VACCINE PASSPORT

During the summer of 2021, the Quebec Government, like other governments in the world, put in place a vaccine passport which forbade unvaccinated people access to public areas considered non-essential. From the month of September 2021, a lawyer from Beauce, Hans Mercier filed an action in his own name in order to contest this unprecedented measure which raised numerous legal questions. The notary Gaston Vachon was later added as co-plaintiff in answer to the argument from the Quebec government that given that Mercier himself was adequately vaccinated, he didn’t have a sufficient interest to bring a judicial application on this matter. Mercier and Vachon asked for an urgent suspension to the vaccine passport (while awaiting a final judgment) but this request was denied.

In November 2021, another action was filed by 6 plaintiffs who were part of a group of parents called « Tous unis pour nos ados » or ‘Together for our teens’. This action, filed by the Gatineau based lawyer, William Desrochers, aimed at making the vaccine passport inapplicable to individuals aged between 13 and 17 years old within a school environment, during extra-curricular activities and in sporting activities more generally. The group argues that this group of unvaccinated citizens are disproportionally affected by the vaccine passport due to the important role of inclusion for development during this age range and because the benefits for public health are extremely doubtful. For example, unvaccinated students who are in a study-sports program can rub shoulders closely with their vaccinated classmates all day but then be excluded from the extra activity at lunchtime or after school or competitions because it is not considered to be a part of the regular school program.

In February 2022, after the Omnicron variant had spread like wildfire through the population despite the high rate of vaccination and the exclusion of the unvaccinated, anger was rumbling everywhere in the world. In Canada the Freedom Convoy was a key moment of the period, where social cohesion was being deeply tested. Little by little, Canadian provinces and other jurisdictions in the world abolished all forms of vaccine passports or vaccinal obligation.

The Quebec government (like all the others in Canada and elsewhere) then addressed the court without delay in order to have all legal challenges terminated because they had become moot. In principle, when a challenged legal measure is abolished, the courts should avoid ruling because the litigation has disappeared. For this reason, the majority of Covid-related legal challenges were dismissed across Canada. This means that the file is closed.

Luckily, the files mentioned above resisted the wave of dismissals. For these two challenges, the court used its discretionary power which allows them to authorize the pursuit of a claim even if it has become moot. This is not something that happens very often and it is justified by the importance of the questions brought up.

The two files were united and became one during the month of February 2023