The Worker v. The Store and another, 2025 BCHRT 124
Date Issued: May 15, 2025 File: CS-008175
Indexed as: The Worker v. The Store and another, 2025 BCHRT 124
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
The Worker
COMPLAINANT
AND:
The Store and The Manager
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
Counsel for the Worker: Trevor Thomas
Counsel for the Store: Jessica S. Fairbairn and Madeline Lusk
I Introduction
[1] On September 16, 2022, the Worker filed a complaint alleging the Store and Manager [together the Respondents ] discriminated in employment based on sex and gender identity or expression, contrary to s. 13 of the Human Rights Code [ Code ].
[2] The issue before me is whether to accept the complaint for filing against the Respondents given that it appears to have been filed outside the one-year time limit established under s. 22(1) of the Code . I make no findings of fact regarding the merits of this complaint.
[3] On May 14, 2024, the Tribunal sent a notice of late filed complaint to the Store’s lawyer presuming that they were counsel for both the Store and the Manager. However, the Store’s response was filed on behalf of the Store only and I note the Manager is no longer employed by the Store. The Store’s counsel recently confirmed that they did not act for the Manager. To date, the Worker’s lawyer has not provided any updated contact information for the Manager. Given the outcome of my decision below, it was unnecessary for me to take any further steps in ensuring the Manager was given an opportunity to make submissions in this application.
[4] For the reasons that follow, I find that it is not in public interest to accept the late filed complaint for filing.
II ORDER LIMITING PUBLICATION
[5] The Worker applied to limit publication of her name in this decision, as she continues to suffer from mental health issues related to the sexual assault allegations found in the Complaint. Further, she submits that the publishing of her name could pose harm to her children, her reputation, and negatively impact her ability to attain work in the future.
[6] I recognize there is a strong public interest in the Tribunal maintaining open and public processes to promote the awareness of the Code , education about its application, and access to its processes. However, there are exceptions to an open process where strong grounds for limited publication of personal information exist: A v. University and Dr. B and C and D and E , 2014 BCHRT 235, at para. 5.
[7] In this case, I am persuaded that strong grounds exist to limit public knowledge of the Worker’s identity. I am satisfied that making this decision requires consideration of the Worker’s mental health issues, which could harm her reputation and negatively affect her ability to find future employment. Naming the Worker in the decision may also exacerbate her mental health disability symptoms and subject her to stigmatization in the community where she lives. In protecting the privacy of the Worker, it is necessary in my view to also limit the publication of the names of the Store, and the Manager accused of the sexual assault and harassment, and others working in the Store.
[8] In making this decision, I am satisfied that publishing this decision without any individual names allows the public to access the Tribunal’s proceedings while preserving the Worker’s privacy. In this way, the public can scrutinize the Tribunal’s preliminary decisions in this matter without the risk of harm to the Worker.
[9] Since all the parties remain anonymous in this decision to protect the Worker’s privacy, and I would have issued this order on my own motion without an application from the Worker, I decided it was unnecessary to seek submissions from the Respondents prior to rendering this order.
III Background
[10] In 1997, the Worker started as a cashier in the Store. She reports being promoted to department manager in 2000.
[11] In 2000, the Worker alleges another management employee, DM, sexually assaulted her at work when she was working on a night shift. The Worker alleges DM entered the office, closed and locked the door, and placed himself on top of her, at which point she feared that he would rape her. The Worker alleges that she was able to talk DM down from advancing himself further upon her and kept her composure long enough to persuade him to unlock the Store doors and let her out.
[12] The Worker alleges that she reported this incident to the Store’s human resources department, and it was investigated by LP. She alleges the Store concluded that it was a “he said – she said” incident, and, therefore, no conclusions could be made about what had occurred. The Worker alleges that the only outcome of the investigation was DM’s transfer to another Store location. She says that she felt guilty about reporting him and alleges other workers in the Store blamed her for having him moved.
[13] In 2013, the Worker reports being promoted to Store manager.
[14] In 2015, the Worker alleges her direct supervisor, the Manager identified as a Respondent above, began making suggestive comments and inappropriately touching her at work. This included grabbing her buttocks and breasts.
[15] In 2015, the Worker alleges that while attending an out-of-town work function with the Manager, he got her into his room alone under false pretences and tried to have sex with her by removing her clothes. The Worker alleges that she committed sexual acts with the Manager against her will in order to escape his room.
[16] On March 29, 2016, the Worker alleges the Manager persistently made sexualizing and dehumanizing comments toward her at a business meeting. She alleges he also followed her into the ladies’ bathroom, at which time she had to ask him to leave.
[17] On December 6 and 7, 2016, the Worker alleges the Manager was very aggressive towards her at a work function in another city to the extent that two other Store managers noticed and remained protective and close to her throughout the rest of the evening. She alleges the Manager’s behaviour, including grabbing her buttocks and telling her the way she looked “turned him on”.
[18] On March 13, 2017, during a business meeting in another city, the Worker alleges that the Manager came to her hotel room uninvited without her telling him what room she was in. She says that she did not answer the door when he knocked.
[19] On another undated occasion, the Worker alleges the Manager came to her hotel room uninvited on a business trip and she pretended not to be in the room when he knocked.
[20] In October 2017, the Worker alleges the Manager persistently and aggressively asked her to go to his hotel room on a business trip. She alleges that he proceeded to call her room several times that night, but she did not answer.
[21] On March 18, 2018, the Worker alleges the Manager told her that he wanted her to come back to his hotel room on a business trip. She says that he repeated this request, and she ignored him until finally having to refuse him. The Worker alleges the Manager then proceeded to call her in her room multiple times that night, despite not telling him which room she was staying in.
[22] The Worker alleges generally that the Manager would attempt to contact her on any overnight trips for work they attended, which included finding her room and repeatedly knocking, and calling her in the room.
[23] Between 2015 and 2019, the Worker alleges the Manager attended the Store at least monthly in his capacity as her supervisor and made inappropriate sexual and misogynistic comments about the way she looked, stating things like, “you turn me on”. She further alleges that the Manager would inappropriately touch her during these Store visits, such as grabbing her breasts.
[24] In March 2019, the Worker states the Manager was moved to another area and she no longer reported to him. She alleges the Manager continued to message and call her, but she did not respond to him.
[25] In March 2019, the Worker alleges another manager, BM, was assigned to her area as her supervisor. The Worker alleges BM spoke to her in a condescending and demeaning manner, which was the way he communicated with all the female staff in the Store. For example, the Worker alleges BM made comments like “you are supposed to know this by now” and “you should do a better job”. She alleges BM’s comments towards her suggested that she did not have knowledge of her role.
[26] On September 28, 2020, the Worker alleges that she quit her job in order to preserve her health and safety. She says that leaving the job at the Store resulted in significant financial losses despite moving into a management role in retail elsewhere.
IV ANALYSIS AND DECISION
[27] Section 22 of the Code provides that a complaint must be filed within one year of the alleged contravention. If a complaint is filed after the expiration of this time limit, the Tribunal may accept all or part of the complaint if it determines that it is in the public interest to accept the complaint, and no substantial prejudice will result to any person because of the delay.
[28] The time limit set out in s. 22 is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62 , 2003 BCHRT 39.
A. Time Limit
[29] The Complaint was filed on September 16, 2022. To comply with the one-year time limit under s. 22(1) of the Code , the alleged act of discrimination had to occur on or after September 16, 2021.
[30] The Worker’s allegations occurred during her employment with the Respondents over a twenty-year period from some time in 2000 until September 2020 when she quit her job. As such, the Complaint was late filed.
[31] Having found all of the allegations in this case were late filed, I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[32] Whether it is in the public interest to accept late-filed allegations with respect to the Corporate Respondents is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code : Hoang v. Warnaco and Johns , 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon , 2012 BCSC 161 at para. 152; Mzite at para. 55.
[33] I have first considered the length of delay in filing. It appears that the latest out of time allegation with respect to the Store is September 28, 2020, when the Worker left her job for reasons related to ongoing sexual harassment by her supervisor, BM. The delay is further associated with allegations going back more than two decades to 2000 when the sexual assault and sexual harassment allegations started at the Store.
[34] The length of delay for the allegations concerning the Manager ranges from approximately two and one-half years when he moved out of the Worker’s area in March 2019 to approximately six years when he allegedly began making suggestive comments and inappropriately touching her some time in 2015. While noting the Worker’s allegations that the Manager continued to message and call her after he left her area in March 2019, her information does not include specific particulars of the dates with a description of these allegations necessary to conclude they form any distinct arguable contraventions of the Code .
[35] The delay in this case is, therefore, more than one year, which is excessive and militates strongly against the public interest: Naziel-Wilson v. Providence Health Care and another , 2014 BCHRT 170 [ Naziel-Wilson ] at para. 13.
[36] The Worker provided several reasons for her delay in filing. First, she submits that her mental disability precluded her from filing within the allotted timeframe. The Worker reports suffering from the symptoms of post-traumatic stress disorder [ PTSD ] due to the sexual harassment and assaults she suffered while working at the Store. She claims that it was not until August 2021 that she was able to open up to her mental health counsellor about the sexual misconduct she experienced while working at the Store. The Worker submits that she lacked the mental, emotional and physical capacity to begin a process as emotionally involved as the Tribunal process prior to seeking treatment from a counsellor.
[37] On August 9, 2022, the Worker’s mental health counsellor wrote an opinion about her disabilities. The counsellor notes that when she began seeing the Worker in August 2021, she was extremely depressed, crippled with stress, anxious, suffered from low self-esteem, had trouble sleeping, suffered from weight loss and had sexual dysfunction. The counsellor further noted the Worker’s ongoing suffering since leaving her employment at the Store, which negatively affected her physical and mental health, and the wellbeing of herself and family. The counsellor reported that the Worker felt lost and very fearful of opening up and telling anyone about her sexual abuse, which is extremely common among survivors. She also noted the Worker’s distress at exposure to reminders of the abuse, feelings that the trauma was happening again, recurrent flashbacks and memories, nightmares, specific fears, diminished interest in activities, and avoidance of reminders of the trauma.
[38] The Store argues the Worker’s disabilities did not preclude her from filing a complaint when she was able to complain to a human resources director at the Store about the allegations related to BM at the time she resigned in September 2020. Further, the Store argues the Worker’s ability to contact the Store in September 2021 about her allegations concerning the Manager and participate in a workplace investigation in an effort to resolve the matter indicates that she was not sufficiently disabled from filing to attract the public interest in allowing her late filed complaint to proceed. Additionally, the Store submits that the Worker’s evidence gathered during the workplace investigation indicates she previously sought legal advice about allegations concerning the Manager a number of years before filing her complaint with the Tribunal. Finally, the Store questioned the Worker’s inability to file after May 11, 2022, when she was able to consult with a lawyer and seek a monetary settlement from the Store on June 16, 2022.
[39] The Worker responded to the Store’s arguments about her demonstrating the ability to engage in other processes during the period of delay by distinguishing those internal processes from the more onerous process of filing a complaint with the Tribunal. The Worker appears to further argue that the internal investigation findings acknowledging the legitimacy of her complaints of sexual misconduct in the Store’s May 11, 2022, letter gave her the strength to file the Complaint with the Tribunal.
[40] After considering the parties submissions about the Worker’s inability to file due to mental health issues, I conclude that some of the delay in question is related to the Worker’s disability sufficient to attract the public interest. While appreciating that there is some evidence indicating the Worker consulted a lawyer about the Manager’s harassment years before filing the Complaint and decided not to take any actions because she thought the outcome would not be in her favour, this evidence is outweighed by the evidence about the Worker’s mental and physical state prior to receiving counselling in August 2021 disabling her from filing. I accept the Worker’s evidence that prior to mid 2021 she was unable to open up in the way necessary to file a complaint as she suffered from disabilities that made it extremely difficult for her to report prior sexual assault and harassment allegations and seek a recourse in justice for what happened.
[41] The more difficult issue in this case, however, involves my review of a significant period of delay from September 2021 to September 2022 when the Worker demonstrated her ability to seek redress from the Store regarding her allegations against the Manager. From my review of the evidence, a one-year period existed before the Complaint was filed where the Worker’s actions indicate that she was not precluded from filing for reasons related to disability. In reaching this conclusion I am not persuaded that the Worker’s ability to report her allegations about the Manager to the Store in September 2021 and participate in an internal investigation where she met with an investigator to provide a detailed account of her allegations would be any less onerous than filing her allegations in a complaint at the Tribunal. The Worker’s ability to file at the Tribunal is further supported by her ability on June 16, 2022, to send the Store a letter requesting monetary compensation in light its internal investigation findings. I also note that as of that time, the Worker informed the Store that she had discussed her situation with an employment lawyer who confirmed that she would be entitled to make a human rights complaint but told the Store that she wanted to avoid formal legal proceedings or lengthy negotiations in order to move forward. In my view, the Worker’s demonstrated ability to participate in the Store’s internal investigation process and request compensation for the harms alleged as opposed to filing a human rights complaint fail to indicate that she was precluded from filing for reasons related to disability. In reaching this conclusion I acknowledge the existence of the Worker’s various disability symptoms, however I am not convinced that they precluded her from filing a complaint during much of the delay in this case.
[42] The Worker also states she was subject to vulnerability in her employment as a reason for late filing her complaint. She noted the Store’s lack of effective response when she reported DM’s sexual misconduct in 2000. The Worker felt the Store did not believe her and wished she had not reported him such that she was fearful that she would lose her job if she attempted to report any harmful behaviour again. In terms of the events involving the Manager from 2015 to 2019, the Worker submits her fear of being fired for reporting him stemmed from his demonstrated ability to escape other misconduct allegations by having male colleagues cover up for him and his bragging about getting away with things. She further noted the Manager’s ability to performance manage and fire employees he disliked.
[43] Similarly, the Worker feared being terminated by BM because of his treatment of female colleagues and his ability to avoid responsibility for his actions. She further noted BM’s relationship with the Manager, adding it was common knowledge at that Store that these two individuals frequented strip clubs together on business trips.
[44] The Store submits the Worker’s fear of retaliation for filing a complaint with the Tribunal is not a reason that attracts the public interest because the Code protects against actions by a respondent under s. 43. Further, the Store argues that the Worker has not provided any evidence explaining why this fear of retaliation prevented her from filing after she resigned from her position at the Store.
[45] I have considered whether the Worker’s fear of retaliation by the Store in ending her employment if she filed a complaint attracts the public interest in allowing her late filed complaint to proceed. Section 43 of the Code protects individuals against retaliation for filing a complaint. With this protection in place, fear of potential retaliation generally does not militate towards accepting a late-filed complaint as being in the public interest: Mullholland v. City of Vancouver , 2015 BCHRT 170 at para 52; Fehr and another v. Alexander Laidlaw Housing Co-operative , 2012 BCRHT 232 at para 16; and Kafer v. Sleep Country Canada and another , 2013 BCHRT 137 at para 29. In the circumstances of this case, I find the Worker has provided specific reasons for fearing retaliation by the Manager resulting in her being fired if she filed a complaint with the Tribunal up to the time she quit her job. The Worker provided evidence about the Manager getting away with previous wrongs and his successfully targeting those he disliked such that they were terminated. In these circumstances, I find the Worker provided reasons for fearing the Manager would retaliate if she filed a complaint that could attract the public interest in allowing her to file late. However, the fear of retaliation in this case does not extend to the period after the Worker left the Store in September 2020. During the entire period of delay in this case, the Worker was no longer employed by the Store such that any fear of being fired for filing a complaint no longer existed.
[46] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others , 2014 BCHRT 10 at para. 22; Bains v. Advanced Air Supply and others , 2012 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others , 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code , this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[47] The Worker is concerned about other female Store employees suffering from the effects of prominent sexism in the workplace. She has little confidence that the Store will take the necessary steps to transform this pervasive harmful environment short of her filing the Complaint. The Worker asks the Tribunal to recognize the societal interest in reporting sexual harassment and other forms of sexual violence, which remains underreported. Finally, the Worker asks the Tribunal to recognize the need to provide precedents that empower vulnerable employees to speak up against the discrimination they experience. Letting this case proceed against a large retailer that is sophisticated and well resourced will encourage victims to come forward that would otherwise be deterred from doing so.
[48] The Worker’s complaint is unfortunately not unique and novel for the purposes of attracting the public interest in allowing it to proceed late filed. In my experience sexual harassment cases in employment are not uncommon at the Tribunal and the law in this area is fairly settled. Some recent decisions include Al Edwan v. The Immigrant Services Society of British Columbia , 2025 BCHRT 66; Mohr v. Power Flagging & Traffic Control Inc. (Power Earth) and others , 2024 BCHRT 275; Ms. C v. City and others , 2023 BCHRT 203.
[49] In the end, I find the lengthy delay in this case, coupled with reasons that do not adequately explain a substantial portion of the delay, and a lack of uniqueness and novelty in the nature of the Complaint itself, fail to sufficiently attract the public interest in allowing the Complaint to proceed.
[50] For these reasons, I do not find that it is in the public interest to accept the late-filed Complaint, and I need not address the issue of whether substantial prejudice would result.
V Conclusion
[51] For these reasons, the Complaint is not accepted for filing.
Steven Adamson
Tribunal Member