Yang Zhao v. Pizza Nova Take Out Ltd., 2016 HRTO 1166

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yang Zhao Applicant

-and-

Pizza Nova Take Out Ltd. and Ryan Shorten Respondents

DECISION

Adjudicator: Brian Eyolfson Date: September 6, 2016 Citation: 2016 HRTO 1166 Indexed as: Zhao v. Pizza Nova Take Out Ltd.

APPEARANCES

Yang Zhao, Applicant Self-represented

Pizza Nova Take Out Ltd. and Ryan Shorten, Respondents Iain Peck and Tania Campisi, Counsel

Introduction

1This Application was filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 17, 2014, and alleges discrimination with respect to employment on the basis of ancestry, place of origin, ethnic origin and age. The Application names Pizza Nova Take Out Ltd. (“Pizza Nova”) and Ryan Shorten, Director of Operations, Pizza Nova, as respondents.

2The applicant entered into a Franchise Agreement with Pizza Nova in respect of Pizza Nova store #340 in Dundas, Ontario, on April 5, 2010. He was 24 years old at the time. In or around October 2013, the applicant sold the restaurant.

The applicant’s allegations

3In the Application, the applicant explains that he started studying in Ontario in 2006. The applicant and his parents and sister then immigrated to Canada from China in 2008, and the applicant acquired the Pizza Nova franchise in 2010. He alleges that his family was constantly harassed and threatened by Pizza Nova’s head office, and forced to sell their business. He alleges that they were forced to abandon their franchise, which was an important source of income, because of discrimination.

4The Application also includes the following allegations:

1. On June 14, 2012, Mr. Shorten said to the applicant, “Yang Zhao, you are too young, this job is not suitable for your and your father’s family. Our company doesn’t like you, you must quit!”

2. On September 6, 2012, the applicant was told by Mr. Shorten, “If you don’t sell the shop, I will take it, aren’t you scared?”

3. On March 12, 2013, their restaurant received a large order for the next day that was split into two orders. The larger of the two orders was routed to another Pizza Nova restaurant, shop #372, but the order was outside of that shop’s territory. The applicant believes it was done deliberately in order to pressure him and his family into selling their restaurant. When they called the respondents, the respondents said that they did that because their restaurant could not handle the order, but they absolutely could have handled the order.

4. On June 12, 2013, the applicant was told by Frank Macri, Director of Franchising, Pizza Nova, “You better sell the shop! Do you think I will help you renew the lease agreement? If you sell the shop now, you can still get some money back, otherwise you will get nothing back!”

5. The applicant believes that Pizza Nova’s head office blocked calls from customers within his and his family’s territory to lower their business levels. A customer on Frid Street who often ordered pizza delivery from them was suddenly not able to get pizza delivered. The customer was told that his address is outside of their delivery territory.

6. On July 17, 2013, the applicant was told by Debbie Dyck, District Manager, Pizza Nova, “Your father cannot understand English, he cannot work in the shop otherwise there will be a $500 penalty each time we find him working.”

7. On October 11, 2013, the applicant was told by Mr. Macri, “After you sell the shop, all your family members are not allowed to work at Pizza Nova, and nobody is allowed to stay on during the shop transfer, except you.”

5Elsewhere in the Application, the applicant alleges that the respondents used force, threatened and harassed him and his family to rush to sell the restaurant. He believes that he was subjected to discrimination because the restaurant was running in good condition and there is no other reason for what the respondents did.

6At the hearing, the applicant confirmed that he was not pursuing an earlier Request for an Order During Proceedings to add Ms. Dyck as a party to the proceedings.

The respondents’ Response

7In their Response to the Application, the respondents deny that they harassed and/or discriminated against the applicant in any form or manner. Their Response includes the following submissions:

1. The applicant materially breached the Franchise Agreement by failing to: keep the restaurant in a good, clean, wholesome manner; serve only those foods sold to the applicant by Pizza Nova; maintain sufficient supplies and food; ensure that quality products were being served to customers in accordance with Pizza Nova’s policies and procedures; have available to customers all Pizza Nova menu items; employ adequate personnel as to operate the restaurant at its maximum capacity and efficiency; cause employees to wear uniforms; cause employees to have a neat and clean appearance; render competent and courteous service to restaurant customers; discharge any unsatisfactory employees; and, advise Pizza Nova when he would be away for extended periods of time.

2. The applicant was advised on numerous occasions that he was materially in breach of the Franchise Agreement and was required to take immediate action.

3. The respondents received several complaints about the restaurant, particularly regarding customers being unable to communicate with staff in English and/or being unable to place orders. The respondents also received complaints regarding delivery drivers being unclean, and pizzas not having enough toppings.

4. In and around October 2011, the applicant advised Mr. Shorten that he was having some difficulty running his business with his father’s involvement.

5. The respondents offered the applicant further training, assistance and mentoring but despite their attempts to assist the applicant, he continued to breach the Franchise Agreement. It was therefore suggested by Pizza Nova that the applicant consider selling the restaurant.

6. On February 28, 2012, the applicant advised Pizza Nova in writing that he wished to sell the restaurant, and, in or around October 2013, the applicant sold the restaurant to an existing franchisee.

7. The respondents also deny that they did not like the applicant, that they rerouted calls from his restaurant and/or that they inappropriately split his orders with other franchisees. It is Pizza Nova’s practice to split large orders between franchisees to ensure that customers remain satisfied.

EVIDENCE

8The applicant testified at the hearing, and called his father, Zhi Liang Zhao, and mother, Jian Shi, as witnesses. The Tribunal permitted the applicant, who was self-represented, to call his father and mother as witnesses, although the applicant did not indicate prior to the hearing that he wished to call them as witnesses, nor did he provide witness statements for them. At the hearing, the applicant essentially submitted that his father and mother had relevant evidence to provide. He explained that he worked together with his father in the restaurant almost every day, so his father knew everything that happened in the restaurant, and his mother sometimes came to the shop to help out, which is when some of the incidents in the Application took place.

9On behalf of the respondents, the individual respondent, Mr. Shorten, testified at the hearing, and the respondents also called Debbie Dyck and Frank Macri as witnesses. Ms. Dyck resigned as a District Manager with Pizza Nova in June 2014, and received a summons to testify at the hearing. Mr. Macri retired as Pizza Nova’s Franchise Director in December 2014. The parties also provided the Tribunal with considerable documentary evidence.

10A Mandarin interpreter attended throughout the hearing and provided interpretation for the applicant and his father and mother. The relevant evidence of the parties and their witnesses is summarized below.

ANALYSIS AND DECISION

Relevant Code provisions

11Sections 5, 9 and 11 of the Code state, in part, as follows:

5. Every person has a right to equal treatment with respect to employment without discrimination because of… ancestry, place of origin… ethnic origin… age…

6. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

7. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminated because of such ground is not an infringement of a right.

(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements.

Credibility

12To the extent that some of my findings, as set out below, turn on my assessment of the credibility of the parties, I am guided by the principles set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, at paras. 356-357:

…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.

The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.

13I am also guided by factors considered by the Tribunal in Cugliari v. Clubine and Brunet, 2006 HRTO 7 at para. 26: the motives of the witnesses; the relationship of the witnesses to the parties; the internal consistency of their evidence; inconsistencies and contradictions in relation to other witnesses’ evidence; and, observations as to the manner in which the witnesses gave their evidence.

14I am also mindful of the Ontario Court of Appeal’s comments in R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 at p. 205, with respect to assessing the credibility and reliability of testimonial evidence:

Testimonial evidence can raise veracity and accuracy concerns. The former relate to the witness's sincerity, that is his or her willingness to speak the truth as the witness believes it to be. The latter concerns relate to the actual accuracy of the witness's testimony. The accuracy of a witness's testimony involves considerations of the witness's ability to accurately observe, recall and recount the events in issue. When one is concerned with a witness's veracity, one speaks of the witness's credibility. When one is concerned with the accuracy of a witness's testimony, one speaks of the reliability of that testimony. Obviously a witness whose evidence on a point is not credible cannot give reliable evidence on that point. The evidence of a credible, that is honest witness, may, however, still be unreliable.

Was the applicant subjected to discrimination on the basis of ancestry, place of origin, ethnic origin and/or age by the respondents?

Background

15Mr. Macri referred to a Franchise Agreement between Pizza Nova and the applicant, dated April 5, 2010, which was signed by the applicant and which Mr. Macri signed on behalf of Pizza Nova. Mr. Macri testified that he was a Pizza Nova franchisee himself when he was 25 years old.

16Mr. Macri testified that the applicant was provided with a Franchise Disclosure Document on January 25, 2010, which is provided to prospective franchisees. He first met the applicant two or three weeks prior to that when he interviewed him. Once accepted as a prospective franchisee, the applicant then went through a training process at Pizza Nova’s call and training centres, and was trained on, among other things, making pizzas, inventory and customer service. Mr. Macri testified that the applicant was not a “pizza maker”, which is not a prerequisite, but because of that the training took a little longer.

17Mr. Macri testified that the applicant’s father did not get any pizza making training, and he was not aware that the applicant’s father or mother would be involved in the business, but the applicant’s wife was at each of the interviews and was provided with some training.

18In cross-examination, the applicant’s father, Mr. Zhao, testified that the applicant went for training at Pizza Nova, but he did not go. When asked if the applicant trained him and how he learned to make pizza, Mr. Zhao testified that God taught him how to make pizza. When asked if the applicant ever trained him in procedures related to the storage of ingredients, he testified that he did not need training, and that he observed and was there every day.

19Ms. Dyck explained that, as District Manager with Pizza Nova, she had about 19 to 21 stores, all franchises, that she would ensure were following policies and procedures. She described herself as a liaison between head office and the franchisees, and testified that she felt that she worked for the franchisees, because without the franchisees she would not have a job and her goal was for them to succeed.

20In cross-examination, the applicant agreed, in light of Article 4 of the Franchise Agreement, that Pizza Nova provides services and assistance to restaurants, such as general advice and assistance, including the formulation and installation of general procedure and polices, and opening supervision and assistance. He agreed that Ms. Dyck came to his restaurant when he acquired it, but he testified that he could not say it was assistance. He described it as interference.

21Ms. Dyck and Mr. Macri referred to Article 5.01(c) of the Franchise Agreement between Pizza Nova and the applicant, which provides that the owner covenants and agrees to “comply with all operational rules established by the Company from time to time, and, without limiting the generality of the foregoing, to comply with the rules set out in Schedule ‘B’ annexed hereto”.

22Ms. Dyck also referred to Rule (a) in Schedule “B” which provides, among other things, that the owner shall: “operate the Restaurant in a clean, wholesome manner in compliance with prescribed standards of quality, service and cleanliness”; “comply with all business policies, practices and procedures imposed by the Company”; and, “serve at the Restaurant only those food and beverage products sold to the Owner by the Company and maintain the building, equipment and parking area in a good, clean, wholesome condition”. Ms. Dyck also referred to Rule (h) which provides that the owner shall “cause all of its employees while engaged in the operation of the Restaurant to: (I) wear uniforms…”; “(ii) present a neat and clean appearance; (iii) render competent and courteous service to Restaurant customers; and, (iv) discharge such unsatisfactory employees as may be requested by the company from time to time”.

23Mr. Macri referred to Rule (i) in Schedule “B” which provides, among other things, that the owner shall in the dispensing and sale of food products “(ii) use only those flavourings, garnishments and food and beverage ingredients sold to the Owner by the Company”, and “(iv) use only such other materials and supplies sold to the owner by the Company”. Mr. Macri testified that this rule is important because it helps Pizza Nova maintain quality of product. He also referred to Rule (n) which requires the owner to hire, train and employ staff, including delivery staff or services, and maintain sufficiently trained staff to be able to, under normal circumstances, prepare pick-up orders in ten minutes and ensure delivery orders are delivered no later than 35 minutes after receipt.

24Mr. Shorten and the respondents’ witnesses all referred to Article 6 of the Franchise Agreement which provides that a material breach of the agreement shall occur if, among other things, the owner defaults in the performance of any of the terms and conditions of the agreement, or fails to maintain and operate the restaurant in a good, clean and wholesome manner, and in compliance with prescribed standards. Ms. Dyck also referred to a Pizza Nova Operations Manual that she testified is given to all franchisees, and describes policies and procedures, including how to cook all products and everything about expected standards. In particular, she referred to sections in the Operations Manual addressing food safety and temperatures for hot and cold food, cleaning various areas and surfaces, store operation standards and standards and instructions on making pizzas, including “slice tracking” to ensure fresh product and maintain health standards.

25The applicant was referred to the Franchise Agreement he signed with Pizza Nova in cross-examination. He agreed that the Franchise Agreement requires that his company pay Pizza Nova a weekly fee of 6% of gross sales, plus 4% for advertising and that he also pay Pizza Nova for ingredients sold to him at cost. The applicant also agreed that he had to comply with the Rules and Regulations set out in Schedule “B” to the Franchise Agreement. He testified that he understood that, pursuant to Article 6 of the Franchise Agreement, it was a material breach of the agreement to not follow the Rules and Regulations. Mr. Macri testified, and the applicant also agreed, that there were options open to Pizza Nova if there was a material breach, including assessing 1% in liquidated damages per month until the breach is rectified, or terminating the Franchise Agreement. The applicant also agreed that he is the only officer and director of a numbered company that bought the Pizza Nova franchise for store #340, that he was his own boss and did not work for Pizza Nova, and that he could hire and fire.

26Mr. Zhao testified in cross-examination that “the money” was from him, that he was the real person controlling the company, and that he was not working for his son but working for his family. He also testified that it was impossible to fire him and he could not be dismissed. The applicant’s mother, Ms. Shi, on the other hand, testified in cross-examination that the applicant was the boss, that he could tell anyone what to do, and that he could fire anyone, including her and Mr. Zhao, even though Mr. Zhao gave him the money to purchase the franchise.

Summary of evidence concerning the operation of the applicant’s store

27The respondents provided considerable evidence, including considerable documentary evidence, regarding ongoing problems with the operation of the applicant’s store. Much but not all of that evidence, as well as the applicant’s related evidence, is summarized in this section.

28Ms. Dyck referred to approximately 37 Cleanliness and Product, or Store Visit, Reports that were completed for the applicant’s store between April 5, 2010 and June 28, 2013. Most of these Reports were completed by Ms. Dyck, and many of the Reports contain critical comments. For example, as early as April 8, 2010, Ms. Dyck expressed concerns about cleanliness and hiring staff to provide better service. Between April 22 and October 14, 2010, repeated comments were made in the Reports concerning: a lack of cleanliness; the necessity to clean ovens and keep two ovens on at all times; insufficient staffing; staff not being properly uniformed; insufficient varieties of pizza slices available to customers; “slice tracking” not being up-to-date; the food on floor in the freezer; and recipes not being followed.

29There are also a few positive comments during this time period, such as, “Better Job on Slices”, dated June 22, 2010; however, this is followed by comments regarding insufficient slices and skimpy toppings on July 21, 2010. Another comment dated July 21, 2010 states, “Cleanliness of overall restaurant has improved”; however, this is followed by a comment on August 4, 2010 that the “store is very dirty”. Ms. Dyck described the applicant’s restaurant as very inconsistent, and testified that she never knew what she would walk into when she went to the applicant’s store. She testified that she did have a good visit on October 14, 2010.

30Mr. Macri referred to a document dated September 18, 2010, indicating that the applicant’s store was fined by the District Manager because there were three staff working in the store and only one was in full uniform, and the driver was not in uniform. Mr. Macri testified that it was brought to his attention and his initials are on the document.

31Mr. Macri also referred to a “call centre log”. He explained that whenever a customer calls back to add or remove something, or to complain, it is logged. Mr. Macri referred to a document containing numerous logged customer complaints regarding the applicant’s store between April 8, 2010 and February 20, 2011. Some of the customer complaints that Mr. Macri specifically referred to in the document include: receiving pepperoni instead of ham; skimpy on the extra cheese; pizza undercooked and driver forgot dips; looking for the order at 58 minutes; incorrect toppings; hair in pizza; order arrived at one hour and eight minutes and customer claimed pizza and wings were cold; forgot to put sauce on meatball sandwiches; salad container half full; and, toppings very skimpy, pepperoni only on one half of pizza, and customer claims it is not the first time. Mr. Macri testified that such complaints affect the customer, who could be lost; anyone the customer speaks to; the business of the store; and the Pizza Nova name.

32Mr. Macri also referred to an “Escalated Complaints Summary Report” which he testified sets out calls that are escalated to a complaint and are handled by Pizza Nova customer service, or are moved to head office if serious enough. The document lists what appears to be six such complaints between June 4, 2010 and February 14, 2011.

33Mr. Macri also referred to an Internal Memo dated January 16, 2011. He explained that the call centre regularly calls customers to ask about the service and quality of product. Recorded customer comments set out in the Internal Memo for the applicant’s store include a customer receiving a pizza a few times with the bottom a little bit burnt, and a customer having a problem with the body odour of a delivery driver on two occasions. Mr. Macri testified that such comments or complaints affect Pizza Nova seriously, including the other franchises.

34Ms. Dyck testified that she visited the applicant’s store on January 31, 2011, and learned that he went to China on January 19, 2011, and was returning on February 19, 2011. She testified that, contrary to the Franchise Agreement, no one told Pizza Nova. With respect to her visit that day, Ms. Dyck also testified, among other things, that: there was only one pizza slice available when she arrived, and no slices were being prepared; the applicant’s father was working as a driver and he could not communicate with the cook; the cooks were not washing their hands after handling money; she had to throw out lounge chairs that were in the back of the store that were not supposed to be in the store; she had to place a food order because no one else did; the health inspector came in and gave two employees a $350 fine for not using the hand sink, and he would have shut down the store if she was not there because no one else had a food safety certificate; and, she ran the store for two weeks until the applicant came back.

35Mr. Macri referred to a document dated January 31, 2011, indicating that the applicant’s store was fined for: not using proper tomatoes or green peppers as per Pizza Nova standards; not following the staffing policy that stores are to be staffed by 10:00 a.m.; and, not following the bruschetta mix procedure.

36Ms. Dyck testified that, on February 2, 2011, the applicant’s father was sleeping in the store and she told him twice before not to do that. She also testified that the cooks were not following the recipes for pizzas, so she trained a cook and had him clean food containers that were filthy. She also placed a food order again and left a list of things that needed to be cleaned.

37In cross-examination, the applicant was shown many of the Cleanliness and Product Reports completed in respect of his store. In particular, he was referred to 11 Reports from between April 5, 2010 and February 2, 2011. Many of these Reports have critical comments regarding restaurant staff not being properly uniformed, cleanliness, and the availability of pizza slices, which the applicant acknowledged as written. He testified, however, that he thought some of the records were not really the facts.

38Mr. Macri referred to a letter he sent to the applicant dated February 25, 2011. The letter states that the applicant has committed a material breach of the Franchise Agreement in that he has consistently failed to comply with the terms, covenants and conditions of the Agreement, contrary to Section 6.01 of the Agreement. The letter indicates that the violations were documented and notices were given to the applicant. The letter also states that if the applicant persists in not complying with the Franchise Agreement, Pizza Nova has the right to terminate the Agreement. The letter ends by stating, “I therefore suggest that you sell your Franchise if you do not want to follow the Policy. Pizza Nova will endeavor to help find a buyer for you.”

39Mr. Macri testified that he would have seen a number of Reports completed by the District Manager before sending the above letter. With respect to suggesting that the applicant sell the franchise, Mr. Macri testified that the applicant did not seem to want to follow policies and procedure, and seemed unhappy.

40The applicant acknowledged in cross-examination that he received the above letter dated February 25, 2011 from Mr. Macri stating that he committed a material breach of the Franchise Agreement, which he agreed was a warning. He testified, however, that he thought the facts were exaggerated.

41Ms. Dyck also referred to a further nine Reports regarding the applicant’s store in 2011. She testified that on March 19, 2011, she had a better visit, and on April 13, 2011, the applicant was making a good effort and following a cleaning list. Her visit on May 19, 2011, was also good. Between July 18 and November 23, 2011, however, repeated comments were made in the Reports concerning: non-Pizza Nova ingredients being used; staff not being properly uniformed; pizza slices not being made properly; food being kept on the floor; and, cleanliness. A Report dated November 23, 2011, does state that cleanliness was improving, and Ms. Dyck testified that she had a good visit on December 5, 2011.

42Mr. Shorten referred to an inspection report from Maxxam Analytics Inc., from an inspection of store #340, dated July 20, 2011. He explained that it was an audit by an outside company that looked at sanitation, cleanliness and equipment. Although the report indicates a passing score of 78%, Mr. Shorten explained that 85% is required and a charge is assessed if that is not met. The Report has more than a dozen critical comments, including comments related to food storage temperatures and personal foods being stored in ways that can attract pests. The Report also notes that Public Health fined the store for not washing hands in the past. In cross-examination, the applicant was referred to the Report and acknowledged that Maxxam came to his store and conducted testing.

43In cross-examination, the applicant was referred to two further Cleanliness and Product Reports, and a Store Visit Report, from between September 8, 2011 and January 10, 2012. These Reports contain critical comments regarding cleanliness, improper food and other items being in the store, food storage and uniforms. He was also referred to an inspection report from Maxxam Analytics Inc., for an inspection dated January 26, 2012. There are more than a dozen critical comments in the inspection report, including comments related to food storage, cleanliness and staff bringing in personal food and cooking it on site. Mr. Shorten testified that the issues identified in the report were all significant and recurring problems.

44Mr. Macri referred to an Internal Memo dated December 7, 2011, that records the following customer comment regarding the applicant’s store: “I love your food, I am addicted to your pizza, I eat it at least once a week, my only concern is the sloppy drivers. The driver smells of cigarettes when he comes to my door, that turns me off.” Mr. Macri testified that it was the same problem since the last Internal Memo. He also referred to an Internal Memo dated December 19, 2011, that recorded customer comments, including that a pizza was burned on the bottom and the cheese was extremely skimpy, and that a pizza was late, cold and doughy. Mr. Macri testified that these were very disappointing comments.

45Mr. Shorten testified that he managed a team of ten District Managers for Pizza Nova. He testified that once he completed his training in 2011, he started to look at performance and store #340 came up right away. He testified that the store had challenges over the time the applicant was running it. Mr. Shorten also testified that he visited the store in September 2011 and it was not in great shape. He testified that he monitored the store and talked to Ms. Dyck about it, and the store was a fairly regular, weekly point of interest for him. He testified that in terms of resolving problems it was “up and down”, and explained that when support was applied it “came up” for a short period of time, but then it would “fall off again”.

46Ms. Dyck also referred to a further nine Reports from 2012 and 2013. She testified that on January 12, 2012, she told the applicant not to use some old whole wheat pizza dough and to throw it out. When she returned to the store later that day, she noticed that some cooked whole wheat pizza was very flat and found out that the applicant was using the old dough that she had asked him to throw out. She then took all of the old dough and threw it in the garbage. On February 16, 2012, Ms. Dyck noted, among other things, that the applicant needed to remove all non-Pizza Nova food, which she testified was an ongoing problem. On July 15, 2012, Ms. Dyck noted that: the applicant was not properly uniformed; that the quality and variety of pizza slices was very poor; that only one oven was on and she had to tell him why he needed to have two ovens on; that the top of the oven needed to be cleaned every day; and, that all food in the “walk-in” must be six inches off the floor. On November 23, 2012, Ms. Dyck noted that, effective that day, the applicant agreed to order lettuce from Pizza Nova, and that there would be a $500 fine for non-compliance. She testified that there was an ongoing issue with the lettuce.

47Mr. Macri referred to a second letter he sent to the applicant, dated June 7, 2012, stating that the applicant committed a material breach of the Franchise Agreement. The letter refers to unauthorized purchasing of products outside of Pizza Nova’s commissary, and the applicant having been notified to order produce and prepared products from the commissary, yet he continued to be inconsistent in his purchases. Mr. Shorten also referred to the June 7, 2012 letter to applicant, which was also signed by him. He testified that it was a strong message that was sent and immediate attention was expected. He testified that there were legal remedies if attention was not given, but usually they focussed their attention on doing the best to correct the issues.

48In cross-examination, the applicant was referred to the above June 7, 2012 letter from Mr. Macri and Mr. Shorten stating that he committed a material breach of his franchise agreement. He testified that he did not agree with what they said, and that it was unilateral from them. The applicant agreed that the letter did not threaten to take away the store or tell him that he had to sell it.

49In cross-examination, the applicant was referred to a Store Visit Report from July 15, 2012, which stated that the applicant had to be asked to put a hat and apron on. It also states that all food in the “walk in” must be six inches off the floor. The applicant agreed that it is important to keep food off the floor, and testified that all the food was on the shelf. He was also referred to a Report dated October 25, 2012, which indicated that a particular new pizza product was not made that day, and that the applicant said they were only making it on Thursdays, Fridays and Saturdays. The report indicates that the applicant agreed make the product every day for the dinner rush.

50In cross-examination, the applicant was referred to a further letter dated January 8, 2013 from Mr. Macri and Mr. Shorten stating that he committed a material breach of the Franchise Agreement for not consistently offering a new pizza product on a daily basis. He denied that there was such a breach, and testified that they made the product every day. He also agreed that he signed a letter dated January 24, 2013, stating that he understood the importance of ensuring that all products are made and offered on a daily basis and that he would immediately take corrective action. He testified that it was not his wish to sign the letter but he had no other option. He also testified that he made the product every day but perhaps Pizza Nova’s representatives came in one day and did not see it. He testified that he explained the situation to them but they still made him sign the letter. He testified that they told him that they would take back the shop if he did not sign the letter. He then conceded that he was not told that, but testified that in fact it was “like that”. He agreed that the letter did not threaten to take away his store or tell him he had to sell it, but testified that they would not say that in any documents, but verbally they said it. He testified that the letter to him was brought to him by the District Manager and he was asked to sign it or they would take his shop away.

51In a Store Visit Report from March 3, 2013, Ms. Dyck indicates that there was an old cooked chicken cutlet in the freezer with some sauce on it and the applicant’s father was going to reuse it for an order that came in for a chicken cutlet sandwich. She told him not to. She also threw out some freezer-burned broccoli and zucchini. She referred to a microwave being back in the store, and testified that they had agreed to not have any microwaves in the store. She also indicated, among other things, that the lounge chairs she previously removed were back; that the back room was filled with non-Pizza Nova items; that the store was not very clean; and, that the applicant’s father did not want to put two pizza ovens on. She also stated in the Report that she found that the store’s last order for chicken cutlets was in February 2012, and that the chicken cutlets in the store were old and freezer-burned, so she removed them.

52The applicant was shown the March 3, 2013 Report in cross-examination. He agreed that they could not sell old, cooked, frozen and reheated food. He also agreed that the Report says that there were non-Pizza Nova items such as lounge chairs in the back of the store. With respect to the Report stating that his store had no food order for chicken cutlets for over a year, and that the chicken cutlets in the store were old and freezer-burned, the applicant testified that it was not possible.

53With respect to a Report from March 8, 2013, Ms. Dyck referred to a number of issues at the store, including not having bruschetta, the pizza slice schedule not being followed, and removing expired product. She testified that the situation was consistent with March 3, 2013, and with a subsequent June 28, 2013 Report wherein Ms. Dyck indicated, among other things, that the applicant and his father were not properly uniformed, the pizza slices looked to be of very poor quality with insufficient toppings, and the store was very dirty.

54Mr. Macri referred to another letter he sent to the applicant, dated July 11, 2013, stating that the applicant committed a material breach of the Franchise Agreement. The letter refers to the use of non-approved equipment, operating/maintaining food preparation areas in an unsanitary manner, not following standard recipes or using mandatory products, not offering mandatory products to customers and non-conformity with the uniform policy. He testified that the applicant refused to sign a reply document stating, among other things, that he would immediately take corrective action to rectify the issues.

55The applicant also agreed that he was fined by the “Health Board” for not complying with food handling. In cross-examination, Ms. Shi confirmed that their store was fined by the health department. Ms. Shi also confirmed that the District Manager would visit the store and fill out forms and leave them. She confirmed that she could not read or speak English, but testified that the applicant sometimes told her that they were not doing good enough in their jobs and that they needed to improve.

Evidence and findings regarding alleged comments and actions of the respondents

Comments alleged to have been made by Mr. Shorten

56The applicant testified that he had a conversation with Mr. Shorten in Mr. Shorten’s car on the way to Oakville and Mr. Shorten said, “You are probably too young to do this, it is perhaps not suitable for you and your family.” In cross-examination, the applicant agreed that Mr. Shorten was at his store that day and agreed to drop him off in Oakville where his car was being serviced. He agreed that he discussed the performance of his store with Mr. Shorten. He testified that Mr. Shorten probably gave him some suggestions to help him run the store.

57Mr. Shorten testified that there was only one time that the applicant was in his car when the applicant asked him for a ride to a dealership where his car was being serviced, and they had a good 25-minute car ride. He testified that it was maybe not quite a year that he had been working with the applicant and he had visited his store many times and talked to him about improving his business and what he needed to do. Mr. Shorten testified that the applicant told him about the challenges of working with his dad and following the rules. Mr. Shorten told him that if it was not going to work for them his option was to sell the shop and move on. He testified that he never told the applicant that it was not suitable for him and his father’s family, and he never told him he was too young. Mr. Shorten also testified that he never told the applicant that the company does not like him and he must quit. He testified that the applicant’s age was never a concern with Pizza Nova, and that they have people from all backgrounds, ages and ethnicities. Mr. Shorten also testified that he was a Director in his late 20s and he thinks it is fantastic when young people get involved in business.

58In cross-examination, Mr. Shorten testified that the applicant told him in the car that he struggled working with his father, and telling his father what the rules of Pizza Nova were and that he had to follow them. He also testified that the gist of the conversation was that it was something the applicant and his father would have to work on themselves. When specifically asked about mentioning his young age and inexperience, Mr. Shorten denied saying that.

59Having carefully considered the evidence as a whole, I am not satisfied on a balance of probabilities that Mr. Shorten said anything about the applicant’s age, or anything else, when they were in Mr. Shorten’s car that would engage a Code ground. When the applicant gave evidence concerning this allegation, he appeared to be referring to notes, and he testified in cross-examination that a friend helped him with the language, grammar and sentences of the narrative in his Application. I have some concern, therefore, about the reliability of the applicant’s evidence nearly three years after the comment was alleged to have been made. I also generally prefer the evidence of Mr. Shorten and the respondents’ witnesses, which I have found to be very consistent, both internally and as between them, and more in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in the circumstances. Although the applicant did not testify that it was said, I note that he alleged in the Application that Mr. Shorten also said, “Our company doesn’t like you”, which Mr. Shorten denied he said and which, in any event, I have considerable difficulty accepting Mr. Shorten would have actually said, considering all of his evidence and his professional demeanour. As set out below, I also have considerable difficulty accepting some of the applicant’s evidence concerning other statements alleged to have been made by Mr. Shorten and Mr. Macri.

60Even if Mr. Shorten did make a reference to the applicant’s age, which I have not found he did, I find that it would have been in the context of a conversation wherein the applicant was describing difficulties he was having running his store with his father, and Mr. Shorten was trying to be of assistance. I find that one such reference to the applicant’s age, in the particular circumstances of this case and in the context in which it would have been made, is insufficient in and of itself to constitute a breach of the Code. See Rodgers v. Hydro One Networks, 2011 HRTO 877 at paras. 56-66.

61The applicant also testified that there was a meeting at Pizza Nova headquarters and he was there with his wife, and Mr. Shorten, Mr. Macri and Ms. Dyck were also present. He testified that Mr. Shorten said, “If you don’t sell the business we will take it back, are you not afraid?” The allegation in the Application was that the applicant was told by Mr. Shorten, “If you don’t sell the shop, I will take it, aren’t you scared?”

62Ms. Dyck testified that, to her knowledge, the above was never said to the applicant. She testified that they had a couple of meetings with the applicant to discuss the operation of the store. She testified that she is sure they asked him, “Is this the right thing for you?” She did not remember ever saying that they were just going to take the store from him. She testified that the Franchise Agreement would have been referenced in those meetings, and they also sent letters referring to the Franchise Agreement. She also testified that they would have gone back to policies and procedures, cleanliness and customer service, and that yes they do have the right to take the store back from the applicant, but their intention was to work together with the applicant. In cross-examination, Ms. Dyck testified that Mr. Shorten did not say, as the applicant alleged, “If you don’t sell the shop, I will take it, aren’t you scared?”

63Mr. Macri also testified that they had meetings with the applicant, but he does not recall this particular statement the applicant alleged Mr. Shorten made, and Mr. Shorten clearly testified that he never made the statement. In cross-examination, Mr. Shorten was asked if he remembered what the applicant’s response was to his comment, and he testified that he did not make the comment, nor did remember what was said in response to something he did not say.

64I accept that Pizza Nova would have referenced the Franchise Agreement in meetings with the applicant, and it is clear that they sent him a letter indicating that if he did not comply with the Franchise Agreement, Pizza Nova had the right to terminate the Agreement. I accept, therefore, that the respondents may very well have told the applicant in a meeting that they did have the right to take the store back from him, in light of the Franchise Agreement. Other than that, I have considerable difficulty accepting that Mr. Shorten would have made the statement as alleged and/or as the applicant testified. Mr. Shorten, Ms. Dyck and Mr. Macri all denied that Mr. Shorten made the statement, and the applicant testified that Mr. Shorten made the statement in the presence of Ms. Dyck and Mr. Macri. I do not find that drawing the applicant’s attention to a provision of the Franchise Agreement would amount to a violation of the Code, and, even if Mr. Shorten did make the statement to the applicant that the applicant testified he made, the applicant has not explained how the statement would have amounted to a violation of the Code.

Comments alleged to have been made by Mr. Macri

65The applicant testified that, just before the business was sold, Mr. Macri said over the phone, “It is best that you sell your shop, otherwise you won’t get even a penny back. Do you think I’m going to renew your rental agreement? If you sell your shop now, you may probably still get something back.”

66Mr. Macri testified that he thought that the applicant misunderstood what he was saying. He testified that what he was trying to tell the applicant was that it was in his best interest to sell the store because of all the material breaches, and that it was in his best interest to try to recuperate the money. Mr. Macri testified that the applicant’s lease was coming up for renewal and the applicant had to determine if he wanted to stay and renegotiate the lease and renovate, because the store needed renovations, or move to another location. He testified that he thought that the applicant did not have the resources so he thought the applicant’s best way out was to sell the store. Mr. Macri testified that it had nothing to do with the applicant’s age or ethnic background. Mr. Macri also testified that the longer the applicant stayed there he was forcing their “hand” to have to terminate the Franchise Agreement and put it up for sale. He testified that in most cases that would not generate as much money as if he sold it on his own.

67I note that although the applicant alleged that Mr. Macri made the comment at head office in the presence of Mr. Shorten and a few times on the phone, he only testified that it was said once on the phone. In any event, Mr. Shorten testified that he did not recall Mr. Macri ever making the comment.

68In cross-examination, the applicant agreed that he signed an acknowledgment on April 5, 2010 that store #340 may have to be relocated and that he would pay all costs. The acknowledgment also states that the store may require renovations and/or new equipment, and that the applicant would pay any and all costs. In the circumstances, I accept that Mr. Macri told the applicant that it was in his best interest to sell the store because of all the material breaches. I also accept that Mr. Macri told that applicant that it was in his best interest to try to recuperate money, in the context of the applicant’s lease coming up for renewal and the applicant having to determine if he wanted to renegotiate the lease and renovate, or move to another location. It was by no means clear to me from the evidence why Mr. Macri would be the individual deciding if the applicant’s lease would be renewed, as the applicant’s evidence implies. In the circumstances, I have considerable difficulty accepting that Mr. Macri would have said, “Do you think I’m going to renew your rental agreement?” as the applicant testified.

69The applicant testified that, after he signed the agreement to sell the shop, he had another phone conversation with Mr. Macri wherein Mr. Macri said, “Your family members after you have sold the shop are not allowed to work in that business.”

70Mr. Macri testified that he never made the above comment, and that he has never made that comment to anybody. He testified that when someone else buys a store, it is up to the purchaser to decide whether they want to keep the staff, not Pizza Nova. He testified that it is the purchaser’s decision, and not Pizza Nova’s decision.

71There does not appear to be any dispute in the evidence that franchisees hire and fire their own staff, although the Franchise Agreement does provide that the owner shall discharge such unsatisfactory employees as may be requested by the company from time to time. There does not appear to be any evidence that Pizza Nova ever asked the applicant to not employ any of his family members. In the circumstances, I do not accept on a balance of probabilities that Mr. Macri made the comment as the applicant testified he did. Even if Mr. Macri did make such a comment, I do not find that it would have amounted to discrimination against the applicant, or that it would have engaged a Code ground in light of all of the evidence.

Alleged comment of Ms. Dyck concerning the applicant’s father

72The applicant testified that Ms. Dyck said that his father’s English was not good, so he was not allowed to work or even appear at the front counter, and that there would be a $500 penalty for each instance.

73Ms. Dyck testified that she and Mr. Shorten, and possibly Mr. Macri, had a discussion with the applicant regarding his father working in the store. She testified that one of her notes refers to her serving customers who complained that they could not communicate with Mr. Zhao because he did not understand English, so they asked Mr. Zhao to work in the back, and not up with “the cash”. She testified that, to her recollection, there was no threat of a $500 fine in relation to this.

74Mr. Macri also referred to an Internal Memo dated May 7, 2013. He explained that the call centre regularly calls customers to ask about the service and quality of product. Recorded customer comments set out in the Internal Memo include that one gentleman staff has a huge language problem, and that the customer walked out of the store without placing an order several times because he “does not have a clue what I am saying”, and the customer witnessed several other customers walk out and he is there by himself. Another comment refers to staff speaking hardly any English at all, and that it took the customer ten minutes to place an order for a veal sandwich because “he had no idea what I was saying”. Another comment states that “the only thing he understands is pepperoni” and if you want to order other items “it’s like pulling teeth”. Another comment refers to having someone there who “does not understand anything”, and that the customer had to go home and place an order over the phone. An Internal Memo dated May 27, 2013 records a comment that a customer was in the store and one of the staff was having a terrible time and was very frustrated because he did not understand what a customer was trying to tell him.

75In the Application, the applicant refers to his parents being new immigrants from China and not speaking a word of English. At the hearing, the applicant’s father, Mr. Zhao, was asked twice in cross-examination if he could speak English and he refused to answer the question.

76The respondents submitted that, in light of s. 11 of the Code, it is reasonable and bona fide to have someone who takes orders be able to do so, referring to the complaints about customers walking out of the store because they could not place an order with Mr. Zhao.

77I note that although the applicant alleged that Ms. Dyck said Mr. Zhao cannot work in the shop, he testified that she said that Mr. Zhao was not allowed to work or appear at the front counter. In the circumstances, I find that Pizza Nova asked that Mr. Zhao work in the back of the store, as opposed to the front counter or cash where he was likely to interact with customers with whom he could not communicate, or would have difficulty communicating with. I appreciate that the above evidence concerning customer complaints about Mr. Zhao’s ability to communicate in English is hearsay in nature; however, the applicant stated in his Application that his parents do not speak a word of English. In addition, Ms. Dyck testified that she served customers who complained that they could not communicate with Mr. Zhao because he did not understand English. In the particular circumstances of this case, whether or not it was reasonable and bona fide that Pizza Nova request that Mr. Zhao work in the back of the store, and not at the front counter or cash, the applicant has not explained how Pizza Nova’s request in this regard could have amounted to discrimination as against him.

Allegations concerning Ms. Dyck’s conduct

78The applicant testified that Ms. Dyck was at the shop many times and threw away food his father prepared at home and even some cleaning utensils. He testified that one time Ms. Dyck was at the shop and she threw two trays of freshly made pizza into a garbage container. His wife was in the shop at the time and she immediately called “911”. His father was very agitated, and the previous owner and his wife came to the shop to comfort his father.

79Mr. Zhao also referred to a day when Ms. Dyck dumped fresh pizza into the garbage and “911” was called. It is not clear if he was in the restaurant at the time as he testified he was delivering pizza. The applicant’s mother, Ms. Shi, testified that Ms. Dyck came to the restaurant one morning and said the pizza slices were not well made and she threw them into the garbage. She also testified that Ms. Dyck came to the shop regularly and threw away things, including their own lunch that they brought to the shop.

80Ms. Dyck testified that she remembered the applicant’s wife threatening to call “911” on her and Mr. Zhao being very threatening to her. She testified that if she threw the pizza out it was because it was below standard and she would not allow them to sell a substandard product.

81The applicant testified that they ordered gluten-free pizza, and when the company delivered the product it was already covered in mold. He phoned Ms. Dyck and she came to the shop. He told her that it was already bad and he hoped she would return them the credit which she promised she would at the time. He testified that when Ms. Dyck was leaving, she threw the gluten-free pizza away in the parking lot, and the janitor of the plaza picked up the pizza and brought it back to the shop and asked him why he threw it away outside. He also testified that Ms. Dyck did not give them back the credit he asked for. The applicant testified that, after that, each time when the company sent material that was bad and he phoned Ms. Dyck she always promised to give him credit, but most of the time she forgot.

82Ms. Dyck testified that she would never take product and throw it in the parking lot, and that if there was an issue with product, she would have taken it back. She was adamant that she never would have thrown it on the ground. In cross-examination, she reiterated that she did not throw it on the ground.

83The applicant testified that when things were replaced in the shop, like lights and some materials they used in the shop, Pizza Nova would just replace those things without asking them beforehand, and leave them with a high bill amount that would be much higher than what would have been received from an outside service. He did not provide any further specifics.

84Ms. Dyck gave evidence with respect to a refrigerated unit where dough was kept in the applicant’s store not running properly and she called someone to come in and fix it. She testified that the onus is on the franchisee to find a licensed technician to come in and fix something if it is broken, but after a couple of times of her coming in and it had not been fixed, the onus was then on her to call. She testified that it does not matter which store, she would handle it the same.

85Mr. Macri testified that he heard about the refrigerated unit after the fact. He testified that when something like that happens, it is incumbent on the franchisee to repair it as soon as possible, as food could become contaminated or the health inspector could come in. He testified that if the applicant does not want to repair it, they cannot wait and it has to be repaired immediately, so Ms. Dyck got someone there who did it right away.

86In the circumstances, I find it difficult to accept that Ms. Dyck would throw away freshly made pizza if there was not a problem with it, or that she would purposely throw away pizza in the parking lot. Moreover, the applicant has not explained how, even if Ms. Dyck did any of the above things, it would have amounted to discrimination contrary to the Code. The Tribunal does not have the power to deal with general allegations of unfairness. There must be a basis beyond mere speculation and accusations to establish discrimination on the basis of a Code ground. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

Allegations concerning splitting orders

87The applicant testified that in their area, the head office would always divide up some business for store #372. He testified that the owner of that shop is the same owner who purchased his restaurant. The applicant testified that one regular customer would give his restaurant large orders, but a big portion of the orders would be given to store #372 and a small portion would be given to his restaurant, which is five minutes away by car from the customer, whereas store #372 is 20 to 25 minutes away. The applicant testified that this was to lower their revenue and force them to sell the business. He also testified that when such things happened, he called Mr. Macri, Mr. Shorten and Ms. Dyck and they told him that this is how they operate.

88The applicant referred to two order receipts with respect to the customer referred to above. He testified that the customer is in their district, but Pizza Nova gave them the smaller of the two orders, and gave the other higher value order to shop #372.

89The applicant also referred to an order receipt for 30 large pizzas that came in at 8:39 p.m. for pick up at 9:45 p.m., with no advance notice, and testified that they completed the order. He testified that it goes to prove that they can handle large orders, and Pizza Nova had no reason at all to split their orders referred to above, which were ordered in advance.

90Mr. Zhao also referred to the allegation in the Application about an order being split and the larger portion of the order being given to another store. He essentially testified that they were able to complete large orders. He referred to receiving a large order for nearly $500 one evening without any advance notice, and being able to complete the order in 66 minutes. This appears to be the same order for 30 large pizzas that the applicant referred to.

91Mr. Shorten testified that splitting orders is very common for all franchises. Ms. Dyck testified that splitting orders depends on store history, and a lot of large orders are split with all of the 21 stores she looked after. She testified that sometimes they split the order three ways, depending on the time of day, the amount and the staffing and history of the store. She testified that with a store with a history of problems with ovens, she would split it. In cross-examination, Ms. Dyck testified that the reason why they split orders with store #340 and store #372 is due to the inconsistencies with the ovens being on and the product being made to standard at the applicant’s store. She testified that her job as District Manager is to protect the brand, which is also for the other franchisees, and she needs to ensure they are always sending out quality product.

92Mr. Macri testified that with large orders the District Manager is contacted and they decide if the order has to be split with a nearby store, to make sure the customer gets the order on time. He also testified that if the District Manager had previous issues with a store’s ovens and staffing, that would very much be an issue they would look at and that would be another reason to split an order for the benefit of the customer.

93Mr. Macri also testified that it is standard procedure to look at a large order and determine if it needs to be split between two stores for the benefit of the customer, and prepared properly and on time. He testified that, because of the applicant’s store, and his track record and history, they wanted to make sure it was made and cooked properly and delivered on time. He testified that they were not of the view that the applicant could do it on time, because of issues with the store.

94In cross-examination, Mr. Macri was shown a receipt for an order that was re-routed from the applicant’s store three days before the store was sold. Mr. Macri testified that it was not a large order that would be split and he did not know why it was diverted to another store, unless there was something going on at the applicant’s store or maybe due to insufficient staff or drivers.

95Having carefully considered all of the evidence, I accept the respondents’ evidence that it was very common and standard procedure to consider splitting large orders. With respect to the example of a large order being split that the applicant referred to, I also accept the respondent’s evidence that there were concerns with the applicant’s store that justified splitting the order in the manner it was done, particularly in light of all of the evidence concerning problems with the operation of the applicant’s store, much of which is set out above. I also find that one example of a smaller order being diverted to another store three days before the applicant’s store was sold is insufficient to establish any discrimination contrary to the Code. Again, the Tribunal does not have the power to deal with general allegations of unfairness, and there must be a basis beyond mere speculation and accusations to establish discrimination on the basis of a Code ground. See Forde, above.

Allegations concerning store boundaries

96The applicant testified that, before they sold the shop, many customers came to them and said that they could not place orders. He felt that this was very strange. He testified that he was quite sure that these actions were to block their business and to force them to sell the shop.

97The applicant also testified that his restaurant regularly delivered to addresses in downtown Hamilton that are much further away from his restaurant than a particular address on Frid Street. He testified that Pizza Nova said that the Frid Street address does not belong to their delivery territory, which goes to prove that Pizza Nova is blocking their business.

98Mr. Zhao also referred to a customer complaining that Pizza Nova’s head office told him that he could not get delivery from their shop. He testified that the applicant called head office and said the customer was in their district, but head office refused to accept that, so the applicant told the customer to phone their store directly. He also testified that a few days before they sold the business they informed a new District Manager about the situation, and the new District Manager resolved the situation.

99In cross-examination, the applicant agreed that the Franchise Agreement provides that his franchise has no fixed boundaries. He disagreed with the boundaries set out in two maps put to him by the respondents that showed Frid Street being outside the boundary of his restaurant.

100With respect to the allegation that customers within the applicant’s store area could not order from his store, Ms. Dyck testified that she did not have a certain recollection, but the applicant asked her about an address and if it could be corrected. She testified that she could not fix it and would have had to look into it to see if the address was in the area and could be added to the store. She explained that the call centre had a map of all the different areas.

101Referring to the Franchise Agreement, Mr. Macri testified that franchises have boundaries, but they are not protected boundaries. Mr. Macri testified that he set the boundaries up and the Frid Street address was outside of the applicant’s store’s designated boundary. He testified that the customer may have called another number, which may have been a breach of terms, as all calls are supposed to come in through their call centre. He also testified that the boundaries on the maps shown to the applicant were correct, and reiterated that Frid Street was outside of the applicant’s store’s boundary.

102The applicant also put to Mr. Macri in cross-examination that on the last day when he sold the store, the new District Manager came to the store and resolved an issue at the applicant’s request by adding a street to the store’s boundary. Mr. Macri testified that the applicant’s location was very negligent in light of the number of customer complaints, and consequently the applicant did not need an expanded area. The new owner was putting on extra staff and drivers and that is why the area was expanded a little bit, because the new owner, who had another location, was doing twice the business as the applicant and capable of running the store properly.

103Having carefully considered all of the evidence, including the documentary evidence, I accept that that Frid Street was not originally within the applicant’s store’s boundary. I also accept the respondent’s evidence that there were issues with the applicant’s store that went against expanding his store’s boundary. I find that the applicant has not established that he was subjected to any discrimination under the Code in relation to store boundary issues. Again, Tribunal does not have the power to deal with general allegations of unfairness, and there must be a basis beyond mere speculation and accusations to establish discrimination on the basis of a Code ground. See Forde, above.

Findings concerning the sale of the franchise

104I understand the applicant’s main allegation to be that his family was constantly harassed and threatened by Pizza Nova’s head office, and forced to sell their business, because of discrimination. Specifically, the applicant relies on the Code grounds of ancestry, place of origin, ethnic origin and age.

105As the Tribunal explained in Chan v. MTY Tiki Ming Enterprises Inc., 2013 HRTO 915, a case relied upon by the respondents, the applicant has the onus of proving, on a balance of probabilities, that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at para. 46.

106The Tribunal also explained in Chan, above, that the initial onus is on the applicant to establish, on a balance of probabilities, a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28. If the applicant establishes a prima facie case of discrimination, the respondent must establish, on a balance of probabilities, a statutory defence and/or a credible non-discriminatory explanation for the impugned treatment. If the respondent is able to rebut the applicant’s prima facie case of discrimination, the burden returns to the applicant to establish, on a balance of probabilities, that the respondent’s explanation is erroneous or a pretext for discrimination. See Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13 at para. 52. The ultimate issue is whether the applicant has proven, on a balance of probabilities, that a violation of the Code has occurred. Although an evidentiary burden to rebut discrimination may shift to the respondent, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability support Program) v. Tranchemontagne, 2010 ONCA 593 at paras. 112 and 119. It is also well-established in human rights law that in order for an act to constitute a violation of the Code, discrimination need only be one of the reasons for the act. See, Chan, above at para. 36.

107There is no dispute that Pizza Nova suggested to the applicant that he consider selling his restaurant. In a letter to the applicant dated February 25, 2011, regarding a material breach of the Franchise Agreement, Mr. Macri suggested to the applicant that he sell his franchise if he did not want to follow policy. Mr. Shorten also testified that he told the applicant that if it was not going to work for him and his father, his option was to sell the shop and move on. Mr. Macri testified that he told the applicant was that it was in his best interest to sell the store because of all the material breaches. The applicant also received letters from Pizza Nova regarding material breaches on June 7, 2012 and January 8 and July 11, 2013.

108In cross-examination, the applicant agreed that he wrote a note dated February 28, 2012, stating that he would like to sell his restaurant. He testified, however, that it was not really his wish to sell, and that he told Pizza Nova that he did not want to sell but they told him that they wanted him to sell. He testified that he had no choice, that he wrote it under duress and that he was pressured by Pizza Nova. He testified that he put a price in the note that is higher than market value, meaning that he did not want to sell. He agreed that eventually he did sell the store, which appears to have occurred on October 14, 2013.

109Mr. Macri testified that the applicant signed a release with Pizza Nova on the date the store was sold. The release is dated October 14, 2013. The applicant testified that he signed the release under duress.

110I accept that the applicant felt pressure from Pizza Nova to sell his franchise. I do not find, however, that the applicant has established a prima facie case of discrimination, on a balance of probabilities, in relation to the sale of his franchise. Considering all of the evidence, including the evidence summarized and addressed above concerning various comments and actions of the respondents, I do not find that the applicant has established that he was subjected to any discrimination or harassment, contrary to the Code as alleged.

111As set out above, Mr. Shorten testified that the applicant’s age was never a concern with Pizza Nova, and that they have people from all backgrounds, ages and ethnicities. Mr. Shorten testified that he was a Director in his late 20s and he thinks it is fantastic when young people get involved in business.

112Mr. Macri testified that the applicant’s age was never a concern to him, and that Pizza Nova has franchisees who are maybe the same age or a year younger than the applicant. He testified that Pizza Nova has other franchisees in their mid-20s. He also testified that Pizza Nova has franchisees with a wide variety of backgrounds, including Chinese. He also referred to Pizza Nova’s Human Rights Policy Statement, which prohibits discrimination based on grounds including age, ancestry, place of origin and ethnic origin, and which he testified is posted in every store. He also referred to Pizza Nova’s Complaint Resolution Procedures addressing human rights, discrimination and harassment which he testified is posted in every store. Mr. Macri testified that he is not aware of the applicant every making a complaint pursuant to the procedures.

113In cross-examination, the applicant agreed that he interviewed with people at Pizza Nova and they awarded him the franchise. He agreed that the completed a Franchise Application form dated February 12, 2010, which has his date of birth on it. It also indicates that his place of birth is China, and that he speaks Mandarin and English.

114In the circumstances, I do not find that the applicant has established that he was subjected to any discrimination or harassment, contrary to the Code. I also find that, to the extent the respondents suggested or even put pressure on the applicant to sell his franchise, they had a reasonable non-discriminatory explanation for doing so in all the circumstances, having regard to the considerable evidence summarized above regarding ongoing problems with the operation of the applicant’s store, which the applicant did not establish was erroneous or a pretext. Considering all of the evidence as a whole, I find that the applicant has not established on a balance of probabilities that he was subjected to any discrimination or harassment by the respondents, contrary to the Code.

Conclusion

115For all of the above reasons, the Application is dismissed.

116Having dismissed the Application I need not consider the parties’ submissions with respect to the applicant signing a mutual release with Pizza Nova when his franchise was sold, or the respondents’ argument that the Application is not with respect to employment within the meaning of the Code.