Vancouver private club was justified in excluding member over proof of COVID-19 vaccination, tribunal rules

A deck at the Arbutus Club is seen in this image from the club's website. (arbutusclub.com)

A private club on Vancouver's West Side acted reasonably when it denied access to its facilities to a member who didn't provide proof of vaccination against COVID-19, B.C.'s small claims tribunal has ruled.

Saul Khan took The Arbutus Club to the Civil Resolution Tribunal over its enforcement of B.C.'s vaccine passport rules, which were in effect between Sept. 13, 2021 and April 8, 2022. 

Khan argued that the club acted "in an unfairly prejudicial manner" by barring members who didn't provide proof of vaccination from accessing the club during that period.

In a decision published last week, CRT member David Jiang dismissed Khan's complaint, holding that the club had acted reasonably in response to the provincial vaccine passport rules. 

ACCESS TO POOLS AND RINKS DENIED

According to Jiang's decision, Khan and other members of the club hired a lawyer to represent them in correspondence with the club about the proof of vaccination rules.

The lawyer sent a letter to the club on Oct. 5, 2021 demanding that the members be given access to "pools, skating rinks, physiotherapy and massage therapy service areas, the retail store, and areas of the club not expressly covered" by the provincial health officer's order requiring proof of vaccination.

In response, the club – through its own lawyer – told Khan and the other aggrieved members that it had received advice from the Provincial Health Services Authority stating that the club was considered a single facility for the purposes of the B.C. Vaccine Card program.

Thus, the club argued, it was required to bar access to all of its facilities for people who refused to provide proof of vaccination.

Khan's lawyer responded by saying the aggrieved members had received differing advice from health officials, which suggested that the club could provide access to specific facilities without requiring proof of vaccination.

Jiang concluded it was "likely that the parties received contradictory information," but that the club was "entitled to err on the side of caution" in its enforcement of the rules.

"Even if the club’s interpretation was wrong, I find the club was entitled to enforce a policy that required a stricter level of compliance to show proof of vaccination," the tribunal member wrote, noting that the club had "a significant number of vulnerable members" that it was within its rights to try to protect.

"As noted in the PHO’s order, the club had an obligation to verify proof of vaccination for persons entering its place," Jiang wrote. "The club essentially interpreted 'place' to mean the entire building, rather than parts of it. I find the club’s interpretation was reasonable, particularly as the order’s purpose was to impede the spread of an infectious disease."

CLUB MEMBER ARGUED VACCINES WERE INEFFECTIVE

At the start of his decision, Jiang noted that Khan framed his claim as being about "confidential medical information including proof of vaccination," but did not make any allegations about anything other than the vaccine passport requirement.

Khan also told the tribunal that the vaccine passport order itself was unnecessary and "scientifically unwarranted," according to Jiang.

The tribunal member notes that Khan sent an email to the club in January 2022 "about a group of individuals in Antarctica that showed vaccines against SARS-CoV-2 were ineffective."

In response to this, Jiang noted in his decision that the order requiring proof of vaccination came from the provincial health officer, whose job it is to "independently advise the government on public health issues."

"With respect, I find that Mr. Kahn could not reasonably expect the club to prefer his conclusions over the PHO’s," the tribunal member wrote.

"These included the PHO’s conclusion that vaccination uptake would reduce the public health risk of COVID-19, and requiring proof of vaccination would encourage uptake, as stated in the order."

NO OBLIGATION FOR CLUB TO PROVIDE FINANCIAL RELIEF

Khan's claim sought a refund for $1,939.12 in monthly dues he paid during the time he was barred from the club's facilities, plus $1,000 in interest he alleged the club made during the same period on his initial membership entrance fee of $22,500, which he paid in 2001.

Jiang wrote in his decision that he reviewed the club's bylaws and rules and found no provisions suggesting that members who don't or can't use the facilities are entitled to refunds.

Rather, the tribunal member noted, the club says its fees are non-refundable because it has "significant operating expenses" that must be paid regardless of how much or little its members use the facilities.

One option that is available to members is to apply to the membership committee for "social member" status, which comes with a smaller monthly fee, but limits what club facilities a member can use, according to the decision.

"Given this, I find Mr. Kahn was free to apply for a social membership and reapply for full membership at a later date," Jiang wrote. "However, as he did not do so, I find this is another reason that he could not reasonably expect the club to refund his fees. At a minimum, he did not take reasonable measures to mitigate his loss."