The Supreme Court of British Columbia has ordered WestJet to disclose a wider range of harassment complaint files involving flight attendants, ruling that any allegations brought forward by class members — regardless of whether the accused is a pilot — must be produced.
The decision arises from a certified class action in which M.L., a representative plaintiff, claims WestJet breached the “Anti-Harassment Promise” in flight attendants’ employment contracts by failing to implement and enforce a harassment-free workplace.
M.L. alleges WestJet derived financial benefit from what she characterizes as a “systemic breach” of the Anti-Harassment Promise. She seeks restitution of the cost savings she believes the airline obtained by not fulfilling its contractual obligation to maintain proper anti-harassment policies.
The certified class consists of all current and former female flight attendants employed by WestJet during a specified timeframe. While the focus of M.L.’s action is harassment of female flight attendants by male pilots, the court emphasized that the complaint files to be produced must include all claims brought by class members, not just those directed against pilots.
“Whether individual reports of harassment were made and how they were handled by WestJet may need to be considered,” the court stated, citing an earlier ruling on the scope of document disclosure in this litigation.
Background of the dispute
This ruling marks the second time M.L. has sought further and better production of documents from WestJet. Previously, the court ordered the airline to hand over certain harassment complaint files, noting that these records could shed light on how WestJet addressed the concerns of flight attendants.
M.L. subsequently argued that the airline’s production remained incomplete and overly narrow, as it focused almost exclusively on complaints made by class members against male pilots.
M.L. contended that the Anti-Harassment Promise is a term of every flight attendant’s contract. She says WestJet promised a harassment-free workplace across its entire operations. On that basis, she sought production of documents related to complaints made by any WestJet employee, regardless of position. WestJet took the view that only files involving class members complaining about male pilots were relevant. It argued that producing complaints from other areas of the workforce—such as baggage handlers or call centre employees—was beyond the scope of the issues certified for trial.
During earlier proceedings, the court signalled dissatisfaction with WestJet’s pace and manner of document production. Citing delayed deliveries of key files, the court noted that WestJet had produced only 24 harassment complaint files, even though its internal statistics suggested a higher volume of alleged incidents during the class period.
“The record before me suggests that WestJet’s approach to document production to date has been dilatory and, at times, potentially adversarial in nature,” the court stated.
Narrow question before the court
The point of contention on this application was how far beyond pilot-related complaints the document disclosure should extend. M.L. maintained that her claim of systemic breach warranted examination of all harassment cases, arguing that WestJet’s overarching anti-harassment program (or lack thereof) applied to every employee. According to M.L., this broad scope would allow experts to scrutinize whether the airline fulfilled its alleged promise to provide “a culture permissive of Harassment” or took genuine measures to stop it.
The court, however, drew a line. It said the lawsuit is firmly grounded in a “specific contract with specific terms and conditions”—namely, those of flight attendants. While M.L. pleaded that all WestJet employees had the Anti-Harassment Promise written into their contracts, the certified common issues focus on whether that promise was made to—and breached for—flight attendants.
“Breach of the Anti-Harassment Promise contained allegedly in other categories of employees’ employment contracts does not amount to a breach of the Anti-Harassment Promise in the class members’ contracts,” the court wrote.
As framed in the original pleadings, M.L.’s primary complaint highlights power imbalances between predominantly female flight attendants and predominantly male pilots. She claims the airline placed more economic value on pilots, leaving flight attendants vulnerable when harassment complaints surfaced. Although the court acknowledged that vulnerability is central to M.L.’s claim, it declined to restrict production solely to pilot-related matters.
Expanded production – but with limits
In allowing broader disclosure, the court held that WestJet must turn over complaint files made by flight attendant class members, including any who have opted out of the class action. The court did not accept WestJet’s proposition that documents of opted-out individuals automatically lack relevance. Because the suit alleges systemic breaches relating to flight attendants specifically, any records of flight attendant complaints could illuminate whether the airline deviated from the promised anti-harassment standards.
“WestJet is ordered to produce all harassment complaint files for flight attendants, including potential class members who opted out, and this production is not limited to harassment complaints made against pilots,” the ruling states.
On the other hand, the court denied M.L.’s request to access complaints from non-flight attendant staff, such as office employees or mechanics. It was not persuaded that material beyond the flight attendant group would assist in determining whether the Anti-Harassment Promise in flight attendant contracts was breached. The court observed that M.L. had not “articulated beyond bare assertions” why harassment claims from unrelated job categories would be relevant.
Privacy concerns
The court also underscored that expanding production too widely could pose challenges related to privacy and notice. Harassment files often contain sensitive, confidential information about alleged sexual harassment and assault. While the court recognized that privacy is not an “absolute barrier” to disclosure, it stated that producing large volumes of documents from employees outside the certified class would raise significant privacy considerations—especially if those employees have no direct connection to the claims at issue.
A redaction protocol for personal details is expected to help manage privacy in handling the flight attendants’ files. Still, the court declined to issue any directives regarding the broader workforce, noting there had been no widespread notification to employees outside the class that their records might be disclosed.
WestJet now faces firm timelines for producing additional documents. The court admonished the airline for tardy responses to the first production order and stated it expects timely compliance going forward.
For more information, see Lewis v WestJet Airlines Ltd., 2024 BCSC 2398 (CanLII).
