Constitutional advocate disappointed with BC court decision regarding COVID vax exemptions

The BC Court of Appeal sidestepped a Charter challenge to the province’s COVID-19 vaccine passport scheme for failing to create a workable system for medical exemptions, disappointing plaintiffs and their advocate.

The Canadian Constitution Foundation (CCF) helped three patients named Sharon, Veronica and Erica put their case forward. Sharon had developed a neurological condition called brachial neuritis after receiving one dose of the COVID-19 vaccine. Erica, a teenage girl, developed a type of heart inflammation called pericarditis. Veronica is a medically complex individual with a long history of adverse outcomes in response to surgeries and drugs, who declined vaccination.

In Kassian v British Columbia, 2025 BCCA 20, Justices Groberman, Abrioux, and Skolrood ruled, "The only remedy that is sought is declaratory, and it would have no practical effect. Given the factual complexity of the constitutional issue, and the absence of any practical effect, the Court declines to address the issue of whether the failure of the initial regime to provide for blanket exemptions was a violation of s. 15."

The judges held that Sharon and Veronica’s claims were premature because they had not applied to Public Health for exemptions, and their appeal was dismissed. However, CCF Litigation Director Christine Van Geyn found some positives in the ruling.

“The BC Court understood the issues with the provincial vaccine passport regime, which were that the BC vaccine passport regime was constantly shifting and very difficult for any member of the public to understand,” said Van Geyn.

“First the regime included very limited exemptions, then Public Health stopped taking non-medical exemption requests at all, then they created a medical deferral form that could only be completed by a physician, using a check box list of acceptable reasons for an exemption with no write-in category,” continued Van Geyn.

“While we think the Court understood the serious problems with the vaccine passport regime, they unfortunately granted undue deference to the BC Public Health Officer’s interpretation of that regime,” continued Van Geyn.

“The BC Public Health Officer interpreted the orders as not having a closed list of conditions available for exemption. The court found that this interpretation was reasonable. We strongly disagree," added Van Geyn.

"Members of the public like Sharon and Veronica should not need to sue the government only to be told, through evidence given by the government in court but never posted on its website at the relevant time, that they would have been treated as eligible all along," insisted Van Geyn.

The court held that it was arguable that for a period of time, there was no remedy for Erica to obtain a blanket exemption. Between November 12, 2021 and December 23, 2021, the public health exemption guidelines specified that exemptions were on an activity-by-activity basis only. The order preambles themselves retained this language until February 2022.

For this period, the court held that the BC Provincial Health Officer’s interpretation of her own orders as permitting granting blanket exemptions was unreasonable, and that the rationale for denying blanket exemptions in the actual online guidance and orders was never apparent.

The court wrote at paragraph 80 that during that period, “on the face of it, there would appear to be some force in the argument that a regime that unnecessarily restricted exemptions to individual activities or series of activities served to further disadvantage persons suffering from medical conditions contraindicating vaccination.” However, the court then declined to do a Charter analysis finding that a declaration about Erica’s rights would have no practical consequence.

“In our view, had such an analysis been done, there would have been a finding that Erica’s Charter protected rights to life, liberty and security as well as her equality rights were unjustifiably violated. As a young woman who was experiencing a frightening disability after spending her teen years in pandemic isolation, she would have benefited from such a declaration,” said Van Geyn.

“The silver lining in this case is that the court held that there is no public interest in vaccinating people who are medically contraindicated against vaccination--something that the public discourse during the pandemic ignored,” concluded Van Geyn.