Khurana v. Global SD Immigration Services Ltd. and others, 2024 BCHRT 339
Date Issued: December 11, 2024
File: CS-011301
Indexed as: Khurana v. Global SD Immigration Services Ltd. and others, 2024 BCHRT 339
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:
Anil Khurana
COMPLAINANT
AND:
Global SD Immigration Services Ltd., Surjit Singh Sandhu, Simran Dhaliwal,
Sarabjeet Deol, and Sanjana Sanjana
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DEFER
Section 25 and Rule 16
Tribunal Member: Jessica Derynck
Counsel for the Complainant: Jonathon Braun
Counsel for the Respondent Surjeet Singh Sandhu: Harman Sidhu
On their own behalf: Sanjana Sanjana
On their own behalf: Simran Dhaliwal
I INTRODUCTION
[1] On January 19, 2024, Anil Khurana filed a complaint of discrimination in employment and services based on place of origin against five respondents, Global SD Immigration Services Ltd. [ Global SD ], Surjit Singh Sandhu, Simran Dhaliwal, Sarabjeet Deol, and Sanjana Sanjana [ Respondents ].
[2] Harman Sidhu and Simran Dhaliwal apply for a deferral of the complaint. They say the complaint should be deferred because Mr. Khurana filed civil claims against the respondent Global SD and against a company of which Mr. Dhaliwal is the sole director, 1046765 BC Ltd. (the Numbered Company ), and the issues between the two proceedings overlap.
[3] Sanjana Sanjana applies for a deferral on the basis that Mr. Khurana is under a court-issued recognizance that prohibits him from contacting her until January 17, 2025 [ Recognizance ].
[4] For the following reasons I deny the applications to defer the complaint. The case manager will give the Respondents a deadline to file responses to the complaint.
II BACKGROUND
[5] Mr. Khurana alleges that he worked for Mr. Sandhu at a gas station. He alleges that he came to this employment through Global SD, where Mr. Dhaliwal and Sarabjeet Deol are immigration consultants. Sanjana Sanjana was a contact of Mr. Khurana’s before he sought services from Global SD.
[6] Briefly, Mr. Khurana alleges that he engaged Ms. Sanjana as an immigration consultant. He alleges that in that capacity, she advised him to drop out of school and apply for a work permit to increase his chances of obtaining permanent residency [ PR ] in Canada, and referred him to Global SD. Mr. Khurana alleges that, in turn, Global SD, Mr. Dhaliwal and Mr. Deol took advantage of his financial situation and immigration status to “trick” him into working at the gas station instead of a restaurant as promised. He says that once at the gas station, Mr. Sandhu exploited him including by making him work without pay, and falsely accused him of criminal activity. Mr. Khurana alleges that Mr. Sandhu and Mr. Deol physically assaulted him on one occasion. He also says the Respondents threatened to jeopardize his chances of obtaining PR and threatened to have him deported.
[7] The parties ultimately decided not to engage in early mediation.
[8] The Respondents now ask the Tribunal to defer the complaint pending the outcome of the Small Claims Court actions Mr. Khurana filed against Global SD and the Numbered Company.
[9] To make my decision I considered Mr. Khurana’s complaint form and the parties’ submissions and evidence on the applications. I only refer to the parties’ materials as necessary to explain my decision. I make no findings of fact and no comment on the merits of the complaint.
III ISSUES
[10] Under s. 25(2) of the Human Right Code the Tribunal may defer a complaint pending the outcome of another proceeding that it determines is capable of appropriately dealing with the substance of the complaint. Under Rule 16 of the Rules of Practice and Procedure the Tribunal may defer a complaint on this basis, or if it determines that a deferral would be fair and reasonable in the circumstances.
[11] Ms. Sanjana, Mr. Sandhu, and Mr. Dhaliwal apply for deferral of the complaint until the conclusion of the Small Claims Court actions against the Numbered Company and Global SD. It is not clear from Mr. Dhaliwal’s application whether he filed it on behalf of Mr. Deol and Global SD as their agents as well as on his own behalf, but in any case, he says Mr. Deol and Global SD agree to the application.
[12] Ms. Sanjana also says deferral is fair and reasonable in light of the Recognizance.
[13] I must decide, first, whether the Small Claims Court actions are capable of appropriately dealing with the substance of Mr. Khurana’s human rights complaint. I find they are not.
[14] Second, I must then decide whether, in the circumstances, it would nevertheless be fair and reasonable to defer the complaint on the basis of the overlap between the Small Claims Court actions and the complaint, or because of the existence of the Recognizance. I find that it would not, and I explain my reasons below.
[15] The Respondents also make submissions about the merits of the complaint in their applications. The Tribunal does not assess the merits of a complaint on a deferral application, so these submissions do not factor into my decision.
IV DECISION
A. The Small Claims Court actions are not capable of appropriately dealing with the substance of the complaint
[16] Mr. Khurana’s complaint against Mr. Sandhu is against Mr. Sandhu personally and he did not name the Numbered Company as a respondent. His complaint is also against Mr. Dhaliwal and Mr. Deol as well as against Global SD.
[17] In his complaint Mr. Khurana alleges that Mr. Sandhu discriminated against him by taking advantage of the fact that he is from India and did not have PR status in Canada to make him work any time on demand, work unpaid hours, and work alone to pump gas and manage the till. He alleges that when he complained about his working conditions, Mr. Sandhu came to his house with a friend and accused him of being lazy, stealing from him, and of an illegal scheme related to propane fills at the gas station, and said he would be arrested and deported. Mr. Khurana alleges that Mr. Sandhu then took him to the gas station, Mr. Deol arrived, and they both punched and kicked him for 20 minutes [ Alleged Assault ].
[18] Mr. Khurana alleges that Mr. Dhaliwal promised to place him in a restaurant job and told him that he should get PR status before the end of a one-year work permit, but instead placed him at the gas station and said this was the only option. He says Mr. Deol took money from him when he arrived in a city in BC to work at a restaurant, but immediately told him that they would drive to another city for Mr. Khurana to work at a gas station. Mr. Khurana alleges that Mr. Dhaliwal and Mr. Deol believed that they could control him because he is from India and did not have PR status in Canada. Mr. Khurana says Mr. Dhaliwal was irritated when he complained about his working conditions and threatened to jeopardize his chances at PR status if he did not stop complaining. Mr. Khurana alleges that Mr. Deol is Mr. Dhaliwal’s subordinate, and he believes Mr. Dhaliwal sent Mr. Doel to the gas station on the night of the Alleged Assault. He says Mr. Dhaliwal denied being involved in the Alleged Assault, but also told him not to report it to police.
[19] Mr. Khurana alleges that Ms. Sanjana was his immigration consultant and promised to have him placed at a job where he could get PR status before the end of a one-year work permit. He says Ms. Sanjana connected him with Global SD, and was then involved in the change to his employment conditions. He alleges that he complained to Ms. Sanjana about his working conditions, and she threatened to have him deported and threatened to harm his family in India.
[20] The remedies Mr. Khurana seeks in his complaint are an order to stop the discrimination, a declaration that the conduct is discrimination, steps or programs to address the discrimination (such as training or policies), compensation for lost wages or expenses, and compensation for injury to dignity, feelings, and self-respect.
[21] In his Small Claims Court action against the Numbered Company, Mr. Khurana alleges that his employer was abusive, he was overworked without pay, and was wrongfully accused of stealing from customers. He includes the Alleged Assault in his claim, and alleges that his employment was terminated on the same date. The remedies he seeks are $740 for five days of termination pay, $12,500 for intentional and negligent infliction of emotional distress, $12,500 for battery, and $5,000 of aggravated and punitive damages.
[22] In his Small Claims Court action against Global SD, Mr. Khurana alleges that a representative of Global SD participated in the Alleged Assault against him. He seeks $12,500 for intentional and negligent infliction of emotional distress and $12,500 for battery.
[23] To determine whether another proceeding is capable of appropriately dealing with the substance of a complaint, the Tribunal will consider all relevant factors, which may include the subject matter of the other proceeding, the nature of the other proceeding, the adequacy of the remedies available in the other proceeding, and whether the public interest in the resolution of human rights issues is likely to be adequately addressed by the other proceeding: Young v. Coast Mountain Bus Company [ Young ], 2003 BCHRT 28 at para. 19.
[24] Even where the other proceeding involves the same parties and alleged facts, the Tribunal is unlikely to find that the other proceeding will appropriately deal with the substance of the complaint if it does not raise the same legal issues and require application of the same legal test to the facts as in a human rights complaint, and if damages for injury to dignity, feelings, and self-respect are not available as a remedy: Cameron v. Northern Health Authority , 2024 BCHRT 48 [ Cameron ] at paras. 25 to 27; Gill v. Pacific Junior Hockey League , 2018 BCHRT 91 at paras 36 to 44.
[25] I find that the Small Claims Court proceedings will not deal with the substance of the complaint. Although there is much factual overlap, the human rights complaint and the small claims actions are against different respondents and involve different legal issues. For example, the small claims court actions will not deal with the legal question of whether any of the Respondents’ conduct was discrimination because Mr. Khurana’s place of origin was a factor in negative treatment: Moore v. BC (Education) at para. 33. Those actions also will not deal with whether any of the individual Respondents are personally responsible for any conduct that is found to have occurred.
[26] Mr. Sandhu submits that Mr. Khurana is “masking the same torts” as in his small claims actions “as Human Rights breaches for the herein matters”, and says the Small Claims Court may order the remedies he seeks in his complaint. In his application he does not address that the complaint at the Tribunal is a complaint of discrimination under the Code , which requires an application of a different legal test than claims of battery and failing to pay him for work he performed. He also does not cite any authority for his proposition that the court may order all of the remedies he seeks under the Code . Mr. Sandhu does not say how the Small Claims Court may order declaration that conduct is discrimination, or steps to address discrimination, when the Court does not have jurisdiction to determine whether the Respondents discriminated against Mr. Khurana under the Code .
[27] In his reply submission Mr. Sandhu says the remedies sought in the small claims proceedings and the complaint are “functionally equivalent”, citing Araniva v. RSY Contracting and another , 2018 BCHRT 6 at para. 19.
[28] Mr. Sandhu’s reply submissions are not within the proper scope of a reply, as he addresses issues and refers to cases that he could have included in his application. His reply submission was not limited to new issues raised in Mr. Khurana’s response and instead appeared to argue points that should have been made in his deferral application. In any case, Mr. Khurana submits that he may seek a higher amount of compensation for injury to dignity, feelings, and self-respect than he would be able to obtain as damages in Small Claims Court if his claims were successful. Mr. Sandhu says Mr. Khurana may transfer his small claims actions to BC Supreme Court if he wants to claim a greater amount than small claims court allows, but it is not for Mr. Sandhu to choose how Mr. Khurana pursues his various claims. I do not find that the remedies sought are “functionally equivalent” in this case.
[29] The allegations in the small claims actions also do not entirely overlap with the allegations in the complaint. For example, the action against Global SD is only about the allegation of the Alleged Assault and does not involve the allegation that the company took advantage of Mr. Khurana based on his place of origin to effectively force him into working at the gas station in the first place.
[30] The Respondents make submissions about duplication in multiple proceedings. I address those sections in my analysis of whether it would be fair and reasonable to defer the complaint.
B. It would not be fair and reasonable to defer the complaint pending the outcome of the Small Claims Court proceedings
[31] 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 not be employed when doing so would result in the unnecessary duplication of other adjudicative resources: Young at para. 21; Cameron at para. 29. 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.
[32] Mr. Sandhu submits that the Small Claims Court process would be a more fair and efficient process to deal with the issues because Mr. Khurana is represented by counsel in small claims court. Mr. Khurana is now represented by counsel on his complaint at the Tribunal, so this point is no longer relevant.
[33] Mr. Sandhu submits that Mr. Khurana’s conduct of commencing multiple proceedings, including a criminal complaint about the alleged assault as well as the small claims actions and the complaint, is that of a vexatious litigant because he is attempting to obtain the same remedies for the same alleges events from different bodies of authority. He notes that Mr. Khurana applied to fast-track his complaint to have his issues addressed before the time limit to file his Small Claims Court actions, and when that application was denied, he filed his small claims actions just within the timeline to do so.
[34] I have explained that the complaint and small claims actions deal with different legal issues, have different respondents, and that the allegations do not entirely overlap. There is nothing inherently wrong with a complainant filing claims in court that involve overlapping factual issues with a human rights complaint, and doing so does not mean that a respondent may choose which forum the complainant must use to pursue their issues. It is not uncommon for there to be alternative fora capable of providing similar relief, but drawing on different sources of jurisdiction: Hui v. The Owners, Strata Plan BC3702 , 2024 BCCA 262 at para. 38. The fact that Mr. Khurana has pursued relief in other fora arising from the same underlying events is not inherently wrong. Nor is this fact, in itself, sufficient to justify deferral of the Tribunal proceeding.
[35] Mr. Sandhu also submits that deferral would avoid “unwarranted harassment of multiple claims”, save the parties the cost of proceeding with two or more matters simultaneously, and avoid possible contradictory rulings. He relies on the Law and Equity Act , which says multiplicity of legal proceedings should be avoided.
[36] The Law and Equity Act does not apply to the Tribunal, which is not a court: Heilman v. Upper Room Mission , 2004 BCHRT 66 at para. 21.
[37] I considered whether it is fair and reasonable for the Tribunal to defer the complaint so the overlapping factual issues may be dealt with in Small Claims Court, leaving the Tribunal to deal with any remaining issues after the outcome of that process. I find this is not fair and reasonable in the circumstances. Mr. Sandhu did not make submissions about an expected timeline for the small claims proceedings and there is no basis for a determination that it would be fair or reasonable to require Mr. Khurana to proceed with that process first, or that it would resolve first. If the Small Claims Court or any other forum makes findings of fact that overlap with the allegations in this complaint, any party may raise the doctrine of issue estoppel at the Tribunal: Sutherland v. Country Park Village Properties (Duncan) Ltd. , 2024 BCHRT 279.
[38] Mr. Dhaliwal’s application to defer largely overlaps with Mr. Sandhu’s application and I have addressed all of the overlapping arguments above. In his reply submission Mr. Dhaliwal submits that he does not have all relevant information or evidence about the complaint and a deferral will give him time to obtain those materials, he needs more time to prepare to respond to the case because it is complex, and he needs time to secure legal representation while he has other personal and professional commitments to fulfill.
[39] None of these factors is a basis on which to defer the complaint against Mr. Dhaliwal, Global SD, or Mr. Deol. Mr. Dhaliwal will have time to consult legal counsel and address the issues in the complaint through the Tribunal’s usual process, of which the next step is to file a response to the complaint.
[40] Finally, Ms. Sanjana submits that it is preferable for the Small Claims Court to determine who was “at fault” in this case. I have addressed this argument above – there is no basis on which to find that the Small Claims Court proceedings are likely to resolve first, or to require Mr. Khurana to proceed first in that forum.
C. It is not fair and reasonable to defer the complaint on the basis of the Recognizance
[41] Ms. Sanjana filed her application to defer on September 12, 2024. She explains in her application that Mr. Khurana is not allowed to contact her for 12 months starting from January 16, 2024, because he agreed the Recognizance, commonly known as a peace bond, after she alleged that Mr. Khurana caused her fear of injury or damage to property. She submitted a copy of the Recognizance, and a copy of a civil restraining order from a court in Alberta that prohibits Mr. Khurana from contacting her until and including January 9, 2025.
[42] Ms. Sanjana also says her dealings with Mr. Khurana between June 2022 and January 2024 have caused her extreme emotional stress, and alleges he engaged in serious conduct harmful to her and her family, which was the basis for the Recognizance and restraining order. She says that even aside from the orders, she would like to avoid talking about Mr. Khurana in any manner, and that becoming involved with him again through his complaint against her is “her worst nightmare”. She says she would be grateful if the complaint could be postponed “just for a few months”.
[43] Mr. Khurana denies all of Ms. Sanjana’s allegations against him but does not object to the deferral of the complaint against Ms. Sanjana only until the expiration of the Recognizance.
[44] I appreciate Ms. Sanjana’s submissions that she is in a difficult position. However, I find that the existence of the Recognizance is not a basis to defer the complaint. I have noted that Mr. Khurana is now represented by counsel, which means the Respondents and their counsel will not need to contact him directly about the complaint. If any further court orders are issued related to contact between Mr. Khurana and Ms. Sanjana, the complaint process will still need to carry on. All parties, including Mr. Khurana, are also subject to the Tribunal’s Rules of Practice and Procedure , and Rule 7 requires respectful communication that does not undermine the Tribunal’s process:
(4) Participants and representatives must treat all persons in the course of a complaint with courtesy and respect.
(5) Participants and representatives must participate in the complaint process with appropriate consideration for all persons without discrimination.
(6) Participants and representatives must conduct themselves with honesty and integrity, and must not act in a manner that would undermine the tribunal’s process.
[45] Ms. Sanjana has now had the “few months” she requested from the date she filed her application to determine how to manage her obligations to respond to the complaint against her, which appears to be complicated in the circumstances. She may also request extensions to any deadlines that fall before or shortly after the Recognizance expires, and may make any applications or requests related to her concerns about avoiding direct contact with Mr. Khurana and the stress she says she expects experience related to the complaint against her. Ms. Sanjana may wish to seek her own legal counsel for representation in this process. The Tribunal’s website has a list of organizations where people may be able to help with human rights cases, some of which assist respondents as well as complainants: https://www.bchrt.bc.ca/whocanhelp/.
V CONCLUSION
[46] I deny the applications to defer the complaint.
[47] The case manager will give the Respondents a deadline to respond to the complaint. If Ms. Sanjana wishes to seek extensions to deadlines or make any other applications or requests related to her concerns, she may make an application or contact the case manager.
[48] Mr. Sandhu also says Mr. Khurana failed to name the Numbered Company as a respondent to the complaint. Any party may apply to add an additional respondent to the complaint.
Jessica Derynck
Tribunal Member