HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Charlott Scott
Applicant
-and-
1846827 Ontario Inc., Wimpy’s Diner and Karl Menezes
Respondents
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Scott v. 1846827 Ontario Inc.
APPEARANCES
Charlott Scott, Applicant
Ayoob Khan, Representative
Wimpy’s Diner, Respondents
Andy Seretis, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex, including sexual harassment, and sexual solicitation or advances. This Interim Decision addresses the respondent Wimpy’s Diner’s (“Wimpy’s”) request to be removed as a respondent in these proceedings.
2The applicant alleges that she was subject to sexual harassment and sexual solicitation by the individual respondent while she was employed by the respondent 1846827 Ontario Inc., which carried on business as a Wimpy’s Diner.
3In its Response, Wimpy’s submitted that the Application should be dismissed as against it because Wimpy’s is a franchisor and therefore was not the applicant’s employer and did not exercise day-to-day control over 1846827 Ontario Inc., the franchisee.
Decision
4Wimpy’s request is denied. The Tribunal has consistently declined to dismiss Applications against franchisors at a preliminary stage. In my view, whether Wimpy’s could be found liable in the circumstances of this Application requires a hearing, as the Tribunal stated in Philip v. Giant Tiger Stores, 2009 HRTO:
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 S. H. v. Subway 2185559 Ontario Inc., 2011 HRTO 1575, Atkinson v. Three Degrees Restaurant, 2010 HRTO 821 and Wozenilek v. McDonald’s Restaurants of Canada, 2010 HRTO 1120
Order
5The request to dismiss the Application as against Wimpy’s Diner is denied
Dated at Toronto, this 27th day of March, 2013.
”signed by”
Douglas Sanderson
Vice-chair