Lewynsky v. BC Hydro and another, 2025 BCHRT 56
Date Issued: February 28, 2025
File: CS-005826
Indexed as: Lewynsky v. BC Hydro and another, 2025 BCHRT 56
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:
Erika Lewynsky
COMPLAINANT
AND:
BC Hydro and Power Authority and Peter Gaffran
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO DEFER
Section 25 and Rule 16
Tribunal Member: Jessica Derynck
Counsel for the Complainant: Claire C. Lee
Counsel for the Respondent BC Hydro and Power Authority: Graeme McFarlane and Brittany Therrien
I INTRODUCTION
[1] On December 24, 2021, Erika Lewynsky filed a complaint of discrimination in employment based on sex against BC Hydro and Power Authority [ BC Hydro ] and Peter Gaffran [ Respondents ].
[2] On May 29, 2023, the Tribunal gave the parties notice that the complaint would proceed. BC Hydro applied to defer the complaint on July 10, 2023. Mr. Gaffran supported the application. Ms. Lewynsky took no position. On September 7, 2023, the Tribunal deferred the complaint until September 29, 2024.
[3] BC Hydro now applies for further deferral of the complaint. Mr. Gaffran supports the application. This time, Ms. Lewynsky opposes the application.
[4] BC Hydro submits that the complaint should be deferred pending the outcome of a civil claim Ms. Lewynsky filed against it in British Columbia Supreme Court on March 22, 2023 [ Civil Claim ]. BC Hydro says the issues in the complaint are the same as those in the Civil Claim and that the court is fully capable of dealing with them and awarding any remedy that is appropriate, and that a deferral would be fair and reasonable in the circumstances.
[5] Ms. Lewynsky disputes that the Civil Claim can adequately deal with the substance of the complaint or provide an adequate remedy and says that it would not be fair or reasonable to further defer the complaint.
[6] For the following reasons I deny BC Hydro’s application. The case manager will give the Respondents a deadline to file responses to the complaint.
II ISSUES
[7] Under s. 25(2) of the Human Right s 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.
[8] To decide this application, I must decide whether the Civil Claim is capable of appropriately dealing with the substance of the complaint. I find it is not.
[9] Then I must decide whether a deferral would nevertheless be fair and reasonable in the circumstances based on overlap between the Civil Claim and the complaint. I find that it would not.
III DECISION
A. The substance of the complaint and the Civil Claim
[10] Ms. Lewynsky began working at BC Hydro in September 2019. Mr. Gaffran was a senior employee who directly worked with her on a daily basis. In her complaint she alleges that Mr. Gaffran generally bullied and harassed her, and that he began sexually harassing her in July 2020. She alleges repeated sexual harassment that escalated to unwanted physical contact, including Mr. Gaffran kissing her without her consent on multiple occasions, removing his clothing and hers while pressing his body against hers on one occasion on a work trip, and driving by and going to her home.
[11] In her complaint Ms. Lewynsky alleges that she told her manager about concerns that Mr. Gaffran’s behaviour was angry and volatile throughout her employment, and that she told her manager about the sexual harassment around February 19, 2021. She went on medical leave on February 23, 2021. On August 4, 2021, she took the position that her employment had been terminated.
[12] Ms. Lewynsky alleges that the sexual harassment constitutes discrimination on the basis of sex. She says BC Hydro is either directly or vicariously responsible for the sexual harassment. She claims that because of the sexual harassment she has suffered loss of wages and benefits, injury to her dignity, feelings, and self-respect, and has incurred expenses in an attempt to remedy the discriminatory treatment. She seeks remedies including a declaration that the Respondents contravened the Code , an order that they cease contravening the Code and refrain from committing the same or similar contraventions, compensation for lost wages and benefits, compensation for expenses, and compensation for injury to her dignity, feelings, and self-respect.
[13] The Civil Claim is based on overlapping allegations that Mr. Gaffran bullied and harassed Ms. Lewynsky, including the alleged sexual harassment, and that her manager allowed the bullying and harassment to continue. The Civil Claim alleges that BC Hydro’s failure to address Mr. Gaffran’s behaviour amounts to a repudiation of her employment agreement and that she has been constructively dismissed. She seeks relief including damages for breach of contract, and aggravated and/or compensatory damages flowing from BC Hydro’s conduct in breach of the duty of good faith.
B. The Civil Claim is not capable of appropriately dealing with the substance of the complaint
[14] The onus of establishing whether another proceeding is capable of appropriately dealing with the substance of a complaint is on the party seeking a deferral: Copeland v. British Columbia (Ministry of Public Safety and Solicitor General) , 2006 BCHRT 383 at para. 17.
[15] When deciding whether to defer a complaint on the basis that another proceeding is capable of appropriately dealing with its substance the Tribunal will consider factors including the nature and subject matter of the other proceeding, adequacy of the remedies available in the other proceeding, the status of the other proceeding in relation to the status of the complaint, fairness to the parties, and whether the public interest in the resolution of human rights issues is likely to be adequately addressed in the other proceeding: Young v. Coast Mountain Bus Company , 2003 BCHRT 28 [ Young ] at para. 19.
[16] Ms. Lewynsky submits that she communicated, through her counsel, her intention not to proceed with the Civil Claim on September 27, 2024. She submits that the only reason she has not filed a notice of discontinuance in the Civil Claim is because of the potential costs consequences, and notes that BC Hydro previously refused to waive the costs consequences of filing a notice of discontinuance in a separate tort claim. She submits that she has no intention to continue the Civil Claim, it will not proceed beyond the current stage, and the court will not be considering any part of the substance of the complaint.
[17] Ms. Lewynsky’s stated intention not to pursue the Civil Claim is an important consideration, but since she has not yet filed a notice of discontinuance, I consider whether the Civil Claim is capable of appropriately dealing with the substance of the complaint if she were to pursue it.
[18] BC Hydro submits that the subject matter of the complaint is the same as that of the Civil Claim. BC Hydro says that even though civil proceedings do not allege breaches of the Code , the Tribunal may still grant a deferral on this basis. BC Hydro relies on Seifelnasr v. Ullah , 2012 BCHRT 345; Rutledge v. Canex Building Supplies and another , 2018 BCHRT 41 [ Rutledge ]; Araniva v. RSY Contracting and another , 2018 BCHRT 6 [ Araniva ]; Autzen v. British Columbia Regional Council of Carpenters , 2014 BCHRT 121; and Simpkin v. Stl’atl’imx Tribal Police Board , 2015 BCHRT 129.
[19] I first address the nature and subject matter of the Civil Claim. I find that this factor weighs against a determination that the Civil Claim is capable of appropriately dealing with the substance of the complaint.
[20] The Tribunal is less likely to defer a complaint based on an overlap with a civil claim where the other proceeding does not address all of the allegations in the complaint: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. , 2003 BCHRT 90 at paras. 8 to 9.
[21] While the alleged facts in the complaint and Civil Claim overlap, the focus of the Civil Claim is on how BC Hydro responded to Mr. Gaffran’s conduct, including the alleged bullying as well as the alleged sexual harassment, and whether BC Hydro’s response was a breach of Ms. Lewynsky’s employment contract. The complaint, on the other hand, alleges that the acts of sexual harassment breached the Code , and that BC Hydro is responsible for these acts as well as Mr. Gaffran being responsible.
[22] While there is potential for overlap between findings of fact between the two proceedings, particularly about the alleged sexual harassment, the Civil Claim would not address the alleged acts of sexual harassment as directly as the Tribunal would when deciding whether those acts occurred and breached the Code . The Court would also not determine whether BC Hydro bears any responsibility for the acts themselves because the focus of the Civil Claim is on BC Hydro’s response and whether it amounted to a breach of contract.
[23] If overlapping findings of fact were made in Court before the hearing of the complaint, the Tribunal may address this, for example, if any party were to rely on issue estoppel: Sutherland v. Country Park Village Properties (Duncan) Ltd. , 2024 BCHRT 279.
[24] I also consider that BC Hydro has filed an application with the Workers’ Compensation Appeal Tribunal with respect to the Civil Claim [ WCAT Application ]. The outcome of the application may be that WCAT issues a certification to the Court, resulting in the Court deciding that portions of the Civil Claim are barred under the Workers Compensation Act . This means there may be less overlap between the proceedings than is apparent from the complaint and the notice of civil claim.
[25] On this basis, I find that the nature and subject matter of the Civil Claim does not completely overlap with the complaint.
[26] Next, I consider the adequacy of the remedies available in the Civil Claim proceeding. This factor also weighs against a determination that the Civil Claim is capable of appropriately dealing with the substance of the complaint.
[27] BC Hydro submits that the remedies available through the Civil Claim are functionally equivalent to the remedies available through the complaint. BC Hydro says that aggravated damages for mental distress may be functionally equivalent to compensation for injury to dignity for the purposes of compensating a complainant, and that a finding that Mr. Gaffran sexually harassed or assaulted Ms. Lewynsky would essentially have the same effect as a declaratory order and an order that a respondent cease a contravention, and refrain from committing the same or a similar contravention, under s. 37(2) of the Code .
[28] Mr. Gaffran is a respondent to the complaint and is not a defendant in the Civil Claim. While there may be some potential for overlap between damages in Court and compensation for injury to dignity if the complaint is allowed at the Tribunal, no remedies would be ordered against Mr. Gaffran personally in Court.
[29] If the Tribunal finds that Mr. Gaffran sexually harassed Ms. Lewynsky it may order remedies against him. The fact that an individual respondent to a complaint is not named in another proceeding does not preclude deferral of the complaint, and the Tribunal did not find this factor to weigh against deferral in Rutledge : para. 12. In this case, however, Ms. Lewynsky alleges repeated, serious instances of sexual harassment against Mr. Gaffran. Orders against BC Hydro in Court for breach of contract would not adequately remedy this conduct.
[30] I next consider the status of the Civil Claim compared to the complaint. This factor weighs against deferral because Ms. Lewynsky has stated that she does not intend to pursue the Civil Claim. In any case, following this decision, the Tribunal will set deadlines for the Respondents to file their responses to the complaint. Once the responses are filed, the Tribunal’s process will be caught up to the Civil Claim. If the Tribunal decides that the case path for this complaint is that it will proceed to hearing rather than the Respondents filing applications to dismiss, it is feasible that the complaint would proceed to hearing before the Civil Claim, even if Ms. Lewynsky were to pursue the latter.
[31] I find that the general question of fairness to the parties is better addressed in the next section of my decision. The final factor I consider in this section is whether the Civil Claim is likely to adequately address the public interest in the resolution of human rights issues. I find that this factor weighs against a determination that the Civil Claim is capable of appropriately dealing with the substance of the complaint.
[32] BC Hydro submits that it is in the public interest to avoid unnecessary duplication of proceedings and expenditures of public and private resources. However, again, Ms. Lewynsky has communicated that she does not intend to proceed with the Civil Claim. It appears that, for practical purposes, BC Hydro will not be dealing with the Civil Claim at the same time as the complaint. In any case, I also consider that there is public interest in Ms. Lewynsky being able to proceed with her complaint against Mr. Gaffran in a timely way.
[33] In summary, I find that the Civil Claim is not capable of appropriately dealing with the substance of the complaint and I decline to defer the complaint on this basis. Next, I consider whether deferral is nevertheless fair and reasonable in the circumstances.
C. Deferral is not fair and reasonable in the circumstances
[34] 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. 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.
[35] BC Hydro submits that it is willing to pursue its response to the Civil Claim without delay, but requiring it to defend itself against what is essentially the same claim brought in two different forums introduces unnecessary duplication of adjudicative and party resources and the danger of establishing conflicting facts on the same evidence.
[36] I cannot find that it would be unfair to require BC Hydro to respond to the complaint in circumstances where Ms. Lewynsky has indicated that she does not intend to pursue the Civil Claim.
[37] Even if Ms. Lewynsky had not indicated that she intends to focus on the complaint and not the Civil Claim, I would not find that it is unfair to BC Hydro to have to respond to both proceedings in circumstances where they have made the WCAT Application, which may result in parts of the Civil Claim being barred. It would be unfair to Ms. Lewynsky to prevent her from pursuing her complaint in a timely manner when it is not clear which parts of the Civil Claim would ultimately proceed.
[38] In any case, even if Ms. Lewynsky were to pursue the Civil Claim, and the Court did not bar parts of the claim, 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. I explained above that while there is factual overlap between the proceedings, the complaint encompasses issues related to Mr. Gaffran’s alleged sexually harassing conduct, and BC Hydro’s potential liability for that conduct, that the Civil Claim does not. If the 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.
[39] For these reasons, I find that deferring this complaint further would not be fair and reasonable in the circumstances.
IV CONCLUSION
[40] I deny BC Hydro’s application to defer the complaint.
[41] The case manager will give the Respondents a deadline to respond to the complaint.
Jessica Derynck
Tribunal Member