Alkenbrack v. Lowe’s Canada, 2016 HRTO 1198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Melissa Alkenbrack Applicant

-and-

Lowe’s Canada, Deborah Bronson and Jason Brooks Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel Date: September 13, 2016 Citation: 2016 HRTO 1198 Indexed as: Alkenbrack v. Lowe’s Canada

WRITTEN SUBMISSIONS

Lowe’s Canada, Deborah Bronson and Jason Brooks, Respondents Chelsea Rasmussen, Counsel

Introduction

1The purpose of this Interim Decision is to determine whether this Application should be deferred pending the resolution of a Small Claims Court claim commenced by the applicant.

2By Application filed May 16, 2016, the applicant alleged that the respondents discriminated against her because of disability, family status and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”). Specifically, the applicant alleged that the respondent discriminated against her in the way it handled information relating to her disability. She also alleged that she was discriminated against by being denied short term disability benefits due to incorrect information provided by the respondents to the insurer. Finally, she alleged that the respondents discriminated against her by failing to accommodate her family obligations and by making certain comments relating to the Pentecostal Church.

3The respondents requested that the Tribunal defer consideration of the Application pending the conclusion of a claim that the applicant filed in Small Claims Court on April 29, 2016. In her statement of claim, the applicant alleged that the respondents breached a contract with her by denying her short term disability benefits.

4The applicant did not respond to the respondents’ deferral request and the time for doing so has passed.

Deferral of application

5Section 45 of the Code confirms the Tribunal’s authority to defer consideration of an application. Deferral of an application ensures that proceedings dealing with the same or similar issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6Deferral is not automatically invoked simply because the parties are involved in other legal proceedings. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the type of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.

7There is an overlap in the key legal and factual issues raised in the two proceedings in this case. One of the applicant’s key allegations in her Application relates the respondents’ denial of her claim for short term disability benefits. This is the issue raised in her Small Claims Court proceeding. This overlap weighs in favour of deferral.

8Another factor that weighs in favour of deferral is the fact that the applicant’s Small Claims Court claim is at a more advanced stage. The claim was filed before her Application and the parties will be participating in a settlement conference on October 11, 2016.

9In these circumstances the Tribunal finds it appropriate to defer consideration of this Application pending the conclusion of the Small Claims Court proceeding and any related appeals.

10It should be noted that, where a party wishes to proceed with an application which has been deferred, the party must make a Request for an Order During Proceedings in accordance with Rule 19 within 60 days after the conclusion of the other proceeding (Rules 14.3 and 14.4).

Order

11For the reasons set out above, this Application is deferred pending the conclusion of the Small Claims Court proceeding in this matter, including any related appeals.

12The Tribunal will only deal with the respondents’ request to remove the two personal respondents if and/or when the Application is re-activated following the conclusion of the Small Claims Court proceeding.