Executive Summary: Key Legal and Evidentiary Issues

• Central issue concerned whether the CROA arbitrator’s award on reinstatement and damages met the Vavilov reasonableness standard in a federally regulated labour dispute.
• A key evidentiary question was whether the employer’s insistence on an in-person investigation hearing at the terminal was fair when the grievor was unvaccinated, untested and believed he was barred from company property.
• The arbitrator’s finding that absenteeism did not amount to abandonment of employment, given the grievor’s detailed written explanations and express refusal to resign, was scrutinised but ultimately upheld.
• Considerable weight was given to changes in the Ministerial Order and CPKC’s own COVID-19 policy, which by December 2021 made unpaid leave the recommended minimum response for non-compliant but unexempt employees.
• The employer’s failure to consider alternative investigation formats (e.g., Zoom, telephone or postponement) was treated as fatal to the fairness of the disciplinary process under the collective agreement.
• The Court also addressed constitutional language rights, confirming that a Quebec judge may render judgment in English alone and that translation obligations under Quebec’s Charter of the French Language do not delay the judgment or alter its legal force.

Background and facts of the dispute

Canadian Pacific Kansas City Railway (CPKC) is a federally regulated railway operating in Canada, the United States and Mexico. It employed Michael Ferrada as a conductor at its Revelstoke, British Columbia terminal, beginning in April 2021. His employment unfolded against the backdrop of the COVID-19 pandemic, federal vaccination mandates for transportation workers and CPKC’s internal implementation of that regime. In October 2021, the federal Minister of Transport issued a Ministerial Order requiring employees of federally regulated railway companies to be vaccinated against COVID-19, subject to medical and religious exemptions. Employees benefitting from exemptions were required to undergo periodic COVID-19 testing, typically via PCR swabs, every 72 hours to access the employer’s premises. CPKC adopted its own policy to mirror and operationalise those federal requirements. On 5 November 2021, Ferrada sought a religious exemption based on his Seventh-day Adventist faith. At the same time, he refused to undergo COVID-19 testing, also on religious grounds. CPKC denied the exemption request on 11 November 2021, without disclosing the specific reasons or criteria that had not been met. The day after, Ferrada filed an attestation confirming he was unvaccinated and understood he could not lawfully enter CPKC property under the prevailing rules. From his perspective, he remained willing and ready to work but believed he was barred from attendance due to Transport Canada’s mandate and CPKC’s policy. When he was called for work on 18 November 2021, a crew dispatcher placed him on an “off (sick)” status. Ferrada did not accept that designation and consistently stated he was not sick and was available to work if allowed under the applicable rules. As his absence continued, CPKC viewed the situation as “excessive absenteeism” and initiated the formal investigation process required by the collective agreement. Notices of investigation were issued for hearings scheduled on 22 December 2021, 5 January 2022 and 8 January 2022 at CPKC’s General Yard Office (GYO) on company property in Revelstoke. Each time, Ferrada responded in writing that he could not attend in person because, as an unvaccinated and untested employee, he believed he was prohibited from being on the premises and risked disciplinary consequences for breaching those rules. He also explained that he had lost his apartment and was working elsewhere to support himself but reiterated that he was not resigning and remained willing to work for CPKC if it could be done consistently with his religious beliefs and the regulatory framework. On 9 January 2022, following the missed hearings, CPKC terminated his employment, stating that, given his continuing absence and failure to attend the investigations, it could only assume he was no longer interested in maintaining his employment relationship. A second letter of 26 January 2022 confirmed this position.

Collective agreement, investigation process and evolving COVID-19 policy

The dispute arose in a unionised setting governed by a collective agreement between CPKC and the Teamsters Canada Rail Conference (TCRC). The collective agreement codified a strict requirement that no discipline or dismissal be imposed until a fair and impartial investigation had been conducted and the employee’s responsibility established on the evidence. This procedural safeguard was central: if the investigation was not fair, any discipline flowing from it was void from the outset. The agreement also addressed where investigations should take place. As a general rule, investigations were to be held at the employee’s main home terminal “to the extent possible”, but it allowed some flexibility, including potential hearings at a distant superintendent’s office with transportation provided. During late November and early December 2021, both the federal Ministerial Order and CPKC’s internal COVID-19 policy evolved. Effective 10 December 2021, the company’s updated policy designated unpaid administrative leave as the recommended minimum sanction for unvaccinated employees without an approved exemption, rather than immediate termination. This shift was significant in the arbitrator’s and the Court’s eyes, because it demonstrated that CPKC had developed a graduated response framework that stopped short of dismissal in comparable cases, yet it did not apply that more moderate response to Ferrada.

Grievance and arbitration before the Canadian Railway Office of Arbitration and Dispute Resolution

The TCRC grieved the termination on 15 February 2022, seeking reinstatement and full financial redress. The arbitration proceeded under the Canadian Railway Office of Arbitration and Dispute Resolution (CROA & DR), an institutional regime established in 1965 to resolve railway labour disputes. Under the CROA memorandum of agreement, parties submit a Joint Statement of Issue setting out agreed background facts and their respective positions, followed by written arguments and documentation; hearings are usually brief and document-driven, with no witnesses. In this case, the Joint Statement recorded the timeline of the Ministerial Order, Ferrada’s exemption request and denial, the non-compliance notice, his unvaccinated status, the multiple investigation notices and his detailed written responses explaining his non-attendance and continuing interest in employment. It also noted that, months after the dismissal, CPKC made two conditional offers of reinstatement, which Ferrada declined because of the conditions and his move to another location, and that the company insisted on reinstating him only to his original Revelstoke home terminal. The Union’s position was that the company had failed to provide a fair and impartial investigation as required by article 39 of the collective agreement and that the dismissal was therefore null and void. It argued that CPKC could easily have rescheduled or used remote or alternative formats, with no real prejudice to the company, and that the employer had not met its burden to prove culpable absenteeism or abandonment. It characterised the dismissal as discriminatory, arbitrary and excessive in the circumstances, and sought full reinstatement and make-whole compensation. CPKC, for its part, maintained that the investigations were properly scheduled at the workplace, that Ferrada chose of his own accord not to attend and thus prevented his version from being properly recorded. It argued that it was entitled to decide the case on the record before it and that the termination was justified and proportionate, and asked the arbitrator to dismiss the grievance.

The arbitrator’s decision: unfair investigation and lack of just cause

The arbitrator, James Cameron, identified three discrete questions: whether Ferrada received a fair and impartial investigation; whether, even if he had, CPKC had just cause to terminate his employment; and, if not, what remedy should be ordered. On the first issue, the arbitrator held that the investigation was not fair or impartial. While acknowledging that CPKC properly summoned Ferrada on three occasions, he emphasised that the company knew his reasons for not attending in person and that those reasons were at least prima facie plausible in light of the Ministerial Order and company policy, which he understood as barring unvaccinated and untested employees from company property. Importantly, both parties had argued that alternative arrangements could have been made—such as postponement or remote attendance—but disagreed over who bore responsibility for proposing them. The arbitrator concluded that, because the hearing was initiated and organised by the company and carried potentially serious consequences for the employee, it was incumbent on CPKC to explore alternatives. He specifically pointed to options such as a Zoom or telephone hearing, written questions and answers, or postponement until a safe and lawful in-person appearance was possible. Against the backdrop of a pandemic in which remote technologies had become commonplace, the employer’s failure to offer any alternative or to respond substantively to Ferrada’s concerns meant that he was never given a genuine opportunity to explain his religious objections to vaccination and testing, or to discuss potential accommodations such as unpaid leave. That failure, in the arbitrator’s view, breached the collective agreement’s requirement of a fair and impartial investigation and rendered the resulting discipline void ab initio. Turning to just cause, the arbitrator examined the termination letters, which stated that CPKC could only assume Ferrada was no longer interested in maintaining his employment given his ongoing absence and failure to attend the investigations. He contrasted that assumption with the documentary record: Ferrada had repeatedly provided detailed explanations for his work absences and non-attendance at investigations, grounded in his understanding of the legal and policy framework and his religious beliefs. He had also expressly said, in writing, that he would not resign and that he enjoyed his work with CPKC. In labour law, resignation or abandonment requires clear intention from the employee, supported by objective conduct. The arbitrator found no such intention; instead, the grievor remained in regular contact, asserted his willingness to work and articulated his reasons for non-attendance. The arbitrator further noted that by early December 2021 CPKC’s revised policy contemplated unpaid leave as the minimum response to non-vaccination without an exemption, yet the company did not follow that route with Ferrada and provided no adequate justification for treating him more harshly than others in similar circumstances. He characterised the choice to terminate for alleged abandonment, rather than apply the policy framework, as arbitrary. In the result, he held that CPKC lacked just cause to dismiss Ferrada.

Remedies at arbitration: reinstatement and damages jurisdiction

Having found both that the investigation was unfair and that just cause was lacking, the arbitrator ordered reinstatement of Ferrada to his employment. He also held that the grievor was entitled to damages, but he did not immediately quantify them. Instead, he followed a common labour arbitration practice of remitting the assessment of wage loss and other monetary entitlements to the parties in the first instance, while expressly reserving jurisdiction to reconvene and determine the quantum if they were unable to agree. The decision thus established liability and the right to be made whole, leaving the specific financial implications for a later stage or negotiated resolution.

Judicial review in the Quebec Superior Court: standard of review and deference

CPKC applied to the Quebec Superior Court for judicial review of the arbitrator’s award, challenging the conclusions on fairness of the investigation, absence of just cause and, initially, the remedial orders of reinstatement and damages. Both sides agreed that reasonableness, as articulated by the Supreme Court of Canada in Vavilov, was the applicable standard. Under that framework, the reviewing court does not substitute its own view of the merits or reweigh evidence, but asks whether the decision, including both reasoning and outcome, is intelligible, justified and consistent with the law and the record. The Court underscored that the burden lies on the party challenging the administrative decision—in this case, CPKC—to show serious shortcomings central to the result, not minor missteps. It also stressed that arbitral fact-finding attracts significant deference and that judges on review must avoid revisiting factual determinations absent exceptional circumstances. In this context, the Court recognised the specialised role of CROA arbitrators in the railway sector, the structured process set out in the memorandum of agreement (including the Joint Statement of Issue), and the expectation that such decision-makers bring institutional expertise to questions of discipline, just cause and appropriate remedies in the industry.

Assessment of the investigation fairness issue

On the first core issue, CPKC argued that the arbitrator had effectively rewritten the collective agreement by reading in an obligation to offer remote or alternative hearing formats, contrary to the provision specifying that investigations are normally held at the employee’s home terminal. The Court rejected this characterisation. It observed that the relevant clause itself used flexible language, stating that investigations “should” be conducted at the home terminal “to the extent possible”, and allowed for other locations in some circumstances. Far from imposing an extraneous requirement, the arbitrator simply applied that flexibility in light of the unusual constraints posed by the pandemic and the employer’s own COVID-19 rules. The Court also noted that CPKC’s own submissions acknowledged the possibility of virtual or alternative formats, undermining any claim that the arbitrator was inventing new obligations. Crucially, both parties had taken the position before the arbitrator that alternatives were available; the dispute at arbitration was over who bore responsibility to propose them. The arbitrator’s conclusion that, in these circumstances, it was the employer’s responsibility—given that it initiated and controlled the process and knew the grievor’s stated concerns—was, in the Court’s view, well within a range of reasonable outcomes. Given the context of widespread availability of video-conferencing tools nine months into the pandemic and the high stakes of a disciplinary investigation that could (and did) lead to termination, the Court found nothing unreasonable in the arbitrator’s determination that failing to explore alternatives deprived Ferrada of a fair opportunity to be heard. It therefore upheld the finding that the investigation was not fair and impartial and that the resulting discipline was void.

Assessment of just cause and the employer’s assumption of abandonment

Although the unfair investigation finding was sufficient to set aside the dismissal, the Court went on to address the just-cause analysis because the parties had fully argued it. Here, the Court focused on the employer’s assertion that it was entitled to “assume” abandonment based on Ferrada’s absences and non-attendance. The judge reviewed the detailed email correspondence in which Ferrada explained that he believed, rightly or wrongly, that he was legally and contractually prohibited from entering CPKC property as an unvaccinated and untested employee, reiterated that he had never booked off sick, stressed that he was ready and willing to work within the constraints of his beliefs and the rules, and explicitly stated that he would not resign. Against this record, the Court agreed with the arbitrator that CPKC’s inference of abandonment was entirely unsupported. On established labour law principles, an employee is only deemed to have resigned where there is clear, voluntary intention to sever the relationship, corroborated by objective conduct. Continued communication, detailed explanations of absences and an express refusal to resign point in the opposite direction. The Court also endorsed the arbitrator’s reliance on comparators and policy evolution. By December 2021, CPKC’s own policy, aligned with the revised Ministerial Order, contemplated unpaid administrative leave as the minimum response for unvaccinated employees without approved exemptions. Yet the company bypassed that route and proceeded directly to dismissal for alleged abandonment, without treating Ferrada consistently with other employees or articulating a cogent reason for the deviation. The arbitrator’s conclusion that the termination decision was arbitrary and lacked just cause was therefore, in the Court’s view, both legally orthodox and factually grounded. The employer’s criticism that the arbitrator had hinted at potential lesser discipline while rejecting dismissal did not amount to any material inconsistency, since it is common in just-cause analysis to acknowledge that lesser sanctions might have been available even where the particular sanction imposed cannot stand.

Language rights and timing of judgments

Beyond the labour and administrative issues, the judgment devotes a substantial section to the language of judicial decisions in Quebec and the interplay between section 133 of the Constitution Act, 1867 and article 10 of the Charter of the French Language. All proceedings, evidence and arguments in this case were in English, and both parties expressly requested an English-language judgment. The Court reaffirmed that, under section 133, judges of Quebec courts have a constitutionally protected discretion to render judgments in either English or French, and that a judgment written in one official language alone is fully authoritative and enforceable. It then interpreted article 10—which requires a French version to be “attached immediately and without delay” to certain English judgments—as imposing a translation duty on the Quebec government, not on judges themselves, and only after a judgment has been rendered and communicated. The Court rejected any reading that would require it to delay issuing an English-language judgment until a French translation was ready, reasoning that such a delay would impede access to justice and conflict with section 133. It emphasised that translations prepared under article 10 are non-official and not revised by judges, and that any constitutional challenge to article 10’s validity or operability was not before the Court in this case. To avoid ambiguity in future French translations, the Court repeated its language-rights analysis in both English and French within the same written reasons, but it stressed that this bilingual approach was an exercise of discretion rather than a legal obligation.

Outcome and relief for the parties

In its final conclusions, the Quebec Superior Court held that CPKC had not met its burden under Vavilov to demonstrate that the arbitrator’s award was unreasonable. The findings that the investigation was unfair, that dismissal for alleged abandonment lacked just cause and that reinstatement with damages was the appropriate remedial framework all fell within the permissible bounds of labour-arbitration expertise and were solidly anchored in the record and governing law. The Court therefore dismissed CPKC’s application for judicial review and awarded costs in favour of the Teamsters Canada Rail Conference, the impleaded union that had successfully defended the award. The arbitrator’s decision ordering reinstatement of Michael Ferrada and recognising his entitlement to damages thus remains in force, but the exact quantum of damages and costs is not set out in this judgment and was left to be determined either by agreement of the parties before the arbitrator or through a further arbitral ruling. As a result, the successful party is the Teamsters Canada Rail Conference (and, by extension, the grievor), but the total monetary amount of damages, wage loss and costs ultimately payable cannot be determined from this decision.