[68] The findings I have made clearly indicate a systemic problem. The following
exchange took place in final argument between EC's counsel and me:
TRIBUNAL: But that is part of the system too. The system is made up of people.
COUNSEL: That's true...We saw this basically as a case of human error.
In EC's case, the "system" is a large "pyramid" from the top (the CEO and management
in Ottawa) down to the 200,000 election day officials. There is no divisibility to EC: the
governmental entity is responsible for the actions of all of its officers and employees,
full-time or part-time, permanent or temporary, acting in the course of their
employment.16 EC's statement that it will no longer use St. Basil's Church as a polling
location does not sufficiently redress the discriminatory practice before me or prevent its
recurrence, as per paragraph 53(2)(a) of the CHRA.
[69] I am mindful of the importance of courts and tribunals being sensitive to their role as
judicial and quasi-judicial arbiters respectively. In particular, they should not "fashion
remedies which usurp the role of the other branches of governance": Doucet-Boudreau v.
Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, at 6. The Supreme Court of
Canada also points out: "The boundaries of the courts' proper role will vary according to
the right at issue and the context of each case."17 My Order attempts to prevent similar
future discriminatory practices from occurring while respecting the mandate given by the
Parliament of Canada to the Respondent.
[70] I indicated that in fashioning these systemic remedies, I would try to strike a fair
balance - neither "over-kill" nor "under-kill". It is an art, and not a science. EC's counsel
asked me not to "use the remedial salvo in the first round." The Complainant and CCD
said it's more akin to the third round - the CPA case in 1992 with its many striking
similarities to the Hughes' Complaint, and the two occurrences in Mr. Hughes' case. I
agree. However, much progress has been achieved by EC in providing accessible voting
before (e.g., the 1988 general election) and since the 1992 CPA Decision. Nevertheless, it
is disappointing that in the disability rights/accessibility-heightened time in which we
find ourselves living as we enter the second decade of the 21st century, Mr. Hughes
would have had to experience the humiliation and indignities of those two voting events,
within a 7-month time span, followed by the tardy investigation, inaccurate conclusions
and poor handling of his verbal and written complaints. Of particular relevance is that, in
the wake of Mr. Hughes' verbal and written complaints to EC about the by-election
incident, EC failed to improve the accessibility of the polling location in the general
election seven months later. So notwithstanding EC does a lot of good things re:
accessibility, the deficiencies here suggest the need for improvement via a "future
practices" Order.
[71] To ensure the right balance is struck when determining the scope of this Order, one
must ask: what did the discriminatory practice consist of; how serious was it; what was
2010 CHRT 4 (CanLII)
COUNSEL: But this wasn't a case of what went wrong focused on the system. It's one
where what went wrong focused on people not quite doing the right things under the
system.