National Post (National Edition)

Tim Hortons franchisee sues over alleged broken promises.

Accuses chain of baiting him in U.S. expansion

- Jake edmiston

A Tim Hortons franchisee accused the coffee chain on Wednesday of baiting him into spending “millions” on an ill-fated expansion, according to a lawsuit filed in Minnesota district court.

The franchisee — TimMinn Inc. — is wholly owned by an Ontario company led by Paul Durigon, a Canadian whose constructi­on firm helped build several Tim Hortons locations across Canada. Though Durigon’s company served as a landlord to “a few” of the franchises, according to the lawsuit he had no experience in franchisin­g or the restaurant industry. In 2016, his TimMinn group neverthele­ss spearheade­d Tim Hortons’ ambitious push into Minnesota, agreeing to open 280 franchises in a state where previously there had been none.

In the complaint Wednesday, Tim-minn said Tim Hortons USA Inc. and its parent, Restaurant Brands Internatio­nal Inc., “took advantage” of the new franchisee’s inexperien­ce, allegedly charging high markups on supplies and selling used equipment to Tim-minn restaurant­s “at current market value for new equipment.”

Tim-minn said the expansion project has stalled, with only 14 of 280 stores actually open — none of which are as profitable as Tim Hortons USA allegedly signalled they would be in a “data pack,” according to Tim-minn’s lawyer.

“They baited my client with these figures from the data pack, which had no basis in reality,” said the lawyer, Jerry Marks of the New Jersey-based firm Marks & Klein LLP.

“My clients have been operating these 14 stores ... and they don’t produce the type of income that the data pack said they would produce.”

On Wednesday, Restaurant Brands Internatio­nal dismissed the claims, casting Tim-minn as a rare failure among thousands of successful franchisee­s.

“This is an issue of a restaurant operator in the U.S. who says he did not find success with a proven business model that thousands of others in Canada have already succeeded with,” RBI spokeswoma­n Jane Almeida said in a statement. She did not answer questions Wednesday.

“It’s not our practice to comment on this type of individual action, other than to say that we clearly disagree with his point of view,” the statement reads. “We will seek to resolve this in our normal course dealings with him or by asking the court to enforce the franchise agreement he knowingly agreed to.”

Tim-minn said Tim Hortons started the process by negotiatin­g the franchise agreement in bad faith, providing Durigon and his team with “incomplete, incorrect, and misleading financial informatio­n.”

In one instance during negotiatio­ns, Tim-minn alleges that more than a dozen pages in a franchise disclosure document sent by Tim Hortons USA were blank or “totally obscured.” The same documents, registered with the Minnesota Commerce Department as required by the Minnesota Franchise Act were “complete ... intact and present,” the lawsuit claims.

The suit argues that while Tim Hortons claimed it would charge a “reasonable” markup for goods franchisee­s such as Tim-minn were required to purchase from the company or an approved vendor, the markups were “objectivel­y unreasonab­le.”

In some cases, the suit claims, “Tim-minn was charged … between 20-50 per cent above market rate for necessary items.”

On top of its issues with the franchise agreement, Tim-minn accused Tim Hortons of squelching its growth in Minnesota, where the coffee chain had “no brand recognitio­n.” The chain, TimMinn said, was obligated to invest in marketing efforts to boost the brand in Minnesota. But it “spent carelessly and interfered with the marketing agencies it hired to do the work,” the lawsuit reads.

The franchisee alleged his business was further undermined by “an unnecessar­y and wasteful lawsuit” filed against it by Tim’s in Florida. The suit, according to the Star Tribune, was about outstandin­g franchise fee payments. Tim-minn said the 2017 lawsuit was “dismissed less than a week after it was filed in admitted error.”

Despite the dismissal, Tim-minn alleges that lawsuit “caused and continues to cause unnecessar­y and expensive delays,” and says local property owners are no longer willing to deal with Tim-minn on terms that are “fiscally responsibl­e” for the franchisee.

The franchisee is seeking a jury trial and monetary compensati­on and damages. The lawsuit did not specify an amount.

It has accused Tim Hortons of 10 counts of wrongdoing, including fraud, negligent misreprese­ntation, breach of contract, unjust enrichment, and breach of implied covenant of good faith and fair dealing.

None of the allegation­s have been proven in court.

The lawsuit comes after Tim Hortons recently made a significan­t step toward reaching a settlement in two class-action lawsuits from a group of Canadian franchisee­s.

 ?? JONATHAN HAYWARD / THE CANADIAN PRESS FILES ?? A company that entered into an agreement to open numerous Tim Hortons restaurant­s in Minnesota filed a lawsuit against the chain and its parent company alleging breached agreements caused significan­t losses.
JONATHAN HAYWARD / THE CANADIAN PRESS FILES A company that entered into an agreement to open numerous Tim Hortons restaurant­s in Minnesota filed a lawsuit against the chain and its parent company alleging breached agreements caused significan­t losses.

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