Molly Miller v. Rideau Hill Camp Council of The United Church of Canada, 2017 HRTO 1398

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Molly Miller

Applicant

-and-

Rideau Hall Camp Council of The United Church of Canada and The United Church of Canada

Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: October 23, 2017 Citation: 2017 HRTO 1398 Indexed as: Miller v. Rideau Hill Camp Council of The United Church of Canada

APPEARANCES

Molly Miller, Applicant Self-represented

Rideau Hill Camp Council of the United Church of Canada, Respondent Kecia Podetz, Counsel

The United Church of Canada, Respondent David Foster, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant was an employee of the respondent Rideau Hall Camp Council of the United Church of Canada, which operates the Rideau Hill Camp, together referred to herein as “the Camp”.

2By Interim Decision 2017 HRTO 119 (the “January 2017 Interim Decision”), the Tribunal granted the respondents’ Request to remove an individual respondent, and directed a preliminary hearing be held to determine whether the United Church of Canada and Seaway Valley Presbytery were properly named as respondents.

3A preliminary hearing was held on June 19, 2017. At the hearing, the Church did not take the position that the Presbytery was a separate legal entity from the United Church of Canada, though in the materials the two are often referred to separately. References below to the Presbytery or Church refer to the same legal entity, and references to the Church include the Presbytery.

4Based on my review of the Camp’s by-laws and the parties’ submissions, I find that the Church should remain as a respondent in these proceedings. Even accepting that the Camp is a separate legal entity, and that the Camp has the responsibility under its by-laws for staffing issues, the Church’s level of control over the Camp means that it is appropriate that the Church remain named as a party to this Application.

Issues and The Law

5The central issue to determine is the relationship between the respondents, and whether the Church could, under s. 46.3(1) of the Code, be liable for the actions of the Camp if the applicant is ultimately successful in proving discrimination in employment.

6The allegations in the Application all focus on the decisions made by the Camp Director and board members of the Camp Council. Section 46.3(1) reads as follows:

For the purposes of this Act, … any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.

7The question is whether the actions of the Camp director, or the actions of the members of the Camp Council board of directors, could be considered to be the actions of an “officer, official, employee or agent” of the Church.

Legal Status of the Camp

8As noted in the January 2017 Interim Decision, the applicant named the Church as a respondent for a number of reasons. The Camp is located on land that is in trust to the Presbytery; the Presbytery is included in the hierarchy of the Camp’s organizational chart in the staff manual; the Presbytery helps the Camp financially; the Reverend of the Presbytery sought to fill some of the positions at the Camp, and the United Church was listed as the employer on her pay stub.

9The respondents all take the position that the Camp is a separately incorporated legal entity, a not-for-profit corporation that has been in operation since 1948. The Camp, however, clearly has a close relationship with the Church; there is no dispute that it is located on property owned by the Church, that it adheres to the Church’s Camping Standards, and that it receives funding from the Church. The respondents argue, however, that these are not sufficient to make it liable for the acts of the Camp under s.46.3(1).

By-laws

10No materials were filed prior to the hearing by either the Camp or the Church respecting the actual legal status of the Camp, or the relationship between the respondents. At the hearing, as it appeared to me that such information was central to the issue of whether the Church was properly named as a respondent, I directed the Camp to file its by-laws, and provided the parties an opportunity to make post-hearing submissions. The relevant provisions of the by-laws are as follows:

Rideau Hill Camp Council of The United Church of Canada By-Laws 2005

1. NAME:

The Rideau Hill Camp Council is formed under the authority of the Seaway Valley Presbytery of the Montreal-Ottawa Conference, and the Executive of General Council and the United Church of Canada are hereinafter referred to as “The Council”. The consent of the United Church of Canada to the use of the proposed corporate name is hereby attached.

2. OBJECTIVES:

a) To establish and maintain a camp or camps primarily for the use of the people of The United Church of Canada in the area served by the Seaway Valley Presbytery, in accordance with the present or any future regulations made or to be made in the General Council or the Presbytery.

g) To have oversight of such matters as camp use, leadership, camp policy, camp programming and camp maintenance.

3. PROVISIONS AND LIMITATIONS:

a) The Council shall have no capital stock or issue any share certificates, but may acquire real property or personal property and sell mortgage or lease the same.

b) Any sale, leasing or mortgaging of property shall be approved by the Seaway Valley Presbytery, The Conference or its Executive, and by the united Church of Canada. ( In accordance with section , The manual of the United Church of Canada, 1990) [sic]

(c) In the event of the Council ceasing to function, its property shall become vested in the United Church of Canada to be held in trust as the Presbytery and Conference may determine.

(d) At no time shall the total indebtedness of the Council exceed the sum of ten thousand ($10,000).

(e) To provide for adequate liability insurance and fire insurance to cover all structures that are erected on the camp property.

(f) Provision shall be made for the submission of an audited statement to the Presbytery annually (in accordance with the Societies Act, Statue of Ontario). [sic]

(g) The Council shall prepare annually a statement of the amount required for the Camp Council and submit the same to Presbytery.

4. SPONSORSHIP:

a) The Seaway Valley Presbytery

b) The Montreal-Ottawa Conference and the General Council of the United Church of Canada.

NOTA BENE: It must be understood that the United Church of Canada, in consenting the use of its name by such organization, assumes no liability for the debts or liabilities of such organization.

5. BOARD OF DIRECTORS:

The management of the camp shall be vested in a Board of Directors to be composed of up to twenty (20) members, at least a majority of whom shall be members of The United Church of Canada. Ideally, the camp Council shall consist of

• Four (4) members of Presbytery

• Sixteen (16) Laity

10. POWERS OF THE COUNCIL

The Rideau Hill Camp Council of the Seaway Valley Presbytery shall have authority over the general management policies of the camp. Specifically, the Council shall have responsibility for:

c) the appointment of Camp Director, Staff and other employees

12. CAMP DIRECTORS

. . . [The Camp Director] will be the Administrative Officer of the camp and will have supervision of the direction of activities of the camp and its staff within limits imposed by the Council. The Camp Director may engage or suspend members of the staff only in consultation with the chairperson, pending approval of such action by Council.

14. AMENDMENTS TO BY-LAWS

The Council may amend its By-Laws by special resolution, subject to ratification by the sponsoring bodies, that being: Seaway Valley Presbytery, the Montreal and Ottawa Conference, the United Church of Canada, and the General Council of the United Church of Canada.

11Though the by-laws are not entirely clear, I am prepared to accept for the purposes of this Application that the Camp is a separate legal entity. Elements of the by-laws would make little sense if the Camp did not have a separate legal existence, such as the provision in Section 1 whereby the Church consented to the use of its name in the “corporate” name of the Camp, and the “NOTA BENE” in Section 4 which provides that the use of the name does not mean the Church assumes any liability for debts of the Camp. I am also satisfied that the applicant’s pay stub, which indicated the employer was “Rideau Hill Camp United Church of Canada”, is a reference to the Camp, not the Church, as the by-laws clarify that the legal name of the Camp incorporates the name of the Church.

12The applicant used the analogy of a large corporation with a number of retail locations, and argued that the corporation would be liable for an incident that occurred at a specific store. However, using the same analogy, it is not uncommon for a large corporation to own and operate some stores directly, and have other stores operate through arrangements such as franchise agreements with separate individuals or corporations. Though the larger corporation could clearly be a proper respondent in a case where it owned a specific store and the allegations were with respect to an employee, such as the manager, of that store, the same would not necessarily be the case where the store was owned and operated by a separate legal entity under a franchise or similar agreement. This would be the case even where the stores are branded and run under the rules set by the larger corporation.

13However, though not clear, it is also not automatically the case that a franchisor would have no liability under s.46.3(1). Several decisions of the Tribunal involve the question of whether a franchisor can be held liable for the actions of a franchisee under s.46.3(1) of the Code, despite being separate legal entities. See, for example, Elgin v. 2112412 Ontario Incorporated o/a Bagel World Thornhill, 2016 HRTO 791 (“Elgin”), and Sprague v. MBEC Communications Inc., 2016 HRTO 1284 (“Sprague”). The decision in these cases was based on an assessment of the franchisor’s involvement in the day-to-day operations. Both those cases found that the franchisor was not deemed liable under s.46.3(1).

14It is important to note, however, that these decisions were premised on the fact that the franchisees were independent businesses, and that the franchise agreements were a legal relationship “between independent contractors where neither was the master or servant of the other”; Elgin, para. 18.

15It does not appear that the Camp enjoys a similar independence from the Church. The Camp is significantly limited by the by-laws, which appear to have been originally put in place by the Church as “sponsor”, and which cannot be changed without the Church’s approval. Though the Camp is, under the by-laws, entitled to purchase, sell or mortgage property, it cannot sell, lease or mortgage property without the Church’s permission. If the Camp ceases to operate, its property would be vested in the Church. The Camp is also required to provide the Presbytery with annual audited financial statements. Though the Church takes the position that this reporting is informational only, the by-laws further provide that the Camp is to submit an annual request for funding from the Presbytery.

16Under Section 3(d) of the by-laws, the Camp’s total indebtedness cannot exceed $10,000, significantly less than the applicant is seeking in damages in this Application, which raises the question of whether the by-laws would effectively preclude the remedy being sought. In this respect, I am mindful of the Divisional Court’s direction in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.) at para. 51, where it held that “the focus of human rights legislation is to provide an effective remedy to the complainant. One measure of effectiveness is the degree to which the damages can be collected.”

17In my view, the lack of independence that is apparent from the by-laws is an important factor in determining the degree of control the Church has in the operations of the Camp, and whether or not the actions of the Camp management or directors would fall within the scope of s.46.3(1). Based on my review of the by-laws, and taking into account the parties submissions, I cannot conclude that the Church should be removed as a respondent to these proceedings.

18Counsel for the Camp, in providing the by-laws, did indicate that the by-laws are undergoing a review to better reflect the reality of how the Camp is governed. In light of the difficulties posed by deciphering the relationship between the Camp and the Church in these proceedings, this would appear to be a worthwhile exercise.

19The parties have not yet attempted mediation. In light of my findings above, the parties are directed to advise the Tribunal whether or not they are prepared to engage in mediation within 14 days of the date of this Interim Decision.

20I am not seized.