WestJet Just Paid $4.5M for Breaking Its Own Harassment Policy: What This Means for Ontario Employees

WestJet’s flight attendants didn’t win by filing human rights complaints; they won by suing on the airline’s own anti-harassment policy as a contractual promise WestJet broke. That distinction matters in Ontario, where the Court of Appeal has refused to recognize a standalone tort of harassment. The WestJet case offers an important reminder that workplace policies can carry legal consequences beyond simply setting out an employer’s expectations for employee conduct.

What Happened in the WestJet Flight Attendant Harassment Settlement?

The Supreme Court of British Columbia has approved a $4.5–million settlement in a class action brought by current and former WestJet flight attendants over workplace harassment. The settlement covers 3,452 current and former female flight attendants who worked for WestJet between April 4, 2014, and February 28, 2021. Eligible class members who submit valid claims are expected to receive roughly $470 each, after applicable costs and expenses. The agreement also required WestJet to retain a third party to assess workplace harassment, underreporting, and the effectiveness of its reporting and response systems.

Former flight attendant Mandalena Lewis initiated the class-action lawsuit, stemming from her own experience of WestJet mishandling her harassment claim in 2016. Following the settlement, Lewis has stated that while she is “glad this is over,” she “still feel[s] anger.” While a $4.5–million settlement may seem like a huge win, it only totals to less than $500 per recipient. Lewis has since stated that this outcome is “the absolute best we could get.”

As for WestJet, the company said it was happy to reach a settlement and comply with the terms, although it is not “an admission of liability or wrongdoing.” WestJet has denied the allegations Lewis made in her original lawsuit in 2016, and continues to reject any statements that attribute fault to the company.

Is Your Employer’s Anti-Harassment Policy Legally Binding in Ontario?

It is easy to think of an employer’s HR policies as documents with little legal significance: something you are given when you start a job, told to read, and rarely think about again. However, an anti-harassment policy can carry more weight than that. In some circumstances, an employer’s policy may become a term of the employment contract. If the employer makes a contractual promise in that policy and then fails to honour it, the employee may have a claim for breach of contract.

That was the argument at the heart of the WestJet litigation, which spent years working its way through jurisdictional challenges. WestJet argued that the dispute belonged within the human rights system rather than the courts. The courts ultimately allowed the claim to proceed as a contractual one: at its core, the class action alleged that WestJet had breached a contractual promise contained in its workplace harassment policy.

This possibility is particularly relevant in Ontario because workplace harassment policies are not optional. Under the Occupational Health and Safety Act (OHSA), employers must prepare a workplace harassment policy and review it at least annually. It also requires employers to maintain a written program for implementing that policy.

However, there is an important distinction. OHSA requires the policy; it does not automatically give an employee a private right to sue simply because the policy was not followed. If the policy contains promises that form part of the employment contract, however, those promises may be enforceable through a breach-of-contract claim.

If your employer has a harassment policy it is not following, that gap may be worth more than you think. Our workplace harassment team assesses exactly this when determining employee rights and entitlements.

The Policy-As-Promise Test: Three Questions That Decide Whether You Can Sue on an HR Policy

Not every workplace policy creates a contractual right. However, when an employee wants to know whether an employee’s anti-harassment policy may be enforceable as part of the employment relationship, three questions provide a useful framework.

1. Was the policy part of your terms of employment?

Examine how the policy entered your employment relationship. Were you given it when you were hired? Did your offer letter refer to it? Did you sign off on it during onboarding? Is it contained in a handbook that your employment contract incorporates by reference? The more clearly the policy forms part of the terms governing your employment, the stronger the argument that its commitments may have contractual significance. 

2. Does the policy promise a result, or reserve discretion?

This may turn on a single verb. “The company will provide a workplace free from harassment” reads like a promise. “The company may investigate complaints as it considers appropriate” gives the employer considerably more discretion. Go find your policy and read the verbs. What does your employer say it will do, rather than what it may do?

3. Did the system fail, or did one person?

This is the counterintuitive question. A claim based on a policy-as-promise is not necessarily about proving one employee committed one act of harassment. It may instead concern the employer’s failure to build and maintain the harassment-prevention system it promised to provide. That distinction helps explain how the WestJet litigation could involve 3,452 class members.

The plaintiffs in WestJet identified the contractual term they relied on as an “Anti-Harassment Promise,” a commitment they alleged required WestJet to proactively prevent harassment, enforce its Code of Conduct, properly investigate complaints, and take appropriate remedial action. Each component concerns the employer’s system for preventing and responding to harassment, rather than a promise about one isolated incident.

There is an important misconception to clear up: you cannot simply sue your employer for “harassment” as a standalone offense in Ontario. This is why the policy-as-promise route matters: it can provide a contractual foundation for a claim where “harassment” itself is not a standalone cause of action.

What if You Are Employed by an Airline, Bank, or Telecommunications Company in Ontario?

WestJet is a useful reminder that not every Ontario employee falls under the same workplace laws. Airlines are federally regulated, meaning WestJet was not subject to Ontario’s OHSA in the first place. Instead, its employees fall under the federal Canada Labour Code and its regulations.

This distinction is important to many Ontario employees. Federal jurisdiction covers industries including airlines and airports, banks, telecommunications, broadcasting, railways, interprovincial trucking and bus lines, ports and marine shipping, and most federal corporations.

The rules for federally regulated workplaces are different, too. Part II of the Canada Labour Code establishes a detailed framework for preventing and resolving workplace harassment and violence. Employees may also fall under the Canadian Human Rights Act rather than Ontario’s Human Rights Code, with different rules governing complaints and remedies. Other employment rights, including wrongful dismissal and related protections, can differ as well.

However, the contractual principle discussed above does not disappear because your employer is federally regulated. In the WestJet litigation, the airline’s federal status did not prevent the plaintiffs from pursuing their alleged contractual claim in court.

Unsure whether you are a federally regulated employee? Your industry determines the applicable jurisdiction, not your job title. Our employment lawyers act for federally regulated employees across Ontario, where the rules are different from the provincial ones.

What Should You Do if Your Employer Is Ignoring Your Harassment Complaint?

If your employer is ignoring a harassment complaint, do not assume there is nothing more you can do. The steps you take next can help preserve evidence, create a clear record, and protect your legal options.

Step 1: Get your employer’s workplace harassment policy.

Ask HR for a copy of the workplace harassment policy and the program that implements it. You are entitled to know what process your employer has committed to following. Once you have it, read the language carefully. In particular, look for what your employer says it will do when a complaint is made.

Step 2: Make your complaint in writing.

If you have only raised the issue verbally, put it in an email. A written complaint establishes when you reported the problem, what you reported, and who received it. For Ontario-regulated workplaces, a complaint can also trigger the employer’s investigation obligations under OHSA.

Step 3: Keep your own records.

Keep copies of your complaint, the employer’s responses, and any relevant correspondence. You should also maintain a private record of dates, times, what happened, who was present, and what you reported. Store these records somewhere you can access outside your employer’s systems.

Step 4: Check your deadlines.

Different legal claims have different limitation periods. For example, the Human Rights Tribunal of Ontario requires a claim to be submitted within one year of the last incident, while a constructive dismissal claim has a two-year limitation period. These deadlines can run independently of one another, so do not assume that having one potential claim means you have unlimited time to pursue the others.

Step 5: Get legal advice before resigning.

If the harassment or the employer’s response has made your working conditions intolerable, you may be considering resignation. Do not resign on impulse. Depending on the circumstances, quitting could affect a potential constructive dismissal claim. Get legal advice about your options and the appropriate sequence of steps first.

If the WestJet story sounded familiar, your employer’s harassment policy may be more important than you realize. The language of that policy, how your employer responded, and the time that has passed can all affect your legal options. Our Ontario workplace harassment lawyers at Roberts & Obradovic Law are here to help — book your consultation today.

Frequently Asked Questions About Workplace Harassment Policies

If your employer has promised to prevent and address workplace harassment but has failed to follow through, do not assume that the policy is merely an internal HR document. The language of the policy, its relationship to your employment contract, and how your employer responded can all affect your legal rights.

At Roberts & Obradovic Employment Law, we can review your circumstances, explain your options, and help you determine whether your employer’s actions may give rise to a legal claim. If your workplace has failed to protect you, get legal advice before deciding what to do next.