Opposing Government Rules Regarding Vaccination “Could Be” a Political Belief Under the Code

On September 10, 2021, the B.C. Human Rights Tribunal issued a screening decision dismissing a class complaint of discrimination in employment on the basis of political belief.

In Complainant obo Class of Persons v. John Horgan, 2021 BCHRT 120, the Tribunal exercised its discretion to dismiss the complaint at the initial screening stage, finding that the facts alleged did not amount to a contravention of the BC Human Rights Code (“Code”).

The class complaint was brought 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 Tribunal noted that the complaint appeared to be responsive to the B.C. Government’s announcement requiring proof of COVID-19 vaccination to access various services, which were recently implemented on September 13, 2021 (“Service Requirements”), alleging the following:

In order to establish a prima facie (i.e., first instance) case of discrimination, a complainant must prove that (a) they have a protected characteristic (e.g., political belief); (b) they experienced an adverse impact; and (c) the protected characteristic was a factor in the adverse impact or effect.

In considering the alleged protected characteristic, the Tribunal relied on its previous interpretation of political belief to include: “public discourse on matters of public interest which involves or would require action at a governmental level”. In applying this interpretation, the Tribunal accepted that a genuinely held belief opposing government rules regarding vaccination “could be” a political belief within the meaning of the Code. Accordingly, the Code would protect a person from adverse impacts in their employment based on these beliefs.

The Tribunal then considered whether an adverse impact had been alleged in the complaint finding that, on its face, the complaint did not allege how the Government’s Service Requirements had adversely impacted her, or anyone else, in their employment. Accordingly, the complaint was dismissed on this basis.

Takeaways for Employers

This decision may have particular significance for businesses and employers who are considering vaccination rules or policies for their workplace and could open the floodgates to new discrimination complaints in relation to these measures on the basis of political belief.  In particular, employees refusing to follow workplace rules or policies related to vaccinations or masking on the stated basis of a political belief may seek to file a human rights complaint if they experience adverse treatment as a result of their refusal (e.g., a reprimand or other discipline).

In its decision, however, the Tribunal also clarified that “protection from discrimination based on political belief does not exempt a person from following health order or rules”.  It remains to be seen how the Tribunal will respond to complaints from those employees who refuse to follow workplace rules that have been made in the absence of a governmental order.  We expect to see future decisions from the Tribunal on this issue as more workplace mandates come into effect.

In the event of an employee refusal to follow a workplace rule on the basis of a stated political belief, we encourage employers to seek legal advice tailored to the specific circumstances in order to assess the legal strength of any such claim and whether an accommodation analysis might be required in the circumstances.

Finally, it is important to highlight that the above considerations will not apply to potential complaints from customers to an employer’s business as “political belief” is not a protected ground under section 8 of the Code – discrimination in accommodation, service and facility.

Jennifer Devins is a partner at Roper Greyell, practicing in all areas of employment and labour law with a focus on human rights law. She can be contacted at jdevins@ropergreyell.com.

Jaime Hoopes is an associate at Roper Greyell, practicing in all areas of employment and labour law with a focus on human rights and privacy law. He can be contacted at jhoopes@ropergryell.com.

While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein.  This article is for general information purposes only and does not constitute legal advice.