B.C. court rejects top doctor's effort to dismiss COVID-19 vaccine mandate lawsuit

The B.C. Court of Appeal and B.C. Supreme Court is pictured in Vancouver on Tuesday, May 25, 2021.

The B.C. Supreme Court has rejected the provincial government's attempt to dismiss one of the lawsuits challenging COVID-19 vaccination requirements for health-care workers.

Lawyers for provincial health officer Dr. Bonnie Henry had argued that the Canadian Society for the Advancement of Science in Public Policy, which brought the lawsuit, lacked the necessary standing to raise the issue before the courts.

CSASPP's suit seeks to have Henry's public health orders requiring workers in most health-care settings to be vaccinated thrown out on the grounds that they violate the Canadian Charter of Rights and Freedoms and fail to provide reasonable exemptions and accommodations.

Henry's response to the lawsuit submits that the orders are reasonable, precautionary public health measures.

The decision issued this week by Justice Simon R. Coval does not come to a conclusion on the merits of CSASPP's allegations, but rather on the organization's standing to have its case heard.

Coval concluded that the organization did have the "public interest standing" required to bring the claim, despite the province's arguments to the contrary.

Henry's lawyers submitted that the CSASPP's claim did not raise a "serious justiciable issue," arguing it was "devoid of any meaningful particulars" that would make it worth the court's time.

Coval disagreed, writing that the petition raises "substantial questions" that are clearly within the purview of the justice system.

The provincial health officer also argued that CSASPP had not demonstrated a "genuine interest" in the questions at hand, noting that the organization's explicit purpose is to challenge COVID-19-related measures in British Columbia.

"The PHO submits that CSASPP has no history of involvement in the issues raised by the petition, and the evidence connecting its membership to health care is vague and weak," Coval wrote in his decision.

"The PHO says CSASPP is merely a 'purpose-built anti-COVID-19 measures entity.'"

The justice largely agreed with this assessment of the organization and its purpose, writing:

"In my view, creating a society committed to one side of an issue is not sufficient to create a genuine stake for purposes of standing … The members of such a group are obviously interested in the issue but do not necessarily have a stake different from the community generally."

Nevertheless, Coval held that CSASPP had demonstrated a genuine interest in the legal questions it raised by making a reconsideration request to Henry when the vaccination orders were first issued, and including Henry's denial of the reconsideration request in its complaint to the court.

Finally, Henry's lawyers argued that CSASPP's claims were redundant, since several other health-care workers are already suing the province over the vaccination mandate.

Coval again agreed, but only to a point. The justice wrote that ongoing litigation brought by health-care workers who lost their jobs because they were unvaccinated rendered CSASPP's challenge of the public health orders unnecessary.

However, that case does not address the request that Henry reconsider her order and allow more exemptions, something the justice said could be addressed in the CSASPP case.

"CSASPP’s standing appears unnecessary for access to justice for impacted health-care workers," Coval wrote. "Nevertheless … CSASPP’s petition appears to be a reasonable and effective means of bringing forward the evidence and claims regarding the reconsideration request and response."

Though he concluded that the organization should have public interest standing and be allowed to continue with its lawsuit, Coval dismissed a claim of private interest standing brought by the CSASPP's executive director Kipling Warner.

Warner, a software engineer, claimed he had been directly and adversely affected by the vaccine mandate, saying his ability to access medical services in a timely manner had been restricted by Henry's orders, and citing a long wait for surgery as an example of this harm.

"In my view, Mr. Warner offers no evidentiary basis, beyond this unsupported, conclusory statement, to suggest any right at stake, or any personal or special impact from the impugned orders," Coval wrote. "There is nothing, for example, to suggest his wait for surgery was unusual or impacted by the impugned orders. In my view, for these reasons, he does not satisfy the requirements for private interest standing."