Cui v. Fluor Constructors Canada Ltd., 2025 BCHRT 145
Date Issued: June 18, 2025
File: CS-011779
Indexed as: Cui v. Fluor Constructors Canada Ltd., 2025 BCHRT 145
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Chen Cui
COMPLAINANT
AND:
Fluor Constructors Canada Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DEFER A COMPLAINT
Section 25 and Rule 16
Tribunal Member: Ijeamaka Anika
Advocate for the Complainant: Yu-Fong Lin
Counsel for the Respondent: Victoria Merritt
I INTRODUCTION
[1] In March 2024, Chen Cui filed a complaint against Fluor Constructors Canada Ltd. [Fluor] alleging discrimination in employment based on race, contrary to s. 13 of the Human Rights Code. Mr. Cui alleges that an apprentice at Fluor was racist to him during a safety incident at work. He says that Fluor placed him on administrative leave during its investigation but not the apprentice, failed to consider evidence from non-white workers who supported his position, and terminated his employment without meaningfully addressing his discrimination and harassment complaints.
[2] Fluor denies discriminating. It seeks a deferral of the complaint under s. 25 of the Code and Rule 16 of the Tribunal’s Rules of Practice and Procedure until the outcome of Mr. Cui’s Prohibited Action Complaint [PAC] with WorkSafeBC. Fluor says a deferral is fair and warranted given the commonality in the subject matter and evidence between the complaint and the PAC, the adequacies of the remedies available in the PAC proceeding, and the importance of preventing duplicative claims in parallel proceedings, all of which are in the public interest to avoid.
[3] Mr. Cui opposes the application. He says Fluor has not stated the duration of the deferral it is requesting, how the wait will affect the parties, and whether the PAC proceeding can deal with the human rights issues in the complaint.
[4] I have considered all the information filed by the parties in this application. This is not a complete recitation of the parties’ submissions, but only those necessary for me to reach a decision.
[5] For the reasons that follow, Fluor’s application is denied.
II BACKGROUND
[6] This background is taken from the materials filed by the parties. I make no findings of fact on the merits of the complaint.
[7] In July 2023, Mr. Cui started working for Fluor in Kitimat as a scaffolding journeyman. On December 27, 2023, a safety incident occurred when Mr. Cui’s scaffolding crew was moving materials [the safety incident]. Fluor says that an apprentice sustained an injury from the safety incident, as a direct result of Mr. Cui’s actions.
[8] Mr. Cui says that following the safety incident, the apprentice bullied and harassed him on three occasions and reported the incident to Fluor before Mr. Cui filed his own complaint. Mr. Cui says that immediately following the incident, the apprentice became very aggressive towards him. Mr. Cui and the apprentice started yelling at each other until the apprentice left the area where they were working. Mr. Cui says he then went to ask the apprentice what was going on and the apprentice was on the phone talking to someone despite a company policy against using cellphones on the site during working hours. He says he asked the apprentice why he was using the phone on the site and the apprentice passed the phone to another employee and walked away. Mr. Cui says a few minutes later, he saw the apprentice on the ground level of the site and walked towards him to ask why he yelled at him earlier. Mr. Cui says the apprentice yelled at him again and almost punched him.
[9] Mr. Cui alleges that following the safety incident, Fluor did not adequately investigate his complaint against the apprentice. On December 28, 2023, during the investigation into the safety incident, Mr. Cui told his supervisor that he believed the apprentice’s conduct was harassment and racially motivated. Mr. Cui says that Fluor asked for statements from three white workers and did not ask for statements from four of his non-white co-workers. Mr. Cui also says he did not have a chance to defend himself despite Fluor company policy regarding clear and transparent investigations. Mr. Cui says Fluor ignored the apprentice’s history of racist attacks in its investigation. He says that the apprentice did not follow his instructions and got hurt.
[10] Mr. Cui was suspended while the investigation was ongoing. He says he was suspended following the incident while the apprentice was allowed to continue working. He says after the safety incident he was subjected to a drug and alcohol test, but he was not told whether the apprentice was also subjected to a similar test. Mr. Cui says that by failing to share this information with him, Fluor bullied and harassed him by treating him differently from the apprentice involved in the safety incident.
[11] Fluor says in its investigation, it ruled out drugs and alcohol as a factor in the safety incident and took witness statements from eyewitnesses. It says it did not prevent any workers with relevant information from providing a witness statement on the basis of their race. It says the investigation determined as follows: Mr. Cui caused the injury, and Mr. Cui was aggressive towards the apprentice on three occasions following the safety incident. On this basis, Fluor determined that Mr. Cui breached its Respectful Workplace Policy.
[12] In a letter to Mr. Cui on December 31, 2023, Fluor terminated Mr. Cui’s employment effective on December 29, 2023. Mr. Cui says that although the termination letter was effective December 29, 2023, Fluor gave it to him on January 1, 2024. He says the discrepancies in the dates constituted bullying and harassment because it was unclear to him why he was given the letter three days after the investigation was concluded.
[13] In February 2024, Mr. Cui filed the PAC and in March 2024, filed his complaint with the Tribunal.
III DECISION
[14] Fluor applies to defer this complaint pending the outcome of the PAC proceedings.
[15] The Tribunal has discretion under s. 25(2) of the Code to defer further consideration of a complaint if it is satisfied that another proceeding is capable of dealing appropriately with its substance. The Tribunal’s authority to defer a complaint under s. 25 arises out of a legislative intent that its resources should not be expended if it would result in needless duplication of the other proceeding’s adjudicative resources: Young v. Coast Mountain Bus Company Ltd., 2003 BCHRT 28 at para. 21.
[16] The Tribunal also has discretion under Rule 16(1) of the Tribunal’s Rules to defer consideration of a complaint until the outcome of another proceeding or another date if it is fair and reasonable in all the circumstances to do so. Rule 16(1)(b) reflects a broader basis for deferral and gives the Tribunal discretion to defer a complaint if it would be fair and reasonable in the circumstances.
[17] I first address the appropriate basis for deferral in this case. I then give my reasons for not deferring the complaint.
[18] Rule 16(1)(b) provides the appropriate basis for a deferral whether it is fair and reasonable to defer consideration of the complaint. Next, I explain why this is the appropriate basis and then explain why I consider it is fair to consider the application on this basis when the parties’ submissions mainly focused on s. 25(2) of the Code. This is consistent with the Tribunal’s approach in Adam v. Adastra Labs Holdings (2019) Ltd., 2023 BCHRT 228, at para 19.
A. Requirements for deferral
[19] Rule 16(1) reflects two bases for deferral:
(1) The tribunal may defer consideration of a complaint until the outcome of another proceeding, or a date set by the tribunal, if it determines that:
(a) another proceeding is capable of appropriately dealing with the substance of the complaint; or
(b) it is fair and reasonable in all the circumstances to do so.
[20] Rule 16(1)(a) reflects the basis for deferral set out in s. 25(2) of the Code, whereas Rule 16(1)(b) reflects a broader basis for deferral. Section 27.3(1) of the Code provides that the Tribunal may make rules respecting practice and procedure to facilitate the just and timely resolution of complaints. In Rule 16(1)(b), the Tribunal has identified that deferral may facilitate the just and timely resolution of a complaint in circumstances other than the ground found in s. 25(2) of the Code.
[21] Section 25(2) is focused on those proceedings that are capable of appropriately dealing with the subject of the human rights complaint. The wording in s. 25(2) is similar to that in s. 27(1)(f) of the Code, which permits the Tribunal to dismiss a complaint if the substance of the complaint has been appropriately dealt with in another proceeding.
[22] Fluor does not assert that the PAC proceeding has jurisdiction to decide human rights issues. However, it asserts that the PAC will make findings of fact on the identical fact pattern the Tribunal has been asked to make findings of fact. It is undisputed that the issue of discrimination is not raised in the PAC proceeding and that the legal issues before the Tribunal and the PAC proceedings are not essentially the same. The Tribunal has said that in such situations, deferral should properly be considered under Rule 16(1)(b): Adastra, at para. 19.
[23] The Tribunal’s reasoning in Adastra applies here. In Adastra, the Tribunal distinguished between cases where, in the other proceeding, the human rights issue is raised, or the decisionmaker is being asked to decide essentially the same legal issue as what the Tribunal will decide under the Code, and those cases where the human rights issue is not raised in the other proceeding, or where the legal issues are not essentially the same: para. 21. In the former, the basis of deferral is clear, subject to consideration of relevant factors such as the status of the other proceeding: Young, at para. 19, Adastra, at para. 21. In the latter, the applicant must establish that it is fair and reasonable in all the circumstances to defer the complaint: Adastra, at para. 21. The fact that both proceedings arise from the same events is a relevant consideration, but may not, on its own, provide a basis to defer the complaint.
[24] I now turn to the fact that the parties made their submissions under s. 25(2) of the Code. Despite this, I am satisfied that it is fair to consider the deferral on the basis of whether it is fair and reasonable in all the circumstances.
[25] First, in its response to the complaint, Fluor identified that Mr. Cui had filed a PAC with WorkSafeBC. It stated that the PAC may issue remedies to Mr. Cui that could potentially overlap with the remedies to be issued by the Tribunal. In response, Mr. Cui submitted that he did not want the Tribunal to wait to deal with his complaint and that pursuant to s. 25 of the Code, the PAC proceeding does not have the power to deal with the human rights issues. He argues that Fluor’s deferral application is being made to delay the complaint. In his response, Mr. Cui appears to have assumed that Fluor applied under s. 25(2) of the Code and Fluor replied on the same basis.
[26] Second, I am satisfied that the parties had a fair opportunity to make submissions on the considerations relevant to Rule 16(1)(b) and the basis for my decision. Mr. Cui did not make submissions on the application of Rule 16(1)(b) while in its reply submissions, Fluor addresses the rationale for the deferral and recognises that the factors set out in Young are relevant under Rule 16(1)(b). Mr. Cui is represented in the Tribunal by an advocate, and I do not find the fact that he did not make submissions on the precise issues before me to weigh against him: Cameron v. Northern Health Authority and others, 2024 BCHRT 48, at para 32.
[27] Fluor also addressed the fact that the PAC does not allege discrimination and provided case law about wrongful dismissals where another proceeding is capable of dealing with the substance of the complaint including the human rights issues. Fluor cites Massey v. Hollyburn Properties, 2005 BCHRT 352 and Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd., 2003 BCHRT 90. It argues that in both cases, the Tribunal stated that the subject matter of the other proceeding does not need to be identical to that of the complaint. Rather the focus is on whether the other proceeding is capable of addressing the human rights issue raised in the complaint and is able to deal with them in a way that is consistent with the purposes of the Code. In both cases, the Tribunal declined to defer the complaints on the basis that the wrongful dismissal lawsuit at the BC Supreme Court was not capable of appropriately dealing with the substance of the complaints. The Tribunal was not persuaded that the BC Court of appeal was capable of dealing with the complainants’ claim of discrimination because the court was not looking at the allegation of discrimination made by the complainants.
[28] Next, I consider whether it is fair and reasonable to defer the complaint under Rule 16(1)(b).
B. Is a deferral fair and reasonable in the circumstances?
[29] When deciding whether it is fair and reasonable to defer a complaint pending the outcome of another proceeding, the Tribunal may consider that its discretion to defer reflects a legislative intention that its resources are not employed when doing so would result in the unnecessary duplication of other adjudicative resources: Young at para. 21; Cameron at para. 29; Rutledge v. Canex Building Supplies and another, 2018 BCHRT 41 at paras. 19-20; Complainant X v. B.C. (Ministry of Children and Family Development) and another (No. 2), 2012 BCHRT 98 at para. 28. The Tribunal may also consider that deferral is a temporary measure, and that if a decision is made to defer it will remain to be decided after the outcome of the other proceeding whether it did in fact appropriately deal with the substance of the complaint: Young at para. 20.
[30] Fluor says both proceedings are based on the same alleged facts and allegations surrounding Mr. Cui’s conduct, what occurred during the safety incident and afterwards, and the reasons for the termination of Mr. Cui’s employment. Mr. Cui does not dispute that the alleged key facts in both proceedings are the same but essentially argues that the PAC cannot address the discrimination issue.
[31] As set out above, because the PAC does not raise a violation of the Code, Fluor must identify a reasonable basis for the deferral.
1. The nature and subject matter of the PAC
[32] I find that the nature and substance of the proceedings are sufficiently similar to weigh in favour of deferral. Both proceedings cover the same time period and the same alleged facts. In both proceedings, Mr. Cui claims that Fluor allegedly terminated his employment because of the safety incident, even though it did not properly investigate the incident and the apprentice’s conduct towards him afterwards, which he claims constituted racial bullying and harassment. In both proceedings, Fluor says Mr. Cui’s employment was terminated because it determined that Mr. Cui caused the injury in the safety incident, and he was persistent and aggressive towards the apprentice after the safety incident which breached Fluor’s Respectful Workplace Policy. In this case, both the Tribunal and the PAC are being asked to make findings on the same evidence about the heart of the complaint, namely the termination of Mr. Cui’s employment.
2. The adequacy of the remedies available in the PAC proceeding
[33] Fluor has not established that the PAC proceedings can provide adequate remedies. Regarding the adequacy of remedies, Fluor says this factor weighs in favour of deferral because WorkSafeBC can order similar remedies to those available under the Code, such as an order requiring Fluor to cease the prohibited action or compensation for lost wages. It submits that the Tribunal would have to take the award the PAC may order into account in any remedies given to Mr. Cui. Fluor argues that the PAC applies a “make-whole” compensatory principle that the Tribunal adopts in seeking to place the worker in the position they would have been ‘but for’ the discrimination.
[34] Mr. Cui does not address the adequacy of remedies available at the PAC. He briefly submits that Fluor’s deferral application is a stalling tactic and does not meet the relevant legal requirements.
[35] I agree with Fluor that there is some overlap between the remedies available to Mr. Cui under the Workers Compensation Act and the Code. However, in the event Mr. Cui succeeded with his human rights complaint, he may be entitled to an award for injury to dignity, feelings and self respect: Code, s. 37(2)(d)(iii). Fluor did not point to, and I am not aware of, a comparable remedy in the PAC process. This factor weighs against deferring the complaint.
3. Status of the PAC proceeding
[36] Fluor has not established reasonable timeliness of the PAC proceeding to justify deferral. Fluor argues that it reasonably expects the PAC proceeding to be placed in the queue for a merits decision by June 2025. It says that the parties filed its submissions in that process by March 3, 2025, with Fluor due to provide its sur-reply (if any) by May 15, 2025. It says that once all the submissions are received, the next step will be for WorkSafeBC to place the matter in the adjudication queue for a decision on the merits of the complaint.
[37] Mr. Cui submits that Fluor does not state the duration of the deferral they are requesting or make submissions regarding the effect of the deferral on the parties. He also says that the deferral application is a stalling tactic.
[38] I find that this factor weighs against deferral of the complaint. Fluor has not provided the Tribunal with an estimate for when WorkSafeBC might issue a decision on the PAC proceedings. It is not clear to me whether submissions have been completed and there is no date set down for the hearing of the merits of the PAC. Therefore, I find that there is no basis of a determination that it would be fair or reasonable to require Mr. Cui to proceed with that process first, or that it would resolve first.
4. Fairness and public interest
[39] Finally, regarding fairness and the public interest, Fluor submits that because many of the underlying facts and allegations are the same, it is likely that WorkSafeBC will make findings of fact material to the human rights complaint and reach a final resolution on the allegations sooner than the Tribunal would. Fluor also states the complaint risks establishing conflicting facts and inconsistent conclusions in two forums on the same evidence. It submits that it is in the public interest to avoid duplicative expenditure of resources particularly given the backlogs in both forums. Therefore, it say it is not in the public interest to use Tribunal resources prior to a determination of the PAC.
[40] The Tribunal has said that what is fair to the parties, and in the public interest, is avoiding whenever possible the unnecessary duplication of proceedings and expenditures of public and private resources: Rutledge v. Canex Building Supplies and another, 2018 BCHRT 41 at paras. 19-20; Complainant X at para. 28.
[41] In my view, this factor does not weigh in favour of deferral in the circumstances. I find that the risk of conflicting findings does not justify indefinite delay. While there may be a risk that different decision makers will make diverse findings of fact, I am not convinced that it is fair and reasonable to defer the Complaint in circumstances where it is not clear if submissions on the PAC have closed, or whether and when the PAC proceeding will be placed in the queue for adjudication and a decision on the merits. The Tribunal applied this reasoning in recent decisions, and I find the reasoning applicable here: Cameron at para 33. With more information on timelines, a short deferral might be fair and reasonable in the circumstances. However, without that information, I am not so satisfied.
[42] The application to defer the complaint is denied.
IV CONCLUSION
[43] I deny the application to defer the complaint. The case manager will set deadlines for the parties to complete disclosure.
Ijeamaka Anika
Tribunal Member