Karageorgos v. Giardino Restaurant Ltd, 2024 BCHRT 190
Date Issued: June 21, 2024
File: CS-002096
Indexed as: Karageorgos v. Giardino Restaurant Ltd., 2024 BCHRT 190
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:
Erenee Karageorgos
COMPLAINANT
AND:
Giardino Restaurant Ltd.
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c), and (g)
Tribunal Member: Jonathan Chapnick
On her own behalf: Erenee Karageorgos
Counsel for Respondent: Lana Tsang
I INTRODUCTION
[1] I caution the reader that this decision discusses allegations of gendered harassment, abuse, and misconduct in the workplace.
[2] Erenee Karageorgos worked for Giardino Restaurant Ltd. [Giardino] as a server at its restaurant [Restaurant] for roughly three years. On September 16, 2020, she filed a complaint with the Human Rights Tribunal, alleging sex-related discrimination at the Restaurant in contravention of s. 13 of the Human Rights Code. In her submissions to the Tribunal, she describes a “history and pattern of abuse towards [her] as a woman” during her employment at the Restaurant. She alleges various acts or omissions of discrimination in her employment with Giardino, including harassment, abuse, and misconduct by male co-workers and management (e.g., comments about her body, sexualized behaviour and touching, verbal and physical abuse, sharing inappropriate images), harassment and abuse by male customers (e.g., comments about her body, sexual touching), and a failure, on Giardino’s part, to prevent or address the alleged discrimination.
[3] Giardino denies Ms. Karageorgos’ allegations and applies to dismiss her complaint without a hearing. In support of its dismissal application, Giardino filed sworn statements and documentary evidence with the Tribunal. It says these materials demonstrate that the acts or omissions alleged by Ms. Karageorgos did not occur and/or were not related to her sex. Giardino also says that portions of the complaint were filed late. It argues that those portions should be dismissed; the Tribunal should not exercise its discretion to accept them: Code, ss. 27(1)(g) and 22. Timeliness issues aside, Giardino argues that the entire complaint should be dismissed because it does not allege a contravention of the Code and has no reasonable prospect of success: Code, ss. 27(1)(b) and (c).
[4] For the reasons that follow, I decline to dismiss Ms. Karageorgos’ complaint. I find that it alleges a timely continuing contravention of the Codedating back to July 2017, and I am not persuaded that it has no reasonable prospect of success. To make my decision, I considered all the information filed by the parties. In my reasons, I only refer to what is necessary to explain what I decided. I make no findings of fact and reach no conclusions regarding the merits of Ms. Karageorgos’ complaint.
II BACKGROUND
[5] Ms. Karageorgos filed an amendment to her complaint in September 2021 and Giardino filed an amended response in October 2021. Prior to filing its dismissal application, Giardino requested a page limit extension due to the breadth, complexity and timeline of the complaint, and because Ms. Karageorgos’ amendment added particulars that raised additional allegations. The Tribunal granted a 10-page extension.
[6] The following background is drawn from the evidence before me, including: Ms. Karageorgos’ evidence, as set out in her original complaint, the amendment to her complaint, and her response to the dismissal application; 18 unsworn statements from colleagues, Giardino customers, and former Giardino employees, submitted by Ms. Karageorgos; eight sworn statements from Giardino employees and representatives, submitted by Giardino with its application to dismiss; and contemporaneous documentary evidence.
A. Events preceding the complaint
[7] Ms. Karageorgos says her situation at the Restaurant came to a head following an incident with a senior male employee [Senior Employee] on August 13, 2020, which I describe below. After the incident, she emailed Giardino’s owner [Owner], and subsequently met with him on August 27. As I outline below, Ms. Karageorgos says the Owner terminated her employment at that meeting. He denies terminating her, however, saying she continued her employment after they met. The Owner says that, on September 19, 2020, the Restaurant temporarily closed due to the COVID-19 pandemic, at which time each Giardino employee was issued a Record of Employment [ROE]. He says that when Giardino was preparing Ms. Karageorgos’ ROE, he learned she had not worked at or been in contact with the Restaurant since August 27, and had accepted a position at another establishment. He says that, based on this information, he concluded Ms. Karageorgos had abandoned or resigned her employment with Giardino, and so he directed Giardino’s accountant to code her ROE to reflect that she had quit.
B. Ms. Karageorgos’ allegations
[8] Ms. Karageorgos says Giardino is “an establishment fueled by alcohol and abuse, both physical, verbal, and sexual in nature” (Dismissal Response at para. 6). She alleges that Giardino discriminated against her based on sex. “As a woman,” she says, “I [was] treated with less regard, indignity and [was] harassed by male counterparts, management and the owner in the workplace” (Complaint at p. 2). She alleges several discrete instances of discrimination, which I set out below. In addition, she makes broad allegations of continuing discrimination related to ongoing incidents of harassment, abuse, and misconduct by men, which she felt unsafe to report to the Tribunal because she feared retaliation (Complaint at p. 4). She says her employment with Giardino – which she alleges was terminated when she raised an issue regarding harassment in the workplace by the Senior Employee – has resulted in emotional trauma, “emotional and physical health deterioration,” and harms to her dignity (Complaint at p. 2; Amendment at p. 9).
[9] Ms. Karageorgos’ broad allegations of ongoing discrimination include the following:
a. Senior male staff were “in charge” at the Restaurant, and they engaged in “verbal outbursts” towards female employees. “Accepting this abuse was a requirement of the job, and speaking up to defend yourself was a risk” (Amendment at p. 2).
b. She was regularly subjected to offensive behaviour by male staff, which she always reported to her supervisor, the restaurant manager [Restaurant Manager]. He never did anything to stop the behaviour. He was repeatedly dismissive of her claims of harassment, allowing and encouraging a poisoned work environment by doing nothing (Amendment at pp. 5 and 7; Complaint at p. 3).
c. The Senior Employee repeatedly intimidated, harassed, and demeaned her in front of customers and employees because she is a woman (Complaint at p. 3).
d. She was subjected to sexual harassment by male customers. The Restaurant Manager did not protect her from this behaviour (Amendment at p. 6).
[10] Ms. Karageorgos’ allegations of discrete instances of discrimination include the following:
a. Multiple times a week, the bar manager at the Restaurant [Bar Manager] made comments about her breasts, including asking if she wanted him to put his penis in between them. Nothing was ever done about his behaviour. When she complained to the Restaurant Manager, he acknowledged that the Bar Manager was “a dirty old … man” and told her to “deal with it.” (Amendment at p. 2).
b. In the first month of her employment with Giardino, she was working in the lounge with a senior bartender [Bartender]. When she was serving in the bar with him, he would walk behind her and rub his penis against her back side. When she asked him to stop, he joked that it was tight behind the bar. When she mentioned it to the Restaurant Manager, he laughed it off and told her to “deal with it.” The Bartender never stopped this behaviour; he just laughed it off and did it less frequently. He was never penalized for his conduct (Amendment at p. 3).
c. The Restaurant Manager would poke her sharply in the back and tell her to move. He did this to all the female staff. The “sharp pokes” were painful, and got worse in the later part of 2017. They happened every other shift. Anytime she told him to stop, he overloaded her section and tried to make it impossible for her to keep up with her work (Amendment at pp. 2 and 4).
d. At the end of 2017, an employee conduct policy and harassment policy was posted in the servers’ station [collectively, Harassment Policy ]. The Harassment Policy was mocked by senior male staff, including the Bar Manager and the executive chef. They laughed and said “no harassment, homo!” while grabbing each other’s penises (Amendment at p. 4).
e. In 2018, the Senior Employee circulated a birthday card for a male employee. The card had “lewd, sexual cutouts” and “penises and s&m [sic] type pornography” all over it. These types of cards were circulated every few months for the birthdays of male employees. A card for the Restaurant Manager’s birthday in July was particularly disturbing (Amendment at p. 4).
f. At Christmas time in 2018, she was talking to another female server, when a senior male server [Server] interrupted their conversation and asked her, “What are you complaining about now Erenee?” The employee was intoxicated and started chanting, “Fuck you! Fuck off! Fuck you! Fuck off!” louder and louder in front of surrounding customers. She was shaking and immediately went to the Restaurant Manager, who initially said, “just deal with it,” but then came over because she insisted. After getting the Server’s attention, the Restaurant Manager was laughing and saying, “have some decorum,” and then walked away. She was left shaken and disturbed, and had to continue working as if nothing had happened. The Server was never penalized for his behaviour (Amendment at p. 5).
g. At Christmas time in 2018, a customer known for engaging in sexually aggressive behaviour towards female staff grabbed her breast. When she told the Restaurant Manager that she would no longer serve the customer, he told her, “suck it up,” and, “we all have to take turns serving him” (Amendment at p. 6).
h. On August 12, 2019, the Owner “had a temper tantrum” at her when she was clearing a plate of pasta [Pasta Incident]. He screamed in her face, took a threatening step towards her, and clapped his hands together in front of her face, almost hitting her (Complaint at p. 3; Amendment at pp. 5-6).
i. In September 2019, she was bringing a tray of drinks for the Senior Employee’s table, and he announced, “Here comes the trash with your drinks!” in front of surrounding customers [Trash Incident]. She told the Restaurant Manager, who dismissed the situation and took no action (Complaint at p. 3; Amendment at p. 7).
j. On January 10, 2020, the Server verbally abused her when she approached him at the service bar. He shouted, “Shut your fucking mouth. Shut your fuuuuucking mouth. Fuck you. Fuck off” [as written]. She reported this to the Restaurant Manager and he intervened, but nothing was ever done about the Server’s behaviour (Dismissal Response at paras. 8-9).
k. In the summer of 2020, a male customer used suggestive language about her body, laying a dinner knife against her breast near a button and asking what would happen if he popped it open. She reported this to the Restaurant Manager but nothing was done. She was told, “They are almost done with their meal. Deal with it. Don’t make a scene” (Amendment at p. 6).
l. The Restaurant Manager texted her an image of a “glory hole” (Dismissal Response at para. 10). The text message was disclosed to the Tribunal as an attachment to the Restaurant Manager’s sworn statement, which was provided by Giardino in support of its dismissal application. The text message appears to have been sent to Ms. Karageorgos on August 13, 2020. The image shows a seemingly topless woman looking through a roughly 3-inch hole in a white wall, under a “Canadian Heritage Moments” banner. I note that Merriam-Webster defines “glory hole” as “a hole made through a wall or partition to enable people to perform sex acts anonymously”: “Glory hole.” Merriam-Webster.com Dictionary, Merriam Webster.
m. On August 13, 2020, as she was talking to a regular customer at a table, the Senior Employee snapped his fingers at her, hissed, glared, and motioned for her to follow him. When she asked him about this, “he exploded in a loud, aggressive, and abusive rant,” using profanity and telling her to stay away from his tables. He leaned in towards her and threatened her to “stay the hell away,” which left her shaking, with her heart racing [Stay Away Incident]. The Restaurant Manager did nothing about this, telling her to “deal with it.” (Complaint at p. 3-4; Amendment at p. 7).
n. On August 14, 2020, she mentioned to the Bartender that she was considering filing a complaint. The Bartender immediately told the Restaurant Manager, who came up to her “spitting with anger,” and took her to meet with Giardino’s vice president [VP]. She had never met the VP before. The Restaurant Manager introduced him as being the company’s controller. She described the Stay Away Incident to the VP, who told her, “That’s how [the Senior Employee] is … why can’t you stay out of his way?” (Amendment at p. 8).
o. After the Stay Away Incident, the Restaurant Manager reduced her scheduled shifts by 40% for the next two weeks (Complaint at p. 3; Amendment at p. 7; Dismissal Response at para. 22).
p. On August 17, 2020, she emailed the Owner regarding the Stay Away Incident and the Senior Employee’s prior conduct, including the Trash Incident [Email]. In the email, she said she was aware she worked “in an all-boys club,” but this behaviour had to stop as it was affecting her health and preventing her from doing her job. The Owner printed the Email – which contained details of the health impacts on her of the behaviour – and posted it in the Restaurant “for all customers and employees to see” (Complaint at p. 2; Amendment at p. 8).
q. On August 27, 2020, after returning to work following a period of mandatory isolation due to a COVID-19 exposure at the Restaurant, she attended a meeting with the Owner at his office down the street, where he terminated her employment [Meeting]. When she was leaving the Meeting, he followed her out of his office, calling after her on the street, saying “you aren’t working here anymore.” She was wrongfully dismissed for speaking up about ongoing harassment of women, particularly herself, at the Restaurant (Complaint at pp. 2-3; Amendment at pp. 8-9; Dismissal Response at paras. 3 and 31).
[11] I note that this is not an exhaustive list of Ms. Karageorgos’ allegations. I also acknowledge that some of the allegations overlap and some have features of both a claim of ongoing discrimination and an alleged discrete instance of discrimination.
C. The Recording
[12] Ms. Karageorgos recorded the Meeting with the Owner, and the parties provided the Tribunal with the audio/video recording [Recording]. In addition, Giardino filed a transcript of the Recording [Transcript], as did Ms. Karageorgos. While I make no findings of fact regarding what happened at the Meeting, I observe that the Recording appears to show the Owner wanting to have a conversation with Ms. Karageorgos, to which she responds that “anything regarding [the Stay Away Incident] will … need to be communicated via email” (Transcript at p. 2). The Owner then says:
So, why don’t I send you an email now that you cannot work tonight, because I am resenting this. You come here and you tell me what to do in my company. … And you come, “via email.” I can send you an email, but I’m the owner of the restaurant … (Transcript at pp. 2-3).
[13] They continue back and forth, and then Ms. Karageorgos asks, “So, you’re telling me I cannot work tonight?” to which the Owner responds, “I have a restaurant – this is my place. If I decide – you know, I can’t even talk to you” (Transcript at p. 3). After further back and forth, she ends the conversation (Transcript at p. 3). The Recording then shows her leaving the Owner’s office. As she walks on the sidewalk toward the Restaurant, the Owner’s voice can be heard on the Recording, but it is barely audible and his words are not discernible. The Recording then shows Ms. Karageorgos re-entering the Restaurant, and the Owner can briefly be seen walking behind on the street. Roughly 40 seconds later, the Recording shows Ms. Karageorgos leaving the Restaurant, passing the Owner on the way to the exit.
D. The stated impacts on Ms. Karageorgos
[14] Ms. Karageorgos describes various impacts of the alleged discrimination, some of which were touched on above. In addition to the alleged reduction of her shifts and termination of her employment, the stated impacts include the following:
a. She experienced emotional trauma and harms to her health and dignity. All of the conduct had a serious detrimental effect on her physical and mental health (Complaint at pp. 2 and 4).
b. She was intimidated, harassed, and demeaned in front of customers and co-workers (Complaint at p. 3).
c. The thought of the Bartender’s behaviour re-occurring gave her anxiety and related physical symptoms (Amendment at p. 4).
d. The Restaurant Manager’s sharp pokes to her back were so hard that she had physical bruises (Amendment at p. 4).
e. She had sleepless nights following the 2018 incident involving the Server, and her heart would race more frequently (Amendment at p. 5).
f. The Trash Incident left her “physically, mentally and emotionally shaken and damaged” (Amendment at p. 7).
g. The Stay Away Incident left her shaking, with her heart racing. Following the incident, she consulted with her doctors, went for medical testing, and was referred to a cardiac specialist regarding her racing heart (Complaint at p. 4; Amendment at p. 7).
[15] In addition, Ms. Karageorgos describes various specific health symptoms and conditions (which I need not set out here), which she says resulted from the abuse she experienced at the Restaurant. She also describes related health services and treatments she has accessed (Amendment at p. 9), and provided the Tribunal with what appear to be records of medical consultations with physicians. Some of the records are undated, others indicate dates in August and December 2020.
E. Ms. Karageorgos’ corroborative evidence
[16] In addition to her direct evidence regarding what allegedly happened at the Restaurant, Ms. Karageorgos submitted unsworn statements and other contemporaneous documentary evidence related to her complaint, including the following:
a. In a statement, dated December 1, 2021, a pair of Giardino customers describe the Restaurant as a misogynistic environment where they observed male staff shouting at, berating, and demeaning female employees, including Ms. Karageorgos.
b. In a statement, dated December 1, 2021, a Giardino customer describes the restaurant as a negative and misogynistic environment.
c. In a statement, dated March 9, 2022, three Giardino customers say they witnessed an incident at the Restaurant on July 22, 2020, where men at a neighbouring table made inappropriate comments about Ms. Karageorgos and joked about looking down her shirt.
d. In a statement, dated March 12, 2021, a former Giardino employee describes the Restaurant as an unhealthy, volatile, and toxic work environment, where the male staff and management banded together whenever anyone spoke up about inappropriate or dangerous behaviour.
e. In a statement, dated December 1, 2021, a pair of Giardino customers describe the Restaurant as a negative and misogynistic environment where they witnessed male staff shout at, berate, and demean Ms. Karageorgos. They provide the examples of the Restaurant Manager poking Ms. Karageorgos in the back and shouting at her to move, and the Senior Employee having repeated outbursts and shouting profanity.
f. In a statement, dated November 2, 2020, a former Giardino employee describes the Restaurant as a toxic and misogynistic environment where he witnessed and experienced bullying, sexual comments, and harassment, including witnessing Ms. Karageorgos being harassed and bullied by the Restaurant Manger, the Owner, and male staff.
g. In a statement, dated October 8, 2020, a former Giardino employee describes being aggressively poked, screamed at, and belittled at the Restaurant, and says she witnessed Ms. Karageorgos being subjected to verbal abuse, sexist comments, harassment, and bullying by co-workers, customers, and management.
h. In a statement, dated March 22, 2022, a Giardino customer describes a “condescending culture of unchecked sexual harassment and sexism” at the Restaurant. The customer also describes witnessing the Trash Incident, and corroborates Ms. Karageorgos’ version of events.
i. In a statement, dated March 15, 2021, a former Giardino employee describes the Restaurant as a toxic environment where she witnessed Ms. Karageorgos and other women being subjected to sexist comments, harassment, and bullying by male co-workers and management. She says she also experienced this same treatment and systemic bullying and harassment. Among other things, she corroborates that: the Restaurant Manager reduced Ms. Karageorgos’ shifts on the August 17-30, 2020 schedule; senior male staff and management made a mockery of the Harassment Policy, calling each other, “homo,” while grabbing each other’s penises; and the Email was posted for customers and employees to see.
j. In a statement, dated October 12, 2020, a former Giardino employee describes witnessing “first-hand the human rights violations in Giardino Restaurant’s work environment.” He says he “witnessed Erenee and other women, and men (who are not part of the misogynistic environment they have created) for that matter, in the workplace being subjected to sexist comments, harassment, and bullying from male colleagues and Management.” The employee describes witnessing the Pasta Incident and corroborates Ms. Karageorgos’ version of events. He describes the Owner, Restaurant Manager, and Senior Employee as “always difficult to deal with,” saying they “used bullying and harassment on a daily basis in the workplace.” He says he witnessed them harassing Ms. Karageorgos and other female staff on multiple occasions, including witnessing “shouting, hissing, and sharp pokes to their back, to name a few.”
[17] Most of the above statements are unsigned, but each statement includes the contact information of the writer.
F. Giardino’s evidence
[18] In support of its dismissal application, Giardino submitted sworn statements from the Owner, the Senior Employee, the Restaurant Manager, the VP, and other Giardino employees, as well as contemporaneous documentary evidence. The following is a summary of portions of that evidence.
1. The Owner’s evidence
[19] The Owner says that he and the VP are the reporting contacts under the Harassment Policy. He says Ms. Karageorgos reviewed and was trained on the policy. He says Ms. Karageorgos never reported any issues regarding workplace safety or incidents of bullying or harassment under the Harassment Policy to him or any other member of Giardino management. He says there have sometimes been interpersonal conflicts unrelated to sex and not involving violence, and these matters have been resolved by the Restaurant Manager. The Owner denies any awareness of harassment or discrimination at the Restaurant. He says that, had incidents of sexual harassment or misconduct been reported to him, Giardino would have investigated and dealt with the incidents under the Harassment Policy. He denies Ms. Karageorgos’ description of the Pasta Incident.
[20] The Owner denies posting the Email. He says that, after receiving the Email, he wanted to meet with Ms. Karageorgos to hear her side of the story. He denies telling her that her employment was terminated on August 27, 2020. He says her employment at Giardino continued and she was scheduled for shifts on August 28 and 29.
[21] The Owner says that, after Giardino issued Ms. Karageorgos’ ROE on September 21, she emailed the company’s accountant the next day, asserting that the Owner had dismissed her on August 27. He says he replied to her email on October 13, advising that he viewed her actions as showing she had quit.
2. The Senior Employee’s evidence
[22] The Senior Employee denies all the allegations against him. He says Ms. Karageorgos has a strong, combative, and aggressive personality, and they sometimes butted heads. However, he says he never acted in an inappropriate, sexist, or harassing manner towards Ms. Karageorgos or any other female staff. He says the allegations in the complaint are not accurate. He says the Restaurant is not a sexualized environment or an “all boys club.” He says he has never witnessed female co-workers being treated differently because of their sex, and has never witnessed or heard about any of the types of behaviour described in the complaint. He says there are sometimes interpersonal conflicts unrelated to sex, and he has witnessed yelling at both female and male staff. He says he has also witnessed Ms. Karageorgos yelling and swearing, and she has yelled and sworn at him on several occasions.
[23] The Senior Employee admits to occasionally making birthday cards containing adult humour for certain colleagues, but denies making anything offensive, obscene, or pornographic. He says the birthday cards were not meant to be circulated among staff, and no one has ever complained about them.
[24] The Senior Employee denies Ms. Karageorgos’ description of the Stay Away Incident. He says she was socializing in his section and not following COVID-19 safety protocols, and he wanted her to leave the area. He says that she yelled and swore at him, not vice versa. He denies referring to Ms. Karageorgos as “trash” in front of customers.
3. The Restaurant Manager’s evidence
[25] The Restaurant Manager denies all the allegations against him. He says he deals with the day-to-day management and supervision of staff at the Restaurant, and sometimes there are disputes and heated exchanges between employees. He says when these disputes are brought to his attention, steps are taken to resolve them. He says no employee has ever reported any disputes with other employees involving violence, inappropriate touching, sexual harassment, or sexist or harassing comments or conduct, nor has he ever witnessed any such behaviour. He says the Restaurant is not a boys club; female employees are treated the same as male employees.
[26] The Restaurant Manager’s description of the Stay Away Incident is different from Ms. Karageorgos’. He says she was yelling at the Senior Employee, not vice-versa. He denies dismissing her concerns about the incident; more generally, he denies dismissing any concerns that are raised with him. He also denies: Ms. Karageorgos’ description of his behaviour on August 14, 2020; that he reduced her shifts; that she complained to him about the Bar Manager, Bartender, or Server; that she complained to him about harassment by the Senior Employee; that he ever poked Ms. Karageorgos or other female staff; Ms. Karageorgos’ description of the Pasta Incident; retaliating against any employee for reporting workplace issues; that the Email was posted.
[27] The Restaurant Manager disputes the accuracy of Ms. Karageorgos’ description of the January 10, 2020 incident involving the Server. With his statement, he provided a January 11, 2020 email from the Server. In the email, the Server says: Ms. Karageorgos spoke to him using condescending language and a disgusting tone, so he confronted her, at which point she used further abusive and incoherent language, to which he replied, “fuck off”; he would have said this to anybody; this altercation had nothing to do with sex or gender; he did not want this incident to transform into a sexual harassment issue.
[28] The Restaurant Manager admits to having seen, received, and signed birthday cards containing adult humour, but says he did not find them to be offensive, obscene, or pornographic. He says Ms. Karageorgos never complained about these cards; rather, she signed some of them and participated in sharing adult humour at work. He says the Restaurant is not a drunken or sexualized environment.
[29] The Restaurant Manager denies not protecting Ms. Karageorgos or others from sexual harassment by customers. He admits that female staff sometimes report being harassed and verbally assaulted by customers, but says these matters are dealt with by management. He says he never witnessed and was never told about sexual harassment or misconduct by customers towards Ms. Karageorgos.
[30] The Restaurant Manager says Ms. Karageorgos has a strong, combative, and aggressive personality, and he has never observed her to be afraid to raise concerns regarding co-workers or management.
4. The VP’s evidence
[31] The VP says Ms. Karageorgos never reported any issues regarding workplace safety or incidents of bullying or harassment under the Harassment Policy to him, the Owner, or the Restaurant Manager. He denies her description of their meeting on August 14, 2020. He says he asked Ms. Karageorgos about the Stay Away Incident, but she refused to discuss it. He subsequently investigated further, speaking with the Senior Employee and others. In particular, he spoke with a male server who was an eyewitness to the Stay Away Incident, who corroborated the Senior Employee’s version of events.
[32] The VP denies: witnessing or previously being aware of the conduct alleged by Ms. Karageorgos in respect of the Senior Employee, the Restaurant Manager, the Owner, or any other male staff; any knowledge or reports of sexual harassment or misconduct by male staff or customers; that the Email was posted; Ms. Karageorgos’ description of the Stay Away Incident; that Giardino does not protect female staff from sexual harassment by customers; that female staff are treated differently because of their sex; that management ignores staff concerns that are brought to their attention.
5. Other employee’s evidence
[33] Two female hosts and two servers at the Restaurant (one female, the other the male server who was the eyewitness to the Stay Away Incident) provided sworn statements for Giardino. Among other things, they say the following:
a. There are sometimes interpersonal conflicts at work, but none are related to sex. They have witnessed Ms. Karageorgos yelling and swearing at co-workers. Ms. Karageorgos has a combative and aggressive personality, and is not afraid to raise concerns.
b. The allegations in the complaint are not accurate. Women are not treated differently because of their sex, and the types of behaviour described in the complaint do not occur. The Restaurant is not a sexualized environment or an “all boys club.” However, staff sometimes share in adult humour at work, and Ms. Karageorgos participated in this and never complained about it.
c. The three female staff say they have sometimes been harassed and verbally assaulted by customers, but these matters are investigated and dealt with by management. They never saw or heard about sexual misconduct by customers towards Ms. Karageorgos.
d. They never witnessed female co-workers being treated differently because of their sex, and never witnessed or heard about any of the types of behaviour described in the complaint.
[34] In his statement, the eyewitness to the Stay Away Incident corroborated the Senior Employee’s version of events.
[35] Along with her statement, one of the hosts [Host] provided an August 25, 2020 text exchange with Ms. Karageorgos, in which she confirms that the Email was posted in the Restaurant “by the schedule in the back.” In her statement to the Tribunal, however, the Host says she did not actually see the email; she only said so to Ms. Karageorgos to avoid getting on her bad side.
[36] The parties agree that, at Ms. Karageorgos’ request, the Host attended the Meeting. The Host’s statement to the Tribunal corroborates the Owner’s description of the Meeting, not Ms. Karageorgos’. In her statement, the Host describes the beginning of the Meeting as follows:
[The Owner] told Ms. Karageorgos that he wanted to discuss the issues Ms. Karageorgos had raised regarding [the Senior Employee], that he wanted to hear from her and to provide her with the opportunity to respond, and that he was not going to make any determinations about what occurred until he heard from all witnesses, including her.
[37] I note that this description is not reflected in the Recording or the Transcript.
III DECISION
[38] There are three issues in this dismissal application. The first issue is whether a part of Ms. Karageorgos’ complaint was filed late and should be dismissed under s. 27(1)(g) of the Code. I am satisfied that her complaint was not filed late. Rather, in my view, Ms. Karageorgos’ complaint alleges a timely continuing contravention dating back to the first month of her employment with Giardino.
[39] The second issue in this dismissal application is whether Giardino has established that the entire complaint should be dismissed because it alleges acts or omissions that do not contravene the Code : Code, s. 27(1)(b). I am not persuaded to dismiss the complaint on this basis. I find that Ms. Karageorgos has put forward allegations that could, if proven, violate the Code.
[40] The third issue is whether Giardino has established that the entire complaint should be dismissed because it has no reasonable prospect of success: Code, s. 27(1)(c). In my view, it has not. I find that the materials before me suggest a nexus between Ms. Karageorgos’ sex and her alleged experiences of adverse treatment and impacts in her employment. There is more here than mere speculation that discrimination has occurred.
[41] My analysis of each issue is set out below, following a review of relevant concepts and principles regarding sex-related discrimination, including sexual harassment, in the workplace.
A. Discrimination related to sex
[42] To establish sex-related discrimination in employment under s. 13 of the Code, a complainant must prove they experienced adverse treatment or impacts in their employment in connection to their sex: Moore v. British Columbia, 2012 SCC 61 at para. 33. In this context, the term “sex” is broadly defined to extend beyond biological categories and include nuanced concepts of gender: see Ms. K v. Deep Creek Store and another , 2021 BCHRT 158 at paras 71-72; see also T.A. v. Manitoba (Justice) , 2019 MBHR 12 at paras. 20-24.
[43] “Sexual harassment” is a specific form of sex-related discrimination involving conduct of a sexual nature that is “unwelcome” or otherwise amounts to or results in adverse treatment or impacts in employment: see Ms. K at paras. 71-95. In general, however, sex-related discrimination need not be inherently or overtly sexual: see The Sales Associate v. Aurora Biomed Inc. and others (No. 3), 2021 BCHRT 5 at paras. 112-121; see also Ms. L v. Clear Pacific Holdings Ltd. and others , 2024 BCHRT 14 and Loiselle v. Windward Software Inc. (No. 2), 2021 BCHRT 7. Sex discrimination is a broad concept encompassing a wide range of behaviour: Janzen v. Platy Enterprises Ltd.,[1989] 1 S.C.R. 1251, 1989 CanLII 97 (SCC) at p. 28. In employment, it can include conduct that leverages or reinforces gendered power hierarchies in the workplace, such as acts or omissions that humiliate, subjugate, blame, or intimidate: see Ms. L at paras. 8-9; see also The Sales Associate at para. 116.
[44] Ms. Karageorgos’ complaint alleges discrimination against her by men, in connection to her being a woman. Not every instance of workplace harassment or abuse by a man towards a woman will amount to sex-related discrimination in employment: Loiselle at para. 275. Context is critical in the discrimination analysis, with the focus being on how the man’s conduct affects the woman in connection to her gender: see Loiselle at para. 244; see also The Sales Associate at para. 114.
B. Was a part of the complaint filed late, and, if so, should that part of the complaint be dismissed?
[45] There is a one-year time limit for filing a human rights complaint: Code, s. 22. Allegations of discrimination falling within this one-year time limit are timely and cannot be dismissed under s. 27(1)(g): Code, s. 22(1); Dove v. GVRD and others (No. 2), 2006 BCHRT 197 at para. 39. Allegations falling outside the time limit are late, unless they form part of an alleged continuing contravention with a timely allegation: Code, s. 22(2). To allege a continuing contravention under the Code is to allege discrimination that is ongoing, successive, or repetitive: Rush v. Fraser Health Authority (No. 2) , 2024 BCHRT 13 at para. 32; see generally School District v. Parent obo the Child , 2018 BCCA 136.
[46] A complaint alleging a continuing contravention must be anchored in a timely allegation of discrimination: Code, s. 22(2); see School District at para. 44. If there is a timely allegation of discrimination, the Tribunal then determines if there are earlier allegations falling outside the one-year time limit that form part of a continuing contravention with the timely allegation: Rush at para. 33; see School District at para. 44. 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 [Dove No. 3]. 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).
1. Has Ms. Karageorgos put forward a timely allegation of discrimination in her complaint?
[47] A complaint under the Code must allege timely acts or omissions of discrimination: Code, s. 27(1)(b) and s. 22. To determine whether a complaint alleges a “continuing contravention” within the meaning of s. 22(2), the Tribunal must first assess whether the complaint alleges acts or omissions that fall within the preceding one-year time period, which could, if proven, contravene the Code: see Chen v. Surrey (City), 2015 BCCA 57 at para. 23. In Ms. Karageorgos’ case, I must assess whether her complaint puts forward an allegation on or after September 16, 2019, which could, if proven, contravene the Code and therefore form part of a continuing contravention.
[48] As I outlined above, Ms. Karageorgos alleges ongoing harassment, abuse and misconduct, as well as discrete instances of harassment, abuse, and misconduct, throughout her employment at the Restaurant, beginning within the first month (July 2017) and continuing up until the termination of her employment relationship with Giardino. The timing and circumstances of the end of her employment are disputed. Ms. Karageorgos says she was dismissed on August 27, 2020. Giardino says she quit her job and her employment ended on or around September 19, 2020. I make no findings regarding the legal end date of the parties’ employment relationship or who ended it.
[49] Giardino does not dispute that some of Ms. Karageorgos’ allegations are timely, in that they fall on or after September 16, 2019. However, Giardino argues that none of the timely acts or omissions alleged could, if proven, contravene the Code. This is another way of saying that none of Ms. Karageorgos’ allegations pass the “arguable contravention test” and therefore cannot anchor a continuing contravention claim: see Chenat para. 23; Rushat para. 39.
[50] I am not persuaded that none of Ms. Karageorgos’ timely allegations meet the arguable contravention test. The threshold for passing this test is low: Gichuru v. Vancouver Swing Society, 2021 BCCA 103 at para. 56. An employee alleging discrimination related to a protected characteristic must only allege facts that could establish they experienced an adverse impact in their employment connected to their protected characteristic: see, e.g., The Worker v. The Company and another, 2019 BCHRT 235 at para. 36. In my view, several discrete acts or omissions alleged by Ms. Karageorgos, which fall after September 19, 2019, meet this low threshold.
[51] For instance, Ms. Karageorgos alleges that, in the summer of 2020, a male customer laid a dinner knife against her breast and used suggestive language about her body. She says she was taken aback by this behaviour, and reported it to the Restaurant Manager. I find that these alleged facts could establish Ms. Karageorgos’ experienced an adverse impact in her employment related to being a woman, in the form of unwelcome touching and comments of a sexual nature by a man in her workplace. Ms. Karageorgos further alleges that the Restaurant Manager dismissed her report regarding the customer’s behaviour and did not address it. I find that these alleged facts, too, meet the arguable contravention test, because an employer’s failure to deal with a claim of discrimination can cause harm that is inherently connected to the protected characteristics engaged by the underlying claim: see The Employee v. The University and another (No. 2) , 2020 BCHRT 12 at para. 272 and Hale v. University of British Columbia Okanagan (No. 5) , 2023 BCHRT 121 at paras. 13-20.
[52] Ms. Karageorgos’ allegation regarding the “glory hole” image is another example of a timely claim that passes the arguable contravention test. In her response to the dismissal application, she says the Restaurant Manager’s conduct in sending the image is an example “of how the character of the male staff … was toxic and perpetuated inappropriate behaviour.” In my view, in the context of Ms. Karageorgos’ complaint, the allegation that her male manager sent her an inappropriate sexual image of a woman could, if proven, contravene the Code.
[53] In sum, then, I am satisfied that Ms. Karageorgos’ complaint puts forward at least two allegations, on or after September 16, 2019, which could, if proven, contravene the Code and potentially form part of a continuing contravention.
2. Has Ms. Karageorgos put forward other allegations of discrimination that form part of a continuing contravention, and, if so, how far back does the alleged contravention go?
[54] The continuing contravention concept is not meant to arbitrarily sweep any and all untimely allegations into a complaint that is properly before the Tribunal: see Van Baranaigien v. BC Ferry Services Inc. , 2016 BCHRT 33 at para. 44. Rather, the purpose of s. 22(2) of the Code is to allow complainants to seek redress for alleged discrimination falling outside the Code’s time limits if, and only if, “the complaint that is properly before the Tribunal represents a continuation of the earlier discrimination”: School District at para. 43. In each case the continuing contravention analysis must be grounded in the individual circumstances of the complaint. The assessment of whether earlier allegations of discrimination form part of a continuing contravention is contextual and fact-specific: Dickson v. Vancouver Island Human Rights Coalition , 2005 BCHRT 209 at para. 17. Various factors may be relevant to this assessment, including the character of the allegations and whether they are separated by gaps in time: see generally School District; Rai v. Annacis Auto , 2003 BCHRT 31; Callaghan v. University of Victoria, 2005 BCHRT 589; Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204.
a. Character of the allegations[55] For allegations falling outside the one-year time limit to form part of an alleged continuing contravention with a later allegation falling within the time limit, the earlier allegations must be of the same or similar character as the later allegation: Rush at para. 51; see generally Dove No. 3 at paras. 11-33 and School District at paras. 46-65.
[56] As I outlined above, Ms. Karageorgos alleges ongoing discrimination from July 2017 to the end of her employment, as well as discrete instances of discrimination during that time period. In her original complaint, she explained that all of the alleged conduct is similar because it relates to harassment and other mistreatment in the workplace by male staff and management, which negatively impacted her. In the amendment to her complaint, she added that the harassment at the Restaurant was not only from staff and management, but also from male customers.
[57] Giardino argues that Ms. Karageorgos’ timely allegations do not share a common character with her untimely allegations. I find its analysis to be unclear and unhelpful. It asserts that the character of Ms. Karageorgos’ respective allegations are dissimilar from one another, without characterizing her allegations and articulating the differences in their characterizations. With that said, the burden here is not on Giardino. Ms. Karageorgos bears the onus of establishing that her complaint alleges a timely continuing contravention. On the evidence before me, I am satisfied she has met this onus.
[58] Some continuing contravention cases involve allegations of a succession or repetition of separate discriminatory acts or omissions that share a common character. Other cases involve allegations of an ongoing state of affairs where discriminatory structures or conditions continue to exist over time. Some cases have features of both: Dove No. 3 at paras. 17-18. I find that Ms. Karageorgos’ complaint is such a hybrid case. As she indicated in her original submission to the Tribunal on September 16, 2020, her complaint is about a succession of “incidents with male staff and management,” involving their treatment of her, as a woman. At the same time, the complaint is also about a broader “history and pattern of abuse” towards Ms. Karageorgos, as a woman working at the Restaurant (Dismissal Response at para. 4). When Ms. Karageorgos first filed her complaint, she said it would “bring attention to a toxic work environment, toxic male culture which discriminates against all women employees, and encourages a culture of fear and intimidation, as well as retaliation.”
[59] Ms. Karageorgos’ complaint is not about a few isolated incidents of alleged aggression or unwelcome sexualized behaviour by one or two men. It is about an alleged ongoing pattern of gendered harassment, abuse, and misconduct by men in her workplace, and the alleged discrete instances of harassment, abuse, and misconduct that formed part of that pattern. It is also about Giardino’s response – primarily through the Restaurant Manager – to the alleged gendered harassment, abuse, and misconduct. Some of Ms. Karageorgos’ allegations relate to sexualized behaviour by senior male co-workers. Others accuse men who “were in charge” at the Restaurant of engaging in conduct that, while not inherently or overtly sexual, was aggressive, intimidating, demeaning, offensive, insulting, and/or abusive. Other allegations relate to sexual comments and touching by male customers who Ms. Karageorgos served. In addition, some of Ms. Karageorgos’ allegations relate to her reactions to the alleged discriminatory conduct (e.g., reporting the conduct to the Restaurant Manager; sending the Email to the Owner), and how those reactions led to further negative treatment in the workplace (e.g., overloading her section; reducing her shifts; terminating her employment). I make no findings of fact and reach no conclusions regarding the merits of these allegations. I do find, however, that they all share a common character, in that they centre on Ms. Karageorgos’ experience, as a woman, of the behaviour of men in her workplace who were above her in the Restaurant hierarchy – be they senior staff, management, or customers.
b. Gaps in time between the allegations
[60] Whether a continuing contravention complaint involves allegations of a succession of discriminatory incidents, or allegations of an ongoing discriminatory state of affairs, or both, a relevant consideration is always whether there are time gaps between the allegations: Dicksonat para. 16. A significant, unexplained gap in time between allegations of discrimination sharing a common character will weigh against a finding that they form part of an alleged continuing contravention: Braun v. Avcorp Industries Inc., 2023 BCHRT 167 at para. 39. The significance of a gap in time between allegations is assessed contextually; considerations include the length of the gap, and explanations for it: Reynolds v Overwaitea Food Group, 2013 BCHRT 67, at para. 28.
[61] Giardino makes only brief submissions on the issue of gaps between Ms. Karageorgos’ allegations. Again, however, the burden under s. 22(2) is on Ms. Karageorgos, not Giardino. In her original complaint, she explained the gaps in time between her allegations by saying that the alleged conduct had been ongoing since the start of her employment, and she had previously felt unsafe reporting it to the Tribunal for fear of retaliation.
[62] Ms. Karageorgos does not specify exact dates for all of her allegations of discrete instances of discrimination. In some cases, she provides time periods (e.g., “within the first month” of her employment; “at Christmas of 2018”). In others, she provides an indication of when a recurring act began, without clearly indicating if or when it stopped happening. Still, I find that the timeline of her complaint is discernible from the materials before me. I also find that it appears to include gaps between her allegations of discrete acts and omissions. The longest gaps seem to be between late 2017 and July 2018 (roughly seven or eight months), Christmas 2018 and August 2019 (roughly seven or eight months), and January 2020 and summer 2020 (roughly six or seven months). Nevertheless, for the following reasons, I am satisfied that this is not a case where the apparent gaps between allegations of discrimination are “significant” as that concept is understood within the continuing contravention analysis.
[63] First, I find that the gap period in 2020 is largely explained by the parties’ evidence regarding the pandemic-related closure of the Restaurant for roughly three or four months, beginning in mid-March 2020.
[64] Second, I note that I have defined certain “gap” periods in Ms. Karageorgos’ complaint based on the lack of specific allegations of discrete instances of discrimination during those periods. The complaint, however, is not just about discrete acts or omissions – it is also about the alleged ongoing pattern that encompassed those discrete events. Moreover, Ms. Karageorgos is clear in alleging that the acts and omissions she experienced were not one-offs. For example, she alleges that the lewd birthday cards “came by every few months until the end of my employment, and they became more disgusting as the years went on.” She alleges that the Bartender’s behaviour “never stopped.” She says the Restaurant Manager’s sharp pokes to her back stopped briefly but picked back up after a few months. She says they happened “several times a week,” and in the spring of 2018, there were visible bruises on her back. She alleges that the Restaurant Manager “repeatedly dismissed” her attempts to discuss harassment in the workplace. She says the Senior Employee’s “violent verbal outbursts became worse and more frequent” over time. These allegations are not particularized as specific incidents on specific dates, and raise the question of whether the “gaps” I have defined truly reflect periods during which Ms. Karageorgos does not allege gendered harassment, abuse, and misconduct.
[65] Third, I find that Ms. Karageorgos’ explanation for not bringing her issues forward to the Tribunal sooner is directly connected to the discrimination alleged in her complaint. Specifically, her explanation ties into her allegations regarding how her responses to the conduct she experienced led to further negative treatment in her employment. I acknowledge Giardino’s argument that a complainant’s legitimate fear of the consequences of filing their complaint is not reason alone for accepting their late-filed complaint under s. 22(3) of the Code: see, e.g., Kafer v. Sleep Country Canada and another, 2013 BCHRT 137. But I have not determined that Ms. Karageorgos complaint was filed late, and so I need not decide whether it is in the public interest to accept her complaint under s. 22(3).
[66] Finally, there is no evidence before me of any intervening events or changes in Ms. Karageorgos’ circumstances that might have broken the chain of her allegations or altered the character of her experiences and interactions at the Restaurant during the period of the alleged continuing contravention. On the contrary, her complaint expressly asserts the opposite.
[67] In sum, then, I conclude that Ms. Karageorgos’ complaint alleges a timely continuing contravention within the meaning of s. 22(2) of the Code, and that the alleged continuing contravention goes back to July 2017. Ms. Karageorgos’ complaint was not filed late. Giardino’s application to dismiss under s. 27(1)(g) is therefore denied.
C. Should the complaint be dismissed because it comprises allegations that do not contravene the Code?
[68] Section 27(1)(b) of the Code gives the Tribunal discretion to dismiss all or part of a complaint that does not allege facts that could, if proven, contravene the Code. Giardino argues that Ms. Karageorgos’ entire complaint should be dismissed on this basis. It says the facts alleged by Ms. Karageorgos, even if proven, cannot establish a nexus between any adverse treatment and her sex. For example, Giardino says that none of the Senior Employee’s alleged actions, even if proven, “resulted in any alleged adverse employment consequences that have any nexus to [Ms. Karageorgos’] sex.” Giardino argues that, while the alleged actions of the Senior Employee and the Owner “may have been disrespectful, offensive, upsetting, or caused [Ms. Karageorgos] to have a negative reaction, the fact that [she] is female, is insufficient to constitute a breach of the Code.”
[69] Giardino says that adverse treatment unrelated to a protected characteristic does not contravene the Code, and not all interpersonal issues, disputes, or problems in the workplace amount to discriminatory harassment. I agree with this statement. I do not agree, however, that the allegations in Ms. Karageorgos’ complaint lack an arguable nexus to her sex. As I have already decided, her complaint alleges discrete instances of gendered harassment, abuse, and misconduct by men in her workplace, which form part of an alleged ongoing pattern of such behaviour that was not prevented or addressed by Giardino. Some of her allegations relate to sexualized behaviour; others do not. But I have found that they all share a common character, in that they centre on Ms. Karageorgos’ experience, as a woman, of the behaviour of men in her workplace who were above her in the Restaurant hierarchy.
[70] I have already found that Ms. Karageorgos’ allegations regarding a customer (touching and comments of a sexual nature) and the Restaurant Manager (dismissing concerns regarding customer’s behaviour; sending “glory hole” image) in 2020 pass the arguable contravention test and form part of a continuing contravention with her other allegations. I similarly find that, considered in the full context of Ms. Karageorgos’ complaint, her allegations regarding men who “were in charge” (e.g., the Restaurant Manager, the Senior Employee, the Server, the Owner) engaging in conduct that was aggressive, intimidating, demeaning, offensive, and abusive could, if proven, establish that she experienced adverse treatment or impacts in her employment connected to being a woman. In my view, these findings, and my reasons above, provide a sufficient basis for denying Giardino’s s. 27(1)(b) application, without the need to further parse out and consider each allegation separately. To be properly understood and assessed at a hearing, Ms. Karageorgos’ allegations must be considered in context with one another, even if it is ultimately determined that some of them, on their own, do not rise to the level of discrimination: Fraser v. Tolko Industries Ltd. and others, 2021 BCHRT 118 at para. 214.
[71] Giardino’s application to dismiss the complaint under s. 27(1)(b) is denied.
D. Should the complaint be dismissed because it has no reasonable prospect of success?
[72] Section 27(1)(c) gives the Tribunal discretion to dismiss complaints that have no reasonable prospect of success and therefore do not warrant the time and expense of a hearing: Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95, at paras. 22-26, leave to appeal ref’d [2006] S.C.C.A. No. 171; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 at para. 27 [Hill]. The Tribunal does not make findings of fact under s. 27(1)(c). Instead, my task in applying this section of the Code is to look at the information filed by the parties to decide if there is no reasonable prospect that findings of fact supporting the complaint could be made on a balance of probabilities after a hearing of the evidence: Berezoutskaia at para. 22. The onus is on Giardino to establish that Ms. Karageorgos’ complaint should be dismissed under s. 27(1)(c): Paulsen v. BC Hydro and another, 2020 BCHRT 75 at para. 11. Giardino must show me that either (1) Ms. Karageorgos’ has no reasonable prospect of proving the elements of her complaint, or (2) Giardino is reasonably certain to establish a defence: Lado v. Hardbite Chips and others, 2019 BCHRT 134 at para. 25. Giardino’s evidence and arguments in support of its application are focussed on establishing the former.
[73] To make her case at a hearing, Ms. Karageorgos would need to prove that (1) she had a personal characteristic protected by the Code , (2) she was adversely impacted in her employment, and (3) her protected characteristic was a factor in the adverse impact: Mooreat para. 33. Under s. 27(1)(c), my assessment of Ms. Karageorgos’ prospects for satisfying the three elements of her case involves testing the evidence for some probability that she could prevail: Lado at para. 26. The threshold to advance a complaint to a hearing is low; Ms. Karageorgos does not need to prove her case or show the Tribunal all the evidence she may introduce at a hearing: Sadvandi v. Hudson’s Bay Company, 2024 BCHRT 8 at para. 19. Rather, for her complaint to continue forward, the materials before me must suggest a nexus between her protected characteristic and the alleged adverse impacts in her employment; there must be more than mere speculation that discrimination has occurred: Gichuru v. Pallai (No. 2) , 2010 BCHRT 125 at para. 107, quoting Runyowa and Kanani v. Vicinia Strata Plan LMS1647 and another , 2007 BCHRT 89 at para. 22. Put another way, for Ms. Karageorgos’ complaint to advance to a hearing, there must be some evidence capable of raising her case “out of the realm of conjecture”: Hillat para. 27.
[74] Giardino says Ms. Karageorgos’ case falls short of this standard. It accepts that she can establish the first element of her case. However, it asserts that, even if Ms. Karageorgos can prove she experienced adverse impacts in her employment, she has no reasonable prospect of establishing that her sex was a factor in the adverse impacts. Giardino’s arguments under s. 27(1)(c) focus on specific allegations in the complaint, namely: the allegations regarding the Senior Employee and the Stay Away Incident; the allegations regarding the reduction of her shifts; the allegations regarding the Pasta Incident; and the allegations regarding the termination of her employment. I will address these arguments below, after first briefly addressing Giardino’s general submissions regarding the evidence before me.
1. Form and quality of the evidence
[75] There is no shortage of supporting evidence in this dismissal application. I commend both parties’ efforts in this regard. There are over 25 witness statements before me, plus corroborative documentary evidence.
[76] Giardino provided sworn evidence in support of its application; Ms. Karageorgos’ witness evidence is unsworn and mostly unsigned. Because of this difference, Giardino argues that I should favour its evidence. It also argues that its witness statements provide better evidence than Ms. Karageorgos’. Giardino says the evidence of its witnesses is corroborative, objective, direct, consistent, and relevant, while none of Ms. Karageorgos’ witness statements provide direct or relevant evidence.
[77] I do not agree that the form and quality of Giardino’s evidence is materially superior to Ms. Karageorgos’. While her witness statements are unsworn and mostly unsigned, they are clearly written, dated, and include the contact information of the writer. In any event, especially because Ms. Karageorgos is self-represented, fairness requires me to look past differences in the parties’ presentation of their evidence to assess the real merits of the application before me: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd. (No. 2) , 2004 BCHRT 80 at para. 57. In this regard, I am satisfied that many of Ms. Karageorgos’ witnesses have provided evidence that is direct, consistent, relevant, and corroborative of Ms. Karageorgos’ allegations. In terms of objectivity, on the materials before me, I am not prepared to conclude that the evidence of Giardino’s witnesses is less affected by their respective personal views, experiences, and interests compared to the evidence of Ms. Karageorgos’ witnesses.
[78] I will now move on to consider Giardino’s arguments under s. 27(1)(c).
2. Allegations regarding Senior Employee, Stay Away Incident, and Trash Incident
[79] As I outlined above, the Senior Employee denies all the allegations against him, but admits to making and sharing birthday cards containing adult humour, which he says were not offensive, obscene, or pornographic. Other witnesses also admit to sharing in adult humour, and state that Ms. Karageorgos participated in this and never complained about it.
[80] The Restaurant Manager’s evidence regarding the Stay Away Incident is supportive of the Senior Employee’s version of events. The Restaurant Manager denies dismissing Ms. Karageorgos’ concerns regarding the Stay Away Incident or any other matters she raised with him. An eyewitness to the Stay Away Incident also corroborates the Senior Employee’s version of events.
[81] None of Ms. Karageorgos’ witnesses mention the birthday cards in their statements. One customer describes witnessing the Trash Incident, and corroborates Ms. Karageorgos’ version of events, including her evidence that the Restaurant Manager failed to take action in response to the incident. Two other customers say they have witnessed male staff shouting, berating, and demeaning Ms. Karageorgos, providing the Senior Employee’s “repeated outbursts” as an example. Ms. Karageorgos’ witnesses do not specifically address the Stay Away Incident, but many of them insist Ms. Karageorgos always followed COVID-19 safety protocols, which contradicts Giardino’s evidence regarding her conduct during the Stay Away Incident.
[82] Giardino argues that the evidence before me establishes that “at no time did [the Senior Employee] ‘harass’ [Ms. Karageorgos] as she alleged in her complaint, or at all.” Further, it argues that even if the Senior Employee’s behaved in the ways Ms. Karageorgos alleges (e.g., snapping his fingers at her, hissing, referring to her as “trash”), she has no reasonable prospect of proving a connection between this behaviour and her sex. Giardino says the Senior Employee’s alleged conduct during the Trash Incident and Stay Away Incident was not sexual in nature or based on Ms. Karageorgos’ gender, and none of his alleged comments “have any sexual connotation, or meaning tied to a particular gender.”
[83] On the conflicting witness evidence before me, and without the benefit of hearing testimony tested through cross-examination, I am not satisfied that Ms. Karageorgos’ has no reasonable prospect of proving her factual allegations regarding the Senior Employee’s behaviour and the Restaurant Manager’s response. Further, I am not convinced she has no reasonable prospect of establishing that the impugned conduct amounted to or resulted in adverse treatment or impacts in her employment. Among other things, her evidence is that the birthday cards were disgusting, the Senior Employee’s behaviour was abusive, the Restaurant Manager did not deal with the Senior Employee’s abuse, and the lack of management response fostered a poisoned work environment.
[84] In addition, while I accept that some of Ms. Karageorgos’ allegations regarding the Senior Employee are not inherently or overtly sexual in nature, I do not accept that she has no reasonable prospect of establishing that being a woman factored into what she experienced. Her evidence is that: the Senior Employee was one of the senior men in charge at the Restaurant; he created and circulated sexualized birthday cards; on one occasion, he called her “trash” in front of customers; on another occasion, he hissed and snapped at her in front of customers, and subsequently “exploded” at her, aggressively telling her to stay away from his tables; she reported the Senior Employee’s behaviour to the Restaurant Manager, who was also one of the senior men at the Restaurant, and he did not address it or prevent it from recurring. Some of these pieces of evidence, on their own, may not ground a finding of discrimination. But, at a hearing, each piece of evidence will not be considered in isolation. Rather, the Tribunal will assess the evidence regarding the Senior Employee as a whole, and in the full context of Ms. Karageorgos’ additional evidence regarding the behaviour of other men in her workplace who were above her in the Restaurant hierarchy. Viewed in this way, I find that the evidence before me takes Ms. Karageorgos’ sex-related discrimination claims against the Senior Employee and Restaurant Manager out of the realm of conjecture. I am not persuaded she has no reasonable prospect of establishing that her status and gender, as a subordinate woman in a workplace where the Senior Employee and Restaurant Manager were among the men in charge, were factors in how they adversely treated or impacted her.
3. Allegations regarding reduction of shifts
[85] Ms. Karageorgos says the Restaurant Manager did nothing about the Stay Away Incident. She further alleges that, the following day (August 14, 2020), he came up to her “spitting with anger” after learning she was considering filing a complaint, and he then took her to meet with the VP. She says that “within 24 hours” of this meeting, the Restaurant Manager reduced her shifts by 40%.
[86] The Restaurant Manager denies Ms. Karageorgos’ description of his behaviour on August 14, 2020. He also denies reducing Ms. Karageorgos’ shifts following the Stay Away Incident, attaching a copy of the Restaurant’s August 17-30 schedule to his sworn statement.
[87] The handwritten schedule appears to show Ms. Karageorgos assigned to work four shifts (Wednesday to Saturday) each week during the August 17-30 period. Ms. Karageorgos’ evidence is that she had previously been working five days per week. She says that, when the Restaurant Manager first posted the schedule in the workplace for employees to see, it indicated that she was only assigned to work three shifts per week (Thursday to Saturday). Ms. Karageorgos says that, when she voiced a concern about this – “Oh, now that I spoke up I’m only working three days instead of five?” – the Restaurant Manager penciled in an additional shift (Wednesday) for each week. A former Giardino employee, whose statement includes an eyewitness account of this exchange, corroborates Ms. Karageorgos’ version of events.
[88] Giardino denies reducing Ms. Karageorgos’ shifts “at any time, as alleged or at all.” It says she missed work during the August 17-30 period due to a COVID-19 exposure. In addition, Giardino argues that Ms. Karageorgos’ own evidence is that her schedule was corrected by the Restaurant Manager and there was no actual shift reduction from August 17-30, 2020. It asserts that Ms. Karageorgos cannot prove her shifts were reduced for reporting the Stay Away Incident or that any alleged reduction was connected to her sex.
[89] On the evidence before me, I am not satisfied that Ms. Karageorgos’ has no reasonable prospect of proving that, in the days following the Stay Away Incident, and after the Restaurant Manager learned she was considering filing a complaint, he originally reduced her shifts by 40% (from five shifts to three) and/or ultimately reduced them by 20% (from five shifts to four) on the August 17-30, 2020 schedule, which amounted to an adverse impact in her employment. At a hearing, the Tribunal could infer from this timeline that the Stay Away Incident and the events that followed were a factor in the shift reduction: see Parry v. Vanwest College Ltd. , 2005 BCHRT 310 at paras. 63-65. This would connect Ms. Karageorgos’ reduced shifts to an alleged instance of sex-related abuse and to her disclosure that she might complain about it, which could support a finding of a nexus between her sex and the shift reduction. I am therefore not persuaded that Ms. Karageorgos has no reasonable prospect of proving that her shifts were reduced and this constituted a sex-related adverse impact in her employment.
4. Allegations regarding Pasta Incident
[90] As I outlined above, according to Ms. Karageorgos, the Pasta Incident involved the Owner screaming in her face, taking a threatening step towards her, and clapping his hands together in front of her face, almost hitting her, when she was clearing a plate of pasta. The Owner disputes this description of the incident, saying he never hit, or almost hit, Ms. Karageorgos. His evidence is that he “noticed Ms. Karageorgos going … to throw away uneaten kids’ pasta and … asked her what was wrong with the pasta and whether the customer had an issue with the pasta.”
[91] A former Giardino employee, whose statement includes an eyewitness account of the Pasta Incident, corroborates Ms. Karageorgos’ version of events. The Restaurant Manager, who also witnessed the exchange, corroborates the Owner’s version. He says he has never witnessed the Owner “being verbally or physically violent with any staff member, including Ms. Karageorgos, as she alleged or at all.”
[92] Giardino admits that the Pasta Incident occurred, but says that witness evidence shows it did not involve violence or verbal abuse against Ms. Karageorgos or anyone else. It argues that “the evidence establishes that this incident arose in the context of a work-related labour management and direction issue, or at best, an issue of alleged ‘personal harassment’ that had nothing to do with [Ms. Karageorgos’] sex.” Giardino asserts that it is not for the Tribunal to decide whether the Owner’s actions were right or wrong, fair, reasonable, or correct. Rather, the only issue for the Tribunal to determine is whether the Owner’s behaviour had a nexus to a protected characteristic under the Code. Giardino says it did not.
[93] On the conflicting witness evidence before me, and without the benefit of hearing testimony tested through cross-examination, I am not satisfied that Ms. Karageorgos’ has no reasonable prospect of proving her factual allegations regarding the Pasta Incident and establishing that the alleged behaviour amounted to adverse treatment in her employment.
[94] In addition, while I accept that the Owner’s alleged conduct was not inherently or overtly sexual in nature, I do not accept that Ms. Karageorgos has no reasonable prospect of establishing that being a woman factored into what she experienced. As I discussed above, at a hearing, the Tribunal will assess the evidence regarding the Owner as a whole, and in the full context of Ms. Karageorgos’ additional evidence regarding the behaviour of other men in her workplace who were above her in the Restaurant hierarchy. Viewing the evidence in this way, I am not persuaded she has no reasonable prospect of establishing that her status and gender, as a subordinate woman in a workplace where the Owner was the top man among the senior men in charge, were factors in how he adversely treated or impacted her. In any event, given my decision to deny Giardino’s dismissal application, I find that there would be no efficiency gained by carving out and dismissing the Pasta Incident allegations. At the hearing of the complaint, the Pasta Incident will come up anyway, because the parties will need to provide evidence about Ms. Karageorgos’ experience at Giardino during the entire term of her employment: see Fraserat para. 215.
5. Allegations regarding termination of employment
[95] Earlier in this decision, I described Ms. Karageorgos’ allegations in relation to the termination of her employment relationship with Giardino. Among other things, she says she was wrongfully dismissed for speaking up about gendered harassment at the Restaurant. Giardino denies Ms. Karageorgos’ allegations. It says the evidence before me, including the Recording, proves there was no adverse treatment in the Meeting on August 27. Giardino says Ms. Karageorgos’ employment at the Restaurant terminated on September 19, 2020, and it argues that the allegation of a connection between her sex and the end of her employment is based purely on speculation or conjecture. Giardino says Ms. Karageorgos never reported any incidents of sexual harassment or discrimination to the Owner before he decided to code her ROE to reflect that she had quit. It says the Owner only learned of Ms. Karageorgos’ claims of sex-related discrimination when she filed her complaint to the Tribunal, and none of the alleged incidents of a sexual nature were witnessed or corroborated in any way by the employees who provided statements in support of the dismissal application.
[96] For the following reasons, I am not satisfied that Ms. Karageorgos has no reasonable prospect of establishing that the end of her employment at Giardino was an adverse impact related to her sex.
[97] First, on the conflicting evidence before me, and without the benefit of hearing testimony tested through cross-examination, I am not able to say Ms. Giardino has no reasonable prospect of proving she did not quit, but rather was fired at the Meeting. Being fired is an adverse impact in employment: Wright v. Michaels’ Off Main and others, 2019 BCHRT 146 at para. 43; Susoeff v. Host International of Canada Ltd., 2022 BCHRT 85 at para. 89.
[98] The evidence indicates the Meeting was precipitated by the Email, in which Ms. Karageorgos said the Restaurant was an “all-boys club” and complained about the Stay Away Incident and other instances of aggressive behaviour by the Senior Employee. According to the Recording and Transcript, the Owner wanted to discuss the Stay Away Incident at the Meeting, and resented Ms. Karageorgos’ refusal to do so. This evidence would connect Ms. Karageorgos’ termination at the Meeting to an alleged instance of sex-related abuse and to her complaint about it. In my view, this is enough to take the allegation of a nexus between Ms. Karageorgos’ sex and her termination at the Meeting out of the realm of conjecture.
[99] Second, even if Ms. Karageorgos cannot prove she was fired, there is no dispute that the end of her employment could amount to an adverse impact. Giardino’s position is that Ms. Karageorgos’ job came to an end on or around September 19, 2020, and it admits that this end could be considered adverse treatment in her employment. It argues, however, that she cannot prove a nexus between this end and her sex. I disagree.
[100] Ms. Karageorgos’ evidence is that the Stay Away Incident was the “final straw” for her. She says the Restaurant Manager did nothing about the Senior Employee’s behaviour, so she considered her options at that point, “given that all [her] attempts to have these abusive situations rectified by those in charge wasn’t working.” Her evidence is that, upon meeting with the VP on August 14, 2020, she “could see that nobody was there to help” her. She says that, after the Restaurant Manager reduced her shifts, she sent the Email. She alleges that the Owner then posted the Email in her workplace for others to see. He denies doing this. On the conflicting evidence before me, I am not satisfied Ms. Karageorgos has no reasonable prospect of proving this allegation.
[101] Ms. Karageorgos says she was subsequently told to attend the Meeting at the beginning of her August 27 shift. According to the Recording and Transcript, the Owner wanted to discuss the Stay Away Incident at the Meeting, and resented when Ms. Karageorgos refused to do so. He asked her, “So, why don’t I send you an email now that you cannot work tonight?” (Transcript at p. 3). When she asked him if he was telling her she could not work her shift, he responded that the Restaurant was his place, and he could not even talk to her (Transcript at p. 3). After further back and forth, she ended the Meeting and returned to the Restaurant. The Recording shows her leaving the Restaurant roughly 40 seconds later. The evidence is that she did not complete her shift on August 27, did not attend work on August 28 or 29, and was not in contact with the Restaurant Manager to arrange further shifts. Giardino says that, three weeks later, it assumed Ms. Karageorgos – a three-year employee – had quit. There is no evidence that Giardino made any effort to confirm this assumption with Ms. Karageorgos directly. Further, there is no evidence that, when Ms. Karageorgos contacted Giardino to say she had not quit, but rather had been fired after making a harassment claim, it made any inquiries regarding this apparent misunderstanding.
[102] At a hearing, the Tribunal will assess this evidence as a whole, and in the full context of Ms. Karageorgos’ other allegations regarding a pattern of gendered harassment, abuse, and misconduct by men in her workplace, and Giardino’s unwillingness or inability to prevent or address the alleged discrimination. Viewed in this way, and even if she was not fired on August 27, I find there is enough in the evidence of the chain of events and interactions following the Stay Away Incident to suggest a nexus between the end of Ms. Karageorgos’ employment and her response to a culminating event of alleged sex-related misconduct.
6. Conclusion on s. 27(1)(c)
[103] For the reasons discussed earlier in this decision, I decline to further parse out the evidence regarding each of Ms. Karageorgos’ allegations. On the materials before me, I am satisfied that Ms. Karageorgos’ allegations of discrete instances of gendered harassment, abuse, and misconduct by men in her workplace, forming part of an alleged ongoing pattern of such behaviour that was not prevented or addressed by Giardino, are not merely conjectural. Giardino has not shown me that Ms. Karageorgos has no reasonable prospect of proving she experienced sex-related adverse treatment or impacts during the period beginning in July 2017 and ending when her employment relationship with Giardino was terminated.
[104] Giardino’s application to dismiss the complaint under s. 27(1)(c) is denied.
IV CONCLUSION
[105] Giardino’s application to dismiss under s. 27(1)(g) of the Codeis denied. The complaint alleges a timely continuing contravention dating back to July 2017.
[106] Giardino’s application to dismiss under s. 27(1)(b) is denied.
[107] Giardino’s application to dismiss under s. 27(1)(c) is also denied.
[108] Ms. Karageorgos’ complaint alleging a continuing contravention dating back to July 2017 will proceed to a hearing.
Jonathan Chapnick
Tribunal Member