Across Canada, provincial governments have been tasked with determining how to safely proceed during the continuing COVID-19 pandemic. The emergence of proof of vaccination policies has been met with varying degrees of approval and opposition. On August 23, 2021, the Government of British Columbia announced a new health order that will require individuals to provide proof of vaccination to access various services (the “Services Requirement Announcement”).
Since the Services Requirement Announcement, the British Columbia Human Rights Tribunal (the “BCHRT”) has received a large volume of complaints alleging discrimination in connection with the health order and vaccine requirements. As such, the BCHRT published a couple of screening decisions on this issue, which are summarized below. Normally screening decisions are not published; however, the BCHRT chose to publish this decision due to the high volume of complaints they had received in relation to the Services Requirement Announcement.
Complainant v Dr. Bonnie Henry, 2021 BCHRT 119
The Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer of British Columbia, alleging that the proof of vaccine requirement for certain non-essential services was discrimination on the basis of disability under section 8 of the Human Rights Code.
The anonymous Complainant had asthma and did not want to have his right to services limited by an “experimental COVID vaccine”.
The Tribunal screened the Complaint and noted that to establish discrimination, a complainant must prove:
- They have a characteristic protected from discrimination.
- They experienced an adverse impact in a protected area; and
- The protected characteristic was a factor in the adverse impact.
In concluding the complaint should be dismissed, the BCHRT concluded that it is not enough to have a protected characteristic and have experienced an adverse impact, there must be a connection between the two. The Complaint failed to prove the connection. In fact, the BCHRT went further stating [emphasis ours]:
even if the Complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID-19, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated, such as his disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.
Complainant obo Class of Persons v John Horgan, 2021 BCHRT 120
The BCHRT released a second screening decision called Complainant obo Class of Persons v. John Horgan.
The complaint was filed one day after the Services Requirement Announcement on behalf of “people who are opposed to being forced into getting the COVID-19 Vaccination and getting our basic human rights and freedoms stripped from us”. The Complainant alleged that the Government’s conduct discriminated based on the ground of political belief.
In considering the complaint, the BCHRT accepted that a genuinely held belief opposing vaccination policies could be a political belief within the meaning of the Code. However, the BCHRT emphasized that protection from discrimination on this ground does not exempt a person from following health orders. It simply protects a person from adverse impacts in their employment as a result of holding and expressing those beliefs.
The BCHRT pointed out that the Complainant failed to identify how the Services Requirement Announcement affected her, or anyone else who objects to it, in their employment. It was also emphasized that the Code does not permit challenges to health orders based merely on disagreement.
The BCHRT ultimately concluded that the Complainant failed to provide any facts related to an actual adverse impact experienced by the proposed class in their employment. Accordingly, the complaint was dismissed.
If you have any questions regarding implementing COVID-19 vaccination policies, or other employment-related questions, please contact one of the members of our Labour & Employment team.
For more information on BCHRT screening decisions concerning COVID-19 please refer to our article entitled: Is Simply Preferring Not to Wear a Mask Enough? The BC Human Rights Tribunal’s Response.