Virgin Elgin v. Bagel World, 2013 HRTO 996

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: June 6, 2013 Citation: 2013 HRTO 996 Indexed as: Elgin v. Bagel World

WRITTEN SUBMISSIONS

Virgin Elgin, Applicant ) Self-represented Bagel World, Respondent ) Kevin D. Sherkin, Counsel

1The applicant filed this 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.

3Counsel for the franchisor of the Bagel World franchise business has advised the Tribunal that the Thornhill franchise location was owned and operated by the franchisee numbered company 2112412 Ontario Inc., operating as “Bagel World Thornhill”, and that this company ceased operation in June 2011. Counsel for the franchisor has clarified that 2130988 Ontario Inc. owns the Bagel World trademark.

4The applicant subsequently confirmed her intention to proceed as against the following respondents: 1.) 2112412 Ontario Inc. operating as Bagel World Thornhill; 2.) the franchisor 2130988 OntarioInc.; 3.) the manager/owner named Adam.

5The franchisor subsequently requested further clarification with respect to the standing of the parties.

DIRECTIONS

6The Tribunal directs that this Application will be proceed to a one day hearing.

Allegations Against Adam

7The applicant has been unable to provide the full name of the manager/owner Adam and the franchisor indicates that it does not have the particulars of Adam’s identity because the franchisor does not operate any of the stores.

8Previous Case Assessment Directions have noted that the Tribunal will not deal with an application in respect of a respondent who cannot be contacted through the information provided by the applicant.

9As such, the Tribunal will not proceed with this Application as against Adam.

Allegations against 2112412 Ontario Inc. operating as Bagel World Thornhill

10Pursuant to a Case Assessment Direction dated March 21, 2013, the Tribunal delivered the Application and the contents of the Tribunal’s file to 2112412 Ontario Inc. operating as Bagel World Thornhill and directed that this respondent file a Response (Form 2).

11The Case Assessment Direction expressly stated that if no Response was received by the required deadline the Tribunal may proceed without further notice to this respondent and take any or all steps as set out in Rule 5.5, including deeming the respondent to have waived all rights with respect to further notice or participating in the proceeding.

12The CAD and other materials from the Tribunal’s file in this matter were sent to 2112412 Ontario Inc. on March 21, 2013 by mail and courier. The Tribunal’s package was not returned to the as undeliverable.

13In these circumstances, except for delivering this Interim Decision, the Tribunal will no longer provide further notice to 2112412 Ontario Inc. operating as Bagel World Thornhill.

Allegations Against the Franchisor 2130988 Ontario Inc.

14The franchisor requests that the Application be dismissed as the applicant’s concerns do not relate to the franchisor.

15The Tribunal notes that the franchisor’s arguments for dismissal can be addressed before the adjudicator at the one day hearing. The Tribunal has consistently declined to dismiss applications against franchisors at a preliminary stage. The Tribunal draws the parties’ attention to Tribunal jurisprudence which provides that the question of a franchisor’s liability should be determined following evidence and argument at the hearing: 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. Subway 2185559 Ontario Inc., 2011 HRTO 1575.

Summary of Directions

16The Tribunal orders as follows:

i. The Application will not proceed as against Adam;

ii. The Tribunal will schedule a one day hearing;

iii. A copy of this Interim Decision will be delivered to 2112412 Ontario Inc., operating as Bagel World Thornhill;

iv. Unless 2112412 Ontario Inc. operating as Bagel World Thornhill indicates an intention to participate in the Tribunal process and files a Response, the Tribunal will suspend all further notice to it; and

v. The Tribunal may issue further directions with respect to any issues and/or may schedule future steps accordingly.

17I am not seized of this matter.