Evidence and legal test
The hearing proceeded on the basis of detailed written “will‑say” statements and cross‑examinations conducted by videoconference, supported by dozens of exhibits. The seven pilots testified at length about their Christian faith and how it shaped their objections to COVID‑19 vaccination, including beliefs about the body as a temple of the Holy Spirit, opposition to abortion and the use of fetal cell lines, and the role of conscience as an expression of God’s will.
Hayes found the pilots to be truthful witnesses, stating that there was “no question of personal integrity” and that their testimony “was given honestly in my estimation.” He wrote that their evidence was delivered “without apology, embarrassment, reservation, or hint of proselytization,” and that there was “no indication that their testimony was contrived or tailored in any way to conceal or advance an improper objective.”
Air Canada’s Workplace Accommodation Manager, Sam Eichenwald, who had determined more than 500 exemption requests across several bargaining units, also testified. Hayes said he was “quite satisfied that he did his best in the circumstances, acting in good faith throughout,” but nevertheless examined the structure of the employer’s exemption process.
Findings against Air Canada and order
Hayes framed his analysis under the Supreme Court of Canada’s Amselem decision, which focuses on an individual’s sincerely held, subjective religious belief and its nexus to the practice in question. He noted that “the jurisprudential landscape with respect to exemptions on the grounds of religion/creed in the context of a mandatory COVID‑19 vaccination policy is well‑established.”
The arbitrator found that the religious objections of the seven pilots “were never hidden” and that they “complied with employer requests from the beginning.” He concluded that “if focus had remained on the Amselem baseline ‘subjective religious belief’ requirement without diversion – Air Canada should have allowed their requests for religious exemption from the start.”