|On July 28, 2021, your Union filed a policy grievance CHQ-21-13 – COVID-19 Leave of Absence (To view click HERE). Today, your Union filed a motion for an interim order directing Air Canada to cease and desist from:
· denying members’ statutory entitlement to take COVID-19-related leaves under section 239.01 of the Canada Labour Code;
· demanding members provide documentation to substantiate the COVID-19-related leave in violation of section 239.01 of the Canada Labour Code and Canada Labour Standards Regulations; and
· refusing to process COVID-19-related leaves beyond September 25, 2021 in violation of the Canada Labour Code and Canada Labour Standards Regulations.
The Union submits it is entitled to an interim cease and desist order until a determination on the merits of the case is rendered for the following reasons:
The Case on the Merits is Arguable and Favours Interim “Cease and Desist” Order
In breach of its statutory obligations to grant a job-protected unpaid leave of absence under s. 239.01 of the Code, since July 2021, the Company has denied all but one COVID-19-related leave to the Union’s members at first instance. Moreover, Air Canada has required eligible members to provide supporting documentation to substantiate the leave notwithstanding that there is no statutory obligation for employees to provide anything beyond a “written declaration” if the employer requires one. Indeed, the Code explicitly provides that an employer may require a written declaration. There is no dispute that completing the request form on the online kiosk satisfies the written declaration criteria under s. 239.01(8) of the Code. The Company’s broad and excessive demands for confidential and private information and documentation of the member and/or their family members constitutes an unreasonable and unjustified breach of privacy rights of members and their family members.
Air Canada is unreasonably frustrating our members’ right to access their statutory entitlements under the Code. In doing so, it has unreasonably aggravated the circumstances of members already facing hardship because of COVID-19. Without a doubt, Air Canada has breached its statutory obligations under the Code and is discriminating against members contrary to the Canadian Human Rights Act.
Balancing of Harm to Both Parties Favours Interim “Cease and Desist” Order
There is no remedy that can provide members the timely leave they require as a result of the COVID-19 pandemic. The personal COVID-19 leave or caregiving COVID-19 leave is time-sensitive and it cannot be remedied with unpaid leave at a later date. Indeed, the federal government has indicated that the COVID-19-related leave Code provisions will be repealed by no later than November 20, 2021. This is not a situation where retroactive redress is appropriate or even possible.
Further, it is settled law that putting privacy interests at risk constitutes irreparable harm. In this case, in the absence of a statutory requirement, the Company refuses to grant members access to their statutory leave entitlements unless the member submits confidential and private information and documentation to an unidentified entity at email@example.com. The Company has not taken any steps to protect the privacy interests of members and members’ families notwithstanding that it is not entitled, statutorily or otherwise, to the members’ confidential and private documentation. Once the information is on Air Canada’s servers, there is simply no way of eliminating knowledge of it. The Supreme Court of Canada has repeatedly recognized that this type of harm is irreparable, specifically that “loss of that privacy interest would, in itself, constitute irreparable harm”. Further, “privacy, once lost, cannot be regained”.
The Code provisions for COVID-19 leaves will be repealed by no later than November 20, 2021. Without a cease and desist, the members’ statutory entitlement to access the time-sensitive leaves will be meaningless.
The Union is aware that some members have reached out to the Labour Program:
We do request that you advise the Union on your communications with the Labour Program, and that you cc Component on any written communication.