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Another Decision Upholding a Covid Vaccine Policy Has Landed – This Time It’s WestJet

In Henrikson v. WestJet, 2026 FCA 39, the Federal Court of Appeal of Canada (“FCA”) dismissed a judicial review application challenging a decision of the Canada Industrial Relations Board (“CIRB”) that upheld an employee’s dismissal for failing to comply with a mandatory COVID-19 vaccination policy.

Background

The Applicant, a former aircraft maintenance engineer employed by WestJet, was dismissed after refusing to comply with the airline’s mandatory COVID-19 vaccination policy.

WestJet argued that the policy was implemented in response to:

• Federal public health measures applicable to the aviation sector, which required employees working in certain aviation environments to be fully vaccinated before attending aerodrome properties; and
• Its duties under the Canada Labour Code, 1985, to take reasonable precautions to protect its employees. 

After the dismissal, the Applicant filed an unjust dismissal complaint before the CIRB.

The CIRB dismissed the complaint, concluding that:

• WestJet’s vaccination policy was reasonable and fair;
• The employee’s refusal to comply constituted misconduct; and
• The termination was not an excessive disciplinary response.

Application for Judicial Review

The employee proceeded to apply to the FCA for judicial review, alleging both substantive unreasonableness and procedural unfairness, including a claim of reasonable apprehension of bias.

The FCA considered two main questions:

1. Was the CIRB’s decision unreasonable in finding that WestJet had just cause for termination?
2. Was the process before the CIRB procedurally unfair, giving rise to a reasonable apprehension of bias?

The FCA dismissed the application for judicial review, holding that the Applicant failed to establish either a breach of procedural fairness or a reasonable apprehension of bias.

More specifically, the FCA held that:

• The CIRB did not err in relying on the well-known labour arbitration framework from Re Lumber & Sawmill Workers’ Union, Local 2537, and KVP Co. Ltd., 1965 CanLII 1009 (ON LA) to decide whether there was just cause for dismissing an employee for breaching a company policy.
• The CIRB reasonably applied the KVP test and concluded that WestJet had just cause to dismiss the employee for breaching the policy.
• The CIRB’s determination that progressive discipline or additional notice was not required in the circumstances was not flawed.

Procedural Fairness and Evidentiary Rulings

A key argument raised by the Applicant was that the CIRB improperly prevented him from testifying about certain matters, including whether aspects of his job could be performed remotely.

The FCA rejected this argument, providing that:

• Administrative tribunals such as the CIRB are “masters of their own procedure” and have broad authority to control the admissibility of evidence. Under section 16(c) of the Canada Labour Code, the CIRB may receive and accept evidence in its discretion; and
• The Applicant’s counsel had failed to raise the relevant issue with WestJet’s witness, contrary to the rule in Browne v. Dunn, which generally requires parties to put contradictory evidence to opposing witnesses during cross-examination.

Key Takeaways for Employers

This decision highlights several important principles in administrative and employment law:

1. Deference to specialized tribunals

Courts will generally defer to labour tribunals applying established labour arbitration frameworks such as the KVP test.

2. Broad procedural authority of tribunals

Administrative bodies have significant discretion over evidentiary and procedural matters, and courts will rarely interfere absent clear unfairness.

3. Importance of putting your case to the opposing witness

The rule in Browne v. Dunn continues to play a meaningful role in tribunal proceedings.

Overall, Henrikson v. WestJet reinforces that pandemic-era vaccination policies in safety-sensitive sectors such as aviation, (where reasonable and fair) were defensible and could be relied on to support the dismissal of employees who refused to comply, particularly where their position required physical presence at regulated worksites. Contact one of the lawyers at CCPartners to discuss further.

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