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A judge in B.C. has rejected a bid by Provincial Health Officer Bonnie Henry to have a petition, filed against several of her COVID-19 orders for health-care workers, dismissed from court.
In a ruling on May 4, Justice Simon Coval of the Supreme Court of British Columbia said the advocacy group that challenged Henry’s COVID-19 vaccine mandates for health-care workers does in fact have standing to bring a constitutional challenge, which Henry sought to have thrown out.
The petition, filed by the Canadian Society for the Advancement of Science in Public Policy (CSASPP) last November, and amended in February, sought judicial review of Henry’s orders that only health-care workers who receive two doses of COVID-19 shots may be employed or provide services in settings such as hospitals, residential care, and public health office.
The petition alleges that the impugned orders fail to provide reasonable exemptions and accommodations for individuals with religious objections, vaccination risks, immunity from prior infection, and recent negative COVID-19 testing.
It argues that the orders should be set aside as they infringe the charter rights of unvaccinated health-care workers, and that the orders are “an unreasonable exercise” of statutory powers contrary to the Judicial Review Procedure Act (JRPA).
In response, Henry submitted an application to the court in January to have the petition dismissed on grounds that the petitioners lack proper legal standing. The CSASPP countered that it has public interest standing, and therefore the court should hear their case.
The legal test to show that a public interest standing is warranted involves examining whether there is a serious issue raised as to the invalidity of legislation in question, whether the petitioner is directly affected by the legislation or has a genuine interest in the outcome, and whether the legislation is a reasonable and effective means to bring a claim to court.
On April 7, Henry’s lawyers argued in court that her orders were reasonable, with the aim of limiting transmission in high-risk public settings and protecting public health, vulnerable populations, and the functioning of the province’s health-care system.
The lawyers said the 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. They also alleged that the society was merely a “purpose-built anti-COVID-19 measures entity.”
Incorporated as a not-for-profit society, the Vancouver-based CSASPP describes itself as a non-partisan, secular organization created in response to “popular community demand for a direct action initiative to counter BC’s COVID-19 related measures,” according to its website.
In its petition, the society said it sent a letter to Henry on Nov. 8, 2021, requesting a reconsideration of her orders on behalf of a broad class of health-care workers in B.C., which, according to section 43 of the Public Health Act, allows for such actions.
Henry, however, issued a “reconsideration variance” the following day, halting reconsideration requests except for medical reasons. On Jan. 17, Henry refused the society’s request on the basis that it had sought exemption on non-medical grounds.
CSASPP challenged Henry’s decision as an “unreasonable refusal” to consider its request, which includes a critique from Dr. Joel Kettner, former chief medical officer and chief public health officer of Manitoba from 1992 to 2012, arguing that the impugned orders failed to comply with generally accepted principles of public health governance and the charter.
In addition, CSASPP’s reconsideration request had proposed to Henry alternative approaches such as accepting natural immunity, a negative PCR or antigen test less than 48 hours prior to attendance at a facility, and documentation from a doctor providing medical reason for not being fully vaccinated, all based on policies in other jurisdictions such as Alberta, the European Union, and Ontario.
But Henry’s application in January argued that the interests of patients and the “overburdened” health-care system outweigh the interests of health-care workers who refuse to take the shots.
Coval said while creating a society committed to one side of an issue was not sufficient to fashion a genuine stake for purposes of standing, he found the CSASPP’s reconsideration request showed an “engaged, concrete adverseness counting in favour of standing.”
“Also counting somewhat in favour is the evidence, albeit vague and inferential, of CSASPP’s stake based on the health care workers amongst its membership,” he wrote.
The society told the court that it currently has about 170 members, with at least 41 of them working in B.C.’s health-care sector.
The judge added that Henry’s orders directly affected members of a defined and identifiable group in a serious way that, at least on the surface, relates to their charter rights.
“CSASPP alleges that its alternative proposals reflect a superior approach, taken in other Provinces and elsewhere around the world, much less intrusive on health care workers’ Charter rights. In my view, this raises substantial questions that meet the threshold of ‘clearly not frivolous,’” he ruled.
“Regarding justiciability, the Petition challenges state action based on legislatively-delegated discretionary powers. In my view, the petitioners are correct that whether those actions comply with the Charter and JRPA are clearly questions suitable for judicial determination.”
