The BC Human Rights Tribunal rejected an application by an employer to defer an employee’s human rights complaint because the employee was proceeding with a wrongful dismissal claim in Reich v. Gray Monk Cellars and others, 2011 BCHRT 94
The employee was advancing a discrimination complaint based on allegations that the employer had dismissed an employee because of various prohibited grounds.
The BC Human Rights Tribunal wrote:
[5] Ms. Reich says she met with Trudy Heiss on the same day for an explanation. She alleges she was told that the company would be hiring younger workers, that she did not fit the company’s “profile or criteria”, that Ms. Reich’s “health” created “negativity” and that the job was too stressful for her.
[8] The Respondents provided a Notice of Claim in the Provincial Court, Kelowna Registry #89014, filed against them by Ms. Reich on October 15, 2009, claiming damages for wrongful dismissal, lost wages and emotional distress. They say Ms. Reich’s court action is in respect of the same events which are the subject of her human rights complaint. They say the Provincial Court has jurisdiction to deal with this matter and therefore apply to have Ms. Reich’s complaint deferred pending the outcome of the court action.
ANALYSIS
[11] Section 25 of the Code authorizes the Tribunal to defer a complaint:
(1) In this section and in section 27, “proceeding” includes a proceeding authorized by another Act and a grievance under a collective agreement.
(2) If at any time after a complaint is filed a member or panel determines that another proceeding is capable of appropriately dealing with the substance of a complaint, the member or panel may defer further consideration of the complaint until the outcome of the other proceeding.
[12] A Provincial Court Action is a proceeding within the meaning of s. 25(1). Is Ms. Reich’s Provincial Court claim “capable of dealing with the substance of her complaint?” In Young v. Coast Mountain Bus Company, 2003 BCHRT 28, the Tribunal provided a non-exhaustive list of factors to be considered on a deferral application, including the nature and subject matter of the other proceeding, the adequacy of the remedies available, fairness to the parties, timeliness, and the status of the respective proceedings: para 19.
[13] The Tribunal has considered deferral of a human rights complaint where there was a pending wrongful dismissal action in the Provincial Court: See Auchoybur v. Walcan Seafood, 2003 BCHRT 69; Woodland v. Barnes Wheaton Chevrolet Cadillac and others, 2007 BCHRT 470; Becker v. Cariboo Chevrolet Oldsmobile Pontiac GMC, 2003 BCHRT 90.
[14] Ms. Reich’s human rights complaint alleges, and the issue before the Tribunal is, whether the Respondents discriminated against her in violation of the Code. The questions to be answered include whether Ms. Reich is a member of a protected group, whether she was subjected to adverse treatment, whether there is a connection between the adverse treatment and the protected characteristics, i.e. her age, disability, sex, and if so, whether the Respondents’ conduct was justified.
[15] In the Provincial Court Action the issue is wrongful dismissal and damages. I have no way of knowing if the human rights issues will be addressed by the court, but the subject matter of the two proceedings is conceptually different. Termination for just cause is conceptually different from termination based on allegedly discriminatory factors or compact. As to remedies, Ms. Reich’s claim for wrongful dismissal is limited by the court’s monetary jurisdiction. It cannot find discrimination or award damages for injury to dignity, feelings and self-respect: See Newspaperdirect v. Arganda, 2006 BCHRT 48.
[16] Given these differences, I am not persuaded that the Provincial court proceeding is capable of dealing with the substance of the human rights complaint or that processing this complaint would be unfair to the parties under the circumstances.
Summary and Conclusion:
The implications of this decision, and similar earlier decisions, is that in the often encountered situation of a claim by an individual who claims discrimination on a ground prohibeted by the Human Rights Code, should the employee wish to do so, he or she would normally be able to pursue two separate claims against the employer. The employee could sue for wrongful dismissal damages in court, and for statutory damages and other remedies in the BC Human Rights Tribunal.