Kho v. Clinic B and another, 2026 BCHRT 13
Date Issued: January 8, 2026
File(s): CS-006273
Indexed as: Kho v. Clinic B and another, 2026 BCHRT 13
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:
Boi (Rebecca) Kho
COMPLAINANT
AND:
Clinic B and Dr. B
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
On their own behalf: Boi (Rebecca) Kho
Counsel for the Respondent: Neal Parker
I INTRODUCTION
[1] Ms. Kho alleges that the Respondents, Clinic B and Dr. B, discriminated against her in the area of services based on physical and mental disability. Specifically, she claims she was discriminated against in April and June 2021. On those occasions, Dr. B refused to provide services because she was not wearing a mask. She says she could not wear a mask due to a medical condition, and her disabilities were not accommodated.
[2] The Respondents deny discriminating. They say the clinic’s mask mandate was in accordance with the provincial state of emergency and the Provincial Health Officer’s order requiring all employers to establish a Covid-19 safety plan. They say Dr. B lived with an immune-compromised family member who had an increased risk of an adverse outcome from COVID-19. They say they offered Ms. Kho multiple accommodations, including a telehealth appointment with Dr. B, the next available appointment with another clinic doctor who was seeing patients who were medically exempt from wearing a mask, and a referral to a local optometrist who was seeing patients without a mask. They say she refused these accommodations.
[3] The Respondents apply to dismiss the complaint under s. 27(1)(c) of the Code on the basis it has no reasonable prospect of success. In particular, they say there is no reasonable prospect she will prove she has a disability-related barrier to wearing a mask, or was denied services on the basis of her protected characteristic. They also say they are reasonably certain to prove a defense at a hearing.
[4] The only issue I need to decide is whether the Respondents are reasonably certain to prove that Ms. Kho was offered, and refused, reasonable accommodations.
[5] For the following reasons, I allow the application. 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. I make no findings of fact.
II BACKGROUND
[6] I refer to the Respondents by the names “Dr. B” and “Clinic B” because they have successfully applied to limit publication of the parties’ names. This issue is addressed at paras. 18 to 25, below.
[7] The Dr. B is an ophthalmologist practicing at Clinic B.
[8] Ms. Kho was a patient seeking services with Dr. B at the clinic.
[9] The events in this case took place in the context of the COVID-19 pandemic. On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic. COVID-19 is an infectious disease caused by the coronavirus. COVID-19 primarily spreads through droplets of saliva or discharge from the nose when an infected person coughs, sneezes or speaks.
[10] On March 17, 2020, the Provincial Health Officer for the Province of British Columbia declared a state of emergency.
[11] On November 5, 2020, the Ministry of Health issued a Mask Use Policy requiring all healthcare facilities, including hospitals and community specialist offices, to implement a mandatory mask mandate for patients and staff. The Clinic continued to apply a mask requirement, now mandated by law.
[12] The provincial state of emergency and mask mandate was still in effect on the day Ms. Kho attended the clinic for treatment.
[13] Ms. Kho attended one of Clinic B’s location on July 7, 2020, and was treated by Dr. B. Dr. B saw Ms. Kho for a follow-up appointment on August 4, 2020, and provided her a prescription. Ms. Kho wore a mask on both occasions.
[14] Ms. Kho was booked for two further appointments at the clinic. One on April 12, 2021 for an assessment conducted by clinic staff technicians, and the second in-person follow up assessment with Dr. B on April 19, 2021.
[15] When Ms. Kho attended her appointment on April 12, 2021, she did not wear a mask. She provided a medical note and advised clinic staff that she had a medical exemption. A clinic staff technician conducted her assessment as scheduled. Clinic staff advised Ms. Kho that she would be required to wear a mask if she wanted to be seen by Dr. B. She refused, and her appointment was rescheduled to a telehealth appointment at a later date. Three days later, on April 15, 2021, Ms. Kho cancelled the telehealth appointment.
[16] On June 14, 2021, Ms. Kho attended Clinic B for a scheduled appointment with Dr. B and did not wear a mask. Clinic staff advised her that she was required to wear a mask to see Dr. B. Ms. Kho refused, citing a medical exemption. Clinic staff told her she would be required to wear a mask in order to see Dr. B and offered to make her an appointment with another doctor.
[17] The parties dispute whether Mr. Kho was offered an appointment with a physician at another of Clinic B’s locations.
III APPLICATION TO LIMIT PUBLICATION
[18] Complaints at Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process, ensuring that Tribunal members act fairly, promoting public confidence in the Tribunal, and educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 14.
[19] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Tribunal Rules of Practice and Procedure [Rules], Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, private detail in the complaint, harm to reputation, or any other potential harm: JY at para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to just assert that a person’s reputation may be tarnished: Stein at para. 64(c).
[20] The Respondents say the complaint should be anonymized to protect the private and reputational interests of the Respondents and Ms. Kho’s sensitive medical information.
[21] Ms. Kho opposes the application to limit publication. She says the harm presented does not represent “serious risk” and should be of little weight when held against the public’s interest in accessing the Tribunal. She says the Respondents simply wishing to avoid embarrassment is insufficient to significantly outweigh the public’s interest in open proceedings. She points to a BC Supreme Court decision that does not anonymize the name of Clinic B or the name of a different doctor at the same clinic.
[22] Ther Respondents say, and I agree, that there is greater scope for limiting public access at an earlier stage. They highlight Tribunal decisions where physician-patient complaints have been anonymized in recognition of the unique relationship that exists between physician and patient. As the Tribunal has said, publishing a physician respondent’s name may impair their ability to effectively provide care to other patients, given the adverse inference that could be drawn from the fact that a human rights complaint has been brought: Ms. H. v. Dr. B, 2025 BCHRT 133 [Ms. H] at para. 13; Mr. C v. The Clinic and another, 2016 BCHRT 192 [Mr. C] at para. 31; EC v. Dr. GL, 2015 BCHRT 121, at para 49; Mother A obo Child B v. School District C, 2015 BCHRT 64, at paras. 10 – 13. Further, the Tribunal has said:
there may be irreparable harm that flows from the destruction of a person’s, particularly a doctor’s or other professional’s, reputation by unproven allegations of misconduct or, as in this case, violation of a person’s human rights. It is this balancing of interests that presents the problem in this case. As in all cases, context is important.
KS v. Dr. O Corp and another, 2018 BCHRT 273, at para. 7.
[23] I am satisfied that the public interest in accessing the Tribunal decisions is served by making the anonymized decision public, thereby providing the background, issues, arguments, and reasoning without disclosing the Respondents’ identities or locations. This is consistent with a number of the Tribunal’s previous cases where the Tribunal has held that public access can be preserved with anonymization: Ms. H at paras. 14 and 58; Mr. B v. Dr. G, 2007 BCHRT 227 at para. 39, Mr. K v. Z and others, 2012 BCHRT 41; Mr. C at paras. 36-39. Here, considering the concerns raised by the Respondents as to the impact publication will have on Dr. B’s reputation, and because the public can fully access the background to the complaint and the Tribunal’s reasoning without disclosing the identities of the Respondents, I am persuaded that an order anonymizing the identity of the parties is warranted.
[24] The application is granted. I direct that the names of the Respondents be anonymized and the case name be amended accordingly.
[25] I order that:
a. The Tribunal will not publish or make available to the public any information that could identify the Respondents in this complaint.
b. No person may publish information which could identify Clinic B and Dr. B in connection with this complaint.
c. This order applies only up until the hearing of this complaint on its merits. At that point, the balancing of interests may change. It will be for the Tribunal Member who ultimately hears this complaint to determine, at that stage, whether the Respondents’ privacy interests continue to outweigh the public interest in knowing their identity.
[26] I now turn to the Respondents’ application to dismiss the complaint.
IV DECISION
[27] The Respondents apply to dismiss Ms. Kho’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c) The onus is on the Respondents to establish the basis for dismissal.
[28] 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.
[29] 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, leave to appeal ref’d [2006] SCCA No. 171. 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.
[30] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. 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 [Hill] at para. 27.
[31] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34. Instead, on applications under s. 27(1)(c), the Tribunal may “weigh credibility” in its overall assessment of a complaint: Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 53. In particular, I must consider whether issues of credibility “can be resolved on the basis of corroborative affidavit and contemporaneous documentary evidence”: Smyth v. Loblaw and another, 2017 BCHRT 73 at para. 41. At the same time, where the conflict in evidence is restricted to non‐foundational issues, or where the evidence overwhelmingly supports one particular result, the Tribunal may exercise its discretion to dismiss the complaint under s. 27(1)(c): Francescutti at paras. 65‐67. However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti at para 67. In my view, the credibility issues on this application can be resolved on the basis of documents created during Ms. Kho’s visits to Clinic B and the affidavit evidence before me.
[32] To prove her complaint at a hearing, Ms. Kho will have to prove that she has a characteristic protected by the Code, she was adversely impacted in services, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33
[33] The Respondents argue that there is no reasonable prospect that the complaint will succeed because it is reasonably certain to establish a defence at the hearing of the complaint: Purdy v. Douglas College and others, 2016 BCHRT 117 at para. 50. The Respondents say they are reasonably certain to prove at a hearing that they reasonably accommodated Ms. Kho to the point of undue hardship.
[34] To address this argument, I assume, without deciding, that Ms. Kho has taken the elements of her case out of the realm of conjecture.
[35] The Supreme Court of Canada set out the three-stage analysis for determining a bona fide reasonable justification in respect of a standard or policy: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 [Grismer]. Applying that analysis in this case, at a hearing the Respondents would have to establish that:
1. It adopted the mask requirement for a purpose or goal that is rationally connected to the function being performed;
2. It adopted the mask requirement in good faith, in the belief that it is necessary to the fulfilment of the purpose or goal; and
3. The mask requirement is reasonably necessary to accomplish its purpose or goal, in the sense that it cannot accommodate the complainant and others adversely affected by the standard without incurring undue hardship.
[36] The issue I must decide is whether the Respondents are reasonably certain to establish these three elements at a hearing.
[37] I begin with whether the Respondents are reasonably certain to establish that it adopted the mask requirement for a purpose that is rationally connected to the function being performed. I am satisfied that it is.
[38] On the first requirement, patients seeing Dr. B were required to wear a face mask. The Respondents says the rational, business-related purpose for the Mask requirement was to ensure Dr. B could continue seeing patients while mitigating the risk of spreading COVID-19 to his immune-compromised family member.
[39] Ms. Kho opposes the Respondents’ application to dismiss. Ms. Kho argues that there is no justification for Dr. B denying her in person services. She asserts that Dr. B’s reason for not serving unmasked patients because he was living with an immunocompromised family member is not a reasonable justification for denying her in person service.
[40] In the context of the whole of the materials before me, I agree with the Respondents that they are reasonably certain to establish that the mask requirement is rationally connected to Dr. Bs’ need to balance in-person treatment with his assessment of the risk of the spread of COVID-19 to his immune-compromised family member, who he lived with. Ms. Kho may disagree with the Respondents’ approach. She may disagree with whether the mask requirement was justified. However, I am not satisfied on the whole of the evidence before me that her disagreement undermines the Respondents’ evidence that their mask requirement has a rational connection to its goal “in the face of a then-novel virus that had formed the basis of a state of emergency in the Province”: Coelho v. Lululemon Athletica Canada Inc., 2021 BCHRT 156 at para. 25 [Coelho].
[41] Turning to the second element of Grismer, I am satisfied that the Respondents are reasonably certain to establish that it adopted the policy in good faith. The Respondents have put before me evidence of both the context and development of the mask requirement, and there is no evidence before me that could support a finding to the contrary. Again, while Ms. Kho may disagree with the mask requirement or the basis for it, nothing in her materials casts down on the Respondents’ evidence that it adopted the policy in good faith, in the belief that it is necessary to the fulfilment of the purpose or goal.
[42] On the third requirement, I am persuaded that the Respondents are reasonably certain to establish that it discharged its duty to accommodate Ms. Kho.
[43] The Respondents put forward affidavit and contemporaneous evidence that Ms. Kho had previously worn a mask to her appointments with Dr. Bs, and that accommodations were offered and explored with Ms. Kho, but she refused. The accommodations were:
a. an appointment with an ophthalmologist at the clinic who was seeing patients with mask exemptions; or
b. a referral to a local optometrist who was seeing patients with mask exemptions;
c. a telehealth appointment with Dr. B.
[44] Ms. Kho was given an opportunity to respond to the Respondents’ application to dismiss. She agrees she was offered the opportunity to see a Clinic B optometrist who was treating patients with mask exemptions. She does not deny that she was offered accommodations, nor does she refute the Respondents’ assertion that she refused the accommodations offered. However, she says a telehealth appointment would not be reasonable in the circumstances of the care she was seeking, and she disputes that she was offered a referral to a local optometrist.
[45] I understand Ms. Kho does not believe living with an immunocompromised family member discharges Dr. B’s requirement to provide her with in-person treatment. However, the fact that Ms. Kho says she has a medical exemption to wearing a mask does not allow her to simply disregard Dr. Bs’ mask requirement and access maskless treatment from Dr. B: Coelho v. Lululemon Athletic Canada Inc., 2021 BCHRT 156 [Coelho] at para. 31. Rather, her disability places a positive obligation on the Respondents “to reasonably accommodate her to the point of undue hardship to mitigate any disability-related impact on her”: Coelho. The Respondents are not obligated to provide a perfect accommodation, but a reasonable one: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 SCR 970. I infer from her submissions that her desired outcome would have been to continue being treated in person by Dr. B. As in Coelho, I am satisfied on the materials before me that the Respondents are reasonably certain to prove that Ms. Kho is essentially “seeking [her] perfect accommodation” which is to receive treatment from Dr. B and be exempted from his mask requirement, “at a time when the Province had declared a State of Emergency over a respiratory virus about which little was yet known” and in circumstances where Dr. B was taking steps to decrease the risk of spreading COVID-19 to his live-in family member: para. 34. In any case, the evidence weighs toward suggesting Ms. Kho refused the accommodations offered and left without exploring other accommodation options. This alone persuades me that the Respondents are reasonably certain to prove that they met their accommodation obligations because Ms. Kho’s conduct abandoned the accommodation process: Coelho at para. 34.
[46] For the reasons set out above, I am persuaded it is reasonably certain that the Respondents would establish that it discharged its duty to accommodate Mr. Kho. As a result, there is no reasonable prospect Ms. Kho’s complaint could succeed.
V CONCLUSION
[47] The complaint is dismissed pursuant to s. 27(1)(c) of the Code.
Laila Said Alam
Tribunal Member
Human Rights Tribunal