In Donna Jodhan v. Attorney General of Canada, a recent significant accessibility ruling, a Federal Court judge has ordered Ottawa to make all government websites accessible to the blind within 15 months.
Jodhan, who is a special-needs business consultant with an MBA, and is also legally blind, sought a declaration under section 18.1 of the Federal Courts Act that the standards implemented by the federal government for providing visually impaired Canadians with access to government information and services on the Internet, and the way in which those standards are implemented, denied her equal access to government information and services, and thereby violated her rights under section 15(1) of the Canadian Charter of Rights and Freedoms.
The federal government submits that the Federal Court can only deal with the specific complaints of the applicant and cannot treat this application for a declaration as one with respect to a systemic failure by all government departments and agencies to apply accessibility standards for the visually impaired.
The constitutional court challenge was filed three years ago after she was unable to apply for government jobs or complete the 2006 Census online, notwithstanding the government’s accessibility standards for the visually impaired, which have been in effect since 2001.
It is important to note that Jodhan is the owner of Sterling Creations, a consulting business that provides analyses and recommendations to clients regarding the accessibility of their products or services to special-needs users. Her qualifications and profession support her characterization of herself as a sophisticated computer user, familiar with accessing the Internet.
She argued that her equality rights were being violated when she was denied access to government services and information on the basis of her physical disability.
Visually impaired and blind individuals can independently access Internet content online using specific assistive technologies. These include screen readers, which are software devices that read website content aloud to the user, and Braille output devices, which are devices that convert website content into Braille for the user to read tactilely. Screen readers are long-established software programs to make computers accessible to blind and visually impaired users. Suzanne Cohen Share offered a good explanation of the screen reader technology last week.
The Internet accessibility standards established by the federal government are set out in the CLF 1.0 Standard, which was to be implemented by 2001. The CLF Standard is built upon international guidelines, called the Web Content Accessibility Guidelines 1.0 (WCAG 1.0) produced in 1999 by the World Wide Web Consortium, an international organization devoted to developing technical standards for the Internet. This standard provides detailed instructions to developers of Internet content, such as website designers, regarding how to help make content accessible to people with disabilities, including the visually impaired.
The World Wide Web Consortium updated those accessibility standards in 2007 to CLF 2.0 Standard. However, the government wasn’t implementing or enforcing the new standards, and those being applied were obsolete. This was demonstrated in several external audits and reports (refer to Court decision).
The evidence with regard to the inaccessibility of federal government websites comes from three sources. First, a number of reports have demonstrated failures of numerous government websites to meet even the basic priorities of the obsolete CLF Standard, which means that the blind cannot access the websites. Second, the applicant has submitted affidavit evidence from herself, another visually impaired person, and her expert witness that describe barriers to access encountered on government websites. Third, the respondent’s witnesses have acknowledged instances of non-compliance on federal government websites.
After hearing the evidence, the Court was satisfied that the government websites were not fully accessible to the visually impaired and not in compliance with the CLF Standard. “The negative effect on the applicant and the visually impaired is clear. If they have to rely upon sighted assistance they lose their independence, their dignity and their ability to accurate and timely information on an equal basis with a sighted person”. The Court was also satisfied that the evidence supported a system-wide failure by government departments and agencies to comply with and implement the CLF Standard as required by a report several years ago.
Thus, the Court found the government failed to monitor and ensure compliance with its own 2001 accessibility standards is an infringement of section 15(1) of the Charter, since it discriminates against the applicant and other visually impaired persons. The Court 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.
Jay Denning, a spokesman for the Treasury Board of Canada, said the government is still reviewing the decision.
This is a clear indication that accessibility standards are being taken seriously by the courts. Ontario organizations in the private sector who have to comply with the Accessibility for Ontarians with Disabilities Act (AODA) Customer Service Standard by January 1, 2012, should start getting ready. If your organization is not aware of the extent of their obligations under this first standard, know that private sector organizations that provide goods or services with at least one employee in Ontario must implement the customer service standard under the AODA by January 1, 2012.
There are several blog post on First Reference Talks on the topic, but a good overview is provided here.
Yosie Saint-Cyr
First Reference Human Resources and Compliance Managing Editor
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