A BC woman’s attempt to sue the provincial government over a requirement for a COVID-19 vaccination that is not currently available has been dismissed.
Jennie Weisenburger filed her lawsuit against the College of Naturopathic Physicians of British Columbia and the provincial government, in the form of provincial health officer Dr. Bonnie Henry and Health Minister Adrian Dix.
Weisenburger argued that the university — at the direction of district officials — limited her freedom of speech, and that she anticipates Henry will require naturopaths to be vaccinated against COVID-19 at some point in the future.
“At the height of the pandemic and until now, (Henry) has never issued an order requiring the plaintiff, who is not employed by the public health system, to be vaccinated in order to provide his services,” said BC Superior Court Judge David A. Crerar’s decision in the case, which was published on Tuesday and published online on Wednesday.
“Nor has the defendant university ever made such a claim.”
The province’s remaining vaccination requirements — which were largely upheld in court last month — apply only to people who work in the publicly funded health care system.
The defendants asked Crerar to dismiss the case, arguing that Weisenburger’s claims were “unnecessary, frivolous, vexatious and an abuse of process.”
Crerar agreed. He dismissed Weisenburger’s motion and refused to allow her to amend it, describing her proposed amended notice of civil action as “more hassle than advocacy.”
“Trust Attack”
The judge cited a variety of reasons for dismissing the case, including that it was being brought as a civil action rather than a request for judicial review.
Weisenburger argued her case was a “comprehensive claim that centrally addressed the constitutional validity of emergency powers under the (Public Health Act),” according to the decision.
The defendants argued that the case was in fact, “essentially, an impermissible collateral attack on the decisions and actions of the district and university defendants, which are properly subject to judicial review brought by petition, not by action.” .”
Crerar agreed with the defendant.
“The essence of the plaintiff’s claim is a challenge and attempt to avoid the legality and effect of the decisions and actions of the defendants in the exercise of statutory authority and responsibility,” the judge’s ruling reads.
He also rejected Weisenburger’s claim that the petition for judicial review was insufficient to secure the remedies she sought — such as monetary damages and injunctions overturning parts of the public health law.
Crerar pointed out that the court had the power to strike out part of the action in a court case and that while monetary damages could not be awarded in such a proceeding – court precedent had held that merely claiming damages does not create damages. a “bulletproof” claim if it should have been filed as an application for judicial review in the first place.
“Double Hypothesis”
Besides being filed as the wrong type of case, the lawsuit made “no equitable claim,” Crerar ruled.
“The bulk of the plaintiff’s claim is based on a hypothetical future event that will likely never occur,” the judge’s decision said, before citing multiple paragraphs from Weisenburger’s filing that say she “expects” the county health officer will place restrictions on her.
“Plaintiff’s claim is based on a twofold assumption: that defendants issue a mandatory vaccination order and that mandatory vaccination does not provide for exemptions,” the decision states.
“The possibility of exceptions to such a hypothetical order, or the wording of the hypothetical order itself, piles further hypothesis upon further hypothesis.”
The court cannot assume that vaccine mandates will be imposed or that there will be a lack of exemptions that conflict with the Charter of Rights and Freedoms, Crerar concluded. Likewise, even assuming both facts were true, there would be no reasonable cause of action, because the mandate has not yet been established.
Crerar also listed several other reasons why Weisenburger’s claim must fail, finding that the plaintiff had “no basis to conclude that the claim is salvageable.”
He therefore agreed to the defendant’s request to dismiss the case without leave to amend and re-transfer.
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