Herrera-Quispe v. 2117392 Ontario Inc., 2015 HRTO 152

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Margareta Herrera-Quispe Applicant

-and-

2117392 Ontario Inc., William Farmer, Brandon Farmer and The TDL Group Corp. Respondents

INTERIM DECISION

Adjudicator: Mark Hart Date: February 2, 2015 Citation: 2015 HRTO 152 Indexed as: Herrera-Quispe v. 2117392 Ontario Inc.

WRITTEN SUBMISSIONS

Margareta Herrera-Quispe, Applicant Self-represented

2117392 Ontario Inc., William Farmer and Brandon Farmer, Respondents Tanya Walker, Counsel

The TDL Group Corp., Respondent James Heeney, Counsel

1This is an Application dated December 2, 2013 alleging sexual solicitation or advances with respect to services contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The purpose of this Interim Decision is to address the following issues: (1) the request by the respondent The TDL Group Corp. ("TDL") for removal as a party respondent and dismissal of the Application against it; (2) the request by all respondents that certain allegations arising from events that are alleged to have occurred in 2009 be dismissed for delay; and (3) the applicant's request to amend her Application to allege reprisal.

3Before proceeding to address those issues, I want to clarify the identities of the respondents in this matter. The applicant is self-represented and her Application form as completed is not clear in this respect. In identifying the respondents to her Application, the applicant identified "Tim Hortons owner Bill (William) Farmers" as the organization respondent but then identified as the contact person for the organization "James Tracy, Tim Hortons, Manager Head Office". Brandon Farmers was identified as a personal respondent. In my view, it is unreasonable to expect the applicant as a self-represented member of the public to appreciate the intricacies of the corporate relationship and the distinction between TDL as the franchisor and 2117392 Ontario Inc. as the franchisee. On a fair reading of the Application, it seems to me that both corporations are identified as respondents to this Application, and that William Farmer, who is alleged to have been directly responsible for the actions at issue in this proceeding, is identified as a personal respondent. The title of proceeding has been amended accordingly. Unless the Tribunal hears otherwise from Ms. Walker, the Tribunal will presume that the Response was filed on behalf of 2117392 Ontario Inc., William Farmer and Brandon Farmer, and that Ms. Walker represents all three of these respondents.

REQUEST FOR REMOVAL OF TDL

4TDL requests removal as a party respondent and dismissal of the Application as against it on the basis that it is the franchisor of the Tim Horton's restaurant at issue and is not responsible for the day-to-day operations of that franchise. Both of those things may be true and it may be that TDL is not directly liable for the alleged actions of William Farmer or Brandon Farmer. However, the gist of the applicant's allegations as against TDL are that she reported the manner in which she alleges she had been treated by William Farmer to TDL and that TDL failed to take appropriate action to address her complaints.

5The role of TDL as a franchisor in addressing complaints by customers as against its franchisees is unclear to me, and in my view needs to be the subject of evidence at a hearing. The applicant alleges that in 2009, when it is alleged that William Farmer made sexual solicitations or advances towards her, she contacted the offices of TDL and was told that either the franchise manager or someone from "customer care" would call her, which she says never occurred. The applicant states that following the further alleged incidents in 2013, she contacted TDL again and that it was on this occasion that she spoke to Mr. Tracy. Without evidence, it is unclear to me what representations may be made by TDL to the general public regarding its role in dealing with public complaints against its franchisees, or what role if any TDL may play in responding to such complaints.

6I note that the Workplace Harassment Policy attached to TDL's Response indicates that one of the steps a Team Member should take if they believe they are being harassed or observe a fellow Team Member being harassed is to call the Human Resources Department at TDL directly. I further note that, near the end of this policy, it is stated that: "At any time, Team Members who wish to simply discuss a problem with a TDL Human Resources representative without formalizing the matter should feel free to do so". So it appears that TDL plays some role, at least, in addressing harassment complaints made by Team Members. The policy does not specify what if any role TDL may play in relation to discrimination or harassment complaints by members of the public (referred to in the policy as Guests).

7In my view, it would be premature to remove TDL as a party respondent to this proceeding or to dismiss the Application against TDL without hearing evidence on these points. As a result, TDL's request is denied.

REQUEST FOR DISMISSAL OF 2009 ALLEGATIONS FOR DELAY

8The applicant alleges that she was subjected to sexual solicitations or advances by William Farmer in 2009, which she says she rejected. She states that she stayed away from the restaurant for a lengthy period of time, returning again for the first time in August 2013. She alleges that in August 2013 and again in November 2013, she was yelled at by William Farmer and told to leave the premises.

9The respondents take the position that the allegations relating to the 2009 events should be dismissed for delay. Section 34(1) of the Code states that an application to this Tribunal is to be made within one year of the underlying incident or, if there is a series of incidents, within one year of the last incident in the series. Clearly, the allegations from 2013 are well within one year of when the Application was filed. The issue for me to determine is whether the events from 2009 form part of a "series of incidents" that extends to and includes the 2013 incidents.

10This Tribunal has held that a gap of more than one year between alleged incidents generally will be considered to interrupt the series: see for example Savage v. Toronto Transit Commission, 2010 HRTO 1360; Chintaman v. Toronto District School Board, 2009 HRTO 1225. This should not be regarded as a rigid rule: Henry v. Waterloo (Regional Municipality), 2011 HRTO 1927. However, where there is a significant gap between alleged incidents, this Tribunal nonetheless will find that the series is broken: Christie v. Trent University, 2013 HRTO 952.

11In the instant case, there is a four year gap between the allegations that date from 2009 and the 2013 incidents. In my view, this is a significant enough gap between these alleged incidents in order to prevent them from being regarded as forming a "series of incidents" within the meaning of s. 34(1)(b) of the Code.

12As a result, I next need to consider whether the delay in raising the 2009 allegations was incurred in good faith within the meaning of s. 34(2) of the Code. The onus is on an applicant under s. 34(2) of the Code to satisfy this Tribunal that the delay in filing an application was incurred in good faith. This requires that the applicant provide some reasonable explanation for the delay: Imrie-Howlett v. Peel District School Board, 2009 HRTO 1339. In Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, this Tribunal held that an applicant is required to show something more than simply an absence of bad faith. In Miller, above, it was held that the one-year time limit is consistent with the policy objective that human rights claims should be dealt with expeditiously, and requires an applicant to act with due diligence when they seek to pursue a human rights claim.

13The applicant has not provided a reasonable explanation for her delay in raising the 2009 allegations. As a result, I find that the applicant has not satisfied the Tribunal that her delay in raising these allegations was incurred in good faith, as that term has been interpreted by this Tribunal. Given this finding, I do not need to consider whether any prejudice would result to the respondents as a result of the delay.

14In light of this finding, my ruling is that the applicant cannot rely upon her allegations from 2009 as a basis to support a separate or independent violation of the Code arising from these alleged events. However, in relation to the 2013 events, the applicant is relying upon s. 7(3) of the Code, which deals with sexual solicitations or advances. Section 7(3)(b) of the Code protects a person from "a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person". The gist of the applicant's complaint is that, because she rejected the sexual solicitations or advances of William Farmer in 2009, she was yelled at by him and ordered to leave the restaurant premises in 2013. The issue for this Tribunal to determine is whether the events from 2013 violate s. 7(3)(b) of the Code. The foundational material fact that an applicant needs to establish in order to invoke the protection of s. 7(3)(b) is that she rejected a sexual solicitation or advance made by the person who is alleged to have reprised against her. As a result, while I have ruled that the events from 2009 are dismissed for delay in terms of forming the basis for a Code violation in and of themselves, these events are nonetheless relevant foundational material facts in support of the allegation of a Code violation arising from the 2013 events. Accordingly, I will not strike the references to the 2009 events from the Application or Reply.

APPLICANT'S REQUEST TO AMEND

15Finally, the applicant seeks to amend her complaint to add allegations regarding material relating to this proceeding being left outside her apartment door and regarding encounters that she says she has had with the personal respondents and/or their employees in public places.

16It may be that material was delivered by one of the respondents to the applicant and conveyed to the applicant's apartment door. In any legal proceeding, materials need to be served on the other parties and are to be delivered to the address shown on the Application or Response. It does not appear that the applicant has an e-mail address or a fax and she was not represented by counsel at that time. In these circumstances, materials need to be served on her under the Tribunal's Rules either by hand, by courier or by regular mail. This necessitates the arrival of such materials at the applicant's apartment. This is entirely in accordance with the Tribunal's Rules and the procedures in respect of any legal proceeding, and does not constitute reprisal.

17The applicant also states that she has encountered the children of William Farmer and one of his managers when she attends a local food court. Specifically with regard to the manager, she states that she observed him on the second floor above the food court and that he was on his cell phone. The applicant states that she thinks the manager was taking pictures of her, but does not indicate the basis for this belief. While I appreciate that such encounters may be uncomfortable for the applicant, this Tribunal cannot control the comings and goings of parties in public places. There is no basis in these allegations to support an allegation of reprisal under the Code.

18Accordingly, the applicant's request to amend her Application is denied.

ORDER

19For the foregoing reasons, I hereby make the following order:

a. The respondent TDL's request for removal as a party respondent and dismissal of the Application as against TDL is denied;

b. The allegations regarding the events from 2009 are dismissed for delay, but not struck from the Application or Reply as they are relevant foundational material facts in relation to the 2013 allegations; and

c. The applicant's request to amend her Application is denied.