Kim v. Lululemon Athletica Canada Inc., 2025 BCHRT 211
Date Issued: August 21, 2025
File: CS-007654
Indexed as: Kim v. Lululemon Athletica Canada Inc., 2025 BCHRT 211
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Min Hee (Eva) Kim
COMPLAINANT
AND:
Lululemon Athletica Canada Inc.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(g)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Menachem Freedman
Counsel for the Respondent: Donovan Plomp, Lauren Soubolsky
I INTRODUCTION
[1] Min Hee (Eva) Kim alleges her former employer, Lululemon Athletica Canada Inc. discriminated against her on the grounds of her race, ancestry, and place of origin contrary to s. 13 of the Human Rights Code. She says her protected characteristics were a factor in Lululemon undervaluing her work, failing to promote her, and excluding her from work meetings.
[2] Lululemon denies discriminating and applies to dismiss parts of the complaint under s.27(1)(g). It says some of the allegations in the complaint are about events that occurred more than one year before the complaint was filed and are untimely. Ms. Kim says all of her allegations are part of a continuing contravention of the Code.
[3] For the following reasons, I deny the application to dismiss. I am satisfied that all of the allegations are sufficiently connected in character and time to form part of a timely continuing contravention of the Code. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[4] Lululemon is a company that manufactures and sells athletic apparel and accessories.
[5] Ms. Kim is an immigrant from South Korea. She began working for Lululemon in 2018 as a pattern engineer.
[6] Ms. Kim alleges that during her employment, between February 2019 to February 2021, she was assigned more work than her non-Asian colleagues. The parties agree that in addition to Ms. Kim’s regular duty of pattern engineer for men’s outerwear, she was assigned the work of a fit specialist for men’s outerwear, the work of a pattern engineer and fit duties for women’s outerwear, and pattern engineer and fit duties for the 2022 Olympics product line. Ms. Kim alleges that she was not properly compensated for the hours she worked.
[7] Ms. Kim alleges she was passed over for a promotion several times during her employment. She says that on May 29, 2020, she was told by Lululemon’s vice president of product development that she would not be promoted because of the company’s rules around promotion requiring a candidate be “working in/into the role and living into it.” She says that on February 22, 2021, the vice president told her that she would not be promoted because she had not demonstrated that she was ready to be a senior pattern engineer. Ms. Kim says she was denied a promotion for the third time on June 16, 2021.
[8] Ms. Kim also alleges that she was excluded from meetings between September 2020 to February 2021. She says she was the only pattern engineer excluded from these meetings.
[9] Ms. Kim resigned, and her employment ended on August 9, 2021.
III DECISION
[10] This complaint was filed on November 24, 2021. Lululemon applies to have allegations of events before November 24, 2020, dismissed on the basis that they are out of time under s. 27(1)(g) of the Code.
[11] Ms. Kim argues that all of her allegations, considered together, form part of a timely continuing contravention of the Code.
[12] I must decide two issues: (1) whether any of Ms. Kim’s allegations are late filed, and (2) if so, whether to exercise my discretion to accept them because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: School District v. Parent obo the Child, 2018 BCCA 136 at para. 68.
[13] A complaint is filed in time if the last allegation of discrimination happened within the time limit set in the Code, and older allegations are part of a “continuing contravention”: Code, s. 22(2), School District at para. 68. A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code, and “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57at para. 23; School District at para. 50.
[14] The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17. A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General, 2018 BCHRT 204 at para. 14.
[15] The burden is on the complainant to establish that their complaint alleges a timely continuing contravention: Dove v. GVRD and others (No. 3), 2006 BCHRT 374 at para. 38.
[16] In this case, I find it helpful to begin by identifying which of Ms. Kim’s allegations share a common character. In my view, Ms. Kim’s allegations can be grouped into three broad categories:
a. Lululemon discriminated against Ms. Kim by assigning her work that was outside of her job description and which other pattern engineers were not required to do.
b. Lululemon denied Ms. Kim promotions on three occasions on May 29, 2020, February 22, 2021, and June 16, 2021.
c. Lululemon excluded Ms. Kim from meetings that other pattern engineers were allowed to attend between September 2020, to February 2021.
[17] For each of these categories of allegations, I begin by identifying whether Ms. Kim has identified an arguable contravention of the Code within the one-year time limit. I then consider the context of the allegations, including any gaps in time, to determine whether they set out a continuing contravention.
[18] In my view, Ms. Kim has alleged timely contraventions of the Code for each of the categories. Ms. Kim alleges she was required to perform the work of a pattern engineer and fit specialist for the women’s and men’s outerwear line and Olympic line through May 2021. Lululemon characterizes Ms. Kim’s allegations as specific acts of assigning Ms. Kim projects. It says Ms. Kim has not provided sufficient particulars, and there is no timely component to this allegation. I am not persuaded by Lululemon’s arguments in light of the materials before me.
[19] I understand Ms. Kim to be alleging that her workload was greater than that of her non-Asian colleagues and she was required to perform multiple duties. Therefore, the allegation is not just that Ms. Kim was assigned specific tasks, but that she was responsible for managing a workload that was in excess of her colleagues from February 2019 to February 2021. In her materials, Ms. Kim cites specific instances where she was directed to manage her increased workload. The most recent example is that on January 28, 2021, Ms. Kim’s supervisor directed her to manage her workload and balance her schedule. I am therefore, persuaded that there is a timely allegation.
[20] Ms. Kim alleges that she was assigned additional work duties and directed to manage her workload regularly during her employment so as to constitute a continuous contravention.
[21] On the allegation that she was denied promotions, Lululemon concedes that Ms. Kim’s allegations of being denied a promotion on February 22, 2021, and June 16, 2021, are timely. Lululemon argues Ms. Kim’s allegation that she was denied a promotion on May 29, 2020, is of a different character than the timely allegations because that discussion pertained to Ms. Kim’s request to change her job title and duties. I am not persuaded that the allegation is of a different character so that it does not constitute a continuing contravention. In her request on May 29, 2020, Ms. Kim suggests a change to her job title and job description and says that because she is being given more duties and responsibilities a “promotion with authority and compensation is duly warranted.” In my view, Ms. Kim’s request on May 29, 2020, is for a promotion and is therefore of a sufficiently similar character as her requests on February 22, 2021, and June 16, 2021. I acknowledge that there are time gaps of several months between each of the allegations. However, the allegations span a period of approximately one year. Viewed in context, I am persuaded that three alleged incidents of being denied a promotion over a one-year period is not a significant gap to separate the allegations. I have considered the concerns about sweeping in allegations and am satisfied that this is not at play in this situation.
[22] Finally, Ms. Kim alleges she was excluded from meetings from September 2020 to about March 2021. Ms. Kim says she was the only pattern engineer who was excluded from meetings and her other non-Asian colleagues were allowed to attend. Ms. Kim alleges that on February 23, 2021, she was informed that she would only be allowed to participate in two meetings, when she requested that she attend eight meetings for projects she was involved in. Based on the materials I am satisfied that Ms. Kim has set out a timely arguable contravention of the Code respecting her exclusion from meetings. The character of the discriminatory act is the same for each allegation, Ms. Kim says she was excluded from meetings while other employees were permitted to participate in these meetings. I am satisfied that Ms. Kim’s allegation regarding her exclusion from meetings between September 2020 to March 2021 form part of a timely continuing contravention of the Code.
[23] I am persuaded that all of Ms. Kim’s allegations are not late, and I decline to dismiss them under s. 27(1)(g) of the Code.
IV CONCLUSION
[24] I deny the application to dismiss portions of the complaint. All of these allegations will proceed to a hearing.
Edward Takayanagi
Tribunal Member