Gordon Atkinson v. Three Degrees Restaurant Corporation and The TDL Group Corporation, 2010 HRTO 821

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gordon Atkinson Applicant

-and-

Three Degrees Restaurant Corporation and The TDL Group Corporation Respondents

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: April 14, 2010 Citation: 2010 HRTO 821 Indexed as: Atkinson v. Three Degrees Restaurant

WRITTEN SUBMISSIONS BY

Gordon Atkinson, Applicant ) Mandy Wesley, Counsel The TDL Group Corporation, Respondent ) James D. Heeney, Counsel

1In a Case Assessment Direction dated February 3, 2010, I requested written submissions from the parties as to whether The TDL Group Corporation (“TDL”) should still be named as a respondent. I have now received and reviewed those submissions.

2TDL is the franchisor and Three Degrees Restaurant Corporation (“Three Degrees”) is the franchisee of the Tim Hortons store where the alleged discrimination occurred.

3The applicant submits that TDL should remain a named respondent because, as franchisor, it had sufficient control over the day-to-day operations and employees of Three Degrees to be deemed an employer. He further submits that to remove TDL as a respondent at this preliminary stage of the proceeding would be premature and contrary to the position taken by the Tribunal in Philip v. Giant Tiger Stores, 2009 HRTO 1227, where it was held that the question of the franchisor’s liability was properly determined at a hearing after evidence and arguments were given.

4TDL submits that it is incorrectly named as a respondent, but withdraws its request for early dismissal of the Application against it.

5In my light of the parties’ submissions, TDL shall remain as a named respondent. I also agree with the Tribunal’s analysis in Philip, supra, at para. 3:

It may be that the franchise agreement or [the franchisor’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.

6I am not seized of this matter.