Federal Court of Appeal Reaffirms That Inaccessible Federal Government Websites Violate the Constitutional Rights of Blind Canadians
PROOF WEBSITE ACESSIBILITY TIMELINES IN AODA ACCESSIBILITY STANDARDS ARE TOO LONG
June 1, 2012
On May 30, 2012, the Federal Court of Appeal released a landmark ruling under the equality rights provision of the Canadian Charter of Rights and Freedoms, section 15. It has important and positive implications for our campaign for accessibility for persons with disabilities in Ontario.
In this Update we summarize the court decision, describe its key implications for our campaign for a fully-accessible Ontario, give you a key excerpt from the ruling and set out the key provision of Ontario’s Integrated Accessibility Regulation, enacted under the Accessibility for Ontarians with Disabilities Act, that addresses website accessibility requirements.
You can download the Federal Court of Appeal’s decision in the Jodhan case by visiting http://www.aodaalliance.org/docs/jodhan-court-of-appeal-reasons.doc
1. THE JODHAN DECISION
Years ago, blind Torontonian Donna Jodhan sued the Federal Government because of a series of problems she encountered when trying to access a number of Federal Government websites. By her legal action, she sought to force the Federal Government to make their websites accessible to persons with disabilities.
Jodhan won a major victory back on November 29, 2010. That was when the Federal Court Trial Division ruled that inaccessible federal government websites violated the right to equality which section 15 of the Canadian Charter of Rights and Freedoms guarantees to all persons with disabilities in Canada. For a summary of the Federal Court Trial Division’s 2010 Jodhan ruling on website accessibility and a discussion of its implications for our campaign for accessibility in Ontario, visit http://www.aodaalliance.org/strong-effective-aoda/12022010.asp
The Government of Canada then took the controversial step of appealing that ruling. It used the public’s money to again fight against website accessibility. It asked the Federal Court of Appeal to overturn the trial court’s finding that those Federal Government websites violated the equality rights of blind Canadians.
In its ruling released on May 30, 2012, set out below, the Federal Court of Appeal in substance rejected the Government’s appeal. It reaffirmed that the inaccessible Federal Government websites violated Donna Jodhan’s constitutional equality rights. It reaffirmed the Federal Court Trial Division’s order requiring the Federal Government to bring its websites into compliance with the accessibility requirements of the Charter of Rights within a reasonable time period, such as 15 months.
The Federal Government succeeded on some more narrow procedural and technical issues. It convinced the appeal court to overturn the trial judge’s order that would have had the trial court play an ongoing role supervising the Federal Government’s efforts at making its websites accessible. However, those modifications to the trial court’s original ruling do not take away from the core victory for persons with disabilities.
We don’t know if the Federal Government will now try to appeal the case to the Supreme Court of Canada. For the Government to do so in the face of such powerful rulings from the Federal Court Trial Division and the Federal Court of Appeal would be an unwise use of public money.
2. IMPLICATIONS FOR OUR CAMPAIGN FOR ACCESSIBILITY IN ONTARIO
We extend huge congratulations to Donna Jodhan for bringing this case forward, and for shouldering all the challenges that go with it. This case has important implications for our ongoing campaign for accessibility in Ontario.
First, the court’s ruling that the Charter’s guarantee of equality to persons with disabilities requires that the Federal Government ensure that its websites are accessible to persons with disabilities like Donna Jodhan, fully and equally applies to all organizations that must obey the Charter of Rights. This includes, for example, all provincial and municipal governments as well as all school boards across Canada, and all agencies of those governments.
Second, the equality rights of persons with disabilities that are set out in human rights codes, like the Ontario Human Rights Code would, by analogy to the Jodhan case, include the same requirements to provide accessible websites. That extends not only to public sector organizations, but private sector organizations as well.
Third, the Jodhan decision shows that the Ontario Government, as well as public and private sector organizations in Ontario, must now move more quickly than the accessibility standards enacted under the AODA require, to ensure that their websites and web content are accessible to persons with disabilities. The appeal ruling reaffirms the trial court’s order that in effect gave the Federal Government 15 months to retrofit its websites to make them accessible. The Federal Government is, of course, a very large organization. It therefore has a great deal of web content to manage on an ongoing basis. If it can do this in 15 months, so can many other organizations.
The Integrated Accessibility Regulation which the McGuinty Government, enacted in June 2011, includes helpful provisions on website and web content accessibility. We set out the key provision of that regulation at the end of this Update.
However, the Integrated Accessibility Regulation gave the Ontario Government, as well as other public and private sector organizations, longer time lines to achieve website accessibility than did the Jodhan decision. While the Integrated Accessibility Regulation imposes some requirements on the Ontario Government and Legislature that are now in effect, it gives the Ontario Government and Legislature fully four more years, until 2016, to meet other important accessibility requirements. It gives other public sector organizations such as municipalities, and large private sector organizations, until 2014 to start posting new web content in an accessible form, and an excessive nine more years, until 2021, to meet other important accessibility requirements. It remains our position that those time lines are far too long.
Public and private sector organizations cannot assume that if they comply with the Integrated Accessibility Regulation’s excessively long website accessibility timelines, they are fulfilling all their website accessibility obligations to persons with disabilities. The Charter of Rights and the Human Rights Code take precedence over the AODA where they impose stronger accessibility requirements or shorter time lines than does a standard enacted under the AODA. The Jodhan decision requires far more prompt action for the Federal Government to retrofit its websites.
As such, we encourage all public and private sector organizations in Ontario to now move to make their websites as accessible as possible, and as soon as they can, unless taking more time is necessary to avoid undue hardship to that organization.
Fourth, the Jodhan ruling holds that the Federal Government cannot escape its duty to provide accessible websites by claiming that persons with disabilities can get the same Government information through other sources, like going to a government office. This is very important for our advocacy efforts in Ontario. It lays to rest unfair and unjustified attempts to claim that an organization need not remove accessibility barriers if persons with disabilities can get the same information, albeit through avenues that are harder or more burdensome to use.
The Ontario Government confronted us with a comparable unfair claim in 2010. It had sponsored the creation of a new “Presto Smart Card” for Ontarians to use to pay transit fares on a range of different public transit services in Ontario. If a public transit passenger wanted to find out how much money he or she still had on their Presto Smart Card while in a public transit station, they could slip the card into a handy card reader available to the public in those public transit stations. These Presto Smart Card readers were custom-designed under the direction of the Ontario Government. They were funded by the Ontario Government. They were also inaccessible to public transit passengers who cannot read the card balance information displayed on the screen, such as people with vision loss or dyslexia. The Government was forewarned that it needed to include other measures in these card readers, such as an audio output to read a Presto Smart Card balance, to meet the needs of persons with disabilities. The Government had ignored that advice and barreled ahead, using the public’s money to create new barriers against persons with disabilities.
In 2010, when we confronted the Government with the fact that it was creating new barriers in these electronic kiosks with public money, one of their excuses was that public transit passengers who cannot read the screen can find out their card balance through other avenues. For example, they can find a phone and call into the Presto system, and check their card balance that way. They can find a computer and check their card balance on line. They can line up and ask a sale person to check their card balance. We argued that that is not equality.
The Jodhan ruling shows that we were right, and the Ontario Government was simply wrong. Others at a transit station don’t have to line up to talk to a sales person, or phone in, or find a computer to get their Presto Smart Card balance.
To learn more about our making public the troubling barriers in the Presto Smart Card technology, visit http://www.aodaalliance.org/strong-effective-aoda/08122010.asp
On this issue, the Jodhan appeal ruling includes these three key passages:
a) “ The Attorney General argues that the benefit at issue is not, contrary to the judge’s finding, online access to government information and services but effective access to government information and services. In other words, the Attorney General says that Ms. Jodhan is not entitled to government information and services by her preferred channel of delivery. At paragraphs 62 and 63 of his Memorandum of Fact and Law, the Attorney General clearly sets out his position: … If one channel is not available or accessible, an individual’s s. 15 right to substantive equality can be met by the government institution providing the information or service by means of an alternate channel or format, provided it is effective. In this way, reasonable accommodation of the diverse needs of Canadians, including persons with disabilities, is built into the benefit. Alternate channels or formats, provided they allow for effective communications, reasonably accommodate the needs of persons with visual impairments, and constitute substantively equal treatment within the meaning of s. 15….”
b) “ The Attorney General says that effective access to government information and services, not online access, is the true benefit of the law. I have no difficulty going along with this proposition and thus I am prepared to agree with the Attorney General that the benefit of law is not, per se, online access to government information and services. However, I have great difficulty understanding how the benefit of access to government information and services can be truly enjoyed or exercised, in the present day, without access to that information by way of the Internet. In other words, depriving a person of access to government information and services by the use of one of the most important, if not the most important, tool ever designed for accessing not only government information and services, but all types of information and services, cannot constitute, in my respectful opinion, the provision of effective access to that information and those services.
 The thrust of the Attorney General’s submission is that effective access to government information and services is attained when the information is accessed by a person irrespective of the means used to obtain the information. I understand the Attorney General to be saying that as long as the sought-after information and services are obtained, irrespective of the time lag and inconvenience encountered, there has been effective access and thus the same benefit has been received. In other words, if one person can access information online within a matter of minutes and another person can access the same information by traveling to a government office, waiting for his or her turn and then meeting with a government employee to obtain the same information, there has been effective access in both cases and thus both persons have received the same benefit of the law. I cannot agree with the Attorney General’s position. In my view, one of the above two persons has not received the same benefit. They have not been treated equally.
 I am therefore of the view that the benefit of the law is access to government information and services. However, access thereto necessarily includes the benefit of online access, which is not just an ancillary component of the multi channel delivery mechanism, but an integral part thereof. In other words, one cannot speak of access to government information and services without including access thereto by way of the Internet.”
c)  This leads the Attorney General to assert that Ms. Jodhan’s alleged inability to access particular information and services online does not “operate to perpetuate prejudice or stereotyping against the claimant”, adding that satisfying Ms. Jodhan’s needs for government information and services by channels or formats other than the Internet corresponds to her needs, capacity and circumstances, and that alternate channels or formats “that communicate effectively the information and services sought do not constitute discriminatory treatment” (Attorney General’s Memorandum of Fact and Law, paragraph 72).
 For the reasons that follow, I cannot agree with the Attorney General.
 On the record before him, the judge found that there had been a breach of subsection 15(1) by reason of inadequate web accessibility standards, as concerns the accessibility of rich Internet applications using e-Pass as a secure channel, and by the failure of the Treasury Board to ensure implementation of its accessibility standards across the various departments. Hence, in the judge’s view, Ms. Jodhan and the visually impaired were systematically denied the benefit of access to government information and services online.
 The Attorney General’s position before us is that the judge erred in his characterization of the benefit. In the Attorney General’s submission, that benefit is effective access to government information and services. Consequently, the Attorney General says that the provision of its services and information by way of alternative channels and formats, i.e. by mail, telephone and in-person visits to government centres (the “alternative channels”) and Braille (“alternative format”) is sufficient to meet the substantive equality test of subsection 15(1). Thus, if I properly understand the Attorney General’s case, even if the government failed to provide the visually impaired with any access to its websites, this would not constitute a violation of subsection 15(1), as effective access would have been made available through other means of communication.
 In my view, that cannot be right. In Eldridge, at paragraph 73, the Supreme Court held that every benefit offered by the government had to be offered in a non-discriminatory manner and that in achieving that goal, the government might be required to take to take positive action.
Substantially for the reasons given by the judge, I must conclude that the consequence of the Treasury Board’s failure to issue adequate standards and to ensure departmental compliance with its accessibility standards is that Ms. Jodhan and the visually impaired are denied equal access to the benefit of government information and services. An easy remedy to that situation is for the Treasury Board to correct the inadequacy of its standards and to use its best efforts to ensure that the standards are implemented by the various departments under its supervision.
 As I indicated earlier, I have difficulty with the proposition that equal access to government information and services can be attained without access to online information and services. In the present matter, no evidence has been offered by the Attorney General to the effect that there is any impediment to moving forward and enabling the visually impaired to readily access government information and services online. Consequently, I also have difficulty with the proposition that alternative formats and channels meet the goal of substantive equal treatment. Where not possible for technological, cost, or other reasons, I readily accept that the visually impaired would have to access government information and services through alternative formats or channels. Thus, to the extent possible, the benefit of law offered to the public must be as inclusive as possible. As stated by the Supreme Court in VIA Rail, at paragraph 175:
“It is the rail service itself that is to be accessible, not alternative transportation services such as taxis. Persons with disabilities are entitled to ride with other passengers, not consigned to separate facilities.”
 Thus, applying that approach to the present matter, Ms. Jodhan and the visually impaired are entitled to full access to government information and services which clearly includes online access. It should be remembered that one of the goals of the government’s Communications Policy is to allow Canadians to access its information and services at a time and place of their choosing. If the visually impaired are relegated to alternative channels and formats, they certainly will not be choosing the time and place in which to access the government’s information and services.
 At paragraph 157 of his Reasons, the judge opines that the examples provided by Ms. Jodhan combined with the evidence of systemic problems with the CLF Standard show that the visually impaired do not have access to government information and services equally with sighted persons, adding that the visually impaired encounter difficulty “in being otherwise accommodated with the same information”. In that respect, the judge pointed out that in three cases, Ms. Jodhan had not been accommodated with written material in Braille. Thus, in the judge’s opinion, the distinction created a disadvantage for the visually impaired. Further, the effect of inaccessibility of the government’s online information and services forces the visually impaired to, inter alia, rely on sighted assistance in order to access the information and services. In VIA Rail, Abella J., writing for the majority, made the following point at paragraph 162:
“… Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.”
 Invoking the words of Abella J. in VIA Rail, Ms. Jodhan says that forcing her to rely on sighted assistance is demeaning and propagates the point of view that she and the visually impaired are less capable and less worthy that those who can see, adding that not only did this constitute an invasion, but that it required her and those like her “to go to time and trouble not required of sighted persons” (Respondent’s Memorandum of Fact and Law, paragraph 99). On the basis of the Supreme Court’s rationale in VIA Rail, it is very difficult to disagree with Ms. Jodhan’s assertion, since subsection 15(1) of the Charter provides that she has the right to equal benefit of the law. Thus, she is entitled to access the government information and services as effectively as those who have no visual impairment.
 The government’s failure to ensure that Ms. Jodhan and the visually impaired be given the same access to its information and services as those given to the non visually impaired perpetuates, in Ms. Jodhan’s words, “the pre-existing disadvantage of people with disabilities by exacerbating their historic exclusion and marginalization from Canadian society” (Respondent’s Memorandum of Fact and Law, para.103). In making this assertion, Ms. Jodhan refers to Withler at paragraph 38, where the Supreme Court indicated that establishing a claimant’s historical position of disadvantage or demonstrating existing prejudices against the claimant’s group, as well as the nature of the interests that are affected, were relevant considerations.”
3. KEY PROVISION OF ONTARIO’S INTEGRATED ACCESSIBILITY REGULATION ENACTED ON JUNE 3, 2011
Accessible websites and web content
14. (1) The Government of Ontario and the Legislative Assembly shall make their internet and intranet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, at Level AA, and shall do so in accordance with the schedule set out in this section.
(2) Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA, and shall do so in accordance with the schedule set out in this section.
(3) The Government of Ontario and the Legislative Assembly, for both their internet and intranet sites, shall meet the requirements in this section in accordance with the following schedule:
1. By January 1, 2012, new internet and intranet websites and web content on those sites must conform with WCAG 2.0 Level AA, other than,
i. success criteria 1.2.4 Captions (Live), and
ii. success criteria 1.2.5 Audio Descriptions (Pre-recorded).
2. By January 1, 2016, all internet websites and web content must conform with WCAG 2.0 Level AA, other than,
i. success criteria 1.2.4 Captions (Live), and
ii. success criteria 1.2.5 Audio Descriptions (Pre-recorded).
3. By January 1, 2020, all internet and intranet websites and web content must conform with WCAG 2.0 Level AA.
(4) Designated public sector organizations and large organizations for their internet websites shall meet the requirements of this section in accordance with the following schedule:
1. By January 1, 2014, new internet websites and web content on those sites must conform with WCAG 2.0 Level A.
2. By January 1, 2021, all internet websites and web content must conform with WCAG 2.0 Level AA, other than,
i. success criteria 1.2.4 Captions (Live), and
ii. success criteria 1.2.5 Audio Descriptions (Pre-recorded).
(5) Except where meeting the requirement is not practicable, this section applies,
(a) to websites and web content, including web-based applications, that an organization controls directly or through a contractual relationship that allows for modification of the product; and
(b) to web content published on a website after January 1, 2012.
(6) In determining whether meeting the requirements of this section is not practicable, organizations referenced in subsections (1) and (2) may consider, among other things,
(a) the availability of commercial software or tools or both; and
(b) significant impact on an implementation timeline that is planned or initiated before January 1, 2012.
(7) In this section,
“extranet website” means a controlled extension of the intranet, or internal network of an organization to outside users over the Internet; (“site Web extranet”)
“internet website” means a collection of related web pages, images, videos or other digital assets that are addressed relative to a common Uniform Resource Identifier (URI) and is accessible to the public; (“site Web Internet”)
“intranet website” means an organization’s internal website that is used to privately and securely share any part of the organization’s information or operational systems within the organization and includes extranet websites; (“site Web intranet”)
“new internet website” means either a website with a new domain name or a website with an existing domain name undergoing a significant refresh; (“nouveau site Web Internet”)
“new intranet website” means either an intranet website with a new domain name or an intranet website with an existing domain name undergoing a significant refresh; (“nouveau site Web intranet”)
“Web Content Accessibility Guidelines” means the World Wide Web Consortium Recommendation, dated December 2008, entitled “Web Content Accessibility Guidelines (WCAG) 2.0”; (“Règles pour l’accessibilité des contenus Web’’)
“web page” means a non-embedded resource obtained from a single Uniform Resource Identifier (URI) using Hypertext Transfer Protocol (HTTP) and any other resources that are used in the rendering or intended to be rendered together with it by a user agent. (“page Web”)
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UNITED FOR A BARRIER-FREE ONTARIO