FOR RELEASE SEPTEMBER 5, 2012

Historic Victory Makes Websites Accessible to Blind Canadians

Blind Canadians can sleep soundly tonight in the knowledge that the Charter of Rights and Freedoms guarantees them (1) access to electronic means of communication, and (2) that as communication technologies change the legal obligation to maintain accessibility will not. The technology exists to make websites accessible, but the federal government took the position that they were not obliged to use it. The Courts have given their final answer; ordering the federal government to provide accessibility now and into the future.

Donna Jodhan, a blind MBA graduate from McGill University, accessibility consultant and President of the Alliance for Equality of Blind Canadians (AEBC) found she was unable to access previously accessible federal government websites. She also discovered that interactive websites, on which business could be transacted with government online, were completely inaccessible.

She retained legal counsel and, with support from the now cancelled Court Challenges Program, was able to bring a Charter challenge to the inaccessibility of government websites. The Attorney General of Canada responded with an intimidating and massive defence of its actions. Ultimately its defence was that the government did not need to respond to changing technologies and that the websites did not need to be accessible in any event because Ms. Jodhan could communicate with the government by phone, mail or in person [“alternate channels of communication”].

On November 29, 2010, Justice Michael A. Kelen of the Federal Court rejected the government’s arguments and ruled that it had violated Ms. Jodhan’s Charter equality rights. The Court also directed that it would retain jurisdiction to oversee the government’s bringing itself into compliance with its Charter obligations.

The federal government appealed this decision. On May 30, 2012, Justice Nadon, on behalf of a unanimous panel of the Federal Court of Appeal, rejected the government’s appeal. The Court confirmed Justice Kelen’s decision that website inaccessibility violated the Charter rights of blind Canadians. It did, however, decide that circumstances did not warrant Justice Kelen overseeing government efforts to bring itself into compliance.

Both the federal government and Ms. Jodhan had to decide whether or not to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada or to accept it as binding.

The federal government ultimately decided not to appeal, thereby acknowledging for the first time that it had discriminated against blind Canadians.

Ms. Jodhan remained in a quandary. The grace period granted by Justice Kelen to allow the federal government to bring itself into compliance had already passed. But Ms. Jodhan lacked the resources required to determine whether the government had done what the Court had ordered it to do. It would be very expensive to audit millions of web pages. She was, however, one of the very last to have Court Challenges funding with which she could appeal to the Supreme Court of Canada. If she didn’t appeal, and the websites remained inaccessible, there would be no effective means of holding the government to account.

Not wishing to appeal unnecessarily, she requested that the federal government provide her with internal accessibility audits. It refused.

She then turned to the Canadian National Institute for the Blind (“CNIB”), which agreed to conduct a full accessibility audit within the tight timelines she had for appealing to the Supreme Court of Canada.

The CNIB audit identified a small number of “compliance failures”, but concluded that “[t]he government of Canada has done well in remediating and addressing many of the issues found in prior assessments.”[ie. the assessments that the Court had found justified a finding that it had discriminated against blind Canadians] With respect to interactive websites, the CNIB audit concluded that “… the government of Canada has largely met compliance obligations.”

These conclusions were further substantiated by spot audits conducted by Ms. Jodhan’s technical advisors, Jutta Treviranus and Jan Richards from OCAD’s Inclusive Design Research Centre (“IDRC”), and an international comparative audit conducted by iTnews for Australian Business, an online publication, which rated Canada and the European Union as having the most accessible government websites of the 14 governments tested.

On the basis of these audits Ms. Jodhan has concluded she will not be letting blind Canadians down by deciding not to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada. Her decision today makes that decision the final word on website accessibility.

Ms. Jodhan stated:

I am delighted and relieved that this matter has finally ended with a victory for all Blind, partially sighted and deaf/blind Canadians. Ensuring our kids can now look forward to having independent and equal access to information, with less sighted assistance, was definitely worth the effort.

I thank my lawyers David Baker and Meryl Gary, and accessibility experts Jutta Treviranus and Jan Richards. I also thank the AEBC, CNIB and Council of Canadians with Disabilities (CCD) for their moral and legal support throughout, with a special thank you to CNIB for conducting the audit.

David Baker of bakerlaw stated:

Donna Jodhan’s case has drawn recognition of Canada’s pre-eminence in equality rights for its disabled citizens from around the world. It establishes that Canadians with disabilities now have a right to expect full access to goods, services and information.

Donna recognized that the cancellation of the Court Challenges Program meant that comparable cases would not be possible in the future. Before deciding whether or not to appeal she ensured the government was in substantial compliance with the accessibility requirements established by the Charter of Rights and Freedoms.

Jutta Treviranus of the IDRC stated:

Accessible websites can be achieved at little or no costs if web authoring tools that support accessibility are used. Costs rise when accessibility is not integrated from the outset. Donna’s case will trigger international awareness and attention to the fact that persons with disabilities can and should have equal access to online services. Access is possible if those in control are willing to provide it.

While there are still areas of federal government non-compliance, we recognize that overall it is moving forward towards enabling equal access and full participation by persons with disabilities.

John Rafferty, President and CEO of CNIB stated:

CNIB believes passionately that every Canadian should have equitable access to government information, regardless of whether they have a disability such as vision loss. We commend Donna Jodhan for having championed this issue on behalf of all Canadians who are blind or partially sighted, as we commend the government of Canada for making a significant effort to address the issues at hand.

Anthony Tibbs, representative of AEBC and lawyer with the Merchant Law Group LLP states:

AEBC is proud to have supported its President Donna Jodhan in her historic battle for accessibility. Without any thought of personal gain, she laboured intensively in the interests of Blind Canadians for over 6 years to achieve this outstanding precedent.

Her efforts, and the Court’s application of the Charter of Rights and Freedoms, places Canada where it belongs, in the forefront of ensuring the electronic communications revolution includes persons with visual disabilities. The federal government’s argument, that blind Canadians should be content with “alternate channels of communication” would have excluded us altogether. Now that it has been rejected, blind Canadians are entitled to have equal access to information.

Vangelis Nikias (bilingual) CRPD Project Manager, CCD stated:

To make Canada truly inclusive and accessible, governments must create access regulations based on the principles identified by the Courts in the Jodhan case. New barriers are being created every day because access is not built into the design of new goods and services. Our rights should not be contingent upon lengthy and unsustainable litigation. Governments should act proactively to ensure their enforcement.

Canada, as a State Party to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), has undertaken to provide full accessibility and remove barriers, including in the area of information and communications technologies. The Courts have brought Canada into compliance with its international obligations.

Dated: September 4, 2012

 

CONTACTS

Donna Jodhan will be available for individually scheduled phone or in person interviews on September 5, 2012 at 509-4711 Yonge Street, Toronto, (free parking in basement) (direct entrance from Sheppard subway station) (near Yonge and 401) by contacting Luz Sucilan at (416) 533-0040 ext. 230 or lsucilan@bakerlaw.ca

bakerlaw

David Baker at (416) 533-0040 ext. 222, dbaker@bakerlaw.ca

Meryl Gary (416) 533-0040 ext. 240, mgary@bakerlaw.ca

IDRC

Jutta Treviranus (416) 977-6000 ext. 3950, jtreviranus@faculty.ocad.ca

Jan Richards (416) 977-6000 ext. 3957, jrichards@ocadu.ca

CNIB

Erika Bennett (416) 486-2500 ext 8355; erika.bennett@cnib.ca

AEBC

Anthony Tibbs (514) 842-7776/226-2266, anthony@tibbs.ca

CCD

Vangelis Nikias (bilingual) (613) 240-5730/738-8881 vangelis@ccdonline.ca