Human Rights Tribunal of Ontario
B E T W E E N:
Matthew Wozenilek
Applicant
-and-
McDonald’s Restaurants of Canada Ltd. and Grandi Company Ltd.
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Wozenilek v. McDonald’s Restaurants of Canada
1This is an Application alleging discrimination on the basis of disability in the provision of services, goods and facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that, as a person who relies on a wheelchair, he was unable to access two restaurants. This Interim Decision deals with several requests that have been made by the parties to add and remove respondents and a further request by the applicant to amend his proposed remedy.
2The Application names McDonald’s Restaurants of Canada Ltd. (“McDonald’s”) as the corporate respondent and Grant Ford as the personal respondent. In its Response, the respondents request that Grandi Company Limited (“Grandi”) be added as a respondent as Grandi is the franchise owner and operator of five McDonald’s restaurants in Guelph, Ontario including the restaurants the applicant alleges were not accessible to him.
3The respondents request that the personal respondent be removed as a respondent. The personal respondent is the majority shareholder of Grandi. The respondents submit that the personal respondent has no personal involvement in this matter except as an agent for Grandi. The respondents further request that McDonald’s be removed as it is merely the corporate franchisor and not the owner of the subject restaurants.
4The applicant agrees that Grandi should be added as respondent. The applicant contends that the personal respondent and McDonalds should not be removed as respondents given the applicant dealt with both of these respondents when he attempted to complain about his experiences in accessing the two identified restaurants.
DECISION
5Rule 1.7(b) of the Tribunal’s Rules affirms the Tribunal’s power to add or remove a party.
6I order that Grandi be added as a respondent given that it is the owner of the facilities at which the discrimination allegedly took place and as such could be found liable for the infringement of the applicant’s rights under the Code.
7I decline to remove McDonald’s as a respondent. It is not clear, at this juncture, whether McDonald’s, as the franchisor, could be determined to be liable. This is a matter to be determined at a hearing. I agree with the reasoning in the Tribunal’s decision in Philip v. Giant Tiger Stores, 2009 HRTO 1227, where the Tribunal refused to remove a franchisor at a preliminary stage stating:
Giant Tiger seeks an order dismissing the Application as against it on the basis that the store operates under an independent corporation pursuant to the franchise agreement, and that Giant Tiger does not have any legal relationship with the employees of the store. I do not agree that this is a basis for the dismissal of the Application against Giant Tiger at this preliminary stage. It may be that the franchise agreement or Giant Tiger’s exercise of its obligations under that agreement was a factor in any discrimination experienced by the applicant or that the franchisor is in some other way legally responsible for any discrimination experienced by the applicant. The question of the franchisor’s liability should be determined following evidence and argument at the hearing.
8Grant Ford is removed as a personal respondent. I have considered the list of factors that were identified in Persaud v. Toronto District School Board, 2008 HRTO 31, at paras. 4-5 regarding whether or not an individual respondent should be removed. As stated in Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para 42:
The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.
Applying these principles to the Tribunal’s power to remove a personal respondent from a proceeding, the following non-exhaustive list of factors may be helpful in assessing whether a personal respondent should be removed:
Is there is a corporate respondent in the proceeding that also is alleged to be liable for the same conduct?
Is there any issue raised as to the corporate respondent’s deemed or vicarious liability for the conduct of the personal respondent who [is] sought to be removed?
Is there is any issue as to the ability of the corporate respondent to respond to or remedy the alleged Code infringement?
Does any compelling reason exist to continue the proceeding as against the personal respondent, such as where it is the individual conduct of the personal respondent that is a central issue or where the nature of the alleged conduct of the personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found?
Would any prejudice be caused to any party as a result of removing the personal respondent?
9I am satisfied, based on the information before me, that the personal respondent was acting as an agent of Grandi in his dealings with the applicant and that there is no issue with respect to Grandi being deemed vicariously liable for the conduct of the personal respondent. There is no suggestion that the personal respondent was acting outside his professional responsibilities or conducted himself in such a manner that it would be appropriate to award a remedy specifically against him. Finally, there is no basis to conclude that there would be any prejudice to any party as a result of removing the personal respondent. The style of cause is amended accordingly.
10The applicant has made a further request (as part of a Request for an Order During Proceedings) to amend the financial remedy he proposed in his original Application. The applicant’s request is granted.
11I am not seized of this matter.
Dated at Toronto, this 20th day of May, 2010.
”signed by”____________
Eric Whist
Vice-chair