Kelly v. Concord Parking, 2025 BCHRT 239
Date Issued: September 19, 2025
File: CS-010709
Indexed as: Kelly v. Concord Parking, 2025 BCHRT 239
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:
Janet Kelly
COMPLAINANT
AND:
Concord Parking
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DEFER A COMPLAINT
Rule 16
Tribunal Member: Theressa Etmanski
Counsel for the Complainant: Paul M. Pulver
Counsel for the Respondent: Sara Shuchat
I INTRODUCTION
[1] Janet Kelly filed a human rights complaint against her former employer, Concord Parking, alleging discrimination in employment contrary to s. 13 of the Human Rights Code. She alleges that when she sought accommodation for a disability, Concord failed to accommodate her and instead terminated her employment.
[2] Concord applies to defer Ms. Kelly’s complaint pending the outcome of a related civil claim against it filed by Ms. Kelly in the Supreme Court of British Columbia [Civil Action]. Concord says the two proceedings contain almost identical allegations and are based on the same factual foundation. Concord says the Civil Action is capable of appropriately dealing with the substance of the human rights complaint and offers adequate remedies. Concord further says the Civil Action is at an advanced stage of proceedings, and fairness dictates that a deferral is appropriate in all the circumstances.
[3] Ms. Kelly opposes the application and says the issues to be decided in the two proceedings are different, and a decision in the Civil Action will not be determinative of the human rights complaint. She says that it would not be fair or reasonable in all the circumstances to defer the complaint.
[4] The issue I must decide on this application is whether, given the advanced stage of the Civil Action and the overlapping factual foundation in the two proceedings, it is fair and reasonable in all the circumstances to defer the complaint.
[5] For the following reasons, I grant the application.
II BACKGROUND
[6] The background is taken from the materials filed by the parties. This complaint is at an early stage of the Tribunal’s proceedings; Concord has not yet filed a Complaint Response. I have not attempted to capture the entire background and chronology of events, only what is necessary for my consideration of this application. I make no findings of fact and no findings on the merits of the complaint.
[7] Concord employed Ms. Kelly in the position of Contract Manager at its client location, Vancouver International Airport [Airport]. She was responsible for managing approximately 120 employees and oversaw Concord’s parking, commercial vehicle, and ground transportation operations at the Airport. She reported to various individuals, including Concord’s President, and two representatives at the Airport [Airport Representatives].
[8] In September of 2022, Ms. Kelly was diagnosed with vertigo. On her doctor’s advice she commenced a medical leave from work in October of 2022. Her doctor provided notes excusing her from work up to January of 2023.
[9] During her medical leave, Ms. Kelly says she was informed by Concord’s President of concerns the Airport Representatives had about her returning to her role, given her disability. She says the President asked Ms. Kelly if there were other roles she was interested in performing.
[10] After Ms. Kelly told the President that she had been cleared to return to work by her doctor at the beginning of January 2023, she says the President advised her that they had hired a replacement for her position at the Airport, and they would find her another position in consideration of her limitations on returning to work.
[11] Ms. Kelly says her doctor recommended a gradual return to work schedule with no other limitations. She began her return to work on January 23, 2023. However, she says Concord failed to provide her with meaningful work. In or around May of 2023, Ms. Kelly says she was offered an administrative role on a limited basis, with a 40 percent salary reduction. Ms. Kelly says she informed the President that she was not prepared to accept this position.
[12] In June 2023, Concord terminated Ms. Kelly’s employment.
[13] Ms. Kelly filed her human rights complaint on September 15, 2023. On the same day, she filed the Civil Action. In the Civil Action, Ms. Kelly alleges that she was wrongfully dismissed and that Concord breached her employment contract. Ms. Kelly’s allegations in the Civil Action arise from the same factual allegations described in her human rights complaint.
[14] In its response to the Civil Action, Concord says it removed Ms. Kelly from the Contract Manager position at the request of the Airport, but it attempted to find her other meaningful work in accordance with her medical limitations. In particular, the President made multiple attempts to discuss a temporary administrative role with Ms. Kelly, but she did not attend the scheduled meetings. Concord says it terminated Ms. Kelly’s employment in adherence with her employment contract, after she decided not to accept its good faith efforts to offer her employment in another capacity.
III DECISION
[15] Concord applies to defer the complaint pending the outcome of the Civil Action under s. 25(2) of the Code. The Tribunal has discretion under s. 25(2) to defer consideration of a complaint if it is satisfied that another proceeding is capable of appropriately dealing with its substance. The Tribunal also has discretion under Rule 16(1)(b) of the Tribunal’s Rules of Practice and Procedure 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.”
[16] The Tribunal’s statutory authority to defer a complaint arises out of a legislative intent that its resources should not be expended if it would result in needless duplication of other adjudicative resources: Young v. Coast Mountain Bus Company, 2003 BCHRT 28at para. 21.
[17] Deferral of a complaint is a temporary measure. The burden is on the party seeking the deferral to establish that granting one would be appropriate in the circumstances: Copeland v BC Ministry of Public Safety and Solicitor General, 2006 BCHRT 383, at para. 17.
[18] I first address the appropriate basis for a deferral in this case. I then give my reasons for granting the application.
A. Basis for the deferral
[19] I follow the Tribunal’s approach in Adam v. Adastra Labs Holdings (2019) Ltd., 2023 BCHRT 228 at paras. 13-26, and find that Rule 16(1)(b) is the appropriate basis for deferral in this case. Ms. Kelly argues, and I accept, that this is not a case where the decision-makers in the different proceedings are being asked to decide essentially the same legal issue. The Civil Action alleges breach of contract and wrongful dismissal, whereas the human rights complaint alleges discrimination including a failure to accommodate. In these circumstances, to be successful the applicant must establish that it is fair and reasonable in all the circumstances to defer the complaint.
[20] 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. Both parties have addressed the factors set out in Young which the Tribunal has found may be relevant under Rule 16(1)(b).
[21] Further, as explained in Adam, a decision deferring consideration of a complaint pending the outcome of another proceeding is a temporary measure, in the nature of a stay of proceedings: Young at para. 20. A deferral does not deprive Ms. Kelly of her ability to pursue her claim under the Code; it merely determines that it is fair and reasonable to wait for the outcome of the Civil Action.
B. Application of Rule 16(1)(b)
[22] I now turn to consider whether it is fair and reasonable to defer consideration of the complaint pending the outcome of the Civil Action. Since both parties have made submissions following the Young factors, I follow this structure in my reasons below.
1. Nature and subject matter of the Civil Action
[23] Concord says the complaint before the Tribunal and the Civil Action are based on the same factual foundation and the Court and the Tribunal will be asked to make factual findings on the same issues. While the Court will make determinations in the Civil Action in the context of breach of contract and the Tribunal will make determinations under s. 13 of the Code, Concord says the factual issues being determined are the same, and therefore a deferral is necessary to avoid duplication: Espiritu v. FS Whistler Holdings dba Four Seasons Resort Whistler, 2021 BCHRT 69 at para. 18.
[24] The fact that there may be an evidentiary overlap between two proceedings is not determinative of a deferral application: Chan v. Oppenheimer & Associates, 2016 BCHRT 189 at para. 54; Arpots v. Tekle, 2017 BCHRT 6 at para. 15. However, having reviewed both the complaint and the Notice of Civil Claim, I agree that there is significant potential for overlap in the findings of fact between the two proceedings. The facts alleged in both actions are almost identical. It appears that the decision-makers in both forums will be called upon to make factual findings about the events leading up to the termination, as well as the reasons for the termination itself.
[25] Ms. Kelly’s argument largely focuses on the difference in the legal issues the two proceedings must decide, and in particular that the Civil Action will not address her allegations of discrimination or Concord’s failure to accommodate her disability. Her position is a particularly relevant consideration under a s. 25(2) deferral application, and I agree that the legal substance of the two proceedings is distinct. However, in consideration of whether it is fair and reasonable in the circumstances to defer a complaint, I find that duplicative proceedings and the potential for inconsistent findings of fact is a significant factor.
[26] The legal issues to be decided in the two proceedings are ultimately different, and the Civil Action may not address all of Ms. Kelly’s allegations. However, a deferral does not preclude Ms. Kelly from advancing her complaint at a later date if there are still unresolved issues following the conclusion of the Civil Action.
[27] In this case, I find that the nature and subject matter of the two proceedings are substantially similar, namely, the termination of Ms. Kelly’s employment. This factor weighs in favour of granting the deferral.
2. Adequacy of remedies available in the Civil Action
[28] The parties disagree on whether the remedies available in the Civil Action are adequate to address the redress sought in the human rights complaint. I am satisfied for the purpose of this analysis that the remedies available are functionally equivalent to what the Tribunal could order.
[29] In her Civil Action, Ms. Kelly seeks general damages, special damages, aggravated damages, punitive damages, interest, and costs. Concord says these remedies are duplicative and functionally equivalent to the awards sought for injury to dignity, feelings and self-respect; lost-wages, benefits and expenses; and compensation for legal fees incurred in relation to this complaint: Espiritu at para. 22; Yates v. Langley Motor Sport Centre Ltd., 2022 BCCA 398 at para. 15-21. Concord says this factor weighs in favour of a deferral: Espiritu at para. 22; Okindo v. Teamwork Property Management Ltd. (No. 2), 2023 BCHRT 159 at para. 27.
[30] Ms. Kelly disagrees and points to the Tribunal’s decisions in Taylor v. Ironside Design Manufacturing, 2017 BCHRT 71, and Haftbaradaran v. Saturna Beach Estates (No. 2), 2017 BCHRT 271 to support her position that the remedies available on the Civil Action are inadequate. As Concord notes, these cases predate Espiritu and Okindo, which demonstrate the Tribunal’s current approach to this issue. I further find these cases distinguishable as Haftbaradaran is not a deferral decision (but rather a final decision on remedy after a hearing on the merits), and Taylor did not involve the same level of factual overlap across the two proceedings. Ultimately, each case must be assessed in view of all its individual circumstances.
[31] I agree with Ms. Kelly that the Civil Action cannot adequately address the declaratory remedy sought, or an order that the respondent refrain from committing the same or similar contravention, and steps or programs to address the discrimination. However, I also agree with the findings in Espiritu and Okindo, that the absence of non-monetary remedies should not outweigh what appear to be the functionally equivalent remedies available in the other process.
[32] In sum, I am satisfied that the remedies available in the Civil Action weigh in favour of granting the deferral.
3. Status of the Civil Action
[33] Concord says the purpose of deferring a complaint is to avoid duplicate proceedings, which may save the parties and the Tribunal from needless expenditure of resources: Autzen v. British Columbia Regional Council of Carpenters, 2014 BCHRT 121 at para. 16. In this case, Concord says the Civil Action is already at an advanced stage of proceedings where time and resources have already been invested. Concord notes that, although the actions were commenced on the same day, the Civil Action has progressed significantly as pleading have closed, lists of documents have been exchanged, and each of the parties have sat for examinations for discoveries. The next step, which the parties appear to agree on, is for the Civil Action to be set down for trial.
[34] Concord concedes that a trial date has not been set yet for the Civil Action but says that it could be scheduled as early as May 2026. The scheduling of the trial has been delayed as the parties disagree over whether a summary trial or a regular trial is more appropriate and efficient. I understand that this this matter remains unresolved at present.
[35] Nevertheless, Concord says that given the current resources and volume of complaints before the Tribunal, it is unlikely the complaint will be set for a hearing prior to the resolution of the Civil Action. Ms. Kelly disagrees and notes that the Tribunal has recently confirmed that its longest delays are at the screening and notice stages, and it currently up to date in hearing availability. She says that as soon as the Tribunal sets a deadline for a complaint response and document production, the complaint will be caught up to the Civil Action. Given that the complaint has already been screened and served on Concord, and she has been unsuccessful in setting the Civil Action for trial for over a year, Ms. Kelly says it is entirely possible that the complaint will proceed to a hearing before the Civil Action.
[36] In this case, I find that the Civil Action is much further along than the Tribunal’s proceedings, and there is a high likelihood that it will resolve sooner than the human rights complaint. Concord has not yet filed a complaint response, and the parties have not exchanged their relevant documents, which occurs before a hearing date is scheduled. The Tribunal is currently scheduling hearings into 2026 for complaints filed in or before 2021, so it may be some time before a hearing of this matter can occur. The Civil Action may therefore offer a timelier resolution of the key issues in dispute between the parties. I am satisfied that the relative progress of the Civil Action, which is far more advanced in comparison, weighs in favour of granting the deferral.
4. Fairness and public interest
[37] Concord says that parallel proceedings cause concerns of inconsistent finding of fact, and economic inefficiencies of responding to the same issues twice across forums. Concord says a deferral would avoid these risks, and failure to do so would be an abuse of process: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 38.
[38] I am not persuaded that proceeding in two forums in these circumstances would constitute an abuse of process, or that this is the standard necessary to grant a deferral. Nevertheless, 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: Adam at para. 42; 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.
[39] Concord further says a deferral will mitigate the risk that Ms. Kelly will use the disclosure in the Civil Action to inappropriately and in breach of the implied undertakings of the Supreme Court, advance the current complaint. Concord says the concern is heightened in this case as in the Civil Action, the pleadings have closed, documents have been exchanged, and the examinations for discovery have been conducted.
[40] Ms. Kelly takes issue with Concord’s submission in this regard, as she says it improperly implies that her or her counsel will breach the implied undertaking with no basis for the same. On this issue, I agree that Concord’s submissions are speculative and unhelpful. I agree with Ms. Kelly’s submission that it would be inappropriate to speculate on hypothetical improper conduct of one party as a basis for granting the deferral.
[41] However, overall, I find considerations of fairness and the public interest weighs in favour of deferral because it avoids the unnecessary duplication of proceedings and expenditures of resources. Deferral will also assist in avoiding the risk of inconsistent findings of fact. Given the advanced stage of the Civil Action, I find on a balance these factors weigh strongly in favour of deferral.
IV CONCLUSION
[42] The complaint is deferred for nine months or until the outcome of the Civil Action, whichever is sooner.
[43] I direct the parties to advise the Tribunal of the outcome of the Civil Action if that matter concludes within the next nine months. If the Civil Action does not conclude within the next nine months and Concord wishes to extend the deferral, I direct that it applies to do so before this deferral ends.
Theressa Etmanski
Tribunal Member