Gonder v. Serco Canada Inc., 2014 HRTO 651

Human Rights Tribunal of Ontario

B E T W E E N:

Christopher Gonder

Applicant

-and-

Serco Canada Inc., Plenary Group (Canada) Ltd. and Ken McMillan

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 7, 2014

Citation: 2014 HRTO 651

Indexed as: Gonder v. Serco Canada Inc.

WRITTEN SUBMISSIONS

Christopher Gonder, Applicant

Self-represented

Serco Canada Inc., Plenary Group (Canada) Ltd. and Ken McMillan, Respondents

Carolyn Johnston, Counsel

Introduction

1This Interim Decision addresses the request filed by Plenary Group (Canada) Ltd. that the Tribunal remove it as a respondent to the Application.

2By Application filed on February 24, 2014, the applicant alleged that the respondents discriminated against him because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleged that the respondents breached the Code when he failed a driver’s examination on February 10, 2014. The applicant submitted that the respondents failed to reasonably accommodate his disability during this first driver’s exam. The applicant passed his second driver’s examination three weeks later, on February 21, 2014.

3Plenary Group (Canada) Ltd. (“Plenary”) has requested that the Tribunal remove it as a respondent on the basis that the applicant has not made any allegations that could support a finding that Plenary violated the Code. Plenary submitted that Serco Canada Inc. is vicariously liable for any violations of the Code by the personal respondent, the examiner for the applicant’s driver’s exam. The applicant submitted that Plenary should not be removed as a respondent. He asserted that Plenary is part of a consortium that has subcontracted with Serco Canada Inc. to deliver driver examination services on behalf of the Ministry of Transportation of Ontario.

4I am not prepared to find that there is a basis for the dismissal of the Application against Plenary at this preliminary stage. In similar situations that involve franchisor/franchisee relationships, the Tribunal has consistently declined to dismiss Applications against franchisors at a preliminary stage. See, for example, Philip v. Giant Tiger Stores, 2009 HRTO 1227; Wozenilek v. McDonald’s Restaurants of Canada, 2010 HRTO 1120 and Atkinson v. Three Degrees Restaurant, 2010 HRTO 821. In my view, the same analysis applies to the contractor/sub-contractor relationship in this case. The applicant appears not only to be alleging that the personal respondent failed to accommodate his disability but that the respondents’ policies and practices relating to accommodation are inadequate. At this early stage, the Tribunal does not have sufficient information about the corporate relationship between Plenary and Serco Canada Inc. to determine whether there is any basis on which the Tribunal could find that Plenary breached the Code in this case.

Order

5For the reasons set out above, Plenary’s request that the Tribunal remove it as a respondent is dismissed. This finding is made without prejudice to Plenary’s right to renew its request at a later date once the Tribunal has the benefit of having evidence before it in regards to the applicant’s allegations and the corporate relationship between Plenary and Serco Canada Inc.

6I am not seized.