Sarah Leamon: Why two complainants failed to persuade tribunal that vaccine passports violate Human Rights Code

A Vancouver lawyer says that anyone considering launching similar complaints would be wise to examine these decisions very closely

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      The Human Rights Tribunal has issued two decisions related to B.C.’s so-called vaccine passport system. 

      Released last week, these decisions are likely to be the first of many more to come and offer some insight as to what future decisionmakers may resolve in similar cases.

      In the first decision, Complainant v. Dr. Bonnie Henry, the tribunal considered whether the vaccine passport was discriminatory in nature for reasons related to one’s physical health. 

      The complainant in Dr. Bonnie Henry alleged that provincial health orders related to the passport system are discriminatory and, more specifically, that they are contrary to section 8 of the Human Rights Code, which protects individuals from discriminatory on the basis of physical disability. 

      The complainant argued that he had suffered discrimination as a result of his physical disability. He told the tribunal that he suffers from asthma and that he had pneumonia as a child. This, he said, precludes him from obtaining the COVID-19 vaccine. However, it appears that he provided no medical evidence to support his claims. 

      In considering his claim, the tribunal applied the requisite legal test to prove discrimination. It is as follows: in order to prove discrimination, a complainant must first show that they have a characteristic that is protected from discrimination. Next, they must show that they have experienced an adverse impact in a protected area and that the characteristic they possess was a factor in the adverse impact. 

      In applying this test, the tribunal was satisfied that asthma could constitute a physical disability. This is considered a protected characteristic under the law. 

      The tribunal was less satisfied, however, on the second stage of the test. 

      It pointed out some problems in the complainant's case. Namely, that there was no evidence of the complainant suffering a tangible, adverse impact as a result of his vaccination status. The tribunal felt that, in making his claim, the complainant had only expressed a potential or prospective impact. 

      Without a real impact, the complainant’s argument was bound to fail. The tribunal dismissed his claim, stating that he had not established the required adverse impact to show discrimination had occurred. 

      The frailties of this case aside, however, this decision did lend some insight about this issue in obiter. In doing so, it outlined what evidence a complainant would need to present in order to succeed in a discrimination claim of this nature in the future. 

      According to the tribunal, a complainant would not only need to satisfy the legal test, but would also need to provide evidence to establish the connection between their protected characteristic and the adverse impact they experienced. This means that they would have to show a real, protected ground, which precludes them from being vaccinated, as well as a denial of a service based on their vaccinated status. 

      Very importantly, the tribunal further stressed that an ideological opposition to, or distrust of, the vaccine would be insufficient. 

      Given these comments, it is reasonable to conclude that, in order for a claim to succeed, it is very likely that medical evidence would be required. The complainant would need to present medical evidence to establish that their physical disability precludes them from being vaccinated, and then show that they have suffered an impact as a result of their unvaccinated status. 

      So, while this particular complainant’s discrimination claim fell short, the tribunal has provided us with some interesting insights. 

      By outlining the evidence that a complainant would need order to succeed in a claim of discrimination, it very clearly contemplates the possibility of such a claim succeeding. It seems that—at least for now—the door to a successful argument of this nature remains open.

      The second case that the tribunal has weighed in on is called Complainant obo Class of Persons v. John Horgan. 

      Again, the tribunal was asked to consider discrimination in the context of the vaccine passport system. This time, however, the protected ground was not physical disability—but a political belief.

      The complainant in John Horgan argued that their ideological opposition to the vaccine mandate should be considered a political belief and freedom, which is protected under the law. Denying services on the basis of that belief, they said, is discriminatory in nature.

      While the tribunal accepted that such views can be properly characterized as a political belief and therefore afforded the definition of a protected ground under the Code, the claim failed nonetheless. 

      This time, the tribunal took a somewhat harsher stance in rendering its decision. It said that a political belief, while protected, does not exempt a person from following the law. This includes provincial health orders. 

      While the tribunal did not shut the possibility of success for a claim like this out altogether, its comments tend to gesture at the inherent difficulty that will be present for any complainant who wishes to try again. 

      Although neither of these challenges to the passport system were successful, these issues are still far from settled. It is likely that more challenges will present themselves over time and that the law will develop over time.  

      Anyone considering launching such a challenge, however, would be wise to examine these decisions very closely and take the comments of the tribunal very seriously. 

      Otherwise, their challenges may be nothing more but an exercise in futility.