September 13th, 2021

As of today, September 13, 2021, people in BC age 12 and over will have to provide proof of vaccination to attend some social and recreational settings and events, including:

  • Indoor ticketed sporting events
  • Indoor concerts, theatre, dance, and symphony events
  • Restaurants and nightclubs, both indoors and on patios
  • Movie theatres
  • Fitness centres and gyms
  • Organized indoor events such as weddings, conferences, meetings, and workshops

The requirement is an Order of BC’s Provincial Health Officer, Dr. Bonnie Henry. You can read the entire Order here. More information on the new proof of vaccination requirement, including information on how to book your vaccine, is available here.

As of September 13, people must have received at least one dose of an approved COVID-19 vaccine to access the services and events covered by the Order. As of October 24, people must be fully immunized to access these services.

The Order does not apply to employees of these businesses. Employers may choose to implement mandatory vaccine policies for their employees, but this is not covered by the provincial Order. For more information on workplace vaccination policies, see our blog post here.

The government describes the settings where vaccination will be required as “discretionary”, meaning they are not essential to people’s lives. The Order does not apply to grocery stores, pharmacies, retail settings, libraries, public transit, or unlicensed restaurants that don’t offer table service, like fast food, coffee shops, and takeout. It also won’t apply in food banks, shelters, social service settings, health care services, rehabilitation or exercise therapy programs, or drug and alcohol support group meetings.

The Order expires on January 31, 2022, though it may be extended.

Importantly from a human rights perspective, the government’s original announcement said there would be no exemptions for people who are unable to receive the vaccine for medical or religious reasons. However, the final Order does contain a process whereby people with a “medical contraindication” may request a reconsideration of the Order. The Order states:

A request for reconsideration of this Order on the basis of a medical contraindication made by a person to whom the Order applies must include a signed and dated statement from a medical practitioner, based upon a current assessment, that the health of the person would be seriously jeopardized if the person were to receive a first or second dose of vaccine, and a signed and dated copy of each portion of the person’s health record relevant to this statement.

A request for reconsideration may be submitted to the Provincial Health Officer at [email protected] with the subject line “Request for Reconsideration about Proof of Vaccination”.

Disability and human rights organizations have raised other important human rights considerations about the vaccine card, including:

  • Impacts on undocumented migrants and other migrants who are denied MSP coverage
  • Access for low-income and homeless people without government-issued identification
  • Barriers for those without access to smart phones, internet, or printers
  • Potential exacerbation of the drug-poisoning crisis
  • Impacts on two-spirit, trans, and non-binary people whose names do not match the names on their government identification

Although the Order only went into effect today, the BC Human Rights Tribunal has already received many complaints alleging that the Order violates human rights. The Tribunal has issued two decisions so far, dismissing both complaints at the screening stage because they did not set out allegations that would violate the Human Rights Code.

The first was a complaint against Dr. Henry.[1] The complainant said he had asthma and did not want services limited because of what he called “your experimental COVID vaccine.” The Tribunal noted that while asthma could constitute a disability protected by the Code, the complainant had not experienced any adverse impact with a connection to his disability. This is key for a human rights complaint to proceed. There must be a connection, or “nexus”, between someone’s protected characteristic and the negative impact they experienced.

The Tribunal said:

Here, even if the Complainant had outlined an adverse impact, such as being denied a service because he was not fully vaccinated against COVID‐19, he would then have to allege facts that could establish a connection between having asthma and not being fully vaccinated, such as his  disability preventing him from being able to get vaccinated. An ideological opposition to or distrust of the vaccine would not be enough.

The second complaint was filed the day after the government announced its plans for the vaccine card.[2] It was filed 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.” The complaint alleged discrimination in the area of employment on the basis of the complainants’ political belief.

The ground of “political belief” in the Code includes “public discourse on matters of public interest which involves or would require action at a governmental level.”[3] The Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination could be a political belief within the meaning of the Code, but went on to say:

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. For example, in Bratzer, the Tribunal found that the employer had discriminated against the complainant because of his advocacy in connection with drug laws. He still had to follow those laws despite his opposition to them, but his opposition to them could not be the basis for adverse treatment in his employment, subject to a bona fide occupational requirement.

The Tribunal also found that, like in the first complaint, the complainant had not suffered any actual negative impact in her employment. The complaint was therefore dismissed.

It is critical to remember that for the Human Rights Code to apply, a person must have a protected characteristic that is negatively impacted by a rule, policy, or requirement. A personal desire not to get vaccinated is not protected by the Human Rights Code. This has been confirmed by the Tribunal in numerous decisions involving the requirement to wear a mask.

The BC Human Rights Commissioner has noted that getting vaccinated against COVID-19 is an important way people can help keep each other — especially those who are most marginalized and medically vulnerable — as safe as possible. People with medical conditions that prevent them from accessing the vaccine are especially vulnerable to infection with COVID-19. Their health and safety is best protected by everyone else rolling up their sleeves and getting the jab as soon as possible, so that everyone can once again safely enjoy the music, sporting events, and recreational activities we have all missed so much.

[1] Complainant v. Dr. Bonnie Henry, 2021 BCHRT 119.

[2] Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120.

[3] Bratzer v. Victoria Police Department, 2016 BCHRT 50 at para. 271.