Potekhin v. Brancy One Holdings Ltd. dba Canadian Tire #438 (No.2), 2026 BCHRT 29
Date Issued: January 22, 2026
File(s): CS-003979
Indexed as: Potekhin v. Brancy One Holdings Ltd. dba Canadian Tire #438 (No.2), 2026 BCHRT 29
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:
Alexander Potekhin
COMPLAINANT[S]
AND:
Brancy One Holdings Ltd. dba Canadian Tire #438
RESPONDENT[S]
REASONS FOR DECISION
Tribunal Member: Ijeamaka Anika
Agent for the Complainant: Ekaterina Potekhina
Counsel for the Respondent: Aleksandar J. Petrovic, Andrew Weir (articling student)
Date of Hearing: August 12 – 13, 2025
Location of Hearing: Via Videoconference
Closing submissions complete: October 2, 2025
I INTRODUCTION
[1] On December 28, 2020, Alexander Potekhin went to a Canadian Tire store in Williams Lake, BC [the store] to have a key cut, custom-match a paint sample, and return an item. At that time, face coverings were mandatory indoors by ministerial order, subject to certain exemptions, and the Canadian Tire had a mandatory mask policy. Mr. Potekhin entered the store without a mask. He says he cannot breathe with a mask on, that when he wears a mask, he has panic attacks, and that his depression immediately worsens. The store’s General Manager, James Arsenault, escorted him out of the store.
[2] At the time that Mr. Potekhin went to the store, it was owned and operated by Brancy One Holdings Ltd. dba Canadian Tire #438. Brancy One sold the store in April 2021 and now own and operate another Canadian Tire retail store in Ontario.
[3] On January 12, 2021, Mr. Potekhin filed a complaint alleging discrimination based on mental disability under s. 8 of the Human Rights Code.
[4] Brancy One denies discriminating. It argues that Mr. Potekhin did not establish that he had a disability-related barrier to wearing a mask. Brancy One also argues that the store’s policy at the time was to ask customers who declined to wear masks to leave the store. It says all its in-store services were available online and over the phone and it offered curbside services to customers. It says that Mr. Arsenault was simply following store policy that day.
[5] I heard this complaint over two days. Mr. Potekhin testified and called his spouse and advocate, Ekaterina Potekhina, to testify. Brancy One called the store’s co-owners, Brad O’Neill and Nancy O’Neill, its former General Manager Mr. Arsenault, and former Store Manager Adriano Dalle Rive to testify. I am grateful to the parties and witnesses for their participation in the hearing. The parties subsequently provided closing submissions in writing. While I do not refer to it all in my decision, I have considered all of the evidence and submissions of the parties. This is not a complete recitation of that information, but only what is necessary to come to a decision.
[6] For the reasons that follow, I find that Mr. Potekhin has not established that he had a disability that prevented him from wearing a mask when he went to the store. Therefore, Mr. Potekhin has not established a breach of the Code, and I dismiss the complaint.
II ISSUES AND CREDIBILITY
[7] This complaint arises from an interaction between Mr. Potekhin and Mr. Arsenault. There is no dispute that Mr. Potekhin went to the Canadian Tire store in Williams Lake, BC on December 28, 2020. There is also no dispute that Mr. Arsenault told Mr. Potekhin that he could not shop in the store and escorted him out of the store. However, the parties disagree about the details of their interaction, including what was said, and whether Mr. Arsenault offered accommodation options such as curbside service.
[8] My first step is to decide what happened, based on the testimony given at the hearing. Where a witness’s testimony conflicts with other evidence, I must assess the trustworthiness of their testimony “based on the veracity or sincerity of a witness and the accuracy of the evidence that the witness provides”: Bradshaw v. Stenner, 2010 BCSC 1398, aff’d 2012 BCCA 296, leave to appeal refused, [2012] S.C.C.A. No. 392 (QL) at para. 186. In some cases, a witness’s evidence may not be trustworthy because they have “made a conscious decision not to tell the truth”: Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd., 2019 BCSC 739 at para. 89. I do not find this was the case for any of the witnesses here. Rather, any difference in their testimony is explained as a matter of reliability, based on their ability to accurately observe, recall, or recount the event: R. v. H.C., 2009 ONCA 56 at para. 42; Youyi at paras. 89-90.
[9] I have mostly accepted Mr. Potekhin’s testimony. He testified sincerely and gave evidence that I am satisfied he believed was true. I have accepted his evidence about the impact that this incident had on him. This was corroborated by Ms. Potekhina. To the extent that I have not accepted all of Mr. Potekhin’s evidence, it is because of my view that it was not “consistent with the probabilities affecting the case as a whole”: Faryna v. Chorny, 1951 CanLII 252 (BC CA) at para. 356. I explain my specific findings below.
[10] I have accepted Brancy One’s witnesses’ evidence about their usual practice in interacting with customers who did not wear masks: they had a mandatory masking policy for shopping in the store and customer who did not wear masks were asked to shop outside the store and all their services were available at the curbside, online, or over the phone.
[11] Brancy One does not dispute that Mr. Potekhin has a mental disability. The central issue is whether Mr. Potekhin had a disability that interfered with his ability to wear a mask when he went to shop in the store. Therefore, the burden is on Mr. Potekhin to prove that he experienced an adverse impact related to his inability to wear a mask because of his disability. If he does so, the burden will shift to Brancy One to prove that it met its duty to accommodate Mr. Potekhin to a point short of undue hardship.
[12] I turn now to my findings of fact.
III BACKGROUND AND EVIDENCE
[13] At the hearing, Brancy One’s witnesses testified that the store had a masking policy in line with provincial Ministerial Order M425 [the Mask Policy]. The policy was in place until Brancy One sold the store. Mr. O’Neill drafted the policy in consultation with other businesses in the area. According to Mr. O’Neill’s evidence, the purpose of the policy was to keep everyone safe because there was not enough knowledge about what the virus could do. Therefore, anyone entering the store was required to wear a mask.
[14] The Mask Policy required anyone entering the store to wear a mask. There were no exceptions to wearing a mask in the store. Mr. O’Neill testified that there were no medical exemptions to mask-wearing because the virus was deadly and he did not want his staff or customers getting sick. He says managers were not capable of understanding medical exemptions, so the store instead provided alternative shopping options for those who could not wear a mask. Customers could complete all transactions and services at the curbside, including returns, key cutting, and paint matching. Mr. O’Neill testified that no transaction required that it could only be completed in the store and all transactions or services could be completed curbside, online, or over the phone. The store also provided free masks for customers who arrived without one. Mr. O’Neill testified that providing face shields was cost-prohibitive for the business.
[15] Posters indicating that masks were required in the store were posted on the doors and on a stand at the entrance to the store. The posters indicated that masks were required but did not say anything about alternative ways to shop.
A. The in-store interaction
[16] In December 2020, Mr. Potekhin went to the store to have a key cut, obtain a paint color match, and complete a product return. He went into the store alone and he was not wearing a mask. Mr. Potekhin saw, at the store’s entrance, a poster on the door with a picture of a mask. He did not see a poster about accommodation in-store. A staff member at the entrance told Mr. Potekhin that he could not enter the store without a mask. Mr. Potekhin proceeded to enter the store. As he entered, the staff member approached him and told him to put on a mask or leave the store. Mr. Potekhin told the staff member that he had a medical exemption and requested to speak to the store manager.
[17] When Mr. Arsenault arrived, Mr. Potekhin told him that he had a medical condition and could not wear a mask. At the hearing, Mr. Potekhin testified that, in response to telling Mr. Arsenault that he could not wear a mask due to his medical condition, Mr. Arsenault responded with “We are not accommodating you without a mask […] we are a private organization and can choose whether to serve you” and demanded that he put on a mask or leave the store. Mr. Potekhin testified that Mr. Arsenault was loud and rude and invaded his personal space by spreading his hands to gesture him towards the store’s exit. Mr. Potekhin described being “physically escorted” from the store. Mr. Potekhin complied and left the store and says he told Mr. Arsenault as he was leaving the store that he might file a human rights complaint. Mr. Arsenault did not have a specific recollection of the interaction. He testified that he has never told a customer that the store would not accommodate them and had never refused service to a customer on the basis that a service was only available in the store. He also testified that he would remember and would have reported the threat of a human rights complaint to the store owner.
[18] Mr. Potekhin says the interaction was distressing because of his medical condition. He says he was not agitated when speaking with Mr. Arsenault and followed his instructions, but his stress levels went up. He says he does not get angry in such situations, but he said to Mr. Arsenault, “I feel discriminated against.” Ms. Potekhina also testified that when Mr. Potekhin returned home from the store, she observed that he was significantly distressed and impacted by the incident.
[19] Based on the evidence, I find that Mr. Potekhin entered the store without a mask, told staff he had a medical exemption, and was escorted from the store by Mr. Arsenault. I accept Mr. Potekhin’s evidence that the interaction was distressing to him and that he left the store without being offered curbside or alternative service options. However, I make no findings about whether Mr. Arsenault used the specific words Mr. Potekhin attributes to him or whether his manner was rude, and my decision does not turn on these details.
[20] Having established what occurred during the interaction at the store, I now turn to the central issue of whether Mr. Potekhin had a disability that prevented him from wearing a mask.
B. Mr. Potekhin’s disability related to mask-wearing
[21] Mr. Potekhin testified that he was diagnosed with anxiety and depression in 2019 following his job loss. It was a difficult time for him. He testified that wearing a mask causes him to experience an elevated heartbeat, visual disturbances (seeing circles), feelings of faintness, shortness of breath, and panic attacks. He stated that wearing a mask immediately worsens his depression symptoms and that these physical reactions are “scarier than the virus.”
[22] I allowed Mr. Potekhin to introduce late-disclosed evidence of his disability on the morning of the hearing. Three days before the hearing, Mr. Potekhin sought to introduce medical evidence relating to his disability. This evidence consisted of: an independent medical examination report dated December 21, 2020, conducted for insurance purposes; a letter dated November 9, 2020, from Mr. Potekhin’s insurance provider regarding his long-term disability benefits; and a medical assessment form completed by a licensed physician in May 2023. Brancy One objected to this evidence because it did not comply with the Tribunal’s rules regarding disclosure. Ms. Potekhina argued that she wanted to admit evidence to show that Mr. Potekhin was suffering from a mental disability at the time of the incident and to help with managing the hearing because his disability would impact his ability to participate. I allowed the medical evidence for the limited purpose of establishing the existence of a mental disability and restated to the parties that the existence of a mental disability was not disputed in the complaint. Any evidence relating to whether Mr. Potekhin’s disability interfered with his ability to wear a mask would need to come from other evidence.
[23] The May 2023 medical assessment in evidence before me stated that Mr. Potekhin first experienced symptoms in September 2018 and identifies his primary diagnosis as “psychotic depression with paranoid features and alcohol use disorder.” This diagnosis differs from Mr. Potekhin’s testimony that he has “anxiety and depression disorder.” When asked about this difference, Mr. Potekhin testified that the assessing physician did not discuss any paranoid features with him, which may account for why his own description of his condition differs from the formal diagnosis.
[24] Mr. Potekhin testified that he obtained a medical document after the December 2020 incident stating that he could not wear a mask for medical reasons. His document disclosure form listed “Evidence of health records (mask exemption)” as one of the relevant documents to the complaint. However, Mr. Potekhin did not produce this document in these proceedings. When asked why he did not produce this document, Mr. Potekhin stated that it post-dated the incident. Ms. Potekhina testified that she disclosed all documents she believed were relevant to the complaint.
[25] The evidence before me regarding whether Mr. Potekhin’s disability prevented him from wearing a mask consists primarily of Mr. Potekhin’s testimony. Mr. Potekhin testified that wearing a mask causes him to experience an elevated heartbeat, visual disturbances (seeing circles), feelings of faintness, shortness of breath, and panic attacks. He stated that wearing a mask immediately worsens his depression symptoms and that these physical reactions are “scarier than the virus.” Mr. Potekhin did not provide any medical opinion linking his diagnosed mental disability to these symptoms when wearing a mask.
IV ANALYSIS AND DECISION
[26] To prove discrimination under s. 8 of the Code, Mr. Potekhin must establish, on a balance of probabilities: (1) that he has a characteristic protected by the Code – in this case, a mental disability; (2) that he experienced an adverse impact in relation to a service customarily available to the public; and (3) that his protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[27] Brancy One does not dispute that Mr. Potekhin has a mental disability within the meaning of the Code. Brancy One argues that Mr. Potekhin’s medical evidence does not establish that he had a disability related to mask wearing.
[28] Medical evidence is not required in order for a person to prove they have a mental disability; however, some evidence will need to be provided to prove the existence of an impairment, disorder, or illness: Gichuru v. Purewal and another, 2017 BCHRT 19 at para. 275. A complainant’s sworn evidence about their own knowledge of their disability is not just a “bare assertion”: it is evidence that the Tribunal can rely on to make findings about their disabilities: MacKay v. Civeo Corporation, 2024 BCHRT 271 at para. 47.
[29] Before I consider whether Mr. Potekhin has a disability that prevented him from wearing a mask, I first address Brancy One’s argument that the Tribunal ought to draw an adverse inference regarding the absence of evidence that Mr. Potekhin had a disability that prevented him from wearing a mask.
[30] The issue of the post-incident medical mask exemption arose during the hearing. Mr. Potekhin testified that he obtained a medical exemption after the December 2020 incident. He says the exemption stated that he could not wear a mask for medical reasons and this document was listed on his disclosure form as “Evidence of health records (mask exemption).” Brancy One drew attention to the fact that this document had not been produced. Mr. Potekhin explained that he did not produce it because it post-dated the incident. However, given that this document would directly address a central issue in this complaint, namely whether Mr. Potekhin had a disability-related reason for not wearing a mask, I must consider whether to draw an adverse inference from its absence.
[31] The Tribunal has discretion to draw an adverse inference in situations where evidence relating to a key issue in dispute is not presented at a hearing: Christensen v. Save-a-Lot Holdings Corp. (No. 3), 2023 BCHRT 125 at para 26; Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7 at para. 69. Courts consider factors such as whether the evidence was within the party’s exclusive control, whether it was material and the best available evidence, and whether there is a legitimate explanation for its absence. Importantly, before drawing an adverse inference, the Tribunal must be satisfied that the absent evidence exists, was within the party’s control, and would likely have been harmful or unsupportive to that party’s case: Boehler v. Canfor (No. 3), 2011 BCHRT 73, para. 457. This principle is equally applicable to documentary evidence: Loiselle, at para 70, citing Port Coquitlam Building Supplies Ltd. v. 494743 B.C. Ltd., 2018 BCSC 2146 [Port Coquitlam].
[32] In Loiselle, the respondent failed to produce documents that were clearly relevant and within its exclusive control, despite acknowledging they were easy to obtain. These documents would have provided the best evidence regarding Ms. Loiselle’s allegations about client work and commissions, although some testimony addressed these issues. The Tribunal found that the respondent’s explanation – that the omission was an oversight – was inadequate given its obligation to disclose all arguably relevant documents before the hearing.
[33] The medical evidence that is before me does not address the connection between Mr. Potekhin’s disability and mask wearing. The December 2020 independent medical examination report – concluded a week before the incident – does not contain any opinion about Mr. Potekhin’s ability to wear masks. The May 2023 assessment similarly does not address mask-wearing.
[34] Mr. Potekhin’s explanation for not producing the post-incident medical exemption was that it post-dated the incident and therefore was not relevant. This explanation is unpersuasive for the following reasons. First, Mr. Potekhin did produce the May 2023 medical assessment, which post-dates the incident by more than two years, demonstrating he did not consider post-incident medical evidence to be categorically irrelevant. Second, a medical document specifically addressing Mr. Potekhin’s ability to wear a mask – even if created after the incident – would be directly relevant on a central question in this case. At the hearing, Ms. Potekhina testified that she disclosed all documents she considered relevant and was not required to provide Mr. Potekhin’s complete medical records.
[35] Applying the factors in Port Coquitlam, the medical document was within Mr. Potekhin’s exclusive control – Ms. Potekhina testified to this. The document was arguably material to the allegations in Mr. Potekhin’s complaint because it could have resolved the issue of whether Mr. Potekhin had a disability-related reason for not wearing a mask. Mr. Potekhin listed this document on his disclosure form but did not provide it at the hearing. When Mr. Potekhin sought to introduce late-disclosed medical evidence a few days before the hearing, he produced other medical document (the December 2020 independent medical examination report and the May 2023 medical assessment). However, neither of these documents addressed his ability to wear a mask. The mask exemption document, which both he and Ms. Potekhina testified specifically stated he would not wear a mask for medical reason, remained unproduced. This document could have arguably weighed in favour of finding a link between Mr. Potekhin’s disability and his alleged inability to wear a mask – a key issue in this case. In the absence of a satisfactory explanation for its non-production, I draw an adverse inference that the document either failed to support his claim or contained information inconsistent with his testimony.
[36] In this case, Mr. Potekhin must prove that his mental disability interfered with his ability to wear a mask when he went to the store on December 28, 2020. As the Tribunal has stated, “any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask”: The Customer v. The Store, 2021 BCHRT 39 at para. 14. See also McLintock v. Starbucks Coffee Company and another, 2023 BCHRT 200 at para. 20.
[37] In this complaint, I find that Mr. Potekhin has not met his burden of proving a disability related to mask-wearing on the balance of probabilities.
[38] While it is undisputed that Mr. Potekhin has a mental disability, Mr. Potekhin did not provide sufficient evidence establishing a connection between his disability and an inability to wear a face mask. Mr. Potekhin asks me to find that he has a specific disability that prevented him from performing a specific activity – wearing a mask. In these circumstances, he must provide some evidence about his condition. His evidence on this connection consists entirely of his own testimony describing his experience when wearing a mask: elevated heartbeat, seeing circles, feeling faint, shortness of breath, panic attacks, and worsening depression. While I accept that Mr. Potekhin sincerely believes wearing a mask causes him these difficulties, and while a complainant’s sworn evidence is not merely a bare assertion (MacKay at para. 47), sincere belief alone is not sufficient to establish a disability-related limitation, particularly where there is no other evidence to support that belief.
[39] The difficulty with Mr. Potekhin’s evidence is that it does not explain why his specific disability prevents him from wearing a mask when many other people with anxiety disorders and depressive disorders are able to wear masks. Anxiety and depression are serious and prevalent mental health conditions. During the COVID-19 pandemic, when masks were mandated in indoor public spaces, many Canadians with anxiety and depressive disorders wore masks as required. Some undoubtedly found it uncomfortable or distressing, but they were able to comply with masking requirements.
[40] In other contexts, the Tribunal has found that the absence of evidence linking a complainant’s disability to the accommodation sought was fatal to their complaints. In Judd v. Strata Plan LMS 737, 2010 BCHRT 276, the complainants sought accommodation to keep a dog in their strata housing. The Tribunal accepted that the complainants had disabilities but found they had failed to prove they needed a dog because of their disabilities. The complainants provided no medical or expert evidence explaining how a dog would assist their specific disabilities. The evidence about why they needed a dog was based primarily on the general benefits of pet ownership and their own belief that the dog helped them but there was no evidence linking their need for a dog to their disabilities. In a dismissal application, the Tribunal found “the nexus between the Judds’ disabilities and the adverse impact alleged [was] too tenuous” (para. 36), explaining:
Although, as set out above, I am prepared to accept for the purposes of this decision that the Judds have disabilities, they have provided scant information. All they have provided is their respective diagnosis with no information about the severity of their conditions, how the conditions affect their functioning, or how having a dog would actually beneficially impact on any one of those conditions. I therefore find the link between the medical information respecting the beneficial impact of dog ownership (or, from a discrimination analysis, the adverse impact of being deprived of the health benefits of a dog) and the Judds’ specific disabilities extremely vague. [para. 34]
[41] Similarly, in Lylack v. The Owners, Strata Plan Number LMS1755 and others, 2022 BCHRT 16, the Tribunal dismissed the complaint because the complainant had failed to provide medical information about “the severity of his conditions, how the conditions affect his functioning, or how having a dog would actually beneficially impact his conditions”: para. 50.
[42] The same principle applies here. While it is undisputed that Mr. Potekhin has a mental disability, he has provided no information about how that specific disability prevents him from wearing a mask when others with similar health conditions wear masks. Both Mr. Potekhin and Ms. Potekhina testified that Mr. Potekhin obtained a mask exemption after the incident when Mr. Potekhin found a temporary family doctor. However, Mr. Potekhin has not provided any medical opinion about the mechanisms by which his condition interferes with mask-wearing. Nor has he provided evidence about attempts to wear different types of masks or face coverings. His evidence consists solely of his testimony about his experience and his sincere belief that he cannot wear masks due to his disability. On this basis, I find that the link between Mr. Potekhin’s disability and his claimed inability to wear a mask is, as in Judd, “too tenuous.”
[43] For these reasons, I find that Mr. Potekhin has not established, on a balance of probabilities, that he had a disability that prevented him from wearing a face mask at the time of the December 2020 incident. While he has established that he has a mental disability, he has not provided sufficient evidence – medical or otherwise – establishing that his disability prevented him from wearing a mask. The nexus between his disability and his claimed inability to wear a mask is too tenuous to support a finding of discrimination.
[44] Therefore, I find that Mr. Potekhin has not met his evidentiary burden, and I dismiss the complaint under s. 37(1) of the Code.
V CONCLUSION
[45] Based on all the evidence, I do not find that Brancy One breached the Code and discriminated against Mr. Potekhin. I dismiss the complaint.
Ijeamaka Anika
Tribunal Member