Miraglia v. University of Waterloo, 2009 HRTO 1539

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne Marie Miraglia

Applicant

-and-

University of Waterloo

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: September 24, 2009

Citation: 2009 HRTO 1539

Indexed as: Miraglia v. University of Waterloo

APPEARANCES BY

Anne Marie Miraglia, Applicant ) Andrew Pinto, Counsel

University of Waterloo, Respondent ) Christopher Riggs, Counsel

1A conference call was held on September 16, 2009, to discuss various issues in relation to this Application which is scheduled to be heard on October 21, 22 and 23, 2009.

Status of the Intervener

2The Tribunal received a Request to Intervene, filed by Frank Reynolds on behalf of the Faculty Association of University of Waterloo (“the Faculty Association”). In an Interim Decision, 2009 HRTO 468, I concluded that the Faculty Association was entitled to participate as an intervener, and that the extent of its participation in any future proceedings would be determined by the Vice-chair who presides over those proceedings. I also noted that Mr. Reynolds’s current role in respect of the Faculty Association is not clear. I was subsequently assigned to hear the Application.

3The status of the Faculty Association was discussed at the conference call and Mr. Riggs undertook to investigate further. He subsequently forwarded correspondence dated June 30, 2009 from David DeVidi, President of the Faculty Association. This letter was addressed to the Tribunal Registrar but had inadvertently not been included in the case materials. The letter clarifies that Mr. Reynolds is retired from the University and is no longer a member of the Faculty Association. Mr. DeVidi further clarifies that, while Mr. Reynolds has personal knowledge which may be of assistance in resolving the Application, his views do not necessarily reflect the position of the Faculty Association. The letter does not say whether the Faculty Association wishes to intervene in the Application.

4On the basis of this information, it must be clarified that Mr. Reynolds personally is not an intervener because he has no interest in the outcome. As such, he does not have standing in the Application and cannot participate unless he is called as a witness.

5It is not clear whether the Faculty Association wishes to intervene in this Application. If it does, it must file a Request to Intervene with the Tribunal immediately. In the circumstances, the order naming the Faculty Association as an intervener is revoked.

6A copy of this Interim Decision will be sent to the Faculty Association.

Outstanding Production Order Request

7The applicant seeks production of records concerning Guy Poirier, including salary information and records from his promotion file. She asserts that these records are important to the Application because they will provide evidence that she experienced discrimination on the grounds of sex.

8The respondent takes the view that records concerning Mr. Poirier are privileged and should not be disclosed. The respondents argue that the documents from the promotion file were collected in confidence and that disclosure would undermine the University’s promotion and tenure determination process.

9Counsel agreed that if the documents were to be disclosed, they would be redacted so that the identity of any third party would not be disclosed.

10At the conference call, Mr. Pinto and Mr. Riggs both indicated that it is important to determine whether the Tribunal will order disclosure of these documents before the hearing and asked for time to make written submissions on the matter. A timetable was established. Mr. Riggs will file his submissions by September 25, 2009, and Mr. Pinto will file his submissions by October 2, 2009.

11Counsel agreed that Mr. Poirier is entitled to notice of the disclosure request.

12A copy of this Interim Decision will be sent to Mr. Poirier. Mr. Riggs and Mr. Pinto are directed to forward a copy of their submissions to Mr. Poirier. Mr. Pinto is further directed to provide Mr. Poirier with a list of the documents that the applicant seeks to have disclosed.

13Mr. Poirier must advise the Tribunal’s Registrar by October 9, 2009, if he wishes to make submissions with regard to the disclosure of documents. If he does not wish to make submissions, I will make a determination as soon as possible prior to October 21, 2009, when the hearing is scheduled to commence. If Mr. Poirier does wish to make submissions, a new timetable may have to be established.