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

• Author: Jessica Park
• Position: JD candidate at Peter A. Allard School of Law
• Pages: 157-186

157

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.