Judge rejects legal challenge to Quebec's vaccine passport

A Montreal judge has struck down a legal challenge of Quebec’s vaccine passport requirement, ruling it was not in the public’s interest to remove the passport and citing the fact that it will be lifted in a matter of weeks anyway.

A pair of residents in the Montreal area — a general contractor and a daycare worker in her 20s — had asked the court to issue an emergency safeguard order to immediately suspend the vaccine passport on the basis that it violated their rights under the Charter of Rights and Freedoms.

The plaintiffs launched their legal challenge on Feb. 14, one day before the Quebec government held a press conference to announce the vaccine passport would be completely removed as of March 14.

They argued, among other things, that needing to be vaccinated to enter big box stores like Canadian Tire and Walmart caused them serious harm in their personal and professional lives.

That aspect of the rule was their main sticking point: the announcement that as of Jan. 24, the vaccine mandate would apply for customers of stores of 1,500 square metres or bigger.

One of the plaintiffs argued that because of the measure, he could not procure the tools he needed to do his job effectively as a general contractor. 

His lawyers said in an interview with CTV News that “basically, he could not make a living.”

“He was in a situation where, for three weeks, he was prevented from actually executing his work and he was basically it was a different category of discrimination," said Miray Zahab.

"He was at a disadvantage in comparison to the other contractors who were vaccinated and had ample access to all these big box stores."

The young mother who joined the legal challenge was also unfairly harmed by the decree, according to the lawyers, because she was not able to enter stores like Costco to buy items that most mothers of a newborn baby would need.

“When you have a baby you need things that you have to get in the same hour. And she suffered from it," said lawyer Yassir Madih.

"Plus, she cannot go and profit from the prices of big stores like Walmart and Costco, and as a low-income citizen, it's something [that is] very important, especially with the inflation."

He also argued that the vaccine passport was rendered "irrelevant" for the mother in late January because she tested positive for COVID-19 about one week before she gave birth, before the safeguard order was filed, and was considered a “protected person" due to her recovery from the virus. 

PUBLIC INTERESTS 'MUST PREVAIL' OVER PERSONAL INTERESTS: JUDGE

The two plaintiffs also argued that a vaccine mandate for big box stores and other places amounted to forced vaccination of society at large that created “two classes of citizens.”

The “ostracization” they felt went beyond the checkout counter at their favourite store, the court records said.

The pair argued that the public health measure caused them serious or irreparable harm because they “suffered negative judgment” from family and friends for choosing not to be vaccinated and they were prevented from eating out in restaurants and going to shows due to their unvaccinated status.

Superior Court Justice Martin F. Sheehan rejected those claims, writing in his judgment that any “tension” they experienced for being unvaccinated in a global pandemic was not solely caused by the vaccine passport.

“This prejudice probably results from the personal choice of the plaintiffs and not from the measures adopted by the government,” the ruling said. 

The judge acknowledged that while the plaintiffs “minimally demonstrated” they would suffer serious prejudice, he ruled the COVID-19 rules adopted by the Quebec government were in the interest of the public’s health and that those interests “must prevail over the personal interests of the applicants.”

“It should not be forgotten that the primary objective of the [Loi sur la santé publique] is to protect the health of the general population," he wrote in the Feb. 25 ruling.

"So, it is not only the claimants' rights that are affected by the adoption or absence of measures."

In the words of the judge, the plaintiffs were “silent” on the fact that removing the measure would cause “significant harm” to vulnerable people, including people who cannot receive the vaccine for medical reasons, health-care workers, and people whose surgeries were delayed due to the pandemic.

The pair failed to argue that without an emergency suspension of the government decree they would suffer irremediably, Justice Sheehan wrote.

“For one thing, the vaccine passport will end on March 14, 2022. No demonstration has been made of imminent harm by that date,” the ruling stated.

The lawyers for the plaintiffs say they believe it wasn’t a coincidence that the government announced public health measures would be lifted one day after they filed their legal argument.

It’s true that they will be lifted on March 14, but Zahab said there’s a caveat: “they're not getting rid of the measure, they're suspending the measures" -- which is what health minister Christian Dubé admitted during the Feb. 15 press conference.

For that reason, Zahab and Madih said their legal challenge on the merit of the vaccine passport will proceed at a later date, but they will not appeal the judgment on the emergency safeguard order.