Malkowski v. Office of the Chief Electoral Officer, 2009 HRTO 550

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Malkowski

Applicant

-and-

The Office of the Chief Electoral Officer

Respondent

DECISION

Adjudicator: Judith Hinchman

Date: May 4, 2009

Citation: 2009 HRTO 550

Indexed as: Malkowski v. Office of the Chief Electoral Officer

AppearanceS BY

Gary Malkowski, Applicant ) self represented

The Office of the Chief Electoral Officer, ) Hugh A. Christie, Respondent ) Jonathan Batty, ) Counsel

INTRODUCTION

1This is an Application filed September 15, 2008 under section 53(3) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in November 2007 and abandoned upon filing this Application with the Tribunal. This Decision addresses respondent’s preliminary motion to dismiss the Application.

NATURE OF THE DISPUTE

2In March of 2006 and prior to the 2007 provincial general election, the applicant learned of an all candidates meeting to be held at the Matty Eckler Community Centre in the Toronto-Danforth riding (the “Centre”). The applicant, who self identifies as a deaf person, contacted the Centre to ask if sign language interpretation would be provided and was told that it would not. As a result, the applicant filed two Applications alleging discrimination on the grounds of disability in the area of goods and services against the Centre and against the Office of the Chief Electoral Officer (the “CEO”). The CEO is the respondent in this Application.

SUBMISSIONS OF THE PARTIES

3The respondent agrees that the goal of accessibility at all candidates meetings is laudable. The respondent argues, however, that the Application cannot succeed because the CEO does not have the power to regulate all candidates meetings. It does not have authority either to provide sign language interpreting services for an all candidates meeting or to provide funding to organizers of these events so that they may provide sign language interpreting.

4The respondent submits that the CEO is limited to those powers given to it by its enabling statute, the Election Act, R.S.O. 1990, c.E.6 (the “Election Act”) and from the Election Finances Act, R.S.O. 1990, c.E.7. (the “Election Finances Act”). The CEO’s statutory responsibilities and authority are limited to matters relating to the election process, which includes public education concerning only matters related to the voting process itself.

5The applicant argues that the respondent’s responsibilities to conduct public education about the voting process and to ensure accessibility to the polls include the duty to make sure that persons with disabilities are able to exercise a right to be informed about candidates and issues prior to the polling day. The applicant argues that the service that the CEO provides to the public must be interpreted broadly in this way and thus it follows that the CEO must have the power to regulate all candidates meetings.

6In contrast to this view however, the applicant submitted a letter that he wrote to MPP Greg Sorbora after his Application was filed recommending that legislative changes be made providing funding for access and accommodation to, among other things, all candidate meetings. The applicant also submitted The Canadian Hearing Society Position Paper on Access to Democracy and the Electoral System (April 2007) urging that Elections Canada (otherwise known as The Office of the Chief Electoral Officer) should be responsible for accommodations in several activities including campaigning activities.

ANALYSIS

7I conclude that under present legislation the respondent does not have the authority to regulate all candidates meetings.

8The Election Act authorizes the Lieutenant Governor in Council to appoint a Chief Electoral officer “who shall be responsible for the administration of this Act” Election Act, section 4(1). Section 4 of the Election Act describes the powers and duties of the Chief Electoral Officer as follows:

The Chief Electoral Officer shall consult with, advise and supervise the returning officers and election clerks in the performance of their duties, and may visit in person and consult with the deputy returning officer and poll clerk at any polling location.

I have reviewed the Election Act and conclude that it is a scheme for supervising and conducting polling activities.

9The Chief Electoral Officer’s conferred responsibilities include administering the nomination and voting process in general elections and by-elections; recommending alternative polling days to the Lieutenant Governor in Council; maintaining the Permanent Register for Electors for Ontario; distributing voters lists and map products; testing new voting equipment, vote counting equipment and alternative voting methods; and conducting public education on the voting process.

10The respondent submits that the public education and information role is a relatively new legislative measure that is limited to educating the public about how to access the polling process itself. The public education and information role is described in the Election Act ss. 114.1 and 114.2. Section 114.1 states in pertinent part:

(1) The Chief Electoral Officer may implement public education and information programs to make Ontario’s electoral process better known to the public, particularly to those persons and groups most likely to experience difficulties in exercising their democratic rights.

(2) The Chief Electoral Officer may, using any media or other means that he or she considers appropriate, provide the public with information about Ontario’s electoral process, the right to vote and how to be a candidate.

(3) For the purpose of the referendum required by the Electoral System Referendum Act, 2007, the Chief Electoral Officer shall conduct a program of public education, to ensure that electors throughout Ontario receive clear and impartial information about,

(a) the referendum process, the date of the referendum and the referendum question; and

(b) the content of the choices in the referendum.

11Section 114.2 directs the Chief Electoral Officer annually to prepare an information package for new electors and give these to school boards for distribution to students who have reached voting age or will soon do so. These annually prepared packages are to contain information about Ontario’s electoral process, the right to vote, how to have one’s name added to the permanent register of electors, and any other matter that would be useful to electors.

12A plain reading of these sections does not lead me to the conclusion that the CEO’s public education role extends beyond educating the public about how to exercise their right to vote or to register as a candidate in Ontario.

13The Chief Electoral Officer is also conferred responsibilities pursuant to the Election Finances Act, including those of overseeing the registration of political parties, constituency associations, candidates, leadership contestants and third parties; publishing on the internet financial statements of people and entities governed by the Election Finances Act; and reviewing financial statements to ensure compliance. The only other responsibilities conferred upon the Chief Electoral Officer are to oversee and administer referenda (pursuant to the Taxpayer Protection Act, 1999, S.O. 1999, c.7, Sched. A); hear and decide appeals regarding the clarity and neutrality of proposed questions for municipal ballots (pursuant to the Municipal Elections Act, 1996, S.O. 1996, c.32, Sched.); and set the date for voting in those municipalities in which a question is to be posed to electors under the Fluoridation Act, R.S.O. 1990, c.F.22.

14I find that the Chief Electoral Officer does not have any responsibilities, authority or jurisdiction with respect to all candidates meetings. All candidates meetings are not referenced throughout any of the legislation that creates the existence of the Chief Electoral office or that confers its powers. Even the applicant in his letter to MPP Sorbora appears to recognise this conclusion.

15With respect to the all candidates meeting in March of 2006, the events of which form the basis of this Application, there is no nexus between the failure to provide accommodation in the form of sign language interpretation and any action that the respondent should have or could have taken. In order for this motion to succeed it must be “plain and obvious” that the Application is certain to fail. Braithwaite v. Ontario (Chief Coroner), 2005 HRTO 31. It is plain and obvious that this Application is certain to fail.

16The respondent’s Request to dismiss the Application is granted.

ORDER

17For all of these reasons, the Application is dismissed.