On May 30, 2012, the Federal Court of Appeal upheld a legally blind woman’s 2010 legal victory over the federal government, ordering the government to make its websites accessible to blind persons. It may not be a case under the Accessibility for Ontarians with Disabilities Act (AODA), but it does show us how website accessibility matters and has an impact on promoting accessibility for persons with disabilities.
The Federal Court of Appeal ruling reaffirmed that the inaccessible federal government websites violated Donna Jodhan’s constitutional equality rights under the Canadian Charter of Rights and Freedoms. More specifically, with its inaccessible websites, the federal government denied Jodhan equal access to, and benefit from, government information and services provided online to the public on the Internet, and this constituted discrimination against her on the basis of her blindness. Therefore, she has not received the equal benefit of the law without discrimination based on her physical disability and that constitutes a violation of subsection 15(1) of the Charter.
During the appeal, the government argued 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.… 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.
The government was saying it does not matter how or how long it takes to get the information, as long as a person gets the information in the end.
The Federal Court of Appeal could not agree with the government’s argument. In its view:
…one of the above two persons has not received the same benefit. They have not been treated equally.… I am therefore of the view that the benefit of the law is access to government information and services. However, access thereto necessarily includes the benefit of online access, which is not just an ancillary component of the multi-channel delivery mechanism, but an integral part thereof. In other words, one cannot speak of access to government information and services without including access thereto by way of the Internet.
Although the Appeal Court upheld the ruling of discrimination, it struck down the lower court’s ongoing supervisory role to ensure the government was complying with the decision.
A spokesperson for Treasury Board Minister Tony Clement said the government is reviewing the decision and added, “Our government is continuing to implement the Federal Court decision from 2010, … We are committed to web accessibility and to date over 100 government institutions are converting their content in line with the Web Content Accessibility Guidelines.”
Will the government take this case to the Supreme Court of Canada?
Everyone in the business of making the world accessible understands the voluminous work the federal government was expected to complete in 15 months. Finding web developers with knowledge in web accessibility was the first challenge. Undertaking the volume of work to convert the government’s multitude of websites was next. By taking this case back to court, the government won extra time before being ordered again to meet compliance.
Despite buying time to extend its deadline, it would behoove the government to continue using taxpayers’ money to meet compliance as soon as possible. In the meanwhile, all government agencies and representatives have been scrambling to find accessibility specialists, with the understanding that this ruling will stand the test of time and a Supreme Court decision is not likely to be different.
What does this ruling mean for promoting web accessibility?
This case has major implications, highlighting the importance of access to the Internet for all persons with disabilities. It also indicates that information provided in alternative formats is not necessarily sufficient, particularly if a user can’t access it in a similar time frame. If Canadians who are blind or have low vision (regardless of their ability to use a screen reader) are not offered accessible Internet content like those without a disability, they are at a disadvantage.
Chances are disability advocates and people with disabilities will continue to demand accessible information. For organizations that do not comply, expect a challenge.
In Ontario, the Information and Communication Standard under the Integrated Accessibility Standards Regulation states that websites and content will conform to the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0 at Level A and AA, with the exclusion of live captions and descriptive audio interpretation.
Courts may consider this decision a precedent beyond the federal government. Organizations in Ontario (under the AODA)—and across the country—should think about these factors:
- Alternative formats to provide important information, with or without aid from a representative, cannot match equal rights to receive information as quickly and privately as another person when the information is readily available to the public
- The standards are not finished, and they clearly will not make Ontario accessible by the year 2025 if new standards are not developed and released soon
- People with disabilities do not have to wait for the AODA and standards to make equality rights a reality; that is, they may already challenge an organization or individual that they believe has discriminated against them
- This case affects how information and communications on the Internet are delivered nationally, and is not limited to the province of Ontario
Your organization should:
- Train staff to produce accessible information and communications now.
- Beat the goal in the Integrated Accessibility Regulation and use 15 months as the time to deliver accessible Internet content.
- Grab the accessibility Internet consultants that are available because supply is not as high as demand. If you wait, you may pay more to educate staff and to make your Internet communications accessible. The earlier everyone involved produces accessible information and communications, there will be less to fix later. It costs less to do something right the first time than to fix a problem.
- Take note, in the Integrated Accessibility Regulation, only the government is obliged to make intranet sites accessible. If your intranet sites are not accessible you may:
- See a standard released in the next few years to correct this issue
- Be taken to court because a person who is blind or has low vision or low mobility is not provided equal opportunity for employment and advancement at the workplace
- Focus on any information vital for the well-being of persons with a disability, or for providing equal opportunity. An example is your organization’s capacity to advertise work positions and receive responses in an accessible manner. If you use an advertising agency to promote your open job positions, ensure they are taking the steps now to become accessible.
- Focus on alternative formats that protect privacy and allow users to access information in a timely manner. In the present case, Jodhan required outside assistance to obtain information verbally or on paper. Braille is considered as the appropriate alternative format if she received information on paper. However, Braille is not the only format because there are many people who are Blind or have low vision who do not know how to read Braille. Ask the customer for the preferred method to communicate, do your best to comply and avoid a reliance on staff to relay information verbally. Remember, if you provide information and methods to interact with your organization via the Internet, no alternative format can compete with these online services.
If your IT departments or personnel are not taking the AODA seriously, consider sensitivity-awareness training. Also, consider letting staff know this is the future of IT and if staff wants to remain relevant they will have to learn to develop accessible content with style. Just because you provide accessible content, it does not mean your website will be boring. Staying within the guidelines will reap rewards of reaching a wider audience, and accessible Internet communications can be just as elegant as your desired image.
Finally, if IT accessibility consultants become too expensive to contract, maybe we will have to campaign together for accessible prices!
Suzanne Cohen Share, M.A., CEO
Access (SCS) Consulting Services o/b 623921 Ont. Ltd.
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