Gym target of ‘ludicrous’ human-rights complaint for following Ontario COVID rules

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The pandemic and its related public-health restrictions have not been easy on Hub Climbing.

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The operator of two rock-climbing gyms near Toronto struggled to pay bills during the months of lost business, still almost went bankrupt and stayed afloat only after its proprietors took out personal loans, says co-owner Steven Brown.

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But Brown says the final straw came just last month, when he learned he must go through the arduous process of defending a human-rights complaint — essentially because Hub obeyed the law and implemented provincial public-health rules.

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Former People’s Party of Canada (PPC) candidate Florian Bors alleges Hub Climbing discriminated against him when it denied him access to their gym in Markham for not being vaccinated against COVID — at a time when proof of immunization was legally required to enter non-essential businesses.

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The Human Rights Tribunal of Ontario (HRTO) initially told Bors it didn’t have the jurisdiction to hear the grievance, but changed course in December, informing him his claim would “continue in the tribunal process” and notifying Hub of the case against it. The new approach came after Bors alleged religious discrimination in follow-up correspondence.

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Responding to the tribunal’s investigation has already meant hours of work for the company and will likely require hiring a lawyer, too, said Brown.

“It’s so ludicrous,” he said. “It’s their law at the provincial level that they’re now blaming us for following….  As a small business, believe it or not we’re still recovering from COVID. We’re still having a hard time finding staff. The last thing we want to deal with is this garbage.”

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Michael McLean, a spokesman for Tribunals Ontario, declined to address questions about why HRTO is hearing a complaint against a business that was implementing provincial law — one that’s since been lifted.

But he said an application that falls within the tribunal’s jurisdiction requires written submissions and will not be disposed of until the parties have a chance to make oral arguments, too.

“The decision to proceed with the application is not a final determination on the merits of the case,” added McLean.

Bors said in an interview he knows it’s been tough for small business during the pandemic and does not want to “ruin” Hub Climbing, only raise awareness about the vaccine law. He said he submitted similar complaints against other businesses that barred him and his family; when those firms agreed to discuss the matter, he withdrew the claims, he said.

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“All (Brown) had to do is sit down with me and say ‘I was wrong, sorry,’ and I would drop it.”

Bors said he realizes Hub was merely implementing a provincial law but “just because it’s a law doesn’t mean it’s right. Slavery was a law but it wasn’t right.”

The last thing we want to deal with is this garbage

He confirmed that he told the gym his objection was over the fact it was requesting he reveal “private and confidential” medical information. He later informed the tribunal he refuses to be vaccinated for faith reasons. Bors said his five children all have religious exemptions allowing them to attend school unvaccinated.

In fact, complaining to the tribunal about a company that’s following the letter of provincial law is not uncommon, says a leading expert in the field.

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The Human Rights Code usually takes precedence over other government edicts, said lawyer Raj Anand, who once headed the province’s Human Rights Commission. That means businesses have a duty to at least try to accommodate people alleging discrimination based on one of the grounds specified in the code — even if the alleged discrimination happened while the organization was complying with a different law.

Turban-wearing Sikh men have been exempted from wearing government-mandated helmets or construction hard-hats, for instance, in rights cases that targeted their otherwise law-abiding employers.

That said, if Bors didn’t raise his religious objections when he first dealt with the gym, Hub would have no obligation to try to accommodate those beliefs, said Anand.

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As a result, “I think he’s likely to lose.”

After various lockdowns that meant closing its doors completely, Hub Climbing — once used by movie star Jason Momoa to help train for the Aquaman sequel — was open in the fall of 2021 but had to ensure customers were fully vaccinated.

Bors emailed the gym in Markham, Ont., Sept. 21, a day after he had finished fourth in the Lanark-Frontenac-Kingston riding, as the federal election ended with his PPC failing to win a seat.

“Do not be an enabler of the government that is doing evil,” Bors told the gym when an employee explained it could be fined or shut down if it failed to enforce the vaccine requirement.

His initial application to the tribunal indicated that he was being forced to provide private medical information and had suffered “embarrassment and mental anguish” in his email exchange with Hub.

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But when the HRTO said last May that it lacked jurisdiction over general complaints of unfairness — as opposed to discrimination on grounds like race and sex that are set out in the code — he wrote with a new allegation. This time he said his religious rights had been violated, creed being one of the grounds delineated in the rights law.

Among other arguments, Bors said the vaccine had dangerous side effects, and as a Christian he considers his body to be a holy temple that cannot be exposed to harmful substances.

The tribunal can dismiss claims early in the process if it deems the complaint to be outside its jurisdiction, often without hearing from the alleged culprit.

But on Dec. 15, the HRTO said it would continue with the process and asked Hub to respond to the allegations. The case could eventually move to mediation, then a public hearing. The agency added, though, that it had not made a final decision on whether it has jurisdiction over the complaint.

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Still, Brown said it’s galling that a business like his has been hauled before a quasi-judicial body for trying to do the right thing during the pandemic.

“We are a climbing gym but at the heart we’re a community,” said the co-owner. “It’s a place to be with your friends and be healthy and be happy. People love coming here…. They’re messing with something that is really kind in our society and I think that makes it really sad.”

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