HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E. H. By Her Next Friend B.C.
Applicant
-and-
2185559 Ontario Inc. and Subway Franchise Systems of Canada Ltd.
Respondents
interim decision
Adjudicator: Naomi Overend
Indexed as: E.H. v. 2185559 Ontario
WRITTEN SUBMISSIONS
E.H. by her next friend B.C., Applicant ) Michael Caruso, Counsel
2185559 Ontario Inc., Respondent ) Paul Burstein, Counsel
Subway Franchise Systems of Canada Ltd, ) Peter Dillon, Counsel
Respondent )
1This Interim Decision addresses a Request for an Order During Proceedings (“RFOP”) to remove Subway Franchise Systems of Canada (the “franchisor”) as a respondent to this Application, which was filed under s. 34 of the Human Rights Code R.S.O. 1990, c. H. 19 as amended (the “Code”). It also briefly deals with the issue of consolidation of this Application with Application 2011-08091-I.
Request to Remove
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, 2185559 Ontario Inc. (the “franchisee”).
3The franchisee had been identified in the Application as Subway 2185559 Ontario Inc., but counsel for the franchisor has recently advised that the proper name is 2185559 Ontario Inc. As none of the parties have objected to this clarification, the style of cause has been amended accordingly.
4Initially, the applicant had identified the franchisor in the Application as “Subway Franchises” instead of its proper name. The contact person was identified as “Dan Burns,” who identified himself in the Response he filed as a Development Agent for the Subway Brand. Mr. Burns advised that the proper name of the franchisor was Subway Franchise Systems of Canada, not Subway Franchises, and the style of cause was amended accordingly in August 2011.
5In addition to purporting to file a Response on behalf of the franchisor, Mr. Burns also filed an RFOP to have the franchisor removed as a respondent to the Application. The Tribunal issued an Interim Decision in this matter, 2011 HRTO 1574, on August 23, 2011 denying the Request. The Tribunal stated the following in its Interim Decision:
[5] Subway 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.
[6] The 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.
[7] Subway Franchise shall remain as a named respondent.
6In the current RFOP to remove itself as a named respondent, the franchisor states that Mr. Burns did not completely identify the “legal relationship” between himself and the franchisor, and that any submissions he made were not properly made on the franchisor’s behalf. That being the case, the Tribunal is prepared to re-visit this issue.
7Despite the fact that the franchisor takes the position that the Tribunal should re-determine this issue, it fails to set out the nature of the legal relationship between itself and the franchisee. It has provided no factual basis setting out why it should be removed as a respondent to these proceedings other than submitting that the applicant may not have intended to name it as a party respondent: that it may have been mistakenly added by “administrative fiat by a staff member at the Tribunal.”
8I am satisfied that the applicant intended to name two respondents in her Application. I am also satisfied that she intended to name the franchisor, although it seems clear that she incorrectly named it. I am mindful of the fact that the applicant was unrepresented at the time she filed her Application. I have also taken into account the fact that her (now) counsel has reiterated in his submissions on her behalf that she is opposed to the removal of the franchisor at this time.
9That being the case, there is no basis for departing from the earlier reasoning of the Tribunal in this matter with respect to the prematurity of removing the franchisor at this stage. The franchisor’s Request to remove itself as a named respondent is denied. The franchisor is not precluded from raising this issue again at the hearing stage of the proceeding.
Consolidation
10The applicant filed a second Application (2011-08091-I) on behalf of another daughter involving the same respondents and the same issues. Given the clear overlap in issues, the parties are directed to provide written submissions on consolidating the two files by two weeks from the date of this Interim Decision. In the meantime, the matter will proceed to mediation with Application 2011-08091-I.
ORDER
11In sum, I made the following orders/directions:
a. Subway Franchise Systems of Canada’s Request to remove itself as a party respondent is denied;
b. Subway Franchise Systems of Canada can raise this issue before the adjudicator assigned to hear this matter;
c. The parties are directed to provide written submissions on consolidating this Application with Application 2011-08091-I within two weeks of the date of this Interim Decision; and
d. This matter will proceed to mediation with Application 2011-08091-I.
12I am not seized.
Dated at Toronto, this 7th day of February, 2012.
”signed by”______________
Naomi Overend
Vice-chair