A British Columbia woman tried to sue the provincial government over a now-non-existent COVID-19 vaccination mandate, but her lawsuit has been dismissed.
Jenny Weisenberger has filed suit against the British Columbia Naturopathic Doctors Association and the provincial government, including Provincial Health Officer Dr. Bonnie Henry and Health Minister Adrian Dix.
Weisenburger argues that the university, at the direction of state officials, has restricted her free expression, and she expects Henry will mandate that naturopathic doctors receive the COVID-19 vaccination in the future.
“Throughout the pandemic and up until the present, (Henry) has never issued an order requiring plaintiffs who are not employed by the public health-care system to be vaccinated in order to provide services to them,” reads the ruling from British Columbia Supreme Court Justice David A. Crerar, handed down Tuesday and posted online Wednesday.
“The defendant universities have never imposed such a requirement.”
The state’s remaining vaccination mandate, which was largely upheld by a court last month, applies only to people who work in the publicly funded health care system.
The defendants argued that Weisenburger’s claims were “unnecessary, frivolous, vexatious and an abuse of the court process” and asked Judge Crerar to dismiss the case.
Judge Crerar agreed. He dismissed Weisenberger’s complaint and did not approve the amendment, describing her proposed amended Notice of Civil Action as “more of an argument than an argument.”
“Collateral attack”
The judge dismissed the suit citing various reasons, including that the case was filed as a civil suit rather than a petition for judicial review.
According to the ruling, Weisenberger argued that her lawsuit was a “blanket complaint that centers around the constitutional validity of emergency powers under the (Public Health Act).”
The defendants argued that the lawsuit was in fact “essentially an impermissible collateral attack on the decisions and actions of the State Defendants and the University, and is the proper subject of judicial review brought by petition, not lawsuit.”
Mr Crerar agreed with the defendants.
“The essence of Plaintiffs’ claims is an attempt to challenge and circumvent the legal effect and effect of decisions and actions taken by Defendants in the exercise of their legally granted powers and responsibilities,” the judge wrote in his decision.
The court also rejected Weisenberger’s argument that her application for judicial review was insufficient to secure the relief she wanted, such as monetary damages or an order overturning parts of the Public Health Act.
Crerar noted that the court would have the power to strike down parts of the law in a judicial review action, and while monetary damages cannot be awarded in such actions, past cases have held that merely seeking damages does not make a claim “sufficient” if it should have been brought as a petition for judicial review in the first place.
The “Dual Hypothesis”
Judge Crerar ruled that not only had the lawsuit been brought as the wrong kind of lawsuit, but it also did not present a “reasonable claim.”
“Plaintiffs’ claims are based in large part on hypothetical future events that will likely never occur,” the judge wrote in his ruling, citing several paragraphs from Weisenberger’s filing in which she says she “anticipates” state health officials will impose restrictions on her.
“Plaintiffs’ argument is based on two assumptions: that the defendants will issue a mandatory vaccination order and that the mandatory vaccination order will not contain any exemptions,” the ruling reads.
“Any possible exemption to such a hypothetical order, or the language of the hypothetical order itself, would pile further hypotheses on further hypotheses.”
“The court cannot assume that a vaccination mandate will be imposed or that there will be no exemptions contrary to the Charter of Rights and Freedoms,” Judge Crerar concluded. Similarly, even if the facts alleged were true, there would be no valid grounds to bring a lawsuit because a mandate has not yet been imposed.
Judge Crerar cited several other reasons why Weisenberger’s claim would fail and found that the plaintiffs “have not shown any basis for concluding that their claims are remediable.”
As such, the judge granted the defendants’ motion to dismiss the case without permission to amend and refile the case.
