B.C.'s COVID vaccine mandate for health-care workers survives court challenges

B.C.'s ongoing mandate that health-care workers be vaccinated against COVID-19 survived a legal challenge this week, though the judge in the case remitted part of the provincial health officer's order back to her for reconsideration.

Issued Friday and published online Monday, B.C. Supreme Court Justice Simon R. Coval's ruling dealt with three separate lawsuits brought against Dr. Bonnie Henry in her role as the provincial health officer. 

All three cases sought judicial review of Henry's most recent order regarding vaccination requirements for health-care workers, which she issued on Oct. 5, 2023.

By that time, B.C. was the only province in Canada that had not lifted its vaccine mandate for such workers, though "certain hospitals" in Ontario and Nova Scotia retained similar rules, according to Coval's decision.

The decision indicates more than 1,800 health-care workers lost their jobs in B.C. because they chose not to be vaccinated after the mandate first took effect in 2021.

Most of the 15 petitioners in the three cases were among those fired workers, though at least one retired before he could be dismissed for refusing to comply with the mandate.

The petitioners challenged the reasonableness of Henry's orders on several grounds, including:

• that COVID was no longer "an immediate and significant risk" to public health in October 2023;
• that unvaccinated workers did not pose "any greater risk to vulnerable patients" than vaccinated ones;
• and that workers who held "purely administrative" positions or did their jobs remotely should have been exempt from the mandate.

Some of the petitioners also argued that the orders violated their rights under either Section 2 or Section 7 of the Charter of Rights and Freedoms.

Section 2 protects the right to freedom of conscience and religion, among other rights. Section 7 protects the right to "life, liberty and security of the person," which people cannot be deprived of "except in accordance with the principles of fundamental justice."

Coval dismissed nearly all of the petitioners' claims, with the exception of the question of exemptions for administrative and remote workers, which the judge ordered Henry to reconsider.

Risk and reasonableness

Coval's decision spends dozens of paragraphs reviewing the evidence Henry considered when making her October 2023 orders. It notes, however, that a judge's role in reviewing an administrative decision of this type is to evaluate the decision-maker's reasoning, rather than to substitute the decision the judge would have made when presented with the same evidence.

"Reasons must be read 'in light of the record and with due sensitivity to the administrative regime in which they were given,'" the decision explains, quoting from previous rulings.

"Absent exceptional circumstances, a reviewing court will defer to an administrative decision-maker’s factual findings."

Using this framework, Coval concluded there was "ample evidence in the record" to support Henry's conclusions about unvaccinated workers posing a greater risk to patients than vaccinated ones in October 2023, and about COVID continuing to pose an "immediate and significant risk" to public health.

Regarding the petitioners' argument that other jurisdictions in Canada had almost entirely done away with vaccine mandates for health-care workers by the time Henry extended her orders, the judge noted that just because other authorities made different decisions, B.C.'s aren't necessarily unreasonable in comparison.

"In October 2023, circumstances in some of those jurisdictions may have been different than here," the decision reads.

"More fundamentally, there is more than one reasonable way to approach the complex medical, scientific, and social issues addressed in the orders. At the time, there could be no certainty about what will be most effective or strike the right balance. Rather, these are judgment calls on which reasonable public health experts may disagree."

Similarly, though B.C. had ended nearly all of its other COVID-related restrictions by October 2023, Coval found Henry's argument that health-care settings were fundamentally different from other contexts to be reasonable.

"Outside of health care, the PHO saw it as safe to transition away from much of the former emergency regime, such as public masking, distancing, vaccine passports, and restrictions on gatherings and travel," the decision reads.

"As the record indicates, in large part this was due to the high percentage of the population that was vaccinated. At the same time, the record indicated good reason for continued vigilance within the health-care system itself."

The judge also found that the record supported Henry's conclusion that unvaccinated workers would be more likely to become infected, and therefore more likely to transmit the disease to patients.

While the petitioners "strenuously denied" that an unvaccinated person was any more likely to transmit the Omicron variant of SARS-CoV-2 than a person who had received the initial two-dose course of vaccines, Coval found that the record "clearly refuted this submission" and contained "abundant evidence" to support Henry's orders as reasonable.

Charter challenges

Coval also dismissed the petitioners' Charter-related submissions, though different challenges were dismissed for different reasons.

Some of the petitioners argued that Henry's orders violated Section 2's protection of the right to freedom of conscience, citing personal beliefs about the vaccines being "rushed, experimental, ineffective and possibly unsafe," according to the decision.

Some also shared the belief that whether to be vaccinated is a matter of "personal self-determination."

While Coval accepted that the petitioners genuinely held these concerns, the judge found they "do not reflect an overarching moral belief system" of the type protected by the Charter, "but rather personal convictions and assessments regarding the vaccine and vaccination mandates."

"On the evidence, these convictions and assessments, primarily about safety, the approval process and freedom of choice regarding vaccination, do not rise to the level of profound and overarching moral belief systems about themselves and how to live their lives that receive constitutional protection under freedom of conscience," the decision reads.

The judge ruled differently regarding Section 2 challenges based on religious beliefs.

Six of the petitioners told the court their opposition to vaccination stemmed from their Christian faith, primarily citing the use of fetal cell lines in vaccine development as "contrary to their religious views about treatment of unborn human life."

Coval concluded that Henry's orders had infringed on these six petitioners' rights to religious freedom, but were nonetheless reasonable in the context of the orders' public health objectives.

"Having found a sufficient evidentiary foundation in the record for the PHO’s conclusions regarding the risks posed by an unvaccinated health-care workforce, and recognizing that deference is owed regarding these complex medical and scientific issues, I find the orders reasonably balanced the risks posed by unvaccinated healthcare workers and the (Section 2) rights of those who eschewed the vaccine for religious reasons," the decision reads.

The judge also rejected the petitioners' Section 7 arguments, concluding that the orders did not compel them to accept unwanted medical treatment, and therefore did not engage the Charter's protections of bodily integrity and medical self-determination.

"Instead, they lost their jobs because they chose not to accept vaccination against a highly contagious virus which posed the risk of serious illness and death to vulnerable patients and other health-care workers," the decision reads.

"In my view, this loss did not engage their (Section 7) right to liberty because of the well-established principle that (Section 7) does not protect the right to work in any specific employment or particular profession, particularly when the job-loss arises from non-compliance with its governing rules and regulations. This is not a constitutionally protected fundamental life choice."

Even if the orders had violated Section 7 rights, Coval found, they likely would have done so in ways that were not contrary to the principles of fundamental justice, as they were neither arbitrary, nor overbroad, nor grossly disproportionate.

Administrative and remote workers merit review

The one area where Coval did agree with the petitioners was on the question of whether it was reasonable for Henry to include remote and "purely administrative" workers in the list of health-care professionals subject to the vaccine mandate.

Some of the petitioners argued that the provincial health officer's inclusion of those workers, coupled with her decision not to allow requests for reconsideration from them, made the orders unreasonable.

Coval largely agreed on this point, noting that there was "an absence of evidence" in the record regarding remote and administrative workers and the specific risks, if any, they posed to the health-care system by being unvaccinated.

He also noted "a lack of connection" between such workers and the central rationale for the orders, namely "protecting vulnerable patients and the health-care workers who care for them."

"Counsel for the PHO pointed to the statements in the orders about the enhanced risk of absenteeism and associated slippage in the system," the decision reads.

"They gave the example of a surgery booking clerk, and submitted that, while such a role might be performed remotely, any increased absenteeism from lack of vaccination could create problems for surgical scheduling. In my view, such a single example does not justify the total elimination of a reconsideration process for all remote and administrative workers."

Henry also argued that maintaining a reconsideration process for remote and administrative workers would take her team an "inordinate" amount of time and resources and be "impractical" because of a lack of specifics about each applicant's role.

"I was shown nothing in the record, however, to suggest this was a significant obstacle, and in my view there would appear to be reasonable ways of addressing the issue if it arises," the decision reads.

"For example, a remote worker requesting such reconsideration might provide evidence – such as a supporting letter from the employer – that their role can be fully performed remotely and that absenteeism is generally manageable due to back-up personnel and systems. As the petitioners pointed out, the record indicates that hundreds, if not thousands, of health-care workers are absent every day across the province, for a host of reasons, which the system is able to manage."

For these reasons, the judge concluded there remained a "lack of justification" in Henry's orders for not including a reconsideration process for remote and administrative workers.

Coval remitted that section of the orders to Henry's office for reconsideration, concluding that there wasn't an overwhelming or "inevitable" solution to the issue that he should impose through a court ruling.