BETWEEN:
and
and
ALLIANCE FOR EQUALITY OF BLIND
CANADIANS
Intervener
REASONS FOR
JUDGMENT BY:
NADON J.A.
CONCURRED IN
BY:
SHARLOW J.A.
DAWSON J.A.
Docket: A-478-10
Citation: 2012 FCA 161
CORAM:
NADON J.A.
SHARLOW J.A.
DAWSON J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
DONNA JODHAN
Respondent
and
ALLIANCE FOR EQUALITY OF BLIND
CANADIANS
Intervener
REASONS FOR JUDGMENT
[1] The Attorney General of Canada (the
“appellant” or the “Attorney General”), appeals the Judgment of Kelen J. (the
“judge”) of the Federal Court, 2010 FC 1197 (rendered on November 29, 2010 and
amended on February 9, 2011), which allowed Ms. Jodhan’s (the “respondent” or
“Ms. Jodhan”) application for a declaration under section 18.1 of the Federal
Courts Act, R.S.C. 1985, c. F-7 (“Federal Courts Act”), that she had
been denied equal access to and benefit from government information and services
provided online to the public on the Internet and that this denial constituted
discrimination against her on the basis of her physical disability, i.e.
blindness, and thus, a violation of her rights under subsection 15(1) of the
Canadian Charter of Rights and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), R.S.C., 1985,
Appendix II, No. 44 (the “Charter”).
[2] The judge also declared that Ms. Jodhan’s
inability to access certain departmental websites was representative of a
system-wide failure by many of the 106 government departments and agencies of
the Government of Canada to make their websites accessible to the visually
impaired. In the judge’s view, the government’s failure to monitor and ensure
compliance with its 2001 Accessibility Standards was an infringement of section
15 of the Charter since it discriminated against Ms. Jodhan and other
visually impaired persons.
[3] The judge further declared that the
government was constitutionally obliged to bring itself into compliance with the
Charter within a period of 15 months.
[4] Finally, the judge retained jurisdiction
over the implementation of his declarations, adding that he would resume
proceedings, upon the application of either the Attorney General or Ms. Jodhan,
if necessary, to ensure that the declarations were properly
implemented.
[5] Although the appeal raises a number of
issues, the main one is whether Ms. Jodhan was denied equal benefit of the law
contrary to subsection 15(1) of the Charter.
The Facts
and Context
[6] Ms. Jodhan is legally blind. She runs a
consulting business that analyzes the accessibility of products and services for
persons with special needs and is a “sophisticated computer user”.
[7] She commenced judicial review proceedings
in the Federal Court on June 28, 2007, against the Attorney General as
representative of the Treasury Board of Canada and Treasury Board Secretariat
(jointly referred to hereinafter as “Treasury Board”), the Public Service
Commission of Canada and Statistics Canada. In her application, Ms. Jodhan asked
for the following declarations:
The applicant makes application
for:
1. A declaration that the failure of the
Treasury Board and the Treasury Board Secretariat to develop, maintain, and
enforce standards which ensure that all Government of Canada websites and online
services are accessible for all individuals with visual impairments.
(i) infringes the applicant’s right to equal
protection and equal benefit of the law without discrimination based on physical
disability, and therefore violates section 15 of the Charter,
and
(ii) that such violation is not justified
under section 1 of the Charter.
2. A declaration that Statistics Canada’s
failure to ensure that the 2006 online Census was accessible to those with
visual impairments:
(iii) infringes the applicant’s right to equal
protection and equal benefit of the law without discrimination based on physical
disability, and therefore violates section 15 of the Charter,
and
(iv) that such violation is not justified
under section 1 of the Charter.
3. A declaration that the Public Service
Commission of Canada’s failure to ensure that its website and online application
services are accessible to those with visual impairments:
(v) infringes the applicant’s right to equal
protection and equal benefit of the law without discrimination based on physical
disability, and therefore violates section 15 of the Charter,
and
(vi) that such violation is not justified
under section 1 of the Charter.
[8] Ms. Jodhan alleged unequal protection and
benefit of the law in two ways. First, the online accessibility standards were
inadequate because they failed to deal with “rich Internet applications”, i.e.
dynamic, interactive websites, through which the government provides interactive
services online, which constitute some of the main benefits of online access.
Second, the accessibility standards had not been adequately implemented by the
departments subject to Treasury Board supervision.
[9] In support of her claim that on numerous
occasions she encountered difficulty accessing government websites and that her
experience was shared by other visually impaired persons in Canada, Ms. Jodhan
gave five examples of inaccessibility.
[10] First, in September 2004, Ms. Jodhan
experienced difficulty applying for employment at www.jobs.gc.ca and had to complete the application with
assistance by phone. This was followed by failure to access
information on the site between March and June 2007.
[11] Second, she was unable to create an
online profile at www.jobs.gc.ca because pop-up windows, which blind
users cannot navigate, kept popping up. She had to complete her online profile
on the website with sighted assistance.
[12] Third, she alleged significant
accessibility issues when trying to access information on Statistics Canada and
Service Canada websites between March and June 2007 since the information was
only available in “pdf” format, which is not accessible to screen reader
technology.
[13] Fourth, the 2006 online Census return was
only available to the visually impaired by software such as the JAWS program,
which made it inaccessible to Ms. Jodhan and other visually impaired users who
did not have access to such expensive software. Ms. Jodhan alleged that the form
of the Census did not meet the World Wide Web Consortium (“W3C”) standards for
accessibility.
[14] Fifth, Ms. Jodhan experienced difficulty
accessing www.servicecanada.gc.ca in June 2007 to obtain information on
the Canada Pension Plan and employment programs.
A.
History of the Web and Content Accessibility
Guidelines
[15] The World Wide Web (the “WWW”) was
created in 1989. For approximately ten years, there existed no WWW accessibility
guidelines for persons with disabilities. In 1994, the W3C was created in order
to develop a consensus on industry standards to ensure that the WWW remained
open and accessible to all. In 1997, the W3C launched the Web Accessibility
Initiative (the “WAI”) to promote web accessibility for people with
disabilities.
[16] The WAI, through a process of
consultation with its then 170 member organizations and experts from around the
world, began to develop a first set of Web Content Accessibility Guidelines (the
“WCAG 1.0”). The WCAG 1.0 provides detailed instructions to web content
developers and authoring tools developers with respect to means to make Internet
content accessible to people with disabilities, including the visually impaired.
The version 1.0 of the WCAG was developed over a period of two years and, by May
of 1999, final “W3C Recommendation” status was reached and published. These
instructions are created in the form of guidelines which provide the basic goals
that authors should work towards in order to make web content more accessible to
all users. Each of the fourteen guidelines focuses on a core theme of
accessibility and each guideline is divided in “checkpoint” definitions which
explain how the guideline applies in typical content development scenarios. Each
checkpoint has a priority level assigned by the Working Group based on the
checkpoint's impact on accessibility.
[17] Shortly after the publication of the WCAG
1.0, work on the WCAG 2.0 began and, over the next seven years, extensive work
was undertaken, with the WAI having grown by then to include over 400 member
organizations which included the Government of Canada.
[18] The Government of Canada was actively
involved with the WCAG Working Group to ensure that WCAG 2.0 would be compatible
with its own standards. On December 11, 2008, the WCAG 2.0 reached “W3C
Recommendation” status. WCAG 2.0 builds on WCAG 1.0 and is designed to apply
broadly to different web technologies now and in the future, and to be testable
with a combination of automated testing and human evaluation.
B.
The Communications Policy and Online Activity
[19] In 1999, the government introduced a new
project called “Government On-Line”, intended to provide electronic services to
Canadians as part of a broader strategy aimed at stimulating the provision of
better, faster, trusted and more convenient and accessible government services
through four delivery channels: in person, by telephone, by mail and over the
Internet. Government On-Line was meant to be client-centred, allowing Canadians
to acquire information and services on their terms, and according to their
needs.
[20] There are approximately 106 departments
and agencies (“departments”) of the Government of Canada which provide services
and programs to Canadians. Since the late 1990s, the departments have increased
their presence on the Internet in order to provide more and more information and
services to Canadians.
[21] As part of the government’s online
initiative, the departments provide two types of services online, i.e.
informational and interactive. Informational services include guides on starting
a new business, travel advisories and information on various matters, such as
epidemics. As to interactive services, they include applications for social
services (for example, Employment Insurance and Canada Pension Plan benefits),
online passport applications, and a single website from which Canadians can
access online applications to all federal government job postings. Interactive
services allow Canadians to interact with the government and are made possible
through the use of dynamic, interactive websites, also called rich Internet
applications.
[22] The security of the information provided
by those who use the departments’ interactive services is protected through a
group of services referred to as the “Secure Channel”. One of these services is
“ePass”, which serves to protect the confidentiality of information provided by
users to the departments. In 2008, 23 departments used the ePass technology to
deliver 83 programs, including online applications for government jobs,
passports and social benefits.
[23] The government’s decision, inter
alia, to make its services available online has allowed Canadians to access
government information and services at a time and place of their choosing.
[24] Pursuant to section 7 of the
Financial Administration
Act, R.S.C., 198, c.
F-11, the Treasury Board developed the Communications Policy of
the Government of Canada (the “Communications Policy”) dated April 1, 2002.
[25] The Communications Policy governs all
communications made by the federal public administration, including online
communications. In the Communications Policy, the government recognized that
information must be made available in multiple formats to ensure equal access
and that communications by the federal government had to comply with a number of
statutes and policies, for example, the Charter, the Official
Languages Act, R.S.C., 1985 (4th Supp.), c. 31, and the Privacy Act,
R.S.C., 1985, c. P-21.
[26] The Communications Policy emphasizes the
need for providing information to Canadians through a variety of channels, such
the telephone, mail, print, broadcast media and the Internet.
[27] As part of the government’s initiative,
the Communications Policy makes the departments subject to the Common Look and Feel Standards for the
Internet, Part 2:
Standard on the Accessibility, Interoperability and Usability of Web
Sites (the “CLF 1.0
Standard”), which was issued by Treasury Board in May 2000 with a required
implementation date of 2001. The CLF 1.0 Standard was made mandatory for all
government departments and agencies and was created to enable access by all
Canadians to information on government websites. The CLF 1.0 Standard provides
an effective means for the public and the government to exchange information and
for the government to offer its services in the official language and at the
time and place of Canadians' choosing. The CLF 1.0 Standard requires that the
websites of all government institutions listed in Schedules I, I.1 and II of the
Financial Administration Act be in compliance with the WCAG 1.0 Priority
1 and 2 checkpoints.
[28] In September 2005, the CLF 1.0 Standard
was updated to version 1.1 to bring the standards in line with current best
practices. Further, in December 2006, the CLF 1.0 Standard was replaced by the
CLF 2.0 Standard (“CLF 2.0 Standard”) to, inter alia, build on what had
been learned from implementing the CLF 1.0 Standard across the various
departmental websites. The CLF 2.0 Standard came into effect on January 1, 2007 with an implementation deadline of
December 31, 2008.
There is no dispute between
the parties that there is little difference between the CLF 1.0 Standard and the
CLF 2.0 Standard.
[29] The CFL Standard is built upon
international guidelines, i.e. the WCAG 1.0. To facilitate equal access to
online services and information, Treasury Board incorporated elements of the
WCAG 1.0 into the CLF Standard. The WCAG 1.0 measures web accessibility
according to three categories of checkpoints.
[30] Priority 1 checkpoints are basic,
necessary requirements because if not met, “one or more groups of persons with
disabilities will not be able to access content on the Web”. Without Priority 2
checkpoints “one of more groups will find it difficult to access content on the
Web”. Priority 3 checkpoint
may “prevent some groups from finding it ‘somewhat difficult’ to access website
content.” The Attorney
General notes that “[i]t is common ground between the parties that a checkpoint
failure does not necessarily make a web site inaccessible”. Under the CLF
Standard, all gc.ca websites must meet Priority 1 and 2 checkpoints. Departments
may apply to Treasury Board for exemption, if need be.
C.
Treasury Board and the CLF Standard
[31] Pursuant to section 7(1)(a) of the
Financial Administration Act, Treasury Board may act for the Queen’s
Privy Council for Canada on all matters relating to general administrative
policy in the federal public administration. On that basis, the Treasury Board
developed the government’s Communications Policy which, as I have already
indicated, aims to ensure that government communications are well coordinated,
effectively managed and responsive to the diverse information needs of the
public.
[32] In 2000, the Treasury Board therefore
created a Common Look and Feel Office (the “CLF Office”). The CLF Office works
with the departments to develop their understanding and capability to implement
the CLF Standard by, inter alia, creating consultation forums such as
“Centers of Expertise”, i.e. groups of experts identified by the CLF Office to
provide support to Website developers within the respective departments in
implementing the CLF Standard. As no monitoring of departmental websites is
effected by the CLF Office to ensure compliance with the CLF Standard, deputy
heads of departments are accountable for implementing the CLF Standard within
their institutions.
[33] However, pursuant to the CLF Standard,
the Treasury Board is to monitor compliance with all aspects of the standard in
a variety of ways which include, inter alia, assessments under the
Management Accountability Framework, departmental performance reports and
results of audits, evaluations and studies. Consequences of non-compliance can
include informal follow-ups and requests from the Treasury Board, external
audits and formal directions.
D.
Access to the Internet by the Visually Impaired
[34] The visually impaired access Internet
content with assistive technology, such as a screen reader and/or self-voicing
browser software. A “screen reader” is a software application that identifies
and interprets electronic text that is displayed on a computer screen, and then
converts the information to an audible form or into Braille for the user to
“read” tactilely. A “self-voicing” browser software is essentially a web browser
with a screen reader built in. Screen readers have long been in use as software
programs that allow the visually impaired to access online information.
[35] Using one or the other device, a visually
impaired person uses keystrokes entered on a standard keyboard in lieu of mouse
clicking to operate the
screen reader and other software, such as a web browser displaying a web page.
[36] For the above to work, the web content
must be designed in a compatible and accessible manner, i.e. designed so that
assistive technologies can navigate and interpret the information encoded in the
website. Thus, if the website is properly programmed, a visually impaired person
can access its content as easily and efficiently as a sighted person. However,
if accessibility is not built into a website the information may well be totally
inaccessible to a visually impaired person.
[37] It is in the context whereby Canadians
are choosing the time and place in which to access government information and
services that the visually impaired assert the right to deal with the government
over the Internet. Ms. Jodhan says that the possibility of accessing government
information online “is more than just a matter of efficiency and reliability; it
represents independence and privacy.” (Respondent’s Memorandum of Fact and Law,
p. 7. para. 22).
[38] Ms. Jodhan further argues that because of
the Internet, the visually impaired are able to access the same information and
services that sighted persons have access to and that it allows them to
interact independently and
directly with the government, banks and employers.
[39] The technique and tools necessary to
render websites accessible include authoring tools, which help Website
developers to build in accessibility when creating a website by making access
the default position, and automatic monitoring tools, which help to monitor
websites by reason of the difficulty of manually checking websites insure their
accessibility. Those tools have been in existence for quite a while.
[40] Because using authoring tools means that
access is the default position, programmers have to remove access rather than
build it in.
[41] The evidence is to the effect that the
government does not use, in a consistent way, either authoring tools or
automatic monitoring tools.
Relevant
Legislation
A.
The Federal Courts Act
[42] Subsection 18(1) sets out the Court’s
jurisdiction with regard to federal administrative tribunals:
|
18. (1) Subject to section 28, the
Federal Court has exclusive original jurisdiction
(a) to issue an
injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of
quo warranto, or grant declaratory relief, against any federal board, commission
or other tribunal; and
(b) to hear and
determine any application or other proceeding for relief in the nature of relief
contemplated by paragraph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a federal board, commission
or other tribunal.
|
18. (1) Sous réserve de l’article 28, la
Cour fédérale a compétence exclusive, en première instance, pour :
a) décerner une
injonction, un bref de certiorari, de mandamus, de prohibition ou de quo
warranto, ou pour rendre un jugement déclaratoire contre tout office
fédéral;
b) connaître de
toute demande de réparation de la nature visée par l’alinéa a), et notamment de
toute procédure engagée contre le procureur général du Canada afin d’obtenir
réparation de la part d’un office fédéral.
|
[43] A person must be “directly affected” by a
decision to apply for judicial review.
|
18.1(1) An application for judicial
review may be made by the Attorney General of Canada or by anyone directly
affected by the matter in respect of which relief is sought.
|
18.1(1) Une demande de contrôle
judiciaire peut être présentée par le procureur général du Canada ou par
quiconque est directement touché par l’objet de la
demande.
|
[44] The Federal Court has authority to
provide the following remedies.
|
18.1(3) On an application for judicial
review, the Federal Court may
(a) order a
federal board, commission or other tribunal to do any act or thing it has
unlawfully failed or refused to do or has unreasonably delayed in doing;
or
(b) declare
invalid or unlawful, or quash, set aside or set aside and refer back for
determination in accordance with such directions as it considers to be
appropriate, prohibit or restrain, a decision, order, act or proceeding of a
federal board, commission or other tribunal.
|
18.1(3) Sur présentation d’une demande de
contrôle judiciaire, la Cour fédérale peut :
a) ordonner Ã
l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou
refusé d’accomplir ou dont il a retardé l’exécution de manière
déraisonnable;
b) déclarer nul
ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux
instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute
décision, ordonnance, procédure ou tout autre acte de l’office
fédéral.
|
B.
The Charter
|
15(1) Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of the
law without discrimination and, in particular, without discrimination based on
race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
|
15(1) La loi ne fait acception de personne et
s'applique également à tous, et tous ont droit à la même protection et au même
bénéfice de la loi, indépendamment de toute discrimination, notamment des
discriminations fondées sur la race, l'origine nationale ou ethnique, la
couleur, la religion, le sexe, l'âge ou les déficiences mentales ou
physiques.
|
|
1 The Canadian Charter of Rights
and Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
|
1 La Charte canadienne des droits et
libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être
restreints que par une règle de droit, dans des limites qui soient raisonnables
et dont la justification puisse se démontrer dans le cadre d'une société libre
et démocratique.
|
|
24(1) Anyone whose rights or freedoms, as
guaranteed by this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
|
24(1) Toute personne, victime de violation ou
de négation des droits ou libertés qui lui sont garantis par la présente charte,
peut s’adresser à un tribunal compétent pour obtenir la réparation que le
tribunal estime convenable et juste eu égard aux
circonstances.
|
C.
The Financial Administration Act
[45] Section 7 of the Financial
Administration Act sets out the responsibilities of the Treasury Board of
Canada:
|
7(1) The Treasury
Board may act for the Queen’s Privy Council for Canada on all matters relating
to
(a) general administrative policy in the
federal public administration;
(b) the organization of the federal
public administration or any portion thereof, and the determination and control
of establishments therein;
(c) financial management, including
estimates, expenditures, financial commitments, accounts, fees or charges for
the provision of services or the use of facilities, rentals, licences, leases,
revenues from the disposition of property, and procedures by which departments
manage, record and account for revenues received or receivable from any source
whatever;
(d) the review of annual and longer term
expenditure plans and programs of departments, and the determination of
priorities with respect thereto;
…
(f) such other matters as may be referred
to it by the Governor in Council.
…
|
7(1) Le Conseil du
Trésor peut agir au nom du Conseil privé de la Reine pour le Canada à l’égard
des questions suivantes :
a) les grandes orientations applicables Ã
l’administration publique fédérale;
b) l’organisation de l’administration
publique fédérale ou de tel de ses secteurs ainsi que la détermination et le
contrôle des établissements qui en font partie;
c) la gestion financière, notamment les
prévisions budgétaires, les dépenses, les engagements financiers, les comptes,
le prix de fourniture de services ou d’usage d’installations, les locations, les
permis ou licences, les baux, le produit de la cession de biens, ainsi que les
méthodes employées par les ministères pour gérer, inscrire et comptabiliser
leurs recettes ou leurs créances;
d) l’examen des plans et programmes des
dépenses annuels ou à plus long terme des ministères et la fixation de leur
ordre de priorité;
…
f) les autres questions que le gouverneur
en conseil peut lui renvoyer.
…
|
D.
The Communications Policy of the Government of Canada
[46] It is the Government of Canada’s Policy
Statement to:
|
Policy Statement
…
(1) Provide the
public with timely, accurate, clear, objective and complete information about
its policies, programs, services and initiatives. In the Canadian system of
parliamentary democracy and responsible government, the government has a duty to
explain its policies and decisions, and to inform the public of its priorities
for the country. Information is necessary for Canadians – individually or
through representative groups or Members of Parliament – to participate actively
and meaningfully in the democratic process. It is required for access to
government programs and services. The public has a right to such
information.
…
(4) Employ a
variety of ways and means to communicate, and provide information in multiple
formats to accommodate diverse needs. Government information must be broadly
accessible throughout society. The needs of all Canadians, whose perceptual or
physical abilities and language skills are diverse, must be recognized and
accommodated. Information must be accessible so citizens, as responsible members
of a democratic community, may be aware of, understand, respond to and influence
its development and implementation of policies, programs, services and
initiatives. Information must be available in multiple formats to ensure equal
access. All means of communication – from traditional methods to new
technologies – must be used to reach and communicate with Canadians wherever
they may reside. Modern government requires the capacity to respond effectively
over multiple channels in a 24-hour, global communications
network.
|
Énoncé de la politique
…
(1) De fournir
au public des renseignements sur ses politiques, programmes, services et
initiatives qui sont opportuns, exacts, clairs, objectifs et complets. Dans le
système canadien de démocratie parlementaire et de gouvernement responsable, le
gouvernement a l'obligation d'expliquer ses politiques et ses décisions et
d'informer le public des priorités qu'il établit pour le pays. Les Canadiens ont
besoin de renseignements pour leur permettre - Ã titre individuel ou par le
truchement des groupes qui les représentent ou de leurs députés - de participer
activement et utilement au processus démocratique. Ces renseignements sont
nécessaires pour avoir accès aux programmes et services gouvernementaux, et le
public y a droit.
…
(4) D'employer
diverses façons et divers moyens de communiquer, et de fournir l'information sur
de nombreux supports de manière à répondre à divers besoins. L'information
gouvernementale doit être accessible à tous les secteurs de la société. Il faut
prendre en compte les besoins de tous les Canadiens, dont les habiletés
perceptives et physiques ainsi que les compétences linguistiques sont variées,
et y répondre. Les renseignements doivent être accessibles pour que tous les
citoyens, en tant que membres d'une collectivité démocratique, soient au courant
de l'élaboration et de la mise en œuvre des politiques, programmes, services et
initiatives, les comprennent, qu'ils y réagissent et qu'ils exercent une
influence à cet égard. Les renseignements doivent être disponibles sur de
nombreux supports pour assurer l'égalité d'accès. Il faut utiliser tous les
moyens de communication, allant des méthodes conventionnelles aux nouvelles
technologies, pour communiquer avec les Canadiens où qu'ils habitent. Un
gouvernement moderne doit pouvoir réagir efficacement dans un milieu de
communication globale actif 24 heures sur 24, en ayant recours à de nombreux
moyens de diffusion.
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[47] It is the Government of Canada’s Policy
Requirement to:
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Policy
Requirements
1. Informing and Serving
Canadians
…
To assure quality service that meets the
information needs of all Canadians, institutions must ensure that:
a. the Canadian Charter of Rights
and Freedoms and the Official Languages Act, including all
regulations and policies flowing from it, are respected at all times;
b. trained and knowledgeable staff
provide information services to the public;
c. service is timely, courteous,
fair, efficient and offered with all due regard for the privacy, safety,
convenience, comfort and needs of the public;
d. a variety of new and traditional
methods of communication are used to accommodate the needs of a diverse public;
e. published information is
available on request in multiple formats to accommodate persons with
disabilities;
…
|
Exigences de la
politique
1. Information et services aux
Canadiens
…
Pour fournir un service de qualité qui
répond aux besoins de renseignements de tous les Canadiens, les institutions
doivent faire en sorte :
a. que la Charte canadienne des
droits et libertés et la Loi sur les langues
officielles, ainsi que tous les règlements et les politiques qui en
découlent, soient respectés en tout temps;
b. que le public soit servi par un
personnel bien informé et compétent;
c. que le service soit empressé,
courtois, équitable et efficace, tout en tenant compte comme il se doit de la
protection des renseignements personnels, de la sécurité, des convenances, du
bien-être et des besoins du public;
d. que toute une gamme de méthodes
nouvelles et conventionnelles de communication servent à satisfaire les besoins
d'un public diversifié;
e. que l'information soit fournie
sur demande sur divers supports afin de répondre aux besoins des personnes
handicapées;
…
| |
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18. Internet and
Electronic Communication
The Internet, World Wide Web and other means of
electronic communication are powerful enablers for building and sustaining
effective communication within institutions and with their clients across Canada
and around the world.
An important tool for providing information and
services to the public, the Internet facilitates interactive, two-way
communication and feedback. It provides opportunities to reach and connect with
Canadians wherever they reside, and to deliver personalized services.
Institutions must maintain an active presence on
the Internet to enable 24-hour electronic access to public programs, services
and information. E-mail and Web sites must be used to enable direct
communications between Canadians and government institutions, and among public
service managers and employees.
Institutions must advance Government of Canada
on-line initiatives aimed at expanding the reach and quality of internal and
external communications, improving service delivery, connecting and interacting
with citizens, enhancing public access and fostering public dialogue.
Institutions must ensure that Internet
communications conform to government policies and standards. Government of
Canada themes and messages must be accurately reflected in electronic
communications with the public and among employees.
…
Institutions must:
a. manage their Web sites and portals in
accordance with the Treasury Board's Common Look and Feel for the Internet:
Standards and Guidelines;
…
|
18. Internet et
communications électroniques
Internet, le Web et d'autres moyens de
communication électronique sont des outils importants pour permettre et
maintenir une communication efficace au sein des institutions et avec leurs
clients dans tout le Canada et dans le monde entier.
Important outil pour fournir de
l'information et des services au public, Internet facilite la communication
interactive et bidirectionnelle ainsi que la rétroaction. Il offre des
possibilités de joindre les Canadiens peu importe où ils habitent et de leur
fournir des services personnalisés.
Les institutions doivent maintenir une
présence active sur Internet pour permettre l'accès par voie électronique, 24
heures sur 24, Ã l'information, aux programmes et aux services publics. Le
courrier électronique et les sites Web doivent servir à assurer la communication
directe entre les Canadiens et les institutions gouvernementales, et entre les
gestionnaires et les employés de la fonction publique.
Les institutions doivent promouvoir les
initiatives en ligne du gouvernement du Canada qui visent à élargir la portée et
à améliorer la qualité des communications internes et externes, à améliorer la
prestation de services, à se rapprocher des citoyens et à interagir avec eux, Ã
élargir l'accès du public et à favoriser le dialogue avec ce dernier.
Les institutions doivent veiller à ce
que les communications sur Internet soient conformes aux politiques et aux
normes gouvernementales. Les communications électroniques avec le public et
entre les employés doivent véhiculer fidèlement les thèmes et les messages du
gouvernement du Canada.
…
Les institutions doivent:
a. gérer leurs portails et leurs sites Web
conformément à la politique sur l'Uniformité de la présentation et de
l'exploitation pour l'Internet : Normes et directives du Conseil du
Trésor;
…
|
|
E.
The Common Look and Feel for the Internet: Standards and Guidelines “CLF 1.0
Standard
|
Overview
…
In keeping with
the client-centred approach of the CLF initiative, universal accessibility
standards are directed toward ensuring equitable access to all content on GoC
Web sites. While site design is an important element of the electronic media,
universal accessibility guidelines have been developed to ensure anyone can
obtain content, regardless of the technologies they use. The key to effective
implementation of universal accessibility guidelines lies in designing sites to
serve the widest possible audience and the broadest possible range of hardware
and software platforms, from assistive devices to emerging technologies. W3C WAI
working groups continually test WCA Guidelines against a full range of browsers
and assistive devices before recommending widespread implementation.
…
Universal
accessibility does not depend on minimal Web page design, it depends on
thoughtful design. Along with WAI guidelines, the CLF standards provide
direction for Web authors, particularly those using multimedia content, to
ensure that all site content and functions are available to all users. Authors
should not be discouraged from using multimedia, but rather should use it in a
manner that ensures that the material they publish is functional for the widest
possible audience. The GoC has adopted the W3C Web Content Accessibility
Guidelines (WCAG) to ensure the majority of Canadians will find it relatively
easy to use on-line information and services.
Standard
1.1
All GoC Web
sites must comply with W3C Priority 1 and Priority 2 checkpoints to ensure sites
can be easily accessed by the widest possible audience.
Rationale
This standard is
the key requirement for accessible design in the GoC. It points to an existing
international standard: the Web Content Accessibility Guidelines 1.0
recommendation, from the World Wide Web Consortium (W3C).
The W3C
checkpoints mentioned in the CLF standard are set out and defined in W3C’s
recommendation. That documentation explains the rationale behind each of
fourteen basic guidelines for making Web sites universally accessible. Following
each guideline are one or more actions that a page author must perform to meet
the requirements of the guidelines. These actions are called
“Checkpoints”.
This CLF
standard requires GoC Web sites to comply with Priority 1 and Priority 2
checkpoints.
(NOTE: No
French version was provided to the Court)
|
|
The
Federal Court Decision
[48] First, the judge carefully reviewed the
considerable evidence adduced before him (Judge’s Reasons, paras. 25 to 75).
Then, after setting out the relevant provisions of the Charter, he
addressed three preliminary matters, i.e. the jurisdiction of the Court to hear
Ms. Jodhan’s application, the Attorney General’s submission that the Court could
not, in the circumstances of the case, provide a remedy to Ms. Jodhan’s
system-wide complaint, and whether she was a public interest litigant. He first
determined that the issue raised by Ms. Jodhan was a “matter” within the
intendment of the Federal Courts Act. He then held, on the facts and
pleadings before him, that Ms. Jodhan could bring a systemic complaint “which
affects her and others in the same position” (Judge’s Reasons, para. 86).
Lastly, it was his view that Ms. Jodhan was a “public interest litigant”, noting
that the Attorney General “has accepted this characterization of the applicant”
(Judge’s Reasons, para. 87).
[49] At paragraphs 88 and following of his
Reasons, the judge then turned to an assessment of the evidence. He made a
number of findings, of which the following are the most pertinent for the
purposes of this appeal:
1. The Government of Canada made a
commitment, originally in the 1999 Speech
from the Throne, to provide both
information and services online to Canadians.
2. In order to give effect to its
commitment, the government issued a Communications Policy, pursuant to section 7
of the Act, directing that communications by those departments and agencies
subject to the Act be made in compliance with various statutes, including the
Charter.
3. In 2000, the government issued the CLF
1.0 Standard, requiring that departments and agencies design and program their
websites so as to make them accessible to the visually impaired by
2001.
4. A 2007 spot-audit of 47 departments by
the CLF Office identified numerous failures by every department to meet the
priority 1 and priority 2 checkpoints of the CLF 1.0 Standard.
5. Although none of the departments complied
with the CLF 1.0 Standard, the CLF Office concluded that in the case of 22
departments, “serious violations” had occurred. As a result, the CLF Office
directed letters to the deputy heads of these departments, requiring them to
take steps to bring their departments into compliance.
6. The CLF Standard is inadequate because
interactive applications are not accessible. Rich Internet applications, i.e.
dynamic, interactive websites, use ePass as a security channel. These websites
are used by 23 government departments to provide 83 online applications, such as
for employment insurance or passports. For these websites to function, they must
use particular technologies, such as “scripts” and “applets”, which, however,
pose an access barrier to screen readers used by the visually
impaired.
7. Although rich Internet applications are
unable to function with scripts turned “off”, the CLF Standard obliges
government websites to be made accessible by maintaining functionality with
scripts turned off. In other words, the CLF Standard prevents government Website
developers from creating rich Internet applications and, as a result, the
government would be prevented from offering numerous online services if the
websites were made available as required by the CLF Standard. As a consequence,
the CLF standard has been ignored by the departments. These findings led the
judge to say, at paragraph 100: “Accordingly, the Court finds that the
government should update the CLF Standard to refer to WCAG 2.0 guidelines and
thereby incorporate the guidelines which allow the accessibility of rich
Internet applications using ePass as a secure channel”.
8. With regard to those government websites
which do not use ePass as a security channel – in fact, the majority of the
government websites – the CLF Standard has not been properly implemented and the
evidence shows that there has been a “system wide failure by government
departments and agencies to comply with the CLF Standard so that these websites
are not fully accessible” (Judge’s Reasons, para. 101).
9. The government’s Communications Policy
requires it to provide its information through a variety of channels which, in
the case of the visually impaired, would mean the Internet, telephone, mail,
in-person and, in respect of written material, the information would be provided
in Braille.
10. Although the CLF Standard requires the
departments to use their “best efforts” to make the contents of their website
accessible, there was no satisfactory evidence presented to show what “best
efforts” had been made. Treasury Board witnesses took the position that
implementation and compliance with the CLF Standard was the responsibility of
the deputy head of each of the 106 departments and agencies subject to the Act.
Although 93 government departments had internal CLF sections, these had been
unable to impress upon the deputy heads that their respective online services
should be accessible to the visually impaired.
[50] Following these findings, the judge
turned to the law and, in particular, to section 15 of the Charter. He
first turned his attention to the Supreme Court of Canada’s decision in R. v.
Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (“Kapp”), where the Supreme
Court explained that the true purpose of subsection 15(1) of the Charter
was to ensure substantive equality, i.e. the idea that all Canadians were
“recognized at law as human beings equally deserving of concern, respect and
consideration” (Kapp, at para. 15, citing Andrews v. Law Society
(British Columbia), [1989] 1 S.C.R. 143 at
171(“Andrews”)).
[51] The judge then pointed out that Ms.
Jodhan was a member of a group falling within the ambit of section 15, i.e. “the
physically disabled”, and that this group had suffered and continued to suffer
discrimination, a fact which the Attorney General was not contesting.
[52] The judge then turned to the framework
for a section 15 analysis. He indicated that the Supreme Court had provided
guidance on this issue though its decisions in: Andrews; Eldridge v.
British Columbia (Attorney General), [1997] 2 S.C.R. 624, 151 D.L.R.
(4th) 577 (“Eldridge”); Law v. Canada (Minister of Employment and
Immigration), [1999] 1
S.C.R. 497 (“Law”); and Kapp.
[53] The judge’s review of the Supreme Court’s
decisions led him to state, at paragraph 140 of his Reasons that in Kapp,
the Supreme Court had clearly enunciated, at paragraph 17, that the test for
determining whether there had been discrimination was a two-part
test:
The template in
Andrews, as further developed in a series of cases culminating in Law v.
Canada (Minister of Employment & Immigration), [1999] 1 S.C.R. 497
(S.C.C.), established in essence a two-part test for showing discrimination
under s. 15(1): (1) Does the law create a distinction based on an enumerated or
analogous ground? (2) Does the distinction create a disadvantage by perpetuating
prejudice or stereotyping? These were divided, in Law, into three steps,
but in our view the test is, in substance, the same.
[54] The judge then turned to the first part
of the test and began with a preliminary point, which he characterized as the
first stage of the first part of the test, i.e. identifying the impugned law and
the appropriate comparator group. Relying on the Supreme Court’s decision in
Eldridge, he indicated that the government’s Communications Policy
constituted a “law” within the meaning of section 15 of the
Charter.
[55] After a brief review of the
Communications Policy, the judge opined that he was satisfied that this policy,
coupled with the CLF Standard, conferred to Canadians the benefit of access to
government services online, adding that the parties were in agreement that the
appropriate comparator was sighted individuals who access government services
online.
[56] The judge then dealt with the first part
of the test and asked himself if the law created a distinction based on an
enumerated ground. The judge sought to determine whether the Communications
Policy and the CLF Standard created a distinction between the visually impaired
and those who were not. After stating that both the Policy and the Standard were
“facially neutral” with respect to website accessibility standards, he stated
his view that the visually impaired were treated differently by reason of their
disability, their visual impairment. The judge indicated that he was satisfied
that two systemic failures underlined the government’s failure to provide online
services that were accessible to the visually impaired. First, the CFL 1.0
Standard, in regard to which the government had directed that it be implemented
by the departments many years ago, had not been implemented, nor had it been
enforced and clearly not made a priority by the deputy heads. The CLF 1.0
Standard was the one that applied to ordinary government online information
services. Second, with respect to the rich Internet applications which used
ePass as a secure channel, they were not accessible to the visually
impaired.
[57] These findings led the judge to conclude
as follows at paragraph 152 of his Reasons:
Accordingly, the Court concludes that the
impugned law does create a distinction based on the enumerated ground of
physical disability, that the applicant has not received the equal protection
and benefit of the government policy to make its information and services
accessible to the public online, and that this arises from systemic failures
pursuant to the application of the Communications Policy and the CLF
Standard.
[58] The judge then turned to the second part
of the test and asked himself if the distinction created by the impugned law
created a disadvantage for Ms. Jodhan. After stating that not every difference
created a disadvantage, the judge stated that the equality guaranteed by
subsection 15(1) of the Charter was substantive equality, adding that
substantive equality often required the making of a distinction between disabled
and non-disabled persons. For this proposition, he relied on the Supreme Court’s
decision in Eaton v. Brant (County) Board of Education, [1997] 1 S.C.R.
241 (“Eaton”) where, at paragraph 67, the Court expressed the view that
in order to prevent discrimination against disabled persons, the government
might have to “fine-tune society” or “make reasonable accommodations” so as to
avoid “the relegation and banishment of disabled persons”.
[59] The judge also relied on the Supreme
Court’s decision in Eldridge where, at paragraphs 77 and 78, the Court
expressed the view that the government would be required, in some circumstances,
to take special measures so as to allow disadvantaged groups to benefit equally
from government services.
[60] With these principles in mind, the judge
opined that, on the evidence before him, Ms. Jodhan and others like her were not
receiving “the benefit of the government’s online services and information
equally with non visually-impaired Canadians and that they encounter significant
difficulties in being otherwise accommodated with the same information” (Judge’s
Reasons at para. 157), noting that in three examples led before him, Ms. Jodhan
had not been accommodated with written material in Braille. Consequently, the
judge concluded that the distinction made by the impugned law created a
disadvantage for the blind, adding at paragraph 158 of his Reasons:
This is an adverse effect caused by
differential treatment of the visually impaired, a physical disability
enumerated under subsection 15(1) of the Charter. This failure
perpetuates a disadvantage which undermines the dignity of the visually
impaired. This differentiation perpetuates the stereotyping and prejudice that
blind persons cannot access and benefit from online government information and
services which sighted persons can. Of course, the evidence demonstrates that
there is long-established computer technology which allows the visually impaired
to access computer programs and services, provided the websites are designed
according to nine year old accessibility standards.
[61] The judge then discussed the idea of
“reasonable accommodation”, stating that there were two elements to that idea.
First, there was the element that for section 15 purposes, the government was
obliged to take positive steps so that disadvantaged groups could benefit
equally from services offered to all Canadians. According to the judge,
accommodation was, in that sense, an integral part of the section 15
inquiry.
[62] The second element of the idea of
“reasonable accommodation” was that the government was only obliged to
accommodate those in need of accommodation by providing accommodations that were
“reasonable”. Citing a passage from LaForest J.’s reasons in Eldridge at
paragraph 79, the judge indicated that accommodation in that context meant to
the point of undue hardship. I note that LaForest J., in the passage cited by
the judge, does not use the expression “undue hardship”, but rather that of
“reasonable limits” in the context of a section 1 analysis.
[63] The judge summarized his thoughts with
regard to the idea of “reasonable accommodation” at paragraph 159, where he
stated:
… Thus, in a section 15 inquiry the
first step must be to determine what reasonable accommodations would be
necessary to ensure substantive equality. Any reasons for why these
accommodations are not being offered are then to be considered at the
justification stage under a section 1 of the Charter defence. However,
the respondent does not plead any justification defence under section 1 of
the Charter even though specifically challenged on this by the
applicant.
[64] With regard to the first element of the
idea of “reasonable accommodation”, the judge turned to the case law and, in
particular, to the Supreme Court’s decision in Eldridge where the Court,
citing the words of Sopinka J. in Eaton, held that not only did
subsection 15(1) of the Charter seek to prevent discrimination against
disadvantaged groups, but sought to ameliorate their position within Canadian
society. This led the judge to assert that the implementation of the CLF
Standard would ameliorate the situation of the visually impaired. Further,
relying on the Supreme Court’s decision in Council of Canadians with
Disabilities v. Via Rail Canada, 2007 SCC 15, [2007] 1 S.C.R. 650 (“Via
Rail”), the judge stated that the visually impaired who sought independent
access to online services and dignity without physical limitations were entitled
to this right.
[65] Finally, on this point, the judge
referred to Mosley J.’s decision in Canadian Association of the Deaf v.
Canada, 2006 FC 971, [2007] 2 F.C.R. 323 (“CAD”), where the Court
held that the government’s Sign Language Interpretation Policy, which governed
the manner in which sign language interpretation was to be provided at meetings
between public servants and deaf persons, was so under-inclusive as to be
discriminatory.
[66] This led the judge to hold that the CLF
Standard, like the Sign Language Interpretation Policy in CAD, was an
attempt by the government to create a “reasonable accommodation” and that its
failure to implement or enforce that standard has the same effect as failing to
develop any accessibility standards. Thus, the CLF Standard was so
under-inclusive as to be discriminatory.
[67] Finally, the judge turned to the Attorney
General’s submission on “reasonable accommodation”, i.e. that the visually
impaired could obtain information that was available online to the general
public by other means, i.e. in person, by telephone and by mail. In assessing
the merits of this submission, the judge turned to the Supreme Court’s decisions
in Via Rail and Eldridge as well as that of the Federal Court in
CAD, and concluded that the submission did not withstand scrutiny. The
judge held at paragraph 174 of his Reasons:
Based on the jurisprudence, the use of
alternative channels is not a reasonable accommodation unless the respondent
proved that it is not technically feasible to implement the CLF Standard or it
would be so expensive that it would cause undue hardship in the context of a
section 1 of the Charter defence. The respondent expressly did not plead
this defence even though specifically challenged on this by the applicant. The
only defence pleaded was that the applicant could obtain the information and
services sought through alternative channels. In three (3) of the applicant’s
examples this was not so. In any event the Court has found that these other
channels are so under-inclusive as to be discriminatory.
[68] The judge, at paragraphs 175 to 178,
emphasized the fact that the Attorney General had not taken the position that it
would have been unreasonable for the government to make its online services
accessible to the visually impaired, adding that although both the
Communications Policy and the CLF Standard provided for the use of alternative
measures where a federal institution was unable to provide information or
services online, the Attorney General had not made any attempt to argue that
alternative means of communication constituted a “reasonable limit prescribed by
law as can be demonstrably justified in a free and democratic society”. In other
words, the judge held that the Attorney General had not raised section 1 as a
defence. The judge then stated that had an argument been made that providing
accessibility to the visually impaired could only be done at a prohibitive cost
or that it was not technically feasible or that the government had truly done
its best to make the websites accessible, the Court would have considered these
arguments as part of a section 1 justification.
[69] These findings and conclusions led the
judge to render the following judgment:
THIS COURT ORDERS AND
ADJUDGES that:
1. This application for judicial review
is allowed and the applicant is entitled to a declaration under section 18.1 of
the Federal Courts Act that she has been denied equal access to, and benefit
from, government information and services provided online to the public on the
Internet, and that this constitutes discrimination against her on the basis of
her physical disability, namely that she is blind. Accordingly, she has not
received the equal benefit of the law without discrimination based on her
physical disability and that this is a violation of subsection 15(1) of the
Charter;
2. It is also declared that the
applicant’s inability to access online certain departmental websites is
representative of a system wide failure by many of the 106 government
departments and agencies to make their websites accessible. The failure of the
government to monitor and ensure compliance with the government’s 2001
accessibility standards is an infringement of subsection 15(1) of the
Charter since it discriminates against the applicant and other visually
impaired persons. This declaration does not apply to stored government
historical and/or archived information which is stored in a database and which
the government shall retrieve and provide in an accessible format upon request;
3. It is also declared that the
government has a constitutional obligation to bring itself into compliance with
the Charter within a reasonable time period, such as 15
months;
4. This Court will retain jurisdiction
over the implementation of this declaration and the Court will resume its
proceedings on the application of either party if necessary to ensure the effect
of this declaration is properly implemented; and
5. The applicant is a public interest
litigant and is entitled to her legal costs including disbursements in the fixed
amount of $150,000.
Attorney
General’s Submissions
[70] In seeking the reversal of the judge’s
decision, the Attorney General makes a number of submissions.
1. First, he says that the benefit of the
law at issue is not, as found by the judge, equal online access to government
information and services, but rather effective access to government information
and services by means of one channel or another in the context of a
multi-channel delivery system.
2. As a second error, the Attorney General
says that the judge erred in finding that Ms. Jodhan had been discriminated
against in the delivery of government information and services.
3. Next, he says that the judge erred in
interpreting s. 15 of the Charter so as to create an additional,
free-standing right owed to Ms. Jodhan and other visually impaired persons by
the government to monitor and ensure compliance with the CLF
Standard.
4. The Attorney General also submits that
the judge erred in issuing a systemic declaration that applied to 106 government
institutions without jurisdiction or sufficient evidence.
5. Lastly, the Attorney General says that
the judge erred in retaining jurisdiction by means of a supervisory order
without evidence of government delay or other unique circumstances to justify
this extraordinary measure as part of a subsection 24(1) Charter
remedy.
The
Issues
[71] Two main issues must be determined by
this Court on the appeal. First, did the judge err in finding that Ms. Jodhan
was denied equal benefit of the law, contrary to subsection 15(1) of the
Charter? Second, did the judge err by providing a system-wide remedy that
included retaining jurisdiction to supervise the implementation of the remedy?
To resolve these issues, it is necessary to determine:
1. The applicable standard of
review;
2. Whether the Federal Court erred in
finding that it had jurisdiction over the systemic application and the systemic
remedy declarations;
3. Whether the Federal Court erred in
finding that the government discriminated against Ms. Jodhan in violation of
subsection 15(1) and that the discrimination was systemic;
4. Whether the Federal Court erred in
finding that the government could not justify its violation of subsection 15(1)
because it had not raised a section 1 defence; and
5. Whether the Federal Court erred in
exercising its discretion to retain jurisdiction over implementation of the
remedy granted.
Analysis
1.
What is the applicable standard of review?
[72] This is an appeal from a judgment of the
Federal Court in an application for a declaration, in which the judge was the
trier of fact. Hence, the standards of review enunciated by the Supreme Court in
Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, are applicable.
Questions of law will be determined on the basis of the standard of correctness,
while questions of fact and of mixed fact and law will be determined on the
basis of the standard of palpable and overriding error, except where there
exists an extricable question of law, in which case the standard will be that of
correctness.
[73] More particularly, questions of
constitutional interpretation are subject to the standard of correctness
“because of the unique role of s. 96 courts as interpreters of the Constitution”
(Dunsmuir v. New
Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, at para. 58
(“Dunsmuir”)).
[74] In Misquadis v. Canada
(Attorney General) (sub nom. Algonquin First Nation v. Canada (Attorney
General), 2003 FCA 473, [2004] 2 FCR 108 at paragraph 16, Rothstein J. (as
he then was) said that once subsection 15(1) of the Charter had been
interpreted, its application to the facts before a court was to be reviewed on
the basis of the standard of palpable and overriding error:
A question of constitutionality requires
the standard of correctness, while the application of subsection 15(1) of the
Charter to the facts of a case is reviewable on a standard of palpable
and overriding error.
[75] Thus, if the judge
incorrectly interpreted subsection 15(1), then that is a question of pure law
subject to the standard of correctness. Similarly, subsection 24(1) of the
Charter must be interpreted correctly because its interpretation is also
a question of pure law. However, once interpreted correctly, the choice of
remedy thereunder involves the exercise of discretion to which deference must be
afforded (CAD, at para. 119). This Court “should refrain from using
hindsight to perfect a remedy” and “should only interfere where the trial judge
has committed an error of law or principle” (Doucet-Boudreau v. Nova Scotia
(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 (Iacobucci and
Arbour JJ.) (“Doucet-Boudreau”), at para. 87).
[76] With the above in mind, I now turn to the
second question for determination.
2.
Whether the Federal Court erred in finding that it had jurisdiction over the
systemic application and the systemic remedy.
[77] The Attorney General says that the judge
erred in two ways. First, that he could not provide a remedy which went beyond
the facts and issues put forward in the Notice of Application and in the form of
the declarations sought. Second, that a remedy could only be given to the
individual claimant, i.e. Ms. Jodhan.
[78] More particularly, the Attorney General
says that by reason of the pleadings and the evidence led by him in response to
those pleadings, the judge had to confine his remedy to the entities named in
the Notice of Application, namely the Treasury Board, the Public Service
Commission of Canada and Statistics Canada.
[79] Although the main relief sought was
couched in broad terms, i.e. for the Treasury Board’s failure to “develop,
maintain and enforce” the proper standards of accessibility, it was sought
solely against the Treasury Board and not against the 106 departments. As to the
two specific reliefs sought against the Public Service Commission of Canada and
Statistics Canada, I note that the judge made no declaration in regard to those
reliefs and that no appeal was taken in regard thereto. Thus, all that is before
us in this appeal is the relief sought by Ms. Jodhan against Treasury
Board.
[80] In my view, save in one respect, the
Attorney General’s arguments cannot succeed.
[81] In Fédération Franco-Ténoise c. Canada
(Attorney General), [2008] NWTCA 6 (“Fédération”), where the Attorney
General similarly argued that the pleading were not sufficient to justify the
systemic relief granted by the judge, the Northwest Territories (“NWT”) Court of
Appeal held, at paragraph 72, that:
The function of pleadings is to set out
the relevant facts; if they disclose a cause of action, the
cause of action can be dealt with by the court.
[82] The Court of Appeal further opined, at
paragraph 73, that to raise an issue of systemic breach, the pleadings need only
“describe a reasonable number of representative breaches, indicating that these
are part of a pattern of conduct”.
[83] I am satisfied that the pleadings in the
present matter, when examined fairly, put forward a systemic violation of
subsection 15(1) of the Charter. However, as I have already indicated,
the allegations made and the declarations sought only pertained to the Treasury
Board’s failure to develop, maintain and enforce the proper standards of
accessibility.
[84] First, in her Notice of Application, Ms.
Jodhan sought a declaration that Treasury Board’s failure “to develop, maintain
and enforce standards which ensure that all Government of Canada websites and
online services are accessible for all individuals with visual impairment”
infringed her right to equal benefit of the law under sections 15(1) and that
the infringement was not justified under section 1 of the
Charter.
[85] Second, paragraphs 13 to 22 of the Notice
of Application set out the factual basis upon which the sought-after declaration
depends and puts in issue the steps taken by the Treasury Board to make
accessible to the visually impaired the websites of the 106 departments under
its authority.
[86] It cannot then be argued, in my opinion,
that a new ground was put forward by Ms. Jodhan at the hearing and that the
Attorney General was not given the opportunity to respond thereto by providing
additional affidavits.
[87] However, none of the 106 departments
under the supervision of the Treasury Board are parties to this application,
except for the Public Service Commission of Canada and Statistics Canada. The
Attorney General was named as a respondent in his capacity as representative of
the Treasury Board, the Public Service Commission of Canada and Statistics
Canada. The allegations made by Ms. Jodhan and the declarations sought are
directed only at these entities.
[88] Both the Communications Policy and the
CLF Standard, which are at the heart of these proceedings, are creations of the
Treasury Board. Consequently, the declaration with systemic consequences sought
by Ms. Jodhan must, by reason of the pleadings, be limited to the content of the
policies at issue and to the Treasury Board’s actions pertaining to the
enforcement and implementation of the standards.
[89] In my view, the implementation of the
Treasury Board’s standards by the 106 departments was not the issue raised in
the pleadings and thus the remedy to which Ms. Jodhan is entitled cannot be a
declaration directed at the 106 departments. Thus, to the extent that the order
made by the judge is directed at those departments which were not named in the
Notice of Application, it must be set aside.
[90] With regard to the second point raised by
the Attorney General – that the judge could not fashion a remedy beyond the
individual claimant, i.e. Ms. Jodhan – I agree entirely with the position taken
by Ms. Jodhan. In my view, subsection 24(1) did not prevent the judge from
making a systemic order. (See Eldridge and Doucet-Boudreau where
systemic orders were upheld by the Supreme Court under subsection
24(1).)
[91] What subsection 24(1) prevents, contrary
to section 52, is the commencement of a proceeding where the claimant is not
directly affected by an impugned law. In other words, the matter is one of
standing as subsection 24(1) requires a claimant to have been directly affected
by an impugned law whereas section 52 does not (see R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96,
at paragraph 61).
[92] In addition to his arguments regarding
the jurisdiction of the Court to issue the systemic remedy, the Attorney General
says that the judge lacked an evidentiary foundation to make the systemic
declaration. More particularly, the Attorney General says that the various
reports and audits before the judge fall short of being able to support the
judge’s broad ranging conclusions.
[93] Before the judge were numerous reports
and/or audits pertaining to the accessibility of the government’s websites.
First, there were reports concerning the accessibility of ePass. Second, there
were government internal and external reports concerning specific departmental
websites assessing their compliance with the CLF Standard. Finally, there were
international reports concerning the accessibility of various government
websites.
[94] With regard to the first category of
documents, the judge found that the CLF Standard “failed to address and allow
‘rich Internet applications’ that use ePass as a security channel” (Para. 95 of
the judge’s Reasons). This led the judge to find that the CLF Standard gave
Website developers only one option, i.e. either to make their sites accessible
to the visually impaired and thus not creating rich Internet applications or
creating rich Internet applications and thus not making their sites accessible.
[95] In the judge’s opinion, the solution to
the above problem was for the government to update the CLF Standard in
accordance with the WCAG 2.0 guidelines which would thus allow the creation of
rich Internet applications accessible to the visually impaired using ePass as a
security channel.
[96] The judge’s findings were based on four
reports prepared by the government concerning ePass. These reports which
assessed, inter alia, the security of ePass, were to the effect that it
was not accessible to the visually impaired.
[97] The second group of documents consisted
of reports which assessed specific departmental websites for compliance with the
CLF Standard. Included in this category are internal and external audits which
demonstrate that federal government websites significantly failed to meet the
CLF Standard.
[98] The third category of documents is made
up of two international reports, one issued by the United Nations and the other
by the European Commission, which assessed, inter alia, the accessibility
of various Canadian government websites. The judge found that these reports were
to the effect that most of the leading government websites, including those of
the Government of Canada, did not meet international accessibility standards for
the visually impaired.
[99] In addition to the documentary evidence,
there was further evidence regarding the lack of accessibility of federal
websites. That evidence consisted of the affidavit evidence of a number of
witnesses called by the parties. More particularly, there was the evidence of,
inter alia, John Rae, a past president of the Alliance for Equality of
Blind Canadians, the Intervener in this case, that of Jutta Treviranus, Ms.
Jodhan’s expert witness, that of Ken Cochrane, the Chief Information Officer of
the Government of Canada, that of Steve Buell, the Project Lead Accessibility
Integration, Accessibility Centre of Excellence within Service Canada, and
finally that of Nancy Timbrell-Muckele, the Director Citizen Employment Service,
Service Offering and Implementation Directorate, Citizen Service Branch, Service
Canada.
[100] The judge carefully reviewed the
affidavit evidence and made crucial findings of which the following are the most
relevant:
1. Both Ken Cochrane and Steve Buell
acknowledged that ePass was inaccessible and that it did not comply with the CLF
Standard. Mr. Buell acknowledged that there were many instances of
non-compliance with the CLF Standard on government websites.
2. Nancy Timbrell-Muckele testified that the
“Job Bank” and the “Job Match” links on the jobs.gc.ca website were inaccessible
to the visually impaired because they were not in compliance with the CLF
Standard. Although there are accessibility centres within the various government
departments, i.e. to provide information, education and consultation with
respect to accessibility, these centres have no enforcement powers. Mr. Buell
testified that because the centres are without enforcement powers, the
departments can be “blissfully ignorant” of accessibility problems (Appeal Book,
Vol. 22, Tab. D-49, p. 6185, Cross-examination of Steve Buell, p.
81).
3. A Treasury Board spot audit of 47
departments found that none were fully compliant with the CLF Standard. Deputy
heads of 22 of those departments were found to be in serious violation of the
CLF Standard and, as a result, were sent letters by the CLF Office.
4. Ms. Jodhan was denied access to
information and services on both the Statistics Canada website and the Service
Canada main website, in regard to which the judge found that the information
sought by Ms. Jodhan was not available to her through another channel, either by
telephone, in person or by mail, nor was it available to her in alternative
formats, such as Braille or audio.
5. Jutta Treviranus explained in her
affidavit basic accessibility problems that were frequently encountered by the
visually impaired when trying to access government websites and online services,
as well as the inaccessibility of the government’s rich Internet
applications.
[101] In my view, both the documentary evidence
and the affidavit evidence support the judge’s conclusion that Ms. Jodhan and
the visually impaired were regularly denied access to government services and
information online. This is not to say that Ms. Jodhan has led evidence
demonstrating that all of the websites of the 106 departments are not
accessible. However, the evidence is, as the judge concluded, sufficient to
demonstrate that there are very serious problems of accessibility for the
visually impaired throughout the government apparatus.
[102] Having considered the judge’s Reasons and
the evidence which is before us, I have not been persuaded by the Attorney
General that the judge made a palpable and overriding error in his assessment of
the evidence. In truth, the Attorney General disagrees with the judge’s
assessment of the evidence and invites us to substitute our appreciation of that
evidence. I must therefore reject the Attorney General’s contention that there
was no evidentiary foundation justifying the making of a systemic
remedy.
[103] The Attorney General also says that there
was no evidentiary basis to support the judge’s supervisory order. Later on in
these Reasons, I will address this submission when dealing with the Attorney
General’s specific arguments pertaining to the judge’s supervisory
order.
3.
Whether the Federal Court erred in finding that the government discriminated
against vision impaired persons in violation of subsection 15(1) and that the
discrimination was systemic.
[104] In Kapp, the Supreme Court
explained the test applicable to a determination under subsection 15(1) of the
Charter. At paragraph 17, the Court said:
The template in Andrews, as further
developed in a series of cases culminating in Law v. Canada (Minister of
Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497,
established in essence a two-part test for showing discrimination under s.
15(1): (1) Does the law create a distinction based on an enumerated or analogous
ground? (2) Does the distinction create a disadvantage by perpetuating prejudice
or stereotyping? These were divided, in Law, into three steps, but in our view
the test is, in substance, the same.
[105] That test was recently reaffirmed by the
Supreme Court in Withler v. Canada, 2011 SCC 12, [2011] 1 SCR 396
(“Withler”), at paragraphs 30 and 61. In Withler, the Court
carefully explained the purpose of the test. It made it clear that the first
step was meant to eliminate those distinctions that the Charter did not
intend to prohibit. In other words, only distinctions that were made on the
basis of either enumerated grounds or grounds analogous to enumerated grounds
were to be considered for purposes of the inquiry (Withler, at para.
23).
[106] The Court then indicated that
distinctions based on enumerated or analogous grounds did not necessarily lead
to a finding that section 15 rights had been violated. The raison d'être
of the second leg was to enable the Court to make that determination.
[107] Thus, to succeed, a claimant has to
demonstrate “that the law has a discriminatory impact in terms of prejudicing or
stereotyping in the sense expressed in Andrews” (Withler, at
para. 34). In
Andrews, McIntyre J., at pages 174-175 of his Reasons for the Court,
explained the concept of discrimination as follows:
... discrimination may be
described as a distinction, whether intentional or not but based on grounds
relating to personal characteristics of the individual or group, which has the
effect of imposing burdens, obligations, or disadvantages on such individual or
group not imposed upon others, or which withholds or limits access to
opportunities, benefits, and advantages available to other members of society.
Distinctions based on personal characteristics attributed to an individual
solely on the basis of association with a group will rarely escape the charge of
discrimination, while those based on an individual's merits and capacities will
rarely be so classed.
[108] The Court went on to explain that
discrimination, or substantive inequality, could be demonstrated by showing that
the impugned law perpetuated prejudice or disadvantage or stereotyping
(Withler, at paras. 35 to 37).
[109] To enable the Courts to perform this
exercise, the Supreme Court enumerated a number of factors which, depending of
the circumstances of the case, ought to be considered in assessing the merits of
a claim of discrimination namely, the claimant's historical position of
disadvantage, the nature of the interest affected, correspondence between the
benefit and the claimant's needs and circumstances, the ameliorative effect of
the law on others, and the multiplicity of interests which the law seeks to
balance (Withler, para. 38).
[110] At paragraph 39 of its Reasons in
Withler, the Court made the point that the ultimate purpose of the
section 15 inquiry was to determine whether the impugned law violated the
claimant's rights to substantive equality. In particular, the Court made the
following point:
The focus of the inquiry is
on the actual impact of the impugned law, taking full account of social,
political, economic and historical factors concerning the group. The result may
be to reveal differential treatment as discriminatory because of prejudicial
impact or negative stereotyping. Or it may reveal that differential treatment is
required in order to ameliorate the actual situation of the claimant
group.
[111] The Supreme Court further opined, at
paragraph 40 of its Reasons in Withler, that formal comparison between
the claimant and his or her group and a comparator group was not necessarily the
best approach, adding that the better approach was one that took into account
the full context which included “the situation of the claimant group and
whether the impact of the impugned law is to perpetuate disadvantage or negative
stereotypes about that group”.
[112] Discrimination under subsection 15(1) can
result from a government policy that denies equal benefit despite a facially
non-discriminatory law. In the present matter, the benefit at issue arises from
the Communications Policy and the CLF Standard. In CAD, for example, the
government’s policy regarding sign interpretation language, put forward in
response to the Canadian Human Rights Act, R.S.C., 1985, c. H-6,
requirement that “prohibits the denial of access to any good, service, facility,
or accommodation on the basis of disability”, was held to be a benefit emanating
from law (CAD at para. 85).
[113] Consequently, the judge was correct to
state, at paragraph 142 of his Reasons, that “a law within the meaning of
subsection 15(1) included a government policy or activity”. In his view, the
Communications Policy and the CLF Standard constituted the law at issue from
which a benefit could emanate.
[114] The situation that arises in this case is
similar to that which arose in Eldridge in that it is not the impugned
legislation that potentially infringes the Charter but rather “the
actions of particular entities” or as in this case the inaction “of a delegated
decision in applying the law” (Eldridge, at paras. 19-20-21).
[115] It was therefore proper for the judge to
proceed to a review of the Communications Policy and of the CLF Standard. His
review thereof led him to conclude, at paragraph 146 of his Reasons, that the
benefit at issue was online access to government information and services.
Characterization of the benefit at
issue
[116] The Attorney General says that the judge
erred in his characterization of the benefit of the law at issue.
[117] 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.
[118] In support of his position, the Attorney
General relies both on the Communications Policy and the CLF Standard. More
particularly, the Attorney General draws our attention to that part of the
Communications Policy which provides that government institutions are to
communicate with Canadians “through many channels” which include the telephone,
mail, service centers, and the Internet, and that the information is to be
available in multiple formats to ensure equal access, adding that traditional
methods and new technologies are to be used to reach all Canadians.
[119] With regard to the CLF Standard, the
Attorney General says that notwithstanding the fact that the CLF 1.0 Standard
provides that online accessibility is the goal, visually impaired Canadians may
have to use alternate versions of the information and services such as print,
Braille, audio where online access is not possible.
[120] The Attorney General also relies on the
Supreme Court’s decision in Eldridge where it held that the hearing
impaired were entitled to “effective communication” in accessing health care
services and not necessarily to sign language interpretation, adding that the
“effective communication” standard was flexible in that it took into account
factors such as the context in which the communication took place, the number of
people involved, and the importance of the communication.
[121] The Attorney General also relies on the
Federal Court’s decision in CAD and says that the Court accepted the
Eldridge pronouncement and held that meaningful participation could be
achieved by way of means other than visual interpretation services, such as in
writing or electronic media.
[122] Thus, in the Attorney General’s view, it
necessarily follows that the benefit of online access is not the benefit
emanating from law.
[123] The Attorney General makes the point that
the Communications Policy contemplates delivery of information and services by
way of multiple channels. One of the chosen channels is the Internet and to that
extent, the Communications Policy requires government institutions to provide
information and services online and emphasizes that the Internet and other means
of electronic communications are “powerful enablers for building and sustaining
effective communication within government institutions and with their clients
across Canada and around the world” (Communications Policy, Requirement
no.18).
[124] The Communications Policy also requires
government institutions to maintain an active presence on the Internet so as to,
inter alia, provide access to public programs, services and information
and to improve service delivery, connecting and interacting with citizens,
enhancing public access and
fostering public dialogue.
[125] The Communications Policy further states
that Internet communication must conform to government policies and standards,
and government institutions must manage their websites in accordance with
Treasury Board standards.
[126] The CLF initiative, on the other hand, is
there to provide universal accessibility standards and to ensure equitable
access to the content of all government websites. Further, all government
websites must comply with W3C Priority 1 and Priority 2 checkpoints “to ensure
that sites can be easily accessed by the widest possible audience”.
[127] When read together, the Communications
Policy and the CLF Standard make it clear that the goal is to provide Canadians
“with timely, accurate, clear, objective, and complete information about its
policies, programs, services, and initiatives” and that various ways are to be
used to communicate with Canadians. More particularly, the Communications Policy
recognizes that the Internet is an important tool for providing information and
reviews to the public, and that it is to that end that the Policy directs the
various departments subject to it to comply with the CLF Standard on
accessibility of federal government websites.
[128] Thus, the Internet as a means of
communication with Canadians and for Canadians to communicate and interact with
government institutions is, in the eyes of the government, of great value and
importance.
[129] 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.
[130] 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.
[131] 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.
[132] Before turning to the subsection 15(1)
test, I wish to address the Attorney General’s submission that section 15 cannot
be interpreted as creating an additional right owed to Ms. Jodhan and others for
the government to monitor and ensure compliance.
[133] The Attorney General argues that such a
right does not exist at law and that there is no authority in support of such a
right, adding that the only right at issue was the section 15 right to equal
benefit of the law which, the Attorney General says, is effective access to
government information and services without discrimination. More particularly,
the Attorney General says that that there is no separate or free-standing
section 15 right for the government to “monitor” and ensure compliance with web
accessibility standards owed directly to any person and that how the government
ensures this goal is a matter for its own governance. In other words, the
Attorney General says that it is only the actual provision of effective access
that can be subject to oversight by the Court by means of Charter
litigation.
[134] I agree with the Attorney General that
the only right at issue is the section 15 right to equal benefit of the law. The
Treasury Board’s failure to monitor and ensure compliance with its standards may
well be the cause of the violation of Ms. Jodhan’s section 15 rights, but does
not constitute in and of itself a violation of her section 15 rights.
Consequently, in my view, the judge’s determination that the Treasury Board’s
failure to monitor and ensure compliance constituted a violation of Ms. Jodhan’s
section 15 rights must be set aside.
The first
part of the subsection 15(1) test.
[135] I now turn to the first part of the test
so as to determine whether the law creates a distinction based on an enumerated
ground, i.e. visual impairment. In other words, do the Communications Policy and
the CLF Standard create a distinction between the visually impaired and others
on the basis of their physical disability?
[136] The judge dealt with this at paragraphs
148 to 153 of his Reasons. First, he expressed the view that the Communications
Policy and the CLF Standard were facially neutral with regard to website
accessibility in that the applicable standards were identical for all users.
However, in his view, Ms. Jodhan and the visually impaired were treated
differently because of their disability.
[137] In support of that proposition, the judge
found that the CLF 1.0 Standard had not been properly implemented nor enforced
by the deputy heads of the 106 departments thus rendering many of the websites
inaccessible to the visually impaired. He also found that 83 online departmental
interactive rich Internet applications, which used “ePass”, were not accessible
to the visually impaired. This led the judge to state that updating the current
CLF Standard to meet the new international standard would make the interactive
online services accessible.
[138] As a result, the judge concluded,
correctly in my view, that the impugned law created a distinction based on Ms.
Jodhan’s physical disability. In other words, Ms. Jodhan and the visually
impaired had received a different treatment because of their visual impairment.
[139] Other than arguing that the judge
mischaracterized the benefit at issue, the Attorney General does not question
the finding that the scheme for the provision of government information and
services denies the visually impaired of a benefit that others receive, i.e.
that sighted persons are able to access all of the government’s websites.
However, the Attorney General submits that having regard to the relevant
context, the impugned law does not “perpetuate[s] disadvantage or prejudice, or
stereotype[s] the claimant group” (Withler, at para. 70). Put another
way, the distinction which the Communications Policy and the CLF Standard make
does not create a disadvantage which results in discrimination under subsection
15(1). I now turn to that question.
The second
part of the subsection 15(1) test.
[140] The judge dealt with this question at
paragraphs 154 to 174 of his Reasons, a summary of which appears at paragraphs
57 to 66 of these Reasons. I therefore need not repeat the judge’s findings and
conclusions on this point.
[141] I now turn to the Attorney General’s
submission as to why the judge erred in concluding that the distinction made by
the law created a disadvantage that amounted to discrimination under subsection
15(1) of the Charter.
[142] The Attorney General begins his argument
by submitting that in Withler, the Supreme Court made it clear that the
purpose of the second step of the section 15 inquiry was to determine whether,
in light of the full context, the distinction made by the law created a
disadvantage by perpetuating prejudice or stereotyping, adding that this
analysis was to be conducted by considering the factors which the Supreme Court
enunciated in Withler.
[143] Having taken the position that there was
no basis for the issuance of a systemic remedy for jurisdictional and
evidentiary reasons, the Attorney General provided for our guidance a section 15
inquiry on only those three websites which the judge found to be inaccessible:
one site of Statistics Canada, one site of Service Canada and the “Job Bank”
site of Service Canada.
[144] In regard to these websites, the Attorney
General says that alternate channels or formats which effectively communicate
government information and services sought by the visually impaired correspond
to their actual needs and circumstances. The Attorney General also says that the
accessibility standards are ameliorative in purpose and effect and that they are
designed to benefit many individuals in different circumstances and with
different interests, with a wide variety of disabilities. The Attorney General
also says that the standards are intended to balance a multiplicity of
interests, including official languages obligations and the protection of users’
privacy and dignity.
[145] The Attorney General further says that
Ms. Jodhan’s interests in this case are narrow, i.e. access to certain
information and services available on three particular websites through a
preferred channel of communication, the Internet, and that these narrow
interests, to use the words of the Supreme Court in Law at paragraph 74,
cannot be characterized as a denial of access to a “fundamental social
institution” as affecting “a basic aspect of full membership in Canadian
society” or as constituting “a complete non-recognition of a particular
group”.
[146] 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).
[147] For the reasons that follow, I cannot
agree with the Attorney General.
[148] 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.
[149] 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.
[150] 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.
[151] 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.
[152] 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.
[153] 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.
[154] 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.
[155] 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.
[156] Ms. Jodhan points out that the Attorney
General has conceded in these proceedings that Ms. Jodhan and those like her
have been historically subject to pre-existing disadvantage and subject to
stereotyping that they were not as capable as those with sight. This leads Ms.
Jodhan to argue that denying her and those like her access to government
information and services online has the effect of reinforcing “existing
inaccurate understandings of the merit, capabilities and worth of vision
impaired persons. It results in their further stigmatization.” (Respondent’s
Memorandum of Fact and Law, para. 104). Again, I can find no basis to disagree
with that statement.
[157] Ms. Jodhan further submits that the
impact of the Treasury Board’s failure to ensure equal access to government
websites and online services severely impacts Ms. Jodhan and those like her, in
that they are systematically denied access to information and services which are
readily accessible online by the sighted population. The end result of this
denial, in my view, is that Ms. Jodhan and the visually impaired are not
afforded substantive equality, because they are being denied the ability to
interact with government institutions on a basis equal to that of those who can
see.
[158] At paragraph 179 of his Reasons, the
judge summarized his conclusions and findings. In particular, I wish to make
mine his sub-points 9 and 10, which I hereby adopt:
…
9.. the visually impaired have not
been "reasonably accommodated" because they allegedly can obtain the same
information available online by other channels, namely in person, by telephone
and by mail. These other channels are difficult to access, less reliable and not
complete. Moreover, they fail to provide the visually impaired with independent
access or the same dignity and convenience as the services online. The Supreme
Court of Canada makes unequivocally clear that such alternatives do not
constitute "substantively equal" treatment; and
10. for the blind and visually
impaired, accessing information and services online gives them independence,
self-reliance, control, ease of access, dignity and self-esteem. A person is not
handicapped if she does not need help. Making the government online information
and services accessible provides the visually impaired with "substantive
equality". This is like the ramp to permit wheelchair access to a building. It
is a ramp for the blind to access online services.
[159] One final comment in regard to this
question. It is clear to me that the principle of accommodation which we must
consider at the subsection 15(1) stage are the positive steps which the
government may take so as to deliver a benefit of law equally to disadvantaged
groups. As the judge points out in his Reasons, implementing the accessibility
standards would ameliorate the position of Ms. Jodhan and the visually impaired
and prevent discrimination. However, reasonable accommodation, in the larger
sense, is, as the Supreme Court clearly held in Eldridge at paragraph 79,
“generally equivalent to the concept of ‘reasonable limits’” and is to be
addressed in the course of section 1 analysis. The Supreme Court in
Eldridge reminded us that “reasonable accommodation” was not a device to
be used in restricting the ambit of subsection 15(1)”. Consequently, in adopting
sub-points 9 and 10 of paragraph 179 of the judge’s Reasons, I am obviously not
saying that reasonable accommodation, in the larger sense, as discussed in
Eldridge, should be debated in the course of a subsection 15(1) analysis.
I understand the judge’s comments to be that the steps taken by the government,
i.e. the positive steps which the government may take to deliver substantive
equality, do not achieve the purpose intended and , therefore, that substantive
equality has not been delivered to Ms. Jodhan and the visually
impaired.
[160] Consequently, there is an argument to be
made that the discussion concerning the alternative channels available to Ms.
Jodhan and the visually impaired is a discussion which ought to have been in the
confines of a section 1 analysis, to the extent that the alternative channels
can be fitted in the concept of “reasonable accommodation”.
[161] For these reasons, I see no basis to
interfere with the judge’s conclusion that the failure to ensure equal access by
Ms. Jodhan and by the visually impaired to departmental websites and online
services violated her rights under subsection 15(1).
4.
Whether the Federal Court erred in
finding that the government could not justify its violation of subsection 15(1)
because it had not raised section 1 as a defence.
[162] At paragraph 175 to 178 of his Reasons,
the judge indicated that the Attorney General had not raised, as a defence,
section 1 of the Charter. Based on the pleadings and the case put forward
by the Attorney General there can be no doubt that section 1 was not raised by
the Attorney General.
[163] Before us, the Attorney General does not
dispute that finding but says that his failure to make a section 1 defence
results from the fact that most of the 106 government institutions were not
named as parties in the proceedings, and thus they were not called upon to put
forward evidence so as to explain or justify any alleged failures to implement
the accessibility standards. I need not address that argument since I have come
to the conclusion that the proper order cannot be one directed against those
government institutions that are not parties to these proceedings.
[164] However, there were specific allegations
made by Ms. Jodhan in her Notice of Application and a declaration was sought
that the Treasury Board’s failure to maintain and enforce standards to ensure
that all government of Canada websites and online services are accessible to all
individuals with visual impairment let to a denial of substantive equality to
Ms. Jodhan and the visually impaired. In regard to that allegation, the Attorney
General did not raise a section 1 defence.
5.
Whether the Federal Court erred in exercising its discretion to retain
jurisdiction over implementation of the remedy granted.
[165] The Attorney General argues that there
was no justification for the judge’s supervisory order, which the Attorney
General characterizes as an “extraordinary and intrusive measure”. In his view,
the supervisory order does not respect the division of powers between the courts
and the executive. Hence, the Attorney General submits that the supervisory
order was not an “appropriate and just” remedy under the Charter.
[166] I note that in making the supervisory
order, the judge gave no reasons to justify this order.
[167] In Doucet-Boudreau, the Supreme
Court of Canada made a number of points which are relevant to the present
matter. First, it said that in exercising their discretion to order remedies
under subsection 24(1) of the Charter, courts were to remain sensitive to
their role of judicial arbiter and that they were not to “fashion remedies which
usurp the role of the other branches of governance by taking on tasks to which
other persons or bodies are better suited” (Doucet-Boudreau, at para.
34). At paragraph 35, the Supreme Court further stated, quoting from its
decision in Vriend v. Alberta, [1998] 1 S.C.R. 493, at paragraph 136,
that:
… In carrying out their duties, courts
are not to second-guess legislatures and the executives; they are not to make
value judgments on what they regard as the proper policy choice; this is for the
other branches. Rather, the courts are to uphold the Constitution and have been
expressly invited to perform that role by the Constitution itself. But respect
by the courts for the legislature and executive role is as important as ensuring
that the other branches respect each others’ role and the role of the
courts.
[168] The Court then set out five factors which
were to be considered in fashioning a remedy that was “appropriate and just in
the circumstances”. First, the remedy had to be one that “meaningfully
vindicated the rights and freedoms of the claimants” (Doucet-Boudreau, at
para. 55). Second, the remedy, to the extent possible, should respect the
division of powers between the judiciary and the legislative and executive
branches (Doucet-Boudreau, at para. 56). Third, the remedy ought to be a
judicial remedy, i.e. a remedy which flowed from the function and powers of a
court and not a remedy for which the court’s design and expertise were not
suited (Doucet-Boudreau, at para. 57). Fourth, the remedy should be one
that was fair to the parties against whom it was made. In the words of the
Supreme Court, “the remedy should not impose substantial hardships that are
unrelated to securing the right” (Doucet-Boudreau, at para. 58). Lastly,
the remedy-making power was one that should be “flexible and responsible to the
needs of a given case” (Doucet-Boudreau, at para. 59).
[169] With those principles in mind, I now turn
to the Attorney General’s attack on the judge’s order, i.e. that he would retain
jurisdiction over the implementation of the declarations and that either party
could apply to him in order to ensure the proper implementation
thereof.
[170] In support of his argument that the
judge’s supervisory order constitutes an extraordinary and intrusive measure,
the Attorney General relies, in part, on Professor Peter Hogg’s view, as
expressed in his Constitutional Law of Canada, Vol. 2, 5th ed.
Suppl. 2007, at page 40-45, that a supervisory order is “a remedy of last
resort, to be employed only against a government that has refused to carry out
its constitutional responsibility”. The Attorney General also relies on the view
of Jones and de Villars in Principles of Administrative Law,
5th ed. (Toronto: Carswell, 2009) at page 756: ‘it is expected that
government and other authorities will respect declaratory judgments of the
courts”. Hence, the Attorney
General argues that declarations will suffice to achieve the intended purpose
sought by the remedy.
[171] The Attorney General also argues that
supervisory orders are rarely issued and will only be issued where extraordinary
or unique circumstances exist, such as those found in Doucet-Boudreau.
The Attorney General submits that in this case, there is absolutely no evidence
of events or circumstances which could possibly justify a supervisory order. In
my view, the judge erred in not limiting his order to the declaration sought. I
agree entirely with the view expressed by Professor Hogg in Constitutional
Law of Canada, supra, where he says at page 40-45:
In my view, the dissenting view in
Doucet-Boudreau is the better one. A supervisory order should be a remedy
of last resort, to be employed only against governments who have refused to
carry out their constitutional responsibilities. The courts exhaust their
expertise when they find the facts, apply the law to those facts and order the
defendant to rectify any law. After that, no legal issue remains, just the
practical details of implementation, and that is a function of the
executive.
[172] In Eldridge, the Supreme Court
made it clear that there is a presumption that the government will, once a
declaration to that effect is made, do the necessary to, “correct the
unconstitutionality of the present scheme and comply with this Court’s
direction” (Eldridge, at para. 26).
[173] In those few cases where supervisory
orders were made, the factual situation seems to have amply justified the making
of the order. In Doucet-Boudreau where the trial judge retained
jurisdiction to supervise implementation of the remedy, parents had a
Charter right to publicly-funded French language educational facilities
for their children and, despite the Minister’s authority to build
secondary-level French language schools, construction of these schools never
took place. There was evidence of 16 years of government delay in the
construction of these schools and also a suggestion of possible bad faith on the
part of government.
[174] In the present matter, while the
accessibility standards were
issued in 1999 and were
meant to be implemented by 2001, the evidence shows that the government has
attempted, although not successfully, to make the Internet accessible to the
visually impaired. Although the websites do not comply with the CLF 1.0
Standard, they are now more accessible than they were in 1999. In addition, we
do not have before us any evidence with regard to the accessibility of the
websites following the implementation deadline of December 31, 2008, for the CLF
2.0 Standard.
[175] In Fédération, the government of
the NWT, having passed legislation to bring its laws into compliance with Charter
guaranteed language rights, utterly failed to give it force of law by delaying
its implementation for almost 20 years. In other words, there appears to have
been a total abdication by the NWT Government of its responsibilities in regard
to the language rights at issue. No such situation is present in this
case.
[176] The supervisory order is akin to a
structural remedy which the NWT Court of Appeal explained at paragraph 51 of its
reasons in Fédération as follows:
Declaratory relief identifies a
constitutional or quasi-constitutional breach and may direct that the breach be
remedied. A structural remedy not only identifies the breach(es) and directs
government to provide a remedy, but also details how government is to proceed in
doing so.
[177] In my opinion such a remedy in the
present matter is not a just and appropriate remedy in the circumstances.
[178] First, the evidence in this case is dated
because it was closed prior to the implementation date for the CLF 2.0 Standard.
It was also complete prior to the finalization of WCAG 2.0. In such a case, I
believe that a declaration appropriately responds to the time lapse between
gathering evidence for a hearing and the end of the appeal process because it
alerts the government to its responsibilities and allows it to focus on any
corrections needed that have not been made in the meantime.
[179] Second, the judge’s remedy ventures into
the realm of the executive. In the view of the dissent in
Doucet-Boudreau, a contempt proceeding would have been available
to the Attorney Generals and would have constituted a more appropriate way to
deal with government disobedience or further inaction rather than a supervisory
order because it would intrude less on executive jurisdiction.
[180] Third, unlike Doucet-Boudreau,
this case is the first time this particular breach of Charter rights
has been established through litigation. In such a case, the general practice is
to grant a declaration rather than a structural remedy because historically the
government has responded and made necessary changes (see Fédération at
para. 90). In addition, a declaration allows the government to remedy the
situation, making its own policy decisions. As the Court said in Fédération
at paragraph 90:
granting of a structural remedy against
government on a first litigation of a constitutional or quasi-constitutional
issue requires an exceptional case.
[181] Fourth, unlike the situation in
Fédération, I do not see “extensive evidence” that a declaration would
not be appropriate due to consistent failure to follow action plans, implement
recommendations made in reports or take concrete steps to implement the CLF
Standard. On the contrary, the Attorney General has explained the various steps
taken by the Public Service Commission, Service Canada and Statistics Canada to
comply with CLF 1.0 and 2.0 and each of these departments has a Centre of
Expertise on Accessibility.
[182] Fifth, the issues in Fédération
and Doucet-Boudreau pertained to language rights and significant periods
of delay in implementing those rights.
[183] Sixth, the nature of the rights at issue
is different. For example, in Doucet-Boudreau, the situation was
more urgent because there was evidence of a “serious rate of assimilation” of
the Francophone population, which would be aggravated by further delay (see
Doucet-Boudreau at paras. 38-40).
[184] I am therefore satisfied that in the
present matter, there was no factual or legal basis to justify the supervisory
order made by the judge.
Disposition
[185] I would therefore allow the appeal in
part with costs in favour of Ms. Jodhan in the amount of $35,000, inclusive of
disbursements and tax, and I would vary the judgment of the Federal Court to
read as follows:
1. This application for judicial review is
allowed and the applicant is entitled to a declaration under section 18.1 of the
Federal Courts Act that she has been denied equal access to, and benefit
from, government information and services provided online to the public on the
Internet, and that this constitutes discrimination against her on the basis of
her physical disability, namely, that she is blind. Accordingly, she has not
received the equal benefit of the law without discrimination based on her
physical disability and that this constitutes a violation of subsection 15(1) of
the Charter;
2. [First two sentences of paragraph 2 of
the judge’s Judgment REMOVED]. This declaration does not apply to stored
government historical and/or archived information which is stored in a database
and which the government shall retrieve and provide in an accessible format upon
request;
3. It is also declared that the
government [Treasury Board] has a constitutional obligation to bring
itself [the government departments and agencies under its control] into
compliance with the Charter within a reasonable time period, such as 15
months;
4. [Entire paragraph 4 of the judge’s
Judgment REMOVED];
5. The applicant is a public interest litigant and is
entitled to her legal costs in the Federal Court including disbursements in the
fixed amount of $150,000.
“M. Nadon”
J.A.
“I
agree.
K.
Sharlow J.A.”
“I
agree
Eleanor R. Dawson J.A.”
FEDERAL COURT OF
APPEAL
NAMES OF COUNSEL
AND SOLICITORS OF RECORD
DOCKET:
A-478-10
STYLE OF
CAUSE:
A.G.C. v. DONNA JODHAN et
al
APPEARANCES:
|
Peter
Hajecek
Michelle
Ratpan
|
FOR THE
APPELLANT
|
|
Meryl
Zisman-Gary
Karen R.
Spector
Laurie
Letheren
|
FOR THE
RESPONDENT
FOR THE
INTERVENER
|
SOLICITORS OF
RECORD:
|
Deputy Attorney
General of Canada
|
FOR THE
APPELLANT
|
|
Toronto Ontario
ARCH Disability
Law Centre
Toronto,
Ontario
|
FOR THE
RESPONDENT
FOR THE
INTERVENER
|
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