Hughes v. Elections Canada

Hughes v. Elections Canada
Collection
Canadian Human Rights Tribunal
Date
2010-02-12
Neutral citation
2010 CHRT 4
File number(s)
T1373/10308
Decision-maker(s)
Garfield, Matthew D.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
JAMES PETER HUGHES
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ELECTIONS CANADA
Respondent
- and -
COUNCIL OF CANADIANS WITH DISABILITIES
Interested Party
DECISION
2010 CHRT 4 2010/02/12
MEMBER: Matthew D. Garfield
I. INTRODUCTION
II. COMPLAINT
III. PRELIMINARY MATTERS
IV. ISSUES
V. DECISION
VI. LIST OF WITNESSES
VII. FACTS
VIII. EC: ITS STRUCTURE, ROLE AND ACCESSIBILITY WORK
IX. IMPORTANCE OF ELECTIONS
X. STATUTORY PROVISIONS
XI. UNIQUE STATUS OF HUMAN RIGHTS STATUTES
XII. LEGAL PRINCIPLES RELATING TO LIABILITY
XIII. LEGAL PRINCIPLES RELATING TO REMEDY
XIV. ANALYSIS
XV. REMEDY
XVI. ORDER
I. INTRODUCTION [1] These are my Reasons for Decision concerning the Complaint of James Peter Hughes against Elections Canada (EC). Mr. Hughes alleges that he was denied an accessible polling location and adversely differentiated against on account of his disability when he went to vote at St. Basil's Church in the downtown Toronto riding of Toronto Centre on two occasions within a 7-month time span (the March 17, 2008 federal by-election and the October 14, 2008 federal general election), contrary to subsections 5(a) and 5(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (CHRA). His Complaint also deals with the lack of proper investigation and action by EC following his verbal and written complaints to it.
II. COMPLAINT [2] Mr. Hughes filed his Complaint with the Canadian Human Rights Commission (Commission) on June 5, 2008. As this was four months before the October 14th general election, the Complaint form itself only dealt with the March 17th by-election incident. The Commission investigated and referred the subject-matter of the Complaint to the Canadian Human Rights Tribunal (Tribunal) on December 29, 2008. By this time, the second incident of the October 14th general election had occurred. This second incident and EC's handling of the two incidents form part of the subject-matter before the Tribunal. None of the parties disagree with this.1
III. PRELIMINARY MATTERS Commission Not Participating
[3] The Commission indicated early after the referral that it would be participating in the hearing. A week before the hearing on the merits began, it indicated that it would no longer participate; however, it remains a party. Commission counsel did indicate in writing that the Commission would participate in any systemic remedies, including monitoring of EC, if such remedies were granted by the Tribunal.
Motion for Interested Party Status
[4] Prior to the hearing, the Council of Canadians with Disabilities (CCD) brought a motion to be added as an intervenor or Interested Party. The Complainant supported CCD's motion and EC consented with conditions. The Tribunal granted the request. CCD was allowed to make oral and written argument. The title of proceeding was amended accordingly. CCD's participation in the hearing was helpful. CCD is a pan-Canadian not-for-profit, multi-disciplinary organization covering a wide spectrum of disabilities. It has participated in many leading human rights cases, including before the Supreme Court of Canada.
IV. ISSUES [5] At the commencement of the hearing, EC's counsel stated that his client would be making certain admissions regarding liability. The other parties stated that further facts not admitted by EC also constitute liability and are aggravating in nature, and relevant to the personal and systemic remedies sought by them. I consider in these Reasons the extent of EC's liability and what remedies are appropriate.
V. DECISION [6] The Complaint has been substantiated.
VI. LIST OF WITNESSES The following individuals gave evidence:
Mr. James Peter Hughes - the Complainant; Prof. Catherine Frazee - disability rights/accessibility expert; Mr. Michel Roussel - senior director, field readiness and event management, EC; and Mr. Robert Topping - architect and expert on accessibility, universal design and barrier-free design.
VII. FACTS [7] The parties filed a limited Agreed Statement of Facts. As indicated earlier, at the beginning of the hearing, EC conceded certain facts, the combination of which EC agreed, results in liability under subsection 5(b) of the CHRA. The concession of liability involved the admission of facts regarding the walk to, and entrance #2 itself. EC has agreed not to use St. Basil's Church again as a polling location. There are many better, fully accessible locations close by. There was some disagreement as to certain facts. Below are my findings of fact, including those facts found in the Agreed Statement of Facts and those admitted by EC.
[8] Mr. James Peter Hughes and his wife lived for many years in the United States. They moved back to Canada upon retirement. Mr. Hughes has post-polio syndrome and uses a wheelchair or walker. They live in a condo in downtown Toronto, a couple blocks away from St. Basil's Church, the polling location used in the two electoral events at issue here. Mr. Hughes testified that the March 2008 by-election was his first time voting in a Canadian election since he lived in Quebec in the 1970s. This was an important event for him. Unfortunately, the election experience he received was less than what he had hoped for.
Voting in the March 17th By-election
[9] On March 17, 2008, he proceeded using his walker to vote at St. Basil's Church. The Church is in a beautiful, old building in downtown Toronto. It has three entrances: entrance #1 (main one, south side); entrance #2 (back one, north side); and entrance #3 (side one, west side). More will be said about the three entrances later in these Reasons.
[10] From the street, the Complainant walked up a sloped hill on a long, winding path to entrance #1. At the front door was a perfectly acceptable handicap ramp, said the Complainant. He said he found some cryptic, yellow EC signs, but they pointed away from entrance #1 and toward entrance #3. Entrance #1 was locked. Said signs indicate to me as well that EC (at least the official who put up the signs) was aware that entrance #1 was locked and unusable as an accessible entrance, for disabled and non-disabled voters. Mr. Hughes proceeded around the building to entrance #3. When he opened the door, he was somewhat startled to find a flight of stairs leading downward. It was clearly not an accessible entrance.
[11] Mr. Hughes was not able to get down the stairs without assistance. He called out for assistance and someone came over. The person appeared to be an EC official and told him he could either come down the stairs or walk around the building (to entrance #2). He chose to deal with the known obstacle rather than face the unknown ones. The official took his walker down the stairs and Mr. Hughes then proceeded to go down the stairs on the seat of my pants. The Complainant testified that this was rather humiliating. He was concerned as well about falling. They then put the walker back together and he walked down the hallway to the election polling stations in the basement hall.
[12] His experience with inaccessibility did not end there. When in the hall, he was not able to vote in the polling booth because the tables were placed too close together, blocking his path. EC officials had to re-arrange the tables. A person using a walker or wheelchair did not have a direct pathway to the private voting booth.
[13] While in the Church basement hall, Mr. Hughes told a male EC official about his difficult voting experience. He does not remember the name of the official. Mr. Hughes averred that the person replied that the lack of accessibility was for financial reasons and that in federal by-elections they are not given sufficient funds to have an accessible polling station. Mr. Hughes was appalled. EC avers that if this in fact occurred, the official was factually wrong and was not in a position to make such comments. Nothing came of his verbal complaint. I accept Mr. Hughes' testimony on this topic.
[14] Mr. Hughes eventually got to mark his ballot that day. However, his departure was no less easy. Rather than go back through entrance #3 with its barrier-ridden path, the EC officials offered to help this voter with a disability leave through the back way, entrance #2, adjacent to the parking lot. Mr. Hughes had to walk up a steep, narrow ramp. It was only marginally possible for use with his walker. The two doors leading out to the parking lot weren't open. There was no automatic opening mechanism for the doors. Mr. Topping, who did an onsite inspection on behalf of EC and gave expert opinion evidence at the hearing, agreed that they are heavy, steel doors. Only one of the two double doors was openable. Mr. Hughes' walker had to be folded in order to get it through. Outside the doors, he confronted snow on the ground which hadn't been sufficiently cleared. He stated that the width shoveled looked like it had been done with ambulatory people in mind. It was barely wide enough for his walker's wheels, and certainly not wide enough for a person using a wheelchair. There was a sloped ramp downward. He described it as steep and slippery. I accept Mr. Hughes' testimony that he could not have exited through entrance #2 without assistance.
[15] Mr. Hughes described the entrance at the back as a freight/emergency entrance. In his view, it was demeaning and not dignified. He remarked that it doesn't affirm a person as an actual person, but signals they should be handled as freight. I accept that he felt this way. There was a debate among counsel as to whether this constituted a segregated entrance, reminiscent of the images of the Old South in the United States. I make no finding in this regard. Suffice to say, the back entrance was not ideal or acceptable in the circumstances. None of the three entrances to the Church was accessible to Mr. Hughes. Entrance #1 was closed; entrance #2 was fraught with barriers (physically and symbolically); and entrance #3 was inaccessible due to the flight of stairs.
Mr. Hughes' Complaints and EC's Investigation
[16] In addition to his verbal complaint on the day of the election, Mr. Hughes made a written complaint to EC on March 20, 2008.2 This was done with the assistance of his counsel. It was addressed to the attention of the Elections Officer at Elections Canada in Ottawa. For some unexplained reason, the letter was delivered to the wrong official at EC. That became evident when the Complainant's counsel received a response on March 26th from the General Counsel to the Commissioner of Canada Elections. The General Counsel acknowledged receipt of the letter, but said the subject matter of the complaint fell outside the jurisdiction of the Commissioner, who is responsible for compliance with, and enforcement of, the Canada Elections Act, S.C., 2000, c. 9, as amended (CEA). The General Counsel forwarded the letter to the Legal Services Directorate at EC. Mr. Hughes testified that he felt the letter he received was dismissive of his complaint. EC has no explanation as to why it was sent to the wrong office at its national headquarters in Ottawa. The letter was properly addressed.
[17] Mr. Hughes stated that he heard nothing from EC regarding his verbal and written complaints to it (other than the letter from the Commissioner's General Counsel referred to in the preceding paragraph) until receiving EC's August 6, 2008 letter to the Commission. On June 5, 2008, he had filed a CHRA Complaint with the Commission. The August 6th letter was EC's response to the CHRA Complaint. Mr. Roussel said that he had his officials investigate Mr. Hughes' Complaint, although he didn't speak to them directly about it and didn't personally speak to the Toronto Centre Returning Officer (RO) or other relevant EC officials at the St. Basil's Church polling stations.
Voting in the October 14th General Election
[18] On October 14, 2008, Canadians went to the polls in a federal general election. Mr. Hughes received a Voter Information Card, indicating that his polling station would be at St. Basil's Church once again. The Card even had the universal accessibility symbol on it. Mr. Hughes was hopeful that things would be different this time, that EC had addressed his concerns.
[19] To his chagrin, the Complainant said he experienced the same lack of accessible voting on October 14th, except for the snow on the ground. When he went to St. Basil's, the front door (entrance #1) with its accessible ramp was again unavailable. This time he proceeded to entrance #2, where he found one of the doors was being held ajar by a broken rock. The Complainant testified that he could not open the heavy steel door himself. With assistance, he entered via entrance #2, voted and left the same way. Mr. Hughes averred that he was quite upset that, notwithstanding his verbal and written complaints to EC some seven months earlier and his June 2008 Complaint to the Commission, EC had not remedied the problem by providing a barrier-free polling facility to exercise his important democratic right to vote. He thought, at best, EC was incompetent; at worst, wilful or bad intentioned.
Post-October 14th General Election
[20] Following the election, the Commission referred the subject-matter of the Complaint to the Tribunal on December 29, 2008. EC commissioned architect and accessibility expert Robert Topping to do an on-site inspection of St. Basil's Church and report on certain accessibility issues in March 2009. Mr. Topping's report was tendered as an exhibit and he gave opinion evidence as well at the hearing in October 2009. He outlined some of the problems with the St. Basil's facility from a barrier-free perspective. As a result of Mr. Hughes' Complaint, Mr. Topping's report, the steepness of the incline and better alternative locations in the area, prior to the hearing Mr. Roussel, in his affidavit, indicated that EC would no longer use St. Basil's Church as a polling location, notwithstanding some of its significant advantages (e.g., parking, community use and prior election use). Mr. Roussel did not know if an alternative site had been chosen, as of the hearing.
VIII. EC: ITS STRUCTURE, ROLE AND ACCESSIBILITY WORK [21] Michel Roussel's witness statement and his viva voce evidence thoroughly described EC's structure, role and work done regarding accessibility matters. At the apex of EC is the Chief Electoral Officer of Canada (CEO), who is an officer of Parliament. There are senior managers below the CEO, including Mr. Roussel. EC's national office in Ottawa is responsible, among other things, for general policies and training of election officials and the overseeing of federal electoral events (general elections, by-elections and referendums). There is also an independent Commissioner of Canada Elections to ensure compliance with, and recommend if necessary, prosecutions of violations of, the CEA.
[22] Canada has 308 electoral districts, also known as ridings or constituencies, which vary in physical size and population. The largest riding is Nunavut (20% of the land mass of Canada). By contrast, the City of Toronto contains 22 electoral districts. Each district has a RO, appointed by the CEO. The RO is responsible for the preparation and conduct of an electoral event in his/her electoral district and oversees its execution. Below the RO is an assistant returning officer. Both of these officials are permanent officers and continue their work between elections. Below them are numerous part-time and full-time temporary officials - the deputy returning officer, central poll supervisors, poll clerks, etc.
[23] Each district has polling locations or sites and within them, polling stations. Toronto Centre electoral district had 75 polling locations (St. Basil's being one of them) with 271 stations. Country-wide, in the 2008 general election, there were over 20,000 polling locations, 63,000 polling stations, and over 200,000 temporary officials. This presents a formidable organizational and logistical challenge to EC, as much work can only be done, according to its governing statute, once the writ is dropped and an election is called. This includes the hiring of most of these 200,000 employees and the signing of leases for polling locations. I acknowledge that much work is done also before and after elections. I have been mindful of the logistical, time-constraining considerations faced by EC. The ROs and others are extremely busy during the 36-day election period.
Accessibility Requirements
[24] Parliament has provided for the accessibility of elections in numerous sections of the CEA, including subsection 121(1) which states that a polling station shall be in premises with level access. The term level access is not defined in the statute. In EC's CPS manual it is defined as flat access... Guidelines, not legislatively mandated, indicate that the benchmark for a ramp slope is 1:12 (1 rise per every 12 long). I appreciate that level access is a sub-category of barrier-free access. While the lack of level access is a major barrier, it is by no means the only barrier faced by those with mobility impairments.
[25] As well, the CEA does not prohibit EC from providing further and greater accommodations than simply level access, and it has done so. This may be seen in its policies, guidelines, manuals, training materials and as outlined on its website, which involves barrier-free accommodations for mobility impairments beyond level access and for non-mobility impairments. EC's Policy on Barrier-Free Access to Voting reads: Offices and polling sites established and maintained by returning officers during an electoral event must in all respects provide barrier-free access. (EC's bolding) In its module on accessibility in its training session for ROs, in one of the Power Point slides, EC says one of the goals of the session is for ROs to be able to [E]nsure barrier free access to the electoral process. EC's Accessibility Information sheet for St. Basil's Church lists many criteria, including accessibility issues other than level access, such as signage and adequate heating. Mr. Roussel also testified that EC considers many factors other than the level or flat access of premises when determining the suitability of polling stations under subsection 121(1) of the CEA, including factors that I would characterize as barrier-free in nature.
[26] Parliament has also legislated an exception in the CEA to providing level access: subsection 121(2). It sets out the procedure whereby a RO may obtain dispensation from the requirement upon prior approval of the CEO, if the RO is unable to secure suitable level access premises. Mr. Roussel testified that seeking this exemption is a last resort and rare. Any such exemptions are reported by the CEO in his post-election report to Parliament. Instead, EC has paid for the installation of temporary, and formerly also permanent, ramps to overcome barrier issues. In the 2008 general election, 122 ramps were installed across Canada, at a total cost of $127,000.
Selection of Polling Locations
[27] It is the RO's responsibility to select the many polling locations within the district. As Mr. Roussel testified, the ROs conduct onsite evaluations to the best of their ability. There is an inventory or computer data base of over 27,000 locations across Canada. The last onsite inspection of St. Basil's Church appears to have been done on May 20, 2002. The document indicates that the Church met the section 121 level access requirements of the CEA. Mr. Roussel also averred that ROs are not architects or construction estimators and are not equipped with the proper tools to ascertain exact measurements about certain criteria such as the slope of a ramp. Expert witness and architect Robert Topping testified that a layperson would need certain specialized equipment and training to make such accessibility determinations.
[28] Mr. Roussel also gave evidence that ROs rely on existing information in the database for their pre-election writ plan of which polling locations to use. He said that due to the time constraints once the election has been called, ROs do not have the time to conduct an onsite visit of each location. No doubt that is why ROs are trained to [S]elect suitable polling sites well in advance [of the election being called]. In the RO Manual at p. 12, a chart divides the RO's tasks into Before, During and After Electoral Events. In the Before column for the task dealing with polling stations, it says, inter alia: Visit potential polling sites and Evaluate the accessibility of potential locations.
[29] In most cases, they confirm the availability with landlords by phone once the writ is issued. Perhaps ROs should confirm with the landlords at that time the accessibility features of the polling locations and their operation during the electoral event (e.g., that accessible entrances will be open).
Accessibility: What Has EC Done in General?
[30] As expert witness Robert Topping testified, there have been many advancements in technology and attitudes regarding barrier-free design and accessibility since the 1980s. EC has gone a long way in ensuring barrier-free access in federal elections. This was recognized specifically by the Tribunal in Canadian Paraplegic Association v. Elections Canada et al., [1992] C.H.R.D. No. 2 (CPA): i.e, The strong positive actions taken by Elections Canada after 1984... at p. 27 and In view of the steps which Elections Canada has taken since 1984 to improve accessibility of polling stations,... at p. 28. That case involved nine complaints of persons with disabilities who either could not vote because of barrier-ridden polling locations or voted with difficulty in the 1984 federal election in Manitoba. These complaints spurred EC to act, ahead of the Tribunal's decision in 1992. EC created in 1988, with the help of Barrier-free Design Consultants, the RO Guide Accessible Facilities: How to Make Voting More Accessible.
[31] EC also developed a national inventory or database of over 27,000 accessible locations with an onsite evaluation done for each. It created an Accessibility Checklist for each polling site to be entered into the National Inventory of Electoral Facilities. In the RO Manual: A Guide to Conducting Federal Electoral Events, it says at p. 81, ROs should identify problem areas so that corrective measures can be taken IN ADVANCE. (EC's capitalizing) As well, EC began to share polling place information with internal and external groups so that the information could be complete and accurate.
[32] There is also a Manual for Central Poll Supervisors. In the pre-polling day tasks section at p. 12, it says the CPS should, Examine the layout...identify issues. I suggest that EC specifically mention accessibility issues in this part to highlight the importance of said issues. EC also includes this language in the Manual for Deputy Returning Officers and Poll Clerks. EC even has a Training Officers Manual, including a section on tips or lessons for Assisting an Elector with a Disability.
[33] I would be remiss if I didn't mention the very good website of EC. It contains a lot of useful information, including many reports and documents. There is a fair bit of information concerning accessibility features, including a section entitled Accessibility of the Electoral System. I would recommend that, for ease of reference, EC add a link on the main page of its website under Information for You entitled Voters with Disabilities, along with the present ones for Voters, Young Voters and Aboriginal Voters.
[34] As indicated earlier, EC also does modifications to polling locations, permanent and temporary, to provide level access (e.g., ramps). Mr. Roussel testified that EC never refuses such requests from the ROs.
[35] EC also provides training for its officials, from the ROs down to the army of 200,000 election day temporary employees. They also train the trainers. Part of the training involves accessibility issues.
[36] EC makes available to persons with disabilities different ways to vote. In addition to being required to provide level access at polling stations, advance poll sites, RO offices, and revision offices, it provides alternative ways to vote. For example, a transfer certificate may be issued to vote at a nearby accessible polling station where the local one is not accessible. As well, provision is made to have EC officials attend at the home of a disabled voter for him/her to vote. Special ballots, including mail-in ballots, may also be used.
What Has EC Done Since Mr. Hughes Filed His CHRA Complaint?
[37] Mr. Roussel says EC has learned a lot from the negative voting experience of Mr. Hughes in the 2008 by-election and general election, and it has improved. For example, EC changed its yellow sign to make the letters bigger and added the universal symbol of accessibility. Counsel for the Complainant avers that this should have been done sooner, as it was mentioned in the CPA decision in 1992.
[38] EC's counsel also points out that his client admitted liability at the opening of the hearing. However, the Complainant's counsel counters that, given the facts of this case, said admissions came too late. Notwithstanding the timing, the admissions did save time at the hearing and facilitated the co-operative mood of the parties at the hearing.
[39] Through Mr. Roussel's testimony and its counsel's submissions, EC has agreed to several remedial requests of the Complainant, in whole or in part. These will be spelled out in the section on Remedy in these Reasons for Decision.
IX. IMPORTANCE OF ELECTIONS [40] The right to vote is protected in the Canadian Charter of Rights and Freedoms: section 3. It is a right, and I would argue, a responsibility or duty of citizens of this country. It is the legal duty of the State to ensure that all barriers, whenever possible, are removed so that citizens may vote. Nowhere is this more significant than for people with disabilities. Professor Frazee was eloquent in articulating the barriers that people with disabilities face in our society, structurally and attitudinally, including the intricacies of disability disadvantage. She set out the context as it would affect a person with a disability attempting to vote. Included in this was the impact of disabled voters going to separate but equal facilities to exercise their franchise or facilities with only back entrances available to them. There should be no hierarchy of citizenship when it comes to voting in Canada: no second class voters. Professor Frazee's expert evidence and Mr. Hughes' testimony showed the damaging impact on persons with disabilities going away from the polling site thinking that their presence was at best unexpected, and at worst unwelcome.
[41] I also note the evidence of the 2006 Statistics Canada report showing the number of persons with various impairments and disabilities in Canada: 4.4 million Canadians with an activity limitation yielding a disability rate of 14.3%. What is more telling is the demographic trend upward of Canadians reaching the status of senior citizen and the resulting increase of persons with disabilities in Canada, including those with mobility impairments.
X. STATUTORY PROVISIONS [42] Mr. Hughes' Complaint alleges the violation of subsections 5(a) and 5(b) of the CHRA:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
XI. UNIQUE STATUS OF HUMAN RIGHTS STATUTES [43] As recently as 2005, the Supreme Court of Canada stated in Canada (House of Commons) v. Vaid,3 at para. 81: ...the Canadian Human Rights Act is a quasi-constitutional document and we should affirm that any exemption from its provisions must be clearly stated.
[44] In Council of Canadians with Disabilities v. Via Rail,4 the Supreme Court of Canada wrote at para. 115:
In Winnipeg School Division,5 McIntyre J. confirmed that where there is a conflict between human rights law and other specific legislation, unless an exception is created, the human rights legislation, as a collective statement of public policy, must govern. It follows as a natural corollary that where a statutory provision is open to more than one interpretation, it must be interpreted consistently with human rights principles. The [Canadian Transportation] Agency is therefore obliged to apply the principles of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, when defining and identifying undue obstacles in the transportation context.
XII. LEGAL PRINCIPLES RELATING TO LIABILITY [45] The initial onus of establishing a prima facie case of discrimination under the CHRA rests with a complainant or the Commission. A prima facie case is one which covers the allegations made and, if believed, is complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer or justification from the respondent: Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536, at para. 28. Once that is established, the burden then shifts to the respondent to establish a justification or explanation for the discriminatory practice or action. The respondent's explanation should not figure in the determination of whether the complainant has made out a prima facie case of discrimination: Lincoln v. Bay Ferries Ltd., 2004 FCA 204, at para. 22.
[46] Courts and tribunals have held that discrimination may, but need not, be intentional.6 One must look also at the adverse impact or effect of facially neutral practices and policies on an individual or group of individuals, related to prohibited grounds of discrimination.
[47] The case law recognizes the difficulty of proving allegations of discrimination by direct evidence. Discrimination is frequently practised in a very subtle and subterranean manner. Overt discrimination is rare: Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 5038. Rather, it is the Tribunal's task to consider all of the circumstances to determine if there is what is described in the Basi case as the subtle scent of discrimination.
[48] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses: Premakumar v. Air Canada (No. 2) (2002), 42 C.H.R.R. D/63 (C.H.R.T.), at para. 81.
XIII. LEGAL PRINCIPLES RELATING TO REMEDY [49] The general remedial part of the CHRA is found in section 53. Subsections 53(1)-(4) outline the discretionary awards and orders that the Tribunal may make against a respondent following its substantiation of the complaint before it. Included are orders to cease a discriminatory practice; compensatory awards up to $20,000 for any pain and suffering experienced as a result of the discriminatory practice; a $20,000 maximum of special compensation for loss arising from the wilful or reckless discriminatory action of the respondent; expenses incurred as a result of the loss from the discriminatory action, except for legal costs or expenses in the Tribunal proceeding.7 The Tribunal also may order the taking of measures to redress the discriminatory practice, or to prevent the same or similar practice from occurring in the future.
[50] The Supreme Court of Canada has allowed human rights tribunals a certain degree of latitude in the making of remedial orders.8 This is in keeping with the purposes and goals of anti-discrimination statutes. Of course, orders of a remedial nature must be linked or have a nexus9 to the lis or subject-matter of the complaint substantiated by the tribunal: the four corners of the complaint or the real subject matter.10 The remedy must be commensurate with the breach. The orders also must be reasonable11 and the remedial discretion exercised in light of the evidence presented.12
[51] Remedial orders also may include the involvement of the human rights commission or other parties in terms of consultation, or the appointment of a monitor for the implementation of the orders.13 Such involvement of other actors recognizes that the courts and tribunals have an adjudicative role and formal process that do not translate well into the technical or task-specific aspects of the implementation of orders often affecting the day-to-day operations of a governmental or corporate respondent.
XIV. ANALYSIS Subsections 5(a) and 5(b) of the CHRA
[52] The Complainant and CCD argue that both subsections of section 5 have been violated here. EC says the case is one of subsection 5(b) and that the Tribunal need not address subsection 5(a). I find that both subsections have been infringed in the instant case.
[53] First, I am satisfied that EC provides a service and facility customarily available to the general public under the section. It is not just the provision of physical space in which to vote. EC provides a public service - a paramount one - of providing the means by which the public may exercise its democratic franchise. The service includes providing public information, barrier-free voting locations and polling stations, polite interaction of its officials with the voters, and the facilitation of accessible voting for all, including voters with disabilities.
[54] The foregoing applies the reasoning of the Federal Court of Appeal in Watkin v. Canada (Attorney General),14 which is the recent case on services under section 5 of the CHRA. That case involved a complaint against Health Canada alleging discrimination in the regulation of herbal products based on ethnic origin. The Court held that the enforcement actions of Health Canada did not constitute a service as per section 5. The Court stated that not all governmental actions are services under the CHRA. At para. 28, the Court wrote: Public authorities can and do engage in the provision of services in fulfilling their statutory functions. It then listed several examples of services provided by government departments and agencies. The running of elections by EC could fit easily into that list. At para. 31, the Court further stated: I agree that because government actions are generally taken for the benefit of the public, the customarily available to the general public requirement in section 5 will usually be present in cases involving discrimination arising from government actions...
[55] Various findings of liability fall, in the case before me, under either or both of the subsections here. The fact that Mr. Hughes was able to vote does not insulate EC from subsection 5(a): to deny, or to deny access to,...; e.g., his having to go down the stairs by the seat of [his] pants, and be assisted into and out of the premises.
Liability of EC
[56] As indicated earlier, EC admitted at the outset of the hearing its liability under subsection 5(b) of the CHRA only. The Complainant and CCD argue that EC is liable under subsection 5(a) too. EC says its liability is based on the combined effect of various facts:
the long, sloped walk to entrance #2; the insufficient signage leading to entrance #2; the incline leading to entrance #2 had a slope of 1:8.8 (or 11.4%), which is significantly steeper than the slope of 1:12 (or 8.25%) set out in EC's Accessible Facilities Guide; the doors to entrance #2 were heavy to open; only one of the doors to entrance #2 could be opened from the outside; with only one door open, entrance #2 was too narrow for a wheelchair to go through; this was a polling location in downtown Toronto. Better alternative locations exist. During his argument, counsel to EC stipulated a few more facts concerning liability: the door to entrance #2 was stuck on the day of the by-election; there was non-clearance of snow on the incline; the ramp on the inside of the Church was inadequate; there was a step and no handrails on both elections; there was inadequate spacing between tables in the polling stations in both elections; and EC accepts Mr. Hughes' description of the humiliation he felt and his evidence generally, but not his characterization of segregation. Counsel for the Complainant and CCD point out that none of the above admissions in #1-12 were made in the Agreed Statement of Facts or prior to the commencement of the hearing.
[57] I agree with Mr. Hughes' comment that the August 6th letter was dismissive of his Complaint. Essentially it says:
St. Basil's Church provided level access as required by subsection 121(1) of the CEA. As we now know, that was not the case, as entrance #1 was locked. EC thoroughly reviewed Mr. Hughes' Complaint, including interviewing election officers and conducting an on-site inspection of the polling station. The August 6th letter contains many incorrect facts, resulting in incorrect conclusions. It [St. Basil's Church] has three access doors which were unlocked during voting hours, two of which provide level entry. Again, only entrance #1 provides a barrier-free pathway, and it was locked. Mr. Hughes did not see the posted signs. EC did not call the RO or any EC official who was present at St. Basil's that day to give evidence, nor did it enter into evidence the investigative report. I have Mr. Hughes' evidence regarding the signs and I accept it. Every effort was made to keep the ramps cleared of snow on the advance poll and by-election polling days. I accept Mr. Hughes' testimony to the contrary, that the efforts weren't sufficient. [O]ther disabled electors made use of these level access [entrances] without difficulty... St. Basil's Church had been used in the 2004 and 2006 general elections and EC has no record of any other accessibility complaint being made about the polling location. Of course, one wouldn't know necessarily if a previous accessibility complaint had been made, given that Mr. Roussel testified that EC doesn't have a system for logging such complaints. None of the officials interviewed could remember anything about the comment made by the official to Mr. Hughes regarding not having the money for accessibility accommodations in by-elections. Indeed, no mention is made of his verbal complaint that day. As indicated earlier, I accept Mr. Hughes' version of this episode.
[58] Mr. Hughes indicated that he was quite upset with EC's August 6th letter. He stated that EC's response, or lack thereof in general, upset him as much as the frustrating voting experiences. He said the August 6th letter was dismissive and suggested that he was incompetent and unable to read signs: The letter was a complete denial of my experience. I agree that the tone of the letter is somewhat dismissive. But more importantly, many of the factual statements given are clearly incorrect: in particular, that entrance #1 (the only accessible one of the three entrances) had been open on the day of the by-election. I find it difficult to accept that, after having interviewed its officials who were present at St. Basil's Church and investigated the matter, EC was under the illusion that entrance #1 had been available on the day of the by-election. That suggests that, notwithstanding the signs pointing away from entrance #1, no one told the EC investigating official that entrance #1 had been locked that day. I do not know from the evidence whether EC in its investigation contacted the Church to verify what entrances were open that day.