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Court upholds B.C.’s COVID-19 health-care vaccine mandate

The B.C. Supreme Court has ruled that the province’s COVID-19 vaccine mandate for health-care workers was justified, based on the significant risk posed by the virus when the province’s mandate was renewed in October 2023.

Provincial Health Officer Dr. Bonnie Henry had first imposed the orders  on all workers in B.C. health-care settings in October 2021. The order was renewed in 2022 and 2023, and remains in place across B.C.

According to a judgment posted Monday, around 1,800 workers lost their jobs for being unvaccinated contrary to the mandate.

Some of those workers — which included nurse practitioners, surgeons, psychiatrists and administrators — filed separate lawsuits against the province, which were all collectively heard by Justice Simon Coval.

The workers argued that the province’s orders were not reasonable, as COVID-19 was “no longer an immediate and significant” public health risk in October 2023, and that unvaccinated health-care workers did not pose a greater risk to patients than vaccinated health-care workers.

They also argued that those who worked remotely or did not deal with patients did not need to be subject to the order — and that some workers’ Charter rights to freedom of religion and liberty were violated.

Coval, however, said the provincial health officer’s mandates were reasonable in light of scientific evidence at the time.

The orders mandating all health-care workers get the COVID-19 shot were first issued in October 2021, and subsequently renewed. (Ben Nelms/CBC)

“I find that the orders did not engage their rights to liberty or security of the person,” Coval wrote. “The orders did not compel them to accept unwanted medical treatment, and so did not interfere with their bodily integrity or medical self-determination.”

Coval also noted that the Charter does not protect the right to work in any particular profession, nor the right to avoid the stress of being denied work for not following workplace rules.

While the judge largely ruled against the workers, Coval did send one aspect of the case back to the provincial health officer to potentially reconsider her order — that of health-care workers who could perform their job remotely or without interacting with patients.

A sign pointing upwards says 'COVID Vaccination' in an outdoor space.
The petitioners argued that COVID-19 did not constitute an emergency at the time of mandate was renewed last fall. (Ben Nelms/CBC)

“I find the [petitioners] have demonstrated that there remains a lack of justification for not including a reconsideration process for remote and purely administrative workers,” Coval wrote.

“Particularly given the heightened burden of justification because what is at stake is the loss of a person’s job as a health-care professional.”

Reasonableness standard

The petitioning workers had asked the judge to decide if the province’s mandate was reasonable in light of the scientific information available to the provincial health officer at the time of the order’s renewal in October 2023.

One of the arguments cited by the workers was the lack of other public health restrictions at the time — including public masking and vaccine passports. No other province had broad mandatory vaccine requirements in place.

“The petitioners also pointed to the WHO declaration, in May 2023, that ‘it is time for countries to transition from emergency mode to managing COVID-19 alongside other infectious diseases,'” the judgment reads.

A sticker reading 'I'm COVID-19 Vaccinated' with a symbol of Vancouver Coastal Health below it.
The judge found that the PHO’s orders may have infringed religious rights, but they were reasonable due to the public health risk. (David Horemans/CBC)

However, Coval said that the PHO’s orders were justified based on the available science, and that the lack of broader public health measures didn’t necessarily mean specific vaccine mandates weren’t necessary in the health-care system.

“An important aspect of the within-healthcare context is that, as the record repeatedly indicated, hospital patients and long-term care residents are more vulnerable than the general population to COVID-19,” he wrote.

“It must also be borne in mind that, generally speaking, such patients do not choose to be in these healthcare settings,” he added. “If there were no vaccine mandate, they could not simply choose to avoid receiving treatment from unvaccinated healthcare workers.”

In regards to some workers’ arguments that their religious rights were infringed, Coval found that the orders may have done so — but the infringement was reasonable in the context of protecting public health.

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