George v. Whole Foods Market, 2026 BCHRT 18
Date Issued: January 15, 2026
File: CS-005170
Indexed as: George v. Whole Foods Market, 2026 BCHRT 18
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:
Jermimah George
COMPLAINANT
AND:
Whole Foods Market
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section s. 27 (1)(g) and (c)
Tribunal Member: Edward Takayanagi
Counsel for the Complainant: Aleena Sharma
Counsel for the Respondent: Mario Sveinson and Kris Liset
I INTRODUCTION
[1] Jermimah George says Whole Foods Market discriminated against her in employment on the basis of race contrary to s. 13 of the Human Rights Code. She says she was bullied and harassed by other employees during her employment. She says she reported the incidents to Whole Foods which did not discipline the other employees. Instead, she says Whole Foods fired her on October 13, 2020, because of complaints about her made by other employees.
[2] Whole Foods denies discriminating and applies to dismiss the complaint under s. 27(1)(c) and (g) of the Code. Under s. 27(1)(c) it argues that the complaint has no reasonable prospect of success because it is reasonably certain to prove at a hearing that it responded appropriately to the complaints and they fired Ms. George for wholly non-discriminatory reasons. 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.
[3] In the reasons that follow, I first consider whether to dismiss part of the complaint under s. 27(1)(g). I consider whether some of Ms. George’s allegations are timely because the complaint alleges a continuing contravention, and if not whether it would be in the public interest to accept the untimely allegations. In my view, aside from the termination allegation, all of the allegations are untimely, and it would not be in the public interest to accept them.
[4] I next consider whether the termination allegation should be dismissed under s. 27(1)(c) because there is no reasonable prospect that Ms. George would be able to establish at a hearing that her race was a factor in the termination. Based on the materials before me, I am persuaded that Whole Food is reasonably certain to establish that its decision was based wholly on non-discriminatory reasons. As such, I find there is no reasonable prospect the complaint would succeed.
[5] 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.
II BACKGROUND
[6] The background facts are taken from the parties’ materials. I make no findings of fact about the merits of the complaint.
[7] Ms. George identifies as being of African-Caribbean descent. She began her employment with Whole Foods in 2017 as a grocery team member. Ms. George alleges that during her employment, other employees bullied and harassed her. Specifically, she cites the following three incidents:
a. In 2020, Employee A, who was off duty came into the store as a customer. Employee A subsequently filed a complaint against Ms. George on February 26, 2020, alleging Ms. George refused to provide him service and told him to “fuck off” and “get lost” when he was shopping. Whole Foods investigated the complaint, determined that Ms. George had refused to provide service to Employee A, and decided to issue a letter to Ms. George setting out expectations for professionalism in customer service.
b. On August 23, 2020, Employee B, made a comment comparing Ms. George to a monkey when she saw Ms. George climbing a ladder. Ms. George reported the incident to Whole Foods, which investigated the incident. As a result of the investigation Whole Foods disciplined Employee B and required her to receive coaching on professional communications boundaries.
c. On or around September 26, 2020, Employee C pronounced Ms. George’s name as “Jamaica”. Ms. George corrected the employee. Employee C filed a complaint against Ms. George saying that after the interaction, Ms. George was rude and unprofessional towards her. Whole Foods started an investigation into the incident.
[8] On September 28, 2020, while Whole Foods’ investigation of the September 26, 2020 incident was ongoing, Employee B filed a complaint against Ms. George. Employee B said Ms. George struck her when the two were in a store aisle, and Ms. George kicked in her in the ankle when Employee B was punching in at the time clock.
[9] On October 3, 2020, Employee C filed a separate complaint against Ms. George saying she struck her in the back with a box on that day.
[10] On October 5, 2020, Employee B told Whole Foods that she was struck by Ms. George again that morning.
[11] Whole Foods investigated the complaints about Ms. George, including by interviewing Ms. George and viewing the store’s CCTV footage. Ms. George corroborated Employee C’s complaint stating that she may have touched her while carrying a box. The CCTV footage showed Employee B and C were in close proximity to Ms. George during the alleged incidents.
[12] On October 13, 2020, Whole Foods fired Ms. George. The reason it gave for the firing was because Ms. George violated Whole Foods’ workplace violence and retaliation policy by intentionally striking employees and creating an intimidating or hostile environment.
III DECISION
A. Section 27(1)(g) – Timeliness of Complaint
[13] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Section 22 is a substantive provision meant to ensure that complainants pursue their human rights remedies promptly so that respondents can go ahead with their activities without the possibility of a dated complaint: Chartier v. School District No. 62, 2003 BCHRT 39 at para. 12.
[14] A complaint is filed in time if the last allegation of discrimination happened within one year, 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 Districtat para. 50.
[15] 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.
[16] 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. If the Tribunal finds that the complaint does not allege a timely continuing contravention and was filed outside the one-year time limit, it can still exercise its discretion to accept the late complaint: Code, s. 22(3).
[17] As Ms. George filed her complaint on September 29, 2021, allegations occurring before September 29, 2020, are out of time unless they are a part of a continuing contravention with a timely allegation of discrimination.
[18] Ms. George makes one allegation of discrimination occurring after September 29, 2020: that she was fired on October 13, 2020. The next question is whether her allegations pre-dating September 29, 2020, represents a series of repeated acts of the same character as this allegation such that they constitute a continuing contravention.
[19] Ms. George argues that all of her allegations arise from her race and differential treatment by Whole Foods and its employees. She says the other employees harassed her because of her race, and the reason she was terminated was because she complained about the harassment.
[20] In my view, Ms. George’s allegations of events occurring before September 29, 2020, are not of the same character as the termination allegation. This is because each of the alleged events arise from distinct factual events involving different employees and are separated from each other, and from the timely allegation of being fired, by weeks or months. In addition to involving different people and conduct, each has a different outcome. Ms. George’s first allegation is about being disciplined for being rude to a colleague who was shopping at Whole Foods, while the other allegations are about other employees making comments to Ms. George that she found offensive. I am not persuaded that an allegation about Ms. George being disciplined is similar in character to allegations about comments made by other employees or to the allegation that Ms. George was fired.
[21] Ms. George argues that all of her allegations are of the same character because each incident perpetuated a toxic work environment which culminated in her being fired. However, I am not persuaded that distinct allegations of discrimination are of a similar character because they occurred in the same workplace: Hilger v. Dr. Terry Abel Dentistry and another, 2023 BCHRT 32 at para. 39.
[22] I am unable to see that Ms. George’s allegations before September 29, 2020, are of the same character as her timely allegation that she was fired, taken individually or as a whole. Therefore, I find that allegations of incidents before September 29, 2020 are not part of a continuing contravention and untimely.
[23] I next consider whether to accept all or part of the complaint under s. 22(3). The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.
[24] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code. These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria), 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55. The inquiry is always fact and context specific.
[25] The late-filed allegations are between three days and seven months late. The Tribunal has said that a delay of several months is significant, but not insurmountable, if other factors militate in favour of acceptance: Shrigley v. City of Burnaby, 2018 BCHRT 73, at para. 12.
[26] Ms. George says the delay was because she experienced anxiety and depression due to the discrimination. Ms. George did not provide detailed information related to how her alleged disabilities precluded her from filing the complaint in time. The evidence before me contradicts Ms. George’s assertion that she was disabled from filing her complaint. Ms. George informed Whole Foods on October 9, 2020, that she was in the process of filing a human rights complaint. I appreciate that Ms. George says she was impacted by the alleged discrimination, but on the evidence before me I do not find this argument persuasive as there is no evidence before me that would indicate Ms. George could not have filed her complaint within the time period.
[27] Ms. George argues that there are serious and novel issues that weigh in favour of accepting her complaint in the public interest. She concedes that the Tribunal has adjudicated complaints of racial discrimination in employment but says this particular case involves the intersection of harassment on the basis of race and sex.
[28] Allegations of workplace discrimination based on race are unfortunately not unique or novel issues to come before the Tribunal. The Tribunal has routinely addressed complaints of discrimination in the workplace under s. 13 of the Code: Young Worker v. Heirloom and another, 2023 BCHRT 137; Hashimi v. International Crowd Management (No. 2), 2007 BCHRT 66. The information before me does not suggest that there is anything particularly novel, unique, or unusual about this complaint that has not been addressed in other complaints before the Tribunal or that will fill a gap in the Tribunal’s jurisprudence.
[29] Considering all of the factors and the circumstances of this case, I am not persuaded that it is in the public interest to accept the late-filed allegations.
[30] Having concluded it is not in the public interest to accept the late-filed allegations, it is not necessary to consider whether substantial prejudice will result to any person because of the delay.
B. Section 27(1)(c) – Is there no reasonable prospect the complaint could succeed?
[31] Finally, Whole Foods applies to dismiss the remainder of Ms. George’s complaint on the basis that it has no reasonable prospect of success: Code, s. 27(1)(c). The onus is on Whole Foods to establish the basis for dismissal.
[32] 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.
[33] 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.
[34] 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.
[35] To prove her complaint at a hearing, Ms. George will have to prove that she has a characteristic protected by the Code, she was adversely impacted in employment, and her protected characteristic was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33.
[36] For the purposes of this application, Whole Foods does not deny that Ms. George’s race is a protected characteristic, and that termination of employment is an adverse impact. Therefore, the first two elements of Moore are not at issue in this application.
[37] Whole Foods argues that there is no reasonable prospect Ms. George could succeed in establishing that her sex was a factor in her firing because it is reasonably certain to prove it had legitimate, non-discriminatory reasons to fire her. Specifically, it says Ms. George violated Whole Foods’ policies against violence in the workplace by intentionally making physical contact with other employees and creating a hostile work environment. In other words, it argues she has no reasonable prospect of proving her race was a factor in her termination.
[38] I agree. Based on the information and materials before me, I am persuaded that there is no reasonable prospect the Tribunal would find at a hearing that Ms. George’s race was a factor in the adverse impact. I am satisfied that Whole Foods is reasonably certain to establish that there was a wholly non-discriminatory reason for firing her.
[39] First, while the parties disagree on the underlying facts of whether Ms. George physically struck her coworkers, I find the conflict in the evidence can be resolved on the basis of the documentary materials before me.
[40] 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 1026at para. 34. It is only when there are foundational or key issues of credibility, that the complaint must go to a hearing: Francescutti v. Vancouver (City), 2017 BCCA 242 at para 67.
[41] In my view, the conflicts in the evidence are not foundational to the issues raised in the complaint and can be resolved on the basis of the materials. Whole Foods has provided contemporaneous documentary evidence including their workplace policies, notes from their investigation of complaints, and interview transcripts with Ms. George that contradict Ms. George’s assertion that she did not make physical contact with her coworkers. The materials support Whole Foods’ assertion that Ms. George’s conduct breached Whole Foods’ policies and was grounds for termination of employment.
[42] Second, the materials contradict Ms. George’s assertion that she was treated differently than other employees because of her race. Ms. George argues that Whole Foods’ decision to terminate her must have been based on stereotypes about racialized people being more aggressive or violent. She says that termination was a disproportionate response to the complaints about her.
[43] The materials support Whole Foods’ position that it enforced its policies fairly with respect to all employees. Whole Foods provided documentary materials showing it investigated complaints made by Ms. George and by other employees. The materials show that when Employee B was found to have made comments to Ms. George that constituted harassment, she was disciplined. The materials further show that a different employee, who was found to have violated the workplace violence policy was terminated. The evidence supports Whole Foods’ position that it applied its workplace policies to all of its employees and a breach of its policy resulted in discipline, up to and including termination.
[44] Finally, Ms. George’s complaint turns on an inference of discrimination. Ms. George argues that Whole Foods’ accepting allegations about her and terminating her employment must be based on stereotypes about racialized people. She argues that the Tribunal should draw an inference that her race was factor in her termination. I do not agree.
[45] Human rights jurisprudence has consistently recognized that a decision that the Code has been contravened may be based on circumstantial evidence, and on the inferences that are reasonable to draw from that evidence: Hill v. Best Western and another, 2016 BCHRT 92 at para. 28. I acknowledge that racialized people experience micro-discrimination and “everyday racism”, which is often subtle despite it being plain to the person experiencing it. Individual acts that may be ambiguous or explained away, when viewed as part of the larger picture and with an understanding of how racial discrimination takes place, may lead to an inference that racial discrimination was a factor in the treatment an individual received: Francis v. BC Ministry of Justice (No. 3), 2019 BCHRT 136 at para. 288, quoting Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination.
[46] However, the subtlety of prejudice and the availability of inference does not create a presumption of discrimination: Richardson v. Great Canadian Casinos and another, 2019 BCHRT 265at para. 144. A complainant must point to some evidence from which it can be inferred that their race played some role in the adverse treatment they experienced: Mezghrani v. Canada Youth Orange Network (CYONI) (No 2), 2006 BCHRT 60at para. 28. Ms. George has not done so in this complaint.
[47] Ms. George’s assertion that Whole Foods must have relied upon racial stereotypes to determine that she breached its policies and terminate her employment is not, on its own, sufficient to take the connection between her race and the adverse impact out of the realm of conjecture. In so far as Ms. George says she was treated differently because of her race, she has provided no explanation or details that take this assertion out of the realm of conjecture.
[48] Assessing the whole of the evidence, I am not persuaded that discrimination could be inferred. Ms. George has not asserted facts or provided any basis upon which the Tribunal could reasonably infer that her protected characteristic was a factor in Whole Foods’ decision to terminate her employment. Further, Whole Foods has advanced a non-discriminatory explanation for their conduct supported in the contemporaneous documentary evidence. I am persuaded that Ms. George’s complaint has no reasonable prospect of success. As such I dismiss the complaint under s. 27(1)(c).
IV CONCLUSION
[49] I allow the application to dismiss under s. 27(1)(g) and (c) of the Code. The Complaint is dismissed in its entirety.
Edward Takayanagi
Tribunal Member