VANCOUVER — Would members of a gym or club barred after refusing to show proof of vaccination be entitled to a refund of monthly fees during a provincially ordered COVID lockdown?
That is what a civil resolution tribunal official had to determine in the case of a member of the Arbutus Club in Vancouver who sued the exclusive sport and social institution for a refund of his monthly fees after he was barred entry during part of 2021 because he refused to disclose whether he had been vaccinated against the COVID virus.
He was barred between Sept. 13, 2021, and April 8, 2022, when sa国际传媒’s public health officer required anyone entering certain public places to be vaccinated against the SARS-CoV-2 virus that caused COVID-19, according to a tribunal judgment written by David Jiang.
Member Saul Kahn argued he was treated in an “unfairly prejudicial manner” and sued the club for the $300 he paid each month in fees, almost $2,000, according to the claim. He also asked for the club to return what it would have earned in interest during that time on the $22,500 he paid in fees in 2001 to join the club, about $1,000, because the club was “unjustly enriched” by that amount.
And Kahn asked the tribunal to request the club to provide him with the email addresses of other members similarly barred, or to send an email to members with a request from Kahn for them to contact him, the document said.
But Jiang dismissed Kahn’s claim.
“I find the club did not act in an unfairly prejudicial manner or otherwise breach any obligation to Mr. Kahn in this dispute,” he wrote.
sa国际传媒’s public health officer Dr. Bonnie Henry issued a temporary order beginning Sept. 10, 2021, that required organizers of gatherings and events to ensure anyone attending or entering be vaccinated against COVID. The Arbutus Club complied on Sept. 13, 2021, Jiang said.
Kahn’s lawyer sent a letter in October 2021 demanding that Kahn be allowed to access the pool, skating rink and physiotherapy and massage therapy services as those were exempted from the public health officer’s order, saying the club had “unnecessarily restricted member rights and privileges while continuing to charge their monthly fees.”
After considering the letter, the Arbutus board said the Provincial Health Services Authority had advised it that it considered the club a single facility, even though it had several buildings, and the board made a decision to keep the vaccination policy facility-wide, the judgment said.
It would not be feasible or practical to try to maintain a separation between those with limited access to the facility because all areas are accessed by one main entrance and some facilities exempted from the order share washrooms with full-access areas, Jiang wrote.
He said Kahn didn’t address the logistics of keeping facilities separate for its 8,500 members, or whether more staff would have to be hired or what it would cost to implement wristbands or a facial-recognition system.
The club also said its bylaws prevent it from reducing or refunding fees because its operating expenses depend on full payment to maintain the club, the judgment said. Jiang also noted that Kahn had the choice to reduce his monthly fees by temporarily changing to a social membership for $76 a month in fees, but didn’t do this to mitigate his losses.
Kahn said his research based on a group of individuals in the Antarctic showed vaccination against the COVID virus was inefficient, despite the public health officer saying proof of vaccination had been shown to reduce the public health risk of COVID.
Jiang wrote that the club was entitled to interpret the policy more strictly to protect its members, especially its 1,000 children under 12 years old, who at that point were not yet vaccinated, and the 1,500 seniors, who were more vulnerable to serious complications of the disease.
“Khan could not reasonably expect the club to prefer his conclusion over the (public health officer’s),” Jiang wrote.
Jiang said that to show Khan was unfairly prejudiced, he would have to demonstrate oppression and harm to his particular interests.
“He didn’t suffer any particular prejudice distinct from other members, as they all had to comply,” wrote Jiang.
Other clubs, such as Vancouver Club, Terminal City Club, North Shore Winter Club, Hollyburn Country Club and Glencoe Club, all followed the public health officer order, the judgment noted.
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