4 Alberta doctors file lawsuit against AHS over vaccine requirement

CALGARY -

Opposition to the province's vaccine policies is starting to hit the courts. In an 11-page statement of claim, four Alberta doctors are suing Alberta Health Services (AHS) and its CEO, Dr. Verna Yiu over its policy of mandatory vaccinations. 

In the lawsuit, Dr. Eric T. Payne (Calgary), Dr. Joanna J. Moser (Calgary), Dr. Gregory Keen-Wai Chan (Ponoka), and Dr. David Loewen (Grande Prairie), claim they have “suffered vilification and extreme ill-will being directed at them as 'unvaccinated' people as a result of Dr. Yiu, Premier (Jason) Kenney, and other Government of Alberta representatives making false public statements and promulgating policies which have the effect of stating that the unvaccinated are to blame for the pandemic and hospital over crowding.”

The suit also claims the in being placed on unpaid leave, the four are “being held up to public opprobrium, ridicule, hatred, maltreatment, discrimination, detestation, contempt, enmity, extreme ill-will, denigration, abuse, or delegitimization on the basis of their vaccine status."

Albertans will need to prove they have both jabs of a COVID-19 vaccine to go into most restaurants, movie theatres, sporting events and non-essential businesses beginning Monday, adhering to Alberta’s Restrictions Exemption Program (REP).

Second doses must have been administered at least two weeks prior to be acceptable under the government’s new regulations.

The REP requires any customer entering businesses it covers to show proof of vaccination or present a negative rapid antigen, rapid PCR, or lab-based PCR, at their own cost.

Those able to present valid proof of a medical exemption may be able to bypass the requirements.

The government presently allows a printed version of vaccinations records, a printed vaccination certificate available at the myhealthalberta website or a downloadable QR code.

Starting Nov. 15, the QR code will become the only accepted method of proof in Alberta.

At the same time, governments, as well as many private companies, have instituted mandatory vaccination policies.

AHS announced Aug. 31 that all AHS staff, members of the medical and midwifery professions, as well as students and volunteers would have to be fully vaccinated by Oct. 31.  That deadline was subsequently moved to Nov. 30.

The lawsuit claims the AHS policy is both unethical and unlawful saying, “Any medical procedure performed on a patient without their informed consent amounts to assault."

It adds, “To the extent that the policy seeks to coerce employees to be vaccinated against their will, without informed consent, the policy amounts to an expressed intention to engage in a conspiracy to commit assault."

The suit also claims the mandatory vaccination policy breaches the Freedom of Information and Protection of Privacy Act, and contravenes the Canadian Charter of Rights and Freedoms. 

University of Calgary law professor Lorian Hardcastle says she is not surprised that lawsuits are now making their way to the courts, but doubts most of the claims will be successful.

“The allegations around informed consent and assault are, are quite confusing, because, of course, nobody is forcing treatment on anyone. (However)  I think that the allegations around constructive dismissal, and some of the employment kinds of allegations might have a little bit more meat to them,” said Hardcastle.

“Certainly the prevailing wisdom does seem to be that employment lawsuits around mandatory vaccines are likely to fail, and in part because of the pandemic and the compelling situation we find ourselves in, but also, in part, because courts I think, would be very reluctant to strike down a vaccine mandate, because of course, so many employers have them now.”

Hardcastle expects to see more lawsuits regarding mandatory vaccinations of workers as the policies come in effect and some staff have their employment curtailed.

“I think we will see some wrongful dismissal kinds of employment law cases. I think we will see complaints to human rights tribunals in various provinces around vaccine mandates. We might see some Labour Law disputes where we're talking about a unionised workforce.” said Hardcastle, who maintains it is important for the courts to weigh in on the issues in order to provide clear direction to both employers and governments.

“If one of these cases does make it to the Supreme Court of Canada, they may not rule before the pandemic is over, but at least then we would have some helpful guidance from them on when it's appropriate to mandate vaccines when it's constitutional to mandate vaccines. But I think at least we'll get some lower level court decisions and Human Rights Tribunal decisions, which will be helpful in the in the interim.”

In the meantime, Hardcastle notes the Alberta government has signalled it will bring in legislation protecting employers from lawsuits as a result of imposing vaccination mandates. While the legislature resumed sitting Monday that piece of legislation has not yet been tabled.

“The legislation could address the employment law type claims, or the Labour Law type claims, it could also amend the human rights legislation to address employers drawing distinctions on the basis of vaccines, we just aren't really sure what's coming in terms of that of that legislation. But certainly, it could affect these disputes. And could itself be the subject of litigation," she said.

The lawsuit, prepared on behalf of the Alberta doctors, has been submitted but as of publication Monday, has not yet been filed with the courts. As a result, no statement of defence has been submitted by AHS or Dr. Yiu.