T.D. 2/92 Decision rendered on February 17, 1992
THE CANADIAN HUMAN RIGHTS ACT S.C. 1976-77, C. 33 (as amended)
HUMAN RIGHTS TRIBUNAL
BETWEEN:
CANADIAN PARAPLEGIC ASSOCIATION
Complainant
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CANADIAN HUMAN RIGHTS COMMISSION
Commission
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ELECTIONS CANADA - THE OFFICE OF THE CHIEF ELECTORAL OFFICER OF CANADA RETURNING OFFICER - WINNIPEG-NORTH CENTRE RETURNING OFFICER WINNIPEG-ST. JAMES RETURNING OFFICER WINNIPEG-FORT GARRY RETURNING OFFICER BRANDON-SOURIS Respondents
- and -
PEOPLE IN EQUAL PARTICIPATION INC.
Interested Party
DECISION OF THE TRIBUNAL
APPEARANCES:
René Duval Counsel for the Canadian Human Rights Commission
E.W. Olson, Q.C. and V. Rachlis Counsel for the Respondents
Campbell Wright and John Sinclair Counsel for the Interested Party
DATES AND LOCATION OF HEARING:
November 2, 1988 (Pre-Hearing) October 23-24, 1990 Winnipeg, Manitoba
INDEX
Did any Discriminatory Practices occur?
Was There a Bona Fide Justification?
Liability of the Chief Electoral Officer
INTRODUCTION
In Canada, it is a fundamental right in our democratic way of life that each person has the right to vote. This principle is enshrined in section 3 of the Constitution Act. As well, it is a well-established human right that persons who have a disability will not be denied access to services, facilities or accommodation customarily available to the general public and will not be differentiated adversely with respect to such services, facilities or accommodation unless there is a bona fide justification for such denial or differentiation. In September of 1984 there was a general election in Canada. The complaints which are before me are made by persons who, it is admitted, suffer from a disability and who allege that because of the absence of level access to the polls, in one instance a person was denied access to the polls and in seven instances, their access to the polls was sufficiently interfered with that their rights have been breached. The Respondents in the complaints are, the Returning Officers for four Manitoba constituencies and Elections Canada - the Office of the Chief Electoral Officer of Canada.
The issues to be decided by this tribunal have been summarized by Counsel for the Respondents as follows:
- Does this Tribunal have the jurisdiction to deal with Complaint No. P04310? (the general complaint)
Because of the date of the events in question, references to the relevant statutes will be to them as they stood prior to the 1985 Statute revision.
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- Were any of the Respondents' conduct at issue in the complaints such that discriminatory practices on the basis of disability occurred?
- In the event that discrimination on the grounds of disability occurred, was there a bona fide justification for such discrimination?
- If this Tribunal makes a finding that a Returning Officer committed a breach of the CHRA but finds that the conduct of Elections Canada was such that no breach of the CHRA occurred, can the Chief Electoral Officer be found vicariously liable?
- In the event that any discrimination occurred in 1984, if this Tribunal finds such breaches have been cured, ought a remedy to be granted?
Evidence was adduced in this matter before me in Winnipeg on October 23 and October 24, 1990. At the conclusion of argument, counsel for the parties agreed that written arguments should be submitted. The last of the arguments was received on September 18, 1991. The providing of arguments was delayed pending the hearing of a motion brought by counsel for the Respondents to adduce new evidence. My ruling on that motion comprises Schedule A
to this decision. I have attached as well as Schedule B
, the reasons which I gave for adding as a party, People in Equal Participation Inc.
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Fifteen witnesses were called at the hearing. Counsel for the Human Rights Commission called as witnesses Jim Derksen, Marianne Bossen, Karen Bauhs, Lucy DeLuca, Don Ament, Keith Russell, John Lane and Linda Chodak. Counsel for the Respondents called as witnesses Phil Cels, Joan Belisle, Elgin Rutledge, Anne McDonald, Darlene Gray, Kathleen Patterson and Andree Lortie.
THE COMPLAINTS
There are nine complaints before me. Eight of them have been made by persons who were enumerated and attended at the location of the poll with the intention of voting. There is one additional complaint, general in form, in which the Manitoba Division of the Canadian Paraplegic Association states that it,
"has been advised by some of its members that the polls established for the general federal election of September 4, 1984 are not accessible to mobility-impaired individuals. The Manitoba Division of the Canadian Paraplegic Association, on behalf of its members, has reasonable grounds to believe that an unknown number of mobility-impaired residents of Manitoba are being discriminated against because a significant number of polls and in some cases even advance polls established for the general federal election of September 4, 1984, are not accessible to mobility-impaired individuals, in violation of section 5 of the Canadian Human Rights Act." (PO4310)
As I intend at this point to review the complaints made by each of the Complainants, I set out in a schedule a summary of the personal complaints.
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H.R.C. Complaint Location of Poll Nature of Poll Consitutency Returning Number/Respondent in question Officer
P04570 Ft. Rouge School Poll Winnipeg/ K. Patterson Jim Derksen 120 Mayfair Fort Garry
PO4568 Ft. Rouge School Advance Poll Winnipeg/ K. Patterson Lucy Deluca 120 Mayfair Fort Garry
PO4272 Ft. Rouge School Advance Poll Winnipeg/ K. Patterson John Lane 120 Mayfair Fort Garry
PO4571 Holy Rosary Poll Winnipeg/ K. Patterson Karen Bauhs Church, 510 River Fort Garry
PO4573 Earl Oxford Jr. Poll Brandon/ Phil Cels Murray Chodak High School Souris
PO4574 St. David's Poll Brandon/ Phil Cels Keith Russell Church, Oak Lake Souris
PO4569 St. Margaret's Poll Winnipeg/ Joan Belisle Marianne Bossen Anglican Church St. James
Westminster Advance Poll United Church
PO4567 Grain Exchange Poll Winnipeg/ Anne McDonald Don Ament Curling Club Centre-North
EVIDENCE OF THE COMPLAINANTS
Jim Derksen (Winnipeg/Fort Garry - K. Patterson)
Jim Derksen has a disability which requires him to use a wheelchair for mobility. On September 4, 1984, he drove his van to his polling station which was located at Fort Rouge School, 120 Mayfair Avenue, Winnipeg. His van is equipped with a wheelchair elevator. He noticed that the door marked for the poll had some stairs. He looked around without success to the other side of
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the building in order to find an entrance which was more accessible. He exited from his van, sat near the steps and waited until someone should pass by. When someone passed by, he asked the person to go inside the building and find some people who might assist him up the stairs. The person went into the building and returned with two other men. The three of them lifted Mr. Derksen up the stairs, he went into the polling booth, voted and then was assisted down the stairs by the same three persons. Mr. Derksen said that he felt very annoyed about having to be carried into the polling station. He felt aggrieved by it. He said that he does not like being carried up and down stairs. He related several instances when persons who have carried him up and down the stairs have been injured. He said that he prefers to live a very independent lifestyle and he said that he resents having to ask people for help and to depend on their goodwill for access for something that I consider to be part of my birthright as a Canadian.
(transcript volume 1, page 8)
In cross-examination, Mr. Derksen stated that in prior elections, he had availed himself of the opportunity to vote in the advance poll to ensure that he would vote in a place which has level access. On this occasion, he was enumerated to vote at Fort Rouge School. He made no inquiry as to whether or not
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the poll had level access because I assumed with the Charter of Rights and Freedom and so on that we would have made enough progress to have level access.
(transcript volume 1, page 12)
Lucy DeLuca (Winnipeg/Fort Garry - K. Patterson)
Lucy Deluca is a wheelchair-reliant paraplegic. She resides at 606-230 Roslyn Road in Winnipeg. She stated that on August 27, 1984 she voted in the advance poll. It was located at Fort Rouge School at 120 Mayfair Avenue. She went with some other persons who also use wheelchairs. She has been using a wheelchair for 41 years. She stated, when we got there we noticed that there were about 4 or 5 stairs that we would have to get up to get into the school building to exercise our right to vote.
(transcript volume 1, page 43) She got into the building with assistance. The bus driver who took her tried to find someone to help her. The caretaker of the building and an elderly gentleman who had accompanied her, carried her up the stairs. She voted and then they carried her down the stairs. She was very upset about the situation and concerned, because the gentleman who assisted her was elderly. She chose not to vote at the regular poll because her regular poll was located at Holy Rosary Church and she knew that the voting was scheduled to take place in the basement, two flights of stairs below ground level.
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In cross-examination she stated that she attended Fort Rouge School with a view to voting because she had been told that it would have level access. She had contacted the Returning Officer and the Returning Officer had told her that Fort Rouge School would have level access. Based on this information, she arranged for the persons who accompanied her to come to vote with her at the advance poll and they all came to the polling station by means of the Handi Transit van. She also stated that there were other schools in the area which had level access but was not asked for and did not give examples.
John Lane (Winnipeg/Fort Garry - K. Patterson)
John Lane is a wheelchair-reliant quadriplegic. He serves as Executive Director of the Canadian Paraplegic Association, Manitoba Division. He is also a national board member of the National Association. He voted in the advance poll. He did not vote in the regular poll at Holy Rosary Church because it was inaccessible. When he learned this, he telephoned the Returning Officer and confirmed that the Church was inaccessible. He inquired as to alternatives which were open to him and he was told that there was an accessible advance poll at Fort Rouge School on Mayfair Street. He queried the person who provided that information because he suspected that Fort Rouge School was not accessible, but she insisted that it was and he accepted her word on it. He assumed that a ramp had recently been built at the school. Consequently
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he attended at Fort Rouge School in order to vote in the advance poll. On arriving there, he noticed that one had to ascend a set of stairs, three or four in number, in order to get into the building. He found that there was no way to signal persons inside the building and request assistance. He waited. Eventually, somebody poked their head out and saw me there, and two people came out. I didn't want them to lift me in to be honest with you, because they were scrutineers which are well meaning volunteers, and one of them was well on in age, and the other was not young. They insisted and I instructed them appropriately how to lift me, but it was with some nervousness on both our parts.
(transcript volume 1, page 67)
So he voted after being carried into the building and then he was carried out of the building. When asked to express his feelings in the matter, he stated that he was annoyed and frustrated because he had been assured that the building was accessible. He was annoyed to start with that the regular poll was inaccessible.
In addition to relating to us the problems which he encountered while attempting to vote, Mr. Lane related information about steps which he and his association had taken over a lengthy period of time to alleviate the problems encountered by physically disabled persons who wish to vote. Back in 1980 when the Special Parliamentary Committee for the Disabled and Handicapped conducted hearings across Canada, he took part in a presentation which was made to the Committee, outlining the problems which have been encountered while voting. Such concerns were noted in the report of the Committee which was published in 1981. The year 1981 was
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the International Year of Disabled Persons and Mr. Lane assumed that by September of 1984, procedures relating to level access would have been greatly improved. When he encountered his personal problem at the advance poll, he inquired around his twelve-person office and found that about half the people there, who knew about their polls, were able to confirm that their polls were not accessible. He telephoned Board Members and received the same kind of information. Based on this information, he contacted the Human Rights Commission prior to election day and asked what can be done. Time was short so there didn't appear to be much except to file a complaint on behalf of Manitobans, which we did shortly after the election, I believe.
(volume 1, page 70)
When asked what relief he seeks in this proceeding, he stated as follows:
- A finding that Elections Canada is legally and publicly accountable for reasonably accommodating the needs of disabled persons in elections. A clear ruling that level access is a right which must be protected and that Elections Canada must carry it out.
He qualified the latter point by stating,
. . . we do not expect that every single poll will be accessible, because we understand that there are very real problems in certain instances, and that what we are looking for is reason. So what we expect is that first of all, that a serious effort will be made
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to do everything short of undue hardship to attain wheelchair accessible polls on election day because we feel that people have a right to vote on the election day and benefit from the full campaign in their own poll." (transcript volume 1, page 73)
- Endorsement of a number of the recommendations contained in Bill C-79 respecting multiple polling sites, a requirement that all advance polls, all Returning Offices where people vote and all multiple polling sites, be accessible.
- A requirement that Elections Canada account for the case when they cannot provide access. Any elector should be able to find out, and the information should be published at least three days prior to the final advance poll, whether these polls are accessible or not.
- A requirement that there be proper signage to indicate where the access is and appropriate parking at each poll.
In cross-examination, Mr. Lane stated that changes in procedures were made by Elections Canada after the 1984 election.
As a result, The 1988 election was remarkably better. Not just in Manitoba, elsewhere. It wasn't perfect by any means, but it was better enough that it elicited comment from a number of sources.
(Transcript Volume 1, page 90)
He went on to state that ... with the matter before the Human Rights Commission, and actively pursued by the press, he (the Chief Electoral Officer) produced an accessible election.
(Transcript Volume 1, page 90)
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Karen Bauhs (Winnipeg/Fort Garry - K. Patterson)
Karen Bauhs is mobility-restricted and wheelchair reliant. She stated that she has been using a wheelchair for seven years. On September 4, 1984, she voted at Holy Rosary Church on River Avenue in Winnipeg, but she encountered the following problem. She went to the church in order to vote and found that the polls were in the basement. She was required to descend two flights of stairs in order to reach the polling station. She was unable to descend the stairs without assistance, so she went back home, and arranged for her roommate to come with her. Her roommate helped her walk down the stairs, she voted and then her roommate helped her walk back up the stairs. When asked how she felt about not being able to vote without assistance, she stated, I was really angry. It was totally unexpected that I wouldn't be able to get to the poll and I was just very upset and angry.
(transcript volume 1, page 37) She had only been in a wheelchair for about a year and it had not occurred to her that she might not be able to vote without assistance.
In cross-examination, Ms. Bauhs stated that she was residing at 504 - 246 Roslyn Road at the time, about three blocks from Holy Rosary Church. She stated that Holy Rosary Church has
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a level entrance. It has a foyer near the entrance, but it is too small to serve as a poll. She stated that she is aware of other mobility-restricted persons who attended Holy Rosary Church and encountered problems in voting. She said that when she went there, there were about five people standing around waiting for assistance.
Murray Chodak (Brandon/Souris - Phil Cels)
Murray Chodak is a wheelchair-reliant quadriplegic. His wife, Linda Chodak gave evidence before us that they live in Brandon, Manitoba. On their way to work on September 4, 1984, they stopped at their polling station which was located at Earl Oxford School in Brandon. Their experience from other elections had been that polling is done in the library on the main floor in Earl Oxford School. They entered the building and observed signs on the wall indicating that the polling station was upstairs on the second floor and that the only way to the second floor was up two flights of stairs. Mrs. Chodak said that she personally went up to the polling station. There were to two persons present. She asked why the polling station is located there as it is usually down in the library. She was simply told that it is there. She told the people that her husband is in a wheelchair and he can't possibly get up the stairs. The Deputy Returning Officer replied, ... you should have gone to the advanced poll, and I said the polling station is usually in the library
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and we know we can get into Earl Oxford School, so we didn't bother with the advanced poll.
Now at the time, I don't recall whether I asked her to bring the polling station down. She didn't offer to. (Transcript Volume 1, page 118)
As a result, both Mr. and Mrs. Chodak left the building without voting.
Keith Russell (Brandon/Souris - Phil Cels)
Keith Russell is a wheelchair-reliant quadriplegic. He voted on September 4, 1984, at his polling station at St. David's United Church near Oak Lake, Manitoba. When he and his wife arrived at the polling station, he noticed that the polling booth was contained in the basement of the building. In order for him to go into the polling station, he would have been required to
descend several cement steps. His wife went down and voted and he
and his wife decided that he would not vote. He stated,
"Luckily, one of the polling clerks asked my wife if I was
outside. She said I was, and they gave my wife a ballot
which she carried up to me, which I marked on the dashboard
of my truck and handed back to her, and she carried it back."
(transcript volume 1, pages 53-54)
He stated that he felt that he was being treated differently and
that the situation was not handled very professionally. He noted
that his wife could have carried the ballot halfway up the
stairs, marked it by herself and taken it down and had it placed
in the ballot box. Mr. Russell is a farmer. The election took
place during harvest time in 1984. He was working 16 hour days at
the
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and when asked why he had not voted in the advance poll, he
stated that he was very busy at the time and "I really didn't see
why I should have to go to a lot of work to find out where I could
vote when it is supposed to be my right anyway to vote the same
day as everyone else." (transcript volume 1, pages 54-55)
Marianne Bossen (Winnipeg/St. James - Joan Belisle)Marianne Bossen is a wheelchair-reliant paraplegic. She was enumerated to vote at St. Margaret's Anglican Church in
Winnipeg, a church which she knew did not have level access. She
knew as well there would be an advance poll within her district at
Westminster United Church, a building which she knew has a ramp
which goes up to the main floor. She telephoned the office of the
Church in order to ask where the balloting would take place and
she was told that the balloting would take place in the basement.
She asked whether or not the Church has an elevator from the main
floor to the basement and the answer was no. She then telephoned
the office of the Returning Officer, stated her problem and was
asked what arrangements could be made to permit her to vote.
Eventually, she was provided with information as to the procedure
under section 43(7.1) of the Canada Elections Act for an
incapacitated elector to obtain a transfer certificate in order to
facilitate voting in an advance poll. Another telephone call
permitted her to learn that the transfer certificate would permit
her to vote at Harstone United Church on August 26, 1984, which
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level access. Ms. Bossen uses Handi Transit. She made a
booking for Handi Transit several days ahead and voted at the
advance poll at Harstone United Church, making use of her transfer
certificate. When she left the poll, she provided service to one
of the political parties as a scrutineer. She said that the
inability to vote at her normal polling station and the resulting
trouble and expense to which she was put, gets her very irritated.
In cross-examination, Ms. Bossen stated that St.
Margaret's Anglican Church was just around the corner from her
home. Westminster United Church is a few blocks away, but was
also an easy distance from her home. It was the need to go to and
the distance of Harstone Memorial United Church, which
necessitated her use of the Handi Transit. When asked whether or
not she is aware of any public building in 1984 in her immediate
area that was available for a polling station that had level
access, she replied "I don't think there was any, as far as I
know." (transcript volume 1, page 35)
Don Ament (Winnipeg/North Centre - Anne McDonald)
Don Ament is a wheelchair-reliant quadriplegic. He
voted on September 4, 1984 at his polling station in the Grain
Exchange Curling Club on Garry Street in Winnipeg. When he
arrived at the polling station, he noticed that there were three
or four steps out front which he would have to ascend in order to
get into the
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entranceway in order to vote. When a lady walked by, he asked her
if she would alert the officials that he was outside and that he
wished to vote. The lady did so and as a result, an election
official came out to the top of the steps, observed Mr. Ament,returned to the building and came out with a ballot box and a
voting slip. Consequently, Mr. Ament voted outside the building
in the parking lot. This procedure caused him to be frustrated
and angry. He had not been aware that the building lacked level
access prior to attending to vote.
I have indicated that evidence was adduced on behalf of
the Repondents. Such evidence was directed to the defence of
bona fide justification. Evidence called on behalf of the
Respondents did not touch on the issue of whether or not there has
been a breach of section 5 of the Human Rights Act. Accordingly,
I defer summarizing the evidence which was adduced on behalf of
the Respondents until later in this decision.
DID ANY DISCRIMINATORY PRACTICES OCCUR?
Section 5 of the Canadian Human Rights Act provides as follows:
Discriminatory Practices
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
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b) to differentiate adversely in relation to any
individual, on a prohibited ground of discrimination."
In considering Section 5, the following further sections should be
considered:
PURPOSE OF ACT
2. The purpose of this Act is to extend the laws in Canada
to give effect, within the purview of matters coming within
the legislative authority of Parliament,
to the principle that every individual should have
an equal opportunity with other individuals to make
for himself or herself the life that he or she is able
and wishes to have, consistent with his or her duties
and obligations as a member of society, without being
hindered in or prevented from doing so by discriminatory
practices based on race, national or ethnic origin, colour,
religion, age, sex, marital status, family status, disability
or conviction for an offence for which a pardon has been
granted.
PROSCRIBED DISCRIMINATION
General3(1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family
status, disability and conviction for which a pardon has been
granted are prohibited grounds of discrimination."
Complaint number P04573 (Murray Chodak) alleges a breach of
section 5(a). The remaining personal complaints and the general
complaint allege a breach of section 5(b).
Counsel for the parties made submissions as to the meaning
of the word
denyas used in section 5(a). Inordinary usage
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word
denycan import a knowing denial or in the alternative,an event which tends to deprive without the knowledge of a person.
It has been authoritatively stated that intent or malice is not a
pre-requisite for a finding of a breach of section 5 of the Act.
The principles of construction which are to be applied have been
reviewed by the Supreme Court of Canada in Action Travail des
Femmes v Canadian National Railway Company (1987) 1 S.C.R. 1114,
at 1132 to 1138.
Considering the purpose of the Human Rights Act, I give
the word deny
a relatively broad interpretation. I find that
Mr. Chodak was denied access to the poll at Earl Oxford Junior
High School, as the poll was established in a place which did not
have level access. The fact of the denial and the resulting
problem were drawn to the attention of the Deputy Returning
Officer, who refused to make any effort to assist Mr. Chodak. As
a result, Mr. Chodak was deprived of his right to vote.
As stated, the remaining personal complaints and general
complaint centre on allegations based on section 5(b) of the Human
Rights Act. It is clear that in the cases of the Complainants
Derksen, Deluca, Lane, Bauhs, Russell and Ament, the failure to
provide level access to their respective polling stations left
them in a different position than all other voters. The
difference was negative in that it caused each of them a
difficulty in
>-
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to vote, which was not faced by the remaining
voters.
The question which I have to decide is whether that different
treatment and resulting difficulty comprise an adverse
differentiation -in relation to such individuals within the
meaning of section 5(b) of the Act. The answer to this question
in turn involves a consideration of the nature of the effect on
the Complainants, because it cannot be every case of difference in
treatment which will bring a Respondent in breach of section 5(b).
There are very few cases which assist in determiningthe answer to this question because the large majority of Human
Rights cases arise from employment situations and very few cases
have been decided on an allegation of discrimination in provision
of services, facilities or accommodation. In the case of Re
Saskatchewan Human Rights Commission et al and Canadian Odeon
Theatres Limited (1985) 18 D.L.R. 4th, 93 the Complainant bought a
ticket to and entered a theatre but was required to sit in his
wheelchair at the front of the theatre. He filed a complaint
under the Saskatchewan Human Rights Code, alleging discrimination
with respect to services or facilities offered to the public on
the basis of physical handicap. An adjudicator found in his
favour. The decision was set aside on appeal but was restored on
further appeal to the Saskatchewan Court of Appeal. The majority
judgment was delivered by Vancise, J.A. At page 113, His Lordship
stated,
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question to be determined in this case is whether
the physical arrangements for the viewing of a movie which
are available to all members of the public but which have the
practical effect or consequence of discriminating against one
or more members of the public because of a prohibited ground,
i.e., physical disability, is discriminiation."
At page 115, His Lordship stated,
"The treatment of a person differently from others may or may
not amount to discrimination just as treating people equally
is not determinative of the issue. If the effect of the
treatment has adverse consequences which are incompatible
with the objects of the legislation by restricting or
excluding a right of full and equal recognition and exercise
of those rights it will be discriminatory: see also Re Rocca
Group Ltd. and Muise (1979), 102 D.L.R. (3D) 529, 22 Nfld. &
P.E.I.R. 1; Post Office v Union of Post Office Workers,
[1974] 1 W.L.R. 89.
Discrimination in a human rights context is exclusion,
restriction or preference of treatment based on one of a
number of protected characteristics the result of which is
the prevention or impairment of the exercise of human rights
and freedoms guaranteed in the Code.
In order to determine whether Huck was discriminated against
in this case, it is necessary to apply the principles I have
set out. Before embarking on that, I must of necessity
identify the specific act or acts of which he complains as
being discriminatory or which resulted in discrimination. It
is apparent from an examination of the complaint filed, and
the evidence, that the specific acts complained of as
constituting discrimination are: First, the requirement that
he agree to be transferred to a regular aisle seat or agree
to view the movie from the area immediately in front of the
first row of seats before they would sell him a ticket; and,
secondly, the failure to provide him with a choice of a place
from which to view the movie comparable to that offered to
other members of the public. The issue in this case iswhether that conduct of the respondent towards Huck, a
physically reliant person, results in treatment which is
restrictive, detrimental or prejudicial to him. If it does,
it is discriminatory and contrary to the provision of s.
12(1)(b).
>-
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J. found that the Legislature did not intend that the
particular needs of the physically disabled must be catered to by
persons who provide services to the public. He found that all s.
12(1)(b) requires is that the physically disabled be offered the
same facilities as are offered to the public, no more or no less.
In so doing, he concluded that if the Legislature had intended
anything more they would have said so. With the greatest respect,
I do not agree that that is the proper interpretation to be given
to s. 12(1). The Code must be given a liberal interpretation to
insure that its objects as set out in s. 3 are achieved. The
promotion of inherent dignity and equal inalienable rights could
not possibly be achieved if the Code was interpreted in the manner
suggested by Halvorson J.
I agree with the statements made by the board of inquiry that in
order to find whether Mr. Huck was discriminated against, it was
necessary to determine 'if the service or facility offered [Huck]
varied in any significant manner from the service or facility
offered by the respondent to the general public'. The service
offered Mr. Huck if he wished to remain in his wheelchair, was a
specified place from which to view the movie. He had no choice
but to view the movie from in front of the first row of seats and
from no other place. The offer made to other members of the
public, not suffering from physical disability, was unrestricted
as to where they could view the movie. They were able, on a
first-come first-serve basis, to sit in any seat or place of their
choice. The failure to provide Mr. Huck with a choice of places
from which to view the movie is prejudicial treatment because of
the complainant's disability and handicap. It makes little sense
to provide access ramps and bathroom facilities for the physically
handicapped and not to make provision for them to view the movie
itself.
On the facts of this case, I am of the opinion that the
respondent, by requiring Huck to agree to transfer to a regular
aisle seat, or to view the movie from an area in front of the
first row of seats before selling him a ticket, and, failing to
provide him with a choice of a place from which to view the movie
comparable
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that offered to other members of the public, is exclusion
and restriction of treatment based on physical disability.
It is discrimination as contemplated by s. 12(1)(b) of the
Code. It is no defence that the acts complained of were not
intended to be discriminatory, the result of the respondent'saction is discrimination."
I find that with respect to each of the above-mentioned
cases, the difference in treatment resulting from the absence of
level access comprised an adverse differentiation within the meaning
of section 5(b). I find that in each such instance, the
embarrassment caused, the risk of injury caused or the
inconvenience caused, resulted in a significant negative effect
which, considering the importance of the right to vote, and the
objects of the Human Rights Act, comprised a breach of section
5(b) of the Statute.
I find as well that the absence of level access at St.
Margaret's Anglican Church and Westminster United Church comprise
an adverse differentiation within the meaning of section 5(b) in
the case of Marianne Bossen, notwithstanding the fact that she
did not attend to vote at either such location. The effort which
she was required to make in order to obtain the information and
make arrangements to attend at a polling station with level
access, was so different from the effort required of non-disabled
voters that, considering the importance of the right which was in
issue, this section has been breached. Had the information as to
where she could vote been made more readily available to her, I
might have reached a different conclusion on this one complaint.
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- 23 -GENERAL COMPLAINT (PO4310)
Counsel for the Respondents submits that the general
complaint which is set out at page 3 of this decision should be
dismissed "on the basis that the complaint is beyond the
jurisdiction of this Tribunal." (page 38 of his written Argument)
Counsel for the Respondents refers to section 33(b)(ii) of the
Human Rights Act which states,
"Subject to Section 32, the Commission shall deal with any
complaint filed with it unless in respect of that complaint
it appears to the Commission that
(b) The complaint
(ii) Is beyond the jurisdiction of the Commission."
and subsection 5(c) of section 32 of the Human Rights Act which
states,
"5) No complaint in relation to a discriminatory
practice may be dealt with by the Commission under
this Part unless the act or omission that
constitutes the practice
(a) Occurred in Canada and the victim of the
practice was at the time of such act or
omission either lawfully present in Canada or,
if temporarily absent from Canada, entitled to
return to Canada;(b) Occurred outside Canada and the victim of the
practice was at the time of such act or
omission a Canadian citizen or an individual
admitted to Canada for permanent residence;
>-
- 24 -(
c) Occurred in Canada and was a discriminatory
practice within the meaning of Section 8, 10,
12, or 13 in respect of which no particular
individual is identifiable as the victim."
He submits that "The clear framework of the legislation is that
there is not jurisdiction for a complaint where there is no
particular identifiable victim."
Counsel for the Human Rights Commission submits that the
combined effect of subsections 5(a) and 5(b) of section 32 of the
Act "is that a case is made out under section 5 of the Act
provided that the victim of the alleged discriminatory practice is
identifiable. The Act does not require that the victim be
identified by his or her name."
I choose to dismiss this complaint, not for lack of
jurisdiction but because the evidence does not support the
complaint. The evidence is insufficient in a number of ways. I
am content to refer to the following. The evidence which has been
adduced refers to three groups of persons.:
(a) Eight persons have been identified in the personal
complaints. If the general complaint is intended to
duplicate the other eight complaints, it would not be
appropriate to permit the same matters to be the subject of
more than one complaint.
(b) Counsel for the Human Rights Commission sought to support
this complaint on the following basis
>-
- 25 -"
The Tribunal has referred to the testimony of Mr. Lane,
volume 1 of the Official Record, page 69. This portion of
Mr. Lane's testimony establishes that employees of the
Canadian Paraplegic Association and members of its Board and
members of the Association have found that their poll was not
accessible."
The most that can be taken from this portion of Mr. Lane's
evidence is that he received from these persons a report that
their polls were inaccessible. I find that there is no
evidence to establish that the polls for which the unnamed
persons were enumerated, were in fact inaccessible.
(c) Lucy Deluca stated in her evidence that she attended at Fort
Rouge School in order to vote in the company of other personswho shared with her the Handi Transit van. These unidentified
persons encountered the same difficulties as Ms. Deluca.
These persons were not called as witnesses and the evidence,
inter alia, does not establish that such persons were enumerated
or qualified to vote there.
If Counsel for the Human Rights Commission is correct in
his position that the Act does not require that the victim be
identified by his or her name, a point on which I need not rule,
the case would surely be rare where all of the elements of the
Statute can be proved without calling the person as a witness and
thereby identifying the person by name.
WAS THERE A BONA FIDE JUSTIFICATION?
Having found that the Complainants in each of the
>-
- 26 -above-
mentioned personal complaints have established a prima facie
case against the Respondent Returning Officers, I turn to
consideration of section 14(g) of the Act which provides as
follows:
"14. It is not a discriminatory practice if
(a) any refusal, exclusion, expulsion, suspension,
limitation, specification or preference in relation to any
employment is established by an employer to be based on a
bona fide occupational requirement;
(g) in the circumstances described in section 5 or 6, an
individual is denied any goods, services, facilities or
accommodation or access thereto or occupancy of any
commercial premises or residential accommodation or is a
victim of any adverse differentiation and there is bona fide
justification for that denial or differentiation."
Counsel for the parties have agreed that once a prima facie breach
of section 5 has been proved, the onus shifts to the Respondents
to show that there is a bona fide justification for the denial
or differentiation. There is considerable authority as to the
meaning of the words bona fide occupational requirement
as used
in section 14(a), for example, the case of the Ontario Human Rights
Commission and BruceDunlop and Harold E. Hall and Vincent Gray
v. The Borough of Etobicoke [1982] 1 S.C.R. 202. In that case,
a fireman had his employment terminated at age 60 pursuant to the
provisions of a collective agreement. A complaint alleging
discrimination was made under the Ontario Human Rights Code and
the Court was called on to decide whether or not the retirement
provision, which was prima facie discriminatory, could be saved as
a bona fide occupational qualification and requirement
within
>-
- 27 -the meaning of the Ontario Statute. The Judgment of the Supreme
Court of Canada provided a two-part test which an employer must
meet in order to justify a particular limitation as a bona fide
occupational requirement or qualification. The test has a
subjective and objective element. Under the subjective aspect of
the test, the Respondent must show that the limitation was imposed
in the honest belief that it was in the interest of adequate
performance of the work. Under the objective element of the test,
the Respondent must show that the limitation was reasonably
necessary to assure the efficient and economical performance of
the job. In addition, in a case involving an allegation of
adverse effect discrimination, there are authorities which hold
that if an employer refuses to make reasonable accommodation for
the needs of an employee, without having to incur undue hardship,
the practise will not be justified. See for example, the case of
Central Alberta Dairy Pool v. Alberta (Human Rights Commission)
L1990] 6 W.W.R. 193.
Counsel for both parties in the instant case agree that
the test under section 14(g) of the Federal Statute is similar to
the test under section 14(a). They agree as well that no Canadian
case has yet decided how the concept of bona fide justification is
to be applied in the context of an allegation of denial of
services on the ground of disability. Counsel for the Respondent
asked me to apply a test similar to that established in the
Ontario Court of Appeal and Re Zurich Insurance and Ontario Human
Rights
>-
- 28 -Commission
(1987) 59 O.R. 2d, 325; affirmed 70 O.R. 2d, 639. This
case was not an employment situation. In the case, a single,
twenty year old male complained of discrimination under the
Ontario Statute on the basis of age, sex and marital status in the
premium set for his motorvehicle liabilty insurance. The Court
held that the provision was justifiable since it was reasonable
and bona fide. However, counsel for the Human Rights Commission
points out that the Ontario statutory defence used the phrase
reasonable and bona fide grounds
whereas section 14(g) of the
federal act speaks of bona fide justification.
Counsel for the Human Rights Commission, on the other
hand, referred me on this point, to the case of Attorney General
of Canada v Mark Rosin and Canadian Human Rights Commission [1991]
1 F.C. 391. At page 408 to 409 of the reasons, Linden, J.A.
stated,
"It is clear that acts done in apparent violation of Section
5 may be justified pursuant to Section 15(g) and conduct
contrary to Sections 7 and 10 may be excused pursuant to
Section 15(a). The standards set out in these two provisions
are very similar. It has recently been made clear by the
Supreme Court of Canada that there is no difference between a
bona fide occupational requirement and a bona fide
occupational qualification. 'They are equivalent a-nd
coextensive terms.' (See Alberta Human Rights Commission v.
Central Alberta Dairy Pool (Supreme Court of Canda, No.
20850, September 13, 1990 at p. 13, per Wilson J.) Similarly,it might be concluded that the two phrases - 'bona fide
occupational requirement' (as in s. 15(a)) and 'bona fide
justification' (as in s. 15(g)) convey the same-meaning,
except that the former is applicable to employment
situations, whereas the latter is used in other contexts.
The choice of these different words used to justify prima
facie discrimination, therefore, are matters of style rather
than of substance. I shall refer henceforth to both of the
above phrases as B.F.O.R.
>-
- 29 -The
law of B.F.O.R. has been clarified to some extent by
the Supreme Court in the recent decision of Alberta Human
Rights Commission v. Central Alberta Dairy Pool (supra).
Madame Justice Wilson, writing for the majority (4-3) held
that, in cases of direct discrimination (which, it was
agreed, was the situation in this case), the employer must
justify the discriminatory rule as a whole. It is not
necessary, as it is in cases of indirect discrimination, to
take into account any measures adopted to accommodate any
individuals involved. In cases of direct discrimination, the
rule stands or falls in its entirety, since it applies to all
members of the group equally. In assessing the validity of
such a rule, the tribunal must decide whether it was
'reasonably necessary' to ensure the efficient performance of
the job without endangering the safety of the employee,
fellow employees and the public. The onus is on the employer
to establish that the rule or standard is a B.F.O.R. It is
not enough to rely on assumptions and so-called common sense;
to provide the need for the discriminatory rule convincing
evidence and, if necessary, expert evidence is required to
establish this on the balance of probabilities. Without that
requirement, the protection afforded by human rights
legislation would be hollow indeed. Hence, it is necessary,
in order to justify prima facie direct discrimination to
demonstrate that it was done in good faith and that it was
'reasonably necessary' to do so, which is both a subjective
and an objective test. (See Central Alberta Dairy Pool,
supra; Ontario Human Rights Commission v. Etobicoke [1982] 1
S.C.R. 202 per McIntyre J. See also Special Report to
Parliament on the Effects of the Bhinder Decision on the
Canadian Human Rights Commission (1986).
Based on this decision, counsel for the Human Rights Commission
submits that before the Respondents can rebut the burden which was
shifted to them, they must show that the denials or
differentiations were bona fide and reasonably necessary.
It is difficult to transpose the test which has been
carefully crafted by our Courts for employment situations so as to
suit the mould of the case of denial or differentiation in
>-
- 30 -providing
of services. The issue is, have the Respondentssatisfied me on a balance of probabilities that the denial of
access was bona fide justified? In deciding this issue, I have
attempted to apply the subjective test and the objective test
developed in Etobicoke. Under the subjective test, the
Respondents would have to show that the denial of access took
place in the honest belief that it was imposed in the interest of
adequate conduct of the election. Under the objective test which
has been developed under section 14(a), the Respondents would have
to show that the denial of access was reasonably necessary to
assure the efficient and economical conduct of the election.
However, it seems to me that it is not appropriate to focus too
much attention on economic factors when considering whether or not
denial of access to a non-business-related facility is bona fide
justified. Also, a high standard of care will be required because
of the importance of the right which has been prima facie infringed.
Counsel for the Respondents has attempted to prove that
the denial or differentiation in each of these cases was bona fide
and justified because it was impossible for the Returning Officers
in each of the constituencies in question to provide level access.
Impossibility would satisfy the standard of reasonableness.
However in the event the Respondents have failed to prove that
providing of level access was impossible, I must go on to consider
whether or not they have established that the denial was
reasonably necessary
>-
- 31 -and
bona f ide, notwithstanding the fact that they have not
established the impossibility of fullfilling the task. I
therefore review the evidence which was adduced on behalf of the
Respondents.
Kathleen Patterson (Complaints of Derksen, Deluca, Lane and Bauhs)
Kathleen Patterson served as Returning Officer for the
constituency of Winnipeg/Fort Garry. When first appointed in
1977, she was sent to Ottawa for three days of in-depth training.
In order to locate buildings in the area which might be used for
polling stations, she stated that she used information available
from prior elections, telephoned churches, schools, community
clubs and drove the area herself. The driving was mainly in the
Fort Garry area because the streets were complicated. "It was
just a nightmare really to try and establish boundary lines ..."
(transcript volume 2, page 43) She said that one of the first
things she had to do was set up polling divisions. When asked
what instructions she received about the importance of level
access, she stated,
"It was emphasized by Elections Canada, that it should
receive emphasis, but it wasn't always possible. . . . Well,
you had to consider the accessibility for all the electorate
within the boundary lines of the advance polls. And that you
tried to get it in the centre so that it was accessible to
everybody. We had to consider all the electorate."
(transcript volume 2 pages 44 to 45)In 1977, Ms. Patterson made enquiries of a person in the federal
Department of Public Works who came down and looked at some of the
buildings in the area and she concluded, based on his advice that
ramps could not be installed as it would have been extremely
>-
- 32 -dangerous
to do so. She identified Exhibit R-10 Notice of Advance
Poll which was published by her showing that all eight advance
polls were level access. As such, it showed that Fort Rouge
School had level access. She was asked what enquiries she made at
the time that she established Fort Rouge School as an advance poll
and she replied,
"Well, traditionally Fort Rouge School had always been used
as a polling station and as a place for advance
polls. All these schools that were advance polls,
from one to five, were all in Winnipeg School Division
No.1, so I phoned Mrs. Griffin at Winnipeg School
Division No. 1 who was in charge of renting out schools, and
I asked her for permission to use these schools, and I also
asked her if they were level access. So, according to her
they were level access and so I established them as advance
polls." (transcript volume 2, page 51)
Ms. Patterson subsequently found out that Fort Rouge School did
not have level access. She was next asked about the Holy Rosary
Church, where one of the regular polling stations was located.
She stated in an earlier election, she went to Holy Rosary Church
and spoke to the pastor and found out that the church did not have
level access. She said,
"I was strapped for space in that area, and when I went to
see him in 1984 I went to see if he had or if they had
installed an elevator in that church because in the previous
elections I didn't use St. Ignatius Church for the simple
reason was that they had a lot of steps going down, but I had
more scope there, but they had installed an elevator and an
outside ramp and also an elevator in the interior and so I
thought that perhaps Holy Rosary Church had done the same,
but they hadn't."
(transcript volume 2, page 52)
She estimated that there are a dozen steps within the church down
to the auditorium where the poll was held. She said that she did
>-
- 33 -not
have any options. She checked them out. She had enquired at
55 Nassau and was not allowed to use that building for a poll if
non-residents were to make use of it. One Evergreen had enough
electors to constitute a poll, so a poll was established in the
lobby for the purpose of the residents of that building.
Although the information published indicated more, out
of eight advance polls, six had level access and 35 out of 42other polling stations had level access.
In cross-examination, Ms. Patterson stated that once she
realized that Fort Rouge School was not accessible, she did not
look into the possibility of having a temporary ramp installed.
She looked for an alternative site to Holy Rosary Church. She
found that St. Luke's Church had level access on the outside, but
a long flight of stairs on the inside, down into the auditorium.
She acknowledged that there is a senior citizens' home
across the street from 55 Nassau and it has level access. She was
unable to recall whether or not she looked into the possibility of
using the building as a polling station in 1984 election. She
recalled receiving telephone calls from persons to enquire whether
or not the advance poll at Fort Rouge School was accessible or not
and that before she found out the true state of affairs, she
informed people that the school was accessible.
>-
- 34 -Phil
Cels (Complaints of Chodak and Russell)
Phil Cels gave evidence that he served as Returning
Officer for the constituency of Brandon/Souris in the September
1984 election. He was assisted in that work by an Election Clerk
by the name of Terry Penten, who passed away in 1985. He stated
that following his appointment in 1981, he participated in a training
program. He was asked about what procedure he followed in
establishing polling stations.
"I do remember that in general, my role is to find polling
locations that were accessible of the greatest numbers, the
bulk of the population, so that they could readily vote.
Part of what my consideration at the time would be
traditional spots where people voted. I remember relying
upon people who were in the communities outside of Brandon to
give me advice as to traditional spots as to where people
voted, to give me advice as to available spots in public
buildings where people could vote. So certainly available
public buildings, accessible to the polling subdivision were
our primary considerations. I don't remember specifically if
I insisted on level access, but I think that would have been
part of general consideration at least." (transcript volume 1,
page 130)
Mr. Cels was asked how St. David's Church came to be selected for
a poll and he replied, "I really do not have much specific
information other than to assume that it was chosen because of
past voting habits." (page 135) When asked about the selection of
Earl Oxford School, he stated that the school had been used as
polling station on prior occasions, and on such occasions, the
school made available the library on the main floor of the
building. On this occasion, arrangements were made by another
person, who has since passed away and Mr. Cels was unable to
provide any information as to how or why the upstairs came to be
used or why
>-- 35 -the
change was permitted to happen. He said that he had a
conversation with the caretaker of the school several years after
the election but was unable to obtain any useful information to
explain the reason for the change. Mr. Cels speculated to an
extent about what may have happened, but his evidence of
speculation was of no assistance to me in making my findings. Mr.
Cels also stated that he did not give any instructions to Deputy
Returning Officers as to what to do in case persons using
wheelchairs showed up to vote at non-level access polls, although
he did know that there were polls which were non-level access. In
the Brandon/Souris constituency, eight of nine advance polls had
level access, as did 166 out of 175 polling stations on election
day.
Elgin Rutledge
Elgin Rutledge is the secretary/treasurer of the Rural
Municipality of Woodsworth and has so served for the past 18
years. He is familiar with the geography of the area and public
buildings located within the Municipality. He is familiar with
St. David's Church. He stated that in 1984 there were no public
buildings in the area of St. David's Church, nor any other
churches. The nearest level access building of a public location
to St. David's Church was located in Oak Lake, in a different
constituency than Keith Russell had resided in.
Joan Belisle (Complaint of Bossen)
Joan Belisle served as Returning Officer for the
>-
- 36 -constituency
of Winnipeg/St. James, in the September 1984
election.
She was first appointed to the position in 1976 following which
she received a four-day training course in Ottawa. She stated
that an early priority after the election is called, is to establish
the location of advance polls and polling stations. Her practice
was to drive around the area to see where there would be level
access, suitable for polling stations for polling day, as well as
advance polls. She said, "I guess my priority was level access as
well as . . . I didn't want the electorate crossing over busy
thoroughfares like Sargent Avenue, Ellice Avenue, Portage Avenue,
so I contained my polling stations as much as possible so the
electorate didn't have to cross the main thoroughfares."
(transcript volume 1, page 158) She said that the volume of
seniors in her constituency played a very large role in selection
of polling stations.
When asked as to her recollection of the availability of
level access at the Westminster United Church she stated, "Well,
the Westminster United Church, what I recall had a ramp. So you
were able to get to the Church, and we have used it in the past,
but they obviously put us in the basement at this particularelection." (transcript volume 1, page 163) When asked whether or
not other level access buildings were available to serve as
polling divisions instead of Westminster United Church, she spoke
of one new building which she had asked to use, but had been
refused,
>-
- 37 -but
apart from that "I don't recall if there was any. That was
the problem at the time." She acknowledged that St. Margaret's
Church did not have level access and that she knew that fact at
the time. When asked whether or not there was an alternative to
St. Margaret's Church, she replied ". . . in the older areas back
in 1984 where now everything is level access, and that particular
time it was very very difficult finding things level access."
(transcript volume 1, page 164)
In cross-examination, Ms. Belisle stated that Westminster United
Church had a ramp leading into the building. The problem was inside.
"What I recall I believe they were doing some renovations in
the church at the time and it is my understanding that they
put the advance poll what I recall in the basement of the
church and down a few stairs." (transcript page 169)
She acknowledged that she made no effort to install a temporary
ramp to the basement. "At that particular time that wasn't part
of what we could do with the Election Act at that time."
(transcript page 169). She did not check with the Chief Electoral
Officer's office to see if there were funds available in the
budget to make places level accessed. On the subject of level
access, she stated further,
"If we could get level access at any place, that is what we
took. All I am saying is that in 1984, in my area which is
an old established area, there is very few places at that
time that have level access. We couldn't, you know, pull
level accesses out of the air, because the election was
called. I did what I possibly could to get level accesses."
(transcript volume 1, page 173)
>-
- 38 -Ms.
Belisle was also questioned on the subject of whether or not
it was possible to install ramps to increase the number of
buildings with level access. She stated,
"I guess in some cases there could be. I don't know whether
there would be the provisions for it at that particular time.
I did, and I provided what I possibly could do under the
circumstances." (transcript volume 1, page 174)
As to premises for advance polls, she stated that although the
statute only required that one advance poll have level access, she
tried to get as many as possible with level access. She has
observed that since then many churches have installed ramps to
permit their congregants to have better access.
Three or four out of six advance polls had level accessand 95 out of 160 other polling stations had level access.
Anne McDonald (Complaint of Ament)
Anne McDonald served as Returning Officer for the
constituency of Winnipeg/North Centre. She was first appointed in
1979 and was sent to Ottawa for a week-long training. In
establishing locations for polling, she spoke of the persons who
assisted her. She said that her daughter, Darlene Gray did a lot
of the running around because she had the car.
In 1984, she stated,
>-
- 39 -"
We tried to find everything we possibly could, for level
access and that. But being an old part of the City it's just
hard to get into a lot of these buildings. So I don't know,
I thought we did pretty well (transcript volume 2 page 16)
She stated that she had received instructions to obtain as many
level access polling stations as we possibly could
. (transcript
volume 2, page 19) Ms. McDonald said that she preferred to use the
Plaza By the Riverside for a polling station as had been done
before, but management refused to permit non-residents to come
into the building, so Ms. McDonald had to find another location.
She said that the Fort Rouge Curling Club "was the only thing that
we could possibly get that wasn't too far from everything."
(transcript volume 2, page 20) She acknowledged that the Grain
Exchange Curling Club building had no level access and that she
knew that.
Ms. McDonald arranged a Returning Office with level
access. Six out of six advance polls had level access and 100 out
of 126 other polling stations had level access.
In cross-examination she stated that the problem with
the building was that once inside the door, there "was a couple of
steps to go up." (transcript volume 2, page 21) She isn't sure of
the number of steps. When she realized that the building was not
accessible because of those steps, she did not look into the
possibility of installing a temporary ramp "because we are not
allowed to....... we didn't have any allowance to build ramps. .
>-
- 40 -In
'84 I believe I wasn't allowed to build a ramp."
(transcript volume 2, page 22) When pressed further as to whether
or not she had checked with the Chief Electoral Office to see if
money was available, she stated "I can't recall whether I did or
not, sir." (transcript volume 2, page 23)
Darlene Gray
Darlene Gray is the daughter of Anne McDonald and she
assisted her mother in fullfilling the duties of ReturningOfficer. She personally received training from Joan Belisle. Ms.
Gray, following her mother's appointment, drove around the
constituency familiarizing herself with it. She was accompanied
by her mother. She had the benefit of the proclamation from the
previous election stating where the polling stations had been.
She stated that in her instructions, "It was stressed that where
possible would we please use polls where either ramp or no stairs
are . . . and we did try our level best to secure polls of that
nature when we could." (transcript volume 2, page 29) She said
that she took into account other factors,
"such as the proximity to the electorate's residences. You
don't want them going too far away from home. Major
thoroughfares. The type of building itself, preferably
public buildings. The condition of the building itself; you
wouldn't want them going into dilapidated buildings. There
are many factors. I hope I have named just about all of
them." (transcript volume 2, page 29)
She said that once she drove the area, she would endeavour to get
hold of either building management or the public agency
responsible
>-
- 41 -for
the administration of a particular building. Prior to an
election you can only make a tentative arrangement with
management. "You cannot finalize anything until the election is
called. You may find a place that is ideal and then find that
when the election is called, it is not available." (transcript
volume 2 page 30) She confirmed that the building known as the
Plaza By the Riverside was not available for use in the election.
She stated, "Well, I was very concerned because it meant that we
had lost a poll that was level access and a scramble was on to
find another place to put the poll." (transcript volume 2, page
35) She stated that she made an enquiry about the availability of
the C.N.R. Station but she could not get permission for that.
There was also another senior's home in the area with level access
but it was not available. There was also a church that she used
to use, but it did not have level access. The Grain Exchange
Curling Club was selected "because of its proximity to the polls
that we wanted there." (transcript volume 2, page 36) She was
aware that there were steps.
In cross-examination, Ms. Gray was asked if she had made
any effort to make the building temporarily accessible to wheelchairs
and she replied "we didn't have any means by making temporary
access." (transcript volume 2, page 38) "Well, we were not
authorized to build ramps or ask building management to build ramps."
(transcript volume 2, page 39) When asked whether or not she looked
into the possibility of having a temporary portable ramp installed
>-
- 42 -there,
she replied, "No, we weren't allowed in those days to do
things like that. . . . Elections Canada did not provide for rampsto be created, rented or built." She did not check with the Chief
Electoral Office but stated, to my knowledge we were not.
(transcript volume 2, page 39)
Andree Lortie
Andree Lortie serves as the Assistant Director of
Operational Planning and International Services group with
Elections Canada and has held that position since July 1990.
Prior to that she served as Executive Assistant to the Chief
Electoral Officer for 14 years. Between 1981 and 1990 she has
been involved with Elections Canada with respect to special
projects. She stated that she has been involved in the
development of guidelines of instructions to Returning Officers.
As such she has dealt with special categories of electors
including visually impaired, hearing impaired, homeless, illiterate
and persons with physical disabilities. Elections Canada on
occasion retains outside consultants to advise on matters.
She stated that in 1984:
"We had an intensive information program, and one of
ads was specifically dealing with advance polling and
all the . . . the information was to the effect that
how you could get around to vote for advance polls
and there was a number of the Returning Officers if
you needed any special information, and that you could
>-
- 43 -vote
at the advance or at his office if you could not make it
for an ordinary poll, or that you could also obtain a
transfer certificate. (transcript volume 2, page 75)
There was also reference to incapacity or disability in
the ad.
As to instructions given to Returning Officers dealing
with the issue of level access she stated,
"A. For 1984 at least the Returning Officers were instructed
by memo that the criteria in the selection of their polls was
definitely level access, to make a special effort to have
them at all advance polls, and to try as hard as they could
to get the level access but as long as it was not unduly
inconveniencing other electors.
Q. Is that advance or also at regular polls that you are
speaking of?
A. Both.
Q. Both?
A. Yes. The emphasis was definitely more on the advance.
Q. We have seen what the provisions of the Elections Act
are with respect to advance polls, and that is at least oneadvance poll has level access. How did the statutory
requirement that at least one advance poll have level access,
how did that compare with the instructions that were being
given by the electoral officer to the Returning Officers?
A. The results compared favourably. The instructions were
definitely stronger than the legislation.
Q. To your knowledge were Returning Officers, at least in
Manitoba, if not elsewhere in Canada, exceeding the statutory
-- and I speak of statutory referring only to the Canada
Elections Act requirement -- with respect to advance polls?
>-
- 44 -A
We definitely did, because if my memory serves me right, in
some of the areas in Manitoba anyways out of 119 advance
polls we had 100 that had level access."
The actual instructions provided to Returning Officers are
contained in Exhibit R-12, tab 1, as follows:
"When possible locate advance P.S.'s at a place that will
provide ease of access to any elector who is confined to a
wheelchair or otherwise incapacitated or who is of advanced
age. At least one advance P.S. with level access must be
established in each urban municipality of the E.D.
The main consideration governing the selection of P.S.'s is
accessibility. Whenever possible, a P.S. should be centrally
located in a school or other public building, such as a
community centre, church hall, recreation hall, or the like.
In consideration of those electors who are infirm or
handicapped, R.O.'s must make every effort to locate P.S.'s
on the ground floor, in buildings that are served by
elevators or provided with special ramps."
She stated that these were the instructions which were sent to
Returning Officers prior to the 1984 election and it is part of
the manual of instructions for the whole period of the election.
Ms. Lortie identified one of the several notice of advance poll
which were filed in evidence before me (Exhibit R-10). She stated
that the procedure of inserting stickers indicating which polls
were level access changed for the 1988 election. The policy
change made it mandatory for every advance poll to have level
access. As a result, the form has a picture of a wheelchair
printed on
>-
- 45 -it
opposite the location of each advance poll as opposed to the
former procedure of having a sticker inserted opposite the
location of each advance poll. Ms. Lortie pointed out that in
addition to having the opportunity to vote at a regular poll, an
advance poll or by virtue of a transfer certificate, voters can
vote in the Returning Officer's office from day 21 onward, exceptfor advance poll days, Sundays and election day. She is aware of
instances where electors have shown up at a polling station on
polling day and find that there is no level access. If the
elector has required level access to get in, a box has been
brought out to the curb or the door, or the person has been
assisted into the polling station.
Ms. Lortie told us about the Parliamentary Committee
which conducted hearings in about 1981 across the country and
a report called The Obstacles Report was published. That report
dealt with the subject of accessibility and made the following
recommendation:
"That the question of accessibility of polling stations,
voting booths and the offices of Returning Officers and
Deputy Returning Officers be referred to the Standing
Committee on privileges and elections."
Ms. Lortie stated that the Chief Electoral Officer has made
recommendations for improvements in procedures in his reports to
Parliament for 1983, 1984 and 1988, and from then on he has asked
for continuous efforts to improve on the services.
>-
- 46 -The
1983 Statutory Report, Exhibit R-14, recommended as follows:
"I, therefore, recommend that the Canada Elections Act be
amended to provide that the office which every Returning
Officer must open as soon as a Writ of Election is issued be
established at the place in the electoral district which
would be the most convenient for the majority of the electors
to be served, and located in commercial premises with direct
or elevator access. Provisions could be made for exceptional
cases, which would have to be approved in advance by the
Chief Electoral Officer."
The 1984 Statutory Report, Exhibit R-15, recommended as
follows:
"45 - Voting by Incapacitated Electors
As suggested by the Special Committee on the Disabled and the
Handicapped and in order to better serve incapacitated
electors, it is proposed that, in some cases, the Deputy
Returning Officer be allowed to take the ballot box outside
of the polling station.
Recommendation
That, when a polling station does not provide level access,
the Deputy Returning Officer and the Poll Clerk should be
authorized to take the ballot box and the necessary documents
to the entrance of the polling station or even outside, in
order to permit an incapacitated elector to cast his vote."
In the meantime, the September 19, 1984 election took place.
Subsequently Bill C-79 was introduced to Parliament, and ifenacted, it would have made the following changes:
- Amend section 4(1) to provide that Elections Canada is
responsible for ensuring that the provisions of the Act are
complied with.
>-
- 47 -Amend
section 9(1) to require a Returning Officer's office to
have level access.
Amend section 33(1) to provide that polling stations,
wherever possible, provide level access and that if level
access can not be provided the Returning Officer shall on
request by an elector, give the reason why level access is
not available.
Add section 33(6.1) to require that every central polling
place have level access.
Amend section 33(9) to provide that whenever possible a
polling station provide level access to electors.
Add section 33(10) to create mobile polling stations for
elderly or incapacitated persons.
However, Bill C-79 died on the Order Paper when the 1988 election
was called. That did not stop the Chief Electoral Officer from
taking administrative action. His office engaged in consultations
with Barrier Free Design Centre in Toronto in an attempt to design
barrier-free election facilities. As a result Tab 2 of Exhibit
R-12 was issued to Returning Officers. It was under these
instructions that what Mr. Lane called an accessible election
,
was conducted.
>-
- 48 -Ms.
Lortie identified and discussed in her evidence the
following additional documents:
- Revised instructions to Returning Officers as to
accessibility to polling stations, which were distributed to
Returning Officers in 1988 (Exhibit R-12, Tab 2)
- Guidelines developed by Elections Canada in conjunction with
the Barrier-Free Design Centre of Toronto in 1988 (Exhibit R-12,
Tab 3)
- Memorandum to all Returning Officers dated July 29, 1988 re:
accessibility to polling stations (Exhibit R-12, Tab 4)
- Memorandum to all Returning Officers dated September 29, 1988
re: level access at the polls (Exhibit R-12, Tab 5)
- Schedule of number of level access polls in relation to
number of polls established in the 1988 general election(Exhibit R-12, Tab 6)
- Report of the Chief Electoral Officer of Canada dated 1989
(Exhibit R-12, Tab 7)
- Memorandum to the Returning Officer for the constituency of
York North, dated October 12, 1990 re: level access election
facilities (Exhibit R-12, Tab 8)
- Policy statement adopted in principle by management committee
(Exhibit R-12, Tab 9)
These documents show that in the 1988 general election, 92 percent
of polling stations had level access. Manitoba's average was 96
>-
- 49 -percent.
The revised procedure which produced this "accessible
election" may be summarized as follows:
- All Returning Officers' offices must have level access;
- All advance polling stations must have level access;
- All central polling places must provide level access.
Ordinary polling stations, not in a central polling place, must
as far as possible be located in premises that offer level access,
unless it would be physically impossible to do so, or where
the majority of the electors who are to vote in such premises
would be inconvenienced.
- In all cases where Returning Officers would be unable to
locate a polling station in level access premises, they must
be prepared to provide to any elector, on request, the
reasons for the absence of level access.
- Revisal offices must be located in level access premises.
- Where parking facilities are available, one parking space
must be reserved for the disabled.
- Rented premises could be modified by constructing ramps on
>-
- 50 -a
temporary basis, provided that the ramps met certain
specifications.
- Returning Officers were required to prepare and submit to
Elections Canada a report in an approved format as to the
accessibility of the polls.
Ms. Lortie stated that Elections Canada received no
requests from Returning Officers for permission to erect a ramp in
the 1984 election.Elections Canada is now gathering information as to
buildings which are available throughout the country with level
access. She stated,
"All our efforts have been towards doing better all the time and
to obtain the ultimate up to the point where the only way that a
polling station would not have level access is if the poll cannot
otherwise be held. Over and above that the C.E.O. was consulted
not too long ago about his policy, what he intended to do and he
has stated then that he would welcome or that he would have no
problem with this stringent policy if it was legislated and if it
was actually incorporated into the Canada Elections Act either
through an omnibus bill or through amendments to this
legislation." (transcript volume 2, pages 101 to 102)
In cross-examination Counsel for the Human Rights
Commission referred to the March 1988 instructions (Exhibit R-12,
tab 2) and said,
... So, I read that as a trade off, in a way. In
other words, that if there is to be inconvenience to
>-
- 51 -the
majority of the electors then if there is no level access
building available the poll will be nonetheless located in it
because that would result in inconvenience to electors; is
that it?
A. Well, I think we have to give a degree to the inconvenience.
Q. Yes?
A. If it means moving a whole community fifty
miles away to another community this is definitely
inconvenience to the majority and it has a degree of
inconvenience, as opposed to just being more convenient
because it is down across the street or in the park where
they have always voted before."
(transcript volume 2, page 112-113)
At page 114, he asked,
"Q. Yes, the question is has your office ever looked into the
possibility of renting stair tracks?
A. We did not in 1988 but we do with our new policy where
we want them all to be level access. We indicate that there
could be lifts, tractors, etcetera, whichever way they could
be used to provide the level access over and above ramps.
Q. And then no matter the number of stairs, with that type
of device?
A. As long as it is safe and physically possible.
Q. But that is much more flexible than erecting
temporary ramps; is it not? I mean there are manycases where one could not erect a temporary ramp but
that access could be given using one of those devices?
A. Correct."
At page 119 the following questions and answers took place:
"Q. So in other words, until 1988, until the chief electoral
officer came out strongly about level access, there was that
phenomenon of tradition of locating polls?
A. There was, definitely.
>-
- 52 -Q.
I see. You referred us to Section 33 of the Act, its
page 99. It is the understanding within your
office that when Section 33 speaks of convenient access, it
has nothing to do with level access, it has to do with the
fact that the thing should be conveniently located for the
majority of the voters; is that it?
A. That is the way that it had been interpreted.
Convenience, now access. Access mainly has been extended to
meaning level access in the orientation we have taken."
In re-examination Ms. Lortie was asked whether or not
mechanical devices other than ramps were readily available in 1984
and she replied that she does not know.
I admitted into evidence as Exhibits R-16 and R-17 the
Report of the Canadian Human Rights Commission, published in 1990,
entitled "Unequal access - An accessibility survey of selected
federal offices" and an Executive Summary of the Report. The
Report tells us that public buildings occupied by federal agencies
in the Winnipeg area scored between 45.92 percent and 75.51
percent for wheelchair accessibility. Four federal agencies
achieved the following scores on mobility-wheelchair: Employment
and Immigration 71.88 percent, Canadian Human Rights Commission
45.92 percent, Health and Welfare Canada 67.23 percent, and Public
Service Canada 75.51 percent.
After a careful review of all the evidence which has
been submitted on behalf of the Respondents, I find that it has
not been established on a balance of probabilities that it was
impossible to provide level access to Mr. Lane, Ms. Deluca, Ms.
>-
- 53 -Bauhs
or Mr. Derksen in Winnipeg/Fort Garry, or to Mr. Chodak in Brandon/
Souris. Mrs. Patterson failed to satisfy me that she
ruled out the possibility of the poll being established at the
senior citizens' home on Roslyn Road as an alternative to Holy
Rosary Church. She failed to personally inspect Fort Rouge
School.Once she found out that Fort Rouge School did not have level
access, she made no effort to notify disabled voters, either by
newspaper or by a telephone call to the Canadian Paraplegic
Association or by arranging for a person to be in attendance at
the entrance to Fort Rouge School, to provide an explanation to
voters to whom she or her staff had provided incorrect
information. Nor did she make any enquiries as to whether or not
a temporary ramp could be installed and if so, whether or not
funds are available to cover the cost. In making this finding, I
do not mean to be overly critical of her efforts. She impressed
me as a competent Returning Officer whose days of service during
the 1984 election were occupied and well spent. However, at stake
here is an important human right and if more assistance is
required to permit a Returning Officer to carry out her full
responsibility and if expense has to be incurred, the Chief
Electoral Officer should make available the assistance and the
funds. In these circumstances, I find too that the Respondent has
not satisfied me that the denial was reasonably necessary,
notwithstanding the fact that an enquiry was made at the Winnipeg
School Division and incorrect information provided.
In connection with the complaint with respect to Mr. Chodak, the
Respondent Cels has failed to explain why he or his
>-
- 54 -staff
did not require the polling station at Brandon/Souris to be
held on the main floor, as had been done in prior elections. The
Respondent has therefore failed to satisfy me that provision of
this important right was impossible or in the alternative that the
denial was reasonably necessary. That situation was aggravated
when Mr. and Mrs. Chodak attended to vote, with the reasonable
expectation that Mr. Chodak would have access to the poll, only to
find a Deputy Returning Officer or Clerk who refused to do
anything to try to remedy the situation and blamed the Chodaks for
failing to make other arrangements for themselves.
In the cases of the complaints of Mr. Russell, Mr. Ament
and Ms. Bossen, I find that the Respondents have satisfied the
onus of showing that the denial was reasonably necessary and I
dismiss the complaints on the ground that the absence of level
access was bona fide justified.
(a) Complaint of Keith Russell
The evidence of Elgin Rutledge satisfies me that it was not
possible to provide a polling station with level access
instead of using St. David's Church.
(b) Complaint of Don Ament
The evidence of Mrs. McDonald and Ms. Gray satisfy me that it
was not possible to find a level access polling station
instead of the Grain Exchange Curling Club.
(c) Complaint of Marianne Bossen
The evidence of Ms. Belisle and Ms. Bossen satisfy me that>-
- 55 -it
was not possible to find either a polling station with
level access to replace St. Margaret's Anglican Church or an
advance poll to replace Westminster United Church.
LIABILITY OF THE CHIEF ELECTORAL OFFICER
Is the Chief Electoral Officer liable for breaches of
the Act made by the Returning Officers for Winnipeg/Fort Garry and
for Brandon/Souris? A consideration of this question involves a
review of the following provisions of the Elections Act:
114(1) The Chief Electoral Officer shall
(a) exercise general direction and supervision over the
administrative conduct of elections and enforce on the part
of all election officers fairness, impartiality and
compliance with the provisions of this Act;
(b) issue to election officers such instructions as from
time to time he may deem necessary to ensure effective
execution of the provisions of this Act; and
(c) execute and perform all other powers and duties assigned
to him by this Act.
(2) Where, during the course of an election, it appears to
the Chief Electoral Officer that, by reason of any mistake,
miscalculation, emergency or unusual or unforeseen
circumstance, any of the provisions of this Act do not accord
with the exigencies of the situation, the Chief Electoral
Officer may, by particular or general instructions, extend
the time for doing any act, increase the number of election
officers or polling stations or otherwise adapt any of the
provisions of this Act to the execution of its intent, to
such extent as he considers necessary to meet the exigencies
of the situation.
7(1) The Governor in Council may appoint a Returning Officer
for any new electoral district and a new Returning Officer
for any electoral district in which the office of Returning
Officer becomes vacant, within the meaning of subsection (2).
>-
- 56 -(
2) The office of a Returning Officer is not vacant unless
he dies, or, with prior permission of the Chief Electoral
Officer, resigns, or unless he is removed from office for
cause within the meaning of subsection (3).
(3) The Governor in Council may remove from office, as for
cause, any Returning Officer who(a) has attained the age of sixty-five years;
(b) ceases to reside in the electoral district for
which he is appointed;
(c) is incapable, by reason of illness, physical or
mental infirmity or otherwise, of satisfactorily
performing his duties under this Act;
(d) has failed to discharge competently his duties, or any
of his duties, under this Act;
(e) has, at any time after his appointment, been guilty of
politically partisan conduct, whether or not in the course of
the performance of his duties under this Act; or
(f) has failed to complete the revision of the boundaries of
the polling divisions in his electoral district as instructed
by the Chief Electoral Officer pursuant to subsection 10(1)."
Counsel for the Respondents has asked me to dismiss the
complaint against the Chief Electoral Officer on the basis that he
is neither employer of the Returning Officers nor responsible in
any way for such breaches as occurred.
Counsel for the Human Rights Commission asked me to
make a finding against the Chief Electoral Officer. He does not
allege that the Chief Electoral Officer is the employer of the
Returning Officers but says that he need not establish a
master/servant
>-
- 57 -relationship.
In his written submission, he stated, "It has been
settled since long that employer/employee relationships for the
purpose of human rights legislation are not to be determined by
using the law of master/servant." He referred to the cases of
Cormier v. Human Rights Commission (Alta. ) and Ed Block Trenching
Ltd.- (1986) 56 A.R. 351 as well as Canadian Pacific Limited v.
Canadian Human Rights Commission and Gilles Fontaine [1991] F.C.
571, 578 and - Attorney General of Canada v Mark Rosin and
Canadian Human Rights Commission [1991] 1 F.C. 391 (Federal Court
of Appeal), and Robichaud v Canada [1987] 2 S.C.R. 84, 95.
After giving careful consideration to the following
matters (1) the extended nature of the scope of responsibility
indicated by the above case law; (2) the purpose of the Human
Rights Act; and (3) the statutory responsibility of the Chief
Electoral Officer to provide instruction to the Returning
Officers, I find the Respondent, Elections Canada, responsible for
the breaches of the Act which I have found against the Respondent
Returning Officers. Further, I find that the instructions given
by Elections Canada to the Returning Officers in Exhibit R-6 were
inadequate and permitted the Returning Officers to believe that a
lesser standard was required of them than I have found to be the
case. My finding in this regard is reinforced by the fact that
the more pointed instructions which were issued in 1988, Exhibit
R-12, Tab 2 resulted in an accessible election
. I have not
taken subsequent events>-
- 58 -into
account in determining whether or not there was a prima facie
breach of section 5 of the Act. However, I consider it proper to
take into account subsequent events in determining whether or not
the Respondents have established a bona fide justification,
whether or not Elections Canada has a responsibility for such
breaches as have been found and in deciding what remedy should be
applied.
REMEDIES
I have indicated the remedies which are sought by Mr.
Lane on behalf of the Canadian Paraplegic Association. Counsel
for the Human Rights Commission has asked me to make the following
Orders:
- all Returning Officers' offices and all advance polls have
level access;
- all polling stations be accessible to wheelchairs except in
cases where pursuant to subsection 53(4) of the Canadian
Human Rights Act this would result in undue hardship;
- there be proper signs to indicate where the access is;
- there be appropriate parking;
- a list of all the accessible polls be available for public
consultation in the office of the returning Officers;
- this list be published in newspapers in sufficient time
before election day to ensure that people who cannot vote at
their regular poll because of lack of level access can either
vote in the advanced polls or make an application for a
transfer certificate;
- after any election the Chief Electoral Officer shall make a
yearly report to the Commission on the progress made in
securing accessible polls. This obligation to report shall
cease three (3) years from the date of the Tribunal's
decision;
>-
- - 59 -copies of the said reports be provided to the Canadian
Paraplegic Association;
- enumeration slips indicate where people can inquire about the
accessibility of polls;
- the Chief Electoral Officer provides the Canadian Paraplegic
Assocation with a letter of apology.Counsel for the Respondents submits that I ought not
give consideration to points 5, 6 and 9 on the basis that no
evidence was adduced by the Human Rights Commission in support of
them and as a result Counsel for the Respondents in leading the
evidence of Ms. Lortie had no reason to ask questions touching on
these points. As a result, he urged, this Tribunal is deprived of
an opportunity to receive Ms. Lortie's evidence on these points.
I subsequently offered Counsel for the Respondents an opportunity
to remedy the matter, if he felt that some further evidence is
required. He chose to respond to the matter by making further
written submission, maintaining the position that he was deprived
of an opportunity to call evidence on the point. He made no
motion to reopen the case and call further evidence and I am
satisfied that the issues have been fully dealt with before me and
that I am in a position to make a determination on the points.
ORDERS
The strong positive actions taken by Elections Canada
after 1984 persuade me that no apology is required except for the
>-
- 60 -case
of Mr. Chodak. I find that the breach of section 5 made by
the Returning Officer and, in turn, contributed to by the
inadequate instructions given by Elections Canada, taken with the
behaviour of the Deputy Returning Officer or Clerk at the poll, is
so unacceptable that an order to provide a written apology to Mr.
Chodak is appropriate.
I make the following declarations:
- that the Respondent Returning Officer for Winnipeg/Fort Garry
and the Respondent Elections Canada committed a breach of
section 5 of the Human Rights Act with respect to the
Complainants John Lane, Lucy Deluca, Karen Bauhs and Jim
Derksen. (Complaint Nos. P04272, P04568, P04571 and P04570).
- that the Respondent Returning Officer for Brandon/Souris and
the Respondent Elections Canada committed a breach of section
5 of the Human Rights Act with respect to the Complainant
Murray Chodak. (Complaint No. P04573).
- that the Respondent Elections Canada and the Respondent
Returning Officer for Brandon/Souris provide Murray Chodak
with a written apology within thirty days of delivery of this
award, and I so order.
>-
- - 61 -
that the right to equal treatment of physically-disabled
voters in Canada includes the right of each person to the
following:(a) to level access to the offices of all Returning Officers
and all advance polls;
(b) to level access to all other polling stations unless
such requirement would preclude the establishment of a
poll in an area.
(c) to be notified at least 26 days before election day in
the event that a polling station in any area is not to
be provided with level access;
(d) to be informed by the Returning Officer for the
constituency, on request, the reason why any polling
station which does not have level access, does not.
(e) to signs indicating where level access to a Polling
Station is located, appropriate parking and signs
indicating the location of parking for the disabled
voter.
Counsel for the parties have canvassed what procedures
might be appropriate and practicable in order to identify for
>-
- 62 -disabled
voters in advance of a polling day the polls which do not
have level access in order to satisfy requirement (c). The
possibilities which were canvassed were newspaper identification
of polls which are accessible, newspaper identification of polls
which are inaccessible, identification of polls which are
inaccessible on the enumeration slips issued for such polling
areas or identification of such polls on the "Notice of
Enumeration" card which follows enumeration and is mailed to every
enumerated elector 26 days before election day. Counsel for the
Respondents submits that the latter procedure is the most
practical option of those proposed. The evidence which has been
adduced and the submissions made satisfy me that it is possible to
effectively communicate to all voters in any area in which a poll
does not have level access, facts of the absence of such level
access at least 26 days before election day, leaving persons
adversely affected an opportunity to make alternate arrangements.
I leave it to the Chief Electoral Officer to decide how to
communicate the information to the persons who are affected.
In view of the steps which Elections Canada has taken
since 1984 to improve accessibility of polling stations, I do not
think it is necessary to make an Order spelling out exactly how
the elections must be conducted. That is more the function of
Parliament and of Elections Canada and further, with changes in
technology, the procedures for complying with the statutory
>-
- 63 -requirements
will undoubtedly change. This case was argued in
terms of level access and ramps. In time, it may be feasible toinstall elevators, escalators or other lifting devices which may
provide a better solution than ramps.
For reasons set out at pages 54 and 55 of this Decision,
I dismiss Complaint Nos. P04574 (Keith Russell), P04567 (Don
Ament), P04569 (Marianne Bossen).
For reasons set out at pages 24 and 25 of this Decision,
I dismiss the general complaint (PO4310).
I wish to express my appreciation to counsel for all
parties for the helpful, thorough and carefully considered
submissions which have been made. They have made my task
considerably easier.
December 18, 1991
THE CANADIAN HUMAN RIGHTS ACT
(S.C. 1976-77, C. 33 as amended)
HUMAN RIGHTS TRIBUNAL
>-
- 64 -SCHEDULE A
BEFORE:
PERRY W. SCHULMAN, Q.C.
BETWEEN:
CANADIAN PARAPLEGIC ASSOCIATION
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ELECTIONS CANADA - THE OFFICE OF
THE CHIEF ELECTORAL OFFICER OF CANADA
RETURNING OFFICER - WINNIPEG-NORTH CENTRE
RETURNING OFFICER - WINNIPEG-ST. JAMES
RETURNING OFFICER - WINNIPEG-FORT GARRY
RETURNING OFFICER - BRANDON-SOURIS,
Respondents
- and -
PEOPLE IN EQUAL PARTICIPATION INC.Interested Party
On October 23 and October 24, 1990 a hearing took place in the
above matter before me in Winnipeg. During the course of the
hearing, witnesses were called by counsel for the Canadian Human
Rights Commission and by counsel for the Respondents. At the
conclusion of the evidence, counsel for the parties asked me to
receive written submissions. Counsel for the Commission asked
that he be given until December lst to file the first submission.
Subsequently he asked that he be given until December 21st, and
after that, he asked that he be given until January 25, 1991. On
February 4th, counsel for the Commission advised the Tribunal
officer that the parties have agreed that submissions need not be
filed until an issue has been resolved which has been raised by
counsel for the Respondents.
>-
- 65 -On
February 13, 1991 counsel for the Respondents wrote
to the Tribunal Officer requesting leave to re-open the
Respondents' case "for the purposes of putting into evidence
certain documents which have come into existence subsequent to the
hearing." By letter dated February 26th counsel for the Comission
objected to such leave being granted. On March 6, 1991, counsel
for People in Equal Participation Inc. (P.E.P.), (who is not the
same counsel who appeared for P.E.P. at the hearing) advised that
his client does not oppose the Respondents' Motion.
In order to hear the Motion the parties expressed a
preference to argue the Motion by telephone conference call.
Several attempts were made to convene a call Involving all counsel
and the adjudicator. Because of difficulties In scheduling, I
received the submission of counsel. for the Respondents and for
P.E.P. by telephone and I subsequently received written
submissions from counsel for each of the parties. The last of
these submissions was received from counsel for the Comission on
May 3, 1991.
The Complaints
In issue here relate to access by handicapped persons to polling stations.
Counsel for the Respondents seeks leave to re-open the case "for the purposes
only of admitting into evidence the following documents,:
1. The study "Unequal Access: An Accessibility Survey of
Selected Federal Officers", published by the Canadian Human
Rights Commission and released in December, 1990.
2. Executive Summry of the above survey.
>-
- 66 -3
Winnipeg Free Press article "Human Rights Office
Inaccessible", December 24, 1990.
4. Winnipeg Free Press letter to the editor Office accessDavid Hosking, Regional Director, CHRC
, January 239 1991."
Counsel for the Respondents referred to Sopinka and Lederman, "The
Law of Evidence in Civil Cases" st page 541, where the author
states:
"There &re three stages after the evidence has been completed
during which an application to adduce fresh evidence can be
made:
(1) After the evidence has been completed but before reasons
for judgment have been delivered;
(2) After reasons for judgment have been delivered but
before Judgment has been entered;
(3) After judgment has been entered.
With respect to stages (1) and (2) there is no difference. In
the test to be applied. The trial judge has a wide
discretion to permit further evidence to be adduced, either
for his own satisfaction or where the interest of justice
requires it."
Counsel for the Respondent continued:
"The test is most stringent after judment has been
entered. Using either test, however, the evidence
which is the subject of this application could not
have been obtained with reasonable diligence for use
at trial, will probably have an important influence
on the result of the cast In one material respect and
presumably is to be believed in light of the author.
He urges that the proffered evidence is relevant to the issue
which arises from Section 14(g) of the Canadian_Human Rights Act
(now Section 15(g) of the 1985 Statute) Which creates a defence of
"bona fide justification for that denial or differentiation.' He
urged,
"In the instant case, our submission as to bona fide
justification will ultimately be that level access facilities
were not available in the constituencies involved . . . and
that converting existing facilities was not feasible at the
time. . . .
>-
- 67 -The
argument will ultimately cow down to what was reasonable
in the circumstances. . . .what was reasonable is not an
arbitrary standard sat by the Tribunal, but must be one
established by the evidence."
He suggests that "the study showing the standard of performance by
federal bodies in the Winnipeg area (and elsewhere) would be
useful evidence In establishing that standard."
Counsel for P.E.P. consents to the cess being re-openedfor the purpose of receiving the evidence which has been proposed.
Counsel for the Comission objects to the admission of
the proposed evidence on the ground that such evidence is not
relevant and bears no relation to th* Complaint. He said,
"Moreover, I still fail to see how the Respondent could claim
that the study in question is relevant to its Cass since it
was not available at the time the Respondent canvassed for
buildings.'
I have reviewed the authorities which are referred to by
Sopinka and Lederman and subsequent casts in which they have been
considered. It seems to me that before a Court will normally give
leave to re-open a case and adduce further evidences the evidence
must not only be relevant to an issue in the case but also of
considerable importance to the determination of an issue in the
case. Sopinka and Lederman point outs, however, at page 543 that
Courts do not apply with full vigour the tests relating to
granting leave to adduce fresh evidence in "sunmary statutory
>-
- 68 -proceedings
such est for instance, affiliation proceedings in
which there is an element of public interest." There is an element
of public interest involved in this case. The Federal Court of
Appeal in Reasons for Judgment delivered February 20, 1990 has
pointed out the importance of the issue in this case. "the right
of all Canadians to exercise their democratic franchise."
Based on the submissions which I have received. I
would say that the documents numbered one and two of the evidence
which it is proposed to adduce are of marginal relevance to the
issue in the case, but because of the importance of the issue to
the public generally, I would relax the standard otherwise
applicable and resolve any doubts on the point in favour of the
Respondants. Documents 3 and 4 do not appear to be relevant and I
reject them. I therefore grant leave to the Respondents to tender
in evidence as Exhibits R16 and R17 documents 1 and 2 referred to
in the application for leave.
There are two items of business left to be determined.
Counsel for the Commission and counsel for P.E.P. must make a
decision as to whether or not to adduce evidence In response to
the above-mentioned documents. In the event that they choose not
to call any evidence, I wish to set a final date for filing of
written submission by counsel for the Commission and date for
filing of replies. I have a concern about the time which has
elapsed since the conclusion of the hearing. I give counsel for
the
>-
- 69 -Comission
seven (7) days in which to respond to these Points. In
the some time frame I expect counsel for P.E.P. to advise whether
or not he wishes to Call any evidence. If for any reason I do notreceive a response within seven (7) days it would be my intention
to establish time limits without further notice.
DATED this 15th day of May, A.D. 1991.
>-
- 70 -SCHEDULE B
THE CANADIAN HUMAN RIGHTS ACT
(S.C. 1976-77, C. 33 as amended)
HUMAN RIGHTS TRIBUNAL
BEFORE:
PERRY W. SCHULMAN, Q.C.
BETWEEN:
CANADIAN PARAPLEGIC ASSOCIATION,
Complainant
- and -
ELECTIONS CANADA - THE OFFICE OF
THE CHIEF ELECTORAL OFFICER OF CANADA
RETURNING OFFICER - WINNIPEG-NORTH CENTRE
RETURNING OFFICER - WINNIPEG-ST. JAMES
RETURNING OFFICER - WINNIPEG-FORT GARRY
RETURNING OFFICER - BRANDON-SOURIS,
Respondents
This matter is set for hearing before me October 23,
1990 to October 26, 1990. THERESA DUCHARME has applied on behalf
of the People in Equal Participation Inc. for standing at the
hearing. The correspondence which has been received from the
Applicant has been forwarded to each of the parties for their
comment. Counsel for the Respondents has indicated that he has no
objection to the Application being granted. The Executive
Director of the Canadian Paraplegic Association takes strong
exception to the application being granted. Counsel for the Human
Rights Commission stated that he has no submission to make on the
application.
>-
- 71 -The
application is made under section 50 of the Canadian
Human Rights Act. The statute empowers me in my discretion to
give notice to any other interested party
in addition to the
Complainant and the person against whom the complaint is made and
directs me to give to all parties to whom the notice has been
given le a full and ample opportunity, in person or through
counsel, to appear before the Tribunal, present evidence and make
representations to it." I am unaware of any other case in whichsuch an application has been considered by a Tribunal except in a
situation where it has been sought to add a party for the purpose
of trying to make him liable to an order of the Tribunal or to
give the employee whose employer is a Respondent, an opportunity
to defend the allegation as it relates to his conduct.
The Applicant seeks full standing in order to appear by
counsel, call evidence, cross-examine witnesses and make
submissions. It appears that the applicant has a membership of
150 persons, a number of whom are disabled and others of whom are
not disabled. It appears that the objective of the applicant is
to "integrate and educate all persons in the acceptance of
multicultural and multi-religious integration." We were informed
that the main purpose of the applicant in participating in the
proceedings is to oppose the complaint and to "protect and promote
the right of all citizens regardless of disability whether
>-
- 72 -illiterate,
blind, mentally handicapped, quadriplegic, hearing
impaired, housebound or elderly, to vote on the day of the
election."
In considering whether or not to grant the application I
have taken into account the considerations stated by the Ontario
Divisional Court in the case of Re Royal Commission on the
Northern Environment, (1983) 144 D.L.R. 3rd 416, at 418-419. This
judgment was recently applied by the Commissioners of the Inquiry
in the Public Inquiry into the Administration of Justice and
Aboriginal People while granting standing in the Helen Betty
Osborne case to the Indigenous Women's Collective of Manitoba,
Inc. and jointly to the Norway House Indian Band, the Swampy Cree
Tribal Council and Mrs. Justine Osborne.
I find that the Applicant has sufficient interest in the
subject matter of the complaint to be accorded standing in the
circumstances in this case and I so order. I wish to draw the
attention of the Applicant, however, to the specific wording of
the complaints and indicate that inquiry will be limited to the
matters recited in the complaints.