HRT Dismisses Complaints alleging the “Vaccine Passport” is discriminatory

In two recent screening (preliminary) decisions based only on the allegations in the complaints, the BC Human Rights Tribunal dismissed complaints alleging discrimination due to the vaccination requirement or “Vaccine Passport.” In both, the complainants alleged that the BC provincial government, specifically the Provincial Health Officer and the Premier, discriminated against them by issuing a Public Health Order (the “Order”) requiring proof of vaccination for access to certain businesses, venues and events.

Notably, the Order only requires proof of vaccination for entrants to those specified locations, not for the employees who are working there. While the decisions did not deal directly with discrimination in employment, there are still some lessons for employers from these rulings.

Complainant v Dr. Bonnie Henry, 2021 BCHRT 119

In this decision, the complaint was against Dr. Bonnie Henry, BC Provincial Health Officer, and alleged discrimination in the area of services based on physical disability. The Complainant argued that the Order was discriminatory. The Tribunal found that the complaint did not set out facts that could violate the Code.

To establish discrimination, a complainant must prove that:

1. They have a characteristic protected from discrimination;
2. They have experienced an adverse impact in a protected area; and
3. That the protected characteristic was a factor in the adverse impact.

The Complainant stated that they had asthma, had pneumonia as a child, and did “not want your experimental COVID vaccine.” The Tribunal found asthma constituted a physical disability and was a protected characteristic under the Code.

The Tribunal held that the Complainant did not allege an adverse impact. The Complainant stated that he did not want services limited because of “your experimental vaccine”. The Tribunal found that the Complainant referenced a prospective potential adverse impact and not one actually experienced.

Thus, the Tribunal found that the Complainant failed to establish discrimination.

The Tribunal noted that if the Complainant had experienced an adverse impact (i.e. actually being denied a service), he would have to also allege facts that would establish a connection between his asthma and not being fully vaccinated. For example, he must allege that his disability prevented him from being vaccinated. An ideological opposition or distrust of the vaccine is not enough.

Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120

In the second decision, the Complainant filed their complaint against John Horgan, the BC Premier, on the basis of political belief in the area of employment. The Complainant filed on her own behalf and on behalf of a class 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”.

For the purposes of the Code, political belief includes “public discourse on matters of public interest which involve or would require action at a governmental level”. Importantly, political belief is a protected characteristic for discrimination in the area of employment and not the area of services.

The Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. However, the Tribunal stressed that this protection from discrimination does not exempt a person from following provincial health orders or other legal requirements. Rather, it protects them from adverse impacts in their employment based on their beliefs.

The Tribunal dismissed the complaint on the basis that the Complainant failed to allege any adverse impact in employment. The Complainant did not identify how the Order had affected her, or anyone else, in their employment.

Takeaways

Employers can learn the following from these two decisions:

1. Even where an employee has a protected characteristic (e.g. physical disability or political belief), they must have experienced an adverse impact AND show that the adversity and protected characteristic are connected.
2. If an employee refuses to be vaccinated because of a disability, they must say how that disability prevented them from being vaccinated to establish discrimination.
3. A genuinely held belief opposing the Order or other governmental rules regarding vaccination could be considered a “political belief” under the Code. Thus, harassment or discipline of employees who express views opposing the Order could be found to be discrimination.
4. Even where an employee opposes a government rule or requirement as a matter of political belief, they must still comply with the law.

Fortunately for employers, an employee’s opposition to a private sector employer’s mandatory vaccination policy would likely not be considered a political belief as such a policy would neither involve nor require action at a governmental level. Even if the government were to require mandatory vaccination for employees in certain workplaces, employees who disagree would nevertheless be required to comply with the law.

If you are considering implementing a mandatory vaccination policy or have questions about managing COVID-19 in your workplace, we recommend you contact us to discuss:

Geoffrey Howard:         ghoward@howardlaw.ca

604 424-9686

Sebastian Chern:           schern@howardlaw.ca

604 424-9688