SUPREME COURT OF BRITISH COL VANCOUVER REGlng'leA MAR 0 2015 15 I No. Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: MANDALENA LEWIS PLAINTIFF AND: WESTJET AIRLINES LTD. DEFENDANT NOTICE OF CIVIL CLAIM This action has been started by the plaintiff for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must ?le a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and serve a copy of the ?led response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must ?le a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and serve a copy of the ?led response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to ?le the response to civil claim within the time for response to civil claim described below. TIME FOR RESPONSE TO CIVIL CLAIM A response to civil claim must be ?led and served on the plaintiff, 1603681 RISS 21422 8161989 if you were served with the notice of civil claim anywhere in Canada, within 21 days after that service, if you were served with the notice of civil claim anywhere in the United States of America, within 35 days after that service, (0) if you were served with the notice of civil claim anywhere else, within 49 days after that service, or, if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFF Part 1: STATEMENT OF FACTS Parties 1. The plaintiff, Mandalena Lewis, is a resident of Vancouver, British Columbia. Ms. Lewis was employed as a ?ight attendant by the defendant between March 2008 and January 2016. 2. The defendant, WestJet Airlines Ltd. (?WestJet?), is a company incorporated pursuant to the laws of Alberta and is extra?provincially registered in British Columbia. Its registered office in British Columbia is 2700-700 West Georgia St., Vancouver, BC, V7Y 1B8. WestJet is an airline operating ?ights nationally and internationally, including many ?ights through British Columbia. Summary of the Claim 3. The plaintiff was hired by WestJet as a ?ight attendant in March 2008. 4. In January 2010, the plaintiff was sexually assaulted by a WestJet pilot on a layover in Hawaii. She reported the incident to WestJet shortly after it occurred. 5. WestJet failed to adequately investigate or respond to the plaintiff 5 report following the sexual assault. All that WestJet did was structure the plaintiff?s work schedule so that she did not have to work with the pilot. She was told to keep quiet about the incident notwithstanding that other female ?ight attendants were working under the pilot. The 10. ll. 12. plaintiff experienced a loss of trust in her employer as a result of its response to her report of the sexual assault. In August 2015, the plaintiff spoke with another ?ight attendant who had reported being sexually assaulted by a pilot in 2008. During their conversation, they realized they were speaking of the same pilot who had assaulted the plaintiff in 2010. The signi?cance to the plaintiff of this information is that it showed WestJet knew at least by 2008 that the pilot was a danger to other employees and WestJet had failed to remove him from the workplace or place conditions on his employment that protected employees like the plaintiff who were working alongside and under him. In other words, had WestJet lived up to its commitments to provide a safe working environment for its employees, the plaintiff would not have been sexually assaulted. The plaintiff confronted WestJet with the new information and her concern that WestJet had left her working with a pilot who was a risk to the female employees who worked under him. WestJet did not adequately explain, investigate, take responsibility or apologize to the plaintiff. WestJet did not take any further steps to protect employees from the pilot. The plaintiff struggled with a further loss of trust in her employer and she experienced increased emotional instability, anger and distress. She demanded access to her employment ?le to understand what, if any, investigation WestJet had completed into the pilot?s conduct. Her demands were met with delay. As a result of the anxiety she was experiencing, she was advised to take some time off by her doctor and was placed on short term disability leave. After the plaintiff wrote an email to WestJet expressing her frustration with the delays in producing her ?le, WestJet ?red the plaintiff and alleged cause. The plaintiff says WestJet?s conduct in relation to her assault was negligent, a breach of her contract of employment, and that the termination of her employment was in retaliation for the plaintiff efforts to understand the true circumstances that resulted in her assault. The plaintiff brings this claim in part to hold West] et accountable to its own commitments to keep its employees safe. The plaintiff says that WestJet?s conduct has been negligent, retaliatory, unlawful and unacceptable. The Plaintiff?s Employment Contract with WestJet 13. 14. 15. In March 2008, the plaintiff was hired by the defendant as a ?ight attendant. The term of employment was that, following an initial probationary period, employment was inde?nite. The provisions of WestJet?s Business Code of Conduct are stated to be terms of employment for its employees. These include terms that provide that: a. WestJet is committed to providing a safe and respectful work environment for all employees; b. harassment includes sexual assault, unnecessary or unwelcome physical contact and any other action that may reasonably be perceived as offensive or disrespectful; c. no?one has the right to harass anyone else at work or in any situation related to employment; d. WestJet will respond to all complaints to ensure they are resolved quickly and fairly; e. WestJet will impose sanctions (including termination) on any employee who violates these requirements; f. anyone who retaliates against a person who has made a complaint will be subject to sanctions. As described below, WestJet breached those terms of employment. Vulnerability of Flight Attendants in the Workplace 16. 17. 18. 19. 20. 21. The ?ight crews at WestJet generally consist of two pilots (captain and ?rst of?cer) and three to four ?ight attendants. The ?ight attendants are subordinate to the pilots and must follow their commands relative to employment, both during operations and on ?layovers?, as de?ned below. The pilots are ultimately responsible for the safety of the aircraft, passengers and ?ight crew. WestJet pilots are predominantly male. West Jet ?ight attendants are predominantly female and often young. WestJet pilots enjoy a higher stature within the company than the ?ight attendants: their pay and bene?ts are much higher than that of the ?ight attendants, the cost to the company for their ongoing training is substantial, and their negotiating power and social status within the company is much greater than the ?ight attendants. The pilots and cabin crew work in close quarters on the aircraft. They are also routinely located away from their homes on overnight stays known as ?layovers?. During layovers, WestJet pilots and ?ight attendants are booked into the same hotel by West] et, usually on the same ?oor of the hotel. The hotel rooms are paid for by WestJet and a per diem amount is provided to the pilots and ?ight attendants for food and beverages. WestJet markets itself to the public and to prospective employees as having an infectious ?team spirit? whereby the ?ight attendants and pilots are encouraged to present themselves as a fun and lively group (WestJet calls this the ?One Crew? concept). This team spirit is encouraged by WestJet both during operations and during layovers. As part of the team spirit, socializing on layovers is common and encouraged by WestJet and this often involves alcohol consumption. Socializing on layovers combined with the workplace power dynamic results in circumstances in which ?ight attendants are vulnerable to pilots who engage in sexual harassment and commit sexual assault. 2008 Sexual Assault by Pilot 22. 23. 24. In August 2008, WestJet received a report from a 26 year old WestJet ?ight attendant, identi?ed here as the ?2008 Complainant?, that on a layover in Grande Prairie, Alberta, she had been sexually assaulted by one of WestJet?s pilots, identi?ed here as ?Pilot WestJet investigated and Pilot admitted to WestJet that he had sex with the 2008 Complainant. The evidence indicated that the 2008 Complainant did not, and could not, have consented to sex with Pilot M. However, contrary to its ?Respect in the Workplace Policy?, WestJet did not dismiss or discipline Pilot M. Nor did WestJet take any steps to warn or protect the women who were required to work with and report to him. Instead, Pilot was allowed to remain in his supervisory role, presenting a continued and unacceptable risk of harm to women with whom he worked, including the plaintiff. 2010 Sexual Assault on the Plaintiff by Pilot 25. 26. 27. On January 24, 2010, the plaintiff was working under Pilot on a schedule that included a layover in Maui, Hawaii. As was its ordinary practice, WestJet had booked the pilots and ?ight attendants to stay in the same hotel, on this occasion, the Makena Beach Resort. As was encouraged by WestJet, the pilots and ?ight attendants socialized that evening on the beach and then over dinner at a restaurant near the hotel. When they returned to the hotel, Pilot invited the plaintiff, the ?rst officer and a male ?ight attendant to his room to have drinks on the balcony. The female ?rst of?cer was intoxicated and went straight to her room to sleep. The male ?ight attendant declined as he wanted to use the computer in the hotel lobby. The plaintiff accepted the invitation and Pilot and the plaintiff sat on his balcony and had a drink and smoked. 28. 29. 30. 31. 32. Pilot and the plaintiff engaged in friendly conversation. At no time did the plaintiff indicate she wanted to engage in sexual activity with Pilot M. After a time, they left the balcony and sat in the room, which was relatively large. The plaintiff sat'on a chair and Pilot sat on the bed, continuing to converse. The plaintiff got up and began gathering her things to leave as they talked. She was standing by the desk in the room when Pilot then attempted to engage in conversation which referenced a scenario of sex with the plaintiff. Uncomfortable having this conversation with her superior, the plaintiff remained friendly but prepared to leave. Pilot then grabbed the plaintiff, pretending to play-wrestle with her. The plaintiff felt fearful and she asked him to stop. She physically resisted him and attempted to verbally de-escalate the situation so she could leave. Pilot stopped, but then attempted to play-wrestle a second time. Again the plaintiff resisted and demanded he stop. Pilot then grabbed the plaintiff and dragged her onto the bed, wrestling her into submission while kissing her and groping her genitals. The plaintiff was terri?ed. She resisted physically, yelling that he stop. Pilot did not stop but rather continued to grope and attempt to kiss her. In her panic, the plaintiff managed to leverage her legs into a position where she was physically able to kick out and push Pilot off her. He stumbled back into a TV stand. The plaintiff, fearful that she was going to be further assaulted, gathered her belongings and again tried to verbally de-escalate the situation with Pilot M. He purported to become conciliatory and told her he wanted her to stay the night with him and offered the plaintiff another drink. The plaintiff refused and left the room. The plaintiff returned to her room. She vomited, cried, attempted to calm herself without success and barely slept. The next day the ?ight crew did not begin their shift until later in the afternoon. The plaintiff remained in her room for most of the day. When she stepped out to buy a coffee from the cafe in the lobby of the hotel, she passed Pilot in a hallway. She avoided contact with him, but he stopped and asked her not to tell anyone about what happened the night before. 33. 34. 35. 36. The plaintiff sent a text to the female pilot who was the ?rst of?cer. The ?rst of?cer invited the plaintiff to come to her room and the plaintiff reported the sexual assault to her. I The crew ?ew back to Vancouver from Maui later that day. On the evening of January 25, 2010, the plaintiff reported the incident in detail to her manager at WestJet and the Flight Attendants Association Board for WestJet. On January 26, 2010, the plaintiff made a report of the sexual assault to the RCMP. The RCMP contacted the Maui police and relayed the plaintiff? 3 information to them. The plaintiff informed WestJet that she had made the report. The Maui police subsequently opened an investigation ?le and later assigned a prosecutor. The plaintiff informed WestJet of these events along with the police ?le number and the name of the prosecutor in Maui. Inadequate Response from WestJet 37. 38. On February 18, 2010, managers at WestJet met with the plaintiff in person for the??rst time to discuss the report. WestJet told the plaintiff that it had suspended Pilot M?s ?Extended Operations? privileges and he was therefore no longer allowed to ?y to Hawaii. WestJet said they could not give the plaintiff any more information about Pilot M. Some weeks later, in March, another in?person meeting was held at the request of the plaintiff. At the meeting, the plaintiff inquired as to whether WestJet had investigated her report of sexual assault any further and what steps WestJet would be taking. WestJet refused to provide her with any information. Instead, WestJet: informed the plaintiff that she would not be scheduled to work with Pilot in the future; and instructed the plaintiff not to speak of the sexual assault to anyone else out of respect for Pilot M?s privacy. 39. 40. 41. 42. WestJet also asked the plaintiff to sign a document which purported to be an agreement that she would not disclose information about the sexual assault to anyone else. The plaintiff refused to sign the document. The result of WestJet keeping the plaintiff off Pilot M?s shifts meant that the plaintiff could not be scheduled for stand-by or reserve shifts like other ?ight attendants because that could result in her being required to work on Pilot M?s crew. This in turn made it dif?cult for the plaintiff to work hours equivalent to a full-time position. The plaintiff?s trust in WestJet was seriously undermined as a result of its response to the sexual assault. The implicit but clear message from WestJet was that while they believed she was assaulted, contrary to its policies, WestJet was not prepared to discipline or terminate Pilot M. Instead, WestJet protected Pilot by: adjusting his schedule so that he would not be arrested by the Maui police; and instructing the plaintiff to keep quiet about the sexual assault. The adjustments to the plaintiff schedule resulted in her losing income and losing opportunities to advance as an employee due to having a schedule with reduced working hours. As a result, the plaintiff felt demoralized, frustrated and degraded by WestJet, and she felt concerned that other ?ight attendants were at risk from Pilot M. Meanwhile, unknown to the plaintiff, in 2010 WestJet managers were dealing with employment issues involving the 2008 Complainant, who they had also told must remain silent about her report of sexual assault by Pilot M. The Plaintiff and the 2008 Complainant Meet in 2015 43. The plaintiff and the 2008 Complainant both attended annual training on April 27, 2015. They had not met before. 44. 45. 46. 47. 10 During the presentations, the plaintiff raised a question as to why WestJet was providing so little training around sexual harassment. An exchange occurred between the instructor and the plaintiff over the prevalence of sexual harassment in the workplace. The 2008 Complainant witnessed this exchange. In late August 2015, she sent a message to the plaintiff wanting to discuss sexual harassment issues at WestJet. The two women then spoke on the phone about their experiences and discovered that they had both been assaulted by Pilot M. For the plaintiff, this information meant that WestJet?s failure to properly investigate and respond to the 2008 Complainant?s report of sexual assault by Pilot had resulted in Pilot being at liberty to assault others, including the plaintiff in January 2010. The plaintiff was distressed as a result of learning this information. She began to suffer from anxiety and feelings of anger and depression. WestJet?s Response to the Plaintiff?s Demands for Information 48. 49. 50. 51. On September 25, 2015, the plaintiff requested from WestJet a copy of her employment ?le. The request was made pursuant to Westlet?s policy which states that when an employee requests a copy of their employment ?le, it will be delivered to them within 30 days. The plaintiffs interest in reviewing her ?le was, in part, to better understand what steps WestJet took in response to her sexual assault complaint. Follow?up requests for her employment ?le were repeated on October 15, October 18, December 2 and December 8, 2015. On December 12, 2015, the plaintiff went on short term disability leave due to the stress and anxiety she was experiencing. While on leave she continued her efforts to obtain her personal employment ?le and made repeated requests for the same on December 29, 2015 and January 12, 2016. 52January 12, 2016, without warning, WestJet wrote the plaintiff and informed her that her employment was terminated for cause due to ?insubordination? and referred to two incidents: the plaintiff wrote an email to a manager on January 12, 2016 at 9:57 am. in which she again demanded production of her employment ?le, and the email included a swear word; and the plaintiff disconnected a call to a WestJet manager that she had inadvertently dialed on the afternoon of January 12, 2016. WestJet?s termination letter advised that this ?disrespectful conduct toward leadership? coupled with a ?complete review of the discipline? on her employment ?le resulted in the decision to terminate her employment for cause. The plaintiff has no discipline history for ?insubordination? so a review of the ?le could not have provided any additional basis for termination for cause on that basis. The incidents cited as the basis for cause do not meet the high standard for cause required by law. The plaintiffs expression of her understandable frustration at WestJet?s refusal to provide employment file in a timely manner, in breach of WestJet?s own policies, was not an act of disobedience of the plaintiff 3 employment duties that could possibly amount to insubordination. In view of the facts set out above, WestJet?s abrupt termination of the plaintiff, in contravention of WestJet?s own discipline and termination procedures, was high-handed and retaliatory. Further, WestJet?s termination of the plaintiff, at a time when she was already on stress leave as a result of WestJet?s conduct, violated her dignity and has caused her a high degree of further distress, anxiety and feelings of degradation. Part 2: l. 2. 12 RELIEF SOUGHT A declaration that WestJet negligently and in breach of its express and implied terms of its employment with the plaintiff failed to adequately protect the plaintiff by: a. conducting an inadequate investigation of the 2008 Complainant?s report of sexual assault by Pilot b. failing to appropriately discipline Pilot in relation to the sexual assault of the 2008 Complainant; c. failing to protect other ?ight attendants and employees, such as the plaintiff, from Pilot following the sexual assault of the 2008 Complainant; d. wrongfully requiring the 2008 Complainant to remain silent, thereby preventing information about her experience from circulating informally and serving as a warning to other employees about Pilot A declaration that WestJet negligently and in breach of its express and implied terms of its employment contract with the plaintiff caused further harm to her by: failing to properly investigate the sexual assault by Pilot of the plaintiff; failing to take appropriate steps in response to the sexual assault and instead taking steps that undermined the plaintiff? dignity and self?worth by: failing to discipline Pilot (ii) imposing schedule changes on the plaintiff?s work schedule that undermined her earnings and ability to advance in the place of employment; imposing changes to Pilot M?s employment that protected him from the criminal investigation in Maui pursuant to the plaintiff?s report of the sexual assault; (iv) wrongfully demanding that the plaintiff remain silent about the sexual assault; 13 3. A declaration that the plaintiffs employment was wrongfully terminated for cause; 4. General damages; 5. Special damages; 6. Punitive damages; 7. Interest; 8. Costs on a solicitor-client basis; and 9. Such further and relief as this Court considers just. PART 3: LEGAL BASIS Liability Negligence and Breach of Contract 1. At all material times, WestJet owed a duty of care to the plaintiff to ensure that the plaintiffs work environment was safe and free from sexual harassment and assault. 2. In relation to the 2008 sexual assault, WestJet breached the aforementioned duty of care and fell below the applicable standard of care by, among other things: a. failing to properly train its employees about investigating sexual harassment and sexual assault complaints and imposing appropriate discipline; b. failing to properly investigate the 2008 Complainant?s report of sexual assault; c. failing to discipline Pilot effectively or at all for his sexual assault on the 2008 Complainant; d. failing to ensure that Pilot did not have opportunities to sexually harass and assault other employees, like the plaintiff; e. failing to warn the plaintiff and other employees that Pilot had previously committed a sexual assault; 14 f. endeavouring to silence the 2008 Complainant so that she could not circulate information about her sexual assault as a means of warning others, including the plaintiff. 3. In relation to the 2010 sexual assault, WestJet breached its duty of care and fell below the applicable standard of care by, among other things: a. failing to properly investigate the sexual assault by Pilot of the plaintiff; b. failing to take appropriate steps in response to the sexual assault and instead taking steps that undermined the plaintiff?s dignity and self-worth by: failing to discipline Pilot (ii) imposing schedule changes on the plaintiff?s work schedule that undermined her ability to advance in the place of employment; imposing changes to Pilot M?s employment that protected him from the criminal investigation in Maui pursuant to the plaintiff 5 report of the sexual assault; (iv) wrongfully demanding that the plaintiff remain silent about the sexual assault. 4. For the same reasons as set out above in paragraphs 2 and 3, WestJet breached its employment contract with the plaintiff, the terms of which required that the plaintiff would have a safe workplace, free from sexual harassment and sexual assault and that all instances of the same would be apprOpriately investigated and dealt with in a manner that prioritized the safety of its employees. 5. As a result of the foregoing, WestJet is liable to the plaintiff for negligence and breach of contract. She has suffered loss and damages as a result. Wrongful Dismissal 6. The plaintiffs employment was wrongfully terminated as there was no reasonable basis to dismiss her for cause. 15 Damages Suffered 7. The loss and damages suffered by the plaintiff include: a. b. physical, emotional and harm from the sexual assault; aggravation of the emotional and harm as a result of the inadequate investigation of the sexual assault; loss of employment opportunities and potential earnings; depression; and such further and other loss as the plaintiff will identify. Place of Trial: Vancouver, BC Win?(0L I 2016 Date Couns?Lfor the?Xolaintiff THIS NOTICE OF CIVIL CLAIM is ?led and delivered by: Farris, Vaughan, Wills Murphy LLP 25th Floor, 700 Georgia St Vancouver, BC V7Y 1B3 Tel 604 661 9366 Fax 604 661 9349 Attention: Sean Hern