BC Human Rights Tribunal

 

I          INTRODUCTION

[1]               Iris Chow is a woman of Chinese descent. On Wednesday, April 15, 2020, she went to a Save-On-Foods store [Store] to shop for a couple of items. She alleges that she experienced discrimination in her interaction with a security guard [Security Guard] at the Store that day, and says her subsequent reports regarding the interaction were not properly addressed. On June 30, 2020, Ms. Chow filed a human rights complaint regarding these matters.

[2]               Save-On-Foods is a Pattison Food Group Ltd. [PFG] company. I will refer to PFG and Save-On-Foods interchangeably in this decision. PFG contracted Guardteck Security Corp. [Guardteck] to provide security services at the Store, which included the services of the Security Guard. The Security Guard was working under the arrangement between PFG and Guardteck when he interacted with Ms. Chow. In this decision, I will refer to the interaction between the Security Guard and Ms. Chow as the Incident.

A.    Overview

[3]               The Incident happened roughly a month after the BC government declared a provincial state of emergency in response to the COVID-19 (coronavirus) pandemic. Ms. Chow alleges that the Security Guard discriminated against her by repeatedly denying her entry into the Store because of her race and sex. She says the Security Guard saw her as a carrier of the coronavirus based on her East Asian appearance and singled her out because of her race. Further, she says that, because she is a racialized woman, the Security Guard viewed her as inferior and as someone who would “obediently leave the premises as signaled by a male and submit to his authority.” Ms. Chow alleges that, when she complained about the Incident to PFG, it failed to respond appropriately, which amounted to discrimination .

[4]               PFG and Guardteck [collectively, Respondents] deny discriminating and argue that Ms. Chow has not proven her case. They say the evidence does not establish that Ms. Chow was denied entry into the Store, and the alleged connection between what happened that day and Ms. Chow’s protected characteristics is purely speculative. As for PFG’s response to Ms. Chow’s complaints regarding the Incident, it says the evidence shows it took her allegations seriously and did its best with the information it had, but Ms. Chow’s actions frustrated the company’s ability to fully investigate.

[5]               During the hearing, Ms. Chow testified about historical and ongoing discrimination against people of Asian descent, the resulting collective trauma experienced in Asian communities, and the escalation of anti-Asian hate during the pandemic. Against this backdrop, she described the Incident as a public humiliation, and said she felt minimized and dismissed by PFG’s response to her complaints regarding what happened. She testified about the onset of mental and physical health problems in the months following the Incident, and the negative effect on her quality of life. She said that, even now, the Incident and its aftermath continue to be a source of pain and aggravation for her.

B.     Decision

[6]               I accept Ms. Chow’s testimony about her experience of the Incident and its aftermath, and the serious and ongoing effects on her. However, for the reasons set out in this decision, I am not persuaded that what happened to Ms. Chow contravened the Human Rights Code. In my view, she has not proven that the Security Guard treated her adversely within the meaning of the discrimination analysis under the Code. Moreover, despite the broader context of anti‑Asian racism during the pandemic, on the evidence before me, I am unable to reasonably infer a connection between Ms. Chow’s protected characteristics and what happened during the Incident. Finally, in the circumstances of this case, I am not satisfied that PFG’s response to the Incident amounted to discrimination. As a result, the complaint is dismissed.

C.     Issues

[7]               This case is about the Incident and its aftermath. In dismissing Ms. Chow’s complaint, I have decided two issues:

a.    Did the Security Guard discriminate against Ms. Chow during the Incident?

b.    Did PFG’s response to Ms. Chow’s complaints about the Incident amount to discrimination?

[8]               I heard evidence regarding these issues and others over the course of a two-day oral hearing. Various documents were entered into evidence. Ms. Chow testified on her own behalf. PFG’s senior manager of health, safety, and disability management, Jeff Haraga, testified for the company. There were no witnesses for Guardteck. I am satisfied that Ms. Chow and Mr. Haraga testified honestly to the best of their ability.

[9]               After the oral hearing concluded, the parties submitted written closing arguments. Three preliminary matters arose during closing submissions. In addition, Ms. Chow and Guardteck made applications for costs. I address these matters below. Both costs applications are denied.

[10]           To make my decision, I have considered all the evidence and submissions of the parties. In my reasons, I only refer to what is necessary to explain what I decided.

II       Preliminary matters

[11]           Before I explain what I decided in this case, I will deal with two of the three preliminary matters arising from closing submissions. The first preliminary matter is an application by Ms. Chow to make an extra submission. The second is an objection by Ms. Chow to evidence put forward by PFG. I will deal with the third preliminary matter – an objection by PFG to Ms. Chow’s evidence – later in this decision.

1.      Application for sur-sur-reply submission

[12]           It is not disputed that PFG uses video surveillance at the Store. The company’s pre‑hearing document disclosure, however, did not include surveillance footage for the date of the Incident. PFG’s evidence is that the surveillance footage for the date of the Incident [Surveillance Footage] was irretrievable as of July 2020.

[13]           On the second day of the hearing, after Ms. Chow completed her evidence, PFG advised that it no longer intended to call one of its listed witnesses, Rod Simon, to testify. Mr. Simon is the senior manager of corporate security for PFG. Ms. Chow said she had planned to question Mr. Simon about the Surveillance Footage, and expressed concern that she would not have that opportunity. She queried why PFG had not retained the Surveillance Footage and wanted to know about the company’s retention policy for video surveillance. In the interests of fairness and hearing efficiency, the parties agreed that PFG would file an affidavit from Mr. Simon with answers to Ms. Chow’s questions, but he would not be called as a witness or made available for cross examination. PFG subsequently filed Mr. Simon’s affidavit. Counsel for PFG also disclosed an electronic copy of PFG’s video surveillance policy [Surveillance Policy]. Mr. Simon did not refer to the Surveillance Policy in his affidavit.

[14]           The parties made written closing arguments following the completion of the hearing. Ms. Chow filed her closing arguments first, followed by the Respondents. After receiving PFG’s closing arguments, Ms. Chow emailed the Tribunal regarding the Surveillance Policy, disputing its admissibility. She said the policy should be rejected because it was undated and did not indicate a policy version, and because its metadata indicated it had been created on December 16, 2024. Based on its metadata, Ms. Chow asserted that the Surveillance Policy did not apply in 2020. I subsequently wrote to the parties, advising that Ms. Chow should have raised these issues in her closing arguments and that, if she raised them in her final reply, PFG would be allowed a brief sur-reply.

[15]           In her final reply, Ms. Chow objected to the admissibility of the Surveillance Policy. In turn, PFG filed a sur-reply, after which Ms. Chow applied to file a brief sur-sur-reply. The Respondents took no position regarding Ms. Chow’s application and opted to make no submissions regarding her sur-sur-reply. Because there were no objections, I considered Ms. Chow’s brief sur-sur-reply in making my decision in this case.

2.      Objection to Surveillance Policy

[16]           In her reply submission, Ms. Chow argues that the Tribunal must reject the Surveillance Policy. I take this as an objection to the document’s admissibility. She says the evidentiary issues raised regarding the Surveillance Policy are serious. She asserts that it was created in 2024 and was not applicable at the time of the Incident. In its sur-reply argument, PFG disputes this assertion. It claims that the Surveillance Policy was in place on April 15, 2020. PFG claims that the “creation date” (December 16, 2024) identified in the metadata reflects the date the Surveillance Policy was exported from PFG’s intranet so it could be filed in these proceedings.

[17]           In her sur-sur-reply, Ms. Chow challenges PFG’s claims regarding the Surveillance Policy. She says there is no evidence before the Tribunal regarding PFG’s intranet, and raises questions that go to the authenticity of the electronic document in question.

[18]           Under s. 27.2(1) of the Code, I can receive and accept evidence and information that I consider necessary and appropriate, whether or not it would be admissible in a court of law.

[19]           It will become clear in my reasons below that my decision in this case does not turn on the content of the Surveillance Policy or whether it was in force at the time of the Incident. Therefore, given the questions raised by Ms. Chow regarding the document tendered, and because there is no evidence from PFG regarding when the document was created, I find that it is not necessary or appropriate for me to consider the Surveillance Policy in my decision-making in this case. The Surveillance Policy is not accepted into evidence.

III     Did the Security Guard discriminate against Ms. Chow during the Incident?

[20]           Ms. Chow alleges that the Security Guard discriminated against her during the Incident based on her race and sex, in contravention of s. 8 of the Code. Section 8 prohibits discrimination in services that are customarily available to the public. Ms. Chow says the Security Guard singled her out and repeatedly denied her entry into the Store because he saw her as a carrier of the coronavirus based on her East Asian appearance, and because, as a racialized woman, she was viewed as inferior and as someone who would submit to a man’s authority and obediently leave the premises as signaled.

[21]           The Respondents are liable for discrimination by their employees, officers, directors, officials, or agents: Code, s. 44(2).

[22]           The onus is on Ms. Chow to prove the Security Guard discriminated. To do so, she must rely on the evidence presented at the hearing to show that: (1) she has a characteristic protected under the Code; (2) she experienced an adverse impact in the services provided by the Respondents; and (3) her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.

[23]           There is no dispute that Ms. Chow’s race and sex are characteristics that are protected under the Code. In my view, however, she has not proven that she experienced a race- or sex-related adverse impact during the Incident. I will explain this decision in reference to the parties’ arguments and my findings of fact drawn from their evidence. I begin by setting out the latter.

A.    Facts

[24]           In deciding this case, I have assessed the credibility and reliability of the parties’ evidence, and made findings of fact on a balance of probabilities. Most of the relevant facts in this case are not in dispute, and many are supported by contemporaneous documentary evidence. My findings of fact regarding the Incident are set out here.

1.      COVID-19-related rules regarding reusable bags

[25]           As I mentioned above, the Incident occurred against the backdrop of COVID-19. On March 19, 2020, PFG issued a media release regarding the introduction of new measures to help prevent the spread of COVID-19. According to the media release, the new safety measures included temporarily suspending the use of reusable shopping bags in all Save-On-Foods stores. At around the same time, Mr. Haraga’s team issued an internal COVID-19-related standard operating procedure document, confirming the reusable bag ban and stating that customers wishing to use reusable bags could place their items in a shopping cart and bag them at their vehicle. PFG communicated the reusable bag rules to each of its stores. Mr. Haraga testified that each store was given point-of-sale signage regarding the reusable bag rules, and was required to confirm having posted the signage. Mr. Haraga did not testify to whether there was signage posted at the Store on the day of the Incident.

2.      The layout of the Store’s main entrance

[26]           The Incident occurred at the Store’s main entrance. The main entrance includes a set of exterior doors, a main entrance lobby, and sets of interior doors. Customers from outside enter through the exterior doors, into the main entrance lobby, and then through the interior entrance doors, which are to the right of interior exit doors. When a customer enters through the interior entrance doors, there is a deli with seating to their right, and a walled off checkout area to their left.

3.      Two days before the Incident

[27]           Ms. Chow went to shop at the Store on Easter Monday, April 13, 2020. A different security guard was working that day. When she entered the interior entrance doors, the guard was standing to her left, and made eye contact with her as she passed. She said he looked at her with what “felt like contempt.” Ms. Chow’s understanding at the time was that reusable bags were not permitted in the Store, so she had none with her. When she was checking out that day, the cashier told her that customers were permitted to bring in reusable bags, but were required to handle the bags on their own.

4.      The Incident (morning of April 15, 2020)

[28]           Ms. Chow was the only witness to testify regarding the Incident. While the parties differ on what inferences may be drawn from her testimony, her evidence about what happened that day was not contested by other eyewitnesses. I accept her description of what happened and what she observed.

[29]           Ms. Chow went to shop at the Store in the morning on April 15. Given the information from the cashier a couple of days earlier, Ms. Chow brought a single, brightly-coloured, reusable shopping bag with her. She was holding the bag when she entered the main entrance lobby through the exterior doors and turned right towards the interior entrance doors. The Security Guard was standing to her left, near the interior entrance. Behind him, along the wall, there were several reusable bags, spaced apart on the floor. There was no signage informing customers of the rules regarding reusable bags.

[30]           There was no one else around. The Security Guard was looking at Ms. Chow as she moved toward the interior entrance. At the hearing, she did not describe his facial expression, but testified that she interpreted it as “saying no.” The Security Guard was looking at Ms. Chow’s face; not her reusable bag. She stopped right in front of him, and asked: “Is it my bag?” He continued looking at Ms. Chow’s face, but did not immediately respond, nod, or show any emotion. She waited for a response, but none came, so she said: “I won’t use it,” referring to her reusable bag. The Security Guard kept looking at her, but did not respond. He made no gestures of any kind. Ms. Chow then said: “It’s like bringing in a purse,” again referring to her reusable bag. The Security Guard did not respond. Instead, he quickly walked away through the interior exit doors, into the Store, leaving Ms. Chow waiting in the lobby, without giving Ms. Chow any indication of when he would return or what she should do.

[31]           The Security Guard returned with a Store employee [Employee]. The Employee came up to Ms. Chow, while the Security Guard stayed back. The Employee told Ms. Chow to “just keep the [reusable] bag” with her, which Ms. Chow interpreted as permission to enter the Store. Before entering the Store, Ms. Chow told the Employee that a cashier previously said reusable bags were allowed, and asked: “When did that change?” As she was walking away from Ms. Chow, the Employee replied: “Yesterday.”

5.      Ms. Chow’s observations immediately after the Incident

[32]           Ms. Chow then entered the Store through the interior entrance doors. She observed the Employee and the Security Guard having a heated conversation in a language she did not understand. She collected her two shopping items, which were shelved near the interior entrance. Before leaving the Store, she observed several other customers.

[33]           First, she saw two women who were of Asian descent, but “not visibly East Asian.” One of the women had reusable bags. The women had entered the Store after her. Ms. Chow testified that the woman with the reusable bags appeared upset and “looked offended,” while the other woman did not.

[34]           Next, when Ms. Chow went to the far end of the Store, she observed a young, blonde, white woman carrying a reusable bag. Ms. Chow testified that the bag was on the woman’s left shoulder, where it would have been visible to the Security Guard when the woman originally entered the Store.

[35]           After ringing in her items at the self-checkout, Ms. Chow turned and saw another white woman packing her groceries into several soiled, reusable bags. She then observed the Security Guard enter the Store through the interior exit doors, walk directly past the woman twice without saying anything to her, and walk back out through the interior exit.

[36]           Finally, as she was on her way to exit the Store, Ms. Chow observed a sweaty, white man enter the Store through the interior exit doors and stop to get hand sanitizer. Ms. Chow then left the Store, walking through the interior exit doors, past the Security Guard, and out through the exterior doors. Her evidence is that the Security Guard remained in the same general location of the Store for the entirety of her visit there that day.

B.     Analysis

[37]           Ms. Chow says the evidence shows that, on April 15, 2020, she experienced adverse impacts in the services provided by the Respondents, related to her stated race (Chinese) and sex (female).

[38]           Ms. Chow’s closing arguments focus on her allegation of racial discrimination. She says that, at the time of the Incident, there was a general perception that “anyone who [was] visibly Asian [was] a source of COVID-19 transmission.” Ms. Chow says that, acting on this perception, the Security Guard singled her out and treated her differently than others. She says she was “accosted and turned away.” She says the Security Guard repeatedly denied her entry to the Store. Ms. Chow says the Security Guard believed she would not transmit COVID-19 to others in the Store if she was not permitted to enter.

[39]           Ms. Chow describes the Incident as a form of “unconscious bias discrimination,” while also asserting that her “Chinese and Asian identities were factors [that were] consciously motivating the Security Guard’s conduct.” She says the Security Guard did not deny her entry because of her reusable bag – her “reusable bag was never the issue.” She says he targeted her because of her race, which “shares the same origin as COVID-19.” An article tendered by Ms. Chow states that the “first coronavirus case was identified in Wuhan, China”: Yiran Yang et al., “Perceived discrimination, ethnic identity and ethnic-racial socialization in Chinese immigrant families before and after the COVID-19 outbreak: An exploratory natural experiment” (2022) 91 Int’l J. Intercult. Relat. 27 at 27 [Yang et al.].

[40]           Ms. Chow argues that a reasonable inference of race-based discrimination can be drawn from the evidence. First, she says it is not disputed that she is “clearly visibly East Asian.” Second, she says the Security Guard repeatedly denied her entry to the Store even though: the cashier on April 13 said reusable bags were permitted; the Employee ultimately allowed her to enter the Store with her reusable bag on April 15; a white woman at the far end of the Store was shopping with a reusable bag on her left shoulder, where it would have been visible to the Security Guard when she entered the Store; another white woman was openly packing her groceries into reusable bags at the self-checkouts, and the Security Guard walked past her twice without incident; the sweaty, white man who entered the Store was not singled out by the Security Guard, despite entering the Store through the exit and appearing to have an elevated temperature, both of which raised COVID-19-related health and safety issues; and after the Incident, the Security Guard allowed two women of Asian descent into the Store, one of whom was holding reusable bags. In addition, Ms. Chow testified that the reusable bags along the wall behind the Security Guard clearly belonged to other customers, yet the Security Guard did not say she could leave her bag there.

[41]           Ms. Chow asserts that PFG’s reusable bag rules were applied inconsistently. She says the evidence shows that preferential treatment was given to white customers. She says the rules were only enforced against her because of her race.

[42]           Ms. Chow argues that the broader social context at the time of the Incident also supports a finding of discrimination. She observes that, in an earlier decision, the Tribunal took note “of the social context of the COVID-19 pandemic and the increase in anti-Asian hate during that time”: Chow v. Save-on-Foods Limited Partnership, 2023 BCHRT 188 at para. 46. Ms. Chow presented evidence on this point at the hearing. Based on that evidence, I accept that, “During the pandemic, emerging research indicates that people with an East Asian background, especially Chinese, in the diaspora experienced COVID-19 related acute racial discrimination”: Yang et al. at 27.

[43]           Ms. Chow argues that a critical part of her evidence is that the Security Guard did not look at her brightly-coloured reusable bag during the Incident. The entire time he was only looking at Ms. Chow. She stresses that he was non-communicative throughout the Incident and then walked away from her. She says this was inappropriate and adverse treatment. Ms. Chow says it is reasonable to infer that the Security Guard brought the Employee over to tell Ms. Chow to leave.

[44]           The Respondents deny that the Security Guard discriminated. They argue that Ms. Chow has not proven she experienced an adverse impact, let alone one related to her protected characteristics. The Respondents say the Security Guard did not, in fact, deny Ms. Chow entry into the Store. Guardteck says Ms. Chow was free to enter the Store, but – unilaterally and without prompting – chose instead to engage with the Security Guard. Guardteck says there is no evidence to suggest that the Security Guard or anyone else “acted aggressively, was verbally abusive, yelled, or used offensive discriminatory language during the Incident.”

[45]           The Respondents say that, even if Ms. Chow experienced an adverse impact in their services, the alleged connection between what happened and Ms. Chow’s protected characteristics is speculative and unsupported by the evidence. Guardteck argues that Ms. Chow’s testimony regarding the Security Guard’s perceptions of her based on her protected characteristics are rooted in conjecture and one-sided feelings, not evidence. The Respondents say there is no factual basis for an inference of discrimination. They argue that “social context of discrimination against a group cannot be the sole basis for an inference of discrimination”: Zhou v. C-Lovers Fish & Chips, 2023 BCHRT 149 at para. 20. PFG also stresses that “not every negative interaction in a service rises to the level that triggers Code protections”: Blaine v. Office of the Ombudsperson, 2024 BCHRT 216 at para. 30.

[46]           In her reply, Ms. Chow correctly identifies inaccuracies in the Respondents’ summaries of the evidence and unsupported assertions in their descriptions of events. I share some of her concerns regarding their submissions. However, for the following reasons, I agree with the Respondents that Ms. Chow has not proven the elements of her case.

[47]           First, I find that the evidence falls short of establishing that Ms. Chow experienced an adverse impact for the purposes of the Code. To be clear, I do not doubt that the Incident had a negative effect on Ms. Chow. As I said at the outset of this decision, I accept Ms. Chow’s testimony about her experience of the Incident and the serious and ongoing effects on her. What I do not accept, however, is that what happened amounted to an “adverse impact” in services within the meaning of the test for discrimination under the Code. I appreciate that Ms. Chow experienced the Security Guard’s behaviour as upsetting and humiliating. But those subjective feelings are not enough to ground a human rights complaint. On the evidence before me – accepting Ms. Chow’s description of the Incident – I find that the Security Guard did not treat her adversely.

[48]           The evidence establishes that the Security Guard looked at Ms. Chow as she went to enter the Store. While she interpreted his look as “saying no,” in fact he said nothing and made no gestures. He did not tell her to stop. He did not tell her to leave. He did not approach her or stand in her way. Rather, she stopped in front of him. Ms. Chow asked the Security Guard questions and offered unsolicited assurances regarding her reusable bag. He did not respond. He was entirely non-communicative, and then quickly walked away. He brought back a colleague, who spoke to Ms. Chow briefly, and then Ms. Chow entered the Store and did her shopping. Ms. Chow and the Security Guard had no further interactions.

[49]           I accept that the Security Guard’s conduct may have been unusual and confusing. But, even within the social context established in this case, I find that the Security Guard cannot reasonably be described as having “accosted” or “turned away” Ms. Chow, or as having denied her entry to the Store. The Security Guard’s conduct cannot reasonably be viewed as offensive or disrespectful, let alone as so virulent or egregious that it went beyond the usual parameters of social interaction and amounted to a barrier to Ms. Chow’s full and free access, with dignity, to the Store. Nor is there any evidence that the Security Guard’s conduct towards Ms. Chow outside the interior entrance doors (i.e., looking at her, not communicating) was any different than his conduct towards other customers when they entered.

[50]           Second, even if I were to accept that Ms. Chow experienced an adverse impact in the Respondents’ services, I find that she has not proven a connection to her protected characteristics.

[51]           I find that Ms. Chow’s allegation of sex discrimination is entirely speculative and unsupported by the evidence; it requires no further comment in this decision. The parties’ evidence and arguments in this case focussed almost exclusively on the allegation of racial discrimination.

[52]           To prove racial discrimination by the Security Guard, Ms. Chow must establish that her race was a factor in the Security Guard’s conduct: Québec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 [Bombardier] at para. 52. She does not need to prove that he intentionally or consciously discriminated against her, or that his conduct was consistent only with the allegation of discrimination and not any other rational explanation: Code, s. 4; Clarke v. City of Vancouver and another, 2024 BCHRT 298 at para. 98; Radek v. Henderson Development (Canada) and Securiguard Services (No. 3), 2005 BCHRT 302 at para. 482.

[53]           Proving a race-based human rights complaint is rarely easy. There is seldom direct evidence of racial discrimination. As a result, most race-based complaints, like Ms. Chow’s, turn on circumstantial evidence and inference: see Clarke at para. 99; Zhou at para. 19. Social context is important in this regard. As Ms. Chow has argued, social context can support an inference of discrimination: Clarke at para. 100; Campbell v. Vancouver Police Board (No. 4), 2019 BCHRT 275 at para. 16-19; see R.R. v. Vancouver Aboriginal Child and Family Services Society, 2025 BCCA 151 at para. 149. Social context can help the Tribunal interpret individual incidents that may otherwise be ambiguous or explained away: Clarke at para. 100, citing Ontario Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (2005).

[54]           As previously discussed, Ms. Chow’s complaint arises in the broader social context of the COVID-19 pandemic and the associated, well-documented “increase in anti-Asian hate” at that time: British Columbia’s Office of the Human Rights Commissioner, From hate to hope: Report of the Inquiry into hate in the COVID-19 pandemic (2023) at 255. Research indicates that people with an East Asian background, especially Chinese, experienced acute, COVID-19-related racial discrimination: Yang et al. at 27. This social context, however, is not enough, on its own, to prove that Ms. Chow was discriminated against: Clarke at para. 102. Nor is Ms. Chow’s subjective perception of racism determinative of whether, as a matter of fact, race was a factor in the Security Guard’s conduct: Clarke at para. 103; Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 283; Smith v. Mohan (No. 2), 2020 BCHRT 52 at para. 186. An inference of discrimination must be drawn reasonably and practically from the facts established by the evidence: Smith at para. 188; Clarke at para. 102; Bombardier at para. 88. In determining whether conduct is discriminatory, the Tribunal’s analysis combines subjective and objective considerations: Clarke at para. 103; Francis at para. 283; see also Dental Hygienist v. Dental Corporation (Dental Clinic) and another, 2024 BCHRT 301 at para. 37. This approach accounts for the perspective and characteristics of the person subjected to the behaviour, including their awareness of the social and historical context surrounding the discrimination alleged: Clarke at para. 103; see Francis at para. 284 and Smith at paras. 187 and 215. I have approached Ms. Chow’s allegations in this way.

[55]           I have considered all of the Security Guard’s conduct together, in its full context. I have also considered the various types of evidence from which the Tribunal may draw an inference of discrimination: see Kennedy v. British Columbia (Ministry of Energy & Mines) (No. 4), 2000 BCHRT 60 at para. 168; Clarke at para. 106. In my view, if I had found that Ms. Chow was treated adversely, certain circumstances in this case may have supported an inference of discrimination. For example: the unexplained nature of the Security Guard’s silence; the two white women who were using reusable bags, apparently without incident and seemingly within view of the Security Guard; the inconsistent messaging to Ms. Chow regarding the reusable bag rules; and the broader social context surrounding the Incident.

[56]           These circumstances, however, are substantially outweighed by significant countervailing factors. For example, Ms. Chow concluded that the reusable bags behind the Security Guard belonged to two other customers, but offered no evidence to support such a conclusion. During cross examination, she testified that she did not see who put the bags there. There is therefore no direct evidence that Ms. Chow was treated differently from other customers regarding the option of leaving her reusable bags in the lobby – let alone evidence of race-based differential treatment in this regard. Similarly, Ms. Chow testified that she did not see whether the Security Guard interacted with the white woman at the far end of the Store, and did not know if the Security Guard saw or observed the white woman bagging her groceries at the self-checkout. Ms. Chow provided no direct evidence that the Security Guard knowingly treated them differently than her. There is also no evidence that the Security Guard said anything about COVID-19, or made any movements or gestures that suggested he viewed Ms. Chow as a carrier of the coronavirus.

[57]           In sum, considering the evidence and context as a whole, even if I were to accept that the Security Guard engaged in adverse treatment, Ms. Chow has not persuaded me, on a balance of probabilities, that her race or sex was a factor in his conduct. While I appreciate Ms. Chow’s testimony that she has experienced racism in the past and knows what it feels like, I find that she has not proven the necessary elements for a complaint of discrimination under the Code.

[58]           Before moving on to the second issue in this case, I will address some other points raised in Ms. Chow’s submissions regarding the Incident.

[59]           First, I acknowledge her argument that the Incident was “an example of unconscious bias discrimination where seemingly neutral policies, such as the security policies of PFG and Guardteck, have a disproportionate impact on people of colour, racialized people, including Chinese people.” With respect, I do not accept this argument. I find that the evidence in this case falls far short of establishing that the Respondents’ rules or policies disproportionately impacted Ms. Chow or any other person or group. In any event, Ms. Chow’s own evidence is that the Incident happened because of the Security Guard’s perception of her based on her protected characteristics, not because of the routine application of the Respondents’ neutral rules or policies.

[60]           Second, I also acknowledge Ms. Chow’s claims that her “identity as a Chinese and Asian woman” gives rise to “different needs during an encounter with a Security Guard” compared to what “a non-Chinese and Asian person would have during the global COVID-19 pandemic,” and that the “Security Guard’s conduct had the effect of perpetuating historical disadvantages endured by Chinese people and other Asian people in Canada.” It is possible that there could be some merit to these claims; I do not rule out that possibility. However, the evidence and argument in this case is not sufficient to ground the types of findings sought here by Ms. Chow: compare Campbell at paras. 116-140.

[61]           Third, I note – and reject – Ms. Chow’s allegation, in closing arguments, that the Employee targeted her because of her race. This is the first I have heard of this allegation. It was not made in Ms. Chow’s complaint or in her opening statement at the hearing. It is not supported by her testimony or any other evidence before me.

[62]           Finally, I acknowledge Ms. Chow’s allegation that “Guardteck has demonstrated a pattern of repeatedly denying [her] entry and discriminating against [her] based on race and sex.” In support of this claim, Ms. Chow testified that another Guardteck security guard denied her entry into a University of British Columbia [UBC] alumni event in September 2019, telling her she was not allowed to enter with food she had purchased outside the event. For convenience, I will refer to this security guard as the UBC Guard, while noting that the evidence shows he was employed or contracted by Guardteck. In email correspondence with UBC representatives after the interaction with the UBC Guard, Ms. Chow indicated that he was unhelpful and disrespectful, and stated that some of his actions could “be constructed as racist.”

[63]           I make no findings as to whether the UBC Guard discriminated against Ms. Chow in 2019. That question is not before the Tribunal. In any event, given my decision that the Security Guard did not discriminate during the Incident, Ms. Chow’s allegation of discrimination against the UBC Guard, even if proven, could not amount to or form part of a pattern of discrimination by Guardteck based on the information before me.

IV    Did PFG’s response to Ms. Chow’s complaints about the Incident amount to discrimination?

[64]           Between April and June 2020, Ms. Chow complained about the Incident to PFG. She alleges that PFG’s response to her complaints was inadequate and caused harm. She says that PFG failed “to respond reasonably and appropriately to [her] repeated allegations of discriminatory behaviour.” She says PFG’s failure in this regard amounts to discrimination.

[65]           The onus is on Ms. Chow to prove that PFG’s response amounted to discrimination. The test for discrimination here is the same as the one I outlined above: Hale v. University of British Columbia Okanagan (No. 5), 2023 BCHRT 121 at para. 13 [Hale]. Ms. Chow must rely on the evidence presented at the hearing to show that she was adversely impacted in the services provided by PFG and her protected characteristics were a factor in that impact: Hale at para. 13; Moore at para. 33. Ms. Chow can make her case in this regard by proving there were deficiencies in PFG’s response and the adverse impact of those deficiencies: Prosko v. District of Taylor (No. 2), 2024 BCHRT 207 at paras. 58-85; Laverentz v. Log It Contracting Ltd. and another, 2024 BCHRT 346 at paras. 59-67; see Mr. C. v. Vancouver Coastal Health Authority and another, 2021 BCHRT 22 at para. 119; see generally Hale at paras. 217-312.

[66]           Ms. Chow has not persuaded me that PFG’s response to her complaints between April and June 2020 amounted to discrimination. I will explain why in reference to the parties’ arguments and my findings of fact drawn from their evidence.

A.    Facts

[67]           My findings of fact regarding Ms. Chow’s complaints to PFG between April and June 2020, and PFG’s response to her complaints, are set out here.

1.      April Complaint

[68]           Ms. Chow was upset after she left the Store following the Incident. At the bottom of her receipt, there was a link to an online customer feedback survey. She testified that, later that day, she reported what happened to PFG by filing a complaint via the online survey [April Complaint]. As corroboration, Ms. Chow proffered a self-addressed email, sent at 9:55 pm on April 15, 2020, containing what she says was the content of the April Complaint. She testified that she did not take a screenshot of her online survey submission because she had received responses to previous submissions and had selected the option of receiving a response to this one. Instead, she copied and pasted the content of the April Complaint into an email for her records, as follows:

My concern is the security guard at the entrance as he should be fired. He would not allow me to enter the store because I had a reusable bag even after I understood that I was not to use it despite being told [by] a cashier on Easter Monday that I could bring my own bags if I bagged my own groceries. I continued to argue with the so called security guard until he got a store employee to speak with me. She saw no problems with me being allowed to enter the store with my reusable bag. The security guard should employ common sense in allowing customers with reusable bags to enter the store after they are notified of the Save On Foods COVID-19 bag policy. I find that so called security guards who are from India lack communication skills and their level of English is quite poor. This so called security guard walked right past a Caucasian woman who was using her reusable bags at the self checkout. I also saw another Caucasian woman shopping with her reusable bag. They appeared to have been in the store before me. The so called security guard appeared to have allowed them in with their reusable bags but he accosted me. I have found that so called security guards who are from India are discriminatory (racist) towards me.

[69]           PFG did not respond to the April Complaint. The company denies ever receiving it. I will return to this below.

2.      May Complaint

[70]           Having received no response to the April Complaint, Ms. Chow submitted another complaint on May 12. This time, she reported what happened via the “Contact Us” webform on the Save-On-Foods website [May Complaint].

[71]           PFG’s records show that the May Complaint began with Ms. Chow stating that she “did not receive a response” to her previous complaint submitted “through the online survey.” The rest of the May Complaint was largely the same as the April Complaint. However, in the May Complaint, Ms. Chow added that what happened to her was “also a human rights issue,” stating that “a security guard cannot simply ban someone from entering because they have a reusable [bag] with them.”

[72]           PFG’s records indicate that the May Complaint was received at 2:21 pm and was marked as a “5 – Lowest” priority. Later that day, at 2:55 pm, a Save-On-Foods customer service representative emailed Ms. Chow, apologizing for her experience at the Store, and advising that a manager had been asked to contact her.

[73]           At 4:08 pm, an assistant manager at the Store [Assistant Manager] responded to the May Complaint by email [Email Response]. The Assistant Manager apologized for what happened. He said the May Complaint was the “first email we’ve heard of this in regards [to] the reusable bags issues.” He noted that retailers had been advised not to permit reusable bags, and he suggested that, if Ms. Chow wished to use her reusable bag, she could do so outside the Store.

[74]           The Assistant Manager then went on to apologize further. He said the way Ms. Chow was treated was “unacceptable.” On behalf of the Store, he apologized for the Security Guard’s behaviour. He indicated that the Store was having a lot of issues with temporary security guards, and acknowledged that these issues “may have caused [Ms. Chow] inconvenience.” He said the Store was working with PFG head office to improve security guard services, and suggested that one guard had recently been terminated. The Assistant Manger concluded the email by saying that he was taking the matter seriously and wanted to address Ms. Chow’s issues in a smooth and timely way. He invited Ms. Chow to speak to him if she had any further issues at the Store, adding that “your voice is important to me.” He then offered Ms. Chow a $10.00 gift card, saying that her time was appreciated. He thanked Ms. Chow for her time, and invited her to call him if she had any further questions or concerns.

[75]           PFG’s records indicate that Ms. Chow’s inquiry was marked as “closed” shortly after the Email Response was sent.

[76]           Ms. Chow replied to the Email Response on May 13. She said her complaint was not about PFG’s reusable bag ban, but rather “that the offensive security guard refused to allow me into the store because I had a reusable bag.” She noted that another grocery store chain was allowing its customers to use reusable bags in-store, and referred the Assistant Manager to recent public health guidance that no longer restricted the use of reusable bags. She added that cashiers at the Store should be disinfecting their gloves after each transaction to prevent “cross contamination.” Ms. Chow concluded her email by stating: “I appreciate the customer service gesture of a Save On Foods gift card of $10, thank you. Please leave it at the customer service desk. I will pick it up at some point this month.”

[77]           I pause here to briefly deal with the third preliminary matter arising from the parties’ closing submissions, which is PFG’s objection to the Tribunal’s reliance on the email record of the April Complaint discussed above.

[78]           PFG’s pre-hearing document disclosure did not include the April Complaint. Roughly a month before the hearing, Ms. Chow applied for its disclosure. I dealt with Ms. Chow’s application at a pre-hearing case conference. At the case conference, counsel for PFG explained that the company had searched its records and found no record of an online survey submission from Ms. Chow in April 2020. The parties agreed that PFG would search its records again and report back by the end of the week. Counsel subsequently stated that PFG had no record of the April Complaint. Given counsel’s role as PFG’s lawyer, and the legal duties and professional obligations that come with that role, I accept his statement that PFG had no record of the April Complaint when it recently searched for it.

[79]           In its closing arguments, PFG objected to the Tribunal’s reliance on Ms. Chow’s email record of the April Complaint. PFG argues that the email is not reliable evidence of the complaint. It claims that no online survey submissions were received from Ms. Chow in April 2020. It asserts that the May Complaint was the first communication it received regarding her allegations. PFG relies on the Email Response as corroboration for this assertion.

[80]           For the following reasons, I accept Ms. Chow’s evidence that she submitted the April Complaint and copied its contents into the self-addressed email proffered at the hearing.

[81]           First, Ms. Chow’s evidence is the only cogent evidence before me regarding the April Complaint. PFG’s assertions and legal submissions regarding the April Complaint are not evidence, Mr. Simon’s affidavit does not mention the April Complaint, and Mr. Haraga had no knowledge of such matters. The Assistant Manager’s statement in the Email Response is vague hearsay evidence. In contrast, Ms. Chow was clear and unequivocal in her firsthand testimony regarding the April Complaint.

[82]           Second, consistent with my assessment that Ms. Chow testified honestly, I have no reason to believe that she fabricated the email record of the April Complaint, which was admitted into evidence through Ms. Chow when she was under a solemn promise to tell the truth. Third, Ms. Chow’s evidence regarding the April Complaint is consistent with other contemporaneous documentary evidence before me. It aligns with the information on her receipt from the date of the Incident, and accords with her statement in the May Complaint that she “did not receive a response” to her previous complaint “through the online survey.”

[83]           As I have said, I accept counsel’s statement that PFG had no record of the April Complaint when it searched for it during the Tribunal’s process. It does not necessarily follow, however, that the complaint was never sent or received. Given my finding that the April Complaint was sent, and absent any reliable evidence that it was never received, I find it more likely than not that PFG did, in fact, receive the April Complaint. I make no findings regarding what happened after that. There is no evidence before me on this point and, as I discuss below, nothing turns on it. In my view, given its contents, the sufficiency of PFG’s response to the April Complaint is not a matter for this Tribunal.

[84]           I will now return to my findings of fact regarding the aftermath of the Incident.

3.      Email exchange on May 14

[85]           At 12:14 pm on May 14, Ms. Chow emailed Save-On-Foods customer service to ask for “the email address of the person responsible for the COVID-19 response throughout all the stores.” Roughly two hours later, the manager of the Store [Store Manager] responded by email, advising that she did not have a specific email address for their COVID-19 team. She explained that direction is provided to stores via conference calls and communications to managers. The Store Manager invited Ms. Chow to contact her if she required any further information.

[86]           Later that evening, Ms. Chow replied to the Store Manager by email. She said that “being denied into a store because of a reusable bag is a human rights issue.” She questioned the practicality of bagging groceries outside the Store, and said paper bags should be provided to customers as an option while reusables were not permitted. She concluded her email by directing the Store Manager to “convey these and my previous concerns to the management team that passes these policies to every store.”

4.      Email exchange with media relations

[87]           In the evening on Friday, May 29, Ms. Chow emailed Save-On-Foods media relations about its reusable bags ban. In the email, Ms. Chow queried why reusable bags still were not permitted in Save-On-Foods stores, noting that other food retailers allowed them. She said she had been “refused entry to a Save On Foods store in Vancouver by a so called security guard because I was had [sic] my reusable cooler bag.” She also raised the issue of cross contamination, describing an experience at another Save-On-Foods store. She referred the email recipient to recent public health guidance regarding shopping bags at retail food and grocery stores, and asked why Save-On-Foods did not offer the option of using paper bags.

[88]           Someone from media relations responded to Ms. Chow’s email in the morning on Tuesday, June 2. They advised that staff and customers had expressed concerns about reusable bags, and health and safety was the company’s top priority. They confirmed that reusable bags were not permitted until further notice, customers would not be charged for using plastic bags, and paper bags were available upon request.

5.      Complaints on June 14

[89]           In the morning on June 14, Ms. Chow called the Store about the amount of the gift card offered to her a month prior. The Assistant Manager checked the gift card amount and confirmed it was $10.00. Ms. Chow referenced recent anti-racism protests around the world and asked if he could increase the gift card amount, given the discrimination she had experienced. He said he could not, and directed Ms. Chow to the Store Manager.

[90]           Ms. Chow did not contact the Store Manager. Later that day, she submitted another complaint about the Incident via the “Contact Us” webform [June Complaint], as follows:

In light of the recent anti-racist protests globally, a $10 gift card that has been offered by the Manager of the [Store] for the discrimination that I experienced by a so called security guard who can barely speak English and appears to be from India is hardly even a customer service gesture. It is an insult to be offered only a $10 gift card when the assistant manager had to check the amount when I called early morning on June 14, 2020. This suggests that higher amounts have been offered and issued to other customers who have experienced an incident. I have not accepted it by picking it up as offered in an email dated May 12, 2020. I have been offered a $25 gift card by a grocery chain for something a lot less offensive than what happened to me at the [Store]. I can’t even remember that incident but the discrimination incident is something that I will always remember. It was clearly discriminatory as this so called security guard walked right past a [white] woman who was using her somewhat soiled reusable bags in the open at a self checkout. Another Caucasian woman who was in the store before me was walking around with her reusable bag. He had let her in with those bags and said absolutely nothing when he walked by her twice. He even let a Caucasian man who was covered in sweat to enter the store through the exit which was of course a COVID-19 health and safety issue. It is astounding that Save-On-Foods would hire/contract such racists to work as security guards. You cannot change what happened but you certainly can change the amount of the gift card to reflect the value of your apology and the highly offensive actions of this so called security guard. What will you do to make things right? Two days prior to the discrimination incident, one of the cashiers did clearly say that reusable bags were allowed.

[91]           PFG’s records indicate that the June Complaint was received at 5:05 pm and was marked as a “5 – Lowest” priority.

[92]           That night, Ms. Chow submitted a webform complaint about her shopping experience at a different Save-On-Foods store. PFG’s records show that the complaint was about a customer service employee’s refusal to give Ms. Chow reward points under Save-On-Foods’ “Triple Produce Promise” program [Produce Complaint]. The complaint included a detailed account of Ms. Chow’s dealings with the employee and her dissatisfaction with certain produce at the other store. At the end of the Produce Complaint, Ms. Chow referenced “another issue which [she] had complained about through the online survey back in April 2020.” That issue was about a security guard at the other store who “insinuated that [Ms. Chow] was a shoplifter by standing right across from [her] in the deli section.” Ms. Chow said it was “an annoyance looking up to see him standing there,” and stated that she “should not be harassed.”

[93]           PFG’s records indicate that the Produce Complaint was received at 10:13 pm and was marked as a “5 – Lowest” priority. In an email to Ms. Chow in the afternoon on June 16, the manager of the other store apologized and said he had added the missing reward points to her account. The manager went on to explain that he generally asks the security guards at his store to stay at the front entrance near the deli, which may have resulted in her feeling that he was watching her. The manager thanked Ms. Chow for her feedback, and invited her to email or call him if she wished to have further discussion. Ms. Chow replied by email within 15 minutes. She provided more details regarding her interaction near the deli area, and said the manager should not “defend this incompetent ‘security guard’” or “second guess [her] observations.” She said she had “found these so called security guards at food retailers a nuisance rather than provide a sense of security.” She said she would not be returning to the store in the near future.

[94]           The June Complaint was marked as “closed” on June 16 at 11:03 am. The Produce Complaint was marked as “closed” shortly after the manager emailed Ms. Chow.

6.      Phone call with Regional Director

[95]           On June 26, Ms. Chow emailed Save-On-Foods customer service to say she was still waiting for a response to the June Complaint. On June 30, she received a phone call from a regional director at the company [Regional Director].

[96]           Ms. Chow testified that the phone call with the Regional Director was brief. The Regional Director asked Ms. Chow to describe the Incident. Ms. Chow responded that she was unwilling to describe the Incident, because she had done so previously; she said it had all been documented. The Regional Director confirmed that Ms. Chow had been allowed to enter the Store on the day in question, to which Ms. Chow replied that she was only allowed to enter because she had refused to leave. The Regional Director indicated that PFG was not required to offer Ms. Chow anything further. Ms. Chow told the Regional Director that their conversation was wasting her limited phone credits, and that she was ending the call.

[97]           Ms. Chow testified that nothing was resolved during the June 30 phone call; it only made her more upset, which led her to file her human rights complaint that same day.

B.     Analysis

[98]           A service provider’s failure to respond reasonably and appropriately to a person’s complaint of discrimination in their services may itself amount to discrimination: Bigam by McDonald v. Board of Education of School District No. 23 (Central Okanagan) and others, 2024 BCHRT 288 [Bigam] at para. 47; Mr. C at para. 118. An unreasonable or inadequate response may be discrimination regardless of whether the conduct complained about is found to be discriminatory: Bigam at para. 47. In the assessment of whether a response amounts to discrimination, relevant factors can include whether: the service provider had a proper understanding of discrimination and treated the allegations seriously and sensitively; the complaint resolution was reasonable in the circumstances; and the complaint was resolved in a way that ensured a non-discriminatory environment moving forward: Bigam at para. 48; Mr. C. at para. 119.

[99]           A service provider’s obligation to respond under the Code is triggered if the service provider knows or ought to know there is a complaint or report about a possible violation of the Code: see Clarke at para. 112 (discussing similar requirements in the employment context). The service provider’s response should be prompt, effective, and proportionate to the seriousness of the incident: Hale at para. 218.

[100]       Ms. Chow says that PFG’s response to her complaints about the Incident between April and June 2020 amounted to discrimination. She argues that PFG’s response was deficient because:

a.    PFG did not acknowledge or investigate the April Complaint;

b.    PFG failed to identify or interview the Security Guard or the Employee;

c.     PFG did not review or retain the Surveillance Footage even after it received the May Complaint;

d.    The May Complaint was classified as “lowest priority” and closed within two hours of when it was received, after the Assistant Manager offered her a $10.00 gift card for her time;

e.    The Assistant Manager did not show any sensitivity to her as “a racialized female with Chinese and Asian identities” during the COVID-19 pandemic;

f.      PFG did not increase the value of the gift card despite her requests;

g.     PFG showed no commitment to improve; and

h.    No changes were made at the Store, so Ms. Chow could have a “repeat discriminatory interaction” if she returns there.

[101]       Ms. Chow argues that PFG did not treat her allegation of racial discrimination sensitively or seriously. She says she “repeatedly attempted to elicit a reasonable and appropriate response from PFG on April 15, 2020, May 12, 2020, May 13, 2020, May 14, 2020, May 29, 2020, June 14, 2020, and June 30, 2020,” but no steps were taken to resolve the matter. In citing these dates, I understand Ms. Chow to be referencing the April Complaint, the May Complaint, her email reply to the Assistant Manager, her email exchange with the Store Manager, her email to media relations, the June Complaint, the Produce Complaint, and her phone call with the Regional Director.

[102]       Ms. Chow says the Respondents “have not provided any evidence showing that they took all reasonable and practical steps. She says her complaints to PFG were “not resolved in a manner that ensured a non-discriminatory environment moving forward.” Instead, she says PFG inappropriately labelled her “racist,” angry, and difficult, which further marginalized her and undermined her advocacy efforts for change. Ms. Chow adds:

These labels were used to undermine me as a racialized female by perpetuating harmful biases and reinforcing societal power imbalances. I was being silenced. My complaint was still being viewed as inconsequential. Therefore, my race and sex were factors in the adverse impacts that arose from PFG’s unreasonable and inappropriate response to my complaint.

[103]       Ms. Chow says a $10.00 gift card – or a gift card of any value – is not an appropriate remedy for the race- and sex-based adverse impacts she experienced.

[104]       PFG denies that its response to Ms. Chow’s complaints between April and June 2020 amounted to discrimination. Among other things, PFG says: it did not receive the April Complaint; the May Complaint alleged that Ms. Chow was “refused entry into the [Store] because she was holding a reusable bag” [reproduced as written]; it reasonably considered the matter to have been satisfactorily addressed following receipt of Ms. Chow’s email reply to the Assistant Manager on May 13; in her email reply to the Store Manager on May 14, Ms. Chow did not ask for any further response, investigation, or follow-up; and Ms. Chow did not contact the Store Manager about the gift card amount as directed on June 14.

[105]       PFG says Ms. Chow’s own evidence shows that it acknowledged and investigated her complaints regarding the Incident. It says it treated Ms. Chow’s allegations seriously and sensitively, as evidenced by the efforts of the Assistant Manger, Store Manager, and Regional Director. It says it did its best with the information available. It argues that Ms. Chow’s actions during her June 30 phone call with the Regional Director “frustrated PFG’s ability to further investigate the situation.”

[106]       For the following reasons, I find that PFG’s response to Ms. Chow’s complaints and communications between April and June 2020 did not amount to discrimination.

1.      Most communications did not describe possible violation of the Code

[107]       First, I find that – other than the June Complaint – Ms. Chow’s complaints and communications between April and June did not describe a possible violation of the Code. As a result, they did not trigger PFG’s Code-mandated obligation to respond reasonably and appropriately.

[108]       The April Complaint was the first time Ms. Chow reported the Incident. On its face, the complaint was primarily about the Security Guard refusing Ms. Chow entry “because [she] had a reusable bag,” not because of her protected characteristics. As a corrective, Ms. Chow said the Security Guard should “employ common sense” and permit entry to customers with reusable bags who are aware of the Store’s rules. I acknowledge that Ms. Chow went on to suggest that the Security Guard treated white women with reusable bags differently. However, she did not expressly allege that she experienced adverse or differential treatment based on her race or sex. Instead, she made generalizations about “security guards who are from India,” saying that, in her experience, they “lack communication skills,” their “level of English is quite poor,” and they are “discriminatory (racist)” towards her. Ms. Chow did not describe the Incident in detail or offer any further context or information. She made no reference to her Chinese ancestry or to concerns regarding COVID-19-related anti-Asian hate. She did not describe herself as “visibly East Asian,” as she has in these proceedings. She did not say that the Security Guard’s conduct that day was discriminatory. These are significant, and unexplained, omissions from the April Complaint. In these circumstances, I am not satisfied that the April Complaint amounted to, or ought to have been viewed by PFG as being, a complaint or report about a possible violation of the Code.

[109]       For the same reasons, I find that the May Complaint did not trigger PFG’s obligation to respond under the Code. For the most part, the May Complaint was the same as the April Complaint. I appreciate that the May Complaint asserted that what happened was “also a human rights issue.” However, Ms. Chow described the human rights issue as being that a “security guard cannot simply ban someone from entering because they have a reusable bag with them.” This is not an allegation of discrimination.

[110]        Nor did Ms. Chow allege discrimination in her email reply to the Assistant Manager on May 13. Rather, in the first sentence of her email, she reiterated her allegation that the Security Guard denied her entry “because [she] had a reusable bag.” In the remainder of her email, Ms. Chow: referenced another grocery store chain’s approach to reusable bags; referred the Assistant Manager to recent public health guidance; commented on the need for cashiers to be disinfecting their gloves to prevent cross contamination; and expressed appreciation for the offer of a $10.00 gift card. Whether read in isolation or in the context of Ms. Chow’s previous two complaints, there was nothing in her May 13 email to suggest she was concerned about a possible violation of the Code at the Store.

[111]       Similarly, whether viewed in context or isolation, I find that the following communications did not trigger PFG’s obligation to respond under the Code:

a.    Email exchange with the Store Manager: In their exchange, Ms. Chow asked for “the email address for the person responsible for the COVID-19 response throughout all the stores,” to which the Store Manager responded that there was no such email address. In a reply email, Ms. Chow raised practical issues related to PFG’s reusable bag rules, and stated that “being denied into a store because of a reusable bag is a human rights issue.” This email exchange did not allege a possible contravention of the Code. On its face, it was about PFG’s COVID-19 response and the company’s related reusable bag rules.

b.    Email to media relations: In her email, Ms. Chow questioned PFG’s reusable bag rules, raised the issue of cross contamination, referred to recent public health guidance, and alleged that a security guard denied her entry to a store because she had a reusable cooler bag. The email was not about discrimination. The adequacy of PFG’s response is not a matter for this Tribunal.

c.     Produce Complaint and subsequent email exchange: On its face, this was about reward points and an allegedly incompetent security guard at another Save‑On‑Foods store. Even accepting Ms. Chow’s testimony that it was actually about “racial discriminatory behaviour,” I find that PFG could not have known that.

[112]       That leaves the June Complaint and Ms. Chow’s subsequent phone call with the Regional Director. The June Complaint was different than Ms. Chow’s previous communications, in that it expressly alleged “discrimination … by a … security guard” at the Store. Ms. Chow was also more clear in asserting in the June Complaint that she believed the Security Guard’s treatment of white customers was evidence of his alleged discriminatory behaviour towards her. On the other hand, the June Complaint, like those in April and May, still lacked certain important details, such as the alleged connection between the Incident and Ms. Chow’s Chinese ancestry and East Asian appearance. In any event, for the purposes of this decision, I accept that PFG should have reasonably understood that Ms. Chow’s allegations in the June Complaint potentially engaged the Code.

[113]       As I discuss next, under the circumstances, I find that PFG’s response to the June Complaint, while imperfect, was not unreasonable or inappropriate, and did not amount to discrimination.

2.      Response to June Complaint was not unreasonable or inappropriate

[114]       So far, I have explained why only the June Complaint could have triggered PFG’s obligation to respond under the Code. Now I will address PFG’s response to the June Complaint. I will explain why, under the circumstances, I find that PFG’s response to the June Complaint, was not unreasonable or inappropriate and did not amount to discrimination.

[115]        Context is critical in assessing a service provider’s response to a person’s complaint of discrimination in their services: Hale at para. 27. Perfection is not the standard, and there are no rigid criteria that must be satisfied in every case: Hale at para. 27. Rather, each case turns on its specific circumstances, keeping in mind that there may be more than one reasonable way to respond in any given situation: see Hale at para. 27.

[116]       As I said above, Ms. Chow’s task is to prove (1) that there were deficiencies in PFG’s response to the June Complaint and (2) the adverse impact of those deficiencies. I find that she has not proven the former, and so I need not consider the latter.

[117]       I acknowledge that certain aspects of the evidence support Ms. Chow’s position. First, there is no information before me regarding PFG’s understanding of discrimination, nor is there evidence of its anti-discrimination policies or procedures. While the Respondents included a document titled “PFG Code of Ethics & Conduct” in their materials at the hearing, the document was never entered into evidence.

[118]       Second, there is no evidence of a formal investigation of the June Complaint. There is no evidence of any attempts by PFG to review the Surveillance Footage or conduct witness interviews of the Security Guard and Employee upon receiving the June Complaint. Instead, the evidence indicates that Guardteck made its first attempt to obtain information regarding the Incident on July 15, 2020 – the day the Tribunal notified PFG of Ms. Chow’s human rights complaint to the Tribunal. Similarly, the evidence suggests that PFG’s first attempt to obtain the Surveillance Footage was at that same time.

[119]       Third, there is no explanation in the evidence as to why PFG’s records indicate that the June Complaint was rated as a “lowest” priority and was marked “closed” as of 11:03 am on June 16. Nor was it explained to me why it took PFG two weeks to contact Ms. Chow about the June Complaint.

[120]       These circumstances, however, are outweighed by significant countervailing factors, which, in my view, tip the balance against a finding of discrimination in PFG’s response to the June Complaint.

[121]       First, a month prior to the June Complaint, PFG had already responded to Ms. Chow’s factual allegations regarding the Incident. In my view, that response – the Email Response – treated Ms. Chow’s allegations seriously and sensitively. The Assistant Manager told Ms. Chow that the way she was treated was unacceptable, and he apologized for the Security Guard’s behaviour. He acknowledged broader issues with the Store’s temporary security guards, and indicated that PFG was taking steps to address those issues. He said he valued Ms. Chow’s voice, and invited her to contact him directly about any further issues. The Assistant Manager expressed thanks and appreciation towards Ms. Chow, and extended further goodwill by offering a small gift card. In my view, this was an effective and proportionate response at that time to what Ms. Chow said had happened during the Incident. I reject Ms. Chow’s assertion that the Assistant Manager showed her no sensitivity.

[122]       Second, I find that the Regional Director’s phone call to Ms. Chow, while slightly delayed, was a reasonable and appropriate step for PFG to take in response to the June Complaint. While PFG was already aware of Ms. Chow’s basic factual allegations before the phone call, the company did not have complete information regarding what had happened. Ms. Chow never provided PFG with the full version of events that formed part of her testimony at the hearing. I reject Ms. Chow’s assertion that the Regional Director “already had knowledge of what happened” and the concomitant implication that there was no further information for Ms. Chow to give her.

[123]       Ms. Chow says the “takeaway from [the Regional Director’s] call” was “that the $10 Save-On-Foods gift card was a final take [it] or leave it offer.” She suggests that the onus, at that point, was on the Regional Director to follow up with her further by email. With respect, I disagree. In my view, when Ms. Chow declined to provide further information, it was reasonable and appropriate for PFG to move forward with the particulars it had. The documentary evidence before me indicates that PFG did so, and the Regional Director determined, based on the limited information Ms. Chow had provided, that the Security Guard had not discriminated. In my view, given the content of the June Complaint and Ms. Chow’s previous communications, it was not unreasonable for the Regional Director to come to that determination. I acknowledge that it may have been possible for PFG to make further internal inquiries at that time; for example, it could have tried to identify and interview the Employee, if not the Security Guard. In hindsight, it may have been a good idea to do so. However, under the circumstances, I am not satisfied that PFG discriminated by not making additional inquiries. Nor am I satisfied that there were any Code-mandated corrective steps for PFG to take at that point. Having reasonably determined that there had been no discrimination, there was no need for PFG to take additional action to ensure a non-discriminatory environment at the Store moving forward.

[124]       In sum, I am not persuaded that PFG’s response to the June Complaint was deficient. As a result, while I accept that Ms. Chow’s experience of what happened was very negative, I am not satisfied that she was adversely impacted in connection to a deficient response to her allegation of discrimination. In all of the circumstances, PFG’s response to the June Complaint was reasonable and appropriate. The response, itself, did not amount to discrimination.

[125]       Before concluding, I want to acknowledge Ms. Chow’s concerns regarding an internal email from the Regional Director to Store management and a PFG loss prevention supervisor, dated July 16, 2020. In the email, the Regional Director describes her June 30 phone call with Ms. Chow and advises that, following the call, she had directed the closure of the associated customer service ticket. Regarding Ms. Chow’s complaints and communications following the Incident, the Regional Director states in the email that, “if anyone was being racist, it was [Ms. Chow] with regards to people from Indian [sic] not being able to speak English and [saying] they should be fired.” I find this statement to be careless and unprofessional. I would have expected more restraint and measured language from a senior management representative. That said, contrary to Ms. Chow’s assertions, I do not accept that the Regional Director’s email is evidence of an effort to undermine Ms. Chow “as a racialized female by perpetuating harmful biases and reinforcing societal power imbalances.” I also reject Ms. Chow’s assertions that she “was being silenced” or that her complaints were “viewed as inconsequential.” The evidence before me does not support these claims. In any event, the Regional Director’s email does not change my view of PFG’s response to Ms. Chow’s complaints and communications between April and June 2020. It does not render PFG’s response discriminatory.

[126]       I also acknowledge Ms. Chow’s allegation that “PFG has demonstrated a pattern of disregarding complaints about racial discriminatory behaviour.” In support of this allegation, Ms. Chow points to the April Complaint and another complaint she says she submitted in April 2020, which was later referenced in the Produce Complaint. Ms. Chow argues that PFG did not prioritize or respond to her discrimination complaints, whereas it responded multiple times to positive feedback from her in 2018. I am not persuaded by these arguments. I have already decided that – other than the June Complaint – the sufficiency of PFG’s response to Ms. Chow’s complaints and communications between April and June 2020 is not a matter for this Tribunal. I have also determined that the company’s response to the June Complaint was reasonable and appropriate in the circumstances. I see no pattern of disregard for discrimination complaints here.

[127]       In final summary, based on all the evidence and my findings of fact, Ms. Chow has not persuaded me, on a balance of probabilities, that the Security Guard discriminated against her during the Incident or that PFG discriminated in its aftermath. Ms. Chow’s human rights complaint is dismissed.

V       Costs applications

[128]       Section 37(4) of the Code allows the Tribunal to order costs against a party for “improper conduct during the course of the complaint.” The purpose of a costs award is punitive: Terpsma v. Rimex Supply (No. 3), 2013 BCHRT 3 at para. 102. It aims to deter conduct that has a significant and detrimental impact on the integrity of the Tribunal’s process: Oger v. Whatcott (No. 7), 2019 BCHRT 58 at para. 246. “Improper conduct” within the meaning of s. 37(4) of the Code is not necessarily limited to intentional wrongdoing, and may include conduct that has a significant prejudicial impact on another party: McLean v. B.C. (Min. of Public Safety and Sol. Gen.) (No. 3), 2006 BCHRT 103 at para. 8.

[129]       In closing arguments, Ms. Chow and Guardteck made applications for costs. I will deal with them in turn, explaining why the applications are denied.

A.    Ms. Chow’s costs application

[130]       Ms. Chow alleges that the Respondents engaged in various forms of improper conduct during the course of the complaint, which I have grouped into the following categories:

a.    Discourteous and disrespectful conduct. For example, Ms. Chow alleges that: PFG accused her of improper conduct in an email to the Tribunal in November 2024; and, in Guardteck’s amended response to Ms. Chow’s application to add it as a respondent, Guardteck accused the Tribunal of endeavouring to assist her.

b.    False and misleading statements, and withholding information. For example, Ms. Chow alleges that: PFG misidentified a witness; PFG made inaccurate statements in its Form 2 response to the complaint; PFG repeatedly disregarded Ms. Chow’s requests for the name of its security services contractor (i.e., Guardteck); PFG provided false information about the ability of store managers to respond to online survey submissions; Guardteck fabricated portions of its Form 2 response to the complaint and Form 9.6 response to remedy sought; the Respondents falsely accused her of “carefully crafting and omitting information” in her pleadings; at the hearing, PFG told the Tribunal that there was no reusable bag policy, which was untrue; PFG “effectively destroyed” the Surveillance Footage; and Guardteck’s closing arguments contain false statements.

c.     Breach of procedural rules and directions. For example, Ms. Chow alleges that: PFG breached Rule 10(5) of the Tribunal’s Rules of Practice and Procedure [Rules] by failing to deliver its Form 2 to her; PFG filed a dismissal application six days late without seeking the Tribunal’s permission; Guardteck filed its Form 9.2 document disclosure late; and the Respondents delivered their joint book of documents late.

[131]       Ms. Chow alleges various actual and potential impacts of the Respondents’ alleged conduct. For example, she says: some of PFG’s false statements went to the core of her complaint and were prejudicial; PFG’s late-filed dismissal application caused delay and injured her dignity, feelings, and self-respect; PFG’s withholding of Guardteck’s name could have caused her to expend unnecessary resources had her application to add Guardteck been late;  PFG’s conduct made the complaint process more challenging for her; and, had Guardteck repeated the false information from its pleadings at the hearing, she would have been forced to expend unnecessary resources to defend herself. 

[132]       Ms. Chow submitted no documentation in support of her costs application. She says, however, that her allegations of improper conduct are supported by documents that were admitted into evidence, statements made at the hearing and recorded in the hearing audio recording, and affidavits filed by the Respondents. She characterizes the Respondents’ alleged conduct as “intentional wrongdoing” and seeks “an appropriate and proportionate monetary award of costs.” In her initial closing arguments, she suggests a costs award of “at least $2,000.” In her reply submission, she says she is seeking $20,000 from each Respondent “for repeatedly engaging in improper conduct throughout the complaint process even near the end.”

[133]       The Respondents deny Ms. Chow’s allegations of improper conduct. For the following reasons, I am not satisfied that that the Respondents have engaged in improper conduct warranting a punitive costs award.

[134]       First, I have no knowledge of some of the conduct alleged in Ms. Chow’s application, and she has not directed me to information or evidence that she believes supports those allegations. The complaint was assigned to me under s. 27.1 of the Code in October 2024. I will not make decisions about alleged conduct before then in the absence of clear documentation or supporting evidence.

[135]       Second, I am aware that, at times during this proceeding, the Respondents have criticized Ms. Chow and suggested her actions were improper. While largely unnecessary and unhelpful, I am not satisfied that any such comments amounted to “improper conduct” under the Code.

[136]       Third, I accept that Ms. Chow has identified inaccuracies in some of the Respondents’ materials. I thank her for doing so. But to my knowledge and in the materials before me, there is no support for Ms. Chow’s claims of fabrications and false statements. I accept that the identified inaccuracies, while not insignificant, are likely the result of errors, assumptions, and inattention.

[137]       Fourth, I do not accept the statement that PFG “effectively destroyed” the Surveillance Footage. I interpret that statement as suggesting some sort of impropriety. There is no evidence of that.

[138]       Last, based on Ms. Chow’s descriptions of the impacts of the Respondents’ conduct during the course of the complaint, I am not satisfied that it has significantly prejudiced her in this proceeding. Nor is there anything before me that shows the Respondents have impugned the integrity of the Tribunal’s process.

[139]       Ms. Chow’s costs application is denied.

B.     Guardteck’s costs application

[140]       Guardteck alleges that Ms. Chow engaged in improper conduct during the course of the complaint. It says she violated Rules 7(4) and 7(6), which require participants in complaint proceedings to treat others with courtesy and respect, conduct themselves with honesty and integrity, and not act in a manner that would undermine the Tribunal’s process. Specifically, Guardteck makes allegations in four areas.

[141]       First, it says Ms. Chow was disrespectful to counsel by yelling at him at the hearing.

[142]       Second, it says she made discriminatory comments about security guards from India and ageist remarks about a PFG employee.

[143]       Third, Guardteck alleges that Ms. Chow “introduced non-existent evidence into her closing submissions,” pointing to her “characterization of the discussion between the [Security] Guard and the [Employee]” immediately after the Incident, and her submissions regarding “security guard positioning.”

[144]       Finally, Guardteck alleges that Ms. Chow knowingly “withheld material facts in her written submissions, and specifically her original complaint.” Guardteck says Ms. Chow: selectively crafted her submissions to suggest that she was completely barred entry repeatedly by Guardteck, which was untrue; failed to disclose in her complaint that she entered the Store and completed her shopping after the Incident; and, in her complaint, selectively omitted mention of the two Asian women at the Store on the day of the Incident, while including information about only the white women, in order to bolster her claim. Guardteck asserts that Ms. Chow made “attempts to skirt around these facts at the hearing and in her closing statements.”

[145]       Guardteck says Ms. Chow “should be penalized for her conduct and the additional costs the Respondents have incurred.” It seeks a costs order in the amount of $1,000. It submitted no documentation in support of its application.

[146]       Ms. Chow denies Guardteck’s allegations of improper conduct. For the following reasons, Guardteck’s application is denied.

[147]       First, Guardteck’s application is vague and lacks necessary particulars. It says Ms. Chow yelled and was disrespectful, without providing any examples or specifics. It says she made discriminatory and ageist comments, without describing what she said or when she said it. It makes vague references to two areas where it says Ms. Chow introduced non-existent evidence, without identifying the specific points of evidence that it believes do not exist. I am not prepared to order Ms. Chow to pay costs based on unparticularized assertions.

[148]       Second, I do not accept that Ms. Chow knowingly withheld material facts in her written materials. Ms. Chow’s complaint mirrors her testimony about how she experienced the Security Guard’s conduct during the Incident. It is also apparent, on the face of the complaint form, that Ms. Chow must have entered the Store in order to observe the activities of the two white women, which are described in the form. In addition, I do not follow Guardteck’s logic as to why it was improper not to include information regarding other Asian shoppers in Ms. Chow’s complaint. Ms. Chow filed an individual complaint alleging discrimination against only herself, not all Asian women. I note that, at the hearing, Ms. Chow described the two women in question as being of Asian descent, but – unlike Ms. Chow – not visibly East Asian.

[149]       I reject Guardteck’s unparticularized assertion that Ms. Chow skirted around facts at the hearing. Ms. Chow gave over four hours of evidence in chief, during which time she was forthright in her testimony about entering the Store after the Incident, completing her shopping, and observing other shoppers, including two women of Asian descent.

[150]       Guardteck’s costs application is denied.

VI    CONCLUSION

[151]       I am sorry that Ms. Chow experienced the Incident and its aftermath in the way that she did. However, on the evidence before me, I am not satisfied that what happened in this case contravened the Code. As a result, Ms. Chow’s complaint is dismissed: Code, s. 37(1). In addition, the parties’ costs applications are denied.

[152]       It is not easy to be a self-represented complainant before the Tribunal. Human rights law is complex, the Tribunal’s rules of procedure can be difficult to navigate, and various parts of the Tribunal’s process can be distressing. Ms. Chow represented herself capably. I wish her all the best moving forward.

Jonathan Chapnick

Tribunal Member