Executive Summary: Key Legal and Evidentiary Issues

• The certified class includes current and former female flight attendants who allege WestJet breached an implied "Anti-Harassment Promise" contained in their employment contracts.
   
• Discovery disputes arose repeatedly over the scope of harassment complaint file production and over privilege claims tied to an outside consultant's investigation work.
   
• The plaintiff's application to amend her pleadings succeeded only in part, as the court refused proposed amendments that strayed into evidence or addressed conduct falling outside the class period, while dismissing WestJet's application to strike.
   
• Litigation privilege protected a draft investigation report prepared by Ernst & Young for WestJet's external counsel, though a related human-resources policy review had already been produced without any privilege claim.
   
• Years of hard-fought negotiation culminated in a $4.5-million settlement approved as fair and reasonable under the Class Proceedings Act.
   
• Class counsel's contingency fee and the representative plaintiff's honorarium were both scrutinized before receiving final court approval.
   

Facts of the case

Mandalena Lewis, a former WestJet flight attendant, filed a notice of civil claim on April 4, 2016, alleging that WestJet Airlines Ltd. systemically breached its employment contracts with female flight attendants by failing to implement and enforce an anti-harassment program (the "Anti-Harassment Promise"). Lewis framed the claim entirely in breach of contract, alleging WestJet benefited financially from cost savings tied to its failure to fulfill that promise, and sought disgorgement of those savings rather than compensatory damages. WestJet's early application to strike the claim was dismissed in December 2017 (2017 BCSC 2327), a decision upheld on appeal in 2019 (2019 BCCA 63), with leave to the Supreme Court of Canada subsequently denied. An amended notice of civil claim was filed in May 2019, and after an initial certification refusal, the Court of Appeal certified the action in April 2022 (2022 BCCA 145). The certified class comprises female flight attendants employed by WestJet between April 4, 2014, and February 28, 2021 — a group later confirmed at 3,593 members. Six common issues were certified, addressing whether the Anti-Harassment Promise formed part of class members' contracts, whether WestJet breached it, whether WestJet saved costs by doing so, whether disgorgement was available, and whether punitive damages were warranted. Litigation proceeded over several years and included multiple contested applications. In November 2024, WestJet sought to strike portions of a proposed further amended notice of civil claim, while Lewis sought leave to file that amendment; the disputed paragraphs concerned alleged 2008 and 2010 sexual assaults by the same pilot, Lewis's attempts to obtain her employment file, and her eventual termination in January 2016. The following month, in a separate application, Lewis sought further and better production of harassment complaint files, having already obtained an order in an earlier decision (2024 BCSC 111) requiring WestJet to produce individual complaint investigation documents. By July 2025, a third production dispute concerned documents connected to Ernst & Young LLP, a consulting firm retained by WestJet's external counsel in March 2016. Ultimately, after a decade of litigation, the parties reached a settlement in principle in January 2026, which the court approved in August 2026 following a contested approval hearing that addressed objections from thirteen class members.

Policy and legislative provisions at issue

The claim centered on s. 35 of the Class Proceedings Act, R.S.B.C. 1996, c. 50, governing court approval of class action settlements, and s. 38, governing approval of class counsel's fees and disbursements. Underlying the contractual dispute was whether WestJet's Code of Conduct and Respect in Workplace Policy — which WestJet acknowledged formed part of all employees' contracts — extended to the specific Anti-Harassment Promise Lewis pleaded, namely that WestJet would maintain a harassment-free workplace and properly investigate and respond to harassment complaints. On the pleadings amendment application, Rule 6-1(1), Rule 3-1(2), and Rule 3-7 of the Supreme Court Civil Rules governed whether proposed amendments pleaded material facts rather than evidence or argument. Separately, Rules 7-1(11), (13), and (17) governed the scope of wider disclosure sought in the document production applications, while the March 22, 2016 Statement of Work between WestJet's counsel, McLennan Ross LLP, and Ernst & Young — together with the privilege doctrines addressed in Solosky v. The Queen and Blank v. Canada (Minister of Justice) — governed whether the resulting investigation report and invoices were protected from disclosure.

Reasoning and analysis

On the pleadings application, the court held that proposed paragraphs describing the 2008 and 2010 sexual assaults were not material facts to the certified systemic breach-of-contract claim, since Lewis conceded those events fell outside the class period and that she would not seek to prove them at trial; leave to amend was refused for those paragraphs. Paragraphs describing WestJet's alleged retaliation against Lewis, including her termination, were also refused in their pleaded form because they impermissibly pleaded evidence and argument rather than concise material facts, and because Lewis's termination was the subject of a separate, stayed individual action. Turning to the first document production dispute in this set of decisions, the court found that WestJet's practice of limiting complaint file production to complaints made by class members against male pilots was narrower than the pleadings supported; it ordered production of all harassment complaints made by class members, including those who had opted out, but declined to extend production to complaints from WestJet's workforce as a whole, since the certified common issues were anchored specifically in the flight attendant employment contracts. For the Ernst & Young production dispute, the court distinguished solicitor-client privilege from litigation privilege, finding that Ernst & Young's Draft Investigation Report and related invoices were not protected by solicitor-client privilege because Ernst & Young did not perform a function integral to the solicitor-client relationship, but were protected by litigation privilege because the dominant purpose of the report was preparation for this litigation. Several categories of documents sought were adjourned generally as premature, pending responses to outstanding discovery requests. On settlement approval, the court applied the established ten-factor test for fairness, concluding the settlement fell within the zone of reasonableness given the significant legal and evidentiary uncertainty surrounding the novel disgorgement theory, the scale of the litigation record, and the arm's-length nature of the negotiation. The court also assessed class counsel's requested 35% contingency fee against the time invested over a decade of litigation and the risk borne on a fully contingent basis, and separately assessed the proposed $20,000 honorarium against the usual range of $1,500 to $10,000 awarded to representative plaintiffs in British Columbia.

Ruling and overall outcome

WestJet's application to strike the amended pleadings was dismissed, but Lewis's cross-application to amend was only partially granted, with leave refused for paragraphs concerning the 2008 and 2010 assaults and the retaliation allegations in their originally drafted form, and costs of both applications ordered in the cause. On the harassment complaint production dispute, WestJet was ordered to produce all class-member complaint files, including those of opted-out members, within forty-five days, though not the broader workforce-wide production Lewis sought. For the Ernst & Young dispute, the plaintiff's application for the Draft Investigation Report and associated invoices was dismissed on the basis of litigation privilege, while several other document requests were adjourned generally with liberty to reapply, and costs were deferred pending final disposition. In the final and most significant ruling, the court approved a class settlement under which WestJet agreed to pay a total of $4,500,000, inclusive of counsel fees, disbursements, taxes, and any honorarium, along with non-monetary relief in the form of an independent third-party workplace assessment; after deductions, an estimated $1,610,366 remained for distribution, amounting to approximately $465 per eligible class member among the 3,458 members who did not opt out. Class counsel's 35% contingency fee, amounting to approximately $1,527,750 plus taxes, and disbursements of $1,130,496 were both approved as reasonable given the decade-long, fully contingent nature of the litigation. The court reduced the proposed $20,000 honorarium for the representative plaintiff, Ms. Lewis, to $10,000, finding that amount consistent with the usual range awarded in comparable British Columbia class proceedings while still recognizing her sustained personal involvement over the litigation's ten-year course.