Air Carriers Widely Uneven in Granting Travel Vaccine Mandate Religious Exemptions: Internal Documents

Planes at the Vancouver International Airport in Richmond, B.C., on March 20, 2020. (The Canadian Press/Darryl Dyck)

The power to grant religious exemptions from the travel vaccine mandate that the federal government delegated to air carriers was described by Air Canada as “illegal” and “constitutionally flawed” and led to broad discrepancies on how unvaccinated travellers were treated by different airlines, internal documents reveal.

And although Transport Canada left it up to carriers to decide what constitutes a “sincerely held religious belief,” the department monitored data relating to enforcement of its vaccine mandate for travellers and personnel in the transportation sector.

A Transport Canada briefing package titled “Vaccine Mandate – Reporting Snapshot for ADMs [Assistant Deputy Ministers],” with information up to April 19, was made available recently through a filing with the Federal Court.

The package is associated with the affidavit of Jennifer Little, the Transport Canada official whose team wrote the travel vaccine mandate policy. Little and other government witnesses and experts submitted affidavits and were cross-examined in or around June in relation to four lawsuits challenging the travel mandate.

One briefing slide in the package, titled “Passenger Compliance Overview,” keeps track of how many exemptions were granted by over 70 air carriers under the categories “Essential Care,” “Medical,” and “Religious.”

Under the “KEY POINTS” heading, the slide says Air Canada “has not approved any religious exceptions to date.”

In the next bullet, it says “Westjet reported 50 religious exception requests and 90 granted. Westjet continues to receive the highest number of requests week over week of all entities reporting.”

Another “key point” noted is that WestJet has continued to report no denials of boarding since the start of reporting.

A different slide, titled “Passenger Exceptions Breakdown,” indicates that 872 religious exceptions were granted out of 2,272 requests, with WestJet being responsible for 633 of them.

Other carriers were far behind, with Swoop at 50, KLM Royal Dutch Airlines at 49, and Air Transat at 39. The rate of acceptance and refusal for individual carriers was not provided.

While Air Canada did not appear on the “Top 5 Companies” chart for religious exemptions, having granted none, it came in third for denials across all types of exceptions and modes of transportation. Flair Airlines registered 350 denials, VIA Rail 347, and Air Canada 251.

The travel vaccine mandate put in place by Transport Canada on Oct. 30 did not allow for compassionate exemptions, but it allowed carriers to grant medical and religious exemptions to be compliant with human rights legislation.

The Liberal government suspended the mandate for domestic travel on June 20 but said it could be brought back depending on circumstances.

‘Inevitable Litigation’

Air Canada pushed back against the government’s decision to delegate the responsibility of granting religious exceptions to carriers, warning of potential litigation due to constitutional issues and uneven treatment of travellers. The evidence also shows the airline granted zero religious exemptions as of mid-April.

Some of Air Canada’s concerns were reflected in a letter from the industry association it is part of, the National Airlines Council of Canada, sent to MPs in December and reported on by The Globe and Mail.

“Individual companies in the private sector should not be responsible for determining whether a person’s religious beliefs are ‘sufficient’ to merit an exemption from a federally mandated obligation related to public health, nor do companies have the means to evaluate a person’s religious convictions,” the letter reportedly said.

Concerns specific to Air Canada have now been revealed as part of the travel mandate court documents.

Attached to Little’s affidavit are email letters exchanged between Transport Minister Omar Alghabra and Air Canada’s executive vice president and chief legal officer Marc Barbeau.

In a Nov. 26 letter sent to Alghabra and Justice Minister David Lametti, Barbeau said Air Canada supports the vaccine mandate and accepts that religious exemptions “may be required as a matter of public policy.”

Infrastructure and Communities Minister and Intergovernmental Affairs Minister Dominic LeBlanc, left to right, Transport Minister Omar Alghabra, and Health Minister Jean-Yves Duclos make an announcement on ending vaccine mandates for domestic travellers, transportation workers, and federal employees, in Ottawa on June 14, 2022. (The Canadian Press/Patrick Doyle)

The airline, however, “firmly” submitted that the responsibility for granting religious belief exemptions should not be delegated to air carriers.

“The design of the proposed Interim Order insofar as it relates to the implementation of a religious belief exemption is constitutionally flawed,” wrote Barbeau.

Barbeau said the government needs to retain direct responsibility to ensure the religious freedom of passengers is respected.

He went as far as calling the scheme an “illegal delegation of powers” that would “severely” undermine the vaccine mandate and lead to “inevitable litigation.”

Alghabra’s Response

In a reply to Barbeau on Dec. 3, Alghabra said the delegation of power was not illegal, since Air Canada is subjected to the Canadian Human Rights Act (CHRA).

“Rather than being a delegation of power, the purpose and effect of the provisions referred to in your letter are simply to recognize these obligations imposed on carriers under the CHRA and to provide carriers with sufficient flexibility to accommodate passengers in circumstances where they would legally be required to do so under the Act,” he wrote.

The government had framed its travel vaccine mandate as “unique in the world” in terms of strictness and had made the decision not to allow for compassionate exemptions for people needing to care for a relative or attend a funeral. It allowed carriers to grant exemptions on their own as they are required to respect the CHRA.

Barbeau was not satisfied with Alghabra’s response and sent another letter on Dec. 7.

“The administration of an exemption regime should be handled by a single governmental agency, rather than by various operators who, even in good faith, will not be in a position to do so uniformly, and will lack the necessary information that is available only to the Government to defend any challenges to such exemptions based upon the Canadian Charter of Rights and Freedoms,” he wrote.

Alghabra replied several months later on March 17, outlining the same previously advanced arguments.

Different Approaches

As indicated by Transport Canada data, different carriers charted different courses with regard to granting religious exemptions.

The Epoch Times contacted WestJet for comment on the guiding principles it used to grant religious exemptions at a seemingly much higher rate than other carriers, but a response wasn’t received by publication time.

While Air Canada did not take a public stance against COVID-19 restrictions impacting the industry, WestJet did when pressure was mounting on the federal government this spring.

CEO Alexis von Hoensbroech, who took the helm of WestJet in February, publicly criticized the transportation mask mandate in April, and the vaccine mandate in late May.

“As vaccines are not preventing the spreading of the virus since [Omicron], there is no more logic to maintain it,” von Hoensbroech said on Twitter.

‘Inconsistent’

A veteran lawyer specializing in religion and freedom of conscience says Air Canada was “inconsistent in its reasoning” regarding the granting of exemptions, since it did not protest having to assess medical exemption requests.

“If, as they say, government did not have the authority to delegate the assessment and granting of religious exemptions, then the same can be said for the medical exemptions,” says Barry W. Bussey, CEO of the First Freedom Foundation (Canada).

Transport Canada data from April shows that Air Canada had granted 50 “essential care or emergency” and 170 “medical contraindication” exemptions.

Bussey pointed out that Air Canada has been accommodating religious groups for years by providing meal alternatives, and if it didn’t do so it could be subject to a human rights complaint.

“The result was religious claimants were discriminated against whereas those with medical conditions were not,” Bussey says.

The Epoch Times reached out to Air Canada for comment but didn’t hear back.