Cwynar v. The University of Western Ontario, 2012 HRTO 956

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barbara Cwynar

Applicant

-and-

The University of Western Ontario

Respondent

-and-

The Canadian Union of Public Employees, Local 2361

Intervenor

INTERIM DECISION

Adjudicator: Naomi Overend

Decision Date: May 11, 2012

Citation: 2012 HRTO 956

Indexed as: Cwynar v. The University of Western Ontario

WRITTEN SUBMISSIONS

Barbara Cwynar, Applicant

Robert L. Whittaker, Counsel

The University of Western Ontario, Respondent

Ron A. LeClair, Counsel

CUPE, Local 2361, Intervenor

Micheal Klug, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of disability.

2The applicant is represented by a union, the Canadian Union of Public Employees, Local 2361 (“CUPE”) which has brought a Request to Intervene (Form 5) on June 20, 2011. None of the parties have filed any submissions in response to this Request.

3In addition, the applicant has brought a Request for an Order During Proceedings asking for “particulars,” which in fact is a request for production of documents. The respondent has filed a Response to the Request for Order objecting on the basis that the request is premature.

REQUEST TO INTERVENE

4The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, will be granted intervention status when it so requests it.

9Moreover, given CUPE’s involvement with the applicant concerning the accommodation of her disability, it may be able to assist the Tribunal in determining some of the issues, including what transpired on January 13, 2010 and the days following. Accordingly, CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of the CUPE’s intervention will be determined by the adjudicator hearing the matter.

REQUEST FOR PRODUCTION

5In the Request the applicant seeks production of documents from the respondent of the documents it lists in its Response. The applicant requests them on the basis that she wishes to determine the “authenticity” of them.

6Rule 16 of the Tribunal’s current Rules of Procedure set out rules for the disclosure and production of documents by the parties. This Rule is triggered by the issuance of the Notice of Hearing, which has not yet happened in this case.

7Under the new Rules, the Tribunal has exercised its discretion to allow for early production of documents, but only in exceptional circumstances, such as where a respondent is unable to file a Response or the applicant is not able to ascertain the identity or contact information for a proposed respondent. The applicant has not any identified exceptional circumstances in this case.

8The applicant’s request for production at this stage is denied as premature.

order

9In summary, I have made the following orders:

1. CUPE is granted leave to intervene. Should the Application proceed to hearing, the scope of the CUPE’s intervention will be determined by the adjudicator hearing the matter.

2. The applicant’s request for production of documents is denied as premature.

10I am not seized of this matter.