COVID-19 Related Measures Act vs Human Rights Code and a local government prohibition on building anything unreasonable

This week on Legally Speaking with Michael Mulligan:

Some people opposed to the requirement to be vaccinated for COVID-19 to attend non-essential businesses such as restaurants and bars have suggested that they have a right to do these things because of the BC Human Rights Code. 

While the BC Human Rights Code does have a provision that precludes discrimination in the provision of service based on various factors including physical or mental disability, this is subject to “bona fide and reasonable justification” for denying service. 

It is also uncertain if a refusal to get vacated would constitute a physical or mental disability. 

More significantly, it’s important to remember that the Human Rights Code is only a piece of provincial legislation. 

In British Columbia, there COVID-19 Related Measures Act became law on July 8, 2020. This act continues ministerial orders that were originally made pursuant to the Emergency Program Act. It also allows for new ministerial orders to be added to address COVID-19.

Section 2 of the COVID-19 Related Measures Act specifies that in the event of a conflict with any other act of regulation, the COVID-19 Related Measures Act, and regulations under the act prevail.

Therefore, if a ministerial order preventing unvaccinated people from attending non-essential businesses was found to conflict with some provision of the Human Rights Code, the ministerial order would prevail. 

It is therefore exceedingly unlikely there will be a successful Human Rights Code claim to permit unvaccinated people into non-essential businesses. 

Also on the show, a judicial review has found a decision of the Cowichan Valley Regional District to refuse permission to build a home to be unreasonable. 

The Cowichan Valley Regional District relied upon the Local Government Act and the Riparian Areas Protect Act to deny approval for a home to be built on Cowichan Lake.  

The judge on the judicial review concluded that while the Riparian Areas Protect Act permitted development within 30 meters of the lake to be restricted if it would cause “harmful alteration, disruption of natural features, functions and conditions that support fish like processes in the riparian assessment area”, that it was unreasonable to use this justification to prohibit any development in that area. 

As a result, the couple wishing to build a new home will be allowed to do so. 

Follow this link for a transcript of the show and links to the cases discussed.