Disability Accommodations and the Limits of the COVID-19 Vaccine Card Orders

Will service providers bear a duty to accommodate people unable to get vaccinated due to their disabilities? The uncertainty surrounding the question is discussed in my post regarding the lack of accommodation for unvaccinated people with disabilities in the new public health orders requiring proof of vaccination. It may depend on whether the mandatory vaccination card orders apply. This post provides information on the limits of the orders’ applicability.

The BC Government Website has their own summary of where and when the orders apply here. It is only a summary. The website is not the law itself. This post offers information on what is stated in the orders. It is only legal information and should not be taken as advice.

General Organization of the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to post-secondary housing (the “Post-Secondary Housing Vaccine Order”), the second to food and liquor service premises (the “Food and Liquor Services Vaccine Order”), and the third to “gatherings and events” (the “Gatherings and Events Vaccine Order”). Together, I will call these the “Orders.”

Determining whether one of these orders applies, from a strictly legal standpoint, is not so much about determining whether the service is essential or non-essential. With respect to the third order, the determination is about whether the service constitutes an event or gathering covered by the order.

Who the Orders do not Apply to

The orders do not apply to people who are under 12-years of age.

These three orders do not require employees/staff to have a vaccine passport (unless, for example, the staff member attends a restaurant as a patron, or a faculty member lives in university housing). They are directed at residents who reside in post-secondary housing, patrons of food and liquor serving premises, and persons who attend “events” as participants.

However, note that there are two other provincial health officer orders (here and here) that do require proof of vaccination for health care workers in long term care and assisted living facilities, private hospitals, and provincial mental health facilities. Those two orders do not specifically provide for disability accommodations on human rights grounds, although human rights protections may still exist.

Post-Secondary Housing Exceptions

The order regarding vaccine card requirements in post-secondary housing applies to most student housing at universities and colleges in British Columbia.

As per the definition of “post-secondary housing” in the order, “family or apartment housing” for students is not included. As such, it seems that the Post-Secondary Housing Vaccine Order is mainly meant to target dorms rather than family on-campus housing and apartments.

Food and Liquor Services Exceptions

The Food and Liquor Services Vaccine Order applies to food establishments that have table service/patron seating. Restaurants (including buffets) and cafes with table service are included. Food primary or liquor primary establishments such as pubs, bars, lounges, night clubs, private clubs, and liquor manufacturing facilities with tasting rooms or private seating are included.

According to the preamble of the Food and Liquor Services Vaccine Order, paragraph M, it does not apply to:

Gatherings and Events Applicability

The Gatherings and Events Vaccine Order mandates proof of vaccination for participants in certain indoor “places” where “events” are held.

Applicable Places

A “place” is defined in the order as a venue, including the following places (but not including a “private residence”):

**vacation accommodation is defined in the order as: a house, townhouse, cottage, cabin, apartment, condominium, mobile home, recreational vehicle, hotel suite, tent, yurt, houseboat or any other type of living accommodation, and any associated deck, garden or yard, in which a person is residing, but which is not the person’s primary residence.

Applicable Event Purposes

The Gatherings and Events Vaccine Order defines “event” so that the order only applies to activities happening at places for the following Applicable Event Purposes:

For some clarity, the definition of “event” in the vaccine card portion of the order stipulates that the following event types constitute events held for the Applicable Event Purposes:

a ticketed sports activity, concert, theatrical production, dance or symphony performance, festival, conference, convention, trade fair, home show, workshop, wedding reception, funeral reception not at a funeral home, and a sponsored, ticketed party

Number of Participants Involved

When it comes to having to provide proof of vaccination, the Gatherings and Events Order only applies to “gatherings” of participants in the activity. Exactly what “gathering” means is not set out in the order, but, presumably, there would need to be more that one participant involved in the activity for it to constitute a gathering.

As described above, when the event constitutes a gathering of 50 or less people and is not for the purpose of “an adult sports activity” or “an exercise, fitness or dance activity or class,” the Gatherings and Events Order does not apply.

Inside v. Outside

As per section D. 2. of the order, proof of vaccination applies only to activities occurring inside. Per section A.2. of the order, an event held in a tent with two or more sides is an inside event, and per section A.3., an event held in a tent without sides is an outside event. It’s unclear whether the definitions regarding tents and inside and outside events apply to the proof of vaccination section of the order. Either way, for proof of vaccination requirements to apply, the activity needs to be happening inside.

Specific Exceptions

The Gatherings and Events Vaccine Order includes a specific list of who and what activities it is not meant to apply to in the preamble at paragraph L. The specific exceptions are as follows:

Summary Checklist

Taken together, the following checklist describes the conditions that need to be met for the Gatherings and Events Vaccine Order to be applicable:

If any of the conditions of the checklist are not met, the Gatherings and Events Vaccine Order likely does not apply.

Do the BC COVID-19 Vaccination Passport Orders Prevail Over Human Rights Legislation Requiring Disability Accommodation?

The law regarding BC’s COVID-19 vaccination passport and entry into various establishments in the province was published today. This post discusses the publication of the relevant orders, their lack of human rights (disability) accommodations, the issue of whether they prevail over the discrimination protections set out in the Human Rights Code, their relationship with the Charter, and the protections available to service providers who follow them. Activities that are not covered by the orders will be set out in a later post.

Publication of the Orders

While BC Premier John Horgan, Provincial Health Officer Dr. Bonnie Henry, and Health Minister Adrian Dix announced the upcoming provincial health order(s) on August 23, 2021, the law itself was not published here on the BC Office of the Provincial Health Officer website until yesterday evening and this morning. The Provincial Health Officer Order regarding post-secondary institution housing and the COVID-19 vaccine cards is dated September 9, 2021 but was published yesterday evening. The Provincial Health Officer Orders regarding the COVID-19 vaccine passport and food and liquor serving premises is dated yesterday September 10, 2021 but was published today, and the Order regarding COVID-19 vaccination passports and “gatherings and events” is also dated yesterday but was published this morning. In this post, I will call all three of these, taken together, the “Orders.”

Lack of Human Rights (Disability) Accommodations

Further to my post of August 23, 2021 and in line with what Dr. Henry stated at the press conference regarding the anticipated Orders on August 23, 2021, the Orders do not provide exemptions for people who cannot get vaccinated or provide proof of vaccination for medical reasons. The only people who the orders make exemptions for are those under 12 years of age. This means that the orders will conflict with the BC Human Rights Code, which prohibits discrimination and requires service providers to accommodate people with disabilities to the greatest extent possible. The orders also conflict with the guidance of BC’s Human Rights Commissioner, who released a policy guidance document in July, 2021 affirming that service providers must seek to accommodate people who are unable to get vaccinated on the grounds of their BC Human Rights Code protected characteristics (disability, religion, family status, etc.).

The orders are more restrictive than the current order regarding face coverings in indoor spaces, which does include human rights exemptions for people with disabilities, as follows:

Requests to Reconsider Order

Though there is not specific provision for disability accommodations in the Orders, there is mention that persons who want to avoid complying with the Orders can ask the Provincial Health Officer (Dr. Bonnie Henry) directly for reconsideration of the Orders applying to them. The process is set out in section 43 of the Public Health Act as follows:

The manner of making requests is set out by the Provincial Health Officer as follows:

As such, the Order can only be varied in relation to certain individuals in a limited set of circumstances, when a request is made to the Provincial Health Officer with documentation from a medical practitioner that the health of a person would be “seriously jeopardized” if the person were to receive the vaccine, as well as the person’s relevant medical records. And consideration of these requests is discretionary; there’s no guarantee for an exemption even with the required medical documentation.

Do the Orders Prevail Over the Human Rights Code?

There is uncertainty surrounding whether service providers who are in breach of the Human Rights Code due to acting in accordance with the Public Health Officer orders will be shielded from liability for discrimination. On the one hand, there are Public Health Act provisions meant to protect those who are following the Orders from legal and other adverse action. However, at the same time, there is a paramountcy provision in the Human Rights Code stipulating that if there is a conflict between the Human Rights Code and another enactment (such as the Public Health Act), the Human Rights Code prevails.

Public Health Act Provisions Regarding Immunity from Legal Proceedings

The provisions of the Public Health Act that give immunity to service providers responsible for the vaccine passport screening are as follows:

As such, it may be that service providers acting in accordance with the order but contrary to the Human Rights Code cannot have a human rights complaint brought against them successfully UNLESS they are acting in bad faith. It is a high threshold for finding bad faith conduct and it would need to involve something uniquely egregious.

However, sections 92 and 93 of the Public Health Act may also be read narrowly so that they only capture court actions (for example in tort or contract) for damages, but not human rights complaints brought in the BC Human Rights Tribunal. Or the provisions could be interpreted so that they allow a complainant to successfully bring a human rights complaint, but not be entitled to any damages.

Further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below.

Additional Public Health Act Protection from Adverse Action for Service Providers

In addition to being shielded from legal proceedings, potentially including human rights complaints, service providers acting in accordance with the orders are also generally shielded from any “adverse action,” which is defined as “an action that would adversely affect, or that threatens to adversely affect, the personal, financial or other interests of a person, or a relative, dependent, friend or business or other close associate of that person, and includes any prescribed action.” This means that if someone feels aggrieved by a service provider carrying out an order and so attempts to take adverse action against that service provider in some way, they’re potentially contravening the Public Health Act section 94. One such contravention might include the recent rumours that opponents of the vaccination passports plan to call restaurants carrying out the order and make fake take out orders to harm the businesses.

It is possible that this provision may also be interpreted as preventing potential complainants from successfully bringing a complaint under the BC Human Rights Code, because doing so could potentially be interpreted as an “adverse action.” However, it does not appear that the intention of this provision was to capture human rights complaints, and this section of the Public Health Act is so broad that it may potentially be unconstitutional. And again, further uncertainty comes with analyzing the Public Health Act provisions in the context of the Human Rights Code‘s paramountcy provision, and that is discussed further, below

As per section 99 of the Public Health Act, contraventions of section 94 are an offence. Section 99 offences can come with alternative penalties under section 107 such as paying a person compensation and/or, additionally under section 108 of the Public Health Act, a fine of up to $25,000, imprisonment of up to 6 months, or both.

No Mention of Human Rights Code in Events and Gatherings Order

Interestingly, there is no mention of the BC Human Rights Code in the third order regarding events and gatherings. In contrast, the other two Provincial Health Officer orders regarding food and liquor establishments and university housing have included a provision in their preamble regarding the Provincial Health Officer’s consideration of the Human Rights Code. For example, in the preamble to the order regarding vaccine passports at university housing, the following is stated about the Human Rights Code:

O. In addition, I recognize the interests protected by the Human Rights Code, and have taken these into consideration when exercising my powers to protect the health interests of residents, staff and faculty at post-secondary institutions;

Human Rights Code Paramountcy Provision

Although there is no mention of the Human Rights Code in one of the Orders, the code still generally applies when someone experiences an adverse effect (such as being denied entry to a venue) as a result of their disability not being accommodated by a service provider.

The Public Health Act sections potentially shielding service providers from human rights code liability for discrimination, or having to pay damages for discrimination, must be read and analyzed with reference to section 4 of the Human Rights Code, which stipulates as follows:

Code prevails

4   If there is a conflict between this Code and any other enactment, this Code prevails.

Given this section of the Human Rights Code, a complainant could argue before the Human Rights Tribunal that although the Orders mandate vaccination cards without any reasonable exemption to accommodate for disability, this conflicts with the Human Rights Code, which requires accommodation. Per section 4 of the Human Rights Code, the code, with it’s accommodation requirements, prevails.

Further, a complainant could also potentially argue before the Human Rights Tribunal that although the Public Health Act provides immunity from legal proceedings for damages and protection from adverse actions to service providers when they follow the Orders, this conflicts with the Human Rights Code, which allows complainants to bring a human rights complaint, for damages, when they have been discriminated against. Per section 4 of the Human Rights Code, the prevailing provisions are those of the Human Rights Code that allow a complainant to bring a human rights complaint for damages.

Constitution/Charter of Rights and Freedoms Consideration

All three of the recent orders regarding vaccination passports do include a provision regarding the Canadian Charter of Rights and Freedoms. I often hear people bringing up the issue of these types of orders violating their charter rights and therefore being of no force and effect. That is not necessarily true. Under Canada’s Charter, it is possible for law to violate constitutionally protected rights, but in a way that is considered justified per the Charter. And so in that case, a court considering a Charter challenge can uphold a law even though it was considered unconstitutional, because the Court finds this justified under the Charter. The Orders bring up this issue by stating as follows in their preambles:

I further recognize that constitutionally-protected interests include the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, including the right to life, liberty and security of the person, along with freedom of religion and conscience, freedom of thought, belief, opinion and expression. These rights and freedoms are not, however, absolute and are subject to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. These limits include proportionate, precautionary and evidence-based restrictions to prevent loss of life, serious illness and disruption of our health system and society. When exercising my powers to protect the health of the public from the risks posed by COVID-19, I am aware of my obligation to choose measures that limit the Charter rights and freedoms of British Columbians less intrusively, where doing so is consistent with public health principles;

Activities Not Covered By the Orders

Service providers and unvaccinated potential service users are likely to be confused about exactly who can attend what facilities and services, when. The government announcement on August 23, 2021 framed the vaccination passports as being required primarily at “non-essential” services. However, the orders are framed differently. One order applies to university housing, the second to food and liquor service premises, and the third to “gatherings and events.”

I plan on discussing what is not covered by the Orders in a separate post, which will follow.

Landlord Ordered to Pay Indigenous Tenant $23,000 for Discrimination Over Smudging

On February 28, 2020, in Smith v. Mohan (No. 2), 2020 BCHRT 52, the BC Human Rights Tribunal issued its reasons for deciding that a landlord contravened the BC Human Rights Code by making discriminatory statements to his Indigenous tenant and attempting to evict her after learning that she smudged in her apartment.

The tribunal member who made the decision found that complainant Crystal Smith, a member of the Tsimshian and Haisla Nations, was a credible witness, and the Respondent Parminder Mohan was not.

In making her arguments, Ms. Smith relied on the evidence of an expert who wrote a report and testified about the impacts of smudging on air quality and human health. Social context evidence that she relied on included the Final Report of the Truth and Reconciliation Commission of Canada, Volume One and Social Determinants of Health: Aboriginal Experiences with Racism and its Impacts. Ultimately, the tribunal member did not rely on this evidence.

Ms. Smith’s description of smudging is set out as follows:

[50] To smudge, Ms. Smith testified she lights the sage in the abalone shell and fans it with the eagle feather to create smoke. She testified the smoke cleanses negative energy from a person or space. She explained different methods for smudging a person, where you use the smoke to wash over yourself – your head, your eyes, your heart, your whole body; whereas for
a house, you start from the left and smudge the whole house. Ms. Smith testified that a typical smudge lasts for around 10 minutes and there is no ash, except what is left in the shell. She testified that in her experience, the sage creates a white smoke that has a smell that lasts for a few hours, and that after burning the sage she would put what remained in a jar to return to the land.

The tribunal stated the following about a landlord’s ability to prevent a tenant from smudging:

[245] In my view, a policy that prohibits an Indigenous tenant from smudging entirely due to concerns about “nuisance” or “property damage” unless they can persuade their landlord the smudging would not create a risk of nuisance or property damage would adversely impact Ms. Smith and persons with her protected characteristics in and of itself.

Mr. Mohan was ordered to cease contravening the BC Human Rights Code and pay Ms. Smith the following damages:

i. $1,500 for compensation for wages lost as a result of the contravention;
ii. $1,800 as compensation for expenses incurred as a result of the
contravention;
c. $20,000 as compensation for injury to her dignity, feelings, and self‐respect;

for a total of $23,300 plus post-judgement interest.