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B.C. court allows case against Henry's COVID-19 vaccination order to proceed

The case, said the judge, brings forward "important and complex" health-care issues "that transcend the interests of those directly involved."
Dr. Bonnie Henry - April 27, 2020
Dr. Bonnie Henry, B.C.'s provincial health officer. (via Flickr/Province of B.C.)

A B.C. Supreme Court judge has rejected an attempt by provincial health officer Dr. Bonnie Henry to throw out a case alleging her office infringed on the Charter rights of health-care workers when she issued orders requiring they get two COVID-19 vaccines to continue working.

The case was filed by the Canadian Society for the Advancement of Science in Public Policy, an organization that describes itself as advancing “science in public policy in British Columbia” — and challenging COVID-19 measures. 

The group, along with executive director Kipling Warner, claimed that Henry’s public health order failed to provide a reasonable exemption for people with religious objections, who are already immune due to infection, face elevated risks to vaccination, or who received a recent negative COVID-19 test.

The court petition cites three orders issued in the fall of 2021 that made COVID-19 vaccinations mandatory for all health-care workers in hospitals and long-term care homes.

Henry’s office, for its part, contested that the decisions were reasonable public health orders handed down to limit transmission of the SAR-CoV-2 virus in high-risk public settings, as well as to protect vulnerable people and the health-care system.

As a software engineer, Henry’s office argued Warner had no apparent connection to health care and provided no evidence to show he had a direct personal connection to the issues brought before the court.

Warner told the court, “… my ability to access medical services in a timely manner has been affected.”

“For example, I have been on the waitlist for approximately one year for surgery related to a sports injury.”

Justice Simon Coval did not agree, writing in the decision that there was no evidence Warner's surgery wait time was unusual or had anything to do with the orders. 

But while Warner was found to have no personal interest in the case, the justice ruled his organization — the Canadian Society for the Advancement of Science in Public Policy — had public-interest standing to bring the case to the court. 

Determining that standing required the group to demonstrate the case was both serious enough for a court to hear and that the society had a genuine interest in the case. The legal test also requires the petitioner to show that a case can be reasonably and effectively litigated in a court of law. 

The case, said Justice Coval, brings forward “important and complex” health-care issues “that transcend the interests of those directly involved.”