Court Denies WestJet’s Attempt To Dismiss Harassment Lawsuit
A lawsuit, Lewis v. WestJet Airlines Ltd, 2017 BCSC 2327 (CanLII) commenced by a former WestJet flight attendant against her former employer will be proceeding despite efforts by WestJet to have the case dismissed. WestJet brought an Application to Strike the Notice of Civil Claim brought by Mandalena Lewis, who proposed to bring a class-action lawsuit on behalf of “present and former female flight attendants employed by WestJet who were entitled to the benefit of the company’s Anti-Harassment Promise”, which Lewis claimed was not followed by WestJet.
In its Application, WestJet sought to have the Notice of Civil Claim dismissed on the basis that it was unnecessary and should be properly brought before the Canadian Human Rights Tribunal and the various provincial Workers’ Compensation Boards.
The Notice of Civil Claim states:
… that WestJet expressly sets out an anti-harassment policy (“the Anti-Harassment Promise”) in its contract of employment which the plaintiff entered into with them. The contract assures employees that the workplace is free of harassment. The contract requires all WestJet employees to comply with a prescriptive Code of Conduct that prohibits harassment. That includes: physical or sexual assault, unnecessary or unwelcome physical contact, and any other action that may reasonably be perceived as offensive or disrespectful.
The contract of employment also promises that Westjet will treat all complaints seriously, will respond promptly to ensure a quick and fair resolution, and will impose sanctions and discipline.
The Claim goes on to outline a series of events that the plaintiff and other flight attendants had been subjected to, including sexual assaults by WestJet staff, in which WestJet allegedly ignored or failed to properly investigate. The plaintiff alleges that WestJet’s failure to honour its own Anti-Harassment Promise was systemic and resulted in physical, emotional and psychological trauma. The plaintiff alleges that the failure of WestJet to comply with its own policies is a breach of their employment agreement with the plaintiff. The plaintiff was terminated from her employment with WestJet, for cause, in January 2016 for insubordination.
In its response to the Notice of Civil Claim, WestJet argued that the Notice of Civil Claim was predicated on concerns regarding alleged gender-based discrimination and harassment of female flight attendants by male WestJet employees, specifically pilots. The Claim should therefore be adjudicated before the Canadian Human Rights Tribunal, as it is an abuse of process to have the matter heard by the Courts. WestJet argued that the plaintiff has converted an obvious claim for discrimination into a breach of contract to avoid the relevant administrative boards established to deal with such matters.
The Court held that the plaintiff’s cause of action was based on breach of the employment agreement by the defendant, not strictly an interpretation of the defendant’s Anti-Harassment Promise. Accordingly, by predicating the claim as a breach of contract, it was within the court’s inherent jurisdiction for determination. Had WestJet been able to establish that the claim was based in an employment statute, or was a claim for discrimination or harassment, then the Application to Dismiss the Notice of Civil Claim would have likely been successful.