B.C.'s courts have again upheld a health authority's decision to suspend or terminate an unvaccinated health-care worker during the COVID-19 pandemic.
In an Aug. 7 decision in a Kelowna court, a B.C. Supreme Court justice dismissed the judicial review petition from a doctor who lost her hospitalist position in 2021 for refusing to get vaccinated against COVID-19, finding that the Canadian Charter of Rights and Freedoms does not apply to a health authority's decision as to how it implements a government policy.
Dr. Theresa Szezepaniak was terminated from her job at the Royal Inland Hospital in Kamloops after refusing to abide by an October 2021 mandate from provincial health officer Dr. Bonnie Henry that all hospital workers get the vaccine.
Szezepaniak appealed her termination to the hospital appeal board, which found that while outright firing was too harsh a punishment, it was still reasonable to not keep her on if she was still unvaccinated when her contract came up for renewal.
Szezepaniak lost her job, remained unemployed for two months and moved to 100 Mile House to work as a family physician. She argues the episode left her with financial and psychological harm, and a "black mark" on her employment record.
She wants the decision reversed to rid herself of this black mark.
Justice Steven Wilson dismissed Szezepaniak's suit on the grounds that while the provincial government compelled health authorities only to ensure workers were vaccinated, it did not make any prescriptions about how to do that, and crucially, did not require employees who refused vaccinations to be terminated.
Because the government left those decisions to the Interior Health Authority and the hospital appeals board, Charter protections do not apply, Wilson found. He cited a similar case in which a hospital barred a person over 65 from practicing as a doctor to enforce retirement requirements.
"I do not accept that a hospital board's ability to exclude a practitioner from the hospital for failing to comply with the bylaws is a decision that is governmental in nature," Wilson wrote in his decision.
Even though the judge found the Charter does not apply to her termination, he provided reasons why he would find against Szezepaniak anyway.
Szezepaniak had argued that her losing her job because of her vaccine refusal violated her right to life, liberty and security of person.
Wilson disagreed based on the precedent set in a case brought by B.C. health-care workers challenging vaccine mandates, which found the Charter does not guarantee a person the right to work a particular job if they decline to get vaccinated.
"The court rejected the argument that the security of the person rights were engaged as a result of the impact of the consequences that flowed from their personal choices," Wilson wrote.