ACJ Finds It Has Some Limited Jurisdiction Over Discrimination Allegations

In Yee v Westjet, 2025 ABCJ 87 (Argento, J), an employer was found not to have just cause to dismiss an employee who did not comply with a mandatory vaccination policy.

This case includes consideration of jurisdiction between human rights and the civil courts in Alberta.  The Court concluded that it had jurisdiction in this case to consider discrimination allegations because they were inextricably linked to the wrongful dismissal claim.

This case is important and notable because it has generally been understood amongst most Alberta employment lawyers for many years that discrimination allegations are not normally within the jurisdiction of the Alberta civil courts.  This case does not change that, per se, but it does provide useful guidance on when discrimination allegations might sometimes fit in with a civil claim.

This case considers issues of the reasonableness of policy application, termination clauses in employment contracts, and reasonable notice (severance) entitlements for this 11 year employee.

Facts

The following were some of the pertinent facts summarized by Justice Argento:

• The plaintiff employee Duong Yee worked for Westjet for 11 years
• The plaintiff employee worked in various accounting positions over that time. Her final position was Accountant II- Operations Accounting
• In September 2021, Westjet announced that all employees had to be fully vaccinated by October 30, 2021. Westjet formally issued the vaccination policy on October 16, 2021
• The plaintiff employee submitted a request for exemption on religious grounds, and included a letter from her pastor, and on grounds of safety (felt vaccinations unsafe)
• There was no evidence that Westjet did not accept the plaintiff’s religious belief was not sincerely held, but Westjet ultimately denied the exemption request, pointing out that the plaintiff was trying to rely on safety concerns
• Westjet put her on a 1-month unpaid leave of absence and warned her that failure to get vaccinated would lead to termination of employment for cause
• The plaintiff employee did not get vaccinated
• Westjet terminated her employment, purportedly for just cause, for failing to comply with the Westjet’s vaccination policy
• The plaintiff employee’s Civil Claim alleged wrongful dismissal, but relied in part on the dismissal being discriminatory

Analysis / Conclusion

Westjet argued that the Alberta Court of Justice did not have jurisdiction to consider the claim because so much of the claim and supporting facts relate to alleged discrimination.

Justice Argento concluded that the Alberta Court of Justice did have jurisdiction to consider the discrimination allegations in order to determine if Westjet had just cause for dismissal in this particular case.  The reasoning is important, so it is excerpted here as follows:

[28] None of the Defendant’s authorities involved a wrongful dismissal claim alleging discriminatory conduct, except for Keays.  However, the allegedly discriminatory conduct did not factor into the finding of wrongful dismissal in Keays.  Additionally, the jurisdictional issue raised in this case was not decided in Keays.

[…]

[41] The facts pled in support of the Plaintiff’s claim are largely (although not entirely) based on allegedly discriminatory conduct in failing to accommodate her request for a religious exemption.  However, what is important is that these facts are pled in support of a cause of action (wrongful termination) that is within the Court’s jurisdiction.  The allegations are “tethered to” a valid cause of action (Stomp, para 35) and are not simply standalone allegations of discriminatory conduct [underline added]

[…]

[44] As noted in the Wrongful Dismissal Practice Manual, “[e]ven if the Court cannot deal with allegations of discrimination per se, they may be relevant to issues of the wrongfulness of the dismissal, length of reasonable notice, and aggravated and punitive damage claims” […]

[…]

[46] Ultimately, the Court must decide whether the Plaintiff was wrongfully terminated or if the Defendant had just cause to terminate her employment.  The underlying factual context includes her request for a religious exemption and the Defendant’s denial of her request which eventually led to her dismissal.  These issues are inextricably intertwined with the Defendant’s allegation that it had cause to dismiss the Plaintiff for failing to comply with the Vaccination Policy.   

[…]

[65] As indicated, the Defendant’s denial of the Plaintiff’s religious exemption request and the termination are inextricably linked.  If the Defendant failed to properly consider the Plaintiff’s request for a religious exemption, that would be relevant to assessing whether the Defendant could then rely on the Vaccination Policy to terminate the Plaintiff for cause.

 

The Court then considered whether there was just cause for dismissal.  The Court concluded that there was no just cause for dismissal, because Westjet’s application of its vaccination policy was not reasonable in the circumstances:

[72] […]  The principles established by the Supreme Court of Canada in Syndicat Northcrest v Amselem, 2004 SCC 47, require that the Plaintiff’s religious beliefs be given due regard and deference if they are found to be sincere and honestly held.

[…]

[78] […] the Defendant’s refusal to grant the Plaintiff an exemption, even though it accepted the sincerity of her religious beliefs, was not a reasonable application of its Vaccination and Accommodation Policies.  The Defendant’s evidence did not explain why the Plaintiff’s information was insufficient, why her safety concerns overrode her religious objections or what she could have done to qualify for an exemption.  Furthermore, the Defendant failed to ask for additional or clarifying information and never explained its rationale in this regard, notwithstanding the ultimate consequences of its refusal.

[…]

[81] The Defendant has the burden to prove just cause based on a breach of the Vaccination Policy.  As the Defendant failed to properly consider the Plaintiff’s request for a religious exemption under the Vaccination Policy, the Defendant cannot establish that it had just cause to terminate her employment for subsequently failing to comply with the policy. 

While Justice Argento did rely (above) on the principles from Syndicat v Amselem in order to assess the reasonableness of the defendant’s application of its policy, he pointed out that the Court did not need to consider if the failure to provide a religious exemption was also discriminatory per se:

[82] In light of this finding, it is not necessary to decide if the refusal to grant the Plaintiff’s religious exemption was also discriminatory.  The issue in this case is whether the Plaintiff was wrongfully terminated for not complying with the Vaccination Policy after her exemption request was denied.  Whether there was discrimination per se would not impact the Court’s conclusion that the defence of just cause has not been proven.      

The Court then went further, providing analysis on whether there would have been just cause if the defendant’s application of its policy had been reasonable, concluding there would not have been just cause because it was disproportionate in the circumstances: she had been working from home for some time and there was nothing suggesting she could not have continued to do that without compromising safety concerns.

There was also a termination clause in the plaintiff’s employment contract, which the employer tried to rely on in order to limit her notice entitlements.  The Court found that the plaintiff employee had agreed to this clause limiting her entitlements on termination without cause, but found the employer could not rely on the clause because it had not paid her for termination without cause.

The employee was awarded 11 months of reasonable notice (severance), but her claims for aggravated and punitive damages were dismissed.

My Take

This case is likely to get attention because of the vaccination elements, but to me that is not the most interesting or important part of this case.

This case is important because of the determination that, where discrimination claims and civil claims are inextricably linked, the civil court can (sometimes) properly consider those discrimination claims.  There is significant factual overlap between wrongful dismissal and discrimination claims, but the claims do not always fit nicely in one forum or the other. 

Practitioners and claimants should not assume the civil courts have jurisdiction where discrimination is alleged.  This is a complicated jurisdictional tightrope, and a dangerous one.

Bow River Law provides these regular legal blog articles for the purposes of legal news, education and research for the public and the legal profession.  These articles should be considered general information and not legal advice.  If you have a legal problem, you should speak to a lawyer directly.

Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters.  Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.