Lazar v. Costco Wholesale Canada Ltd. (Nanaimo), 2025 BCHRT 95
Date Issued: April 29, 2025
File(s): CS-003110
Indexed as: Lazar v. Costco Wholesale Canada Ltd. (Nanaimo), 2025 BCHRT 95
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:
Jae Lazar
COMPLAINANT
AND:
Costco Wholesale Canada Ltd. (Nanaimo)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Laila Said Alam
Counsel for the Complainant: Laura Track
Counsel for the Respondent: Donovan Plomp and Lauren Soubolsky
I INTRODUCTION
[1] This complaint arises in the unique circumstance of the COVID-19 pandemic, where there was great uncertainty and heightened concern across the Province of British Columbia and the world. At the time, the Province had mandated mask wearing in all public indoor spaces in response to the COVID-19 pandemic.
[2] Jae Lazar alleges Costco Wholesale Canada Ltd. discriminated against her in the area of services on the grounds of physical and mental disability, contrary to s. 8 of the Human Rights Code . Specifically, she says she had a medical exemption to wearing a mask, but Costco told her she would have to leave without completing her purchase because she was not wearing a mask. She says Costco staff physically intimidated her, causing her a panic attack, burning fever, distorted vision, and shortness of breath. Her support person tied a scarf around her face, and she completed her purchase.
[3] Costco denies discriminating and applies to dismiss the complaint under s. 27(1)(c) of the Code . They argue Ms. Lazar has no reasonable prospect of proving she has a disability related barrier to wearing a face covering or that she was denied services. Costco says they are also reasonably certain to prove a defense at the hearing.
[4] In order to decide this application under s. 27(1)(c), the issue I must decide is whether there is no reasonable prospect Ms. Lazar will establish that one or more of her physical and mental disabilities are a disability-related barrier that prevented her from wearing a face covering. The answer to this question turns on whether the evidence before me takes her allegation that she has a disability-related barrier to wearing a face covering, out of the realm of conjecture.
[5] For the reasons set out below, I find it does not. I allow the application. 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
[6] Costco is a wholesale retail business which operates stores it calls warehouses in various locations across British Columbia and Canada. Costco is a membership-based retailer, and members of the public must purchase a Costco membership and pay an annual fee to access Costco’s products or services.
[7] In March 2020, the Province of British Columbia declared a state of emergency because of the COVID-19 pandemic. In response to the COVID-19 pandemic, Costco adopted a mandatory mask policy for all employees and members entering its warehouses [ Mask Policy ] beginning May 2020. The Mask Policy required everyone over the age of two to wear a face mask or other face cover to prevent the spread of COVID-19 and protect the health and safety of people visiting Costco, and its employees. Between May 2020 and November 2020, Costco exempted individuals who could not wear a face mask or covering due to a medical condition.
[8] The exemption was removed from the Mask Policy on or around November 16, 2020, in response to the BC Centre for Disease Control’s report of the increased number of COVID-19 cases. Costco revised the Mask Policy so that anyone with a medical condition that prevented them from wearing a mask could be accommodated by:
a. wearing a face shield provided by Costco at no charge;
b. allowing a masked guest, such as a family member, to shop on behalf of the member with the member’s membership card;
c. making online purchases through Costco’s website;
d. making online purchases through Instacart, a third-party delivery service. Costco members could shop Costco Same-Day Delivery on Costco’s website to have items picked up and delivered by Instacart shoppers, with a minimum order of $35 before taxes. Shoppers could schedule the delivery of their order in a 1-hour delivery window, with delivery options available in as little as two hours;
e. curbside pick-up for prescriptions; and
f. occasionally, assistance from a manager to shop for some members personally
[9] Ms. Lazar has hypophosphatemic rickets, serious compound brain injuries, seizures and vertigo, PTSD, an anxiety/panic disorder, claustrophobia, and comprehension difficulties.
[10] Ms. Lazar is a Costco member. She shopped at Costco ten times between November 20, 2020 and October 15, 2021. The Mask Policy was in effect at all material times. It was during this period, on December 16, 2020, that Ms. Lazar visited Costco and the alleged confrontation and panic attack happened. She says at check-out, Costco staff told her that face coverings were mandatory. She says her support person tied a face mask onto her and she completed her purchase. She says she wore a mask on each subsequent visit to Costo while the Mask Policy was in effect.
III DECISION
[11] Costco applies to dismiss Ms. Lazar’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Costco to establish the basis for dismissal.
[12] Section 27(1)(c) is part of the Tribunal’s gate-keeping function. It allows the Tribunal to remove complaints which do not warrant the time and expense of a hearing.
[13] The Tribunal does not make findings of fact under s. 27(1)(c). Instead, the Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 .
[14] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The threshold to advance a complaint to a hearing is low. In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 .
[15] Many human rights complaints raise issues of credibility. This is not, by itself, a sufficient reason to deny an application to dismiss: Evans v. University of British Columbia , 2008 BCSC 1026 at para. 34 . However, if there are foundational or key issues of credibility, the complaint must go to a hearing: Francescutti v. Vancouver (City) , 2017 BCCA 242 at para 67.
[16] At a hearing, Ms. Lazar would have to establish that she has a disability, that Costco treated her adversely, and that the adverse treatment was connected to her physical or mental disability : Moore v. BC (Education) , 2012 SCC 61 at para. 33 . Ms. Lazar is not required to prove the complaint at this time but need only point to some evidence capable of taking the complaint “out of the realm of conjecture”: Berezoutskaia at para. 24 . The threshold to move the complaint forward to a hearing is low.
[17] Costco says Ms. Lazar’s evidence has no reasonable prospect of proving that she has a disability-related barrier to wearing a face covering.
[18] This Tribunal has stated “any claim of disability discrimination arising from a requirement to wear a mask must begin by establishing that the complainant has a disability that interferes with their ability to wear the mask”: The Customer v. The Store, 2021 BCHRT 39 at para. 14 .
[19] For the following reasons, I am not satisfied that Ms. Lazar has taken her complaint out of the realm of conjecture.
[20] Based on the materials before me, I am satisfied that Ms. Lazar is reasonably certain to establish that she has a disability. However, I am not satisfied that she is reasonably certain to establish that her disabilities interfere with her ability to wear a face covering.
[21] Ms. Lazar submits a doctor’s note, dated September 2, 2020, which reads, “For medical reasons, [Jae Lazar] does not tolerate face masks.” She also provides medical evidence from 2016 and 2019 that diagnose the disabilities she alleges in her complaint.
[22] Costco argues that the note does not take Ms. Lazar’s claims regarding a disability-related barrier to wearing a mask out of the realm of conjecture. I disagree. The doctor’s note could be some evidence of the alleged disability-related barrier to mask wearing. However, also before me is Ms. Lazar’s evidence that it is possible for her to tolerate wearing a face mask and that she did so on later trips to Costco. She describes the type of mask that she wore on subsequent visits to Costco as a see-though, breathable mesh mask. However, she does not differentiate how she was able to tolerate this mask in light of her submission that she cannot tolerate anything near her eyes, on or over her face, especially near her nose, mouth, and airway, or anything impeding her breath. Absent an explanation for why she was unable to wear a face covering as Costco required on December 16, 2020 and the mask she wore subsequently. I am satisfied there is no reasonable prospect her complaint will succeed.
[23] I note the credibility issues raised by the conflicting assertions surrounding Costco’s interaction with Ms. Lazar when staff asked her to wear a face covering, and whether it offered her reasonable accommodations at that time. As my decision turns on the specific issue of whether Ms. Lazar is reasonably certain to prove she had a disability-related barrier to wearing a mask at Costco that day, these are not foundational issues in this application that require a hearing to resolve.
IV CONCLUSION
[24] The application is allowed. The complaint is dismissed pursuant to s. 27(1)(c) of the Code .
Laila Said Alam
Tribunal Member