Judge finds fault with agreement between WestJet, female flight attendants

Nearly 3,500 female flight attendants suing WestJet over an alleged lack of procedures to combat harassment will wait longer for a settlement after a B.C. judge found problems with a proposed agreement.

The lawsuit alleges WestJet “breached contracts of employment with female flight attendants by failing to implement and maintain an adequate anti-harassment program, including adequate systems and practices for reporting, investigating, and responding to workplace harassment” between April 4, 2016 and Feb. 28, 2021.

The company would have paid $4.5 million to class members, but admitted no liability under the terms of the proposed agreement.

The hearing opened with B.C. Supreme Court Justice Jacqueline Hughes expressing concerns that class members had just three days to review the terms of the settlement and decide whether they’d agree to them, which she called an “exceedingly short timeframe.”

The usual amount of time is 30 days, Hughes said.

The agreement was negotiated through a mediator in December.

An unofficial version was emailed to the current and former flight attendants who made up the class on Jan. 16, said Karey Brooks, a lawyer for the plaintiffs.

But that early version did not contain the clause releasing WestJet from liability, which is a key issue for some of those objecting to the settlement agreement. That version of the agreement was shared with class members on Feb. 6 — and they had only until Feb. 9 to register their objections. Eight people did so.

One was April Harkness, who took the ferry from Nanaimo to Vancouver to be in the courtroom Wednesday. Harkness was a flight attendant with WestJet between 2012 and 2023.

Among her concerns were the short amount of time class members had to decide if they agreed with the settlement terms, the amount of compensation offered and the lack of detail around what WestJet would do going forward to ensure its policies around harassment were reviewed by an independent company.

“I just want to see that third party brought in and all those flight attendants to be able to feel safe when they report these instances,” she said.

The judge pressed WestJet’s lawyers on the issue of third-party oversight of its anti-harassment policies.

“One of the important purposes of class proceedings is behaviour modification and I’m not certain how effective what’s proposed here will be in terms of behaviour modification, if it’s solely at WestJet’s election who to hire and to take the results and simply do whatever it wishes with them … I’m not sure how that facilitates accountability,” she said.

The original lawsuit in the case was filed nearly a decade ago in 2016 by Mandalena Lewis, a former WestJet flight attendant who alleges she was sexually assaulted by a pilot while on a layover in Hawaii in 2010. It was certified as a class action, based on WestJet’s alleged breach of contract to provide a harassment-free workplace, in 2022 after more women came forward.

Another issue raised by the judge was a lack of clarity around whether WestJet employees such as pilots could still be sued for sexual harassment under the terms of the agreement.

Class members now have until March 23 to review the agreement and file objections.

“We’re going to do this in an orderly way to give class members time to make an informed decision,” Hughes said.

The agreement will be back before the court on May 7.