‘The jurisprudential landscape with respect to exemptions on the grounds of religion/creed in the context of a mandatory COVID‑19 vaccination policy is well‑established’
A recent case highlights the legal and financial risks employers face when administering religious or creed‑based objections to mandatory vaccination policies.
Air Canada has been ordered to compensate seven pilots who were initially denied religious exemptions from the carrier’s COVID‑19 vaccination policy and placed on unpaid leave, after an arbitrator found they were subjected to prima facie workplace religious discrimination.
In Air Canada v Air Line Pilots’ Association, 2026 CanLII 16803 (CA LA), sole arbitrator James Hayes ruled that the pilots’ exemption requests should have been granted at the outset, which would have placed them on paid leave while accommodation was considered, in line with other pilots whose objections were accepted.
The case arose from Air Canada’s mandatory vaccination policy implemented in 2021 and 2022. Several pilots who raised religious objections were denied exemptions and placed on unpaid leave effective 31 October 2021, while others who were granted exemptions were put on paid leave pending review of possible accommodations.
Previously, an Ontario arbitrator ruled that placing 39 employees on six months of unpaid leave for failing to provide proof of full vaccination against COVID-19 was reasonable, even when office attendance was optional and field work was suspended.
Alleged violations of collective agreement, Human Rights Act
On Feb. 15, 2022, the Air Line Pilots’ Association (ALPA) filed individual grievances on behalf of the religious objectors, alleging violations of the collective agreement and the Canadian Human Rights Act and seeking make‑whole remedies.
The grievances were heard at Step 2 on April 12, 2022. In letters dated May 9. 2022, Air Canada advised each affected pilot: “It is the decision of the Company to grant your exemption request and you will be placed on an unpaid LOA with benefits as of May 9, 2022.” The airline stated it considered the grievances resolved.
That left a period from Oct. 31, 2021 to 9 May 2022 during which the seven grievors received no pay, unlike colleagues who had obtained exemptions at the outset and were on paid leave, according to the legal document. A preliminary union motion that the Step 2 decision amounted to a concession of error was rejected in an earlier 2025 ruling, and the arbitration moved on to whether the exemptions should have been granted from the start.
Evidence and legal test
The hearing proceeded on the basis of detailed written “will‑say” statements and cross‑examinations conducted by videoconference, supported by dozens of exhibits. The seven pilots testified at length about their Christian faith and how it shaped their objections to COVID‑19 vaccination, including beliefs about the body as a temple of the Holy Spirit, opposition to abortion and the use of fetal cell lines, and the role of conscience as an expression of God’s will.
Hayes found the pilots to be truthful witnesses, stating that there was “no question of personal integrity” and that their testimony “was given honestly in my estimation.” He wrote that their evidence was delivered “without apology, embarrassment, reservation, or hint of proselytization,” and that there was “no indication that their testimony was contrived or tailored in any way to conceal or advance an improper objective.”
Air Canada’s Workplace Accommodation Manager, Sam Eichenwald, who had determined more than 500 exemption requests across several bargaining units, also testified. Hayes said he was “quite satisfied that he did his best in the circumstances, acting in good faith throughout,” but nevertheless examined the structure of the employer’s exemption process.
Findings against Air Canada and order
Hayes framed his analysis under the Supreme Court of Canada’s Amselem decision, which focuses on an individual’s sincerely held, subjective religious belief and its nexus to the practice in question. He noted that “the jurisprudential landscape with respect to exemptions on the grounds of religion/creed in the context of a mandatory COVID‑19 vaccination policy is well‑established.”
The arbitrator found that the religious objections of the seven pilots “were never hidden” and that they “complied with employer requests from the beginning.” He concluded that “if focus had remained on the Amselem baseline ‘subjective religious belief’ requirement without diversion – Air Canada should have allowed their requests for religious exemption from the start.”
Hayes declared that ALPA had made out “a prima facie case of workplace religious discrimination pursuant to the Collective Agreement and the Canadian Human Rights Act” for each grievor. He further found that they “should have been placed on initial paid leaves of absence, as had been their pilot colleagues granted exemptions at the outset.”
Accordingly, Hayes directed Air Canada to compensate the seven pilots “commensurately within 60 days” for the income lost while they were on unpaid leave and said he would remain seized in the event of any dispute over the calculation of damages. The “duty to accommodate” aspect of the grievances remains outstanding and will continue in due course on request.
When the B.C. Court of Appeal ruled on April 9, 2026, it left a $388,582.13 damages award standing against a health authority that fired a physician for refusing COVID-19 vaccination.
