VANCOUVER: The Justice Centre has filed a Petition in BC Supreme Court seeking to strike down the BC Provincial Government’s Orders that mandate 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.
The Justice Centre’s legal challenge cites violations of the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, freedom of religion and conscience, and equality rights. This constitutional challenge also cites violations of the right to informed consent, as well as violations of the healthcare workers’ privacy.
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 current 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. A previous anaphylactic allergic reaction to components of both an mRNA and adenovirus vaccine would also qualify for a deferral, if periodic re-evaluation were sought through a qualified allergist. Authorities also permit a diagnosis of Multisystem Inflammatory Syndrome as a reason for deferral from the vaccine. The only other deferral that may be granted is if the healthcare worker has received anti SARS-CoV-2 monoclonal antibodies or convalescent plasma for treatment or prevention of COVID-19.
There are no exemptions to the vaccine mandate set out by these public health Orders 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.
Charlene Le Beau, lawyer with the Justice Centre, says, “The Charter is the highest law in the land, and no Order or legislation outranks and outweighs 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 health-care setting in a front-line care role. No exceptions were made for healthcare workers who are not working with those who are more at risk from Covid-19. 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.
No provision for alternate employment or accommodation was made for those health care workers who chose not to be vaccinated for religious reasons or reasons of conscience, or other medical reasons, and who do work with vulnerable persons. 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.
Ms. Le Beau points out the unfairness of the vaccine mandate being enforced for the health care workers represented by the Justice Centre, even while Dr. Henry has not mandated the vaccine for other groups of health professionals.
Karen Bastow, lawyer for the Justice Centre and lead counsel in this legal action, notes that “the Justice Centre understands and supports the protection of vulnerable persons in the healthcare and long-term care context”, but also says the Orders “go further than needed.”
“It has become clear that the Covid-19 vaccines do not prevent infection or transmission. In addition, the BC Covid Therapeutics Committee states natural immunity is the same as having had two doses of a Covid-19 vaccine. Given these facts, ostracizing Canadians for their constitutionally-protected personal medical choices is clearly an unjustifiable act of discrimination and a violation of the Charter,” states Ms. Le Beau.
“We depended on these hard-working health care workers throughout the first year of Covid and there were no vaccines available. To fire them from their jobs now because they exercise bodily autonomy or have objections to the vaccines based on their beliefs, is an act of two-faced hypocrisy and a betrayal of those workers who have sacrificed so much for Canadians,” declares Ms. Le Beau.
