Justice Center sues BC to end mandatory vaccine for BC healthcare workers

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VANCOUVER: The Justice Center has filed a petition in the BC Supreme Court seeking to overturn BC provincial government orders that require taking the Covid-19 vaccine as a condition of employment for specific groups of workers British Columbia Health. The lawsuit is filed on behalf of several BC healthcare workers represented by the Justice Center who lost their jobs because of the orders.

Provincial Health Officer Dr. Bonnie Henry issued a series of orders in October and November 2021 that ultimately applied to all health care workers and staff in British Columbia who work in or for the British Columbia health authorities, care facilities or other designated facilities in the province. The effect of the orders was that workers had to prove they had received all doses of an approved Covid-19 vaccine or they would lose their jobs.

Dr Henry also issued a series of orders between August 2021 and February 2022 which allowed employers, operators and contractors to obtain personal information from practitioners and healthcare staff, as well as their Covid vaccination status. -19. These orders required health care practitioners and personnel to provide their legal names, dates of birth and personal health numbers, as well as their Covid-19 vaccination status, to their employers upon request. The orders also required employers and contractors to report the personal information and vaccination status of healthcare professionals and staff to the BC government.

On March 7, 2022, Dr. Henry issued a new order that requires colleges, as defined by the Health Professions Act, to provide identifying information on each of their registrants. The order further states that the Minister of Health must verify the Covid-19 vaccination status of each registrant and disclose this information to the relevant regulatory body. The Order obliges each registrant, at the college’s request, to provide proof of vaccination or exemption. The College must record the immunization status of each registrant by March 31, 2022.

The Justice Center’s legal challenge cites violations of the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, freedom of religion and conscience, and equality rights. This constitutional challenge also cites violations of the right to informed consent, as well as violations of the privacy of healthcare workers.

The only exemptions available from the vaccination mandate are for very limited medical reasons, as determined by government authorities, not the patient’s doctor. Under current public health orders, a healthcare worker would need to have taken a dose of an approved Covid-19 vaccine and experienced a serious adverse reaction, or been diagnosed with myocarditis or pericarditis, for a request for postponement is even considered by Dr. Henri. A previous anaphylactic allergic reaction to components of an mRNA and adenovirus vaccine would also be eligible for deferral, if periodic reassessment is requested by a qualified allergist. Authorities also allow a diagnosis of multisystem inflammatory syndrome as grounds for vaccine deferral. The only other deferral that can be granted is if the healthcare worker received anti-SARS-CoV-2 monoclonal antibodies or convalescent plasma for the treatment or prevention of COVID-19.

There is no exemption from the vaccination mandate established by these public health orders on grounds of religious belief or conscience. Health care workers also cannot seek reconsideration of orders under the Public Health Act, which is a remedy contained in this legislation. Dr. Henry’s orders prohibit such re-examination.

Charlene Le Beau, a lawyer at the Center de justice, says: “The charter is the highest law in the land, and no order or legislation supersedes and prevails over the Charter of protection of fundamental freedoms such as freedom of religion and freedom of conscience”.

Some of the healthcare workers represented by the Justice Center work remotely, while others work in an administrative capacity. Some don’t even work in a health care setting in a primary care role. No exceptions have been made for healthcare workers not working with those at higher risk of Covid-19. For healthcare workers who frequent settings where vulnerable people are present, there is no consideration as to whether masking and rapid testing before going to the workplace, as was the practice before the introduction of Covid vaccines, would meet the purposes of prescriptions, not even where healthcare workers occasionally or rarely visited the workplace.

No provision has been made for alternate employment or housing for healthcare workers who have chosen not to be vaccinated for religious or conscience reasons, or other medical reasons, and who work with vulnerable people. The prescriptions do not provide any natural immunity against Covid-19.

The Justice Center has also learned that some third-party contractors who work remotely and visit facilities less than once a month are not subject to the vaccination mandate set out in the orders.

Ms. Le Beau points out the injustice of the vaccination mandate applied to healthcare workers represented by the Justice Center, even though Dr. Henry did not mandate the vaccine for other groups of healthcare professionals.

Karen Bastow, Justice Center attorney and lead counsel in this lawsuit, notes that “The Justice Center understands and supports the protection of vulnerable people in the context of health care and long-term care,” but also asserts that the prescriptions “goes farther than necessary.”

“It has become clear that Covid-19 vaccines do not prevent infection or transmission. Additionally, the BC Covid Therapeutics Committee states that natural immunity is equivalent to having received two doses of a Covid-19 vaccine. Given these facts, ostracizing Canadians for their constitutionally protected personal medical choices is clearly an act of unjustifiable discrimination and a violation of the chartersays Ms. Le Beau.

“We depended on these hard-working healthcare workers throughout the first year of Covid and there were no vaccines available. Firing them now for exercising bodily autonomy or opposing vaccines based on their beliefs is a two-faced act of hypocrisy and a betrayal of these workers who have sacrificed so much for Canadians,” says Mrs LeBeau.

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