Jodhan Decision Advances Access to Web Sites for Persons with Vision Impairment

On 30 May 2012, the Federal Court of Appeal made public its decision in the case between the Attorney General of Canada and Donna Jodhan and the Alliance for Equality of Blind Canadians, intervener.  Donna Jodhan, who has a vision impairment, discovered that Government of Canada web sites were inaccessible to her.  For example, the web sites’ barriers prevented her from filling out job applications online.  This violation of her rights prompted Ms. Jodhan to undertake legal action to remedy the barriers.  Ms. Jodhan engaged David Baker, of Bakerlaw, to assist her pursue a Charter challenge against the Government of Canada and the case was granted Court Challenges funding, shortly before the Federal Government cancelled the program.  The Hon. Marc Nadon, who wrote the decision, upheld most of the key elements of an earlier 2010 Federal Court decision, which had been widely celebrated as a victory for accessible websites.  There was great disappointment in the disability community when we learned that the Federal Government was appealing the case to the Federal Court of Appeal.

What Was At Issue—The Federal Government argued that in its decision in the Jodhan case the Federal Court made errors.  The Government argued it had an obligation to provide “effective access to government information and service by one channel in a multi-channel delivery system” and not “equal access to online government information and services”.  It disagreed that Ms. Jodhan had been discriminated against.  The Government called into question the Federal Court’s findings on the Government’s failure to monitor and ensure compliance with the Common Look and Feel Standard.  It disagreed with the Court “issuing a systemic declaration that applied to 106 government institutions”. Finally, the Federal Government argued against the Federal Court’s decision to retain jurisdiction over the case with the option to reopen it at the request of either party to ensure compliance with the decision.  While there were some losses, the case stands as a milestone in the disability community’s efforts to achieve equitable access to technology.

What Was Lost—In paragraph 108, the Federal Court of Appeal indicated that the declaration sought could only cover Treasury Board and not the 106 departments mentioned by the Federal Court.  In paragraph 134, the Federal Court of Appeal agreed with the Government of Canada that the Government’s failure to monitor and prevent deviation from its standards was not a violation of Ms. Jodhan’s Section 15 rights. The Hon. Justice Nadon wrote about the failure to monitor as a cause of the rights violation. In the 2010 decision, the Federal Court said it would “resume the proceedings on the application of either party if necessary to ensure the effect of this decision is properly implemented”. In paragraph 186 the Federal Court of Appeal agreed with the Government and found no basis in law for a supervisory order.

What Was Won—Both the 2010 decision of the Federal Court and the Federal Court of Appeal decision written by Justice Nadon include much positive language in support of access to Federal Government web sites.  The Attorney General of Canada argued that the Government provides service through various “channels”, so all channels do not have to be accessible.  Justice Nadon did not agree with the position put forward by the Government of Canada and spoke out in support of internet access.  The decision stated, “[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.”  Moreover, the Hon. Mr. Nadon reiterated the following points from the Federal Court decision:

…

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, access 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 services accessible provides the visually impaired “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.

The Court acknowledged the discrimination encountered by Ms. Jodhan and Treasury Board’s responsibility to comply with the Charter’s equality demands.  The Federal Court of Appeal upheld in the Disposition section of the decision:

1. …the applicant [Ms. Jodhan] …has been denied equal access to, and equal 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.

…

3. It is also declared that the government [Treasury Board] has a constitutional obligation to bring itself [the government departments and its jurisdictions and agencies under its control] into compliance with the Charter within a reasonable time period, such as 15 months; [Editorial Note: As indicated by the “strikethrough” and brackets, the Federal Court of Appeal altered some of the original decision by the Federal Court.]

The decisions in the Jodhan case show the importance of the equality rights litigation that has been undertaken by the disability community.  Both levels of Court looked back to the Eaton, Eldridge, VIA and CAD cases for language supporting disability rights.  For example, the Court in paragraph 151 used the following passage from the VIA Rail decision to make the point that “the benefit of the law offered to persons with disabilities must be as inclusive as possible”:

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.

Hopefully, service providers will get the message once and for all, in Canada, there is an obligation to develop and deliver services that are usable by people with disabilities.

CCD applauds Donna Jodhan and AEBC, as intervener, for having challenged the Government of Canada over its inaccessible web sites and for having won a significant victory for access to technology by people with disabilities.