HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Virgin Elgin

Applicant

-and-

Bagel World

Respondent

INTERIM DECISION

Adjudicator: Ena Chadha

Date: May 28, 2012

Citation: 2012 HRTO 1061

Indexed as: Elgin v. Bagel world

WRITTEN SUBMISSIONS

Virgin Elgin, Applicant ) Self-represented

Bagel World, Respondent ) Kevin D. Sherkin, Counsel

BACKGROUND

1The applicant filed an Application on January 17, 2011 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services, goods and facilities on the basis of race, colour, ethnic origin and sex.

2The Application was initially filed only as against Bagel World. The applicant’s narrative alleges that she was not permitted to be seated and have her coffee in a Bagel World restaurant located on Disera Drive in Thornhill. The applicant alleges that the owner/manager, who she believes is named Adam, refused to address her concerns. The applicant also alleges that she attempted to file a complaint with head office; however, the individual she spoke with did not follow up on her call and concerns.

3On October 17, 2011, counsel for Bagel World, the franchisor, wrote to the Tribunal and advised that the Thornhill franchise location of Bagel World was owned and operated by the franchisee numbered company 2112412 Ontario Inc., operating as Bagel World Thornhill, and that this company ceased operating in June 2011. Counsel for Bagel World sought clarification as to who is the respondent that the Application is proceeding against in order to determine who should be responding.

4On October 17, 2011, counsel for Bagel World, (“Bagel World” or “the franchisor”), filed a Request for an Order During Proceedings (“Request”) asking that the Tribunal require the applicant to properly name the corporate party operating at the disclosed location. The Request also sought an extension of time, presumably for the purposes of filing a Response.

5On December 21, 2011, the applicant filed a response to the Request. The response indicated that the applicant seeks to proceed against 27099B Ontario Inc. operating as Bagel World Thornhill; Bagel World, as represented by above-noted counsel; and Adam. In addition, the applicant requested the full name of Adam, the owner. The applicant indicated that she does not have the owner’s last name and that Bagel World should provide the name of the owner.

CASE ASSESSMENT DIRECTION

6By way of Case Assessment Direction (“CAD”) dated March 9, 2012, the Tribunal stated that it required clarification with respect to the connection and/or relationship, if any, between numbered company 2112412 Ontario Inc., operating as Bagel World Thornhill, as identified by the franchisor, and 27099B Ontario Inc., operating as Bagel World Thornhill, the respondent as identified by the applicant. The Tribunal noted that it is unclear whether these are the same or separate entities.

7The CAD noted that, in accordance with Rule 6.6(b) of the Tribunal’s Rules of Procedure (“Rules”), the Tribunal will not deal with an application in respect of a respondent who cannot be contacted at the contact information provided by the applicant.

8The Tribunal stated that, while the Tribunal forwards completed applications to respondents, it is the responsibility of the applicant to provide accurate contact information and the Tribunal relies on applicants to provide a correct address for respondents named in their applications. Generally, in such cases, the applicant will be required to explain what efforts were undertaken to find and verify a current address for the respondent and explain why this contact information is believed to be the complete, accurate and the most recent address for the respondent. See Guild v. Kyle-Jansen, 2008 HRTO 347. The Tribunal also noted Rule 5.3 states that the Tribunal may decide not to deal with an Application that is not filed in compliance with the Tribunal’s Rules.

9The CAD issued the following directions:

• Within 14 days of the date of the CAD, the respondent franchisor Bagel World was required to provide the applicant and the Tribunal in writing with the full name and last known contact information for Adam;

• Within 35 days of the date of the CAD, the respondent franchisor Bagel World was required to file a Response. In its Response, Bagel World is required to file submissions with respect to any information it has regarding the connection and/or relationship, if any, between numbered company 2112412 Ontario Inc., operating as Bagel World Thornhill, and 27099B Ontario Inc. operating as Bagel World Thornhill; and

• No later than 14 days after the Response was sent to the applicant, the applicant was required to file with the Tribunal and deliver to the respondent a Reply. In her Reply, the applicant is required to provide any information she has as to the connection and/or relationship, if any, between numbered company 2112412 Ontario Inc., operating as Bagel World Thornhill, as identified by the franchisor, and 27099B Ontario Inc. operating as Bagel World Thornhill, the respondent she identified in her response to the Request.

DECISION

10As of the date of this Interim Decision, Bagel World has not yet filed a Response (Form 2) as required by the CAD.

11Although Bagel World did not file a Response (Form 2), on March 19, 2012, counsel for the franchisor Bagel World, wrote to the Tribunal and advised that, since the franchisor did not operate the store, it has no knowledge of the identity of Adam. With respect to the applicant’s position that she intends to proceed against 27099B Ontario Inc., counsel indicated there is no such corporation and, in fact, the number 27099B is counsel’s Law Society of Upper Canada number.

12The Tribunal notes that the Application (Form 1) filed with the Tribunal on January 17, 2011 commenced a legal proceeding.

13Failure to file a Form 2 response may lead to orders against respondents without their participation. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code.

14As such, the Tribunal draws the respondent franchisor Bagel World’s attention to its obligation to file a Response (Form 2) in accordance with the Tribunal’s Rules. The Tribunal notes that Rule 5.5 provides:

5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:

a) deem the Respondent to have accepted all of the allegations in the Application;

b) proceed to deal with the Application without further notice to the Respondent;

c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding;

d) decide the matter based only on the material before the Tribunal.

15If the respondent franchisor Bagel World intends to participate in this proceeding, it shall file a Response (Form 2) with the Tribunal, copied to the applicant, within 35 days of the date of this Interim Decision.

16No later than 14 days after the Response (Form 2) was sent to the applicant, the applicant is required to file with the Tribunal and deliver to the respondent a Reply (Form 3). In her Reply (Form 3), the applicant must indicate if she intends to proceed with the Application against any other entity or individual. If so, the applicant must provide the current, accurate and complete contact information for the respondent entity or individual and indicate what steps she has taken to confirm that the contact information is current, complete and accurate.

17I reiterate that Rule 6.6(b) provides that the Tribunal will not deal with an application in respect of a respondent who cannot be contacted at the contact information provided by the applicant. If the applicant indicates that she wishes to proceed as against the franchisee numbered company 2112412 Ontario Inc., operating as Bagel World Thornhill, and/or the individual identified as Adam, the applicant will be required to explain what efforts were undertaken to find and verify a current address for these respondents and explain why she believes the contact information she has provided is the complete, accurate and the most recent address for these respondents.

ORDERS

18The Tribunal orders as follows:

i. The respondent franchisor Bagel World is required to file a Response (Form 2) with the Tribunal, copied to the applicant, within 35 days of the date of this Interim Decision; and

ii. No later than 14 days after the Response (Form 2) was sent to the applicant, the applicant is required to file with the Tribunal and deliver to the respondent a Reply (Form 3). In her Reply (Form 3), the applicant is required to confirm whether or not she wishes to proceed with the Application against any other entity or individual and, if so, provide the current contact information for these respondents and explain what steps she has taken to confirm that the contact information is current, complete and accurate.

19I am not seized of this matter.