A case comment on Lewis v. WestJet Airlines Ltd, 2022 BCCA 145
The British Columbia Court of Appeal (BCCA) recently clarified the “preferable procedure” analysis for certification motions in Lewis v WestJet Airlines Ltd, 2022 BCCA 145 (Lewis). In Lewis, the BCCA disagreed with the certification judge’s conclusion that a human rights complaint was the preferable procedure to resolve claims that a defendant airline breached anti-harassment commitments in the class members’ employment contracts.
Lewis provides several important takeaways for class action lawyers and employers. First, an employer’s failure to uphold anti-harassment workplace policies may leave them vulnerable to class action lawsuits. Second, defendants proposing an alternative procedure to a class action on a certification motion must show that the alternative provides class members with substantive and procedural access to justice. Finally, Lewis confirms that plaintiffs seeking to certify the remedy of disgorgement as a common issue must provide a class-wide methodology for calculating aggregate damages.
The plaintiff’s claim and the certification judge’s decision
In Lewis, the plaintiff advanced a single cause of action on behalf of current and former flight attendants employed by WestJet: breach of the WestJet’s anti-harassment commitments in class members’ employment contracts. These commitments included fostering a safe and respectful work environment and investigating and addressing harassment complaints. Consistent with the breach of contract claim, the plaintiff sought disgorgement of the monetary value of the benefits that WestJet accrued in failing to implement the anti-harassment commitments, rather than general or compensatory damages (which are typically sought for tort claims). The plaintiff’s claim also repeatedly stated it did not rely on WestJet’s statutory breaches.
On certification motions, the plaintiff must establish some basis in fact for each of the statutory certification criteria set out in section 4(1) of the Class Proceedings Act (CPA), with the exception of the requirement that the claim discloses a reasonable cause of action. Thus, the plaintiff must show some basis in fact for the requirement that a class action is the “preferable procedure for the fair and efficient resolution of the common issues” with regard to the factors set out in section 4(2) of the CPA.
While the certification judge considered the preferable procedure criteria in section 4(2) of the CPA, the analysis focused on the remedial jurisdiction of the Canadian Human Rights Commission (the Commission) and the Canadian Human Rights Tribunal (the Tribunal) under the Canadian Human Rights Act. Ultimately, it was concluded that a human rights complaint was a reasonably available means of resolving the class members’ claims and that this alternative procedure would achieve more practical and efficient substantive and procedural justice for class members than a class proceeding. Accordingly, the plaintiff’s certification motion was denied.
The BCCA disagreed with the certification judge’s conclusions on preferable procedure and allowed the appeal, certifying the proposed class proceeding. The BCCA found that the certification judge made three errors in the preferable procedure analysis. First, the certification judge mischaracterized the claim as advancing systemic harassment based on statutory standards instead of the breach of specific contractual terms. Second, the certification judge concluded that a human rights complaint would provide “systemic relief” to class members. However, the plaintiff did not seek “systemic relief” but redress for individual class members. Additionally, a human rights complaint would only provide compensation for class members who actually suffered discrimination, which was narrower than the plaintiff’s proposed class (which was defined as: “present and former female flight attendants employed by WestJet who were entitled to the benefit of the “Anti‑Harassment Promise”). Finally, the certification judge improperly concluded that a human rights complaint was a preferable alternative to a class action.
The BCCA confirmed that the court must consider: (i) whether the class action has the potential to address a limitation period; (ii) the extent to which the alternative procedure addresses the potential barrier of a limitation period; and (iii) how the two proceedings compare. Ultimately, a human rights complaint was determined not to be preferable in Lewis because: (i) it had a one-year limitation period, which expired for the representative plaintiff and potentially other class members; (ii) the Tribunal and Commission had the jurisdiction to decline complaints; (iii) there was no prior instance where human rights complaints were adjudicated on a group basis; and (v) a human rights complaint would not provide anonymity (unlike a class action), giving rise to a fear of reprisal for class members.
The BCCA also considered and upheld the certification judge’s decision, refusing to certify the amount the defendant would have to disgorge as a common issue. The certification judge concluded that the plaintiff needed to show a methodology for calculating disgorgement on a class-wide basis. The BCCA concluded that the disgorgement remedy constituted aggregate damages and the plaintiff’s failure to provide any realistic methodology for ascertaining those damages precluded certification of this common issue.
Significance and key takeaway
Lewis demonstrates the importance of properly characterizing claims on certification when considering alternative procedures on certification motions. An alternative procedure must address procedural and substantive access to justice for class members in order to be considered preferable. Additionally, courts are wary of alternative procedures that pose limitation period issues for class members, or raise fear of reprisal for class members.
Lewis also clarifies that the remedy of disgorgement is considered an award of aggregate damages and requires that plaintiffs provide a methodology for calculating damages on a class-wide basis on certification motions.
Please reach out Marina Sampson, Matthew Fleming or Rabita Sharfuddin for more information or assistance in properly characterizing claims on certification when considering alternative procedures on certification motions.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 36.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 84.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at paras 108-109.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 109.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 129.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 144.
 Lewis v WestJet Airlines Ltd, 2022 BCCA 145 at para 160.