Miraglia v. University of Waterloo, 2009 HRTO 799

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Marie Miraglia

Applicant

-and-

University of Waterloo

Respondent

-and-

Faculty Association University of Waterloo

Intervenor

interim DECISION

Adjudicator: Jay Sengupta

Date: June 9, 2009

Citation: 2009 HRTO 799

Indexed as: Miraglia v. University of Waterloo

1The applicant, Anna Maria Miraglia, filed an Application with the Tribunal on January 30, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 amended, (the “Code”). She claims that she suffered discrimination and harassment in the area of employment on the basis of sex. The respondent has filed a Response in which it asserts that it has not discriminated against or harassed the applicant. In a previous Interim Decision, the Tribunal granted a request to intervene by the Faculty Association University of Waterloo.

2This Interim Decision addresses two Requests for Orders During Proceedings made by the applicant. In the first, the applicant seeks production of certain documents by the respondent. In the second Request, the applicant asks that the hearing be held in writing and not in person and for an order permitting her to amend her application to add additional remedies. The respondent has submitted Responses to the Requests outlining its position on these issues, as has the intervenor. Each Request for Order will be dealt with in turn.

PRODUCTION OF DOCUMENTS

3The applicant has asked for production of a number of documents. The list includes the promotion file and salary information of a colleague who is also employed by the respondent and who is not a party to this Application.

4The respondent points out that the Tribunal’s Rules of Procedure outline the obligations of the parties to deliver all arguably relevant documents within 45 days of receipt of the Confirmation of Hearing (the Tribunal notes that the Rules require disclosure within 21 days of receipt of the Confirmation of Hearing). The respondent goes on to note that no Confirmation of Hearing has yet been received. It states its commitment to disclosing all arguably relevant documents in a timely manner and in keeping with the Rules. It specifically confirms and commits to disclosure of most of the documents sought by the applicant in accordance with the Rules. With respect to some of the documents, the respondent takes the position that it should not be ordered produced, asserting a claim of privilege and citing the privacy rights of the faculty member in question.

5The Tribunal has held that, absent exceptional circumstances, production orders will not be made in advance of the obligation to disclose arguably relevant documents under the Tribunal’s Rules see, for example, Dube v. Ontario English Catholic Teachers Association, 2009 HRTO 132. This Request is denied. The applicant may file a new Form 10 following the normal disclosure process if she still believes that the respondent has not produced all arguably relevant documents. If there is still a dispute over the production of the documents relating to the promotion and salary of a colleague, this dispute can be more usefully considered by the Tribunal having regard to the documents the parties have produced.

REQUEST FOR WRITTEN HEARING

6The applicant has made a request that the hearing be conducted in writing. She cites several reasons for her request including her own health conditions, her husband’s ill health and her corresponding need to spend time with her family, the availability of documentary evidence to prove the essential elements of this case and the further harm that an in-person hearing would cause to relationships within the department in which she works.

7The respondent points out that the applicant has made numerous allegations about the conduct of several employees of the respondent and that these allegations are categorically denied by the respondent. In cases involving competing versions of events and completely divergent narratives, the respondent argues that an oral hearing is critical in order for the decision maker to make the necessary assessments of credibility.

8Section 43(2)(1) of the Code and Rule 3.5 of the Tribunal’s Rules provide that an application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the Rules. Although the applicant appears ready to waive her right in this regard, the respondent is not.

9In addition, upon reviewing the materials filed, it is clear that this is not a case that could be disposed of in writing even if the parties had waived their right to make oral submissions. There are important factual issues in dispute that will require that the hearing adjudicator has the opportunity to hear from witnesses directly and that the parties be given the opportunity to present and test the evidence being given.

10The notice confirming hearing dates has not yet been sent to the parties by the Registrar. Once the parties have received the Confirmation of Hearing, any requests for adjournment of particular hearing dates will be dealt with in accordance with Tribunal policy. The parties may wish to consult the Information Bulletin on Scheduling of Hearings and Mediations, Rescheduling Requests, and Requests for Adjournments. The applicant is also directed to the Tribunal’s Policy on Accessibility and Accommodation. Both of these documents are available on the Tribunal’s website, www.hrto.ca, or from the Registrar’s office.

11Although the Tribunal denies the applicant’s request to have the entirety of the hearing held in writing, the parties are free to raise with the Vice-chair hearing this matter the possibility of written submissions following the evidence. Further, it is open to the parties to submit an agreed statement of facts that would narrow the scope of required evidence.

12The request for a written hearing is, therefore, denied.

REQUEST TO AMEND THE APPLICATION

13The applicant has asked that she be permitted to amend her Application to include a request for additional remedies. Included in the list of amendments is a request for an order amending her teaching schedule because of her own ill health and her husband’s illness.

14In the Form 11, the respondent objects to this aspect of the request to amend and points out that there is no connection between this particular remedy requested and the substance of the Application. The Faculty Association has also taken the position that the applicant’s teaching schedule is an issue that is more properly dealt with under processes currently in place within the University. The respondent does not specifically address any of the other amendments sought by the applicant and the Faculty Association has set out its position with respect to each point.

15In Boldt-Macpherson v. The Hoita Kokoro Centre et al, 2008 HRTO 16, the Tribunal laid out some of the factors considered when determining whether to allow an applicant to amend an application or add additional allegations:

a. Whether the additional allegations flow from or form part of the continuum of facts of the original complaint,

b. Whether the allegations provide a useful context for considering the legal issues in the case,

c. The reasons for raising the allegations at this date,

d. The quality of the evidence to support the additional allegations,

e. Whether the amendment would occasion actual prejudice to the respondents so that a fair hearing on the issues could not be held, and

f. The impact of the proposed amendment on the course of the hearing and the other parties.

16The amendments sought in this case relate to relief sought by the applicant and do not involve additional allegations. A decision to permit the amendment is not based on any assessment as to the appropriateness of the relief. It is open to the respondent to present evidence and argument concerning whether the relief claimed is connected to the substance of the Application and whether it is an appropriate remedy given the circumstances of the case. As there is no prejudice to the respondent in allowing the amendment, the request to amend the Application is granted.

17If the respondent wishes to file any additional materials in response to the amended Application, it is directed to do so within 14 days of receipt of this Interim Decision.

18I am not seized of this matter.