News / Vancouver

Courts 'improper venue' for sexual harassment cases: WestJet lawyer

Flight attendant's class action lawsuit against airline should be tossed, judge hears.

Mandalena Lewis, photographed in her Vancouver home ahead of court hearings Nov. 9 and 10 in her class action sexual harassment lawsuit against the airline Westjet, where she was a former flight attendant.

David P. Ball / Metro Order this photo

Mandalena Lewis, photographed in her Vancouver home ahead of court hearings Nov. 9 and 10 in her class action sexual harassment lawsuit against the airline Westjet, where she was a former flight attendant.

Should women sexual assaulted or harassed take their cases before a judge — instead of the court of public opinion or social media?

Not according to the country's second-largest airline, WestJet, whose lawyer called Thursday for a former flight attendant's class action sexual harassment lawsuit to be tossed because, "It's inappropriate to bring forward a discrimination claim to the court" unless those women were forced from their jobs.

"The proceedings are without foundation and serve no useful purpose whatsoever," said airline lawyer, Don Dear, in his opening arguments. "These are matters not properly before this court."

Instead, he argued, former flight attendant Mandalena Lewis — who alleges she was sexually assaulted by a WestJet pilot during a 2010 layover — should have taken her case to either the Worker's Compensation Board or the Canadian Human Rights Tribunal, as an individual. He also said she missed the two-year window for a civil case after her assault.

"That's hurtful," Lewis said outside the B.C. Supreme Court afterwards. "This is a systemic issue that's going on at WestJet, and it would be absolutely appalling to ask for these women to come forward as individuals to a human rights board to put their complaints through."

After Lewis' alleged assault, she said, U.S. police were unable to act on her report after the airline pulled him from overseas flights. But she later met another flight attendant who alleged she'd been sexually assaulted by the same pilot in 2008.

WestJet determined there wasn't enough evidence to determine if the assault happened, and the allegations haven't been tested in court.

"I was under the impression that this was an isolated event," she said. "That's what WestJet made me believe — and that's why I didn't come forward initially when it first happened to me.

"It's now time for women to decide what to do with their claims. Whether you want to share it with the police, to tell your family, or take it to courts — that's absolutely up to you."

But WestJet's lawyer countered that the courts would be appropriate only if her case was about being fired or pushed to quit.

Lewis was later fired for insubordination, but her own separate wrongful dismissal suit was paused pending the still-uncertified class action case.

Her lawyer, Karey Brooks, argued Thursday the courts are a proper venue because WestJet's Anti-Harassment Promise was a condition of its employment contracts, and went beyond what's required by law.

WestJet's lawyer also argued that the two-year limit on civil cases expired with the 2008 and 2010 incidents.

"These are both alleged sexual assaults and they must be out of time," Dear argued. "… If they occurred, the parties injured by those would have known that there wasn't a proper response by WestJet as alleged … at the time of the events occurring or shortly thereafter."

And because the class action filings allege that WestJet profited from promoting itself as a "zero tolerance for harassment" employer, documents argued, the airline's lawyers countered that any attempt to seek financial damages using that argument were "a fanciful pleading."

"They're not alleging any damage to any of the class members," Dear said. "In order to punish WestJet for all wrongs, they want to take all of WestJet's profits from it."

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