COVID-19 Cases: The Consequences of Improperly Applying Company Policies
May 21, 2025
| By
Rebecca Rosenberg
Bottom Line
More than five years after the start of the COVID-19 pandemic, Canadian courts are still deciding employment termination cases related to the enforcement of employers’ vaccination policies. In a recent decision, Yee v WestJet, the Alberta Court of Justice (the “Court”) upheld a wrongful dismissal claim. The Court found that WestJet (the “Defendant”) unreasonably applied its vaccination policy to proceed with a just cause termination of an unvaccinated worker. The Court also found that the Defendant failed to adequately inquire into potential accommodations for that worker’s claimed religious exemption to the policy.
Background Facts
On October 16, 2021, the Defendant implemented a COVID-19 Vaccination Policy (the “Policy”) which required that all employees be fully vaccinated against COVID-19, in accordance with the Government of Canada’s vaccination mandate. The Policy allowed for exemptions which would be assessed on a case by case basis.
Ms. Yee (the “Plaintiff”), an eleven-year employee working in the accounting department, requested an exemption under the Policy, claiming that her religious beliefs prevented her from receiving a vaccination. The Defendant rejected the Plaintiff’s request, stating its belief that the Plaintiff was opposed to the vaccine on secular grounds (as opposed to religious grounds), given that the Plaintiff expressed that she felt the vaccine was “unsafe”. The Defendant asserted that believing the vaccine to be unsafe was a personal opinion, not a religious one.
The Plaintiff continued in her refusal despite the Defendant’s rejection of her exemption request, and was then placed on an unpaid leave of absence. Eventually, the Plaintiff’s employment was terminated for just cause, on the basis that the Plaintiff was unable to fulfill a condition of her employment as a result of her refusal to follow the Policy.
The Decision
The Plaintiff brought a claim for wrongful dismissal against the Defendant, in which she also alleged that the Defendant breached her human rights by failing to accommodate her religious limitations/restrictions. While there was a dispute regarding the Court’s jurisdiction to deal with the human rights complaint, the Court found that the human rights and wrongful dismissal issue were inextricably intertwined such that both could be determined by the Court.
Reasonableness of the Policy
The Court began its analysis by addressing the issue of whether the Policy was reasonable and enforceable. The Court canvassed the COVID-19 jurisprudence, finding that mandatory vaccination policies had been found to be reasonable on multiple occasions in the context of dismissal cases. In this case, the Court found that the Policy was reasonable and enforceable for the following reasons:
- It was responsive to requirements imposed by the Government of Canada;
- It was aligned with the Defendant’s duties under the Canada Labour Code and the Canada Occupational Health and Safety Regulations;
- It allowed for accommodations in accordance with the Canadian Human Rights Act; and
- It clearly outlined the consequences of non-compliance.
Application of the Policy
Despite the finding that the Policy was reasonable, the Court concluded that the Defendant’s application of the Policy was unreasonable and discriminatory, as the Defendant failed to properly consider the Plaintiff’s religious accommodation request. The Plaintiff’s expression of concern regarding the safety of the COVID-19 vaccine was not enough for the Defendant to reasonably conclude that the Plaintiff’s religious beliefs were not sincerely held – and to deny her request on that basis. The Court found that the Defendant should have inquired further into the Plaintiff’s beliefs by requesting more information.
Given that the Defendant’s refusal to grant the Plaintiff’s exemption request was unreasonable, so too was her employment termination. Had the Defendant granted the Plaintiff accommodation under the Policy, she would not have been found in breach of the Policy, and she would not have been dismissed.
Just Cause and the Termination Clause
The Court also found that, in the alternative, the Defendant also did not have just cause to terminate the Plaintiff’s employment on the basis that she was not in compliance with the Policy. The Plaintiff had been working remotely since the beginning of the pandemic, and as such, the Plaintiff’s refusal to comply with the Policy would not have impacted her job performance or the operation of her department and colleagues. In any event, the Court did not consider the Plaintiff’s conduct to be so insubordinate or disobedient that it rose to the level of misconduct which was irreconcilable with her continued employment. The act of dismissal for cause was, therefore, disproportionate to the Plaintiff’s conduct. The Court’s comments reinforce the high bar that must be met in just cause termination cases.
Ultimately, the Court awarded the Plaintiff 11 months of pay in lieu of notice given its finding that the Defendant did not have just cause to terminate the Plaintiff’s employment. The Court did not, however, award moral or aggravated damages, as the Defendant did not conduct itself in an unduly insensitive or egregious manner.
Takeaways
While the COVID-19 pandemic may feel like a thing of the past, adjudicators are still dealing with the fallout from the pandemic and pandemic-related vaccination policies. But more broadly, the Court’s decision highlights the importance of not only creating reasonable policies, but reasonably applying and enforcing these policies, particularly when it comes to accommodation exemptions. Where employees are claiming exemptions related to any prohibited grounds pursuant to human rights legislation (such as the Ontario Human Rights Code or the Canadian Human Rights Act), employers should take time to consider each request on a case by case basis and seek further information where required prior to making any final decisions. Clear communication and transparency can assist employers in making a fully informed decision in respect of applying company policies and accommodating employees’ needs.
Need More Information?
For more information or assistance with your accommodation and employment policies, contact Rebecca Rosenberg at rrosenberg@filion.on.ca or your regular lawyer at the firm.
