ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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COURT RULES THAT FEDERAL INACCESSIBLE GOVERNMENT WEBSITES VIOLATE THE CONSTITUTIONAL RIGHTS OF BLIND CANADIANS –STRONG REASON FOR MCGUINTY GOVERNMENT TO SUBSTANTIALLY STRENGTHEN ITS WEAK PROPOSED INFORMATION AND COMMUNICATION ACCESSIBILITY STANDARD

December 2, 2010

SUMMARY

On Monday, November 29, 2010, the Federal Court of Canada rendered a landmark ruling on accessibility of websites for persons with disabilities. It will very powerfully support our call for the McGuinty Government to strengthen its weak proposals for its forthcoming integrated accessibility standard, to be enacted under the Accessibility for Ontarians with Disabilities Act. The AODA Alliance calls on the McGuinty Government to now heed our call for the information and communication provisions of the forthcoming integrated accessibility standard to be strengthened, for its exemptions to be cut back and for its time lines for action to be sped up.

MORE DETAILS

Ms. Donna Jodhan, a blind person, sued the Federal Government in the Federal Court of Canada. She argued that the Federal Government is not maintaining properly accessible websites. .

In very detailed and persuasive reasons released on November 29, 2010, the Federal Court of Canada agreed with her that there is a systemic problem of inaccessible Federal Government websites. This was found to be so despite Federal Government claims that it had been working for years on making those sites accessible.

The Court concluded that this was a system wide problem. It found that accessibility standards that the Federal Government uses for website accessibility were too weak and inadequate. It also found that the Federal Government too often did not even live up to its own inadequate website accessibility standard.

The Court ruled that the Federal Government’s 9-year-old accessibility standard for its websites “…has not been implemented, has not been enforced, and has not been made a priority by the deputy heads of the estimated 146 government departments and agencies who are responsible for implementing these standards.”  

It also found: “…the government has introduced 83 online interactive “rich Internet applications” which use a secure channel called “ePass”. This allows persons in Canada to apply for a variety of important government services such as Employment Insurance, Canada Pension Plan, and a passport. These interactive online services are not accessible to the visually impaired and the current CLF Standard could be amended, in accordance with the new international standard, to make them accessible to the visually impaired.”

The Federal Court emphasized in powerful terms the importance of website accessibility for people with vision loss:

“…for the blind and visually impaired, accessing 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 and services accessible provides the visually impaired with “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.”

To fix this problem, the Court made especially important orders:

“1.       This application for judicial review is allowed and the applicant is entitled to a declaration under section 18.1 of the Federal Courts Act that she has been denied equal access to, and 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 is a violation of section 15(1) of the Charter;

2.         It is also declared that the applicant’s inability to access online certain departmental websites is representative of a system wide failure by many of the 146 government departments and agencies to make their websites accessible. The failure of the government to monitor and ensure compliance with the government’s 2001 accessibility standards is an infringement of section 15(1) of the Charter since it discriminates against the applicant and other visually impaired persons;

3.         It is 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;

4.         This Court will retain jurisdiction over the implementation of this declaration and the Court will resume its proceedings on the application of either party if necessary to ensure the effect of this declaration is properly implemented; and

5.         The applicant is a public interest litigant and is entitled to her legal costs including disbursements in the fixed amount of $150,000.”

As noted above, as part of this ruling, the Court ordered the Federal Government to update its website accessibility standard   to bring it into conformity with the current international standard of the Web Content Accessibility Guideline (WCAG 2.0) of the Worldwide Web Consortium (W3C Consortium) that oversees the web.

We commend and congratulate Donna Jodhan for this important win for persons with disabilities.

STRONG MESSAGE TO THE MCGUINTY GOVERNMENT

Even though this case deals with inaccessible Federal Government websites, it should send a strong message to the McGuinty Government, as it now finalizes its proposed accessibility standard, to effectively address barriers in information and communication. The McGuinty Government’s proposals, made public on September 2, 2010, must be dramatically strengthened, if the Ontario Government and other organizations in Ontario are to avoid comparable litigation under the Human Rights Code or the Charter of Rights.

According to its September 2, 2010 announcement, the McGuinty Government has proposed giving itself a leisurely 8 years just to start posting new information on its own websites in a fully accessible format, in accordance with WCAG 2.0 Level AA requirements. As an interim measure, it proposes excusing itself from even starting to meet the lesser and insufficient WCAG 2.0 Level A standards for new Ontario Government postings until 2014. The McGuinty Government also proposes giving other organizations as long or even longer.

In sharp contrast, this ruling gave the federal Government only 15 months to fix its serious system-wide website inaccessibility problems. There is no reason the McGuinty Government should need any more time than the court gave the Federal Government.

The McGuinty Government proposes only requiring website accessibility where technically feasible. We contend that meeting those international standards is itself technically feasible. The Court noted that in the Jodhan case, the Federal Government did not even try to prove under Section 1 of the Charter of Rights, that it would be justified in failing to provide fully accessible websites.

In an especially important part of the decision, the Court rejected the Government’s claim that even if these websites are inaccessible, it was sufficient if blind people can call the Government to get the information that is posted inaccessibly on the internet:

"…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; …"

The McGuinty Government has attempted to use the same unwarranted excuse that the Federal Court here rejected, when we pointed out accessibility barriers in the Presto Smart Card technology that the McGuinty Government is championing for use by local public transit authorities. We pointed out that passengers who want to check the amount of money on their Presto Smart Card must use a “card reader” machine, paid for with taxpayers’ funds, that put the information on a video screen. That is inaccessible to people with vision loss or dyslexia. The McGuinty Government tried to justify itself by saying that those people can phone in to ask for their balance. If that is not substantive equality in the Jodhan case, it is not substantive equality in the Presto Smart Card situation. To learn more about our battle against the barriers in the Presto Smart Card, visit:  http://www.aodaalliance.org/strong-effective-aoda/08272010.asp

To see our detailed analysis of the McGuinty Government’s proposals for an integrated accessibility standard, and our recommendations to strengthen it, visit:
http://www.aodaalliance.org/strong-effective-aoda/10082010.asp

EXPECT RADIO SILENCE FROM THE AODA ALLIANCE FOR THE NEXT FEW WEEKS!

This is our final update for 2010.  Our email update service will be off-line until the start of 2011. In early January, we will respond to any email that comes in to us after today.

Here’s a major thank you to all of you who have followed our updates, and supported our non-partisan campaign for a barrier-free Ontario for all persons with disabilities. Thanks to the many people who signed up this year to receive our AODA updates. Thanks to all who encouraged others to sign up, or who will do so in the future. Thanks to all who passed our updates on to friends and family members, to help spread the word. Thanks to all who gave us feedback on our activities and proposals, to all who wrote the Government, to their MPPs, to the local media, and to others to help advocate for more action to make Ontario fully accessible. Thanks to all who came up with your own strategies to help with our campaign. Our efforts depend on all the efforts of people like you.

May you all have a happy and healthy holiday season. And may we all enjoy a barrier-free 2011!

*****

Toronto Star, November 30, 2010
Blind must be able to access sites, judge tells Ottawa
Nicki Thomas

A federal court judge has ordered Ottawa to make all government websites accessible to the blind within 15 months.

In a ruling issued Monday, Justice Michael Kelen found the federal government had discriminated against a blind Toronto woman and other visually impaired people through its lax or even obsolete online accessibility standards.

Donna Jodhan, an accessibility consultant and one of the first blind people in Canada to earn an MBA, launched a constitutional court challenge three years ago after she was unable to apply for government jobs or complete the 2006 Census online. She argued that her equality rights were being violated.

Government lawyers fought back, arguing that the visually impaired people were "reasonably accommodated" because they could access the same information available online, in person, by telephone and by mail.

But Kelen sided with Jodhan.

"I'm delighted," Jodhan told the Star Monday afternoon, adding that she hopes the decision will motivate other visually impaired Canadians.

"We need to feel like we can stand up for what is rightly ours, that we should not be afraid to do so," she said.

Accessibility standards updated by the government in 2007 were not being enforced or implemented and some were obsolete, Kelen wrote in his judgment.

Jodhan's inability to access departmental websites represents "a system wide failure by many of the 146 government departments and agencies to make their websites accessible," the judge wrote.

The government is reviewing the decision, said Jay Denning, a spokesman for the Treasury Board of Canada. He was not aware of any plans to appeal.

*****

November 30, 2010
Edmonton Sun
Website must improve to accommodate blind; Feds ordered to make changes; judge will oversee online retrofit
Janice Tibbetts

The federal government has been given 15 months to comply with the Charter of Rights by making its websites accessible to visually impaired Canadians who want to tap into the federal job bank, fill in forms and apply for federal programs online.

A Federal Court judge issued the order Monday in a ruling that concluded the government breached Donna Jodhan's equality rights by its "system-wide failure" to provide the same services to the visually impaired as it does to those who can see.

"She has been denied equal access to, and 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," wrote Justice Michael Kelen, who found the government is not living up to its own 2001 accessibility standards.

In a rare move, Kelen said he will oversee implementation of Ottawa's online retrofit and he warned that the court will intervene if the government fails to act.

Jodhan, a computer-savvy accessibility consultant who also tweets and blogs, launched a court challenge after discovering she could not apply for a federal job online nor could she fill out the 2006 census.

"I went to court to catch the government's attention because they were not paying attention to any of us when we said we could not access their websites, we could not apply for jobs, we can't do anything," said Jodhan, a Torontonian who has been blind since birth. "I think it's sad that the
government fought this for four years and a lot of taxpayers' money was wasted."

Kelen, in his ruling, noted that the government has about 146 departments and agencies that provide Internet programs and services. They include Employment Insurance, Canada Pension Plan, online passport applications, guidelines for starting new businesses, travel advisories and a website that permits job applicants to access applications to all federal job postings.

Canada used to be a leader in offering Internet access for the visually impaired, but it has since lagged behind its international counterparts, said Jutta Treviranus, a University of Toronto expert on adaptive technology, who testified at a September court hearing on Jodhan's case.

"Canada has lost that position and seems to be slipping further and further behind," she said Monday.

Treviranus said that it is neither expensive nor complicated to make the Internet accessible to the visually impaired, but that the government lacks the will.

Kelen said in his ruling that international reports on online accessibility give conflicting opinions on how Canada rates on the international scale.

The federal government argued in written court documents that federal services are available in other ways, such as on the telephone, in person and by mail, and that it is unlikely the Internet can be perfectly accessible to all, given there are more than 23 million pages under the domain of gc.ca

Visually impaired individuals access the Internet using assistive technologies, such as "screen readers" that read content aloud, or "Braille output devices" that convert content into Braille, provided the pages have special coding to accommodate the software. Jodhan said her screen reader cannot navigate many web pages.

The ruling noted there are "basic accessibility problems," such as a lack of text descriptions to permit blind users to access video, and a failure to provide alternatives to several technologies, such as "flash," which cannot be decoded by many screen readers.

There are about 800,000 Canadians who are visually impaired, and John Rafferty, president of the Canadian National Institute for the Blind, said the federal government "above all" should be a leader and an example for the rest of the country.

Rafferty said only 30 per cent of visually impaired individuals are employed and that the lack of online services is among the "huge barriers" they face.

Kelen said that Jodhan brought her case to court in the "public interest" and he, therefore, ordered the government to pay $150,000 to cover her legal costs.

The office of Treasury Board president Stockwell Day did not immediately respond to a request for comment, including whether the government will appeal.