vaccination. On at least one occasion, he told Fitness World staff he had a religious exemption from vaccination.

[10] There is no dispute that, on at least two occasions during this period, Mr. Gowan attempted to enter Fitness World gyms using a fake document showing proof of vaccination. Fitness World staff determined that it was fake and denied him entry. Fitness World says its staff told him that if he continued to try to use Fitness World facilities without valid proof of vaccination, his membership could be terminated.

[11] There is no dispute that, on at least two other occasions during this period, Mr. Gowan entered a Fitness World gym and used gym facilities without showing proof of vaccination.

[12] In a letter dated October 1, 2021, Fitness World told Mr. Gowan he had violated a condition of his membership that required him to conduct himself in a way that presents no danger to other members or staff, does not interfere with the quiet enjoyment of other members or staff, and does not disrupt the staff in performing their duties. The letter said further disregard for this condition could result in termination of his membership.

[13] In response to the letter, Mr. Gowan sent an email to Fitness World saying he had a religious exemption from vaccination against COVID-19. Fitness World later replied by email and told him he must show proof of vaccination to use Fitness World gyms, or his membership could be terminated.

[14] There is no dispute that, on October 11, 2021, Mr. Gowan entered a Fitness World gym without showing proof of vaccination, despite objections by Fitness World staff. Fitness World provided a recording of his interactions with staff, apparently made by Mr. Gowan, in which he said restrictions imposed by the government in response to the COVID-19 pandemic were an abuse of government power. When he proceeded to enter the gym without showing proof of vaccination, Fitness World staff called the police. Mr. Gowan continued to use gym facilities until police arrived. He left after speaking to police.

[15] In a letter dated October 12, 2021, Fitness World told Mr. Gowan his membership was terminated. This meant he could no longer use Fitness World gyms.

III DECISION

[16] Fitness World applies to dismiss Mr. Gowan’s complaint under s. 27(1)(c) of the Code , on the basis that the complaint has no reasonable prospect of success. 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. The onus is on Fitness World to establish the basis for dismissal.

[17] 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. 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 .

[18] 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 .

[19] To prove his complaint at a hearing, Mr. Gowan will have to prove he has a characteristic protected by the Code , he was adversely impacted in the services he received from Fitness World, and his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education) , 2012 SCC 61 at para. 33. If he did that, the burden would shift to Fitness World to justify the impact as a bona fide reasonable justification under s. 8 of the Code . If the impact is justified, there is no discrimination.

[20] Fitness World does not appear to deny that Mr. Gowan is a Christian, as he describes himself in his complaint. Nor does Fitness World deny that he was adversely impacted by the decision to deny him entry to its gyms, and ultimately to terminate his membership. But Fitness World says Mr. Gowan has no reasonable prospect of proving a connection between these decisions and Mr. Gowan’s religion, because there is evidence that his opposition to vaccination was based on concerns about government abuse of power, and not on a sincerely held religious belief. In the alternative, Fitness World says it is reasonably certain to establish a bona fide reasonable justification defence. If Fitness World is reasonably certain to establish a defence, then the complaint has no reasonable prospect of success: Purdy v. Douglas College and others , 2016 BCHRT 117 at para. 50.

[21] To establish a justification defence, at a hearing, Fitness World would have to prove its conduct was based on a standard adopted in good faith, for a purpose rationally connected to the function being performed, and the standard is reasonably necessary to the accomplishment of that legitimate purpose. This last element encompasses Fitness World’s duty to accommodate Mr. Gowan to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [ Grismer ].

[22] I find I can decide this application most efficiently based on Fitness World’s argument about justification. Fitness World says its conduct was based on its obligation to comply with mandatory legal requirements, including the PHO Order, and it had no authority or discretion to allow members to use its gym facilities without showing valid proof of vaccination. In terms of the Grismer analysis, I understand Fitness World’s argument to be that:

a. The decision to refuse entry to Mr. Gowan, and ultimately to terminate his membership, was based on a standard requiring members to show proof of vaccination before using Fitness World gyms.

b. Fitness World adopted this standard in good faith, for the purpose of complying with the PHO Order.

c. Compliance with the PHO Order was rationally connected to the function performed by Fitness World, in that compliance was mandatory and required by law, for all gyms in BC.

d. It would have been undue hardship for Fitness World to allow Mr. Gowan to enter a gym without showing proof of vaccination, because doing so would have required Fitness World to violate provincial law.

[23] Mr. Gowan appears to dispute that Fitness World decided to require proof of vaccination in good faith, for the purpose of complying with the PHO Order. He suggests Fitness World’s requirement for proof of vaccination was not legal, because vaccination is a voluntary medical procedure, and is not required by law. In his response to the application to dismiss, he says the PHO Order was unlawful because it was contrary to the Canadian Charter of Rights and Freedoms [the Charter ].

[24] I am satisfied that Fitness World is reasonably certain to prove its conduct in relation to Mr. Gowan was based on a standard requiring all members to provide proof of vaccination before using Fitness World facilities, and this standard was adopted in good faith, for the purpose of complying with legal requirements set out in the PHO Order. Fitness World is reasonably certain to prove it was subject to the PHO Order, it had no power to change the PHO Order, and the requirement for proof of vaccination was mandatory under the PHO Order.

[25] Regarding Mr. Gowan’s argument about the Charter , I note that under the Code and the Administrative Tribunals Act , the Tribunal does not have jurisdiction over constitutional questions related to the Charter . In any event, I find Mr. Gowan’s argument that the PHO Order was contrary to the Charter is not relevant to Fitness World’s justification defence. Even if a court ultimately found the PHO Order to be contrary to the Charter , Fitness World would still be reasonably certain to prove it was required to comply with the PHO Order, at least until the PHO Order was amended or declared by a court to be of no force or effect. [1]

[26] The remaining issue is whether Fitness World accommodated Mr. Gowan to the point of undue hardship. Fitness World says it accommodated members who could not show proof of vaccination by offering online classes and by offering to suspend their memberships, at a reduced fee. Fitness World says that allowing Mr. Gowan to continue using its facilities, without showing proof of vaccination, would have amounted to undue hardship, because it would have required Fitness World to violate provincial law, specifically the PHO Order. Fitness World relies on case law where the Tribunal found it would be undue hardship for a respondent to accommodate a complainant in a way that would contravene the respondent’s legal duties: Simpson v. City of Langley , 2020 BCHRT 92 at para. 64; Adair v. Forensic Psychiatric Services Commission , 2016 BCHRT 129 at para. 55.

[27] Mr. Gowan says Fitness World cannot establish that it is reasonably certain to prove it accommodated him to the point of undue hardship because it did not acknowledge his religious beliefs at all, and did not discuss accommodations with him. He says Fitness World staff should have tried to learn about his needs or his religious beliefs, before making any decisions about him. Mr. Gowan’s arguments do not address the accommodations proposed by Fitness World—online classes and an option to suspend his membership—except to say they were “generic” and “run of the mill”. I understand this to mean that they were not tailored to his individual needs. But he offers no further explanation about why the proposed accommodations were inadequate or unreasonable, in his circumstances.

[28] I am satisfied that Fitness World is reasonably certain to prove it discharged its duty to accommodate Mr. Gowan. There is no dispute that Fitness World offered to accommodate members who could not show proof of vaccination, including Mr. Gowan, by offering online classes and membership suspensions. Mr. Gowan was apparently unsatisfied with these options, but he does not explain why. Nor does he explain how learning about his needs and religious beliefs could have resulted in a different outcome.

[29] The duty to accommodate requires a respondent to offer reasonable accommodations, not a perfect solution, and not necessarily the exact accommodation requested by the person entitled to accommodation. In some cases, the duty to accommodate requires solutions that are tailored to an individual’s specific needs. But the materials filed by Mr. Gowan, and the undisputed evidence that he continued to use Fitness World gym facilities without showing proof of vaccination, even after Fitness World told him that doing so could lead to termination of his membership, suggest he was not willing to consider any form of accommodation short of allowing him to continue using Fitness World gyms, without showing proof of vaccination. Since the PHO Order did not allow for religious exemptions, there was no way for Fitness World to provide this accommodation without violating the PHO Order, thereby contravening the Public Health Act .

[30] As in Simpson and Adair , in the circumstances of this case I find it is reasonably certain that the accommodation sought would have required the respondent to violate provincial law, and this would have amounted to undue hardship. This situation has some similarities to Adair , as the cause of the complaint arises from a government decision that was beyond the respondent’s control, and the respondent is reasonably certain to establish it would have been undue hardship to act in a way that directly contravened that government decision: Adair at para. 55.

[31] For these reasons, I find Fitness World is reasonably certain to establish a justification defence, so the complaint has no reasonable prospect of success.

IV CONCLUSION

[32] The complaint is dismissed.

Andrew Robb

Tribunal Member