In Lewis v WestJet Airlines Ltd.1, the Supreme Court of British Columbia (the Court) declined to certify a proposed class action alleging workplace sexual harassment of female flight attendants at WestJet Airlines Ltd. (WestJet). Justice Horsman held that a class action was not the preferable procedure for resolving the claim and suggested that the Canadian Human Rights Tribunal (CHRT) would be a more appropriate venue for hearing the complaint.
WestJet had previously failed in its attempt to have the claim struck on the basis that the action should be brought before the CHRT. The Supreme Court of British Columbia and the Court of Appeal rejected WestJet’s argument, and the Supreme Court of Canada declined to review the issue2.
The plaintiff’s claim is unique in the context of sexual harassment class actions because it was based in contract, not tort law. But for the issue of preferable procedure, the Court was prepared to certify the contract claim as a common issue. This serves as a useful reminder to employers that harassment and discrimination claims could be framed as breach of contract actions, making contractual remedies potentially available to successful plaintiffs.
What you need to know
- This action was better suited for the Canadian Human Rights Tribunal. Despite the Court’s willingness to certify most of the plaintiff’s proposed common issues, a class action was not the preferable procedure for this claim. The complaint process under the Canadian Human Rights Act (CHRA) would allow for a more practical and efficient adjudication of the issues, particularly given the specialized nature of the CHRT and the broad range of remedies available to complainants.
- Failure to adhere to harassment and discrimination policies may give rise to claims for breach of contract. The plaintiff argued that WestJet’s commitments to protecting employees from harassment were contractual commitments to the proposed class members, as WestJet’s “Anti-Harassment Promise” was expressly incorporated into individual contracts of employment. This is an important reminder to employers that company policies regarding sexual harassment and discrimination may constitute terms of contract with employees. Employers should be aware of their policies and whether such policies are incorporated into their employment contracts, and ensure they are adhering to those policies in practice. By failing to do so, employers may make themselves vulnerable not only to tort and human rights claims, but also to breach of contract actions.
- Contractual claims could entitle employees to seek contractual remedies. By basing her claim in contract, the plaintiff was able to seek the contractual remedy of disgorgement of profits. WestJet argued that the recent Supreme Court of Canada decision Atlantic Lottery Corp. Inc. v. Babstock3 narrowed the availability of disgorgement as a remedy for breach of contract. However, Justice Horsman was nevertheless willing to certify entitlement to disgorgement of profits as a common issue, affirming that “the issue of the availability of disgorgement as a remedy depends on whether the usual contractual remedies are inadequate and whether class members have a legitimate interest in preventing the defendant’s profit-making activity”4.
Mandalena Lewis was employed as a flight attendant at WestJet between March 2008 and January 2016. She alleged that, during her employment, she observed and experienced a range of inappropriate conduct, largely from pilots directed towards female flight attendants. In particular, she said she was sexually assaulted by a WestJet pilot during a layover in Maui, Hawaii in January 2010.
Ms. Lewis alleged that WestJet’s investigation of the assault was inadequate: she was given limited information about the investigation process and told that she could be disciplined if she spoke to anyone about the incident. WestJet managers eventually told her that the pilot’s employment was not terminated as a result of the investigation, but that restrictions would be placed on his ability to fly to certain destinations and she would not be scheduled to work with him. In August 2015, the plaintiff stated that she learned that another female flight attendant had also been assaulted by the same pilot in 2008. Ms. Lewis alleged that if WestJet had properly investigated her colleague’s complaint and disciplined the pilot, she would not have been assaulted.
WestJet had taken steps to implement various policies and procedures designed to promote a safe and respectful workplace for its employees. These included a Code of Business Conduct, Respect in the Workplace Policy and Procedure, and Workplace Violence Prevention Policy and Procedures. WestJet’s “Anti-Harassment Promise” was expressly incorporated into the individual contracts of employment between WestJet and its employees.
The plaintiff’s claim is unique in the context of sexual harassment class actions because it was based in contract, not tort law. Ms. Lewis alleged a systemic breach of contract that did not, on the plaintiff’s theory, depend on proof of harm by any individual class member. She argued that WestJet made contractual commitments to establish policies and practices that were adequate to provide class members with a harassment-free workplace but failed to do so. Accordingly, the plaintiff sought the contractual remedy of disgorgement of profits, calculated as the cost savings to WestJet in failing to develop and implement adequate anti-harassment policies and practices.
WestJet had already vigorously opposed Ms. Lewis’ claim in the pre-certification application to strike. It argued that the plaintiff’s claim did not disclose a cause of action, the court’s jurisdiction was impliedly ousted by human rights and labour statutes, and that disgorgement was plainly and obviously not a remedy in a claim of this nature. These arguments were dismissed by the B.C. Supreme Court and the B.C. Court of Appeal, with the Supreme Court of Canada declining to review the decision5. The Court’s decision in this case at the certification stage, which canvassed many of the same issues as WestJet’s earlier motion to strike but reached a different outcome, serves an important reminder that courts are increasingly unwilling to resolve preliminary motions to strike, dismiss or narrow claims in advance of certification.
The Court’s decision
Justice Horsman certified all but one of the proposed common issues in Ms. Lewis’ claim. However, the plaintiff’s failure to meet the preferable procedure criterion meant the case was not amenable for certification and the motion to certify was dismissed.
Common issues analysis
At the heart of the plaintiff’s proposed common issues was the question: did WestJet fail to implement and enforce the Anti-Harassment Promise throughout the class period and, in doing so, breach class members’ employment contracts?
WestJet argued that this question could not be answered on a class-wide basis because there was no objective standard by which WestJet’s conduct could be measured. Moreover, any instances of wrongdoing were inherently individual. The plaintiff argued that individual outcomes were only indirectly relevant because the plaintiff’s allegation was not that WestJet failed to prevent harassment in the workplace, but rather that WestJet failed to take meaningful steps to implement an effective system to address and prevent workplace harassment as it had contractually promised to do. The Court agreed with the plaintiff. All class members were entitled to the benefit of the Anti-Harassment Promise, regardless of whether they may have individually experienced harassment in the workplace.
Preferable procedure analysis
Despite the Court’s willingness to certify all but one of the common issues, Ms. Lewis’ claim failed to satisfy the “preferable procedure” analysis. The Court held that there were more practical and efficient means for class members to achieve substantive and procedural justice than through a class action. Most notably, class members could pursue systemic and individual remedies under the Canadian Human Rights Act (CHRA).
A human rights complaint would give class members access to a wider range of potential remedies. In addition to systemic remedies, class members could seek individual remedies in the form of compensation for, among other things, wage loss and pain and suffering. Moreover, section 53(2)(a) of the CHRA provides that the CHRT may order a person or entity who has engaged in a discriminatory practice to take measures to “redress the practice or to prevent the same or a similar practice from occurring in the future”. The expertise of the tribunal would also likely obviate the need for expert reports on effective workplace harassment policies that the plaintiff anticipated filing as a central component of the common issues trial.
The Court’s decision in Lewis v. WestJet is an important reminder for employers that failure to adhere to harassment and discrimination policies may give rise not only to tort and human rights claims, but also to claims for breach of contract where those policies are incorporated into the terms of employment agreements. Employers should be aware of their policies and whether such policies are incorporated into their employment contracts, and ensure they are adhering to those policies in practice.
Although complaints of sexual harassment and discrimination can sometimes appear as isolated incidents, this case demonstrates that they may be reflective of systemic problems in the workplace. Reported complaints can be just the tip of the iceberg, with many employees declining to raise issues of sexual harassment and discrimination, either due to concerns about job security or a belief that management won’t take meaningful steps to address the behaviour. Therefore, to best protect the organization and its employees, employers should take a proactive approach to enforcing sexual harassment and discrimination policies in the workspace, including through regular training sessions, active whistleblower programs, and proactive investigation processes.
1 Lewis v WestJet Airlines Ltd., 2021 BCSC 228
2 Lewis v. WestJet Airlines Ltd, 2017 BCSC 2327, aff’d 2019 BCCA 63, leave to appeal refused  SCCA No. 118
3 Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19
4 Lewis v WestJet Airlines Ltd., 2021 BCSC 228 at para. 110
5 Lewis v. WestJet Airlines Ltd, 2017 BCSC 2327, aff’d 2019 BCCA 63, leave to appeal refused  SCCA No. 118
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