The respondents are 658380 B.C. Ltd. (“658380”), who was the former franchisee which operated the Tim Hortons in Fernie; and Pierre Joseph Pelletier and Kristin Hovind-Pelletier (together the “Pelletiers”), a husband and wife who are the principals of 658380 B.C. Ltd.
The complaint was also brought against Tim Hortons, Inc. (“THI”) and TDL Group Corp. (“TDL”) (collectively the “Tim Hortons Respondents”). According to the Tim Hortons Respondents, TDL is in the business of licensing the right to operate Tim Hortons restaurants in Canada.
B.C. Human Rights Tribunal member Walter Rilkoff dismissed in a ruling dated November 5, 2015 the application bythe respondents to dismiss the complaint.
The complaint alleges that the respondents discriminated against the complainant group in their employment contrary to the Human Rights Code because of the complainants’ race, colour, ancestry and place of origin.
Specifically, the complainant group alleges that its members were denied overtime premiums, given less desirable shifts and threatened with being returned to the Philippines, while this was not the case with workers who were not foreigners.
“As most Canadians will know, Tim Hortons restaurants are ubiquitous in Canada selling coffee, donuts, soup, sandwiches and other food and beverages,” tribunal member Rilkoff noted in his decision.
The respondent franchisee denied that they have discriminated against the complainant group as alleged and say that they allowed banking of overtime and assisted members of the Complainant Group with immigration and other issues.
The complainants say that the Tim Hortons Respondents, pursuant to their franchise agreement with the Franchisee Group, have broad powers to determine many aspects of the business.
According to the decision, the Tim Hortons Respondents assisted the franchisee group with access to the Temporary Foreign Worker program and were able to monitor the performance and activities of the Franchisee Group. This included carrying out audits and reviews of the employment practises of a franchisee, including compliance with employment standards and workers compensation legislation.
The complainants further assert that the Tim Hortons Group has an internal grievance or investigation processwhereby employees of a franchisee can bring a complaint or concern to the attention of the Franchisor.
The Code does not require that the Tim Hortons Respondents employ the complainants or have actively engaged in discriminatory conduct in order to be found to have violated the Human Rights Code, according to Rilkoff.
It may be sufficient if a 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 member explained.
THI is a publicly- traded federally-incorporated company. TDL is a Nova Scotia company extra-provincially registered in Alberta and engaged in the business of developing, opening and licensing the rights to operate Tim Hortons restaurants. TDL is said to be an “indirectly but wholly owned subsidiary of the Respondent THI”, Rilkoff noted.
On April 3, 2014, TDL gave notice of immediate termination of the franchise agreements and of the leases and exercised its right to purchase furniture, fixtures, equipment and signs owned by 658780.
The action came after it found in an audit that in part, 658380 had failed to comply with the requirements of the work permits for the Temporary Foreign Worker Program, had failed to pay overtime in accordance with the Employment Standards Act, and had failed to comply with TDL’s Temporary Foreign Worker recruitment policy.
This action was taken some three and one-half months after the present human rights complaint was filed.