SCC Denies WestJet Leave to Appeal – Sexual Harassment Class Action to Proceed in Civil Court
On July 18, 2019, the Supreme Court of Canada denied WestJet’s application for leave to appeal the British Columbia Court of Appeal’s (“BCCA”) decision not to strike a notice of civil claim for a potential sexual harassment class action brought by a WestJet employee.
The issue in this case was whether the Canadian Human Rights Commission and Tribunal has exclusive jurisdiction to hear claims for sexual harassment, in a non-unionized, federal company.
Ms. Lewis’s notice of claim alleges that she was sexually assaulted by a pilot while on a stopover with WestJet in Hawaii.
The Plaintiff Ms. Lewis, a flight attendant for WestJet, filed a notice of action for breach of contract against WestJet for failing to fulfil an “Anti-Harassment” promise contained in her and other employee’s employment contracts. Ms. Lewis proposes to bring a class action on behalf of present and former female flight attendants employed by WestJet who were entitled to this “Anti-Harassment” promise. The proposed class action has not yet been certified.
Ms. Lewis claims that this “Anti-Harassment” promise reflects WestJet’s policies to provide a safe and respectful work environment, to have zero tolerance for harassment or discrimination, and WestJet’s responsibility to ensure that their workplace is free from discrimination and harassment.
WestJet brought an application to strike Ms. Lewis’s notice of civil claim on the basis that the courts lack jurisdiction to hear the dispute because the claim is based on a breach of statutory rights protected by the Canadian Human Rights Act and the Canada Labour Code, which are properly within the jurisdiction of the Canadian Human Rights Tribunal.
The BCCA’s Decision
The BCCA denied WestJet’s application to strike stating that it is not plain and obvious that the action does not disclose a cause of action within the court’s jurisdiction, namely because an employment contract is a recognized source of legal rights grounding remedies for a breach in the civil courts, and nothing in the relevant statutes ousted the jurisdiction of the courts.
The BCCA anchored their decision in the fact that her claims for damages for breach of contract for failure to prevent sexual harassment, were rooted in a wrongful dismissal claim, and were not her only cause of action claimed. Thus distinguishing Ms. Lewis’s case from the decision in Seneca College of Applied Arts & Technology v Bhadauria,  2 SCR 181.
The SCC’s decision to deny leave to appeal, means that Ms. Lewis’s claim can now proceed in the civil courts. The next step in her claim is class certification which is crucial in determining how this claim will proceed. Stay tuned, as this will be a case to watch!