Morgane Oger: Businesses don't have legal authority to ask for vaccination status in absence of a provincial health order

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      By Morgane Oger

      For the first time since this health emergency began, I disagreed with B.C.'s provincial health officer, Dr Bonnie Henry, on March 1, 2022.

      That day, Henry suggested at a press conference that B.C. businesses could continue to enforce proof of vaccination at the door and that the B.C. government would support this.

      I am a huge fan of the impressive job that the B.C. Centre for Disease Control and the provincial health officer have done to keep us safe during the COVID-19 pandemic. But there is more to the question of enforcement than the B.C. government's sentiment. Human rights and privacy are very important. So important I’m writing this follow up to the three policy asks I made in this publication that I think will help us all stay safer during future waves of COVID-19 variants.

      I have had the privilege of helping frame Canada's human rights law through policy and through the tribunals. Defending myself and others from bias and hatred has taught me the importance of protecting privacy and standing up for human rights. The right to reasonable privacy and the right to live free from prohibited discrimination are the proud foundation of everyone's equality in B.C. and throughout Canada.

      For nearly a decade, my volunteer work has been centered on uplifting the voice of people facing systemic discrimination and I am proud my work with the Morgane Oger Foundation helps improve public policy and fight for rights at the federal and provincial human rights commissions and tribunals. I believe to my core that helping protect British Columbians and all other Canadians from systemic injustice is in all our best interest.

      It is because of my experience framing legal arguments as an advocate and presenting them to tribunals, to legislators, and to policymakers that I believe so strongly that the vaccine passport system requires an order from B.C.’s provincial health officer to justify its existence. Without it, service providers simply do not have the legal right to enforce the vaccination status of their customers.

      Under B.C. law, all businesses have always been allowed to require that masks be worn on their premises. This is well within the guardrails created by Canada's human rights law and “no mask no service” is only a minor extension of “no shirt, no shoes, no service”. Telling customers that their vaccination status impacts their access to services and that a business expects them to comply with the expectation of vaccination may also be tolerable under the law, but that is far less certain.

      Someone refusing to be vaccinated was never a prohibited grounds of discrimination in Canada unless it is on the basis of disability. However, everyone's vaccination status is considered private information and B.C. privacy law explicitly protects us all from being required to provide private information in order to be given access to products or services.

      Businesses and service providers do not have the legal authority to enforce vaccine passports with the public, and they should never be allowed to take on this role without a time-limited order to do so. Service providers still need an order from the B.C. provincial health officer to be even allowed to ask the question of their patrons, and the B.C. government needs to make sure this is understood to prevent misunderstanding. And this permission can not become normalized for British Columbians.

      B.C. cannot drift indefinitely towards becoming a society that tolerates businesses posting signs that exclude people on grounds prohibited by our human rights or privacy laws.

      As British Columbians we need to actively discourage government overreach.

      Unless there is an order temporarily giving service providers or businesses the authority to enforce vaccine passports, B.C.’s Personal Information Protection Act is clear that an organization must not require an individual to consent to the collection, use, or disclosure of personal information as a condition of supplying a product or service beyond what is necessary to provide it.

      According to B.C.’s Public Health Act web page, “The act provides health officials the authority and tools to prevent and control the spread of disease and other health hazards by allowing for requiring implementation of preventive interventions.”

      Under the authority of the Public Health Act, provincial restrictions are put in place by the provincial health officer. In B.C., Dr. Henry is the only person with the authority to limit the freedoms or the privacy of British Columbians without explicit legislation that does this.

      Such an order legally buttresses B.C.'s businesses, its service providers, and its employers who risk being called on to justify their actions as they act outside their legislated authority.

      Without an order or legislation that provide a legal basis for enforcing vaccination for customers accessing a service, I cannot foresee the B.C. Human Rights Tribunal or B.C. Supreme Court agreeing with the B.C. government’s sentiment that business owners can continue with the status quo in the absence of a provincial health officer’s order. It is very important that the B.C. government bring clarity to this.

      I invite Human Rights Commissioner Kasari Govender and Information and Privacy Commissioner Michael McEvoy to advise the B.C. government about what is needed if it wants to keep the vaccine passport in place and enforced by service providers past June 2022, when it expires.

      Without an order in place, I expect that public health officers can still compel employers to incorporate vaccination into their terms of employment when it is necessary. Employers can still continue to set out terms of employment that require vaccination. Regulatory bodies and associations can still stipulate and track the vaccination status of the professionals they govern, like some already do today.

      But I believe that without a provincial health order, customers accessing services in B.C. cannot continue to be compelled to provide private information.

      It is important that we look after one another throughout this pandemic and that we prepare for the next wave without always relying on placing constraints and controls on individuals when we can use other tools.

      We need to stand together and protect one another from too much encroachment of our privacy when the B.C. provincial health officer relaxes measures. There are public safety measures that we know will help keep our air spaces safer so that next time a COVID-19 wave washes through our region, we can hope to implement less intrusive measures.

      Let’s get to work with such things as fitting virus-particle filters and high-capacity air circulation systems into public spaces before the next wave of COVID-19 gets here.

      Morgane Oger is passionate about ensuring accessibility and protecting human rights. She has experience extending and accessing human rights law.