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Court rejects bid by B.C. government to throw out case against vaccination orders

A B.C. judge has rejected a bid by Dr. Bonnie Henry to have a legal challenge to several of her COVID-19 health orders thrown out of court. A judge has dismissed a bid by Dr.
B.C. provincial health officer Dr. Bonnie Henry speaks during a news conference in Vancouver, on Tuesday, Feb. 1, 2022. THE CANADIAN PRESS/Darryl Dyck

A judge has dismissed a bid by Dr. Bonnie Henry to have a legal challenge to several of her COVID-19 health orders thrown out of court.

The petition filed by an advocacy group argues the provincial health officer’s orders requiring vaccinations for health-care workers are unconstitutional and should be set aside.

The Canadian Society for the Advancement of Science in Public Policy also alleges the orders fail to provide reasonable exemptions and accommodations for people with religious objections, vaccination risks, immunity from prior injection and recent negative COVID testing.

Lawyers for Henry say that the orders are reasonable measures aimed at limiting transmission in high-risk public settings, protecting public health and vulnerable populations, and safeguarding the health-care system.

The orders, implemented in mid-October, say only double-vaccinated people may provide services in a range of B.C. health-care settings.

The society says that it requested a reconsideration in November for a broad class of health-care workers but that health authorities refused on the basis that it sought an exemption on non-medical grounds.

Lawyers for Henry argued in court that the society’s petition, which was filed in B.C. Supreme Court, should be dismissed because the petitioners lack the proper legal standing.

The society argued that it should be granted public-interest legal standing.

The legal test for whether to grant public-interest standing involves examining whether there is at least one serious issue involved in the case and whether the petitioner is affected by the legal action or has a genuine interest in the outcome. The test also looks at whether the legal action is a reasonable and effective means to bring a claim to court.

In his ruling on the dismissal application, Justice Simon Coval said the orders directly affected members of a defined and identifiable group in a serious way that, at least on the surface, affects their Charter rights.

“This raises substantial questions that meet the threshold of ‘clearly not frivolous,’ ” said the judge.

The provincial health officer’s lawyers argued the society had no history of involvement in the issues raised by the petition and the evidence connecting its membership to health care was vague and weak. They alleged the society was merely a “purpose-built anti-COVID-19 measures entity.”

The judge said that creating a society committed to one side of an issue was not sufficient to create a genuine stake for purposes of standing.

But he found the society’s reconsideration request showed an engaged, concrete “adverseness” counting in favour of standing.

“Also counting somewhat in favour is the evidence, albeit vague and inferential, of (the society’s) stake based on the health care workers amongst its membership.”

Court heard that the society has 170 current members, at least 41 of whom are in the health-care field.

On the issue of whether the suit is a reasonable and effective means of bringing the matter before the court, the judge found in favour of the society as well.

He said the petition brings forward “important and complex” health-care issues in the reconsideration request.