Sharp v. Vancouver Island Health Authority, 2025 BCHRT 227
Date Issued: September 10, 2025
File: CS-005442
Indexed as: Sharp v. Vancouver Island Health Authority, 2025 BCHRT 227
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Lindsay Sharp
COMPLAINANT
AND:
Vancouver Island Health Authority
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Devyn Cousineau
Counsel for the Complainant: Sebastien Anderson
Counsel for the Respondent: Annie E. Olson and Karen N. Orr
I INTRODUCTION
[1] Lindsay Sharp worked as a registered nurse for the Vancouver Island Health Authority [VIHA]. On October 14, 2021, the Provincial Health Officer [PHO] issued the Hospital and Community (Health Care and Other Services) COVID-19 Vaccination Status Information and Preventive Measure Order [Order], which required all staff in regional heath boards to be vaccinated against COVID-19. The PHO allowed limited medical exemptions to the Order where a person’s health would be “seriously jeopardized” by the vaccine. Ms. Sharp has complex health conditions and, with support from her doctor, was unwilling to receive the vaccine because of a fear that it would cause a life threatening or life altering stroke. She is also Christian and says that taking the vaccine conflicted with her religious beliefs. The PHO denied her application for an exemption. Ms. Sharp did not take the vaccine and, as a result, VIHA terminated her employment.
[2] In this human rights complaint, Ms. Sharp alleges that the termination of her employment, and subsequent denial of long-term disability benefits [LTD], was discrimination based on her disability and religion, in violation of s. 13 of the Human Rights Code.
[3] VIHA applies to dismiss the complaint on the basis that Ms. Sharp has no reasonable prospect of proving that her decision not to be vaccinated was connected to her disability or based on a sincere religious belief: Code, s. 27(1)(c).
[4] For the reasons that follow, I am not persuaded that Ms. Sharp’s complaint has no reasonable prospect of success. The dismissal application is denied, and the complaint will be scheduled for a hearing. In reaching this conclusion, I note that VIHA did not argue that the complaint should be dismissed because it was reasonably certain to prove a defence of bona fide occupational requirement. It remains open to VIHA to pursue that defence at a hearing.
II DECISION
[5] The onus is on VIHA to persuade me to dismiss Ms. Sharp’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). In deciding the application, I look at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. I base my decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan,2013 BCSC 942 at para. 77. I do not make findings of fact.
[6] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority,2021 BCSC 2176 at para. 20; SEPQA v. Canadian Human Rights Commission,[1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27.
[7] To prove her complaint at a hearing, Ms. Sharp will have to prove that:
a. She has the protected characteristic of disability. This is not in dispute in this application.
b. At the time of her termination, she had a sincerely held religious belief that she should not receive the vaccine for COVID-19. VIHA argues that Ms. Sharp will not be able to prove this.
c. She was adversely impacted in her employment. There is no dispute that the suspension and termination of her employment were adverse impacts. Though Ms. Sharp argues that the denial of her LTD was a further adverse impact in her employment, I note that her employment had already ended by this time. In my view, the denial of LTD is better understood as a consequence of her termination. It may be relevant to any remedy the Tribunal orders but could not be a separate contravention of the Code. For that reason, and because VIHA did not directly address it, I do not consider this issue further in this decision.
d. There is a connection between the termination of her employment and her religion and/or disability. VIHA argues that Ms. Sharp will not be able to prove a connection between her disability and her decision not to receive the vaccine, which triggered her termination.
Moore v. British Columbia (Education), 2012 SCC 61 at para. 33
[8] If Ms. Sharp proved these elements of her complaint at a hearing, the burden would shift to VIHA to justify the termination based on a bona fide occupational requirement: British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (Meiorin Grievance), [1999] 3 SCR 3 [Meiorin] at para. 54. VIHA alluded to this defence in its reply, when it argued that it could not “act in a manner that is contrary to legal requirements”: citing Jeppeson v. Sough Coast British Columbia Transportation Authority (Translink), 2015 BCHRT 113. However, it did not develop this argument or argue that the complaint should be dismissed because it is reasonably certain to prove a defence, and so I do not consider it further.
[9] The basic facts of this complaint do not appear to be in dispute. In September 2021, Ms. Sharp was in a temporary accommodated position as a “call center attendant” due to her medical restrictions. She worked entirely remotely. When the PHO issued the Order in October 2021, VIHA emailed Ms. Sharp about her vaccination status. In response, Ms. Sharp applied to the PHO for a medical exemption to the Order. She was permitted to work pending the outcome of that application. In January 2022, the PHO advised VIHA that Ms. Sharp’s exemption request had been denied. On February 4, 2022, VIHA suspended Ms. Sharp without pay. On March 28, 2022, VIHA terminated Ms. Sharp’s employment because she had not been vaccinated.
[10] After her termination, in September 2022, Ms. Sharp applied to Canada Life to continue her LTD claim. This request was denied because VIHA refused to submit the necessary forms, on the basis that Ms. Sharp was no longer employed by VIHA.
[11] In this decision, I focus on VIHA’s arguments that Ms. Sharp has no reasonable prospect of proving (1) a sincerely held religious belief that she should not take the COVID-19 vaccine, or (2) that the termination of her employment was connected to her disability. I have considered all the material filed by the parties, but only refer to what is necessary to make my decision.
A. Discrimination based on religion
[12] The Code’s protection against religious discrimination encompasses a person’s right to practice their religion and act consistently with their faith: Syndicat Northcrest v. Amselem, 2004 SCC 47 [Amselem] at para. 46. In this case, Ms. Sharp asserts that the Order’s requirement that she receive the COVID-19 vaccine conflicted with her Christian beliefs.
[13] To trigger protection based on religion, Ms. Sharp will have to prove two things:
a. Her belief that she should not take the COVID-19 vaccine has a connection to her Christian religion, either because:
i. it is objectively required by, or customary within, Christianity; or
ii. she subjectively believes it is required by, or customary within, Christianity; or
iii. she sincerely believes that her refusal to take the vaccine “engenders a personal, subjective connection to the divine or the subject or object of [their] spiritual faith”.
b. She is sincere in her religious belief.
Ameslem at paras. 56 and 69
[14] I will consider each of these criteria in turn.
1. Practice or belief with a connection to religion
[15] The protection of religious beliefs and practices emphasises “personal choice of religious beliefs”: Amselem at para. 43. A complainant is not required to “prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion”: Amselem at para. 43. The focus of the analysis is on the complainant’s beliefs “at the time of the alleged interference with [their] religious freedom”, rather than on their past practices or beliefs: Amselem at para. 53.
[16] Ms. Sharp is Christian. She has submitted a form that she says she completed and submitted to VIHA, for government employees seeking a religious exemption to the COVID-19 vaccination. VIHA denies ever receiving this form. I cannot reconcile this factual dispute in this application. However, I rely on the contents of the form to understand what Ms. Sharp says is her religious belief or practice engaged in relation to the COVID-19 vaccine.
[17] Ms. Sharp says that she prays daily, seeking guidance from God, and that she is required by her religion to follow His commands. She says that she prayed to God about whether to take the vaccine, and God commanded her not to take it. She says that God warned her that the vaccine may harm her and that she is required by the Bible to follow His commands (Exodus 20:13). She says, further, that she no longer receives any vaccinations because she understands that some are created “using aborted fetal cells”, and her religion prohibits her from participating in any practice “where there is deliberate murdering of children” (1 Cor 6:19-20). She says that the COVID-19 vaccine contains “ingredients that are toxic and other ingredients such as MRNA that are unknown”. She says that her body is “Gods temple and it is sacred” (1Cor 3:16-17), and that she cannot take the vaccine “without risking my relationship with God” (Proverbs 18:17).
[18] VIHA argues that there are two reasons that Ms. Sharp has no reasonable prospect of proving that her decision not to take the COVID-19 vaccine were connected to her religion.
[19] First, VIHA argues that Ms. Sharp must prove “that her religion required her to decline the COVID-19 Vaccine” (emphasis by VIHA). Respectfully, this appears to be a misstatement of the test from Amselem. Contrary to this argument, Amselem is express that Ms. Sharp does not have to prove that declining the vaccine was “objectively required” by her religion, and that the freedom encompasses “both obligatory as well as voluntary expressions of faith”: para. 47. A religious requirement is only one way that she could prove her belief. She can also prove it through her own personal subjective or sincerely held belief.
[20] Second, VIHA argues that Ms. Sharp must prove “that her reasons for declining the COVID-19 Vaccine are based on fact”. I understand this argument to take issue with Ms. Sharp’s concern about the use of fetal cells in the development of the vaccine. VIHA addressed this in a document dated October 14, 2021, which responded to common concerns about the vaccine:
Were any human or animal embryonic or fetal tissue specimens used to develop/create/test the COVID vaccines approved for use in Canada?
In 1973 and 1985, scientists used fetal tissue from two voluntary abortions to start laboratory grown cell lines. 40-50 years later, scientists now have modified cells that are thousands of generations removed from the original fetal tissue. Vaccine makers Pfizer and Moderna used fetal cell lines from a 1973 specimen during the research and development phase of their vaccines. The AstraZeneca/COVISHIELD vaccine is manufactured using the kidney cell line that was isolated in the 1973s, while the Janssen vaccine uses the retinal cell line that was isolated in 1985. The cell lines are used widely in academic research and in the pharmaceutical and biotechnical industries.
Although these cell lines are used in the manufacturing process, the final vaccine does not contain any cells. The Catholic Church has stated that receiving a COIVD-19 vaccine that required fetal cell lines for production or manufacture is morally acceptable. All four approved vaccines in Canda were trialed for safety and effectiveness on animals during the non-clinical testing phase.
[21] VIHA has not cited any cases to support the argument that Ms. Sharp’s religious beliefs must be “based in fact” and I am not aware of any. To the contrary, regardless of the facts, decision makers have accepted that religious objections to the vaccine founded on a perception that they were developed using fetal cells are sufficient to trigger the protection of religious freedom: see e.g. Island Health v. United Food & Commercial Workers Local 1518 (Rostas Grievance), [2023] BCCAAA No. 2 and Island Health v. United Food & Commercial Workers Local 1518 (Zall Grievance), [2023] BCCAAA No. 3, both upheld on this point in Vancouver Island Health Authority (Cowichan Home Support) (Re), 2024 BCLRB 81. In Public Health Sudbury & Districts v. Ontario Nurses’ Association, 2022 CanLII 48440, Arbitrator Herman rejected a similar argument. While acknowledging that the connection to fetal cell lines appeared “quite remote”, to the point that the Pope and others in Church leadership did not view taking the vaccine as condoning abortion, the Arbitrator reasoned:
Nevertheless, Latin Mass condemns abortion and there is a connection, albeit objectively remote, between fetal cell lines and the COVID-19 vaccines. Whether that connection is too remote to amount to condonation, cooperation or participation, or whether the grievor on an objective basis has unreasonably balanced the competing interests in deciding not to get vaccinated, are decisions for her to make as long as they are based upon her sincere belief in her faith and her sincere belief [about] what that faith requires of her. In light of the Court’s direction in Amselem that one’s sincerely held belief can be subjectively justified, it is not for an arbitrator to provide his or her answers to these questions. [para. 53]
I agree with this reasoning, and find it applies equally to Ms. Sharp’s stated belief that taking the vaccine would conflict with her religious opposition to abortion.
[22] This reasoning is also consistent with the Court’s decision in Hoogerbrug v British Columbia, 2024 BCSC 794, which – in my view – is determinative of the issue. In that case, a group of Christian petitioners argued that mandatory vaccination orders infringed their Charter right to freedom of religion. Their religious objections echoed Ms. Sharp’s, and were summarised by Justice Coval as follows:
Most who refused on religious grounds referred to the conflict between their Christian beliefs and the use of fetal cells in the vaccines’ development. Some described accepting the vaccine as contravening their obligation to trust in God’s will and providential care, protect their body from contaminants, or make their own moral decisions without coercion. A senior director of two hospitals described the vaccine as containing contaminants that offended the teaching that the body is “the temple of the Lord”. [para. 28]
[23] The Court was satisfied that the Amselem criteria were met, and Charter protection was triggered, in respect of these petitioner’s religious objection to the vaccine: paras. 249 and 255-263. This reasoning applies equally to Ms. Sharp’s complaint. In this application, she has presented evidence to connect her objection to the vaccine to Christian teachings about the body, and the treatment of unborn life: Hoogerbrug at para. 249. This is sufficient to take this element of her complaint out of a realm of conjecture.
2. Sincerity of belief
[24] Next, VIHA argues that Ms. Sharp has no reasonable prospect of proving that her objection to the vaccine was sincerely based on her religious beliefs. It argues that the evidence establishes that Ms. Sharp’s concerns were rooted in safety and efficacy, which were more about her personal preferences than a sincerely held religious belief. It argues, and I agree, that the Code does not protect people who refuse to get vaccinated as a matter of personal preference, because they do not believe in the efficacy of vaccinations, or because they disagree with the requirement to be vaccinated: Lavoie v. Fraser Health Authority, 2025 BCHRT 8 at para. 16.
[25] The sincerity of a complainant’s belief is a question of fact which can be determined “based on several non-exhaustive criteria, including the credibility of a claimant’s testimony … as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices”: Amselem at para. 53.
[26] It is not necessary for the human rights analysis that Ms. Sharp’s objection to the COVID-19 vaccine be based only on religious beliefs and nothing else. Ms. Sharp has presented evidence about her religious practices, including daily prayer and knowledge of the Bible, and says her beliefs are sincerely held. She says that she has stopped receiving any vaccines because of her religious beliefs. Though it is disputed, she says that she raised her religious objections with VIHA as early as November 2021. I cannot assess the credibility of these assertions, or their sincerity, in this application. In my view, Ms. Sharp’s evidence is enough to surpass the low threshold required by VIHA’s dismissal application.
3. Conclusion
[27] There is no dispute that VIHA suspended and terminated Ms. Sharp’s employment because she refused to take the COVID-19 vaccine. If, at a hearing, she proves that her refusal was based on a sincerely held religious belief, then that will be sufficient to shift the burden to VIHA to justify its decisions based on a bona fide occupational requirement. The issue of whether Ms. Sharp told VIHA that she required a religious accommodation is part of this analysis: Klewchuk v. City of Burnaby (No. 6), 2022 BCHRT 29 at para. 367. Because VIHA did not rely on a defence in this application, I am not persuaded that Ms. Sharp’s claim of religious discrimination has no reasonable prospect of success, and I decline to dismiss it.
B. Discrimination based on disability
[28] VIHA does not dispute that Ms. Sharp has a disability. Her doctor says that she has a “complex medical history”, which includes a current diagnosis of “bilateral carotid occlusions secondary to presumed Takayasu’s arteritis”. She is immunocompromised, and at risk of mini-strokes known as transient ischemic attacks. At the time of her termination, she was on LTD but working part time from home in accordance with the collective agreement.
[29] VIHA argues that Ms. Sharp has no reasonable prospect of proving that her disability was a factor in her refusal to take the COVID-19 vaccine in circumstances where the PHO denied her request for a disability-based exemption from the Order. It says that the PHO identified a short list of conditions which would support an exemption, which did not apply to Ms. Sharp. It points to the PHO’s undisputed impressive qualifications and argues that it is not the Tribunal’s role to “review the reasonableness of the PHO’s decision”.
[30] I agree with VIHA that the Tribunal “is not a specialized Tribunal in the area of science”. I acknowledge the PHO’s specialized expertise and the Court’s direction to approach the decisions that the PHO was required to make during the pandemic “with a degree of judicial humility”: Hoogerbrug at para. 71; Beaudoin v. British Columbia (Attorney General), 2022 BCCA 427 at para. 150. However, unlike in Hoogerbrug and Beaudoin, this Tribunal is not being asked to review decisions made by the PHO. In the context of Ms. Sharp’s complaint, the issue is whether her disability was a factor in her decision not to take the COVID-19 vaccine and, therefore, a factor in the suspension and termination of her employment with VIHA. In this application, the issue is whether she has no reasonable prospect of proving that it was. In my view, she has taken this connection out of the realm of conjecture.
[31] To begin, I am not persuaded in this application that the PHO’s decision about who was eligible for a medical exemption to a mandatory COVID vaccine is determinative of every complaint alleging that disability was a factor in their refusal to take the vaccine. This connection is a question of fact, which must be based on the evidence before the Tribunal in any given case. Further, the PHO determined that it would only grant medical exemptions where “the health of the person would be seriously jeopardized if the person were to comply with the Order”. Neither party has made submissions about whether this is consistent with, or equivalent to, the nature of the disability-related connection that is required in human rights law, namely that the disability be one factor in the adverse impact: Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 52.
[32] Ms. Sharp has presented evidence in this application to connect her disability to her decision not to take the vaccine. In support of her application to the PHO for an exemption, Ms. Sharp submitted a letter from her family physician dated November 19, 2021. After summarizing her “complex medical history”, the doctor explains that Ms. Sharp’s “cerebral circulation is provided by only her two vertebral arteries… and should they become affected by an exacerbation of her arteritis … it would result in a life threatening or life altering stroke”. As a result, the doctor says that Ms. Sharp is “PETRIFIED of getting the COVID-19 vaccine out of fear that it will exacerbate her arteritis and precipitate such an event”. The doctor is frank in acknowledging that they are not aware “of any medical evidence that will either refute or support her fear”. They asked that Ms. Sharp’s vaccine be deferred until “a study on the safety of COVID vaccination in patients with Takayasu disease is available”.
[33] As I have said, the PHO denied Ms. Sharp’s request to defer the vaccine. On January 20, 2022, it denied the request because it said she had failed to submit a completed exemption request. The letter did not address her disability-related concerns. This denial is what prompted her suspension and termination. However, curiously, the PHO subsequently wrote again to Ms. Sharp nearly a year later, on December 15, 2022, saying that the January letter had been sent in error. In this second letter, the PHO considered Ms. Sharp’s request on its merits and concluded that the medical evidence did not support that vaccination would so seriously jeopardize her health as to make its risks outweigh its benefits. The medical evidence cited in that letter is not before me and neither party has made arguments about it.
[34] On balance, I am not persuaded to dismiss this part of Ms. Sharp’s complaint. I acknowledge, as VIHA argues, that fear of the vaccine is not, on its own, sufficient to trigger the protection of the Code: SL v. Michell’s Farm Market Ltd., 2024 BCHRT 54. However, the evidence before me is that Ms. Sharp has complex health conditions, including a rare condition that – at the time – may not have been studied in relation to the COVID-19 vaccine. Her doctor’s letter supports that her fear of the vaccine was rooted, at least in part, in her perception that, because of her disability, the vaccine may trigger life-threatening or life-altering strokes. Her disability-related fear was sufficient for her doctor to request a deferral on her behalf. At a hearing, it would be open to the Tribunal to conclude that this is sufficient to connect her disability to her decision not to receive the vaccine.
[35] In reaching this conclusion, I acknowledge there are similarities between this case and another where I reached the opposite conclusion: Bruneau v. Port Coquitlam Senior Citizens’ Housing Society, 2025 BCHRT 22. In Bruneau, Ms. Bruneau had a “severe arterial malformation in her leg, making her prone to episodes of deep veinous thrombosis”: para. 29. I concluded that Ms. Bruneau had not produced evidence capable of establishing a connection between her disability and decision not to take COVID-19 vaccine.
[36] There are two main reasons I am reaching an opposite conclusion here. First, Ms. Sharp has produced more evidence capable of connecting her disability to her refusal to receive the vaccine, including a detailed letter from her doctor. Second, I have already determined that the Tribunal will hear Ms. Sharp’s allegation of religious discrimination. In this circumstance, I am mindful of the Court’s caution in Byelkova v Fraser Health Authority, 2021 BCSC 1312:
While the Tribunal may dismiss all or part of the complaint under s. 27(1), insofar as the rationale for the s. 27(1)(c) gatekeeping function is the efficient operation of the Tribunal, it may well be that no efficiency is gained by only dismissing half of the claim. Dismissing half of the claim could also later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing otherwise appropriate findings due to past rulings … [para. 115]
[37] Finally, I have not found it necessary to address Ms. Sharp’s arguments about VIHA’s duties to inquire and accommodate, which were not responsive to VIHA’s application. Similarly, I have not found it necessary to resolve the parties’ arguments about whether Ms. Sharp could have taken the COVID-19 vaccine at the time of her termination, due to a recent sotrovimab infusion. Ms. Sharp has not clearly articulated how this issue relates to her allegation of discrimination and, in my view, these arguments are secondary to the primary issues in Ms. Sharp’s complaint, which I have addressed.
III CONCLUSION
[38] The application to dismiss Ms. Sharp’s complaint is denied. The complaint will be scheduled for a hearing.
Devyn Cousineau
Vice Chair