Wozenilek v. Yum! Restaurants International (Canada) LP, 2012 HRTO 1840

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Wozenilek

Applicant

-and-

Yum! Restaurants International (Canada) LP and Soul Restaurants Canada Inc.

Respondents

Interim decision

Adjudicator: Sheri D. Price

Date: September 26, 2012

Citation: 2012 HRTO 1840

Indexed as: Wozenilek v. Yum! Restaurants International (Canada) LP

1In this Application under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), the applicant, who uses a wheelchair, alleges, among other things, that he was unable to eat at a particular restaurant because it did not have an automatic door opener and that this constituted discrimination against him with respect to goods, services and facilities because of his disability.

2The Application was filed against Yum! Restaurants International (Canada) LP (“Yum”), whom the applicant alleges owns the restaurant in question, and Soul Restaurants Canada Inc. (“Soul”), whom the applicant alleges manages the restaurant pursuant to a franchise agreement with Yum.

3This Interim Decision addresses Yum’s Request for an Order during Proceedings, removing it as a respondent to the Application (“the Request”). In its Request, Yum submits that it is a separate entity from Soul, with discreet management and operations, and asserts that “the issues in the application wholly relate to the statement and actions of Soul.”

4The applicant opposes the Request. He submits that, as the owner of the subject restaurant, Yum is a proper respondent to the Application.

5It is not clear to me, at this juncture, whether Yum could be determined to be liable for the discrimination allegedly experienced by the applicant due to the absence of an automatic door opener at the restaurant in question. Although Yum asserts that the issues in the Application relate wholly to the conduct of Soul, it does not provide a factual basis for this assertion. In particular, Yum does not set out the nature of the legal relationship between itself and the franchisee; or provide any information regarding the nature and extent of its input and/or control, if any, with respect to whether an automatic door opener was or is installed at the subject restaurant.

6In the circumstances, I agree with the applicant that it is not appropriate to remove Yum as a respondent to the Application at this stage of the proceeding. I would note that this conclusion is in keeping with the Tribunal’s general approach to requests to remove a franchisor at a preliminary stage of the proceeding: Philip v. Giant Tiger Stores, 2009 HRTO 1227; Atkinson v. Three Degrees Restaurant, 2010 HRTO 821; Wozenilek v. McDonald’s Restaurants of Canada, 2010 HRTO 1120; and S.H. v. 2185559 Ontario, 2012 HRTO 266.

7The Request that Yum be removed as a respondent to the Application is denied. However, this does not preclude Yum from raising this issue again at a later stage of the proceeding.

8In the meantime, I note that Yum has not yet filed a Response to the Application, as directed in the Tribunal’s August 3, 2012 Notice of Application and as required by the Tribunal’s Rules of Procedure. Yum is hereby directed to file its Response to the Application forthwith and in any event within 14 days of the date of this Interim Decision. The parties are reminded that failure to file a Response as required by the Tribunal’s Rules of Procedure may lead to the Tribunal taking any or all of the steps outlined in Rule 5.5 of the Tribunal’s Rules of Procedure.

ORDER

9In sum, I make the following orders/directions:

a. Yum! Restaurants International (Canada) LP’s request to be removed as a respondent to the Application is denied.

b. This Interim Decision does not preclude Yum! Restaurants International (Canada) LP from seeking to be removed as a party at a later stage in the proceeding

c. Yum! Restaurants International (Canada) LP is directed to file its Response to the Application within 14 days of the date of this Interim Decision, failing which the Tribunal may take any or all of the steps outlined in Rule 5 of the Tribunal’s Rules of Procedure.

10I am not seized.