XIV. ANALYSIS
Subsections 5(a) and 5(b) of the CHRA
[52] The Complainant and CCD argue that both subsections of section 5 have been
violated here. EC says the case is one of subsection 5(b) and that the Tribunal need not
address subsection 5(a). I find that both subsections have been infringed in the instant
case.
[53] First, I am satisfied that EC provides a "service" and "facility" "customarily
available to the general public" under the section. It is not just the provision of physical
space in which to vote. EC provides a public service - a paramount one - of providing the
means by which the public may exercise its democratic franchise. The service includes
providing public information, barrier-free voting locations and polling stations, polite
interaction of its officials with the voters, and the facilitation of accessible voting for all,
including voters with disabilities.
[54] The foregoing applies the reasoning of the Federal Court of Appeal in Watkin v.
Canada (Attorney General),14 which is the recent case on "services" under section 5 of
the CHRA. That case involved a complaint against Health Canada alleging discrimination
in the regulation of herbal products based on ethnic origin. The Court held that the
enforcement actions of Health Canada did not constitute a "service" as per section 5. The
Court stated that not all governmental actions are "services" under the CHRA. At para.
28, the Court wrote: "Public authorities can and do engage in the provision of services in
fulfilling their statutory functions." It then listed several examples of services provided by
government departments and agencies. The running of elections by EC could fit easily
into that list. At para. 31, the Court further stated: "I agree that because government
actions are generally taken for the benefit of the public, the "customarily available to the
general public" requirement in section 5 will usually be present in cases involving
discrimination arising from government actions..."
[55] Various findings of liability fall, in the case before me, under either or both of the
subsections here. The fact that Mr. Hughes was able to vote does not insulate EC from
subsection 5(a): "to deny, or to deny access to,..."; e.g., his having to go down the stairs
by "the seat of [his] pants", and be assisted into and out of the premises.
Liability of EC
[56] As indicated earlier, EC admitted at the outset of the hearing its liability under
subsection 5(b) of the CHRA only. The Complainant and CCD argue that EC is liable
under subsection 5(a) too. EC says its liability is based on the combined effect of various
facts:
2010 CHRT 4 (CanLII)
[51] Remedial orders also may include the involvement of the human rights commission
or other parties in terms of consultation, or the appointment of a monitor for the
implementation of the orders.13 Such involvement of other actors recognizes that the
courts and tribunals have an adjudicative role and formal process that do not translate
well into the technical or task-specific aspects of the implementation of orders often
affecting the day-to-day operations of a governmental or corporate respondent.