Judge erred in assuming factors favour plaintiff in evaluating class action: B.C. Court of Appeal

All factors should have been properly considered before denying class action against Westjet

Judge erred in assuming factors favour plaintiff in evaluating class action: B.C. Court of Appeal
Failure to enact anti-harassment commitments by airline breach of contract

The British Columbia Court of Appeal has ruled that a judge must consider all the factors in the preferability analysis in a class certification proceeding and not merely assume that some factors favour certain parties.

In Lewis v. WestJet Airlines Ltd., 2022 BCCA 145, Mandalena Lewis applied to certify her case as a class action under the Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA). She alleged that Westjet breached its employment contracts when it failed to create and enforce the anti-harassment commitments.

However, the certification judge rejected the application, ruling that Lewis failed to prove that certification is the preferable procedure for the resolution of the common issues raised. She also ruled there were “other reasonably available means for class members to achieve substantive and procedural justice that [were] more practical and efficient than a class proceeding,” such as a human rights complaint under the Canadian Human Rights Act, R.S.C. 1985, c. H‑6 (CHRA) before the Canadian Human Rights Tribunal (CHRT).

On appeal, Lewis argued that the certification judge failed to conduct the mandatory preferability analysis in her decision.

The Court of Appeal agreed.

Section 4(2) of the CPA requires the court to address all relevant matters, including those enumerated in the section. Here, the judge failed to address or consider the first three of the mandatory factors, which constituted an error in principle, said the court.

The appellate court agreed with the judge that these criteria were “interrelated” and accepted that Westjet’s primary argument revolved around the fourth and fifth factor. However, this “did not, however, relieve the judge from the requirement to actively consider the other mandatory considerations in s. 4(2), as each of those factors informs the preferability analysis,” said the court.

The court also rejected Westjet’s argument that the certification judge simply assumed that the first three factors favoured Lewis, since these factors were not mere binary inquiries but required some measured assessment.

The certification judge also erred when it failed to consider not only whether the CHRT was capable of addressing the common issues but also whether it could provide the relief sought by Lewis, said the court.

The appellate court ruled that while Westjet’s conduct could be considered discriminatory, the CHRT cannot address breach of contract claims. Further, the appellate court ruled that there is no equivalence between the systemic remedies provided by the CHRT and a monetary award that compensates for past breaches of contract.

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