THE ADVOCATE 377
VOL. 77 PART 3 MAY 2019
ment”. By contrast, the Employment Standards Tribunal
expressly does not have any jurisdiction to
address claims arising under the B.C. Human Rights
Code, RSBC 1996, c 210. See Employment Standards
Act, RSBC 1996, c 113, s 103(g).
14. Weber v Ontario Hydro, 1995 2 SCR 929 Weber.
15. Supra note 2 at para 9.
16. WestJet employees have been actively seeking union
recognition—WestJet and its pilots (for both WestJet
and its discount carrier, Swoop) secured an arbitrated
first contract in December 2018; earlier in the
summer of 2018, CUPE became the certified bargaining
agent for WestJet’s flight attendants.
17. Ms. Lewis was actively involved in the flight attendants’
union organizing drive and has filed a separate
individual wrongful dismissal action. See David
P Ball, “WestJet Fired or Investigated Four Union
Activists in Last Year”, The Tyee (22 March 2016),
Firing-Investigation>; Eric Rankin, “WestJet Sexual
Assault Lawsuit Filed by Ex-Flight Attendant”, CBC
News (2 March 2016), online: <www.cbc.ca/news/
18. Ms. Lewis’s personal claim is somewhat similar
(albeit much less extreme) to another case that is proceeding
in the US against JetBlue Airways Corporation.
See Elizabeth Rosner & Tamar Lapin, “JetBlue
Pilots Drugged, Raped Three Female Airline Workers:
Suit”, New York Post (20 March 2019), online:
19. Lewis BCSC, supra note 2 at para 44.
20. WestJet also argued that the claim should be struck
out because it constituted an abuse of process, the
NOCC did not disclose a reasonable cause of action
and in any event the claim was statute-barred.
21. RSC 1985, c H-6.
22. See R v Imperial Tobacco Canada Ltd, 2011 SCC 42
esp at para. 21 (quoted in Lewis BCSC, supra note 2
at para 52).
23. Lewis BCSC, supra note 2 at para 55.
24. Ibid at para 56.
25. RSBC 1996, c 492.
26. Lewis BCSC, supra note 2 at para 50.
27. Lewis, supra note 2 at para 18.
28. Ibid at para 26.
29. Ibid at para 51.
30. Ibid at para 54.
31. Ibid at paras 55–56.
32. See e.g. Poliquin v Devon Canada Corporation,
2009 ABCA 216; Ogden v Canadian Imperial Bank
of Commerce, 2015 BCCA 175.
33. Merrifield v Canada (Attorney General), 2019
ONCA 205. Although there is a recognized tort of
“intentional infliction of mental suffering” (or
“harm”). See e.g. Boucher v Wal-Mart Canada
Corp, 2014 ONCA 419; McLean v McLean, 2019
34. Just as employment standards legislation provisions
are not deemed to for m part of the employment contract
(but nonetheless can be expressly incorporated
into t he employment contract). See Macaraeg v E
Care Contact Centers Ltd, 2008 BCC A 182, leave to
appeal to SCC refused, 2008 SCC A No 293.
35. 2014 SCC 71 Bhasin.
36. Ibid at para 63. “Good faith” obligations are inherent
in employment contracts, albeit with some asymmetr
y as between the parties’ respective good fait h
obligations. Employees have an implied duty of
good faith, loyalty and fait hful service. See Gregor y
K Steele & Kenneth Wm Thornicroft, Employment
Obligations & Confidential Information, 3rd ed
(Toronto: LexisNexis Canada Inc, 2015), esp ch 3.
employers need not have a “good faith for dismissing an employee (alt hough an
employer can be held to a good fait h standard when
triggering a termination provision (see Mohamed v
Information Systems Architects Inc, 2018 ONC A
428)), employers do have “an obligation of good
faith and fair dealing in t he manner of dismissal”
(see Wallace v United Grain Growers Ltd, 1997 3
SCR 701 at para 95). This good faith obligation may
oblige an employer to more closely scr utinize an
employee’s resignation to ensure that it is bona fide
and voluntar y (see Avalon Ford Sales (1996) Limited
v Evans, 2017 NLCA 9). An employer must act in
good faith when suspending an employee, even if
t he suspension is with pay (Potter v New Brunswick
Legal Aid Services Commission, 2015 SCC 10).
37. Bhasin, supra note 35 at para 65.
38. Had WestJet prevailed on its motion, t here might
have been at least t hree separate proceedings relating
to Ms. Lewis’s various claims: in the courts (her
wrongful dismissal claim), before the Canadian
Human Rights Tribunal (the discrimination/harassment
claims) and before the Workers’ Compensation
Board (for workplace injury). In addition, Ms. Lewis
apparently considers t hat her dismissal may have
in retaliation for her union organizing this claim could proceed in a fourth for um, the
Canadian Industrial Relations Board. In my view,
t hat sor t of situation bespeaks of far too much
process and should be avoided whenever it is legally
possible to do so.
39. The courts offer several advantages relative to a
human rights tribunal, including t he authority to
meaningful cost recovery orders, grant remedies including aggravated and punitive
damages, proper discover y r ules which ameliorate
trial by ambush” concerns, and substantial with class proceedings (where there is a class
claim). Section 46.1 of t he Ontario Human Rights
Code, RSO 1990, c H.19 grants the civil cour ts the
to order compensation for certain of the Ontario statute.