Too Late to Litigate: Court Dismisses Mandate Appeal as Moot

This case involved an appeal of a judicial review challenging COVID-19 vaccination mandates for healthcare workers issued by British Columbia’s Public Health Officer. The court quashed the appeal, finding it moot since the orders had expired and there was no justification to proceed with a case lacking alive controversy.

Administrative law – Decisions reviewed – Health authorities – Judicial review – Appeals – Mootness – Standard of review – Correctness – Reasonableness.

Tatlock v. British Columbia (Attorney General), [2025] B.C.J. No. 999, British Columbia Court of Appeal, May 6, 2025, P. Abrioux, W.P. Riley and L.A. Warren JJ.A.

In response to the COVID-19 pandemic, the Provincial Health Officer, Dr. Bonnie Henry (the “PHO”), exercised her authority under the Public Health Act, S.B.C. 2008, c. 28, to issue a series of public health orders, including two orders dated October 5, 2023, that extended the existing COVID-19 vaccination mandate for healthcare workers in designated settings (the “Orders”).

The appellants, who lost their healthcare positions due to non-compliance with the vaccine mandate, challenged the Orders by way of judicial review. On judicial review, the court upheld the reasonableness of the Orders, except as they applied to remote and non-frontline administrative workers, remitting that portion of the Orders to the PHO for reconsideration. The PHO subsequently issued her reconsideration decision on August 28, 2024, confirming her earlier decision to require COVID-19 vaccination for remote and administrative healthcare workers. However, before the PHO’s reconsideration, the relevant Orders were rescinded and the emergency powers under the Public Health Act expired.

The appellants sought declarations that the Orders were unreasonable and of no force or effect. They argued the appeal should proceed due to the practical impacts of the Orders and the Court’s decision to hear the case, noting that the Orders’ brief and recurring nature could hinder future judicial review. Additionally, they emphasized that the appeal raises important constitutional and administrative law issues that are novel and warrant clarification for future public health emergencies.

The respondents, the Attorney General of British Columbia and the PHO, applied to quash the appeal on the basis of mootness as the Orders were no longer in place.

Courts generally avoid deciding moot disputes to ensure issues are fully argued by interested parties, conserve judicial resources, and respect the separation of powers by not issuing advisory opinions. However, Courts may exercise discretion to hear moot cases when special circumstances justify it.

The Court concluded that despite the importance of the COVID-19 vaccine mandates for healthcare workers, the appeal was moot because the Orders in question were no longer in effect. Even a successful appeal would have resulted only in a declaration of invalidity of Orders no longer in force. As such, the appeal was entirely moot, and any decision would have been purely academic, with no practical effect or benefit. Unlike prior cases involving shorter, ongoing mandates, these longer-standing Orders ended after the public health emergency was rescinded, reducing the likelihood of recurrence. The Court noted that constitutional challenges to public health measures are better decided in the context of live controversy due to their case-specific nature. While the appellants argued that ruling could deter future rights violations or lead to damages, the Court found these outcomes speculative and emphasized that assessing complex constitutional issues without an active controversy serves little legal or practical purpose. The Court therefore quashed the appeal on the basis of mootness.

This case was digested by Morgan Barber of Harper Grey LLP and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please feel free to contact her directly at [email protected].