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 re‐ newed 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 con‐ trary to the mandate.

Some of those workers which included nurse practi‐ tioners, surgeons, psychia‐ trists 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 healthcare workers did not pose a greater risk to patients than vaccinated health-care work‐ ers.

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 lib‐ erty were violated.

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

"I find that the orders did not engage their rights to lib‐ erty or security of the per‐ son," Coval wrote. "The or‐ ders did not compel them to accept unwanted medical treatment, and so did not in‐ terfere with their bodily in‐ tegrity or medical self-deter‐ mination."

Coval also noted that the Charter does not protect the right to work in any particu‐ lar 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 provinci‐ al health officer to potentially reconsider her order - that of health-care workers who could perform their job re‐ motely or without interacting with patients.

"I find the [petitioners] have demonstrated that there remains a lack of justifi‐ cation for not including a re‐ consideration process for re‐ mote and purely administra‐ tive workers," Coval wrote.

"Particularly given the heightened burden of justifi‐ cation because what is at stake is the loss of a person's job as a health-care profes‐ sional."

Reasonableness dard

The petitioning workers had asked the judge to de‐ stan‐ cide if the province's man‐ date was reasonable in light of the scientific information available to the provincial health officer at the time of the order's renewal in Octo‐ ber 2023.

One of the arguments cited by the workers was the lack of other public health re‐ strictions at the time - includ‐ ing public masking and vac‐ cine passports. No other province had broad manda‐ tory vaccine requirements in place.

"The petitioners also pointed to the WHO declara‐ tion, in May 2023, that 'it is time for countries to transi‐ tion from emergency mode to managing COVID-19 along‐ side other infectious dis‐ eases,'" the judgment reads.

However, Coval said that the PHO's orders were justi‐ fied based on the available science, and that the lack of broader public health mea‐ sures 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 repeat‐ edly indicated, hospital pa‐ tients and long-term care res‐ idents are more vulnerable than the general population to COVID-19," he wrote.

"It must also be borne in mind that, generally speak‐ ing, such patients do not choose to be in these health‐ care settings," he added. "If there were no vaccine man‐ date, they could not simply choose to avoid receiving treatment from unvaccinated healthcare workers."

In regards to some work‐ ers' arguments that their reli‐ gious rights were infringed, Coval found that the orders may have done so - but the infringement was reasonable in the context of protecting public health.