Case Name: Chein v. Tim Hortons Inc.

Transcription

1 Page 1 Case Name: Chein v. Tim Hortons Inc. IN THE MATTER OF the Human Rights Code R.S.B.C. 1996, c. 210 (as amended) AND IN THE MATTER OF a complaint before the British Columbia Human Rights Tribunal Between Edxon Gonzalez Chein, Eric Dessens Dessens, Rodolfo Duran Lara, and Ruben Omar Varela Ramirez, Complainants, and Tim Hortons Inc, BC Ltd. dba Tim Hortons, Tony Van Den Bosch, TDL Group Corp., Respondents [2015] B.C.H.R.T.D. No BCHRT 169 File No British Columbia Human Rights Tribunal Panel: Catherine McCreary, Member Decision: November 6, (107 paras.) Appearances: For the Complainants: Devyn Cousineau, Rose Chin and Erin Pritchard. Counsel for the Respondent Applicants Tim Hortons Inc. and TDL Group Corp.: Jordanna Cytrynbaum. For the Respondents BC Ltd. dba Tim Hortons and Tony Van Den Bosch: No submissions.

2 Page 2 REASONS FOR DECISION APPLICATION TO DISMISS: Section 27(1)(b), (c), and (d)(ii) APPLICATION TO AMEND: Rule 25 I INTRODUCTION 1 The complainants are Mexican citizens, in Canada beginning in January 2012, under the Temporary Foreign Worker Program ("TFWP"). They were employed to work at two Tim Hortons locations in Dawson Creek. Their complaint, including two amendments, alleges that the respondents discriminated against them regarding employment and tenancy, because of their race, colour, ancestry, and place of origin, contrary to s. 13 and s. 10 of the Human Rights Code. 2 The complaint names two groups of respondents, which can be characterized as the franchisor and the franchisee. The franchisor respondents are Tim Hortons Inc., ("THI") and the TDL Group Corp. ("TDL"), which is the company that oversees the rights to operate Tim Hortons restaurants in Canada, and are based in Oakville, Ontario and Calgary, Alberta respectively (collectively, the "Tim Hortons Respondents"). 3 Other respondents are Tony Van Den Bosch, the individual who operated the two Tim Hortons franchises in Dawson Creek, and his company BC Ltd., doing business as Tim Hortons (the "Numbered Company" and collectively, the "Franchisee Respondents"). 4 The complainants allege that they were subjected to working conditions inferior to those of local employees, that they were subjected to racist and derogatory comments about their nationality, that they were forced to live in sub-standard accommodations owned by the respondent Mr. Van Den Bosch, and were subjected to invasion of their privacy in those accommodations. The respondents deny that they discriminated. 5 There was an application for the production of documents that was dealt-with in Chein and others v. Tim Hortons and others, 2013 BCHRT 229. That decision was the subject of judicial review and the parties ultimately came to an agreement concerning the disclosure of documents without the court determining the matter. 6 The complainants also allege that the Tim Hortons Respondents, by participation in the TFWP and their control over the operations of the franchisee, created conditions under which the discrimination was possible, and even likely. The Tim Hortons Respondents claim that they are not proper parties to the complaint and have brought this application to dismiss the complaint against them, under ss. 27(1)(b), (c) and (d)(ii) of the Code. They also argue that the Tribunal should refuse to accept an amendment to the complaint which the complainants submitted on May 22, 2013.

3 Page 3 7 While I do not refer to it all in my decision, I have considered all of the information filed by the parties in relation to this application to dismiss. This is not a complete recitation of the parties' submissions, but only those necessary to come to my decision. I make no findings of fact. II BACKGROUND 8 The complaint was originally filed on September 28, 2012 against THI, and the Franchisee Respondents. In response to a request from the Tribunal for further information, the complainants filed an amendment in November 2012, adding TDL as a respondent and adding many further allegations. 9 The Tribunal accepted the amended complaint for filing. The complaint was further amended in May As noted above, the Tim Hortons Respondents take issue with this amendment. 10 The complainants say that they were all hired by the Numbered Company to work as food service counter attendants in Dawson Creek, British Columbia. Specifically, concerning each complainant, the complaint alleges that: * The complainant Rodolfo Duran Lara commenced his application for the TFWP in He was interviewed by two separate Tim Hortons franchises located in Alberta in or around August of In or around October, 2011, Mr. Lara was hired by Mr. Van Den Bosch to work at the Dawson Creek Tim Hortons. Mr. Lara arrived in Dawson Creek on January 13, * Edxon Gonzalez Chein commenced his TFWP application around February In or around August 2011 he had an interview with a Tim Hortons franchise located in Québec. In or around the first week of January, 2012, Mr. Chein had an interview with the Mr. Van Den Bosch to work at the respondent Dawson Creek Tim Hortons. One week after the interview, Mr. Chein was informed that he had one week to prepare to leave for Canada. He arrived in Dawson Creek in January * Eric Dessens Dessens commenced his TFWP application in June In or around November 2011, he had a series of interviews with a Tim Hortons franchise located in White City, Saskatchewan. Mr. Dessens was told to hold on for a position. In January 2012, he had an interview with the manager of the Respondent Dawson Creek Tim Hortons, (named Donna) in which he was hired. Mr. Dessens arrived in Dawson Creek on March 3, 2012.

4 Page 4 * Ruben Omar Varela Ramirez commenced his TFWP application in or around May In early December 2011, he was interviewed for a position at the respondent Dawson Creek Tim Hortons and signed an employment contract. Mr. Ramirez arrived in Dawson Creek on March 2, The complainants say that their temporary work permits were tied specifically to their employment with the Franchisee Respondents. They say that this arrangement placed the workers in a vulnerable position from the outset, as they could not leave their positions and seek employment elsewhere, regardless of the working conditions. 12 The Tim Hortons Respondents each say that at no time were either of them the complainants' employer or landlord. In addition, the Tim Hortons Respondents say that they did not exercise any influence or control over the complainants' employment or tenancies. 13 Concerning the corporate structure of the Tim Hortons Respondents, the complainants say that TDL is in the business of developing, opening and licensing the rights to operate Tim Hortons restaurants in Canada. TDL says that its sole connection to the matters at issue in the complaint is that it licensed the right to operate the Dawson Creek Tim Hortons restaurants at issue in the complaint to the Numbered Company. TDL is an indirect but wholly owned subsidiary of THI, a publicly traded company. Aside from THI being a related company to TDL, THI appears to have no connection at all to the matters at issue in the complaint. However, as will be seen below, the complainants often refer to the "Tim Hortons Respondents" and may not differentiate between them in the allegations. 14 The Tim Hortons Respondents, who make submissions generally, also often without differentiation between them, say that individuals interested in operating a Tim Hortons restaurant are invited to apply for the opportunity. Pursuant to the terms of the franchise agreement, all franchisees (including the Numbered Company) are exclusively responsible for: a. hiring and training employees to run the restaurants, at the franchisee's own expense; b. the terms and conditions of all employees' employment; c. scheduling and maintaining sufficient staffing levels to appropriately serve the restaurants' customers; d. securing and maintaining workers compensation insurance, at the franchisee's own expense;

5 Page 5 e. complying with all local labour laws and applicable codes of conduct, such as the Code; and f. implementing and enforcing an anti-harassment policy that prohibits all forms of harassment, including discrimination contrary to the Code. 15 The Tim Hortons Respondents claim that TDL franchisees operate as independent contractors and have no ability to create any obligation on behalf of TDL. TDL says that the franchise agreement allows it to protect the integrity and value of the Tim Hortons brand by, among other things, requiring that all franchisees (including the respondent Numbered Company) operate the franchised restaurants in accordance with all applicable laws and that they maintain consistent standards. TDL says that it ensures compliance by conducting regular compliance reviews. 16 TDL says that there are two types of compliance reviews of franchisees; one called "Always Fresh" that focuses on customer service, kitchen operation and food preparation; the second type of review is a legislative and liability review (referred to as an "L&L Review"). This consists of selecting employee files at random and reviewing and assessing the files for compliance with applicable legislative and health and safety standards, including, for example, the Workers Compensation Act and the Employment Standards Act in British Columbia. 17 With respect to these reviews, TDL says that, to the extent that any review revealed compliance or other issues, TDL would bring the matter to the franchisee's attention. TDL says that it is always up to the franchisee (not TDL) to remedy any defects in compliance. If defects are not corrected, the franchisee risks being cited for default of the franchise agreement and losing the right to operate the restaurant. 18 TDL says that the Numbered Company entered into two franchise agreements to operate two Tim Hortons franchises located in Dawson Creek, British Columbia. TDL says that, under the franchise agreements, the Numbered Company was exclusively responsible for all aspects of the management and operation of the restaurants, including employing staff to run the restaurants and responsibility for their employment. TDL says that the franchise agreements also confirm that TDL was not the complainants' employer and that the Numbered Company was exclusively responsible for the terms and conditions of their employment; and under no circumstances was TDL to be liable for any act or obligation arising out of the Numbered Company's operation of the restaurants. TDL says that it did not exercise any control over the terms of the complainants' employment, nor did TDL have the ability to influence the employment relationship between the complainants and the Numbered Company. 19 With respect to any compliance reviews, TDL says that, while it regularly conducted compliance reviews of the restaurants, the main purpose of the compliance reviews is to confirm

6 Page 6 compliance with the terms of the franchise agreements, and all applicable legislative and other standards. It says that these reviews were performed not out of any legal obligation to the complainants (or the employees of TDL's franchisees generally), but rather pursuant to a contractual right afforded to TDL under the franchise agreements to enable TDL to preserve and protect the integrity of the Tim Hortons brand. TDL also claims that none of the compliance reviews of the Franchisee Respondents revealed any information that would give rise to any concern that any worker or group of workers was being mistreated. 20 TDL denies that the TFWP is part of its business model or that it requires its franchisees to participate or engage in the TFWP, as alleged or at all; rather: a. it is TDL's franchisees who are the employers and how a franchisee elects to recruit and hire employees to staff its operations is exclusively up to the franchisee; and b. TDL is merely prepared to have franchisees access the TFWP as a last resort to fill staffing shortages to enable them to meet their operational needs, provided that the franchisee used a reputable recruiter approved by TDL, and the franchisee otherwise met the terms and conditions for participation in the TFWP. It is ultimately up to the individual franchisees to decide whether or not to participate in the TFWP, and up to the Canadian government whether to approve the applications. 21 Concerning the Tim Hortons Respondents' involvement in hiring the complainants through the TFWP, TDL says that, to the extent that a franchisee elects to participate in the TFWP, TDL expects and requires that franchisees will comply with all of the requirements of the program. There is no training requirement specific to temporary foreign workers employed through the TFWP. TDL also expects and requires that the franchisees will comply with the terms of their franchise agreement, including compliance with human rights legislation, with respect to all workers in their employ. The TFWP allows Canadian employers to hire foreign nationals to fill temporary labour shortages when qualified Canadians are not available. Where a franchisee advises TDL that it is having difficulty maintaining appropriate staffing levels and has been unable to recruit locally to fill staffing shortages, TDL will review their efforts with them to determine the most appropriate way to address the issue. Where efforts to recruit Canadian employees have failed, TDL may suggest that the franchisee consider applying to participate in the TFWP. Hiring foreign workers is meant to be a last resort where all other efforts to fill staffing shortages have failed. TDL also expects and requires that the franchisees will comply with the terms of their franchise agreement, including compliance with human rights legislation, with respect to all workers in their employ and is solely responsible for meeting the conditions of the TFWP and for the employment of the foreign worker. 22 While TDL may provide support or assistance to franchisees applying to participate in the

7 Page 7 TFWP, TDL does not participate or otherwise engage in the decision to hire foreign workers. Moreover, the Tim Hortons Respondents submit that the franchisee is not required to keep TDL involved in, or apprised of, the status of the process. 23 TDL also says that, under the TFWP, the franchisee has the option of providing housing and, if it elects not to, the franchisee is required to assist foreign workers with finding suitable and affordable accommodation. In many smaller and more rural communities like Dawson Creek, affordable rental housing may not be available or suitable for foreign workers. In those situations, the franchisee's agreement to provide housing to the foreign workers is effectively a necessity. In any event, TDL says that it does not have any involvement in the franchisee's decision whether or not to provide housing. 24 TDL says it did not participate in the decision to hire the complainants. This was the sole responsibility of the Numbered Company, pursuant to the TFWP and, as with all employees, pursuant to the terms of the franchise agreements. It was the Numbered Company that submitted a Labour Market Opinion ("LMO") application in respect of both of the restaurants to hire the foreign workers selected by it following the interview process. The LMO application lists the Numbered Company as the employer. At the Numbered Company's request, TDL was listed as a "Third Party" on the application. TDL says that this was to assist the Numbered Company with the paperwork and process. TDL says that neither of the Tim Hortons Respondents was a party to: a. any of the complainants' employment agreements. The Numbered Company was exclusively responsible for the employment of the foreign workers it hired, including the complainants; or b. any of the complainants' tenancy arrangements or agreements and did not own any interest in the complainants' accommodations. 25 TDL says that it is the responsibility of each Tim Hortons franchisee to elect whether or not to provide accommodations. The Tim Hortons Respondents say that they are not involved in the decision whether or not to supply housing. TDL also submits that there is no requirement under provincial or federal law, or under the terms of the TFWP, for a franchisor to implement a policy prohibiting a franchisee from housing temporary foreign workers. To the contrary, the Tim Hortons Respondents submit that employers have the option of providing housing and, if they decide not to, must assist temporary foreign workers to find suitable and affordable accommodation. 26 The Tim Hortons Respondents say that, if the allegations described in the complaint did occur, the complainants have failed to establish that the Tim Hortons Respondents contravened the Code or otherwise owed the complainants any legal obligation with respect to their employment or tenancies. 27 The complaint alleges that, when they raised any concerns about their working or living

8 Page 8 conditions, Mr. Van Den Bosch [Tony] threatened to "send [them] back to Mexico." Two of the complainants (Mr. Lara and Mr. Chein) were fired and sent back to Mexico in April 2012 after questioning their working conditions. 28 The complaint, as amended in November, specifically makes allegations against the Tim Hortons Respondents. It alleges that they have contributed to the discrimination described in the complaint by engaging its franchisees in the TFWP and exacerbating the power imbalance experienced by the complainants. The complaint alleges that three of the complainants were interviewed by multiple Tim Hortons franchises during the course of their TFWP application process and the respondent TDL is listed as a third party on the LMO. 29 The complaint also claims that none of the complainants experienced any training specific to the TFWP. Further, to the complainants' knowledge, there is no policy by THI or TDL prohibiting a franchisee from housing workers in the TFWP, notwithstanding the employment contract stating that the employer would not provide housing for the workers. 30 The May 2013 amendment made the following additional allegations regarding the Tim Hortons Respondents: * The Company was active in expanding the scope of the TFWP for lower-skilled occupations. THI lobbyists working for the Tim Hortons Advertising & Promotion Fund (Canada) met with multiple government agencies about the expansion of the TFWP. * TDL's Labour Strategies Manager was a witness at the Standing Committee on Citizenship and Immigration about the TFWP on April 2, 2008 on behalf of 2,700 Tim Hortons locations across Canada. * The Standing Committee on Citizenship and Immigration released a report on Temporary Foreign Workers and Non-Status Workers in May of 2009 noting the vulnerability of temporary foreign workers and making a number of recommendations. * TDL encouraged and assisted its franchises across the country in hiring workers through the TFWP. For example, TDL is listed as a third party on the Labour Market Opinion (LMO) under which the complainants were hired, and TDL's Labour Strategies Manager was copied on that correspondence.

9 Page 9 * TDL's Labour Strategies Manager has also made numerous presentations at food and beverage industry conferences about how to use the TFWP. * Use of the TFWP has become part of the Tim Hortons Respondents' business model. Since 2007, over 14,000 positive Labour Market Opinions have been secured by Tim Hortons franchises across Canada. * TDL exercises a great deal of control on its franchises through a number of franchise-related documents including, but not limited to: a. Franchise Agreement; b. Operating Agreement; c. License Agreement; d. Policy Manual; e. Franchise bulletins; f. The Franchise Advisory Board; and g. National and Regional franchise meetings. * TDL's tight grasp on franchisees places it in a similar position of having a great deal of control in the environment created when a franchise is opened. * The Tim Hortons Respondents play an active role in the recruitment of temporary foreign workers for various franchise locations; for example, it promotes the Tim Hortons Respondents on behalf of its franchises at job fairs in Mexico.

10 Page 10 * Three of the complainants were interviewed by multiple Tim Hortons franchises during the course of their TFWP application process. * Given its active role in expanding and engaging in the low-skilled stream of the TFWP, the Tim Hortons Respondents knew or ought to have known that it was placing workers in inevitably vulnerable positions and that the exploitation of that vulnerability by its franchisees was possible and indeed likely. * The systemic power imbalances inherent in the low-skilled stream of the TFWP are widely recognized and documented. An abundance of government reports, including that of the Standing Committee on Citizenship and Immigration, academic literature and media coverage have identified the vulnerabilities and mistreatment of temporary foreign workers. * Despite their role in expanding the TFWP and in engaging its franchises in the TFWP, the Tim Hortons Respondents failed to implement adequate safeguards in its operations to prevent worker mistreatment by its franchisees as other companies have done. Specifically, the Tim Hortons Respondents failed to implement obvious, reasonable protections for workers, including: a. Policies around the hiring, training, and treatment of temporary foreign workers; b. Cultural sensitivity training for Canadian employees about the norms and cultures of the countries from which the workers come, as well as a published policy forbidding discrimination and harassment; c. An internal mechanism for temporary foreign worker complaints about mistreatment by (franchisee) employers; d. An internal mechanism to promptly and comprehensively investigate any allegations of human rights infringements;

11 Page 11 e. Procedures to ensure any company-provided accommodation for temporary foreign workers is "adequate" as defined by international standards; f. Policies prohibiting restrictions on foreign workers that amount to discriminatory treatment and compromise the voluntariness of the workers' labour, including the withholding of passports and other travel documents; and g. Policies to facilitate workers' settlement in their new communities (e.g. language training supports where necessary). * As the first contact for the temporary foreign workers during recruitment, the Tim Hortons Respondents must be held accountable to provide supports for workers once they are employed by its franchises. III APPLICATIONS * By building the TFWP into its business model for franchises and encouraging franchisees to use the program, the Tim Hortons Respondents has created an environment that is highly likely to be toxic for temporary foreign workers. As the party responsible for the formula creating that environment, it must bear responsibility for taking measures to guard against further exploitation. A. MAY AMENDMENT OF COMPLAINT 31 As noted above, the original complaint was filed in September In November the same year, the complainants filed an amendment to the complaint which was accepted for filing by the Tribunal. The complainants filed a further amendment in May 2013 (the "May amendment"). The Tribunal accepted the May amendment for filing. 32 The Tim Hortons Respondents submit that the May amendment should not be accepted for filing because it contains fresh allegations that pre-date the filing of the original complaint by more than six months and therefore an application to amend is required pursuant to Rule 25(4) of the Tribunal's Rules of Practice and Procedure. In addition, the Tim Hortons Respondents argue that any application to file the amended complaint should be dismissed for the following reasons: a) The amended complaint contains information that was within the

12 Page 12 knowledge of the complainants and available to them at the time that the complaint was filed; b) The facts set out in the amended complaint occurred between four to six years prior to the filing of the complaint and substantial prejudice would result to the Tim Hortons Respondents by being forced to respond to such dated allegations where the memories of witnesses have faded, witnesses are no longer available and/or documents are impossible to recover; c) The proposed amendments are not proper because they add evidence and argument to supplement the original complaint and cannot be characterized as particulars; and d) The complainants filed the amended complaint with full knowledge that the Tim Hortons Respondents intended to file an application to dismiss and did so in an apparent attempt to circumvent the requirement to apply to amend a complaint where an application to dismiss is outstanding. 33 The complainants argue that the May amendment further particularized the complaint against the Tim Hortons Respondents. At the time that the May amendment was filed, the Tribunal's former Rules of Practice and Procedure applied and Rule 25(1) allowed a complainant to amend the complaint "at any time up until two months before the date scheduled for the hearing of the complaint, without an application." An application was necessary only in two circumstances: first, where the amendment added an allegation that occurred outside of the time limit for filing the complaint and, second, where there was an outstanding application to dismiss. 34 Now, the new Rule 24 of the Tribunal's amended Rules of Practice and Procedure expressly distinguishes between adding "details" to a complaint and adding "allegations". 35 The Tim Hortons Respondents argue that the May amendment should not be accepted because it adds allegations that pre-date the six-month limitation period, and there are no grounds for accepting the late-filed allegations. They point to specific parts in the May amendment which reference historical events. 36 The first issue is whether the May amendment adds new allegations of discrimination that are outside the six-month time limit. If it does not, then the complainants were entitled to file it without an application pursuant to the Former Rule 25 and/or as details pursuant to the Amended Rule The complainants argue that the May amendment does not add allegations against the Tim Hortons Respondents outside the six-month time limit. Rather, it explains in greater detail why it

13 Page 13 says the franchisor should be held liable in this case. Specifically, the complainants submit that the May amendment explains: a) The Tim Hortons Respondents were active in expanding the scope of the TFWP for lower-skilled occupations. The complainants say that this is not an allegation of discrimination; but that it is context relevant to understanding the role played by the Tim Hortons Respondents in recruiting and hiring the complainants which, they say, is a factor relevant to determining liability. b) TDL's Labour Strategies Manager was a witness at the Standing Committee on Citizenship and Immigration in 2008, and made presentations at industry conferences explaining how to use the TFWP. The complainants say that these are not allegations of discrimination; but are facts relating to the involvement of the Tim Hortons Respondents in the hiring and recruitment practices of its franchisees, which is a factor relevant to determining liability. c) The Standing Committee on Citizenship and Immigration released a report in 2009 about the vulnerability of temporary foreign workers. The complainants say that this is not an allegation of discrimination; it is context. d) Since 2007, Tim Hortons franchises have secured 14,000 positive Labour Market Opinions to bring temporary foreign workers to Canada. The complainants submit that this is not an allegation of discrimination. This is a fact that describes the extent to which Tim Hortons relies on temporary foreign workers to staff its restaurants. 38 The complainants argue that, read together with the role of the Tim Hortons Respondents in promoting and expanding the TFWP, these new allegations support the argument that they are sufficiently involved in the recruitment, hiring and working conditions of the complainants (as temporary foreign workers) to warrant findings of liability against them in this case.

14 Page The complainants say that providing this context assists the parties and the Tribunal to better understand the nature of the case alleged against the Tim Hortons Respondents, and adds detail to the existing allegations of discrimination. The complainants point to where the Tribunal has held that "[p]arties are to be encouraged to provide full particulars of their position in advance of a hearing" George v. Provincial Health Services Authority, 2012 BCHRT 421 at para. 7), and that "[u]nder the direct access system, it is often the case that the complaint and the defence to it are particularized through the course of the Tribunal's pre-hearing procedures." (See: Larssen v. City of Port Coquitlam and others (No. 2), 2005 BCHRT 548 at para. 25). The complainants submit that the Former and Amended Rules explicitly contemplate doing so by way of an amendment, up until two months (under the Former Rules) or four months (under the Amended Rules) before the hearing. 40 The complainants argue that the Tim Hortons Respondents cannot, on the one hand, complain that the complaint against them is "vague [and] not adequately particularized", and on the other, argue that the complainants should not be entitled to amend their complaint pursuant to the Rules. They point out that such an approach was criticized by the Tribunal in Larssen as follows: In this case, the City respondents... filed their response to the complaint, in which they noted that the complaint, in their view, lacked sufficient particulars. They were within their rights in doing so. However, having put Ms. Larssen on notice that they believed that the complaint was insufficiently particularized, they cannot now complain when she has provided, through her response to the application to dismiss, the particulars which they said they lacked. To forestall a complainant from ever further particularizing her complaint, as the City respondents sought to do through their submissions, would be both unfair and unduly technical, and would tend to defeat, rather than further, the purposes of the Code. (at para. 26, emphasis added) 41 The Practice Directions published by the Tribunal provide that the amended Rules will apply to all complaints as of the effective date of July 15, There is an exception for Former Rule 25, but only if the date for the hearing has been set within months of the amendment. That is not the case here. 42 I consider that the May amendment provides background, context and further particulars of the allegations against the Tim Hortons Respondents. The amendment does not add new dated allegations but seeks to support the allegation that the Tim Hortons Respondents may be responsible for the discrimination alleged in the complaint. Accordingly, I conclude that the May amendment was properly filed pursuant to the Former Rule 25 and no application was required. B. APPLICATION TO DISMISS 43 The Tim Hortons Respondents submit that the entirety of the complaint should be dismissed pursuant to section 27(1) of the Code on the following grounds:

15 Page 15 a) None of the acts or omissions alleged in the complaint against the Tim Hortons Respondents contravene the Code, even if they were true (section 27(1)(b)); b) There is no reasonable chance that any portion of the complaint against the Tim Hortons Respondents will succeed (section 27(1)(c)); c) Proceeding with the complaint against the Tim Hortons Respondents would not further the purposes of the Code (section 27(1)(d)(ii)). 44 The Tim Hortons Respondents submit that they are not proper parties to the complaint for the following reasons: a) The Tim Hortons restaurants where the alleged discrimination occurred were independently owned and operated franchises. b) The Tim Hortons Respondents were never the complainants' employer, and therefore they are not properly parties to the complaint. Specifically, the Tim Hortons Respondents did not offer services, employ any individuals, or carry on business at the Dawson Creek Tim Hortons franchises at the relevant time. c) The Tim Hortons Respondents were never the complainants' landlord, nor were they in a "tenancy-like relationship" with the complainants. d) The Tim Hortons Respondents did not own or otherwise have an interest in the complainants' accommodations. e) None of the allegations in the complaint pertaining to the Tim Hortons Respondents can properly found a claim of discrimination against them. 45 The remaining respondents made no submissions concerning the Tim Hortons Respondents' application to dismiss. IV SECTION 27(1)(b) -- NO CONTRAVENTION OF THE CODE 46 Determinations under s. 27(1)(b) are made on the basis of the allegations outlined on the face of the complaint, without reference to any alternative explanation or evidence that the Tim Hortons

16 Page 16 Respondents may put forward. See: Bailey v. B.C. (Min. of Attorney General) (No. 2), 2006 BCHRT 168 para. 12. In order to amount to discrimination under the Code, there must be facts alleged from which a reasonable inference could be drawn that there was a connection, or nexus, between the allegedly discriminatory conduct and a prohibited ground of discrimination. See: Gichuru v. WCAT, 2007 BCHRT 189, para. 23. It is therefore not enough that a complainant be a member of a protected group and experience adverse treatment, there must be a nexus between the two factors. See: Ingram v. Workers' Compensation Board, 2003 BCHRT 57 at para A "person" may be in breach of s. 13 of the Code if the person has discriminated against a complainant "regarding employment". "Person" is defined inclusively in s. 1. "Regarding employment" merely requires a nexus between the discriminatory conduct and the complainant's employment. In Peacock v. Pacific Equine Clinic and another, 2008 BCHRT 362, para. 41, the Tribunal held there can be a contravention of s. 13(1) where a respondent has the ability to influence the employment relationship, even though there is no direct employment relationship between the respondent and the complainant. 48 While the Tim Hortons Respondents say that THI has no connection to the matters at issue in the complaint aside from THI being a related company to TDL, there are allegations specifically against THI that consist of: * THI is said to be a franchisor, along with TDL. * Also, along with TDL, THI is alleged to have contributed to the alleged discrimination by promoting the expansion of the TFWP; by adopting business practices that promote the use of temporary foreign workers; and by failing to adopt business practices that would adequately protect the same workers. * The complainants specifically say that THI lobbyists working for the Tim Hortons Advertising & Promotion Fund (Canada) met with multiple government agencies about the expansion of the TFWP. 49 TDL says that the complainants have not alleged that TDL was the complainants' employer, or that they violated any terms of the TFWP. TDL says that the complainants' allegations against it are that TDL "contributed to the... discrimination by promoting the expansion of the TFWP by adopting business practices that promote the use of temporary foreign workers; and by failing to adopt business practices that would adequately protect the same workers." TDL submits that these alleged actions, even if proven, do not contravene the Code. The allegations concern the administration and regulation of the TFWP and whether the TDL initiated voluntary measures to protect the employees of a franchisee. TDL says that these amount to allegations of systemic problems with the TFWP that are both outside the jurisdiction of the Tribunal and outside the scope

17 Page 17 of the complaint, which relates to the narrower issue of whether the complainants experienced discrimination related to their employment or housing. 50 TDL says that there is nothing alleged against it that could establish liability under the Code given its limited role as franchisor. They argue that the use of the trade name "Tim Hortons" by the franchisee Numbered Company is not sufficient to create a relationship that would allow the Tribunal to make a finding of liability against the TDL. 51 TDL argues that, even if the complainants were able to establish a nexus between their ancestry, colour, place of origin and/or race and the alleged unfair treatment by the Franchisee Respondents, this does not create any liability on the part of TDL who were not a party to the employment relationship and did not have the ability to affect any term or condition of the complainants' employment. 52 TDL notes that the Tribunal advised the complainants that they had failed to provide information to identify acts or omissions by the TDL that would allow the Tribunal to accept the complaint. Despite this opportunity, TDL claims that the complainants initially failed to allege any acts or omissions by them that were linked to the alleged discrimination. TDL says that, despite their amendment, the complainants still fail to make out a valid complaint. 53 The complainants admit that, although they each entered into an employment agreement with the Numbered Company, TDL was not a party to those agreements. Nor do the complainants allege that TDL violated any terms of the TFWP. 54 However, the complainants allege that TDL contributed to the discrimination by promoting the expansion of the TFWP; by adopting business practices that promote the use of temporary foreign workers; and by failing to adopt business practices that would adequately protect the same workers. 55 In their argument in this application, the complainants claim that TDL is in an employment relationship with all employees in their Tim Hortons restaurants, including the complainants. They advance this conclusion on the basis that TDL has made temporary foreign workers a part of their business model and that TDL exercises a significant amount of control over all aspects of the workplace, thus they were in a position to influence working conditions and prevent the discrimination from occurring. Finally, the complainants say that TDL is in the best position to fulfill the purposes of the Code by remedying and preventing discrimination. If proven, they say, this will establish that TDL is liable for the discrimination against the complainants. 56 I note that, in many of its allegations, the complainants refer to TDL and THI together and do not differentiate which firm is alleged to have done what. However, I also note that, concerning the franchise relationship, it is only TDL that is said to exercise a great deal of control on its franchises through a number of franchise-related documents. Ultimately, however, the complaints allege "Tim Hortons Inc. and TDL Group Corp. have contributed to the above-noted discrimination by engaging

18 Page 18 its franchises in the TFWP and exacerbating the power imbalance experienced by the complainants." 57 The complainants say that THI was involved in the acts or omissions in relation to the TFWP and its franchisees that contributed to the alleged discrimination. The Tim Hortons Respondents are each alleged to have had significant influence in the employment of the complainants, by fostering the use of the TFWP but, at the same time, declining to put in place safeguards respecting the rights of such workers when hired by franchisees. If the complainants are able to prove the alleged acts and/or omissions of the Tim Hortons Respondents, the facts may support a finding that the Tim Hortons Respondents are responsible for the alleged adverse treatment in employment arising from the complainants' race, colour, ancestry, and place of origin. As such, by review of the complaint itself, I am unable to dismiss the complaint under s. 27(1)(b) of the Code and the application in this regard is denied. V SECTION 27(1)(c) -- NO REASONABLE PROSPECT OF SUCCESS 58 Under s. 27(1)(c) of the Code, the Tribunal determines whether, based on the material provided by the parties, and applying its expertise, it is persuaded that there is no reasonable prospect the complaint will succeed: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95, leave to appeal ref'd [2006] SCCA No. 171; Workers' Compensation Appeal Tribunal v. Hill, 2011 BCCA 49; and Gichuru v. British Columbia (Workers Compensation Appeal Tribunal), 2010 BCCA 191, leave to appeal ref'd [2010] SCCA, No The propositions that can be taken from these cases in respect of preliminary applications to dismiss under s. 27(1) of the Code are: 1) The Tribunal's role in evaluating complaints under s. 27(1) of the Code is as a gatekeeper so that only complaints with sufficient merit will justify the time and expense of proceeding to a full hearing. (Berezoutskaia at paras ; Hill at para. 27); 2) The Tribunal's role in determining s. 27(1) applications is discretionary. The Tribunal does not make findings of fact but assesses the evidence with a view to whether there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence." (Berezoutskaia at para. 22); and 3) The threshold for proceeding to hearing is low. The complainants must only show their complaint is based on more than mere speculation or conjecture. (Hill para 27; Gichuru at paras ) 59 The facts alleged must be capable of supporting a reasonable inference that the adverse

19 Page 19 treatment alleged is related, in whole or in part, to a prohibited ground of discrimination. See: Schnurr v. Douglas College, 2007 BCHRT 40, para. 23, upheld Schnurr v. Douglas College, 2008 BCSC In a review under s. 27(1)(c) of the Code, the Tribunal does not determine whether the complainant has established a prima facie case of discrimination or the bona fides of the response: Wickham and Wickham v. Mesa Contemporary Folk Art and others, 2004 BCHRT 134 at para. 11. Rather, the Tribunal's task is focused on the likelihood that facts supporting the complaint could be made after a full hearing of the evidence. 61 In order to succeed in their complaint at a hearing, the complainants would have to establish that the respondents treated them adversely, in part, because of the protected grounds. On an application to dismiss filed under s. 27(1)(c), the burden is not on the complainants to establish a prima facie case, but rather it is on the respondents to show that they have no reasonable prospect of success in doing so: Stonehouse v. Elk Valley Coal (No. 2), 2007 BCHRT 305. A. THI 62 Above, I noted that by describing the Tim Hortons Respondents generally, the complainants allege that both THI and TDL are responsible for the alleged discriminatory actions. 63 However, the particular allegations directed against THI are that THI is the parent company to TDL and THI participated in lobby efforts concerning the TFWP. The complainants allege that the actions of TDL, as Franchisor, is influential in the working relationship of the complainants and the Franchisee Respondents. TDL has power under the franchise agreement to conduct audits and inspections of the restaurants. No such power is alleged to have been granted to THI. 64 THI claims that it is a complete stranger to the relationship with the franchisee Numbered Company. The respondents have put forward uncontradicted evidence that THI's role is as an owner of TDL, and that it is not involved in day-to-day decision-making. 65 The complainants have put forward no evidence of THI's role in the operation of any of the franchises. 66 I therefore have no difficulty concluding that the complainants have no reasonable prospect that they will be successful in proving their complaint against THI and the complaint against it is dismissed. B. TDL 67 The complainants allege that TDL encouraged and assisted its franchises across the country in hiring workers through the TFWP and note that TDL is listed as a third party on the LMO under which the complainants were hired, and TDL's Labour Strategies Manager was copied on that

20 Page 20 correspondence. Additionally, the complainants allege that use of the TFWP has become part of the TDL 1 business model as is shown by the fact that, since 2007, over 14,000 positive LMOs have been secured by Tim Hortons franchises across Canada. 68 The complainants say that TDL has involvement concerning the discrimination because TDL exercises a great deal of control on its franchises through a number of franchise-related documents. They say that, because TDL has a tight grasp on franchisees, this places it in a similar position of having a great deal of control in the environment created when a franchise is opened. 69 The complainants also point to TDL having an active role in the recruitment of temporary foreign workers for various franchise locations and that it promoted them on behalf of its franchises at job fairs in Mexico. 70 The complainants point to the allegation that three of them were interviewed by multiple Tim Hortons franchises during the course of their TFWP application process. The complainants allege that, given its active role in expanding and engaging in the low-skilled stream of the TFWP, TDL should have known that it was placing workers in inevitably vulnerable positions and that the exploitation of that vulnerability by its franchisees was possible and indeed likely. 71 Despite their role in expanding the TFWP and in engaging its franchises in the TFWP, the complainants say that TDL failed to implement adequate safeguards in its operations to prevent worker mistreatment by its franchisees as other companies have done. The complainants allege that, as the first contact for the temporary foreign workers during recruitment, TDL must be held accountable to provide supports for workers once they are employed by its franchises and that, by building the TFWP into its business model for franchises and encouraging franchisees to use the program, TDL has created an environment that is highly likely to be toxic for temporary foreign workers. 72 For the purposes of establishing a prima facie complaint of discrimination under ss. 10 and 13 of the Code, in the context of the complaint, the complainants must establish that they were adversely treated by TDL in the course of their employment or in the provision of their housing in respect of a protected ground. Further, there must be a nexus between the prohibited ground of discrimination and the adverse treatment. See: Moore v. British Columbia (Education), 2012 SCC 61 at para A contravention of s. 13 of the Code does not require that an employment relationship exist between the complainant and the respondent: see for example, Vetro v. Greater Vancouver Transportation Authority, 2005 BCHRT 383. Specifically, s. 13(1) does not require that "a person" be "an employer" in order for its provisions to apply. The section provides that "a person" must not discriminate "regarding" employment. Several decisions by the Tribunal have contemplated a contravention of s. 13(1) in situations where there was no direct employment relationship between the complainant and the respondent, but where the respondent has the ability to interfere with or influence the employment relationship: see for example, Middlemiss v. Norske Canada Ltd., 2002

21 Page 21 BCHRT 5; and Pettie v. Canada Safeway Limited and Gavin (No. 2), 2004 BCHRT 440. (para. 20) 74 Thus, the Code does not require that TDL employ the complainants or have actively engaged in discriminatory conduct in order to be found to have violated s.13 of the Code. See: Ch rthaigh v. Blenz The Canadian Coffee Company, 2012 BCHRT 264. It may be sufficient if the respondent has the ability to interfere with and influence the employment relationship of the Franchisee Group with its employees and fails to do so. The Tribunal has held that liability may be found where the respondent has the ability to interfere with or influence the employment relationship. Hunter v. B.C. (Ministry of Health) and others (No. 2), 2005 BCHRT The franchise agreement was tendered as evidence and it shows that: * It allows TDL to protect the integrity and value of the Tim Hortons brand; * TDL requires that all franchisees operate the franchised restaurants in accordance with all applicable laws; * TDL seeks to maintain consistent standards as set out in the operating manual; * TDL conducts regular compliance reviews; The franchisees are explicitly responsible for: (a) hiring and training employees to run the Restaurants, at its own expense; (b) the terms and conditions of all employees' employment; (c) scheduling and maintaining sufficient staffing levels to appropriately serve the Restaurants' customers; (d) securing and maintaining workers compensation insurance, at its own expense; (e) complying with all local labour laws and applicable codes of conduct, such as the Human Rights Code of British Columbia;

22 Page 22 (f) compliance with the terms of the Operating Manual, including, (i) implementing and enforcing an anti-harassment policy that prohibits all forms of harassment, including discrimination contrary to the Human Rights Code; and (ii) posting a notice in the Restaurants setting out how to report complaints of harassment and who at TDL to contact to make a report. 76 I also note that, in the Franchise Agreement, TDL was explicitly not the complainants' employer and the Franchisee is an independent contractor that is exclusively responsible for the terms and conditions of their employment. Further, the franchisee is said to have no ability to create any obligation on behalf of TDL. 77 TDL's evidence is that none of the compliance reviews of the Restaurants revealed any information that would give rise to any concern that any worker or group of workers was being mistreated. 78 However, the Franchisee was required to post a notice letting their employees know how to report any concerns about violations of the Human Rights Code or other breaches. In the event the employee is unable to resolve the complaint, the notice also provides a toll-free number for the TDL human resources department. In the event that any concern is reported to TDL, TDL would contact the applicable franchisee to bring the matter to the franchisee's attention for the franchisee to address. TDL says that while it may, upon request, act as a resource to franchisees, in no way would it take steps to address or assume responsibility for any employment matter. Rather, pursuant to the franchise agreements, it is the franchisee's sole responsibility to deal with and manage its employees. 79 It is TDL's evidence that, to its knowledge, no complaints regarding the treatment of foreign workers or harassment at the Restaurants were reported to TDL through human resources, or otherwise. It says that, to the extent that a franchisee elects to participate in the TFWP, TDL expects and requires that franchisees will comply with all of the requirements of the program. TDL also expects and requires that the franchisees will comply with the terms of their franchise agreement, including compliance with human rights legislation, with respect to all workers in their employ. 80 TDL says that the evidence shows that TDL offers support to franchisees who have questions about ways to improve their businesses, or who are otherwise seeking advice related to the operation of their business. This provides TDL with the opportunity to share its wealth of