The Justice Centre filed a legal application in BC Supreme Court on March 16, 2022, seeking to strike down the BC Provincial Government’s Orders that mandates taking the Covid-19 vaccine as a condition of employment for specified groups of BC healthcare workers. The lawsuit is filed on behalf of several BC healthcare workers represented by the Justice Centre, who have lost their jobs because of the Orders.

Provincial Health Officer Dr. Bonnie Henry issued a series of Orders in October and November 2021 that ultimately applied to all BC healthcare workers and staff who work in or for BC Health Authorities, care facilities, or other designated facilities across the province. The effect of the Orders was that the workers needed to show proof of having received all doses of an approved Covid-19 vaccine, or they would lose their jobs.

Dr. Henry also issued a series of Orders between August 2021 and February 2022 that allowed employers, operators, and contractors to obtain personal information from healthcare practitioners and staff, as well as their Covid-19 vaccination status.

These Orders compelled healthcare practitioners and staff to provide their legal names, dates of birth, and personal health numbers, as well as their Covid-19 vaccination status, to their employers, upon request. The orders also forced employers and contractors to report the healthcare practitioners’ and staff members’ personal information and vaccination status to the BC Government.

On March 7, 2022, Dr. Henry issued a new Order that compels colleges, as defined by the Health Professions Act, to provide identifying information about each of their registrants. The Order further states the Minister of Health must verify the Covid-19 vaccination status of each registrant, and to disclose that information to the relevant regulatory college. The Order compels each registrant, upon request from the college, to provide proof of vaccination, or of an exemption. The college must record each registrant’s vaccination status by March 31, 2022.

Healthcare workers, including Phyllis Tatlock, Laura Koop, and Monika Bielecki, filed a Petition to the Supreme Court of British Columbia on March 16, 2022.

On June 10, 2022, Dr. Henry issued an order that expanded the reach of the March 7, 2022 order. The June 10, 2022 order varied the March 7, 2022 order to include students who were already registrants of a medical college, and who were applying for enrollment in a medical program at a post-secondary institutions.

On September 12, 2022, Dr. Henry issued two new orders that expanded the scope of her earlier orders. These orders applied to students applying to post-secondary medical programs (i.e. those who were not already registrants of a medical college), as well as to staff members of post-secondary institutions who work in a care location, as defined in the order, or who provide administrative or managerial support services in a post-secondary student health services facility. These new groups of individuals were compelled by the orders to report their Covid-19 vaccination status to their post-secondary institutions, on request, and the post-secondary institutions were required to report that information to Dr. Henry, on request.

On April 6, 2023, Dr. Henry issued two new orders that further expanded the scope of her previous orders. These orders eliminated the provisions in the earlier orders that allowed construction workers and “occasional other outside providers who do not have contact with patients” to work in care facilities without having to show proof of vaccination. If they did not show proof of vaccination, those groups of workers, except for construction workers who did not have close proximity with patients, had to physically distance and wear a mask. A construction worker who did not work in close proximity to patients did not even have to wear a mask or physically distance. The April 6, 2023 orders captured these new groups of workers to compel them to show proof of vaccination in order to work.

On July 14, 2023, Dr. Henry issued an order that cancelled the June 10, 2022 order, stating that “[t]he collection and disclosure by the Colleges of vaccination status information of registrants is no longer needed to support the response to the “regional event” as described in the notice issued by me on March 17, 2020, also known as the SARS-CoV-2 public health emergency”. This means that registrants of medical colleges do not need to report their vaccination status to their colleges, and the colleges are not required to report their data to Dr. Henry. However, healthcare workers who work for a Provincial Health Authority in British Columbia are still required to show proof of vaccination to be allowed to work. This includes workers who do not have in-person contact with patients, such as administrative workers, or those who work remotely.

The only available exemptions from the vaccine mandate are for very limited medical reasons as determined by governmental authorities, not by the patient’s physician. Under the Public Health Orders, a healthcare worker would have to have taken one dose of an approved Covid-19 vaccine, and experienced a serious adverse reaction, or been diagnosed with myocarditis or pericarditis, to have a deferral request even considered by Dr. Henry.

There are no exemptions to the Orders’ vaccine mandate on grounds of religious belief or conscience. The healthcare workers are also unable to seek reconsideration of the Orders under the Public Health Act, which is a remedy contained in that legislation. Dr. Henry’s Orders prohibit such reconsideration.

Lawyer Charlene Le Beau says, “the Charter is the highest law in the land, and no Order and/or legislation can oust the Charter‘s protection of fundamental freedoms such as freedom of religion and freedom of conscience.”

Some of the healthcare workers represented by the Justice Centre work remotely, while others work in an administrative capacity. Some do not even work in a healthcare setting in a front-line care role. For healthcare workers who do attend facilities where vulnerable persons are present, there is no consideration as to whether masking and rapid testing prior to attending the workplace, as was the practice before introduction of Covid vaccines, would meet the objectives of the Orders, not even where the healthcare workers attended the workplace occasionally or rarely.

The Orders make no provision for natural immunity to Covid-19.

The Justice Centre has also learned that some third-party contractors who work remotely, and who attend facilities less than once per month, are not subject to the vaccine mandate set out in the Orders. The Justice Centre points out the unfairness of the vaccine mandate for these petitioners, when Dr. Henry has not mandated the vaccine for other groups of health professionals.

On November 10, 2023, the scheduled 10-day hearing began at the Supreme Court of British Columbia. This challenge draws attention to Public Health Orders that continue to violate the freedom of conscience and religion, right to security, and right to equality of thousands of British Columbian healthcare workers.

As this is going on, British Columbia is experiencing a healthcare crisis, according to reports. Emergency rooms in rural communities are closing; wait times are climbing; birthing units in Surrey are suffering from acute shortages – sometimes with fatal consequences. British Columbians are turning to private and even cross-border healthcare options to get treatment.

In addition to pointing out that vaccines have proven ineffective and have caused adverse reactions, lawyers for the Petitioners argue that ordering vaccination as a condition of employment interferes with the right to medical self-determination – protected by Section 7 of the Canadian Charter of Rights and Freedoms. Further, lawyers point out that the mandates failed to provide opportunities for religious and conscientious objections – protected by Section 2 of the Charter. Further, while healthcare workers were terminated for being unvaccinated, the government was hiring remote-working contractors with no requirement that they be vaccinated, generating a concern about equality – protected by Section 15 of the Charter.

Lawyer Charlene LeBeau stated, “The rights of healthcare workers must not be disregarded, even when the goal is to protect public health. This is especially true in relation to mandating a new medical treatment that has a terrible track record for adverse reactions and, in any event, has proven to be ineffective in stopping infection or transmission.”

Justice Centre President John Carpay remarked, “Understaffing in British Columbia’s healthcare system is literally killing people, based on an ideological decision to punish doctors, nurses and other healthcare workers more than two years after they legitimately exercised their Charter right to bodily autonomy. Science and medicine ought to prevail over ideology.”

Counsel for the Tatlock petitions presented their legal arguments to the Supreme Court of British Columbia on December 18, 2023. 

Further written submissions were made on behalf of the Tatlock petitioners on January 22, 2024, in response to January 15, 2024 submissions made by the BC Attorney General. The Honourable Justice Coval will be rendering a decision on this case in the coming months.