Ontario’s Human Rights Code does not allow for representative or class actions asserting a human rights violation. The statute in British Columbia is unique in allowing such actions in Canada.
For this reason, persons seeking a remedy alleging sexual harassment in the nature of a class action must pursue civil remedies, based on a tort claim or a civil wrong, or by alleging a breach of contract.
There may be other reasons to use the civil court process, but in Ontario and other Canadian jurisdictions, apart from B.C., this is the only remedy available to assert relief on behalf of multiple persons based on the same set of allegations.
One such claim was commenced recently in British Columbia, which is being watched closely by employment lawyers across the country. In a class action, the proposed claim must be certified or approved by a judge on a preliminary motion to allow the case to proceed as a representative action.
The plaintiff brought the proposed action and was met by a motion to dismiss the claim which was based on an assertion that WestJet was in violation of its “Anti-Harassment Promise”.
Motion to Dismiss
One argument made by WestJet was that the claims of the proposed class should be brought before the Canadian Human Rights Tribunal as the business was under federal law. The second submission was that the case should be under the relevant workers’ compensation scheme.
Importantly to the issue of the mix of human rights, workers’ compensation laws and civil actions, these arguments succeeded.
The claim alleged that WestJet contracted to provide a code of conduct which prohibited sexual harassment and that it would investigate such complaints with diligence and impose proper discipline when required.
The claim further alleged that a certain pilot was found to have sexually assaulted one employee, but the company failed to dismiss or otherwise discipline the wrongdoer. This same person then again assaulted the plaintiff while in Hawaii. She then reported the assault to WestJet who in turn reported the incident to local police. The plaintiff asserted that she was not allowed to work with the alleged offender pilot, which resulted in lost income and advancement and also, of some significance to the motion, personal harm.
At a later date, the plaintiff became aware of the first assault. The plaintiff went on disability due to stress and anxiety.
Court Strikes Personal Injury Claims
The court did agree, notably, that the claim for damages for personal injury was improper and that such relief should be brought only under the relevant workers’ compensation statute.
The court also stated that a claim for discrimination must be brought under the federal Human Rights Act, also an important decision.
The claims for damages for personal injury were hence struck.
The Court concluded that the test for striking an action on a preliminary motion is a strict one. The fact that the claim was based on a contractual basis allowed the case to be brought as a civil action and was not limited to the human rights process. The plaintiff was allowed to proceed on claims based on the breach of the employment contract.
This was not a decision certifying the claim as a class action. This must follow. It would appear, apart from showing that the proposed class members meet the test for a representative action, that this order will likely follow.
Compare to Human Rights
The human rights statute in B.C. does allow for this very remedy of a representative claim for any human rights violation. It is the sole jurisdiction to allow this type of remedy.
Had this claim been made under Ontario law, a civil action alleging a claim under the Ontario Human Rights Code would be allowed with a companion action. The issue is moot as to whether this would allow a class action. Likely the answer would be negative as there is no such right under the Ontario statute. It could be allowed as a tort claim. This remains to be determined.
Class action remedies have the potential of being significant awards. The best course of action for an employer is to create and follow anti-harassment workplace policies, indeed as are required by Ontario law.
Employees should be aware of the potential power available through class action claims.
If you have queries about this issue, be your employer or employee, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.
 Lewis v WestJet
 Federal law has no workers’ compensation law and leaves such claims to be brought under the relevant provincial or territorial statute.
 More will be said of this issue in later posts.
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