Three B.C. judges have quashed a petition for a judicial review of COVID-19 pandemic orders, calling it moot.
The petitioners – a group of 11 people – were seeking the appeal into orders made by provincial health officer Dr. Bonnie Henry during the COVID-19 pandemic, which continued an existing vaccine mandate for health-care workers in certain settings.
They were seeking an order from the court declaring the vaccine mandates violated the Charter of Rights and Freedoms and the Constitution Act and that the orders were "fundamentally flawed, and therefore, unreasonable."
The respondents, Henry, B.C.'s Attorney General Niki Sharma and the provincial government, brought forward an application to quash the appeal for "mootness." They argued that the appeal would have no practical effect on the rights of the petitioners as the orders are no longer in place.
Judges Patrice Abrioux, Paul Riley and Lisa Warren agreed, declaring the appeal moot and adding it wasn't an appropriate case for the court to exercise its discretion to hear a moot appeal. They said the appeal is moot because the orders were rescinded on July 26, 2024, and Henry and her office have since ended the public health emergency that allowed her to make the orders.
The decision says the appeal arose from a petition for a judicial review of certain orders brought by three groups of petitioners. The petition challenged two orders, both dated Oct. 5, 2023, for the continued vaccination requirement for health-care workers.
Henry made several public health orders under the Public Health Act during the height of the pandemic.
In the fall of 2021 Omicron had become the common variant of concern. In September 2023, Health Canada had approved an updated mRNA vaccine meant for the newly dominant Omicron sub-variant and the National Advisory Committee on Immunization strongly recommended people aged six months or older receive the specific vaccine.
The decision notes that as of April 2022, about 90 per cent of eligible British Columbians had received a two-dose primary series vaccine, while 60 per cent had received a booster.
The provincial health officer's October 2023 orders continued pre-existing vaccination requirements. It required the updated vaccine for unvaccinated health-care workers seeking new or renewed employment.
Those orders included 54 paragraphs covering COVID's epidemiology, the importance and efficacy of the vaccines, post-infection immunity, impacts on the health-care system and the balancing of unvaccinated persons’ competing interests, the decision notes. The orders concluded that "an unvaccinated healthcare workforce posed a risk to patients and healthcare workers, and constituted a health hazard."
The appellants had lost their jobs in B.C.'s health-care system "because they were unvaccinated, for religious reasons or for reasons of personal belief about the efficacy and safety" of the vaccines, the decision notes. Some of them worked in remote or administrative roles that didn't bring them in contact with patients or front-line health-care workers.
A previous judicial review found the orders were reasonable, "except as they applied to remote and non-front-line and administrative workers." It also found the orders didn't violate the freedoms for those petitioners who refused the vaccine on religious grounds.
The judges say that even if the petitioners were successful, all they would receive is a declaration that orders that no longer exist are invalid.
