Communications and Disability Rights: How Litigation before the CRTC Can Make a Difference

  • August 11, 2014
  • BakerLaw

Legal Activism Can Create Social: The Role of Disability Advocacy in the Information ‘Revolution’

This summer, Bakerlaw is pleased to host Julia Munk, Osgoode Hall Law School’s 2014 Kreppner Plater Fellowship winner. Julia is researching how effective advocacy before the Canadian Radio-television and Telecommunications Commission (CRTC) can make gains for the rights of persons with disabilities generally. Bakerlaw will feature some of Julia’s work on the website over the summer, beginning with her first blog post on the historical development of telecommunications regulation and successful advocacy before the CRTC – by both lawyers and non-lawyers – in favour of disability rights:

The CRTC is a federal commission. All of its decisions should be informed by the Canadian Charter of Rights and Freedoms as well as the Canadian Human Rights Act (CHRA), particularly when dealing with issues of equality and accessibility. Section 15(1) of the Charter stipulates that:

“[E]very 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 [inter alia] on mental or physical disability.”

The CHRA – which applies to all entities under federal jurisdiction, including those in the telecommunications sector – recognizes as a form of discrimination the refusal to provide access to goods and services available to the public, or that “differentiates adversely” between individuals, on grounds of disability under Section 5.  However, the Charter and the CHRA are not the only legal instruments that the CRTC must consider.

The CRTC was established by the Canadian Radio-television and Telecommunications Commission Act and is mandated to make decisions in accordance with the Broadcasting Act and the Telecommunications Act.  The Broadcasting Act expects accessibility provisions to be adopted “as resources become available,” while the Telecommunications Act condemns “unjust” discrimination in the provision of telecommunications services, although “unjust” discrimination is ambiguously defined requiring the CRTC to engage in a balancing exercise among competing interests.

A particularly good example of this balancing can be found in section 7 of the Act where a commitment to the provision of “reliable and affordable telecommunications services of high quality accessible to Canadians” and to addressing the “social requirements of users of telecommunications services” is juxtaposed with the economic objectives of increasing competition and reliance on market forces.

This balancing can be seen when comparing CRTC decision related to 100% closed captions and the ruling, during the same hearing, that four hours per week of described video programming for people with visual disabilities was a sufficient accommodation, given the economic impact on the industry.  Compared to captioning costs, described video or audio description cost substantially more to produce. This economic disparity could explain why the deaf community has found more success in obtaining favourable decisions from the CRTC addressing their accessibility needs.

Despite the fact that the CRTC balances economic objectives with the need to ensure accessibility, this does not mean that engaging in consultations, interventions and/or the complaints process at the CRTC will not be an effective use of time and resources for advocates in the disability community. Most recently, Telecom Regulatory Policy CRATC 2014-187 requires the development of a National Video Relay Service. This will further enhance accessibility and choice for deaf and hard of hearing consumers (link to policy).

Like our colleagues fighting for other forms of social change, disability advocates are making use of new technologies to fight for social, political and legal rights and accommodations.  Technology is not only an effective community organizing tool for the disability community, but the field itself – and the CRTC in particular – is becoming a forum wherein disability advocates, whether organizations or individuals representing themselves, can make significant advancements for the rights of persons with disabilities.


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