Challenge to B.C.’s public health orders dismissed as ‘premature’

A legal attempt to challenge the constitutionality of B.C.’s COVID-19 public health orders was dismissed this week by the Chief Justice of the Supreme Court of BC.

The health orders, which came into effect on Sept. 13, 2021, required British Columbians to be at least partially vaccinated to get into concerts, restaurants, nightclubs, casinos, movie theatres, and fitness centres. However, three petitioners – all of whom described medical limitations preventing them from getting fully vaccinated – contended those orders limited their ability to: “exercise their rights in a free and democratic society.”

The petition alleged that the Provincial Health Officer failed to provide an “effective, comprehensive, and accessible regime for medical exemptions,” asked for the province’s public health orders to be declared unconstitutional and, “of no force or effect.”

The petitioners

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Petitioner Dawn Slykhuis, who works as a youth crisis clinician at Fraser Health as well as a private therapist and yoga instructor at RVN Wellness in Port Moody, gave evidence that her employment “is now in jeopardy” due to her inability to get an exemption from the proof of vaccination programs.

Slykhuis received the Pfizer vaccine on April 28, 2021. On May 18, 2021, she experienced: “sharp, shooting pain on the left side of her head,” according to her evidence.

“The pain was so severe and I was unable to reduce it through pain killers, pressure, or massage,” she stated in her sworn affidavit.

Slykhuis described numerous symptoms including numbness and loss of control in her hands, disruption to her menstrual cycle, and severe gastrointestinal symptoms not related to food, according to her evidence.

Slykhuis described in her affidavit that, in October 2021, the left side of her body became numb and tingly.

“I was increasingly falling and dropping things without cause or notice. I went back to Eagle Ridge Hospital and was seen by the emergency physician who was unable to detect any acute issues causing these symptoms,” she stated.

Later that month, Slykhuis emailed the Office of the Provincial Health Officer, asking for an exemption on religious or conscience” grounds, explaining she was a vegan and animal rights advocate.

Her family physician refused to sign any form permitting an exemption, according to Slykhuis’ evidence.

“My inability to work or access services in my community has resulted in severe physical and mental health symptoms,” she told the court. “Because of the order banning gatherings in the homes of the unvaccinated, I spent Christmas 2021 alone.”

Maple Ridge resident and petitioner Leigh Anne Eliason also challenged the constitutionality of the public health orders.

Due to a complicated medical history that includes “kidney disease, hypothyroidism, cardiac ablation and ongoing bradycardia,” Eliason was advised by her physician to decline the COVID-19 vaccine.

Eliason’s physician, who swore an affidavit in support of the petitioners, deposed that he had sent a Covid-19 vaccine deferral form on behalf of Eliason and she deposed that, as of the day of the hearing of the petition, she had not been granted an exemption.

Burnaby resident and co-petitioner William Prendiville experienced an adverse reaction to the COVID-19 vaccine, according to his evidence.

After receiving the Pfizer vaccine, Prendiville experienced chest pain that “radiated throughout his upper body.” After being unable to breath without assistance he was hospitalised and told he was “fighting for his life,” according to his evidence.

Prendiville developed pericarditis, leading his cardiologist to advise him against receiving further COVID- 19 vaccinations.

Prendiville was granted a medical exemption. However, he gave evidence that his efforts to use the exemption certificate were largely unsuccessful as he was turned away from businesses.

“. . . store owners and facility managers to whom he has presented the exemption certificate have repeatedly accused him of forging the document . . . and refused him entry based on his vaccination status,” according to the affidavit.

Response from the province

The province requested the petition be dismissed as “moot” because it “raises no live controversy,” given that the public health orders were discontinued on April 8, 2022.

Deputy provincial health officer Dr. Brian Emerson deposed that neither Slykhuis nor Eliason properly sought a deferral from the vaccination requirements, and that the office of the Provincial Health Officer had no record of receiving any medical exemption application or other correspondence from Eliason.

The province also argued that the petition was “premature” on the basis of the adminsitrrative law principle that parties must exhaust all remedies under an administrative process before they can seek judicial review of an administrative decision, such as the public health orders.

The province argued that since Ms. Slykhuis failed to properly seek a medical deferral-based exemption, and there was no evidence that Ms. Eliason did in fact apply for an exemption, the petition was premature.

The judgment

Chief Justice Hinkson opted not to dismiss the petition on the basis of mootness, citing the possibility of the public health orders being reintroduced.

In terms of Slykhuis and Eliason, Justice Hinkson agreed with the province and found the petition to be premature as there was no evidence that they had actually sought an exemption under the public health orders.

In respect to Prendiville, the court found that while he may have “encountered less than full acceptance” by businesses, it was not the province’s fault. Since the Charter only protects individuals against the actions of the government, the petition was dismissed:.

“. . . the province cannot be held responsible for the implementation of the [public health orders] by private businesses, nor can private businesses violate an individual’s Charter rights,” Hinkson wrote. “I find that any harm he has suffered was not a result of anything done or not done by the respondents, and the present petition should be dismissed.”

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