Two recent preliminary screening decisions from the BC Human Rights Tribunal, dismissing complaints brought in relation to BC’s vaccination card program, provide some insight into how tribunals may deal with complaints regarding vaccine mandates during the pandemic.
Complaint against Dr. Bonnie Henry
One complaint was brought against provincial health officer Dr. Bonnie Henry. The complainant said he had asthma, and also had pneumonia as a child and did not want the “experimental COVID vaccine” or want services limited because of it.
In dismissing the complaint, the Tribunal applied the test established in the Supreme Court of Canada’s decision in Moore v. British Columbia, 2012 SCC 61. That test sets out that in order to establish discrimination, a complainant must prove they have a characteristic protected from discrimination; they have experienced an adverse impact in a protected area; and the protected characteristic was a factor in the adverse impact.
In this complaint, the complainant had asthma which could constitute a physical disability under the Code, but the complaint referenced a prospective adverse impact and not one the complainant had actually experienced. The Tribunal found that without an actual adverse impact related to a service, facility or accommodation customarily available to the public, the complaint could not constitute a breach of the Code. The Tribunal also found that, even if the complainant had been denied a service because he was not fully vaccinated, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated (i.e. show that his asthma prevented him from being able to get vaccinated) – the Tribunal noted that an ideological opposition to or distrust of the vaccine was not sufficient.
Complaint against John Horgan
The other complaint was a class complaint filed against Premier John Horgan 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 complaint was unclear but appeared to relate to the BC government’s August 23, 2021 announcement regarding the vaccine card program. The complainant alleged discrimination in employment on the basis of political belief, alleging that the vaccine card program was “a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms” and amounted to discrimination.
The Tribunal dismissed the complaint because it did not set out any facts to support a violation under the Code – it had not alleged any facts to suggest that anyone had suffered an adverse impact in their employment as a result of the vaccine card program. Interestingly, the Tribunal noted that “a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code.” However, the Tribunal also stressed that “protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules.” In this regard, the Tribunal used the hypothetical example of an individual who disagreed with drug laws and noted that the Code would protect that individual from discrimination in their employment based on their beliefs with respect to those laws, but the individual would still be required to follow those laws.
Implications for employers
The Tribunal’s decision in the complaint against John Horgan raises an interesting potential issue for employers. BC is one of a few provinces in Canada where political belief is a protected ground under the Human Rights Code under Discrimination in Employment. The Tribunal has never provided a clear definition of “political belief”. However, it has given the phrase a broad and liberal definition. The Tribunal’s decision seems to suggest that employees who experience an adverse impact in the workplace due to their beliefs regarding public health orders may be able to pursue a complaint on the basis of political belief. However, this preliminary decision makes clear that holding a political belief about a public health order is different than disregarding a public health order.
We recommend that employers continue to monitor the Tribunal’s rulings on these issues in the future and, in the meantime, continue to be mindful of human rights considerations when making decisions regarding COVID-19 policies and employee discipline around vaccination issues.