WestJet has appealed the December 2017 decision of the Supreme Court of British Columbia in Lewis v. WestJet Airlines Ltd. in which the Court refused to strike a proposed class action filed on behalf of present and former female flight attendants. The claim alleges that female staff were entitled to the company’s “Anti-Harassment Promise” and that WestJet breached their employment contracts by failing to provide a workplace free from sexual harassment.
WestJet’s application to strike the proposed action was based largely on the basis that the complaint ought to have been brought before the Canadian Human Rights Commission, which has exclusive jurisdiction over allegations of gender-based discrimination. While the Court did indicate the claim for damages in the proposed action was misconceived insofar as it was based on discrimination or personal injury resulting from discrimination, it found that it was not plain and obvious that the claim for breach of contract had no reasonable prospect of success.
This is not the first attempt to certify a class action on the basis of a breach of an employment contract resulting from sexual harassment and discrimination. In the 2015 Ontario case of Davidson v. Canada (Attorney General), a female former RCMP officer sued on the basis that sexual discrimination and harassment of female officers and civilian members amounted to a breach of the employment contract. That portion of the claim was struck, however, since members of the RCMP were appointed and the employment relationship was therefore statutory and not contractual in nature.
While we await the outcome of WestJet’s appeal, employers may want to take note of these attempts to certify class actions for breach of employment contracts on the basis of discrimination. Until there is greater clarity, employers that fail to provide a workplace free from harassment may expose themselves to bad publicity, costly litigation and, potentially, an award of damages.