Westjet FA Wins Appeal, Can Proceed with Class Action Lawsuit Over Sexual Harassment

[deicer]

Former WestJet flight attendant hails ‘history making’ decision to allow class action lawsuit

VANCOUVER—A former WestJet flight attendant who reported being sexually assaulted by a pilot on a layover — and was subsequently fired for insubordination — has won her appeal in a B.C. court and can now proceed with a class-action lawsuit on behalf of all flight attendants at the company.

Mandalena Lewis proposed the class action in 2017 on behalf of current and former flight attendants at WestJet, which she said has failed to implement anti-harassment programs after she told the company she was sexually assaulted in 2010.

“I feel absolutely relieved. These past three years have been pretty difficult in terms of anticipation,” Lewis told the Star on Thursday morning. “As you’ve seen, WestJet pushed back their own appeal by like an entire year.”

WestJet’s appeal to strike the claim was denied in late 2017. In a decision released Thursday, the B.C. Court of Appeal granted Lewis’ application.

Lewis called it a “history-making” decision.

Court documents filed in March 2016 in B.C. Supreme Court say Lewis was on a stopover in Hawaii in January 2010 when an unnamed WestJet pilot allegedly pulled her onto a hotel bed and proceeded to kiss and grope her. The allegations have not been tested in court.

“(Lewis) was terrified,” reads a statement of claim filed in the case. “She resisted physically, yelling that he stop. ... In her panic, (she) managed to leverage her legs into a position where she was physically able to kick out and push (the pilot) off her.”

After returning to her room, the document says, “she vomited, cried, attempted to calm herself without success and barely slept.”

The court document says that after the alleged incident was reported, the Calgary-based company changed Lewis’ work schedule to avoid overlap with the pilot, which left her with fewer working hours. It also alleges she was instructed to keep quiet out of respect for the pilot’s privacy.

In an earlier 2017 email, a WestJet spokesperson said the company “will not comment on ongoing legal proceedings” but said the airline is committed to “a harassment-free workplace” and encourages “our employees to report any behaviour that may violate our policies” through WestJet’s anonymous “whistleblower hotline” or to its leadership directly.

The company had argued unsuccessfully that Lewis should have filed her complaint before human-rights bodies, not the courts.

On July 6 last year, Lewis stood near the U.S./International Departure gate at the airport, wearing a sign and handing out pamphlets about her campaign, #youcrewmetoo, which aims to prevent sexual harassment in the airline industry.

Lewis told the Star last year that a lot of the harassment can be attributed to an industry that prioritizes the needs of pilots over flight attendants.

“The culture is incredibly toxic; the fear is rampant. Pilots are more expensive to train, to get rid of, and frankly it’s less expensive to hire a flight attendant,” she said. “We’re disposable, frankly speaking.”

[Kip Powick]

 

Lewis told the Star last year that a lot of the harassment can be attributed to an industry that prioritizes the needs of pilots over flight attendants.

 

I think what she intended to say, or perhaps it was an error written by the paper, was.....   need for 

 

[blues deville]

Good for Lewis in not giving up the battle. 

[Guest]

https://theairlinewebsite.com/topic/436675-former-wj-flight-attendant-draws-attention-to-sexual-harassment-in-airline-industry/?tab=comments#comment-1720437

 

[internet]

5 hours ago, Kip Powick said:

 

Lewis told the Star last year that a lot of the harassment can be attributed to an industry that prioritizes the needs of pilots over flight attendants.

 

I think what she intended to say, or perhaps it was an error written by the paper, was.....   need for 

 

This kind of a response confirms my interpretation of the original statements intention.

[ILB]

6 hours ago, blues deville said:

Good for Lewis in not giving up the battle. 

Which battle is that, specifically?  Do you have an interest in a particular outcome?

[boestar]

7 hours ago, ILB said:

Which battle is that, specifically?  Do you have an interest in a particular outcome?

we all do

 

[blues deville]

12 hours ago, ILB said:

Which battle is that, specifically?  Do you have an interest in a particular outcome?

Kind of an odd set of questions but if you’ve read any of the details on her case starting with the alleged event in 2010, you would know she has been fighting for her day in court for quite some time. Westjet and their legal team have wanted this to go away but she hasn’t given up. 

As the father and husband of women who have both been sexually harassed in the workplace, yes I do have an interest in the outcome of Lewis’s story.

My wife was an assistant buyer with company headquartered in Toronto and it was her first job after university. Immediately after the incident she walked into the HR office and resigned. They quickly scrambled and moved her to a different department. The person involved was never questioned about any of it and nothing was ever done. 

In my daughter’s case she just quit. Hard to fight/stay when it was the owner of the company. Also her first job out of university and she had no choice but to leave. 

I hope ILB that nothing like Lewis’s case ever happens to anyone you know or care about. It can be devastating and totally destroy you. 

[Vsplat]

Agreed.   The scale of abuse and harassment in the workplace is almost too large to define, which is why cases like this are so often met with disbelief and reframing as entirely part of some other agenda.

IMO, there is importance here that affects nearly everyone, whether employed or not, regardless of gender, race, age or creed.  The common root is the misuse of power and abject entitlement to abuse someone who is vulnerable.  Whether that abuse is sexual harassment,  isolating someone so their concerns are not taken seriously, racial profiling, you name it - it's wrong and inflicts, sometimes life long or life ending harm. 

It gets further complicated when someone who has a secondary agenda also happens to have a valid point.  It is all too easy to see the agenda and dismiss everything.  That has been the path of least resistance for too long.  Perhaps times are changing.  Let's hope.

Vs

[dagger]

23 hours ago, Vsplat said:

Agreed.   The scale of abuse and harassment in the workplace is almost too large to define, which is why cases like this are so often met with disbelief and reframing as entirely part of some other agenda.

IMO, there is importance here that affects nearly everyone, whether employed or not, regardless of gender, race, age or creed.  The common root is the misuse of power and abject entitlement to abuse someone who is vulnerable.  Whether that abuse is sexual harassment,  isolating someone so their concerns are not taken seriously, racial profiling, you name it - it's wrong and inflicts, sometimes life long or life ending harm. 

It gets further complicated when someone who has a secondary agenda also happens to have a valid point.  It is all too easy to see the agenda and dismiss everything.  That has been the path of least resistance for too long.  Perhaps times are changing.  Let's hope.

Vs

Well said. We should recognize that abuse and harassment often limits the ability of people to reach their full potential in the work force. This not only applies to gender, but think of the loss to society as a whole when entire races or classes are put down - i.e. when obstacles are put in their path rather than removed. When I look at our relationship with many first nations communities in places like Thunder Bay, Winnipeg, Saskatchewan, I wonder how many of the damaged kids in those situations might be the ones who could come up with sa cure for cancer or an electricity storage idea that would help us arrest climate change. There is potential in all of us, and behaviour that limits people from possibly realizing their potential diminishes us all. 

[Schooner69]

"This kind of a response confirms my interpretation of the original statements intention."

 

Which was...? 

[Fido]

I think that many here are celebrating something that is not there.

My reading is that the appeal court allowed the CLASS ACTION to go ahead.  I do not see where the lady involved has been awarded anything from Westjet.

 

 

[blues deville]

30 minutes ago, Fido said:

I think that many here are celebrating something that is not there.

My reading is that the appeal court allowed the CLASS ACTION to go ahead.  I do not see where the lady involved has been awarded anything from Westjet.

 

 

I think we are all on the same page. There is no mention of an award. 

[boestar]

no she wasnt awarded anything but at least now the full details of a corporate problem will be brought to light and something will have to be done.  Thats a positive in any book

 

[UpperDeck]

It is my understanding that Westjet attempted to strike out the claim on the grounds that the Courts had no jurisdiction over the subject matter. They were unsuccessful and appealed. The appeal was dismissed.

An application was made to certify the action as a class action. In my opinion, that was tenuous since assaults are by definition personal. The application was denied. The denial was appealed and the Court of Appeal agreed that the action could be certified as a class action.

That's as far as the action has proceeded. I suggest that the intent of the plaintiff is focussed on spotlighting the alleged corporate culture that allows sexual harassment to thrive so as to effect change in that culture. If her concern was simply with damages, she need not have pursued certification which in this case simply complicates the process and delays resolution.

[Guest]

an update:

Supreme Court won’t hear WestJet appeal in harassment case

News provided by CityNews.ca – link to full story

By The Canadian Press – 18 July 2019

WestJet Airlines has lost a legal bid to put an end to a proposed class-action harassment lawsuit.

The Supreme Court of Canada refused today to hear WestJet’s arguments to quash the suit launched by a former flight attendant.

Mandalena Lewis alleges she was sexually assaulted by a pilot while on a stopover in Hawaii in 2010 and that the airline breached its anti-harassment promise in her contract.

Her lawsuit proposes to represent all current and former female WestJet flight attendants whose employment contracts included the airline’s pledge.

The airline failed in the B.C. courts to scuttle the action, prompting it to argue the Supreme Court could provide clarity on whether a court or the Canadian Human Rights Commission is the proper forum for systemic sexual harassment allegations.

Following its usual practice, the high court gave no reasons for refusing to hear the case.

[Guest1]

Judge dismisses class-action harassment suit against WestJet

22 February 2021Canadian Aviation News

From Vancouver Sun – link to source story

THE SUIT ARGUED THAT FEMALE FLIGHT ATTENDANTS ARE A PARTICULARLY VULNERABLE CLASS OF EMPLOYEE GIVEN THE POWER IMBALANCE WITH PILOTS, WHO ARE MOSTLY MEN.

Keith Fraser  •  Feb 23, 20213

The claimant alleged that WestJet made contractual commitments to establish policies to protect against harassment, but failed to follow through on those promises. PHOTO BY NATHAN DENETTE /THE CANADIAN PRESS

A B.C. judge has declined to certify a class-action lawsuit alleging that WestJet failed to implement effective policies to protect female fight attendants from workplace harassment.

Mandalena Lewis, the representative plaintiff in the case, argued that female flight attendants are a particularly vulnerable class of employee given the power imbalance with pilots, who are mostly men.

 

Lewis, who was employed as a flight attendant at WestJet between 2008 and 2016, said she had observed and experienced a range of conduct, largely from pilots directed toward female flight attendants, that had the effect of humiliating, offending, degrading or intimidating women.

She said that the airline cultivated a “frat boy” culture where flight attendants were routinely expected to tolerate sexually inappropriate behaviour. She herself was sexually assaulted by a pilot during a layover in Maui in January 2010, she said.

The airline alleges it had cause to terminate her employment in 2016 as a result of her disciplinary history and acts of insubordination. In addition to the class-action lawsuit, she has filed a wrongful-dismissal suit.

In any class-action, a judge is required to consider a number of criteria before deciding whether to certify the case.

In her ruling in the case, B.C. Supreme Court Justice Karen Horsman concluded that the plaintiff had met the criteria in all but one category — whether a class-action suit was the preferable procedure for the fair and efficient resolution of the issues in the case.

The judge noted that Lewis had amended her lawsuit in a novel and complex way, alleging a systemic breach of contract by WestJet that did not depend on proof of harm by any individual class member.

Lewis alleged that WestJet made contractual commitments to establish policies to protect against harassment, but failed to follow through on those promises.

She sought a remedy of a payment of profits, calculated as the cost savings to WestJet in failing to develop and implement its anti-harassment policies and practices.

Lewis claimed that a class-action lawsuit was the preferable and only realistic procedure for the adjudication of the claim.

But WestJet, which claimed that none of the criteria for a class-action suit had been established, argued that there were alternative forums available, including the Canadian Human Rights Tribunal (CHRT).

The plaintiff argued that the tribunal had no jurisdiction to issue a systemic remedy that would address WestJet’s alleged past failures to live up to its promises, but the judge said it was not evident to her that that was the case.

“It seems to me that it would be open to the plaintiff, and potential class members, to seek a systemic remedy from the CHRT that redressed such an entrenched past pattern of discrimination,” said the judge. “I accept that the remedy may not precisely equate to contractual damages in the form of disgorgement of costs savings. However, I do not understand the jurisprudence on preferable procedures to require that sort of equivalence.”

The judge concluded that there were other reasonable means for class members to achieve justice that are more practical and efficient than a class-action proceedings.

In addition to the CHRT, class members currently employed by WestJet can seek remedies through collective bargaining, including potentially for retroactive grievances, she said.

In an email, Karey Brooks, a lawyer for Lewis, said she was seeking instructions from her client on whether to appeal the ruling.

Brooks noted that the court found Lewis had met all but one of the certification criteria and emphasized that her client’s position was that the human rights tribunal lacked jurisdiction to grant a remedy.

 

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[Airband]

Quote

WestJet objects to the admissibility of Ms. Monchalin’s affidavit given its unreliable methodology. It appears that Ms. Monchalin’s methodology did not include the verification of the identity of any individual that she interviewed, or even verification of their status as a current or former WestJet employee. Ms. Monchalin was connected with the interviewees by the law firm representing the plaintiff, and she states that “[a]ll participants remained anonymous during the interview process”. There is no way of knowing, even assuming that the interviewees are current or former employees of WestJet, whether they were employed during the class period.

A deep in the weeds look at some of the arguments presented.

Lewis v. WestJet Airlines Ltd - 2021 BCSC 228