BC Human Rights Tribunal Denies Tim Hortons’ application to dismiss human rights complaint on behalf of Fernie workers

In December of 2013 a group of workers at a Tim Hortons location in Fernie, BC approached the media and revealed allegations of abuses by their employer. The workers were originally from the Philippines, and had come to Canada through the Temporary Foreign Worker Program.

That month a representative human rights complaint was filed on behalf of the workers by the United Steelworkers Union. The complaint alleged a pattern of discrimination against the workers under the Human Rights Code, including the refusal to pay overtime premiums, giving workers employed through the TFWP less desirable shifts, and threatening workers with being sent back to the Philippines.

On November 6, 2015 the BC Human Rights Tribunal released its decision in United Steelworkers obo others v. Tim Hortons and others (No. 2) in response to an application by Tim Hortons Inc. and TDL Group Corp. (the franchisor) to dismiss the human right complaint filed against it on the basis that the complaint was properly against the franchisee in Fernie.

In the decision the Tribunal Member noted that under the Human Rights Code a franchisor can be held responsible for the actions of franchisee if there is a sufficient degree of control over the franchisee, for example where the control exercised would allow the franchisor to influence the response of a franchisee to an allegation of discrimination.  He ultimately found that he was not convinced that there was not a reasonable chance of success if the matter proceeded to a hearing, and denied Tim Hortons’ application to dismiss.

In coming to this decision the Tribunal Member considered internal audits by Tim Hortons/TDL which revealed that the franchisee 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.” Unpaid overtime between 2010 and 2013 was estimated at $65, 000 in Tim Hortons’ internal audit.

Furthermore, in a letter to the franchisee dated April 3, 2014 (and quoted in the decision), TDL noted “TDL cannot but take the position that there is a pattern of systemically avoiding the requirement to pay overtime to your employees,” and stated its concern that “the process of repaying this overtime, even if you were given the opportunity to do so, would further serve to damage the Tim Hortons brand especially because the complainants under the ESA and the Human Rights complaint are among those to whom you owe significant amounts of money.”

In a press release on November 4, 2014 Stephen Hunt, Director of the United Steelworkers for western Canada, noted “if this complaint is successful, Tim Horton’s will be forced to take responsibility for the treatment of their workforce.  No longer will they be able to turn a blind eye to the discriminatory treatment of workers by hiding behind franchisees.  It’s time for Tim Horton’s to demonstrate the Canadian values that it wishes to project by improving the treatment of their workers across Canada.”

This matter is ongoing, and will now be set for a full hearing.