Class Actions, Workplace Harassment, and Discrimination Disputes: a Case Study of Lewis v Westjet Airlines LTD

AuthorJessica Park
PositionJD candidate at Peter A. Allard School of Law
Class Actions, Workplace Harassment, and
Discrimination Disputes: A Case Study of Lewis v
WestJet Airlines Ltd
Jessica Park
: Lewis v WestJet Airlines Ltd (Lewis) is the most recent decision
to conclude that class actions are not preferable to the Canadian Human
Rights Tribunal (CHRT) in resolving claims arising from workplace dis-
crimination and harassment. Lewis has profound implications for class
counsel and federally regulated industries as class actions may no longer
be available for any claims that the CHRT has shared jurisdiction over.
After reviewing the procedural and remedial provisions under the Can-
adian Human Rights Act (CHRA), I found that the CHRT is incapable of
overcoming barriers faced by employees in pursuing claims of workplace
discrimination and harassment. Class actions, on the other hand, are
equipped with various f‌inancial resources for claimants, addressing the
economic barrier to access to justice. Also, class actions obviate the need
for requiring every employee to participate in the dispute resolution pro-
cess and therefore minimize re-traumatization of victims, a psychological
barrier to access to justice.
The CHRT cannot adequately manage a massive number of dis-
crimination claims brought against the same employer as envisioned by
McLachlin CJ in Hollick v Toronto (City). The aggregation of complaints,
which enables the creation of a settlement that binds the entire class, is
what makes a class action work, and that mechanism is not available in
the CHRT process. As such, Lewis, to the extent that it undermined these
practical problems with the CHRT, was wrongly decided. Ultimately, I
suggest that the coexistence of the CHRT and class action regimes will
best achieve the goal of access to justice.

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