Class Actions, Workplace Harassment, and Discrimination Disputes: A Case Study of Lewis V Westjet Airlines Ltd

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 discrimination 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 Canadian 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 process and therefore minimize re-traumatization of victims, a psychological barrier to access to justice. The CHRT cannot adequately manage a massive number of discrimination 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.