Canada: Revisiting The Dunkin's Brand Decision In Light Of Ontario's Minimum Wage Increase

Last Updated: February 14 2018
Article by Simon Grenier and Miriam Robitaille

Following the recent increase in Ontario's minimum wage from $11.60 to $14.00, the decision by a Tim Horton's franchisee to reduce employee benefits to compensate for such increase caused an international uproar.

While no such increase has been made in Quebec thus far, the debate remains current and has the potential to impact any franchise employing workers who would be affected by such a measure.

In 2015, the Quebec Court of Appeal rendered an important decision in Dunkin Brands Canada Ltd. v. Bertico1 (the "Dunkin Case") on the duties of franchisors towards their franchisees.

In light of the recent public outings among franchisors, franchisees, the government and small business owners in Ontario over the responsibility of each in the 21% increase in labour costs, we offer to revisit the Dunkin Case, in order to determine how the Court of Appeal's findings in that matter could affect franchisees in Quebec in the event of an increase in this province's minimum wage.

The Dunkin Case began with a lawsuit brought in the late 1990s by Dunkin Donuts franchisees in Quebec against their franchisor. The franchisees alleged that the franchisor had not taken sufficient steps to enhance the image of the Dunkin brand in response to inroads by competitor Tim Horton's, which had captured a significant share of the market.

The Dunkin Case highlighted the fact that while there is no specific legal regime governing franchise contracts in Quebec, there are implicit obligations that are binding onto the parties in addition to those stipulated in the contract.

For their part, franchisees must respect the standards and rules of the banner under which they operate and contribute to protecting and preserving its reputation. As for franchisors, their duties extend not only to each of the franchisees, but to the entire network of their franchises. Among those duties are those of protecting and enhancing the reputation of the brand, the duty to assist and support franchisees as the market evolves, and the obligation to maintain a robust and vigorous network.

Duty towards franchisees

It is of the essence of a franchise contract that the franchisee is bound to operate its business in accordance with the contract's provisions, despite market fluctuations. It is however possible, in certain circumstances, that the nature of those fluctuations will trigger the franchisor's duty to assist, which requires franchisors to take concrete action to assist a franchisee who might be finding it difficult to adapt to a changing market.

Moreover, the franchisor has the obligation to maintain the relevance of the franchise contract throughout its term. In practice, this means that the franchisor must ensure that the franchisee's contract adapts as times change, such that the contract continues to be relevant as the market in which the franchisee operates evolves.

Thus, the franchisor must provide support to franchisees in adapting to new market conditions. For their part, the franchisees must cooperate with the franchisor in developing solutions, operate their businesses in compliance with any legislative changes, and continue to respect the standards imposed by the owner of the brand.

These correlative obligations remain applicable following any minimum wage increase that significantly impacts the labour costs required for the efficient and effective operation of the franchise. This is all the more so where the franchisee's responses to such a change in market conditions could have a negative effect on the entire network.

Duties towards the network

In this regard, the Dunkin Case affirms the premise that a franchisor has duties and obligations not only towards each of its franchisees, but to the entire network of franchises as well, which the Court characterizes as collective duties and obligations. In practice, these include the franchisor's obligation to ensure that no "bad apple" emerges within its network. The Court also stressed the franchisor's obligation, the very keystone of a franchise contract, to preserve the reputation, image and value of the brand in the eye of the public.

Given that the franchisees have the obligation to adapt to market changes, the nature of the decisions they make could affect the uniformity of the brand and the franchisor's network of stores. For example, a franchisee who decides, in response to a minimum wage increase, to make changes to its franchise that are detrimental to the brand image could thereby taint the entire network and harm the image of the other franchisees, for which the franchisor could well be found liable.

In short, a franchisor must remain alert and proactive in order to ensure that the standards of its brand are being respected by all its franchisees, including following an increase in the minimum wage. For their part, the franchisees must be prudent and diligent in the way they react to such changes, without losing sight of their responsibilities towards the chain they are part of.

The decisions and changes that are made in response to an increase in the minimum wage are important considerations to be borne in mind when construing the implicit obligations of a franchisor, recognized by Quebec courts, to maintain the relevance of the franchise contract and to ensure that the franchisee's response respects the brand's image.

Footnotes

1 2015 QCCA 625

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Simon Grenier
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions