26 January 2011

Online Accessibility

The Canadian Government has announced that it will appeal the Federal Court of Canada decision in Jodhan v. Attorney General of Canada 2010 FC 1197, an online disability case.

At issue was whether the national government's internet services are accessible to people with visual impairments and whether inaccessibility infringes the right to equal benefit of government services under section 15 of the Canadian Charter of Rights & Freedoms.

The Court held that the federal government sites in Jodhan's 2007 claim were inaccessible and infringed the right under s. 15(1), an infringement that was not justified under Charter s 1. The Court ordered the government to bring its websites into compliance with the Charter within 15 months and to pay c$150,000 costs.

Jodhan is a blind computer consultant who was unable to create a job profile on the government's employment website or to electronically file her legally required census information without personal assistance. She argued that it is demeaning to be required to rely on assistance to access government information and use government sites. She also argued that being forced to rely on personal assistance to submit her census returns is a violation of her privacy, a similar arguement to claims in Australia regarding voting by blind people in the federal elections. Jodhan argued that the government could use readily available cost-effective technology that would meet its obligations under the Charter.

The government argued that the case was limited to three specific sites identified by Jodhan rather than all sites and suggested that even if its sites are inaccessible Jodhan could not establish discrimination because there were readily available alternative mechanisms for accessing and providing information, eg by phone,in person or mail. The government argued that s. 15 of the Charter does not guarantee visually disadvantaged Canadians a constitutional right to access federal sites and that its then online accessibility standards (the Common Look and Feel Standards 1.0) could not be found to breach s. 15 because they were ameliorative.

The Court disagreed, finding that the government had failed to fully implement its mandated accessibility standards (which constituted reasonable accommodation) and had not earmarked funds to achieve accessibility. There was a requirement under Charter s. 15(1) to take special measures to ensure that the disadvantaged enjoy equal access to government services. The Court was critical of the government’s failure to fully implement its own accessibility standards and the absence of a stated justification under s. 1 regarding that failure to accommodate (eg on the basis that accommodation would have constituted undue hardship).

The government is reported to be appealing on the basis that the judge exceeded his jurisdiction in finding a "system-wide failure" by the government in relation to its sites, indicating that only Jodhan was proved to be directly affected. The Court is also claimed to have "erred in law" by ordering the government to "remedy" the sites of 146 agencies, when only 106 agencies used the now-superseded guidelines that were held to provide inadequate accessibility.

The landmark decision in Australia remains Maguire v SOCOG, a ruling in 2000 by the then Human Rights & Equal Opportunity Commission (HREOC) under the Disability Discrimination Act 1992 (Cth).

Maguire claimed that SOCOG breached the legislation by refusing to format the Sydney Olympic Games site in a way that can be converted to braille or synthesized speech. SOCOG was fined $20,000 after ignoring the HREOC ruling.