[76] I have given careful consideration to the parties' submissions on this subject. I am
also in the unique position of having been the monitor in the Lepofsky cases since 2005. I
have come to the conclusion that an external monitor is not necessary in the case before
me. This case is not Lepofsky or McKinnon. In particular, I note the positive steps taken
by EC during the hearing, including its admission of liability; its consent to many of the
remedies proposed, in whole or in part; EC's agreement to the post-hearing involvement
of the Commission and consultation with CCD or other disability groups and the
Complainant; and the co-operation among all the parties during the hearing. If future
events show me that I was incorrect, I reserve the right to appoint a third party monitor.
[77] Instead of appointing a third party as the monitor, I accept the offer of the
Commission that it will monitor the implementation of my Order. This exercise should be
a collaborative one. EC will consult with the other parties (i.e., the Commission, the
Complainant and CCD) about various aspects of my Order, including the implementation
of them. EC will pay the reasonable expenses of CCD and the Complainant to participate
in the implementation phase, but not legal fees in this proceeding: see Mowat, supra,
footnote 7.
[78] If there is disagreement between EC and any of the parties during the
implementation phase, that party may bring a motion before me. Of course, collaboration
and co-operation are essential for the implementation process to work. I expect that a
party would request the assistance of a Commission or Tribunal mediator before bringing
a motion.
Greater Consultation with Voters with Disabilities
[79] I believe that greater consultation by EC with voters with disabilities and disability
groups, such as CCD, will prevent similar discriminatory practices from occurring in the
future. Such individuals and groups could greatly assist EC in almost all of the remedial
areas that my Order touches upon: e.g., choice of polling locations and stations, standards
of accessibility, signage, training manuals and programs. The foregoing is distinct from,
and does not conflict with, the finding of the Federal Court that the duty to accommodate
does not include a legal duty to consult.18
[80] Mr. Roussel testified about the various groups that are consulted by EC about
location of polling stations, such as Members of Parliament, aboriginal elders, student
leaders, etc. Why not also consult persons with disabilities and disability groups? Mr.
Roussel was quite open to various suggestions about greater involvement of, and
consultation with, persons with disabilities and their group organizations by EC. He also
testified about the numerous surveys, studies and "post-mortems" initiated by EC
following each general election. For example, EC conducts a "Survey to Aboriginal
Elders and Youth". Why not also embark upon a "Survey to Persons With Disabilities
and Disability Groups"? EC shall consider the above and discuss same with the other
parties, and in particular, with CCD, and formulate a consultation plan within six months.
2010 CHRT 4 (CanLII)
CCD to be involved in various aspects of the Order, as well as the Complainant himself.
EC argues that a monitor is not necessary and that the Commission could take on a
monitor-like role, and EC and the Commission would report back to the Tribunal.