“Arbitrary” Ontario Gym Closures Vulnerable to Legal Challenge?

The marathon Covid-19 pandemic has seen no shortage of government orders intruding on the liberties of normal life. The vast majority of these are lawful and within the power of government. That said governments can go too far and recent arbitrary rules for which athletes can and cannot go to the gym in Ontario may just be crossing the line.

Earlier this month Ontario once again closed gyms. They then carved out exceptions for various professional and amateur athletes. Some can continue to train and earn a living. Others cannot. The list of who can and who can’t go to the gym seems to have little to do with science and much to do with the whim of government.

Several UFC fighters were displeased with the latest gym closures and reached out to find out if they, as professional athletes, enjoy an exception. They were told no.

Reporter Aaron Bronsteter did some digging and was provided this communication which was sent out to several UFC fighters

The Government of Ontario published the following summary relating to their latest round of gym closures:

Indoor areas of facilities used for sports and recreational fitness activities, including gyms, sporting events and personal training must operate under the following conditions:

  • indoor closed with limited exceptions and conditions (such as athletes training for Olympics and Paralympics, select professional and elite amateur sport leagues who will operate via an approved framework from the Office of the Chief Medical Officer of Health and persons with disabilities for physical therapy)
  • outdoor open with spectators limited to 50 per cent capacity and other restrictions
  • proof of vaccination required for facilities with a usual capacity of 20,000 or more people

Summaries are not the actual law. Digging deeper Ontario Regulation 263/20 spells out the actual order and this goes on to carve out very few exceptions for who can go to “Facilities for indoor sports and recreational fitness activities”. The exceptions include Olympic Athletes, various designated amateur athletes and the following list (contained at section 8 of Schedule 1 of the Regulation) of professional athletes:

Notably absent are any combat sports. It makes little sense why the entire roster of the Toronto Maple Leafs or Blue Jays can go to the gym and lift weights but a professional boxer, kickboxer or MMA fighter cannot. Both categories of athletes rely on the gym training for their livelihood. It is difficult to imagine how the distinction between the pro athletes on the above list and those excluded is rooted in any credible science.

Laws and regulations that run afoul of the Canadian Charter of Rights and Freedoms can be struck down. The Charter provides various protections including freedom of mobility to earn a livelihood, assembly and association.

I reached out to Kyla Lee, a leading Canadian Charter lawyer, who expressed puzzlement on this “arbitrary” Ontario regulation

The Canadian Federal Government places enough value on the rights of professional athletes ability to make a living without unlawful interference of others that they made it a crime to conspire to limit athlete rights. Specifically section 48 of the Competition Act reads as follows:

Conspiracy relating to professional sport

  • 48 (1) Every one who conspires, combines, agrees or arranges with another person
    • (a) to limit unreasonably the opportunities for any other person to participate, as a player or competitor, in professional sport or to impose unreasonable terms or conditions on those persons who so participate, or
    • (b) to limit unreasonably the opportunity for any other person to negotiate with and, if agreement is reached, to play for the team or club of his choice in a professional league is guilty of an indictable offence and liable on conviction to a fine in the discretion of the court or to imprisonment for a term not exceeding five years or to both.

I reached out to Amelia S. Fouques, one of Canada’s leading sports lawyers and founder of the Canadian Sport Law & Governance Association asking whether Competition Act issues can arise here who noted such a law could never be enforced in Ontario’s neighboring Province of Quebec

A better balance can be found in my home Province of BC where the government also deemed it necessary to shut gyms down but made a distinction for ‘sport’ training without resorting to the sport favoritism that Ontario is displaying.

While it is unclear if Ontario’s current gym shutdown for some pro athletes but not others would survive legal challenge a Court would at the very least be hard pressed grappling with any logical explanation for the policy which leaves some pro athletes on the sidelines.

Ontario can do better.

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Update: January 14, 2022 – UBC Constitutional Law adjunct professor Robert Danay was kind enough to weigh in on this topic with his views on the Charter and its potential role (or lack thereof) as a tool to remedy Ontario’s arbitrary rule. His full tweet thread is worth a read and can be accessed here:


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