B.C. naturopathic physician's attempt to sue province over non-existent vaccination requirement dismissed

A B.C. woman's attempt to sue the provincial government over a COVID-19 vaccination requirement that doesn't currently exist has been dismissed.

Jennie Weisenburger brought her lawsuit against the College of Naturopathic Physicians of British Columbia and the provincial government, in the form of provincial health officer Dr. Bonnie Henry and Health Minister Adrian Dix.

Weisenburger alleged that the college – on the direction of provincial officials – had restricted her freedom of expression, and that she anticipates that Henry will require naturopathic physicians to be vaccinated against COVID-19 at some point in the future.

"Throughout the height of the pandemic and to date, (Henry) has never issued an order that would require the plaintiff, who is not employed in the public health-care system, to be vaccinated in order to provide her services," reads B.C. Supreme Court Justice David A. Crerar's decision on the case, which was issued Tuesday and published online Wednesday. 

"Nor has the defendant college ever imposed such a requirement."

The province's remaining vaccination requirements – which were largely upheld in court last month – apply only to people who work in the publicly funded health-care system.

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

The defendants asked Crerar to dismiss the case, arguing that Weisenburger's claims were "unnecessary, frivolous, vexatious and an abuse of process."

Crerar agreed. He dismissed Weisenburger's claim and declined to allow her to amend it, describing her proposed amended notice of civil claim as "more a polemic than a pleading."

'Collateral attack'

The judge cited a variety of grounds for dismissing the case, including that it was brought as a civil lawsuit rather than a petition for judicial review.

Weisenburger argued that her case was "a comprehensive claim dealing centrally with the constitutional validity of emergency powers under the (Public Health Act)," according to the decision.

The defendants argued that the case was actually, "in essence, an impermissible collateral attack on the decisions and actions of the provincial defendants and the college, which are properly the subject of a judicial review brought by way of petition, not by way of action."

Crerar agreed with the defendants.

"The essence of the plaintiff’s claim is a challenge to and an attempt to avoid the legal force and effect of the decisions and actions of the defendants in the exercise of their statutorily bestowed powers and responsibilities," the judge's decision reads.

He also rejected Weisenburger's assertion that a petition for judicial review would have been insufficient to secure the remedies she desired – such as monetary damages and orders overturning parts of the Public Health Act.

Crerar noted that the court would have the power to strike down parts of the act in a judicial review case, and that – while monetary damages could not be awarded in such a proceeding – past court precedent has held that merely seeking damages does not make a claim "bulletproof" if it should have been brought as a judicial review petition in the first place.

'Double hypothetical'

Beyond being filed as the wrong type of case, the lawsuit made "no reasonable claim," Crerar ruled.

"The bulk of the plaintiff’s claim is based upon a hypothetical future event that will likely never happen," the judge's decision reads, before quoting multiple paragraphs from Weisenburger's filing that say she "anticipates" the provincial health officer will impose restrictions on her.

"The plaintiff’s claim is based upon a double hypothetical: that the defendants will issue a mandatory vaccination order, and that the mandatory vaccination order will provide no exemptions," the decision reads.

"The potential for exemptions to such a hypothetical order, or the wording of the hypothetical order itself, piles further hypotheticals on further hypotheticals."

The court cannot assume that a vaccine mandate will be imposed, or that it will lack exemptions that will run afoul of the Charter of Rights and Freedoms, Crerar concluded. Likewise, even assuming the pleaded facts were true, there would be no reasonable cause for legal action, because the mandate has not yet been imposed.

Crerar also listed several other reasons why Weisenburger's claim was bound to fail, and found that the plaintiff had "provided no basis to conclude that the claim is salvageable."

He therefore granted the defendants' application to dismiss the case, without leave to amend and resubmit it.