Several Ontario gyms are reopening. They’re citing a ‘physical therapy’ exception intended for people with disabilities

Several Ontario gyms have recently reopened under an exception in the province’s lockdown regulations intended to serve people with disabilities — raising concerns that they are exploiting a legal loophole and creating a public health risk.

The exception in the Reopening Ontario Act allows a fitness facility to open solely for use by persons with a disability, within the meaning of the Accessibility for Ontarians with Disabilities Act, who have a “written instruction” from a regulated health professional for “physical therapy” that they can’t do elsewhere.

In advertising or when approached by the Star, three Ontario gyms that have recently reopened said they won’t ask clients to show a note, claiming they can’t ask under disability laws.

Teresa Heron, the co-owner of Huf gym in Mississauga, which was fined last week for staying open in defiance of public health orders, said in a note to members the gym will not ask clients to show a note, nor question anyone’s eligibility to use the gym for that purpose. Clients with disabilities can get “can get a prescription to de-stress through boxing,” Heron recently told the Star.

“WE CANNOT AND WILL NOT be asking for your Doctors Note or for you to explain or justify any details regarding your disability nor can we question your eligibility to access the gym,” another Brantford-area gym told followers in an Instagram post. “NO ONE has the right to ask you for private medical information or to prove or identify your disability.”

In another Instagram post, a Toronto-based gym encouraged patrons to who need to “benefit their mental and physical health” to obtain a note from a doctor, nurse, physiotherapist, occupational therapist or other regulated health care professional, saying that note needs to specifically mention “physical therapy.”

Indoor gyms reopening without clear public health guidelines on the number of people permitted in a facility at a time when hospital ICUs near breaking point has infectious disease experts worried.

This is the worst time for gyms to be reopening, said Colin Furness, an epidemiologist and assistant professor at the University of Toronto. “You are sharing indoor air, you are breathing heavy, the aerosols can hang in the air … it’s a perfect storm for COVID,” he said.

Ontario’s lockdown regulations were amended in February to allow recreational or fitness facilities to serve people with disabilities who require “medically necessary and prescribed physical therapy.” A guidance document published that month stresses that such access “should be sought only when access to hospitals or other treatment centres is unavailable.” The document does not define physical therapy.

Any gyms that provide this service must continue to comply with public health measures, must limit themselves to 25 per cent capacity and maintain two-metre distancing, said Elric Pereira, a spokesperson for the Ministry for Seniors and Accessibility.

Indoor gyms are inherently high-risk, Furness said, adding there have been several gym-related outbreaks, including one of the largest super-spreading events in Canada, linked to a Quebec City gym.

Regulated health professionals, like physiotherapists, can provide in-person care because they have to comply with the rules and ethics of their profession — but a gym suggesting they won’t even verify a doctor’s note, “that’s starting to sound like a scofflaw, that’s starting to sound like, hey, we found a loophole,” he said.

“I would be trying to minimize this for the next six weeks,” he said. “After six weeks, vaccinations will reach the stage where things start to get better.”

Registered massage therapist Melissa Doldron said it sounds like some gyms were “manipulating the language of the disabilities act” in order to find a way to reopen.

“I feel like it’s a grey area that they are trying to circumvent,” she said, adding she sympathizes with gyms that have had to remain closed and pivot to virtual classes.

“I do know that exercise helps people’s physical, emotional and mental well-being because I say that to my patients all the time,” she said. “But I feel like this is a slippery slope.”

The College of Physiotherapists of Ontario says their members have frequently asked about the issue of gym referrals.

Its website says a physiotherapist needs to carefully consider the risks of each patient and that written instructions for prescribed physical therapy at a gym should only be provided to persons with disabilities when clinically necessary and not in exchange for any benefit.

Similarly, the College of Occupational Therapists of Ontario said it could be appropriate to recommend an independent rehabilitation program, taking into account public health directives and safe alternatives.

The Ontario Medical Association and the College of Physicians and Surgeons have not issued guidance on the issue for doctors.

Sharon Gabison, assistant professor in the department of physical therapy at the University of Toronto’s Temerty Faculty of Medicine, said physiotherapists have continued to treat patients during the pandemic — virtually whenever possible but sometimes in person when needed in keeping with strict public health guidelines.

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She said she would be reluctant to recommend a patient do their prescribed therapeutic exercises in an environment that cannot fully ensure that public health guidelines are being implemented and enforced. “If my patient needs to engage in exercises on their own to improve or maintain physical function, I would first try to work with what is in their immediate environment to ensure that they are safe and are not put at risk,” she said.

It is unclear exactly how many Ontario gyms have reopened using the physical therapy exception. However, Ontario lawyer Ryan O’Connor said he has advised 28 gyms that have reopened or plan to reopen amid the lockdown, and is fielding calls from more considering it.

O’Connor, a founder of right-wing political group Ontario Proud, said the exception was introduced after he launched a constitutional challenge on behalf of a Kitchener gym that has a long-standing clientele with disabilities.

Gyms “can only open to those who experience disability, who have the note and they can’t get physical therapy elsewhere,” he said. “But the definition of physical disability under Ontario law is quite expansive, it covers mental and physical issues.”

He said the regulation does not require a regulated heath professional to be present in the gym — a view also taken by both the College of Physiotherapists of Ontario and the College of Occupational Therapists of Ontario — and added there is no requirement that the gym look at a note. Regardless, he said staff should be confirming that a note exists and that “different facilities may be doing that in different ways.”

A gym can’t just open its door for a “free-for-all,” he said. “The facility can’t open unless they strictly comply, and how they comply is open to them, sensitive to the needs of their community, making sure they are not engaging in unlawful discrimination contrary to the Human Rights Code laws and ensuring they meet both the letter and spirit of the regulations.”

It is unclear how cities will monitor gyms that choose to reopen.

A spokesperson for the city of Toronto said that “it can be difficult to say if a doctor’s note is sufficient” and that each case is different. The city’s joint enforcement team will continue to investigate complainants and conduct proactive inspections, the spokesperson said.

Meanwhile, Peel Region says legal actions continue against Huf gym, which was open again Tuesday.

The Ministry of the Attorney General said it could not comment due to ongoing litigation.

Another GTA gym owner is taking a different approach.

Geordan Thomas, who owns Toronto’s United Boxing Club, is one of the organizers of what he calls peaceful fitness protests, in which people gather to workout outdoors at different locations across the city.

But, he said, using the exception to open up for indoor workouts raises the risk of being fined for not following the guidelines.

“There’s a lot of clubs opening up and they’re not doing it properly,” Thomas said, adding: “I really understand how serious COVID is. I don’t take it lightly at all and I don’t want to be within that narrative.”

Jason Miller is a Toronto-based reporter for the Star covering crime and justice in the Peel Region. His reporting is funded by the Canadian government through its Local Journalism Initiative. Reach him on email: jasonmiller@thestar.ca or follow him on Twitter: @millermotionpic

TORONTO STAR