An arbitrator has dismissed a union motion that sought to limit the scope of proceedings in multiple grievances related to Air Canada’s COVID-19 vaccination policy, ruling that compensation claims for unpaid leaves remain a live issue despite the airline’s subsequent accommodation of religious objections.
The Air Line Pilots’ Association (ALPA) had brought forward grievances on behalf of several pilots who were initially denied religious exemptions from Air Canada’s vaccination requirement and subsequently placed on unpaid leaves of absence beginning October 31, 2021.
In a recent arbitration decision, the arbitrator addressed ALPA’s motion that attempted to establish that Air Canada had effectively conceded error when it later granted exemptions to these pilots, and therefore should compensate them for their period of forced unpaid leave.
Background of the dispute
The grievances stemmed from Air Canada’s implementation of its COVID-19 vaccination policy in 2021-2022. Pilots who raised religious objections to vaccination were initially denied exemptions and placed on unpaid leaves of absence starting October 31, 2021. In contrast, pilots objecting on other grounds were granted paid leaves while Air Canada considered possible accommodation.
ALPA filed individual grievances on February 15, 2022, alleging violations of both the collective agreement and the Canadian Human Rights Act. These grievances requested “a variety of declaratory, directory, and make-whole remedies.”
After a Step 2 hearing on April 12, 2022, Air Canada advised ALPA on May 9, 2022, that it had decided to “grant your exemption request and you will be placed on an unpaid LOA with benefits as of May 9, 2022.” Air Canada’s correspondence also stated: “As such, the Company considers this grievance resolved. You are reminded of the ability to appeal this decision in accordance with Article 7 of the Collective Agreement.”
Union’s position
ALPA argued that by granting the exemption requests at Step 2, Air Canada had “effectively conceded error.” The union maintained that the affected pilots should therefore be compensated for their months of forced unpaid leave between October 31, 2021, and May 9, 2022.
The union’s motion sought to establish that this aspect of the grievances had been resolved and could not be reopened, which would limit the scope of the arbitration proceedings.
Employer’s response
Air Canada disputed the union’s interpretation of its Step 2 reply. The company maintained that while it was willing to place the grievors in the same position as their colleagues going forward from May 9, 2022, it had not agreed to retroactive compensation.
The arbitrator’s ruling
The arbitrator acknowledged that during earlier informal discussions, he had commented “favourably about the Union position” as it would “limit potentially protracted litigation to a meaningful degree.”
However, after considering the language of the Step 2 reply, the arbitrator concluded that Air Canada’s position must prevail.
“Notwithstanding the intuitively attractive argument advanced by ALPA counsel, I am persuaded that the position advanced by Air Canada must prevail,” the arbitrator wrote.
The decision hinged on the precise wording used by Air Canada in its Step 2 reply. The arbitrator noted: “Air Canada suggested that the ‘Company considers this grievance resolved’ but it did not presume to suggest that ALPA was bound to do the same.”
Significantly, the Step 2 reply contained “no mention of retroactive compensation, no mention of compensation of any kind” and “no inkling that Air Canada was prepared to meet the other remedial demands of the Union as framed in the grievances.”
The arbitrator pointed to what he called the “tell” in the situation: “the Employer specifically acknowledged the right of the Union to proceed further in accordance with Article 7:06 of the Collective Agreement.”
While ALPA was entitled to continue with the grievances, the arbitrator ruled that “what the Union may not do is to ‘read in’ Employer acquiescence to partial compensation without more than is to be found in the Step 2 reply.”
The decision concludes: “In my opinion, there is no space on the language at issue for an arbitrator to ‘deem’ more than Air Canada stated expressly. The claim for the period prior to May 9, 2022, remains a live issue in this arbitration.”
Implications for ongoing proceedings
The dismissal of the union’s motion means that the arbitration will need to address the full scope of the grievances, including the question of compensation for the period between October 31, 2021, and May 9, 2022, when the religious objectors were on unpaid leave while colleagues with other objections received paid leaves.
The arbitrator characterized the labour relations relationship between Air Canada and ALPA as “sophisticated” and one that has “extended over decades,” noting that they have previously “confronted issues of complexity and significant monetary value in bargaining and at arbitration.”
For more information, see Air Canada v Air Line Pilots’ Association, 2025 CanLII 37555 (CA LA).
