B.C. nurses, doctors fired over vaccine refusal lose court bid to toss health orders – Vancouver Sun

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The judge said only workers with no access to patients or colleagues made case for vaccine exemption

Published May 14, 2024 Last updated 18hours ago 4 minute read

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A nurse-practitioner who lost her job after refusing the COVID-19 vaccine on religious grounds was among 15 health-care workers who failed to have B.C. public health orders dismissed on constitutional and other grounds.

A B.C. Supreme Court ruled on three similar petitions to have two orders issued in 2023 by B.C.s provincial health officer thrown out, according to the reasons for judgment released Monday.

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The orders, issued in October 2023, extended a previous order requiring COVID vaccinations by workers in health-care settings and long-term care homes.

The health-care workers sought to dismiss the orders, arguing their continuation was an unreasonable exercise of the powers of the health officer, Dr. Bonnie Henry.

They argued the orders caused ongoing hardship and harm to workers who had lost their jobs and to the health-care system from the loss of personnel. About 1,800 health-care workers were fired for refusing to get vaccinated.

The petitions challenged the reasonableness of the orders on four grounds.

That, by late 2023, COVID was no longer an immediate and significant risk to public health and the health officers emergency powers no longer applied.

That there was no medical evidence that unvaccinated health-care workers posed a greater risk to vulnerable patients than vaccinated workers.

That it was unconstitutional to force the workers to choose between their fundamental and personal beliefs about vaccination and keeping their jobs, because it infringed on rights to freedom of conscience and religion in Canadas Charter of Rights and Freedoms.

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They also argued that it was unreasonable to apply the order to those who worked remotely or held administrative positions, given their lack of contact with vulnerable patients and front-line workers.

Justice Simon Coval dismissed the first three grounds. He agreed with the fourth one, ordering the issue be returned to the public health officer to tweak her health order.

And while he found the orders did violate Charter guarantees of conscience and religion, he ruled that infringement was reasonable because the health officer did not exceed what was necessary to balance the protection of vulnerable patients, residents and clients from serious illness and death and the safety of the public.

Peternella Hoogerbrug, the Christian nurse practitioner, was fired in May 2022 for refusing the vaccine for religious reasons.

She told court her faith is an integral and deeply held root part of her life and identity and her church, the Reformed Congregation in North America, opposes vaccination because it interferes with the providence of God and the church teaches placing ones trust in the vaccine, rather than God, can lead to idolatry, Coval wrote in his judgment.

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Hoggerbrug was devastated by losing her job to adherence to her faith and that providing health-care services has been a core aspect of her identity, according to the judgment. She hasnt been able to find a job as a nurse practitioner because of her lack of vaccination, it said.

York Hsiang, a vascular surgeon at Vancouver General, and David Morgan, a psychiatrist from Prince George, also lost their jobs because of their vaccine refusal.

Hsiang said he chose not to get the vaccine based on his own medically informed risk-benefit analysis and strong belief it should be his choice. He stopped performing surgery and retired in 2021 rather than face being fired.

Morgan, who assessed and treated youth in the criminal justice system, was fired in December 2021 for not getting the jab, and now works in private practice and as an assistant University of B.C. professor, the judgment said.

Hilary Vandergugten, a nurse who was a clinical coordinator at Langley Memorial Hospital, where she worked for 27 years, was fired in 2022, which affected her financially and emotionally. In her affidavit, she said she was working part-time doing COVID tests in the film industry.

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Other petitioners described severe consequences from losing their jobs for refusing the vaccine as they were terminated for just cause and were ineligible for severance or employment insurance benefits, and lost pension and insurance plans along with their jobs, the judgment said.

They had trouble replacing their jobs and some considered moving from B.C., Covals judgment said.

Coval wrote that Henrys job during a pandemic is to prevent and manage outbreaks, reduce risk of infection, serious illnesses and premature deaths, and protect the health-care system, and in October 2023 she issued the two orders, which had no expiry date.

Coval wrote that the petitioners argued that by October 2023 the continuation of the vaccination order was being used as a quasi-permanent precautionary measure for a virus which, by that time, the PHO herself described as no more serious than a cold.

But he said the 2023 orders are reasonable because health-care workers are in a special situation given the crucial role they play in the system and their near-constant, close contact with the most vulnerable patients, who generally speaking have no choice but to be treated by them.

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B.C. nurses, doctors fired over vaccine refusal lose court bid to toss health orders - Vancouver Sun