Visually impaired and the internet decision in Federal Court

Jodhan v. AG (Can) 2010 FC 1197 is available here:

http://decisions.fct-cf.gc.ca/en/2010/2010fc1197/2010fc1197.html

The Court writes:

154] Not every difference in treatment will create a disadvantage. Instead, the Supreme Court of Canada made clear that the equality guaranteed in section 15(1) of the Charter is of a substantive, and not a formal nature. See Kapp at para. 15.

[155] Substantive equality often requires specifically distinguishing disabled from non-disabled individuals. In Eldridge at para. 65, the Supreme Court quoted, with approval, the words of Justice Sopinka in Eaton v. Brant (County) Board of Education (1996), [1997] 1 S.C.R. 241 at para. 67:
… it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.

[156] “Reasonable accommodation” refers to the positive steps or “special measures” that a government must take to ensure the substantive equality of disabled individuals guaranteed to them by section 15(1) of the Charter. As Justice La Forest stated in Eldridge at paras. 77, 78:
If we accept the concept of adverse effect discrimination, it seems inevitable, at least at the s. 15(1) stage of analysis, that the government will be required to take special measures to ensure that disadvantaged groups are able to benefit equally from government services. … The principle that discrimination can accrue from a failure to take positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field. …
(Emphasis added)


Many cases dealing with claims of discrimination on the ground of disability under the Charter have turned on the determination of whether the special measures provided by the impugned entity, are a reasonable accommodation of the needs of disabled individuals.

[157] Both the specific examples provided by the applicant and the evidence of systemic problems with the CLF Standard, demonstrate that the applicant and other visually impaired individuals do not receive the benefit of the government’s online services and information equally with non-visually impaired Canadians, and that they encounter significant difficulties in being otherwise accommodated with the same information. In three cases, the applicant could not be otherwise accommodated with written material in Braille. Accordingly, the distinction does create a disadvantage for the blind.

[158] This is an adverse effect caused by differential treatment of the visually impaired, a physical disability enumerated under subsection 15(1) of the Charter. This failure perpetuates a disadvantage which undermines the dignity of the visually impaired. This differentiation perpetuates the stereotyping and prejudice that blind persons cannot access and benefit from online government information and services which sighted persons can. Of course, the evidence demonstrates that there is long-established computer technology which allows the visually impaired to access computer programs and services, provided the websites are designed according to nine year old accessibility standards.

Two elements of reasonable accommodation
[159] There are two elements of the idea of a “reasonable accommodation.” The first element is the demand that section 15 makes for “positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public” (Eldridge at para. 78). In this sense, the accommodation required is an integral part of the section 15(1) inquiry itself. The second element of the term “reasonable accommodation” is associated with the need to limit the respondent’s obligation to accommodate to only those accommodations that are “reasonable”. “Reasonable” in this context has been interpreted to mean to the point of “undue hardship”. As Justice La Forest stated in Eldridge at para. 79:
In my view, in s. 15(1) cases this principle is best addressed as a component of the s. 1 analysis. Reasonable accommodation, in this context, is generally equivalent to the concept of “reasonable limits”. It should not be employed to restrict the ambit of s. 15(1).

Thus, in a section 15 inquiry the first step must be to determine what reasonable accommodations would be necessary to ensure substantive equality. Any reasons for why these accommodations are not being offered are then to be considered at the justification stage under a section 1 of the Charter defence. However, the respondent does not plead any justification defence under section 1 of the Charter even though specifically challenged on this by the applicant.

[160] Certain cases give the Court guidance on the first step. Eldridge involved a claim by deaf individuals, who generally communicated using sign language, that they were being discriminated against contrary to section 15(1) of the Charter because they were not provided with sign language interpretation services when accessing medical services provided by the Province of British Columbia. The Supreme Court found that by refusing to fund sign language interpretation services, hospitals who were delivering the medical services, and so were acting as agents of the provincial government, were denying the claimants the equal benefit of the law.

[161] At para. 65 in Eldridge, Justice La Forest quoted from para. 66 in the decision of the Supreme Court in Eaton, in which Justice Sopinka recognized that distinctions will often be necessary in order to realize substantive equality for disabled individuals:
¶66. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 169, McIntyre J. stated that the “accommodation of differences . . . is the essence of true equality”. This emphasizes that the purpose of s. 15(1) of the Charter is not only to prevent discrimination by the attribution of stereotypical characteristics to individuals, but also to ameliorate the position of groups within Canadian society who have suffered disadvantage by exclusion from mainstream society as has been the case with disabled persons.
(Emphasis added)

The CLF Standard, if properly implemented, would so ameliorate the position of the blind.

[162] In Council of Canadians with Disabilities v. VIA Rail Canada 2007 SCC 15, [2007] 1 S.C.R. 650, the claimant represented disabled Canadians who were confined to wheelchairs. VIA Rail had purchased new passenger rail cars that were not accessible to personal wheelchairs, but submitted that wheelchair-bound passengers would be accommodated by having VIA Rail staff transfer them to on-board to thinner wheelchairs, and help them access services, including the on-board washrooms.

[163] In Via Rail, the Court rejected that alternatives offered by the respondent, including thinner wheelchairs on board, having employees assist disabled passengers, and offering disabled passengers alternatives to rail, including taxi service (see paras. 175-6). The Court concluded at para. 162 that the only accommodation that ensured substantively equal treatment was a design that would allow for access by personal wheelchairs:
¶162. The accommodation of personal wheelchairs enables persons with disabilities to access public services and facilities as independently and seamlessly as possible. Independent access to the same comfort, dignity, safety and security as those without physical limitations, is a fundamental human right for persons who use wheelchairs. This is the goal of the duty to accommodate: to render those services and facilities to which the public has access equally accessible to people with and without physical limitations.
(Emphasis added)


[164] In the case at bar, the visually impaired similarly seek independent access to online services and dignity without physical limitations. They want equal access as sighted persons. Applying the Supreme Court of Canada jurisprudence, as this Court is obligated to do, the applicant, and the visually impaired, have this right.
[165] With regard to the justification of its policies on the basis of undue hardship, the Supreme Court considered the meaning of “undue hardship” in the context of past human rights jurisprudence. It upheld the original decision-making tribunal’s finding that VIA Rail had failed to show undue hardship under section 1 of the Charter.

[166] The final case is Canadian Assn. of the Deaf v. Canada, 2006 FC 971, [2007] 2 F.C.R. 323 (CAD). This case bears a similarity to the one at bar. In CAD, the claimants were four individual deaf persons and an organization representing deaf persons. They claimed that they were being discriminated against contrary to section 15(1) of the Charter because of the way in which the federal government was applying its Sign Language Interpretation Policy, which governed the manner in which sign language interpretation would be provided when needed at meetings between public servants and members of the public. The Court in that case agreed with the applicants. In conducting his section 15 analysis, Justice Mosley recognized that the Sign Language Interpretation Policy represented the accommodation provided to deaf persons to ensure that they received substantively equal treatment. He went on, however, at para. 113, to find that the Sign Language Interpretation Policy failed to achieve this goal:
¶113. The applicants in this case remain unaccommodated and are denied service based on their disability. As stated by the Supreme Court in Law, above at para. 71, “underinclusive ameliorative legislation that excludes from its scope the members of a historically disadvantaged group will rarely escape the charge of discrimination: see Vriend, supra, at paras. 94-104, per Cory J.” In my view, on the evidence it is clear that although the government has attempted to accommodate and ameliorate the challenges faced by deaf persons employed by the public service, the resulting policy and guidelines are so under-inclusive as to be discriminatory.


[167] In CAD, the respondent submitted no evidence of undue hardship. Nor did the respondent in the application at bar justify its policy as a “reasonable limit” of the applicant’s rights under section 1 of the Charter.

[168] In this case, the CLF Standard, like the Sign Language Interpretation Policy in CAD, is the government’s attempt at creating what Justice Sopinka called a “reasonable accommodation.” The CLF Standard is specifically designed to ensure, inter alia, that visually impaired individuals have the benefit of government online services over the Internet equally with non-visually impaired individuals. Failure to implement or enforce the CLF Standard, however, has the same effect as failure to have accessibility standards at all. In this way, as in CAD, the CLF Standard is so under-inclusive as to be discriminatory.