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VANCOUVER: The British Columbia Court of Appeal has released the decision in a Charter challenge to the province’s COVID-19 vaccine passport scheme for failing to create a workable system for medical exemptions. The case is called Kassian v British Columbia, 2025 BCCA 20. The Canadian Constitution Foundation (CCF) and the three patients who brought this appeal were unsuccessful, but there were some important positive findings in the case.

The case involved three women, named Sharon, Veronica and Erica. Sharon had developed a rare reaction to the first dose of the COVID-19 vaccine, a neurological condition called brachial neuritis. Erica, a teenage girl, had developed a more common reaction among pediatric patients, a type of heart inflammation called pericarditis. Veronica is a medically complex individual with a long history of adverse outcomes in response to surgeries and drugs, who declined vaccination.

“The court fairly described the difficult situation that Sharon, Veronica and Erica were in with compassion. This was something that was sadly lacking during the broader discourse about medical exemptions during the height of the pandemic, and we are grateful that there is now broader understanding about the needs of medically complex people and people living with disabilities,” said CCF Litigation Director Christine Van Geyn.

The BC Court of Appeal held that Sharon and Veronica’s claims were premature because they had not applied to Public Health for exemptions, and their appeal was dismissed.

“The BC Court understood the issues with the provincial vaccine passport regime, which were that the BC vaccine passport regime was constantly shifting and very difficult for any member of the public to understand,” said Van Geyn. “First the regime included very limited exemptions, then Public Health stopped taking non-medical exemption requests at all, then they created a medical deferral form that could only be completed by a physician, using a check box list of acceptable reasons for an exemption with no write-in category. The court understood all of this,” continued Van Geyn.

“While we think the Court understood the serious problems with the vaccine passport regime, they unfortunately granted undue deference to the BC Public Health Officer’s interpretation of that regime,” continued Van Geyn. “The BC Public Health Officer interpreted the orders as not having a closed list of conditions available for exemption. The Court found that this interpretation was reasonable. We strongly disagree. The patients we worked with in this case read these orders and concluded, we say reasonably, that they were not eligible for an exemption. We do not think the Public Health Officer’s interpretation is a reasonable one and should not have received deference from the court. Members of the public like Sharon and Veronica should not need to sue the government only to be told, through evidence given by the government in court but never posted on its website at the relevant time, that they would have been treated as eligible all along.”

The court also held that it was arguable that for a period of time, there was no remedy for Erica to obtain a blanket exemption. Between November 12, 2021 and December 23, 2021, the public health exemption guidelines specified that exemptions were on an activity-by-activity basis only – in other words, there were no blanket exemptions. The order preambles themselves retained this language until February 2022. For this period, the Court held that the BC Provincial Health Officer’s interpretation of her own orders as permitting granting blanket exemptions (something that Erica only learned through this lawsuit was what the PHO had actually been doing – the PHO never stated this in the guidance on her website or in her public comments) was unreasonable, and that the rationale for denying blanket exemptions in the actual online guidance and orders was never apparent, and that this supports the view that the orders were more restrictive than necessary.

The court wrote at paragraph 80 that during that period, “on the face of it, there would appear to be some force in the argument that a regime that unnecessarily restricted exemptions to individual activities or series of activities served to further disadvantage persons suffering from medical conditions contraindicating vaccination.” However, the Court then declined to do a Charter analysis finding that a declaration about Erica’s rights would have no practical consequence.

“We are also pleased that the court found that it was unreasonable for the PHO to act as if her orders and guidance permitted blanket exemptions for Erica was unreasonable. However, we are disappointed that they declined to conduct a Charter analysis. In our view, had such an analysis been done, there would have been a finding that Erica’s Charter protected rights to life, liberty and security as well as her equality rights were unjustifiably violated. As a young woman who was experiencing a frightening disability after spending her teen years in pandemic isolation, she would have benefited from such a declaration,” continued Van Geyn. “The silver lining in this case is that the court held that there is no public interest in vaccinating people who are medically contraindicated against vaccination. Something that the public discourse during the pandemic ignored,” concluded Van Geyn.

The CCF is a registered charity, independent and non-partisan. We defend the constitutional rights and freedoms of Canadians in the courts of law and public opinion.