E. H. v. Subway 2185559 Ontario Inc., 2011 HRTO 1574

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E. H. By Her Next Friend B. C.

Applicant

-and-

Subway 2185559 Ontario Inc. and Subway Franchise Systems of Canada Ltd.

Respondents

interim decision

Adjudicator: Keith Brennenstuhl

Date: August 23, 2011

Citation: 2011 HRTO 1574

Indexed as: E. H. v. Subway 2185559 Ontario Inc.

1This Interim Decision addresses a Request for Order During Proceedings in an Application filed under s. 34 of the Human Rights Code R.S.O. 1990, c. H. 19 as amended (the “Code”) on February 11, 2011.

2The Application alleges discrimination in the area of employment on the basis of sex including sexual harassment and sexual solicitation as a result of events that allegedly took place at the Subway restaurant owned and operated by the respondent, Subway 2185559 Ontario Inc. (the “owner”).

3Pursuant to Rule 3.11.1 of the Tribunal’s Rules of Procedure the name of the applicant and the applicant’s Next Friend have been anonymized.

4The restaurant in question is operated by the owner pursuant to a franchise agreement with Subway Franchise Systems of Canada Ltd. (“Subway Franchise”).

5Subway Franchise seeks an order dismissing the Application as against it on the basis that the restaurant operates under an independent corporation pursuant to a franchise agreement and that Subway Franchise does not have any legal relationship with the employees of the restaurant.

6The Request is denied. It is not clear, at this juncture, whether Subway Franchise could be determined to be liable. This is a matter that should 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:

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.

See also Atkinson v. Three Degrees Restaurant, 2010 HRTO 821 and Wozenilek v. McDonald’s Restaurants of Canada, 2010 HRTO 1120.

7Subway Franchise shall remain as a named respondent.

8I am not seized.