Kowalchuk v. Daiso Canada Co. Ltd. and another, 2026 BCHRT 33
Date Issued: January 27, 2026
File: CS-008843
Indexed as: Kowalchuk v. Daiso Canada Co. Ltd. and another, 2026 BCHRT 33
IN THE MATTER OF THE HUMAN RIGHTS CODE
R.S.B.C. 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Aja (Basil) Kowalchuk
COMPLAINANT
AND:
Daiso Canada Co. Ltd. and Aya Sakamoto
RESPONDENTS
REASONS FOR DECISION
TIMELINESS OF COMPLAINT
Section 22
Tribunal Member: Steven Adamson
On their own behalf: Aja (Basil) Kowalchuk
Counsel for the Respondent: Deborah Cushing
No submissions: Aya Sakamoto
I Introduction
[1] On January 25, 2023, Aja (Basil) Kowalchuk filed a complaint of discrimination in employment based on sex, gender identity or expression, and sexual orientation contrary to s. 13 of the Human Rights Code [Code], against Daiso Canada Co. Ltd. [Daiso] and Aya Sakamoto [the Manager].
[2] The issue before me with respect to timeliness is whether to accept the complaint against Daiso and the Manager. I make no findings regarding the merits of this complaint.
[3] Daiso reports that the Manager is no longer employed by them and has returned to live in Japan. As such, Daiso did not provide any submissions on behalf of the Manager. Given the outcome of this application, I did not find it necessary to take any steps to provide the Manager an opportunity to participate.
[4] For the reasons that follow, I find that it is not in the public interest to accept the late filed complaint for filing.
II Background to complaint
[5] Mx. Kowalchuk is transgender and non-binary, and queer. They use they/them and he/him pronouns.
[6] In September 2021, Mx. Kowalchuk started working as a part-time sales associate in a Daiso retail location [the Store]. They worked a total of 34 shifts at the Store before resigning on December 7, 2021. Mx. Kowalchuk alleges being misgendered by co-workers nearly every shift during their time at Daiso. They allege that the continuing misgendering negatively impacted their mental health.
[7] In November 2021, Mx. Kowalchuk alleges that they reported the transphobia they were experiencing to management staff. Mx. Kowalchuk says that they detailed allegations concerning interactions with one co-worker, Ms. N, who would not change their misgendering behaviour despite numerous discussions with them about why making the change was necessary. Mx. Kowalchuk alleges that individual then proceeded to avoid interacting with them.
[8] In November 2021, Mx. Kowalchuk alleges the Manager inappropriately responded to their complaints about Ms. N by treating the issue as an interpersonal problem. They allege that the Manager dismissed their complaints after concluding that nobody was harassing them and the workplace was safe. Mx. Kowalchuk alleges the Manager failed to remain objective by inappropriately taking the side of Ms. N. They further claim the Manager minimized their feelings. Mx. Kowalchuk alleges that the Manager’s lack of support precipitated a mental health crisis, which included suicidal ideation.
[9] On November 17, 2021, Mx. Kowalchuk alleges sending Daiso emails with the hope that someone higher up in HR would provide support that was not being given to them by the Manager.
[10] On November 22, 2021, Mx. Kowalchuk alleges Daiso contacted them to inform that a third-party investigator had been hired to address their official complaint for bullying and harassment.
[11] On November 29, 2021, Mx. Kowalchuk alleges Daiso offered them shifts at times Ms. N was not working. Mx. Kowalchuk reports declining the offer because of their bigger concern about feeling unsafe to return without the Manager’s misconduct being addressed.
[12] On December 6, 2021, Mx. Kowalchuk alleges that they decided to discontinue participating in the third-party investigation and resign from their position after speaking to Daiso management and the investigator numerous times in the previous days. At the time of their resignation, they allege being totally exhausted after being in mental crisis for weeks without having anyone to advocate for them. Mx. Kowalchuk alleges that they decided it was necessary to discontinue participating in the investigation and quit their job in order to ensure their safety.
III ANALYSIS AND DECISION
[13] The time limit set out in s. 22 of the Code is a substantive provision which is intended to ensure that complainants pursue their human rights remedies diligently: Chartier v. School District No. 62, 2003 BCHRT 39.
A. Time Limit
[14] The complaint was filed on January 25, 2023. To comply with the one-year time limit under s. 22(1) of the Code, the alleged act of discrimination had to occur on or after January 25, 2022.
[15] The most recent allegations of discrimination in this case occurred in December 2021. As such, the complaint is late-filed and I proceed to an analysis of whether the Tribunal should exercise its discretion to accept the complaint outside the one-year time limit because it is in the public interest to do so, and no substantial prejudice will result to any person because of the delay: Code s. 22(3). I begin with the public interest determination.
B. Public Interest
[16] Whether it is in the public interest to accept the late-filed complaint is a multi-faceted analysis. The enquiry is fact and context specific and assessed in accordance with the purposes of the Code: Hoang v. Warnaco and Johns, 2007 BCHRT 24 at para. 26. The Tribunal considers a non-exhaustive list of factors, including the length of the delay, the reasons for the delay, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 [Mzite] at para. 53. These are important factors, but they are not necessarily determinative: Goddard v. Dixon, 2012 BCSC 161 at para. 152; Mzite at para. 55.
[17] I have first considered the length of delay in filing. The allegations of discrimination in this case occurred during the period when Mx. Kowalchuk worked for Daiso between September 1 and December 6, 2021. The complaint was, therefore, less than two months late filed, which is a significant delay, but may not be inordinate or beyond consideration, if other factors militate in favour of acceptance: Young v. Home Depot and others, 2018 BCHRT 68 at para. 42.
[18] Mx. Kowalchuk’s reasons for the delay focus on their medical issues preventing them for filing in time. They report having a psychological injury recognized by WorkSafeBC resulting from co-worker misgendering behaviour that was not addressed by management while working for Daiso. Mx. Kowalchuk argues that both the trauma from work incidents and a pre-existing ADHD condition prevented them from filing in time. They specifically allege that the trauma at work worsened their ADHD and depression, as well as triggering severe suicidal ideation.
[19] Daiso argues that Mx. Kowalchuk has not provided sufficient evidence of disability from filing a timely complaint. Without providing evidence that Mx. Kowalchuk has a condition that would delay filing, a mere statement that they have health issues is not enough to attract the public interest in Daiso’s opinion. Added to this, Daiso argues Mx. Kowalchuk’s conduct in initiating and participating in a WorkSafeBC claim that was accepted in April 2022, indicates that they had the capacity to file a timely complaint with the Tribunal. Daiso further submits that Mx. Kowalchuk posted social media comments days after resigning from their position which set out their discrimination allegations against the former. Daiso submits that Mx. Kowalchuk’s posts also indicate their awareness of the Tribunal’s process.
[20] Mx. Kowalchuk’s reply to Daiso’s arguments concerning their capacity to file in time with the Tribunal, argues that the WorkSafeBC process was much easier to initiate and participate in as compared to the Tribunal’s process. Mx. Kowalchuk notes that the WorkSafeBC process was actually initiated by their nurse practitioner who filed a form with the work injury insurer in mid November 2021. That process also began prior to Mx. Kowalchuk’s health problems worsening. Further, Mx. Kowalchuk notes that they had support from their nurse practitioner and therapist in navigating the workers’ compensation process. Mx. Kowalchuk further argues that their knowledge of the Tribunal’s process, as demonstrated in social media posts, is distinguishable from having the capacity to start a complaint at the Tribunal.
[21] Where delay is due to a disabling condition, the Tribunal has observed that it may be in the public interest to accept a late-filed complaint: MacAlpine v. Office of the Representative for Children and Youth, 2011 BCHRT 29 at para. 42. Disabling conditions can include physical and mental ailments resulting in great trouble coping with even the basic daily tasks of life: Naziel-Wilson v. Providence Health Care and another, 2014 BCHRT 170 at para. 21.
[22] I accept Mx. Kowalchuk’s evidence that they suffered mental health disability at the time they left the job at Daiso and during the timeframe for filing a complaint with the Tribunal. I have no reason to reject Mx. Kowalchuk’s evidence that they experienced a mental health crisis at the end of 2021, which rendered them unable to return to work or participate in a workplace investigation. The more difficult question here, however, is the level of disability experienced by Mx. Kowalchuk as it relates to their ability to file a complaint with the Tribunal. After reviewing the evidence on file and the parties’ submissions, I am not convinced that Mx. Kowalchuk was precluded from filing at the Tribunal based on their various disabilities. While appreciating the Mx. Kowalchuk may not have had the assistance of their medical treatment providers in filling out forms to initiate this complaint, the amount of effort required to start a human rights complaint is relatively minor. To start a complaint with the Tribunal, a complainant need only set out key dates, include the names of those involved and provide a brief description of the harms alleged and how they relate to their protected personal characteristics. From my review of Mx. Kowalchuk’s social media posts made shortly after they resigned, they come quite close to demonstrating capability to initiate a complaint. Without more evidence of disability from Mx. Kowalchuk, in my view their conduct in posting details about the allegations indicates to me that they had capacity to file at the Tribunal such that the public interest is not engaged. The social media posts contain the necessary elements of an arguable discrimination allegation against the Respondents apart from including specific dates. At the early stage of filing a complaint, it would not be necessary to provide documentary evidence or engage in the type of advocacy necessary at later stages in the Tribunal’s process. With this in mind, I am not convinced that Mx. Kowalchuk’s disability precluded them for filing in time at the Tribunal.
[23] In determining whether acceptance of a late-filed complaint is in the public interest, the Tribunal also considers whether there is anything particularly unique, novel, or unusual about the complaint that has not been addressed in other complaints: Hau v. SFU Student Services and others, 2014 BHCRT 10 at para. 22; Bains v. Advanced Air Supply and others, 2013 BCHRT 74 at para. 22; Mathieu v. Victoria Shipyards and others, 2010 BCHRT 244 at para. 60. Where a complaint raises a novel issue on behalf of a vulnerable group, which advances the purposes of the Code, this factor may weigh in favour of finding a public interest in accepting the complaint: Mzite at paras. 65-66. The Tribunal has considered gaps in its jurisprudence, on the one hand, and the existence of good precedents, on the other hand, in determining whether to permit a complaint to proceed: Mzite at para. 67.
[24] Mx. Kowalchuk states that they do not want others to experience the same discrimination they did while working at Daiso. They also provided evidence about seeking to change the culture at Daiso through gender diversity education.
[25] Daiso argues the complaint is relatively common as it involves discrimination in the workplace allegations. It further argues that the issue of misgendering and the use of pronouns has been considered in numerous cases at the Tribunal. As such, the complaint is not unique, novel or unusual for the purposes of attracting the public interest in allowing to proceed late filed.
[26] In reply, Mx. Kowalchuk argues that this case involves an allegation of systemic racism where the only two non-binary employees at the Store quit because they felt unsafe working under the Manager. They submit that discrimination in the workplace on the basis of non-binary identity is a systemic issue in the province which needs to be addressed. While acknowledging the existence of another case with a published decision involving a non-binary complainant in the workplace, Mx. Kowalchuk argues that their case is unique as it involves the more subtle issue of the employer’s obligation to accommodate non-binary and transgender staff in the workplace.
[27] I agree with the Daiso that the Tribunal frequently addresses allegations of discrimination in employment, including allegations of differential treatment and harassment. However, I agree with Mx. Kowalchuk that the Tribunal’s published decisions concerning non-binary and transgender persons and the use of pronouns in the workplace may not be fully canvassed on the specific question of what an employer needs to do to accommodate a worker with these characteristics. I also appreciate that there are a fair number of recent decisions concerning the use of pronouns, which mostly occur in a service setting. While agreeing that zeroing in on the specific issue at hand in this case, has the potential to raise a somewhat unique issue, in the end I am not satisfied that this case is sufficiently unique to attract the public interest where there is a lack of other factors in combination with public interest concerning the nature of the case to attract the level of public interest necessary to proceed late filed. In exercising my discretion, I am not convinced overall that the complaint is one that should proceed late.
[28] For these reasons, I do not find that it is in the public interest to accept the late-filed complaint, and I need not address the issue of whether substantial prejudice would result.
IV Conclusion
[29] For these reasons, the complaint is not accepted for filing.
Steven Adamson
Tribunal Member