Yee v. Westjet - A Human Rights Analysis Gone Wrong
A few months ago, the Alberta Court of Justice decided a wrongful dismissal case in Yee v. WestJet. It's an antivax case with a number of analytical problems. The short version of the facts is that, in response to Federal government mandates, WestJet implemented a vaccine policy. Yee sought an exception under the policy on the basis of 'religious convictions', and WestJet denied the request, and dismissed the employee upon the failure to comply with the policy.
The court concluded that the policy was properly implemented, but that WestJet failed to accommodate Yee, and therefore wrongfully dismissed her.
I've expressed concerns before about how the courts deal with an employer's ability to implement vaccine mandates. In this context, faced with direct regulatory action requiring such a policy, I'm less concerned. But the outcome here troubles me in several ways. The court's analysis of the jurisdictional question is problematic; it drew conclusions on the duty to accommodate without satisfying the necessary legal tests; and its alternative analysis of the 'just cause' question has sweeping and problematic ramifications.
The Bhadauria Question
When human rights legislation was first enacted, creating anti-discrimination rights and Commissions tasked with enforcing them, there was a question of whether the courts also had the right to hear cases where breach of those rights was alleged.
In 1981, in Bhadauria v. Seneca College, the Supreme Court concluded that the answer was No: These statutes conferred exclusive jurisdiction upon the Commissions. (Circa 2009, Ontario amended its Human Rights Code and gave the courts a statutory mandate to hear human rights claims that were tied to other independent actions. Other Provinces, including Alberta, have not followed suit. This is important here.)
When it comes to harassment, this sometimes creates a grey area: Harassment that breaches human rights legislation can also amount to a constructive dismissal, and/or breach OHS legislation. So there are cases where courts have said, "Yes, this harassment might engage human rights legislation, but it also engages a common law constructive dismissal analysis. Just because there's a human rights dimension doesn't mean that we're not entitled to hear the civil contract claim."
In finding that it had jurisdiction to hear this case, the court in Yee relied on a number of other cases, most of which are distinguishable. Some of them involve fact-patterns where the conduct is alleged to breach contractual duties independently of also breaching human rights legislation. Some involve constructive dismissal fact patterns where discriminatory conduct is a part of what contributed to the breach of contract.
The Court in Yee also cited, with emphasis, a passage from a 2023 Ontario decision highlighting that, so long as the discrimination claim is tethered to an independent cause of action, it's within the jurisdiction of the court. The problem, and where this becomes a serious error in the Alberta court, is that in so doing, the Ontario court was relying upon s.46.1 of the Ontario Human Rights Code - a provision that actually confers jurisdiction on Ontario courts in certain contexts and has no analog in Alberta.
Yee is squarely a 'duty to accommodate' case. Nobody's contending that WestJet wasn't entitled to set the policy it did; it's uncontested that Yee failed to comply with the directions of her employer; Yee's core argument is that the employer should have accommodated her religious beliefs.
It is absolutely a human rights case dressed up as a breach of contract case.
Judicial Review of Employer Action?
The Court, however, treats the question as one of second-guessing WestJet's application of its own policy - while accepting that it was entitled to implement the policy, the Court is conducting an analysis akin to 'judicial review' over the decision-making process underlying the application of the policy. This is very problematic.
Many policies confer discretion upon the employer in how to apply the policy. Employers may create exemptions, special treatments, etc. - and this is especially true where human rights considerations come into play. Every employer policy has an express or implied carve-out of "We may provide exceptions if you require it for human rights related reasons." (In this case, it's express, providing for accommodations in accordance with the CHRA.) If you can get around the Bhadauria problem simply by treating accommodation exceptions as a contractual exercise that courts can scrutinize, then you've completely overturned Bhadauria in the employment context. And that's exactly what the court does here, concluding that it has a right to review, as a matter of contract, the employer's application of a promise to comply with human rights obligations.
But more broadly, the employer prerogative simply isn't subject to judicial oversight. If a decision is properly within the employer prerogative, such as implementation of a policy within employer authority, or application (or granting exemptions from) such a policy, that prerogative is close to absolute. Courts may second-guess whether an employer has just cause for dismissal based on an employee's failure to comply with the employer's proper directions (see below), but they don't have any right to tell an employer how to apply their own policies, except to the extent of ensuring that employers comply with substantive statutory obligations within court jurisdiction to enforce.
Imagine a scenario where I ask my employer to let me work 100% from home (assuming, for the sake of argument, that I have no contractual entitlement to WFH). If my employer's policy reserves the discretion to consider such a request, it's possible for my employer to grant such a request. But if my employer says no, there's no appeal from that decision. The courts have no right to engage in judicial review to determine whether the decision was made in a procedurally fair fashion, or whether the outcome was substantively reasonable, or whether the underlying reasons for the decisions are rational or coherent. If the basis for my request is a disability, then I may have recourse to the human rights commission, but the courts simply have no jurisdiction to inquire into the employer's application of its own policy to assess its reasonableness.
But that seems to be the reasoning employed by the court here: If I ask for the right to work 100% from home, and my employer says no and tells me I have to be in the office on certain days, I can refuse, and if I then get dismissed for refusing, I can challenge the underlying reasonableness of the refusal in a wrongful dismissal action. Not how it works.
There's a serious floodgates issue here. If the courts have the power to excuse clear insubordination by scrutinizing the reasonableness (not the lawfulness) of the employer's process leading to the directions the employee refused, then the impact of that is sweeping.
(NB: This is different from a scenario where the dismissal results simply from a failure to comply with an unclear policy. If I'm reasonably unsure how a policy applies to me, and my employer thinks I've acted against the policy, then my employer needs to tell me that, embarking on a course of clear communication and progressive discipline to ensure that I am aware of how the policy applies. If it doesn't, then it will never succeed in a just cause position. But once the employer comes to me and tells me, "Don't do x again, because it's a breach of y policy", then if I get fired for continuing to do x, the issue becomes that I've refused the employer's clear direction not to do x, and that can't be saved by a judicial interpretation that policy y may not actually prohibit x.)
Burden of Proof and Establishing a Sincere Religious Belief
In finding that the employer failed to properly accommodate - in accordance with policy statements that expressed an intention to comply with human rights legislation - the court nonetheless did not conduct the necessary analysis to assess whether the employee was actually entitled to accommodation under human rights legislation.
Ordinarily, a plaintiff has the burden of proof. In a wrongful dismissal, where the employer alleges cause, the burden shifts to the employer to establish cause. However, in this instance, where the underlying conduct of the just cause allegation is established and the plaintiff is relying on an affirmative defence to the just cause allegation (i.e. that she was entitled to religious accommodation), the burden shifts back to the plaintiff to prove the entitlement to the religious accommodation.
There's a test for discrimination, referred to as the "Moore" test.
- The complainant has a protected characteristic;
- The complainant suffered an adverse treatment;
- The adverse treatment is connected to the protected characteristic.
Once a complainant has established those elements, they're said to have laid out a prima facie case of discrimination. However, there are defences, such as "undue hardship" - e.g. that the protected characteristic could not have been accommodated.
Undue hardship has both a procedural and substantive component: Employers have an obligation to consider possible accommodation measures, and they can't just come in at the hearing and try to lay out excuses for why accommodation wouldn't have been possible.
However, the Moore test is a prerequisite before we even get into an undue hardship analysis. And the Court in Yee, before deciding that she was entitled to accommodation, did not reference the Moore test or anything analogous.
There appears to be an evidentiary problem here. In support of her request to WestJet for a religious exemption, Yee answered a questionnaire and submitted a letter from "her" pastor - actually a pastor of a religious congregation in Colorado (which raises some obvious questions about the level of connection of the plaintiff's religious practices to that pastor's congregation, and about the extent of the pastor's knowledge of the plaintiff's own belief structures) - speaking of the plaintiff's deeply-held religious convictions. To me, the plaintiff's questionnaire, on its face, seems less of a claim that she can't get vaccinated for religious reasons, or more that she feels that her faith means that she doesn't need vaccines to protect her own health. Two very different statements. Then, in true form of an anti-vaxxer, her questionnaire responses rant at length with conspiracy theory nonsense about the vaccines being experimental.
WestJet concluded that the basis of her objection was secular in nature, and denied the objection.
The Court's analysis was that WestJet's reasoning disregarded the possibility that a person could have both religious and secular reasons for objecting to vaccines, and that the plaintiff's information should have been enough for them to grant the requested exemption.
However, it does not appear that the Court independently heard evidence about the plaintiff's religious beliefs - as distinct from seeing what had been submitted to the employer. (This reinforces my conclusions above that the court appeared to be undertaking a judicial review process.)
If the Court is considering whether WestJet breached a duty to accommodate, the first substantive legal question is whether Yee was entitled to accommodation - in other words, the Moore test. That requires the Court to hear evidence capable of establishing the sincere religious belief at issue.
The Court appears to try to sidestep this requirement by pointing to evidence by WestJet that they didn't question the sincerity of her religious belief; however, that phrase is likely used imprecisely, because it's abundantly clear that they did doubt the sincerity of her religious objection to vaccination. They may have accepted that her claim to be Christian is sincere, but they did not accept that this was the basis for her rejection of the vaccine.
Without having led evidence capable of satisfying the Moore test, there's no procedural requirement engaged for the employer - if she doesn't establish with court-admissible evidence that her objection to vaccination was based on a sincere religious belief, any discrimination claim fails, without WestJet needing to embark upon any front-end process.
By analogy, imagine a disability case: If my employee tells me that they're experiencing a disability and need x accommodations, and my response is, "I don't care if you're disabled, you have to do your job like anyone else" (not the recommended response, btw), and the employee brings a discrimination claim against me...they have to prove that they're disabled. My response may be utterly inappropriate, and an unlawful response to an accommodation request for an actual disability, but if the employee fails to establish at the front end that they actually have a disability requiring accommodation, then they have no case.
Just Cause
The Court went on to alternatively conclude that, even if it was wrong in its assessment of the accommodation question, refusing to comply with the vaccination policy still didn't amount to just cause, because it had other options to continue the employment relationship, like allowing the employee to work from home, as that this would have allowed the employment relationship to continue reasonably.
Just cause is a high threshold, but this analysis is absolutely wild.
Remember, the logic of this analysis includes the assumptions that (a) the employer was entitled to require vaccination and (b) Yee was not entitled to accommodation, and therefore that Yee's refusal to vaccinate was expressly insubordinate. Under those circumstances, in light of the Federal regulations at the time, it would have been unlawful for the employer to permit Yee to attend the worksite.
So the implications of the Court's reasoning here are that the employer had a duty to accommodate the employee's insubordination, by permitting the employee to work remotely because of her refusal to take the necessary actions to work onsite. It implies that employers are not entitled to require onsite attendance (whereas, subject to potential scenarios where employees can assert a contractual right to WFH, it's pretty clear that employers have that discretion).
More generally, it suggests that insubordination is not independently capable of constituting just case at all: Faced with explicit and unrelenting refusals to comply with employer directions that are (on the assumptions of this alternative conclusion) within the employer's rights to make, this logic suggests that courts will inquire as to whether the consequences of the insubordination justify dismissal.
Again, going back to the scenario where I asked to work from home, was refused, and proceeded to refuse to come into the office anyways, the court's reasoning here suggests that the employer needs to prove not only that it has the right to require in-office attendance, but also that there are operational or productivity consequences to my refusal to do so that are proportionate to dismissal.
That is, quite simply, not the law in Canada.
The question of just cause is whether the employee has evinced an intention to no longer be bound by the employment contract. If my employer gives me a direction that it is entitled to give, and I refuse to follow it, there's a process to turn that refusal into just cause - ensuring that I appropriately understand that the consequences of continued refusal include termination of employment - but once the employer has told me "Get into the office tomorrow or you don't have a job here anymore", then, if it is entitled to require my in-office attendance, my continued refusal to attend does indeed evince an intention to no longer be bound.
The Repudiation Question
WestJet also relied upon a termination clause allowing it to terminate on statutory minimums.
A few months ago, I commented on a line of case law in Ontario where courts point to non-compliance by the employer with the termination clause as a basis to award reasonable notice. The Court here came to a similar conclusion. My objections to that approach apply equally to this case, as to the ones I earlier commented upon.
Conclusion
There are a lot of serious problems with this decision:
- Sidestepping Bhadauria on extremely flimsy grounds, including relying on Ontario case law decided under a materially different statutory framework.
- Treating the court's mandate as being to sit in review of the decision-making processes in how employers exercise their managerial prerogative.
- Finding that the employer failed to comply with its obligations to accommodate religious beliefs, without satisfying itself that the plaintiff had a religious belief entitled to accommodation.
- Concluding that there is a burden on the employer to find some way, short of dismissal, to continue the employment relationship in the face of explicit insubordination.
The author is an in-house lawyer in Alberta. Views are the author's alone. This article does not contain legal advice, but general legal information. If you have a legal issue, consult a lawyer.
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