Executive Summary: Key Legal and Evidentiary Issues

• Federal government COVID-19 vaccination mandates for the airline sector required employees to be fully vaccinated before attending an aerodrome property, prompting WestJet to establish a corresponding vaccination policy.

• Termination of an aircraft maintenance engineer for non-compliance with WestJet's vaccination policy was found by the Canada Industrial Relations Board to constitute just cause under the KVP analytical framework.

• Constitutionality of the federal vaccination order was upheld, with the Board relying on a Quebec Superior Court decision finding no breach of section 7 of the Canadian Charter of Rights and Freedoms.

• Allegations of reasonable apprehension of bias and procedural unfairness were rejected, as the Board acted within its authority as master of its own procedure in precluding certain testimony.

• Exclusion of the applicant's evidence regarding remote work was explained by WestJet as a consequence of the applicant's counsel failing to put the matter to WestJet's witness, violating the rule in Browne v. Dunn.

• On judicial review, the Federal Court of Appeal found the Board's decision reasonable and dismissed the application, concluding the applicant fell far short of meeting the threshold for establishing procedural unfairness or bias.

Background and federal vaccination mandates

Between August and October 30, 2021, the Canadian federal government announced and introduced several measures relating to COVID-19 vaccinations for employees in federally regulated air, rail and marine transportation sectors. These measures mandated employers in those sectors to establish vaccination policies and that certain of their employees be fully vaccinated. In the airline sector specifically, employees were required to be fully vaccinated before attending an aerodrome property, as set out in the Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 43.

WestJet's vaccination policy and the applicant's termination

In response to the federal mandates, and in discharge of its duties to take every reasonable precaution to protect its employees under the Canada Labour Code, R.S.C. 1985, c. L-2, WestJet established a COVID-19 vaccination policy requiring employees to be vaccinated before October 30, 2021. Bjarni Henrikson, employed by WestJet as an aircraft maintenance engineer, was notified that he, like other WestJet employees, would be required to comply with the policy. Henrikson did not comply, and on December 1, 2021, WestJet terminated his employment. This prompted Henrikson to file an unjust dismissal complaint with the Canada Industrial Relations Board.

The Board's decision

The Board assessed WestJet's vaccination policy using the analytical framework established in Re Lumber & Sawmill Workers' Union, Local 2537, and KVP Co. Ltd., (1965), 16 L.A.C. 73, which is used to determine whether there is just cause to terminate an employee for breach of a company policy. The Board found that WestJet's vaccination policy was reasonable, clear and unequivocal, and that it was applied fairly to Henrikson. The Board concluded that WestJet had just cause to discipline Henrikson for failure to comply with a reasonable policy and that termination was not an excessive response. Henrikson's complaint was dismissed.

Constitutional challenge and Charter arguments

On judicial review, Henrikson argued that the Board erred in concluding that the federal government order mandating vaccinations for employees in the air, rail and marine transportation sectors was not unconstitutional and did not breach section 7 of the Canadian Charter of Rights and Freedoms. The Board had relied on a Quebec Superior Court decision, Syndicat des métallos, section locale 2008 c. Procureur général du Canada, 2022 QCCS 2455, which came to those findings. The Federal Court of Appeal found no reviewable error in the Board's reliance on that case or in the Board's finding the federal government order was not unconstitutional. Moreover, the Board found whether that order was constitutional or not, WestJet's vaccination policy was reasonable for the health and safety of its employees.

Procedural fairness and bias allegations

Henrikson also alleged that the Board's process was procedurally unfair and gave rise to a reasonable apprehension of bias. Specifically, he complained that the Board precluded him from testifying about the possibility to rearrange his tasks, roles, and duties to let him perform from home for a temporary period, and that the Board, not WestJet, raised concerns about the testimony. WestJet did not dispute that the Board precluded the applicant from presenting evidence about his ability to work from home. However, because WestJet bore the burden of establishing the dismissal was not an unjust one, its witness testified first. WestJet stated the Board precluded the applicant's testimony because his counsel did not ask WestJet's witness about the matter, violating the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.). The applicant did not deny these facts but asserted that the Board should have permitted him to present the evidence and WestJet to recall its witness. The Court noted that nowhere in the record before the Board was there any suggestion that Henrikson's duties did not require him to work at an aerodrome. Both his complaint and the agreed statement of facts described his position as an aircraft maintenance engineer, and WestJet's reply expressly stated he was expected to attend at aerodrome properties to conduct aircraft maintenance and repair services as part of his regular job duties. In his response, Henrikson neither challenged that statement nor alleged he had duties that did not require him to attend the aerodrome. The Court emphasized that WestJet's rights to procedural fairness include its right to know the case it had to meet. Furthermore, the Board's reasons indicated it accepted submissions on the matter and that Henrikson performed some administrative duties; however, it found them secondary to his core responsibilities being hands-on maintenance of aircraft in hangar bays located at the airport.

The ruling and outcome

The Federal Court of Appeal, in a decision delivered from the bench on February 24, 2026, by Justices Webb, Monaghan, and Biringer, dismissed Henrikson's application for judicial review. The Court concluded that the Board's decision was reasonable, based on an internally coherent and rational chain of analysis, and that Henrikson fell far short of meeting the threshold to establish a reasonable apprehension of bias or a breach of procedural fairness. WestJet was the successful party. No monetary award was at issue or granted in this proceeding, as it was a judicial review of a dismissed unjust dismissal complaint rather than a damages action.