The province of British Columbia is facing court battles one after another from various parties over vaccine requirements it imposed during the pandemic.
The Canadian Constitution Foundation (CCF) filed a legal challenge to the B.C. vaccine passport regime on Sept. 28, 2021, saying it discriminated against people who could not be vaccinated for medical reasons.
Lawyer Geoffrey Trotter, who is handling the case for the CCF, says the province was too narrow in its list of acceptable medical exemptions from the passport and gave no opportunity for recourse.
“It was a closed list with no opportunity for individualized assessment. Of course, that’s good for administrative efficiency, but it’s not good for respecting the constitutional rights of people who can’t safely get the vaccine,” Trotter said in an interview.
One plaintiff in the case is a teenage girl who says she developed heart inflammation after her first dose of a COVID vaccine. Another is a woman who says she experienced nerve damage and partial paralysis in her arm following her first vaccine dose. She subsequently became pregnant and says she was advised by her neurologist not to get a second dose. Another woman who had complex disabilities and was contraindicated for many medications says she was at heightened risk for a serious reaction yet was ineligible for an exemption.
Trotter said he was lucky to have been able to advance the case, given procedural barriers unique to B.C.
“We couldn’t even get the government to file a defence to our petition until after we successfully got hearing dates, and that’s a challenging and slow process in B.C.,” he said.
“Basically, you have to wait for one day a month when there’s this telephone lottery system, and you dial in right at a certain time and keep redialing until you get through and hope that you get through. Thankfully, we did.”
Chief Justice Christopher Hinkson heard a few vaccine passport challenges in April and May, according to Trotter, who expects the judge to rule on them all simultaneously.
“The chief justice was clearly very interested in the arguments,” he said.
“I’m hopeful that, as the crisis phase is behind us, courts will be more willing to say that these things did go too far and to set some guardrails so that if and when this happens again, that the emergency orders aren’t going to create so much collateral damage.”
In another case, lawyer Rocco Galati filed a 391-page notice of civil claim with the B.C. Supreme Court on Aug. 17, 2021, on behalf of 20 plaintiffs who claimed damages due to the province’s public health orders. Eighteen defendants were listed, including B.C. Provincial Health Officer Bonnie Henry, federal Chief Public Health Officer Theresa Tam, and other provincial and federal politicians and agencies.
Plaintiffs included family members kept from visiting elderly loved ones in care, business owners whose businesses suffered or failed due to restrictions, people forcibly quarantined, patients who say they were denied medical treatment due to their vaccine status, and individuals removed from rides on B.C. Ferries despite having mask exemptions.
Action4Canada was one of the plaintiffs. Founder Tanya Gaw says it was unusually difficult to get the defendants to receive the claim.
“I even worked with a process server, and he said in his 30 years of business, he’d never seen anything like it to get it delivered. They wouldn’t accept it. He couldn’t get access. Nobody was in the offices,” she said.
“They dragged their heels on who was going to receive the statement of claim, just prolonging it. And when they did finally respond, of course, they responded with a motion to strike [down the case].”
While no ruling has been made on the motion to strike, Gaw believes other legal action has already brought changes. She said issuing notices of liability to school boards got many to reverse course on plans to implement mandatory vaccination for students.
“I believe 100 percent that filing the statement of claim helped,” she said.
‘We Think That We Prevailed’
The Canadian Society for the Advancement of Science in Public Policy (CSASPP), a non-profit volunteer-driven organization, filed a proposed class action lawsuit with the B.C. Supreme Court in January 2021. This requires petitioning the court to ask that the case be certified as a class action suit. The CSASPP has one petition that challenges mandates on behalf of health-care workers, while another challenges the vaccine passport. Updates on filings are made regularly on the CSASPP website.
Executive director Kip Warner says Henry tried to have the health-care workers’ petition thrown out by arguing that the CSASPP had no standing. After Justice Simon Coval sided with the CSASPP on this point in May, Henry appealed that decision on June 2.
Chief Justice Hinkson heard the vaccine passport case on May 18–20.
“The injection passport petition is over now. We’re just awaiting our ruling. It seemed to go very well,” Warner said.
“We think that we prevailed, but you never know. You can’t really read the tea leaves until you get the judgment back. But if we do get it back, it will be historic, for sure. It will make international headlines.”
Hinkson was told the CSASPP had made many requests for exemption from the vaccine passport. One request included evidence from Dr. Joel Kettner, former Manitoba chief medical officer of health, which didn’t received a response. Warner said that when Hinkson asked why no responses were given, the Crown counsel said, “We were backlogged.”
“The judge said, ‘OK, so because you had a staffing shortage, you suspended the Constitution. Do I have your submissions on that?’ And everyone’s jaw just dropped in the room. This [was the longest], most awkward, painful silence I’ve ever seen in my life. Like maybe 15 to 20 seconds go by.”
Warner said the Crown counsel finally responded by saying, “It was an emergency, and so we were swamped. We did what we had to do. It wasn’t pretty, but there weren’t any other options.”