Court Declines WestJet Sexual Harassment Class Action

• Published date: 15 March 2021
• Subject Matter: Employment and HR, Contract of Employment, Discrimination, Disability & Sexual Harassment, Employee Rights/ Labour Relations
• Law Firm: Torys LLP
• Author: Ms Lisa Talbot, Sarah E. Whitmore and Morag McGreevey

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...