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An anti-masker who changed his evidence about why he couldn't wear a face mask halfway through his case has lost at the B.C. Human Rights Tribunal.

According to a March 2 B.C. Human Rights Tribunal decision, Alexander Kim entered a Hot Topic store in Burnaby wearing a face shield in November 2020.

He says a manager told him he had to wear a mask or she could bring him things to the front of the store. The manager also offered an appointment to shop outside regular hours.

Kim disputes this and says he told the manager he had a "breathing condition" which prevented him from wearing a face and the manager refused to bring items outside for him to see.

The store did make him an out-of-hours appointment to shop at 7 p.m. that day but he did not attend saying he has vertigo, and it is not safe for him to travel after dark.

The incident took place before the province mandated a mask policy.

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He then launched a B.C. Human Rights Tribunal case against the store.

It appears Kim is the first anti-masker to have his case taken all the way to a hearing. A handful of other similar cases have been dismissed in the earlier stages and never made it to a hearing.

According to the decision, Kim changed his evidence as to why he couldn't wear a face mask over the course of the Tribunal complaint.

"In his original complaint form, Mr. Kim says that 'I have asthma and can’t wear a mask (but do wear a face shield),'" the decision reads.

However, he later amended his filing to the Tribunal saying that asthma may not be enough to exempt him from mask-wearing requirements.

He then says he has low oxygen saturation in his blood which can make him pass out if his oxygen is restricted. He also says he has vertigo which affects his vision and balance if he wears a mask.

He submitted a doctor's note which says he is unable to wear a mask because it exacerbates his vertigo.

"Kim’s shifting reliance on various medical conditions, and the minimal evidence he has presented, makes it difficult for me to conclude that he has a disability which precludes him from wearing a face mask," the Tribunal ruled.

However, the Tribunal ruled it didn't have to decide whether Kim had a legitimate disability-related reason for not wearing a face mask as it found the store had offered the correct accommodations anyway.

"(The manager's) evidence is consistent with the documentary evidence about the store policy and practice during the relevant time. In contrast, I find that Mr. Kim’s version of events is not consistent with the probabilities of the case as a whole," the Tribunal ruled. "It does not make sense that Ms. Zakaria would have refused to serve Mr. Kim at the storefront – as he claims – in circumstances where it was store policy to do so, she had the ability to do so and was already talking to him outside the store, there was a store sign advertising that service, and she had done that for other customers."

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The Tribunal also says Kim's allegations against the store have also changed over time.

Ultimately, the Tribunal dismisses his complaint.

However, the Tribunal goes on to criticize his behaviour after the hearing.

The decision says two weeks after the hearing Kim contacted the Tribunal and said he had aphasia which affects his reading, writing, and speech, and meant he couldn't quickly read documents submitted to the tribunal at a late stage.

"Mr. Kim never raised anything like this during the hearing, though he could have," the Tribunal said.

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He then submitted a video in an attempt to undermine the evidence presented at the hearing.

"The time to make those arguments and submit that evidence was during the hearing," the Tribunal ruled. "It is not fair or efficient to continue to send communications elaborating, expanding, and repeating arguments that have already been made."

Kim then made "baseless accusations" against the store's lawyer saying she "lied, coached witnesses, and engaged in 'playground antics' and conduct that could get her 'disbarred.'"

"I reject these arguments in the strongest possible terms. There is no evidence to support them," the Tribunal ruled. "These types of communications are disrespectful and below the standard the Tribunal expects of participants in its process."

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