A Kitchener gym has filed a constitutional court challenge to get an exemption to Ontario’s Stay-At-Home closures, the Toronto Sun has learned.
It is the first such case dealing with COVID-19 lockdown rules and gyms.
In court documents filed to the Ontario Superior Court of Justice in Kitchener on Thursday, NorthXFit — which said it has been closed since Dec. 26 due to government COVID-19 restrictions — claims certain sections of the province’s Rules for Areas in Stage 1, as well as its recent Stay-At-Home order, violates the Canadian Charter of Rights and Freedoms and the Human Rights Code.
According to the Notice of Application, NorthXFit was originally founded by owner Sascha King in 2015 to make “opportunities for fitness and healthy living more accessible to the general public,” providing services to those with special needs, adaptive needs mental health challenges and mental and physical disabilities.
“The ban on NorthXFit’s members and the public from use of the facilities, and by extension, their ability to associate with others, also imposes a burden upon them, and restricts their Charter freedom, solely because they are not Olympians, Paralympians or professional athletes,” according to the documents. “Those groups can still legally use, anywhere in Ontario, indoor fitness facilities catering to them.”
“This is a broad challenge to the restrictions, not just with respect to my client,” lawyer Ryan O’Connor, of Zayouna Law Firm P.C., who filed the application, said Thursday.
According to the documents, NorthXFit said it followed all closure orders beginning March 18, 2020, which were extended until May 18. On July 17, the gym was allowed to reopen as the Waterloo region entered Stage 3.
Fitness centres were allowed to stay open through the various colour zone until the province announced on Dec. 26 amendments to restrictions that required indoor fitness and recreation facilities to close, with limited exceptions — including places were Olympians and Paralympians train and arenas used by professional sports leagues such as the National Hockey League.
NorthXFit also claims the indoor fitness facilities ban is inconsistent with the Human Rights Code as it “denies the right to equal treatment with respect to services of user…who experience mental or physical disabilities, mental health challenges, cognitive impairments and/or special needs,” according to the application documents.
The gym claims while other Ontarians can exercise outdoors legally — one of the exemptions in the Stay-At-Home order — many NorthXFit can’t because “they require adaptive equipment only located at the facility.” In the winter, it would be “especially dangerous” for clients who have certain needs to attempt exercise due to weather conditions.
“The Charter requires that laws not have a discriminatory impact or exacerbate historical disadvantages,” reads the document. “(The indoor fitness ban) has a discriminatory purpose and a discriminatory effect.”