Chedore v. McBoyco, 2010 HRTO 2131

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elaine Chedore

Applicant

-and-

McBoyco Limited, Dendres Corporation,

Matt Staples and Mike Michlik

Respondents

INTERIM decision

Adjudicator: Ena Chadha

Date: October 22, 2010

Citation: 2010 HRTO 2131

Indexed as: Chedore v. McBoyco

1The applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) on March 8, 2010, alleging discrimination with respect to employment on the basis of age. The applicant’s employment was terminated when her employer, the respondent McBoyco Limited (“McBoyco”), sold its various McDonald’s locations to Dendres Corporation (“Dendres”).

2By way of an earlier Interim Decision, 2010 HRTO 1839, the Tribunal directed the parties to file submissions with respect to whether the Application can proceed against McDonald’s (Brock Location) and whether Dendres should be added as a party to the Application.

3On October 5, 2010, Dendres filed submissions objecting to being added as a party. Dendres submits that the applicant never worked for Dendres as her employment was terminated prior to the date of purchase by Dendres. Dendres takes the position that it is not liable for any alleged comments made by its store manager because, if made, such remarks were outside of the scope of his duties. Dendres also submits that the Application should not proceed against McDonald’s (Brock Location) as this is not an entity which exists in law.

4The applicant wrote to the Tribunal on October 10, 2010 and indicated that she believes Dendres is responsible for the actions of its store manager, the respondent Staples, per section 46.3 (1) of the Code.

5No submissions have been received from the respondents McBoyco, Michlik or Staples.

DECISION

6Rule 1.7(b) of the Tribunal’s Rules of Procedure states that in order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may add a party. Tribunal jurisprudence has articulated the following factors with respect to adding a respondent:

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

See Smyth v. Toronto Police Services, 2009 HRTO 1513

7Factors 1 and 3 are relevant for the purposes of analyzing this Request. The first factor has been held to involve a low threshold - the party making the request merely needs to show an appearance or semblance of a violation by the proposed respondent of the applicant's rights under the Code. The third factor considers whether the addition of the proposed respondent as a party would cause substantial prejudice to that party’s ability to make full answer and defense that cannot be alleviated by procedural orders of the Tribunal. See Marchese v. Fortinos, 2009 HRTO 25.

8Having reviewed the Application, all the Responses, and the submissions filed by Dendres, it appears that the applicant was employed by McBoyco at the McDonalds Brock location from August 2003 to April 2009. While McBoyco sold its assests to Dendres in late March 2009, the transaction did not close until April 30, 2009. McBoyco indicates that Dendres acquired the stores as “going concerns”, including intact staff. The applicant was provided notice of termination on March 20, 2009 by McBoyco and the termination was effective April 24, 2009. The applicant believes that she was the only employee dismissed at this time and she believes that her employment was terminated because of her age. The applicant alleges that she later attempted to secure re-employment when she approached and spoke to Dendres’ store manager, respondent Matt Staples. The applicant alleges that respondent Staples refused her re-employment because of her age. The applicant further alleges that she believes respondent Staples provided negative employment references to prospective employers because of her age.

9Based on the above and without deciding the issues, it appears that there are facts alleged which, if proven, could give rise to liability under the Code. The applicant clearly feels that she was refused employment by Dendres on the basis of a discriminatory ground. The applicant also alleges that Dendres’ store manager, respondent Staples, has discriminated against her by providing negative employment references based on discriminatory notions. I find that these alleged facts, if proven, could support a finding that either or both Dendres or respondent Stables violated the applicant’s rights.

10In considering whether it would be fair, in all the circumstances, to add the Dendres, I note that Dendres has been informed of the Application throughout the Tribunal’s process and that Dendres made no submissions with respect to prejudice. Furthermore, the Application is still in the early stages of the process – no mediation has occurred and no hearing has been scheduled. As such, I find that no prejudice exists such that it would be unfair to require Dendres to participate in the proceeding as a respondent.

11Accordingly, the Tribunal makes the followings Orders:

(i) Dendres Corporation is added as a respondent to this Application and the style of cause is amended to reflect the same. Dendres Corporation is directed to file a full Response (Form 2) within 35 days of the date of this Interim Decision;

(ii) Other parties may file a Reply to Dendres’ Response within 14 days of receipt of the Response;

(iii) The Application will not proceed against McDonald’s (Brock Location) and the style of cause is amended to reflect the same.

12I am not seized of this matter.