All Talk and No Action Can Get You Into Hot Water – Action Against WestJet

Author: Ale Henao, KSW Lawyers Employment & Labour Group (ah@ksw.bc.ca)

In Lewis v WestJet Airlines Ltd., 2021 BCSC 228, 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.

BACKGROUND

In February of 2021, a flight attendant (Plaintiff) brought a court action against WestJet alleging sexual assault and systemic discrimination towards female flight attendants. The Plaintiff asked the court for compensation due to WestJet’s failure to comply with their own “Anti-Harassment Promise” among other workplace policies.

These policies included the Code of Business Conduct, Respect in the Workplace Policy and Procedure, and Workplace Violence Prevention Policy and Procedures. Some of these policies were incorporated right into WestJet’s employment contracts. The plaintiff claimed that WestJet did not abide by these policies nor properly investigate the sexual assault complaint of a pilot’s sexual misconduct. The Plaintiff further stated that the complaint process was ill-equipped to effectively manage harassment and discriminatory reports from any employee. The plaintiff advocated on behalf of current and past WestJet flight attendants in a proposed class action lawsuit for having to endure a discriminatory workplace.  

BREACH OF CONTRACT AND COMPENSATION

At the heart of the matter, the flight attendant felt WestJet was wrongfully saving money by failing to fund and implement adequate anti-harassment policies and practices. This is why the plaintiff was asking the courts for compensation equal to the amount WestJet should have spent on these policies and practices. This type of reparation can be rewarded in exceptional circumstances where other compensation is inadequate and the plaintiff has a legitimate reason in preventing the defendant’s profit-making activity.

The court did confirm that this type of compensation can be used in these types of situations. However, the entitlement to damages was not determined in this case because the court felt the case wasn’t a class action suit but rather something for the Canadian Human Rights Tribunal (CHRT) to sort out.

PREFERABLE PROCEDURE ANALYSIS

When bringing a class action forward, the Class Proceedings Act requires a plaintiff to establish that a class proceeding is the preferable procedure for the fair and efficient resolution of the case. The plaintiff did not meet this bar. Therefore, the court reasoned that the CHRT would allow the plaintiff and claimants a more practical and efficient proceeding to achieve justice. 

The court made reference to the wide range of remedies available under the CHRT. Current WestJet employees could seek remedies through collective bargaining and possibly claim retroactive grievances. Meanwhile, former employees had the option to participate in individual or multi-plaintiff claims. The court balanced these reasonably available remedies against the court’s proceedings, which were anticipated to be complex and time-consuming—ultimately deeming the CHRT more appropriate. 

Although the plaintiff’s application was dismissed, an invitation was made to have the CHRT hear the complaint. That single invitation opened up the door for sexual harassment claims to be heard using a new legal approach. Traditionally, sexual harassment claims fall under tort law but this case has shown that someone can now claim breach of contract if they have been sexually harassed in the workplace.

TAKEAWAYS

So what does this mean for employers?

1. Failure to adhere to harassment and discrimination policies may give rise to claims for breach of contract. The reality is that if companies have anti-harassment policies and practices, they need to ensure compliance and be actively enforcing workplace discrimination and harassment policies, especially policies presented in an employment agreement.

2. 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. This decision 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.

3. Reported incidents of sexual harassment in the workplace can be a signal of systemic problems in the workplace, and are often just the tip of the iceberg. Many employees are scared to report issues due to fear of job security, consequences or lack of action from management. Therefore it is important for employers to take a proactive approach by implementing and enforcing harassment and discrimination policies in the workplace, introducing training sessions and thorough investigations.

As this case shows, the legal world continues to evolve and change every day. Knowing all the details of employment law can become overwhelming for those who are trying to learn about it while running their business. Sometimes talking to a professional with experience and a well-rounded knowledge of the legal arena can be useful. So, if you have any questions on this topic, feel free to get in touch with myself, Ale Henao, anytime.

Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter or drafting of workplace vaccination policy, please contact Ale Henao at ah@ksw.bc.ca.

Ale Henao joined the Employment & Labour Group at KSW Lawyers (Kane Shannon Weiler LLP) in 2020. Ale has a particular expertise in WorkSafeBC and human rights claims, and also practices employment law. Ale’s extensive volunteer experience includes being an executive member of the TRU Black Law Students’ Association and  creating and facilitating content and programs for the West Coast Women’s Legal Education and Action Fund (LEAF).

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