A provincial court in BC ruled a vaccine mandate appeal moot last week for the second time since its implementation — this time in a higher court. .The appeal, made by the Canadian Constitution Foundation (CCF), was against the government-issued vaccine passports people were required to show at restaurants, gyms, libraries and other public spaces during the COVID-19 pandemic. .It specifically focused on the lack of exemptions offered by the BC government. .The court gave the written ruling in court Friday, after orally stating the case was moot on Wednesday. However, it emphasized the importance of the CCF appeal to proceed and “outline the merits of the case,” because public interest was substantial enough for the court to hear the case anyway. .Christine Van Geyn, litigation director of CCF, appealed in court to make the appeal, aiming to prevent vaccine mandates being imposed in BC ever again. .“This is one of those few rare cases where we’re actually going to be hearing the appeal in a COVID-era case about vaccines, on the merits of the case,” Van Geyn said in a video overview of the case..Three women were represented in the case..First was Erica, who was 17 years old when she was diagnosed with pericarditis after she got her first dose of the COVID vaccine. .Next was Sharon, a young woman who developed brachial neuritis (paralysis of the arm) after her first shot. Neurologists said the paralysis was due to the first dose of the vaccine. Sharon got pregnant soon after, and “didn't want to risk further nerve damage that could hurt” her baby..Finally Veronica, a “medically complex” young woman with several pre-existing conditions who was denied access to the public pool where she undergoes mobility therapy. .The CCF’s argument was the government’s exemption process required applicants to fill out a form consisting of “six tick boxes with acceptable medical reasons not to be vaccinated” and support it with a doctor’s note — but the narrowness of the exemption list left these three women out, even those who met the criteria. .The exemptions included anaphylaxis to vaccine ingredients, multisystem inflammatory syndrome, myocarditis or pericarditis following the first dose of COVID-19 vaccine, or if the patient is undergoing cancer treatments, .“The vaccine passport regime developed by the British Columbia government did not have workable exemption programs at first,” Van Geyn said, which prompted CCF to write an appeal “that there should be at least some exemptions.”.The government, which did implement a process for applying for medical exemptions on an “activity-by-activity” basis — rather than blanket exemptions — after receiving the letter, countered with two arguments to the appeal. .First, the list it created for exemptions was “open,” and second, “the exemptions were not on an ‘activity by activity’ basis.”.The government argued “part of the purpose” of these vaccine orders “related to transmission” and said the Public Health Office (PHO) “needed to design a process that looked at what was happening with unvaccinated people” and “how they became sicker and hospitalized at a higher rate because there were vulnerable people in society who even if vaccinated couldn't mount an immune response.”.It argued the application for exemption was a “completely open process” and exemptions were technically "reconsiderations of the order". .“I don't dispute that these forms were incorporated by reference into the PHO orders,” the government representative said, pointing out the form mentions "pre-existing medical conditions" which is “not exclusive language.” .“The petitioners did not engage with this remedy at all,” he said. “Their request would have been addressed even if their request was incomplete.”.The court interjected and referenced "a press release from the College of Physicians.".“It attributes a position to PHO that, although hearsay, is pretty serious in terms of message to the public that only certain conditions are considered," the court said. .“My submission is when you look at the form and orders together there is clearly an open process,” the government rep said. .Van Geyn concluded the three-day trial in a summary video..“The lower court judge is the only legal interpretation we have actually seen of these forms,” she said. "Because what the government has argued in this case, the way they’re phrasing their argument is that, ‘we had these mandatory forms, with the six tick boxes and the requirement to send the letter from your physician.’”.“But what the government has said is that they actually were secretly not even following their own requirements that they imposed on the public,” she said..“They secretly granted exemptions to people who were outside of those six tick boxes, but they didn’t tell anyone that they were doing that and our applicants ‘should have known’ that the government was secretly not following its own law and they should have applied anyway.”.“And from an administrative law perspective, that’s an untenable position. You can’t remedy an unconstitutional law or order by saying, ‘we didn’t actually follow our own law.’”
