Written on behalf of Peter McSherry
In British Columbia, as well as several other provinces, the Government has recently introduced proof of COVID-19 vaccination requirements to access certain businesses and services.
Last week, the British Columbia Human Rights Tribunal (the “Tribunal”) refused to allow a complaint to proceed after a citizen filed a complaint against the requirement on the basis of the protected characteristic of political belief in the area of employment.
Government Introduces Proof of COVID-19 Vaccination Requirements
In its announcement of the COVID-19 vaccination Services Requirements, the BC Government explained that individuals are required to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. Thus, as of September 13, 2021, one dose of vaccine will be required for entry to those settings. In addition, by October 24, 2021, entry to those settings will require people to be fully vaccinated at least seven days after receiving both doses. Specifically, to enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, such as conferences and weddings, people aged 12 and older are required to show their proof of vaccination.
Complaint Lodged Against Proof of COVID-19 Vaccination Measures
Following the Government’s announcement of the Services Requirements on August 23, 2021, a British Columbia citizen (“the complainant”) filed a complaint on August 24, 2021 on behalf of “people who are opposed to being forced into getting the COVID-19 Vaccination and getting our basic human rights and freedoms stripped from us”.
Specifically, the complaint alleged that Government’s conduct discriminated based on the ground of political belief. The complaint was filed under s. 13 of the British Columbia Human Rights Code (the “Code”), which states in part:
“Discrimination in employment
13 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person, or
(b) discriminate against a person regarding employment or any term or condition of employment
because of the race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.”
Thus, the complaint filed her complaint on the basis of the protected characteristic of political belief in the area of employment.
In addition, the complainant stated in her submissions:
“The British Columbia government has made a very aggressive and unjustified move that goes against our basic human right to bodily autonomy and medical freedoms. The government has no right to tell us what goes into our bodies or threatening us into getting this vaccination by taking away our basic rights and freedoms. This is segregation, discrimination, and derogatory, and has no place in modern society.”
Tribunal Refuses to Hear Complaint on COVID-19 Vaccination Proof Requirement
The Tribunal began by explaining that in order to establish discrimination contrary to the Code, all complainants must prove that they have a characteristic protected from discrimination; that they have experienced an adverse impact in a protected area; and that the protected characteristic was a factor in the adverse impact.
Then, because the complainant hadfiled her complaint on the basis of the protected characteristic of political belief in the area of employment, the Tribunal explained that, under case law, political belief includes “public discourse on matters of public interest which involves or would require action at a governmental level”.
However, in response to the complainant’s submissions, the Tribunal stated:
“I accept that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code. In saying this, however, I stress that protection from discrimination based on political belief does not exempt a person from following provincial health orders or rules. Rather, it protects a person from adverse impacts in their employment based on their beliefs.”
Thus, the Tribunal explained that employees are required to follow health laws despite their political beliefs and that the Code merely protects employees from adverse treatment based on those beliefs, subject to a bona fide occupational requirement.
Moving to the second requirement, the Tribunal held that the complainant had not alleged any facts related to any adverse impact in employment, stating:
“The Complainant does not identify how the August 23, 2021 announcement in relation to the Services Requirements has affected her, or anyone else who objects to it, in their employment. The Code does not permit a direct challenge to a public health order based merely on disagreement with it.”
In the result, the Tribunal therefore held that the complainant had failed to establish any actual adverse impact experienced by the proposed class in their employment and had therefore failed to establish a breach of the Code. As such, the Tribunal refused to allow the complain to proceed.
If you are an employee concerned about the legality of workplace policies, or an employer looking to ensure you stay compliant with health and safety regulations as they relate to COVID-19, contact the offices of Guelph Peter McSherry Employment Lawyer. We regularly assist employees with employment and labour issues. Contact us online or by phone at 519-821-5465 to schedule a consultation.