Court Of Appeal Certifies WestJet Sexual Harassment Class Action

• Published date: 28 April 2022
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Class Actions
• Law Firm: Torys LLP
• Author: Ms Sarah E. Whitmore, Irfan Kara, Morag McGreevey and Rebecca Amoah

In Lewis v. WestJet Airlines Ltd.¹, the British Columbia Court of Appeal certified a class action concerning the alleged workplace sexual harassment of female flight attendants at WestJet Airlines. The decision reversed a 2021 Supreme Court of British Columbia decision declining certification².

The Supreme Court of British Columbia was prepared to certify the plaintiff's claim for breach of contract as a common issue but declined certification on the basis that the claim failed the preferable procedural criterion. The certification judge held that the action was better suited for the Canadian Human Rights Tribunal (CHRT). Our summary of the case and analysis of the Supreme Court of British Columbia decision can be found here.

The Court of Appeal determined that the certification judge's preferability analysis failed to consider all of the factors under section 4(2) of British Columbia's Class Proceedings Act (CPA)³ and that a class action was in fact the preferable procedure for resolving the claim. The Court's decision suggests that, at least in British Columbia, the preferability analysis may turn on access to justice concerns regarding a procedure's jurisdiction to respond to the claim as pled, and the availability of the remedy sought.

What you need to know

• In British Columbia, to be preferable, an alternative procedure must be responsive to the claim as pled and be capable of providing the relief sought. For claims related to discrimination or harassment that allege breach of contract, a class proceeding may be preferable to a proceeding before a tribunal that may not have jurisdiction to consider contractual claims or award monetary compensation.
• Non-monetary systemic remedies are not a substitute for monetary compensation. The Court of Appeal disagreed with the certification judge's contention that systemic remedies directed at policy change and behaviour modification would achieve the claimant's objective, which is to secure monetary relief for class members.
• A class action may be certified against an employer who fails to meet certain contractual commitments without evidence of loss. The Court of Appeal accepted the appellant's argument that a remedy of disgorgement of profits for breach of contract was available without proven damages, despite the claim involving individual allegations of discrimination and harassment Notwithstanding that no losses were pled, the Court certified this claim because, consistent with Atlantic Lottery Corp. Inc....