The Supreme Court of British Columbia has approved the settlement of a class action brought on behalf of 3,458 former female WestJet flight attendants who worked for the airline between April 4, 2014 and February 28, 2021.
The Court’s decision is available here: Lewis v. WestJet Airlines Ltd., 2026 BCSC 1547 (Settlement Approval Decision).
The settlement brings to an end a decade of difficult and heavily contested litigation. The case survived an application to strike, an appeal and a contested certification process. It involved thousands of documents, extensive examinations and expert evidence from both sides. The parties reached a settlement shortly before a trial that was scheduled to last 38 days.
The Court described the case as having been “hard fought at every turn”. Its achievements should not be understated. But to understand those achievements, and the settlement itself, it is important to understand the unusual claim at the heart of the case.
This was not a conventional harassment case
The class action was not a collection of individual claims for workplace harassment or sexual assault. It did not ask the Court to decide whether particular incidents had occurred or to compensate class members for the personal harm caused by those incidents.
It was a class-wide breach-of-contract case.
The action alleged that WestJet had made a contractual promise to provide its flight attendants with an effective anti-harassment program, and that it had failed to fulfil that promise. The alleged promise included measures such as appropriate training, safe reporting channels, proper investigations and meaningful responses to complaints.
The claim was systemic. Every class member was alleged to be entitled to the benefit of that program, whether or not she had personally experienced or reported harassment. The alleged wrong was the failure to provide a common workplace benefit promised to all class members.
That distinction explains both the remedy sought in the lawsuit and the way the settlement funds will be distributed. Each eligible class member is entitled to the same share based on her membership in the class. She does not have to prove that she experienced harassment or suffered personal harm.
As Justice Hughes explained, some objections reflected a misunderstanding of the nature of the certified claim and the significant hurdles it faced (Settlement Approval Decision, para 32). The Court emphasized that the litigation “was not about individual allegations of sexual assault and not intended to provide compensation for personal injury.” It was limited to a contractual claim and a novel theory for recovering WestJet’s alleged cost savings.
A claim without prior Canadian precedent
When the action began, there was no Canadian precedent for a class action framed in this way.
The case asked whether an employer’s commitments about its workplace program could form part of its employment contracts; if so, what the program required; whether WestJet had failed to deliver the promised program; whether it had saved money as a result; and whether those savings could be recovered for the class.
The proposed remedy was as novel as the claim itself. Rather than seeking compensation for individual experiences of harassment, the plaintiff sought to recover the costs WestJet allegedly saved by failing to provide the anti-harassment program it had promised, after deducting what WestJet actually spent on the measures it did provide.
A simple hypothetical illustrates the theory. Suppose an employer promised to provide annual training at a cost of $1 million but provided that training only once every two years. The employer would have saved an average of $500,000 per year. The plaintiff’s position was that cost savings of this kind should be recovered for the class.
This proposed remedy, known as disgorgement, was untested in this context. The Court did not decide whether WestJet had made the alleged contractual promise, whether it had broken that promise or whether its alleged cost savings could be recovered. WestJet hotly disputed the existence of a contractual promise and denied liability. The case settled before trial without any admission or finding of wrongdoing.
Even so, what the case achieved before settlement was significant. The claim survived WestJet’s application to strike and the resulting appeal. It was then certified as a class action following another contested appeal. At each stage, WestJet argued that the claim should not be permitted to proceed in the form proposed.
Surviving those challenges did not prove the claim. It did, however, allow the plaintiff to take a previously unrecognized class-wide contractual theory toward trial. The courts permitted common questions about the alleged promise, its breach, WestJet’s alleged cost savings and the available remedies to be decided for the class as a whole.
That opened a legal path that had not previously existed in a Canadian class proceeding. It demonstrated that, in appropriate circumstances, an employer’s workplace commitments may have legal significance beyond the words of an internal policy, and may support a contractual claim on behalf of an entire class of employees.
What the settlement provides
WestJet will pay $4.5 million, inclusive of legal fees, litigation expenses, taxes, administration costs and the Representative Plaintiff’s honorarium. The Court estimated that approximately $1.61 million would remain for class members, or approximately $465 for each eligible member, subject to the settlement’s distribution process.
The payment is only one part of the result.
WestJet must also retain and fund an independent, qualified third party to assess:
- the prevalence of workplace harassment;
- the extent to which harassment may go unreported;
- the barriers employees may face in deciding whether to report it;
- the effectiveness of WestJet’s reporting and response systems; and
- how those systems could be improved.
A summary of the assessment’s findings will be shared with employees.
That assessment is important because complaint records tell only part of the story. A low number of formal complaints may mean there were few incidents. It may also mean that employees did not feel able to report what occurred. Fear of retaliation, concern about career consequences, uncertainty about the process or a lack of confidence in the response can all affect whether someone comes forward.
The assessment will look beyond the number of reported complaints. It will examine present workplace conditions, underreporting and the effectiveness of the systems intended to prevent and address harassment. That creates an opportunity for independent scrutiny, greater transparency and further workplace improvement.
This is also an outcome the class could not have obtained through a judgment in the class action. Even if the claim had succeeded at trial, the remedies sought through the certified contractual claim were monetary. The Court was not being asked to order WestJet to conduct an independent workplace assessment or share its findings with employees. The settlement therefore achieved forward-looking relief that was not otherwise available through the claim as framed.
The settlement’s release also has an important limit. It does not release tort claims against natural persons for sexual assault, sexual battery or other intentional sexual misconduct. To the extent such claims exist and are not otherwise barred by law, class members retain the right to pursue them against the individuals involved.
The risks were real
Certification allowed the class action to proceed. It did not establish that WestJet had breached a contract or that the class was entitled to damages.
At trial, the plaintiff would still have had to prove what WestJet contractually promised, what an effective anti-harassment program required over a period of almost seven years, how WestJet’s practices fell short at different points in that period and what costs, if any, WestJet saved as a result.
The remedy was legally uncertain. There was no assurance that the Court would order WestJet to give up any alleged cost savings, even if a breach were established. There were also major differences between the parties’ expert evidence about how those savings could be calculated (Settlement Approval Decision, paras. 23-24).
The evidence changed over time as well. As the Court noted, shortly after the action began, WestJet retained Ernst & Young to review its harassment-prevention and response practices and later made material improvements in response to that review (Settlement Approval Decision, para 25). The plaintiff learned about the review and resulting changes through discovery as the parties prepared for trial. Those changes were positive, but they made it more difficult to prove a continuing breach throughout the entire class period.
Proceeding to trial would have required many more months of work, followed by the possibility of appeals. There was a genuine risk that the class could recover less than the settlement – or nothing at all (Settlement Approval Decision, paras. 51-52).
The settlement replaced those risks with an immediate monetary recovery and an independent workplace assessment.
The approval was not automatic or uncontested. The Court independently assessed the settlement over approximately two and a half days of hearing, spread across several appearances. Thirteen class members filed objections, and several were represented by independent legal counsel. The Court heard their concerns about notice, compensation, the release, the workplace assessment, legal fees and the proposed distribution of the settlement funds. It required additional notice to the class and considered revisions made in response to concerns raised during the process.
After that scrutiny, the Court approved the settlement as fair, reasonable and in the best interests of the class. Justice Hughes went further, describing the monetary compensation and the behaviour change achieved through the workplace assessment as “an excellent result”, particularly given the significant risk that the class might recover nothing (Settlement Approval Decision, para 52).
Class members helped strengthen the settlement
Some class members objected to aspects of the proposed settlement, including the amount of compensation, the breadth of the release and the level of transparency surrounding the workplace assessment. Those concerns were part of the approval process and led to meaningful changes.
The release was revised, class members received fresh notice and WestJet agreed that employees would receive a summary of the independent assessment. The Court then considered the settlement in its revised form, together with the objections and the different views expressed by class members.
For class members who experienced harassment or assault, a payment tied to a systemic contractual claim may feel far removed from the harm they experienced. The absence of an admission of wrongdoing may also be disappointing. Those reactions are understandable.
They can coexist with a fair assessment of what this particular case was capable of achieving.
Access to justice – and the trade-off
The case was built around the idea that the legal response to workplace harassment is often reactive. It usually requires an individual to experience harassment and pursue a claim after the harm has already occurred.
This case took a different approach. It focused on the workplace program WestJet allegedly promised to provide to every class member. The claim asked whether WestJet failed to provide that program and, if so, whether it should give up any money it saved as a result.
That approach made it possible to bring one claim on behalf of thousands of employees without requiring each class member to prove that she had experienced harassment or suffered harm.
Class counsel knew from the outset that this approach could result in a modest damage award. JFK Law took the case on despite that risk because its importance was not measured only by the amount of compensation. It mattered because it sought to place accountability where it belonged: on the employer’s obligation to provide an effective anti-harassment program, rather than on individual women having to prove that they had been harmed before the law would respond.
The trade-off was that, because the case focused on the program as a whole, it could not provide compensation for the individual harm some women experienced.
The case was pursued on a contingency basis for approximately ten years. Class members did not have to finance the litigation, and class counsel assumed the risk that, if the case failed, counsel would not be paid. Without a class proceeding and contingency funding, a claim of this size and novelty would not have been realistically possible.
The Court independently reviewed and approved class counsel’s fee after considering the length, complexity and substantial risk of the case. Counsel recorded more than 10,000 hours over ten years. The approved fee represented approximately 41% of the value of that time (Settlement Approval Decision, para. 49).
Recognizing the full achievement
No settlement can provide every form of justice that every class member may seek. This settlement did not decide individual allegations, compensate class members for personal injuries or produce an admission of liability. It should not be presented as though it did. Doing so would mischaracterize the case and risk diminishing the distinct experiences and harms of individual class members.
But the achievements of this different kind of case should not be minimized. The litigation advanced a contractual theory for which there was no prior Canadian class-action precedent, survived repeated challenges, obtained compensation for thousands of women and secured an independent assessment of harassment and barriers to reporting.
Those achievements should be understood within the boundaries of the claim – but they remain significant.
Recognizing the Representative Plaintiff and the class
The case required sustained courage and an extraordinary commitment from the Representative Plaintiff. For approximately ten years, she carried the responsibilities of representing thousands of women through contested applications, appeals, certification, document production, extensive examinations, expert evidence, preparation for trial and difficult settlement negotiations.
The Court recognized the substantial time she devoted to the case, as well as the personal and emotional toll of revisiting her own trauma and the experiences of other class members. Her courage in bringing the claim and her sustained commitment to the litigation deserve recognition.
Other class members also contributed by sharing their experiences, participating in the process and raising concerns about the proposed settlement. Their involvement ensured that different perspectives were heard and contributed to the final terms.
A proper understanding of the claim does not diminish its legacy. It allows that legacy to be assessed on its own terms: as a novel and difficult class action that opened a new legal path, produced both monetary and systemic relief, and resulted in an independent examination of a major employer’s current workplace systems.
Those are meaningful achievements, made possible by the courage and commitment of the Representative Plaintiff and the participation of the class.