In Lewis v. WestJet Airlines Ltd, 2022 BCCA 145 (“Lewis”), the British Columbia Court of Appeal confirmed every factor in s. 4(2) of the Class Proceedings Act (“CPA”) must be weighed when assessing preferability under section 4(1)(d) of the CPA—even where the availability of a proposed alternative process becomes the focal point on certification. Further, determining whether access to justice is better served by a class proceeding or another mechanism requires a detailed analysis that addresses both the substantive and procedural characteristics of the proposed alternative process.
The plaintiff applied to certify a class action alleging that WestJet breached its employment contracts with female flight attendants by failing to create and implement effective anti-harassment policies. The plaintiff sought disgorgement of profits for the costs allegedly saved by not developing adequate policies.
Certification Judge’s Decision
Horsman J. refused certification because the plaintiff failed to demonstrate that a class proceeding was the preferable procedure to resolve the common issues. Her analysis focused on the availability of a complaint under the Canadian Human Rights Act (“CHRA”) as an alternative process, despite limitation issues that arose under the CHRA and uncertainty on whether disgorgement was available there. Horsman J. concluded that access to justice concerns would be “equally, if not better, addressed” by the CHRA because of the wide range of potential remedies, the specialized expertise of the Canadian Human Rights Commission and Tribunal, and the ability to submit complaints on behalf of a group.
The BCCA allowed the appeal. It held that Horsman J. erred by failing to consider all five of the factors governing preferability in s. 4(2):
(a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;
(b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;
(c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;
(d) whether other means of resolving the claims are less practical or less efficient;
(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.
Each factor must be considered and weighed; merely mentioning the factor is insufficient. None of the factors is independent or determinative. Accordingly, the BCCA found that Horsman J. should have considered ss. 4(2)(a)-(c), which favoured a class proceeding, and weighed those factors together with s. 4(1)(d)-(e).
On access to justice, the BCCA found a further error: a CHRA complaint presented significant procedural and substantive access to justice concerns not present with a class action:
- There was significant uncertainty as to whether a group, where only some members had actually suffered discrimination, would be accepted;
- It was “reasonably clear” the CHRT could not order disgorgement;
- Decisions could be subjected to judicial review and other delays;
- The CHRA process did not provide anonymity; and
- The limitation period would impose a barrier for some members.
Conversely, a class proceeding would promote access to justice: (i) a common issues trial judge could hear the breach of contract claim and order the remedy sought; (ii) no limitations issues would arise; and (iii) a class proceeding would provide anonymity.
Further, the BCCA noted that Horsman J. relied on a false equivalency in likening the uncertainty of whether disgorgement would be available to the uncertainty of whether class members would succeed in their claim. While the availability of disgorgement raises an access to justice concern, merits-based uncertainty does not.