The Mathematics of COVID-19 and Discrimination
British Columbia’s Human Rights Tribunal has issued two recent decisions, dismissing complaints against Premier John Horgan and Provincial Health Officer Dr. Bonnie Henry arising out of the recent “vaccine passport” announcement. (At least the complainant had the gumption to aim high…)
Robert Smithson, whose employment law articles are some of the best and no-nonsense we’ve seen on the subject of COVID-19, provides his perspective.
The original version of this article can be found on Smithson Employment Law Corporation.
The Tribunal described the discrimination complaint against Dr. Henry as follows.
“Most recently, the Government of British Columbia announced that it would be requiring proof of COVID‐19 vaccination to access various services, starting on September 13, 2021. The August 23, 2021 Government news release said that:
A new order from the provincial health officer will require individuals to provide proof of vaccination to access a broad range of social, recreational, and discretionary events and businesses throughout the province. As of Sept. 13, one dose of vaccine will be required for entry to these settings. By Oct. 24, entry to these settings will require people to be fully vaccinated at least seven days after receiving both doses. To enter certain spaces, including indoor ticketed sporting events, indoor and patio dining in restaurants, fitness centres, casinos and indoor organized events, like conferences and weddings, people aged 12 and older will be required to show their proof of vaccination.
The Complainant filed a complaint against Dr. Bonnie Henry, Provincial Health Officer for British Columbia, alleging discrimination in the area of services on the basis of physical disability under s. 8 of the Human Rights Code. He says that the Services Requirements are discriminatory.”
In its decision, the Tribunal reiterated its approach to adjudicating discrimination complaints.
“The Tribunal reviews complaints upon filing to ensure that they allege facts that, if proved, could violate the Code. To establish discrimination, a complainant 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: Moore v. British Columbia, 2012 SCC 61 at para. 33.”
Applying that approach to the complaint against Dr. Henry, the Tribunal had the following to say.
“In the present complaint, the Complainant says that he has asthma, had pneumonia as a child, and ‘does not want your experimental COVID vaccine.’ Asthma could constitute a physical disability, which is a protected characteristic under the Code.
Moving onto the second requirement, however, the Complainant does not allege facts of having experienced an actual adverse impact. He says only that “in a news conference, it was announced that the experimental vaccine is being made mandatory”, and that he does not want services limited “because of your experimental vaccine”. At best, the Complainant references a prospective adverse impact, not one that he has actually experienced.
Without an actual adverse impact related to a service, facility or accommodation customarily available to the public, this Complaint could not constitute a breach of the Code.”
In this respect, the Tribunal’s decisions perhaps aren’t of much value in the overall scheme of the pandemic and the impact of the government’s various measures. In effect, the Tribunal was able to make quick work of a defective complaint because the substance of the complaint was prospective (and, therefore, hypothetical).
The Tribunal did, however, provide a bit of useful guidance as to how it will handle future complaints from individuals seeking to avoid the impact of the government’s vaccination efforts.
“Before concluding, I note that it is not enough to prove discrimination to have a protected characteristic and have experienced an adverse impact: there must be a connection between the two. The person making the complaint must establish that connection. 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 Tribunal appears to have taken a stand, stating that a person’s ideology and distrust of the vaccine, even if combined with a protected characteristic and an adverse impact, is not sufficient to support a complaint.
This is worth emphasizing. It’s the nexus between the protected characteristic (a disability, a particular religious affiliation, a political belief, etc.) and the adverse impact experienced by the complainant which proves the existence of discrimination. Without that nexus, there is no discrimination.
For instance, a person might have a religious affiliation which precludes him/her receiving a COVID-19 vaccination. That same person might lose his/her job during the ongoing pandemic. But, unless the person can connect the two circumstances, there is no discrimination. The employment might, for example, have ended simply due to a downturn in business.
The Tribunal’s comments may seem a little convoluted. The key portion of the Tribunal’s statement is…
“… 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.”
The Tribunal was saying that claiming the existence of some disability – alone – is not sufficient to satisfy the requirement of a protected characteristic. The disability must also be relevant to why the person hasn’t become vaccinated. Similarly, the mere existence of some religious affiliation – alone – is not sufficient. The religious affiliation must also be relevant to why the person hasn’t become vaccinated.
I’ve already seen situations in which an employee – who plainly is opposed to becoming vaccinated – cites some unrelated past medical condition as his/her reason for refusing the vaccine. The Tribunal is saying that this won’t work. The medical condition (disability) must be relevant in that it actually prevents the person from becoming vaccinated.
In a mathematical sense, a relevant protected characteristic + an actual adverse impact + a connection between the protected characteristic and adverse impact = discrimination.
So far, to my knowledge, nobody has been able to convince the Tribunal that they can meet the requirements of this equation in the context of the COVID-19 pandemic.
This item is provided for general information purposes only and is not intended to be relied upon as legal advice. Informed legal advice should always be obtained about your specific circumstances.