2010 FC 1197, 2010 FC 1197

[2011] 2 F.C.R. 355 T-1190-07 2010 FC 1197 Donna Jodhan ( Applicant ) v. Attorney General of Canada ( Respondent ) Indexed as: Jodhan v. Canada (Attorney General) Federal Court, Kelen J.—Toronto, September 21, 22 and 23, 2010; Ottawa, February 9, 2011.

Constitutional Law — Charter of Rights — Equality Rights — Application for declaration that standards implemented by federal government for providing visually impaired Canadians with access to government information, services on Internet, way in which those standards implemented denying applicant equal access to government information, services, thereby violating applicant’s rights under Canadian Charter of Rights and Freedoms, s. 15(1) — Applicant legally blind, complaining of systemic discrimination — Communications Policy of the Government of Canada governing communications, including online, made by federal public administration — Policy making federal institutions subject to Common Look and Feel for the Internet: Standards and Guidelines (CLF 1.0 Standard) — CLF 1.0 Standard requiring that government department Web sites be designed, programmed to ensure that online services be accessible to visually impaired by 2001 — “ePass” used to protect confidentiality of information users providing to government departments over Internet — ePass service not accessible to visually impaired — Government departments, agencies systemically failing to comply with CLF Standard resulting in government Web sites not being fully accessible to visually impaired — Government having obligation to take positive steps to ensure that facially neutral laws also having neutral effects — Applicant, other visually impaired individuals treated differently — Two systemic failures underlying government’s failure to provide online services accessible to visually impaired demonstrated in present case — Applicant, other visually impaired individuals not receiving benefit of government’s online services, information equally with non-visually impaired Canadians — Term “reasonable accommodation” referring to positive steps government must take to ensure substantive equality of disabled individuals — Concept of “reasonable accommodation” examined — In present context, “reasonable” meaning to point of “undue hardship”— CLF Standard constituting government’s attempt at creating “reasonable accommodation” — Standard so under-inclusive as being discriminatory — Alternative channels for visually impaired proposed by respondent not constituting substantively equal treatment — Application allowed.

This was an application for a declaration under

section 18.1 of the Federal Courts Act that the standards implemented by the federal government for providing visually impaired Canadians with access to government information and services on the Internet and the way in which those standards are implemented has denied the applicant equal access to government information and services and thereby violated her rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms . The applicant is legally blind. The owner of a consulting business, she is a sophisticated computer user, familiar with accessing the Internet.

The application is based on the applicant’s inability to access government informational and transactional services online, notwithstanding the government’s accessibility standards for the visually impaired, which have been in effect since 2001. She provided a number of examples of her failed attempts to access federal government services online. Her complaint is one of systemic discrimination. The Communications Policy of the Government of Canada , issued pursuant to

section 7 of the Financial Administration Act , governs communications, including online communications, made by the federal public administration. One of the purposes of the Communications Policy is to ensure that communications by the federal government comply with various statutes and policies. The Communications Policy states that the needs of all Canadians, whose perceptual or physical abilities and language skills are diverse, must be recognized and accommodated.

The Communications Policy makes federal institutions subject to the Common Look and Feel for the Internet: Standards and Guidelines (CLF 1.0 Standard). The CLF 1.0 Standard was developed to ensure that federal government Web sites conform to a common look and feel, designed to ensure that online services be provided in an efficient and accessible manner. It consisted of four mandatory standards and two guidelines and required that government department Web sites be designed and programmed to ensure that online services be accessible to the visually impaired by 2001.

An updated standard of the CLF 1.0 Standard was adopted in 2007 (CLF 2.0 Standard). The security of some of the government’s online interactive services is protected through a group of services called the “Secure Channel”. One of this channel’s services is “ePass”, which is used to protect the confidentiality of information that users provide to government departments over the Internet. The ePass is used to deliver many programs of various government departments. Reports show that the ePass service is not accessible to the visually impaired.

The main issue was whether the federal government breached the applicant’s right to equal treatment under subsection 15(1) of the Charter either by creating inadequate Internet accessibility standards or by failing to enforce and implement existing standards. Held , the application should be allowed. The CLF Standard is inadequate because the government’s interactive applications, in particular those using ePass, are not accessible. The evidence was that the mere existence of ePass violates the CLF Standard.

The government should update the CLF Standard to refer to the Web Content Accessibililty Guidelines (WCAG) 2.0 , international guidelines upon which the CLF Standard was built, and thereby incorporate the Guidelines which would allow the use of ePass as a secure channel. On the balance of probabilities, there is a system- wide failure by government departments and agencies to comply with the CLF Standard with the result that these Web sites are not fully accessible to the visually impaired.

If the applicant and the visually impaired must rely upon sighted assistance, they lose their independence, dignity and ability to access accurate and timely information on an equal basis with a sighted person. While the CLF Standard requires that “best efforts” be made to make the content accessible, there was a lack of evidence from the respondent as to the “efforts” which the government was making. The deputy ministers seem to be ignoring their responsibility of implementing and

complying with the CLF Standard to make their respective online services accessible to the blind. The purpose of subsection 15(1) of the Charter , under which the claim was brought, was to ensure “substantive equality” or “an equality of benefit and protection” for people with different characteristics. The law should not have a less beneficial impact on the blind than on sighted persons. In determining the subsection 15(1) claim, the two-part test was applied. The law or practice that the applicant alleged being discriminatory and the appropriate comparator group were identified.

Afterwards, a determination was made on whether the law or practice was discriminatory by creating a distinction based upon an enumerated or analogous ground, and in so doing, creating a disadvantage by perpetuating prejudice or stereotyping. Since a “law” within the meaning of

section 15 will include a government policy or activity, the government has an obligation to take positive steps to ensure that facially neutral laws also have neutral effects. The CLF Standard guarantees universal accessibility which ensures equitable access to all content on Government of Canada Web sites. The appropriate comparator group was sighted individuals who access government services online. The Communications Policy and the CLF Standard are facially neutral regarding their Web site accessibility standards.

The applicant and other visually impaired individuals were treated differently as a result of their physical disability, namely, visual impairment. Two systemic failures that underlie the government’s failure to provide online services in a manner that is accessible to the visually impaired were demonstrated in this case.

Substantive equality, as guaranteed by subsection 15(1) of the Charter , often requires specifically distinguishing disabled from non- disabled individuals. “Reasonable accommodation”, a term used in relevant case law, 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 subsection 15(1) of the Charter.

The evidence demonstrated 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. This distinction creates a disadvantage for the blind, which undermines their dignity. The idea of “reasonable accommodation” encompasses two elements: the first is the demand that

section 15 makes for “positive steps to ensure that disadvantaged groups benefit equally from services offered to the general public”; the second 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”. In a

section 15 inquiry, the first step must be to determine what reasonable accommodations would be necessary to ensure substantive equality. The respondent did not plead any justification defence under

section 1 of the Charter. The CLF Standard is the government’s attempt at creating a “reasonable accommodation”. If properly implemented, this Standard would so ameliorate the position of the blind. Failure to implement or enforce the CLF Standard has the same effect as failure to have accessibility standards at all. In this way, the CLF Standard is so under-inclusive as to be discriminatory.

With respect to “reasonable accommodation”, the respondent’s sole submission was that the visually impaired can obtain the same information available online to the sighted public by alternative channels, namely in person, by telephone and by mail. However, these alternatives did not constitute substantively equal treatment. For a blind person to rely on telephoning a government number is not substantive equality with a sighted person who can obtain the same information and services online. The alternative channels proposed by the respondent were so under-inclusive as to be discriminatory.

The government did not provide any evidence that any failures to provide services online were justifiable under

section 1 as reasonable limits prescribed by law. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 15, 24(1). Federal Courts Act , R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8 , s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27 ). Federal Courts Rules , SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 400 (as am. by SOR/2002-417, s. 25(F); 2010-176, s. 11). Financial Administration Act , R.S.C., 1985, c. F-11, s. 7 (as am. by S.C. 1991, c. 24, s. 49(E); 2003, c. 22, s. 224( z .37)(E)). Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31. Privacy Act , R.S.C., 1985, c. P-21.

CASES CITED applied: Eldridge v. British Columbia (Attorney General) , 1997 CanLII 327 (SCC) , [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577, [1998] 1 W.W.R. 50; R. v. Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 484, 294 D.L.R. (4th) 1, [2008] 8 W.W.R. 1; Andrews v. Law Society of British Columbia , 1989 CanLII 2 (SCC) , [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1, [1989] 2 W.W.R. 289; Law v. Canada (Minister of Employment and Immigration) , 1999 CanLII 675 (SCC) , [1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1, 43 C.C.E.L. (2d) 49; Eaton v.

Brant County Board of Education , 1997 CanLII 366 (SCC) , [1997] 1 S.C.R. 241, (1997), 142 D.L.R. (4th) 385, 41 C.R.R. (2d) 240; Council of Canadians with Disabilities v. VIA Rail Canada Inc. , 2007 SCC 15 , [2007] 1 S.C.R. 650, 279 D.L.R. (4th) 1, 59 Admin. L.R. (4th) 1. considered: Canadian Assn. of the Deaf v. Canada , 2006 FC 971 , [2007] 2 F.C.R. 323, 272 D.L.R. (4th) 55, 143 C.R.R. (2d) 61; British Columbia (Minister of Forests) v. Okanagan Indian Band , 2003 SCC 71 , [2003] 3 S.C.R. 371, 233 D.L.R. (4th) 577, [2004] 2 W.W.R. 252; Canadian National Railway Co. v.

Canada (Canadian Human Rights Commission) , 1987 CanLII 109 (SCC) , [1987] 1 S.C.R. 1114, (1987), 40 D.L.R. (4th) 193, 27 Admin. L.R. 172.

AUTHORS CITED Alliance for Equality of Blind Canadians. Common Look and Feel Report , February 2005. Authoring Tool Accessibility Guidelines 1.0 , online: < http://www.w3.org/TR/WAI-AUTOOLS/atag10.pdf >. Authoring Tool Accessibility Guidelines (ATAG) 2.0 , online: < http://www.w3.org/TR/ATAG20/ >. Canada. Report of the Commission of Inquiry on Equality in Employment. Report of the Commission on Equality in Employment . Ottawa: Supply and Services Canada, 1984 (Commissioner: Rosalie Silberman Abella). Canadian Human Rights Commission.

No Alternative: A Review of the Government of Canada’s Provision of Alernative Text Formats for People Who Are Blind, Deaf-Blind or Visually Impaired , October 2006, online: < http://www.chrc- ccdp.ca/pdf/NoAlternative_en.pdf >. Coopérative AccessibilitéWeb. Are Quebec Web sites accessible? , online: < http://triennale-2007.accessibiliteweb.com/en/index.php >. European Commission. MeAC — Measuring Progress of eAccessibility in Europe: Assessment of the Status of eAccessibility in Europe , online: < http://www.eacessibility-progress.eu/wp-content/uploads/2008/04/meac_report_06_11_final.pdf >.

Treasury Board of Canada Secretariat. Common Look and Feel for the Internet 1.0: Standards and Guidelines , online: < http://www.collectionscanada.gc.ca/webarchives/20060117055157/http://tbs-sct.gc.ca/clf-nsi/inter/inter-01-00_e.asp >. Treasury Board of Canada Secretariat. Common Look and Feel for the Internet 2.0: Standards and Guidelines , online: < http://www.tbs- sct.gc.ca/clf2-nsi2/index-eng.asp >. Treasury Board of Canada Secretariat. Common Look and Feel Standards for the Internet ,

Part 2 : Standard on the Accessibility, Interoperability and Usability of Web Sites, online: < http://www.tbs-sct.gc.ca/clf2-nsi2/clfs-nnsi/clfs-nnsi-2-eng.asp >. Treasury Board of Canada Secretariat. Communications Policy of the Government of Canada , online: < http://www.tbs-sct.gc.ca/pol/doc- eng.aspx?id=12316&section=text >. United Nations Global Audit of Web Accessibility , online: < http://www.un.org/esa/socdev/enable/documents/fnomensarep.pdf >. Web Content Accessibility Guidelines 1.0 , online: < http://www.w3.org/TR/WAI-WEBCONTENT/wai-pageauth.pdf >.

Web Content Accessibility Guidelines (WCAG) 2.0 , online: < http://www.w3.org/TR/2008/REC-WCAG2020081211/ >. APPLICATION for a declaration under

section 18.1 of the Federal Courts Act that the standards implemented by the federal government for providing visually impaired Canadians with access to government information and services on the Internet and the way in which those standards are implemented has denied the applicant equal access to government information and services and thereby violated her rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms . Application allowed. APPEARANCES J. David Baker and Meryl Zisman Gary for applicant. E. Gail Sinclair , Christine E. Mohr and Michelle Ratpan for respondent.

SOLICITORS OF RECORD Bakerlaw , Toronto, for applicant. Deputy Attorney General of Canada for respondent. The following are the amended reasons for judgment and judgment rendered in English by [ 1 ] Kelen J.: This is an application for a declaration under

section 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27 ] of the Federal Courts Act , R.S.C., 1985, c. F-7 [ s. 1 (as am. idem , s. 14 )] that the standards implemented by the federal government for providing visually impaired Canadians with access to government information and services on the Internet, and the way in which those standards are implemented, has denied the applicant equal access to government information and services, and thereby violated her rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter). TABLE OF CONTENTS Paragraph The Parties ......................................................................................................... .... 2 Background Facts ............................................................................................. .... 5 The Evidence—Five Types ............................................................................. .. 25 Issue..................................................................................................................... .. 75

Relevent Legislation ......................................................................................... .. 76 Analysis .............................................................................................................. .. 80 Preliminary Legal Matters .......................................................................... .. 80 Assessment of the Evidence .................................................................... .. 88 Applying the Law ........................................................................................ 132 Conclusion ......................................................................................................... 179 Legal Costs ........................................................................................................ 180 Judgment ………………………………………………………………...

Page 429 THE PARTIES [ 2 ] The applicant, Donna Jodhan, is a Canadian citizen, resident in Toronto, Ontario. She is legally blind. She graduated from McGill University in 1981 with a Master of Business Administration and a Diploma in Management. She is the owner of “Sterling Creations”, a consulting business which provides analyses and recommendations to clients regarding the accessibility of their products or services to special needs users.

Her qualifications and profession support the applicant’s characterization of herself as a sophisticated computer user, familiar with accessing the Internet. [ 3 ] The respondent, the Attorney General of Canada, is named as a representative of the departments and agencies of the Government of Canada. [ 4 ] This application is based on the applicant’s inability to access government informational and transactional services online, notwithstanding the government’s accessibility standards for the visually impaired which have been in effect since 2001.

Before this Court, the applicant provided five examples of her failed attempts to access federal government services online, which she claims are due to the failure of the federal government Web sites to meet accessible design standards. The applicant submits that these examples are representative of systemic failures of the government to implement the accessibility standards for the visually impaired. Accordingly, the applicant seeks a systemic remedy.

BACKGROUND FACTS The government’s presence on the Internet—“the government online” [ 5 ] The government has approximately 106 departments and agencies that provide a range of services and programs to Canadians. The parties agree that since the late 1990s one focus of the government has been to use the Internet to enhance the delivery of information and services to Canadians.

For example, under a program that ran from 1999 to 2006, 34 government departments worked together to provide the 130 most commonly used federal government services to Canadians on the Internet, i.e. “online”. [ 6 ] The government has two types of online services—informational and interactive.

These include a single Web site from which applicants can access online applications to all federal government job postings; online applications for social services, such as Employment Insurance and Canada Pension Plan benefits; online passport applications; and online guides and tools for accomplishing such diverse activities as starting a new business, and finding travel advisories and recommendations for travel abroad. [ 7 ] The security of some of the interactive services is protected through a group of services called the “Secure Channel”.

One of the Secure Channel security services is “ePass”, which is a service used to protect the confidentiality of information that users provide to government departments over the Internet. These services were described by the respondent’s witness, Ken Cochrane, who has been Chief Information Officer of the Treasury Board since 2006, and responsible for overseeing Information Technology and Information Management projects at government agencies. Mr. Cochrane describes the ePass service as the required technology for all government departments where personal information is to be inputted by Web site users.

Examples of such Web sites include those that allow users to access and update information on Employment Insurance and to apply for passports online. The uncontested evidence is that in 2008 the ePass program was used by 23 government departments to deliver a total of 83 programs. The government’s communication policy and accessibility policy [ 8 ] The Communications Policy of the Government of Canada [Communications Policy], a policy issued by the Treasury Board pursuant to

section 7 [as am. by S.C. 1991, c. 24, s. 49(E); 2003, c. 22, s. 224( z .37)(E)] of the Financial Administration Act , R.S.C., 1985, c. F-11, governs communications, including online communications, made by the federal public administration. One of the purposes of the Communications Policy is to ensure that communications by the federal government comply with various statutes and policies, for example, the Charter , Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, and the Privacy Act , R.S.C., 1985, c.

P-21. [ 9 ] One of the policies to which the Communications Policy makes federal institutions subject is the Common Look and Feel for the Internet: Standards and Guidelines [CLF Standard], which were first issued in May 2000 (the CLF 1.0 Standard), with 2001 as the required implementation date. The CLF 1.0 Standard was developed to ensure that federal government Web sites conform to a common look and feel, designed to ensure that online services be provided in an efficient and accessible manner. The CLF 1.0 Standard consisted of four mandatory standards and two guidelines.

The four standards included instructions on developing Web sites that would be accessible to, inter alia , visually impaired individuals by 2001. [ 10 ] An updated standard came into effect on January 1, 2007, with an implementation deadline of December 31, 2008 for all federal institutions. The updated standard consists of four parts. The Internet accessibility standards of the updated standard are contained in

Part

2, “Standard on the Accessibility, Interoperability and Usability of Web Sites” (the CLF 2.0 Standard). The parties agree that the Internet accessibility standards are essentially the same between the CLF 1.0 Standard, which came into effect in 2001, and the CLF 2.0 Standard. [ 11 ] The Communications Policy recognizes the importance of providing information to Canadians via a variety of channels. Under the heading “Policy Statement”, the Communications Policy states: It is the policy of the Government of Canada to: … 4.

Employ a variety of ways and means to communicate, and provide information in multiple formats to accommodate diverse needs. Government information must be broadly accessible throughout society. The needs of all Canadians, whose perceptual or physical abilities and language skills are diverse, must be recognized and accommodated. Information must be accessible so citizens, as responsible members of a democratic community, may be aware of, understand, respond to and influence the development and implementation of policies, programs, services and initiatives.

Information must be available in multiple formats to ensure equal access. All means of communication – from traditional methods to new technologies – must be used to reach and communicate with Canadians wherever they may reside. Modern government requires the capacity to respond effectively over multiple channels in a 24-hour, global communications environment.

The Communications Policy enumerates “service centres”, the telephone, mail, print and broadcast media and the Internet as examples of the multiple channels for service delivery that government organizations should consider in providing services to the public. [ 12 ] In this regard, Requirement 3 of

Part 2 of the CLF 2.0 Standard, titled “Accessible alternate format of documents on Web sites”, similarly recognizes the importance of utilizing multiple channels for service delivery to the blind: Where best efforts cannot make the content or application accessible – that is, where a document cannot be represented in XHTML 1.0 Strict or a language described by World Wide Web Consortium (W3C) Recommendations – the institution must: • include an Accessibility Notice on the same page, immediately preceding the inaccessible element(s), that informs site visitors how to obtain accessible versions including print, Braille, and audio; and • include an Accessibility Notice on the “Help” page(

s) of the Web site. Providing accessible versions other than accessible XHTML is a “last resort” measure. It is not intended to be a convenient method of avoiding the often-minimal effort necessary to make Web pages or Web applications accessible. How visually impaired Canadians access the Internet—“How the blind read the Internet” [ 13 ] According to the applicant’s witness John Rae, in 2001, Statistics Canada identified 610 950 Canadians as blind or visually impaired. Visually impaired and blind individuals can independently access Internet content online using specific assistive technologies.

These include “screen readers,” which are software devices that “read” Web site content aloud to the user, and “Braille output devices”, which are devices that convert Web site content into Braille for the user to “read” tactilely. Screen readers are long-established software programs to make computers accessible to blind and visually impaired users .

The federal government’s accessibility standards—“Making online government accessible to the blind” [ 14 ] As stated above, the Internet accessibility standards established by the federal government are set out in the CLF 1.0 Standard, which was to be implemented by 2001.

The CLF Standard is built upon international guidelines, called the Web Content Accessibility Guidelines 1.0 (WCAG 1.0) produced in 1999 by the World Wide Web Consortium [W3C], an international organization devoted to developing technical standards for the Internet. [ 15 ] The WCAG 1.0 provides detailed instructions to developers of Internet content, such as Web site designers, regarding how to help make Internet content accessible to people with disabilities, including the visually impaired.

These instructions are created in the form of “checkpoints” that developers can reference to ensure that their Web sites conform to the WCAG 1.0. The checkpoints are prioritized into three categories. [ 16 ] The first category, Priority 1 checkpoints, is described as a basic requirement, necessary to ensure that no group finds it impossible to access the Web site content. Ms. Waddell, the respondent’s expert witness, described Priority 1 checkpoints as follows, at paragraph 62 of her affidavit. Ms.

Waddell is a United States-based expert on Web site accessibility, and is Executive Director of the International Center for Disability Resources on the Internet and the author of books and publications on Internet accessibility. Although the applicant suggested that she may lack expertise in certain areas of Web accessibility, the Court accepts her qualifications as an expert with regard to all of the issues to which she testified. Her evidence is referred to below. Priority 1 Checkpoints consist of 16 technical rules that must be met by the web developer.

Otherwise, one or more groups of persons with disabilities will not be able to access content on the web. These checkpoints are a basic requirement for some groups to access web content. An example of a Priority 1 checkpoint is that all images displayed on Web sites should have “text equivalent[s]” that convey the same function or purpose as the image itself. Thus, an image on the screen that a sighted user would know to click in order to follow a link to another Web site should not only describe the picture in its text equivalent, but should explain that the picture will link the user to another Web site.

This is because properly rendered text can be accessed by almost all assistive technologies like screen readers, and therefore can be made accessible to most users, while images are often inaccessible to assistive technologies. The WCAG 1.0 also specifies the way in which developers should code the text in order to ensure that it will be accessible by assistive technologies.

[ 17 ] The second category, Priority 2 checkpoints, is described as checkpoints that a developer of Web site content “should” implement, in order to ensure that no group will “find it difficult” to access the Web site. In paragraph 62 of her affidavit, the respondent’s expert Ms. Waddell described Priority 2 checkpoints as follows: Priority 2 Checkpoints consist of 30 technical rules that should be met by the web developer. Otherwise, one or more groups will find it difficult to access content on the web. Satisfying Priority 2 Checkpoints removes significant barriers to accessing Web content.

An example of a Priority 2 checkpoint is that developers should refrain from using the style of a “header” to create text effects (for example, to create bold text). [ 18 ] The final category, Priority 3 checkpoints, are checkpoints that a developer of Web site content “may” implement, in order to prevent some groups from finding it “somewhat difficult” to access Web site content. [ 19 ] The CLF 1.0 Standard requires that government Web site developers design and implement all of the Priority 1 and Priority 2 checkpoints of the WCAG 1.0.

The CLF Standard allows individual institutions to apply for exemptions if required. [ 20 ] The WCAG 1.0 was replaced as a recommendation by the World Wide Web Consortium when it issued updated Web Content Accessibility Guidelines (WCAG) 2.0 (WCAG 2.0) in December 2008. The CLF 2.0 Standard does not reference WCAG 2.0 (which was only finalized after the CLF 2.0 Standard was issued).

Enforcement standards [ 21 ] The CLF 2.0 Standard explicitly requires the “deputy head”—which it defines in its Glossary as “equivalent to ‘deputy minister’, ‘chief executive officer’ or some other title denoting this level of responsibility”—of each institution to be responsible for implementing the standards in their institutions. Deputy heads are also required to monitor their departments’ continued compliance with the CLF Standard.

Although the CLF 1.0 Standard did not explicitly set out these responsibilities, neither party suggested that they represent a change in role. [ 22 ] According to the CLF 2.0 Standard, the Treasury Board has an oversight and implementation role with regard to the CLF Standard: The Treasury Board Secretariat will monitor compliance with all aspects of this standard in a variety of ways, including but not limited to assessments under the Management Accountability Framework, examinations of Treasury Board Submissions, Departmental Performance Reports and results of audits, evaluations and studies. [ 23 ] The Treasury Board accomplishes this oversight role through the Treasury Board Secretariat and a Common Look and Feel Office (CLF Office).

The CLF Office was established in early 2000. It develops the Common Look and Feel policy instruments, and supports federal institutions in implementing the CLF Standard by providing them with a toolkit, templates and guides. The CLF Office also works with departments to develop the departments’ understanding and capacity to implement the CLF Standard, by creating consultation forums such as “Centres of Expertise”, which are groups of experts within each department who are identified by the CLF Office to help developers within their respective institutions implement the CLF Standard.

There are 93 CLF Centers of Expertise set up in different departments and agencies. The CLF Office does not conduct ongoing monitoring of departmental Web sites to ensure compliance with the CLF Standard. [ 24 ] In practice, this means that the government relies upon deputy heads to develop appropriate policies to ensure that the CLF Standard is being implemented and enforced, and to communicate that compliance to the Treasury Board Secretariat. THE EVIDENCE—FIVE TYPES [ 25 ] The evidence provided by the parties can be categorized into five types.

First, the parties submitted international reports on the performance of Canadian government Web sites in terms of their accessibility to the visually impaired and their overall service delivery. Second, the parties submitted Canadian reports of both internal and external reviews of government Web sites with respect to their accessibility to the visually impaired. Third, the parties provided reports on the accessibility of the ePass security service to the visually impaired.

Fourth, the applicant submitted her own witness evidence of specific barriers to access encountered by herself and other visually impaired individuals when accessing government websites. Fifth, the respondent provided the evidence of its own witnesses regarding the accessibility of government Web sites to the visually impaired. First type of evidence: International reports surveying the accessibility of Internet Web sites around the world [ 26 ] The parties introduced two international reports that evaluate Web sites with respect to their accessibility to persons with disabilities.

The United Nations report concluded that leading Web sites around the world do not comply with international accessibility standards for the visually impaired. The European Commission report concluded that ePass accessibility for the visually impaired across all countries is “very low”. It also concluded that Canada was ranked on a par with the United States and with nine EU [European Union] countries in which it was found that only between one and twenty-five percent of governmental Web sites achieved “basic” levels of accessibility.

Moreover, Canada’s European G8 partners were consistently ranked ahead of Canada in this report. The details of these reports are as follows: (

i) The United Nations Global Audit of Web Accessibility (Nomensa: Bristol, England, 2006), performed for the U.N. by Nomensa in November of 2006. This audit investigated the accessibility of one site from each of five sectors in 20 countries, with the aim of obtaining an indication of the status of Web site accessibility across different sectors around the world. In Canada, the Web site audited as a representation of the “government” sector was the Web site of the Prime Minister’s Office, a site not subject to the CLF Standard.

While this audit did not look at any Canadian government Web sites subject to the CLF Standard, its overall conclusion was that leading Web sites around the world do not comply with international standards for accessibility ; and

(ii) A report commissioned by the European Commission, MeAC – Measuring Progress of eAccessibility in Europe: Assessment of the Status of eAccessibility in Europe , dated October 2007, which looked at 6 public sector and 6 private sector Web sites in each of the EU member states, Australia, the U.S. and Canada.

In evaluating the public sector sites, this report provided an evaluation of policy strength, determined by both the adequacy of the accessibility standards themselves and the mechanisms each country used for implementation of the standards, in addition to an assessment of the status of public Web site accessibility in each state. The basic finding of this report echoes the others by concluding that “levels of eAccessibility achieved across all countries included in the investigation are very low” [emphasis added].

In terms of its specific rankings, Canada’s policies were ranked as “strong,” putting it behind 4 EU countries with “very strong” policies, but approximately on par with the U.S., Australia and 12 other EU-25 countries, and ahead of 9 EU-25 countries with lower rankings. In terms of the actual accessible status of Canadian government Web sites, Canada was ranked roughly on par with the U.S. and with 9 EU-25 countries, in which it was found that between 1 and 25 percent of governmental Web sites achieved “basic” levels of accessibility—meaning compliance with Priority 1 WCAG 1.0 checkpoints.

In contrast, in 4 EU-25 countries 25 to 50 percent of government Web sites achieved “basic” levels of accessibility, while in 2 EU-25 countries over 50 percent of government Web sites achieved that level of accessibility. While it is therefore clear that no country can boast accessible Web sites, it is also clear that Canada, which purports to be a leader in the provision of government services online, is not a leader in ensuring the accessibility of its government Web sites.

Indeed, Canada’s European G8 partners were consistently ranked ahead of it in this report. [ 27 ] The other international reports submitted by the parties dealt with global e-government readiness, which concluded that, as the respondent has submitted, Canada is a world leader in providing its government services online. However, these reports do not speak to their accessibility to the blind.

Second type of evidence: Canadian reports regarding compliance of government Web sites with accessibility standards [ 28 ] The parties provided a number of reports demonstrating that federal government Web sites significantly fail to meet the CLF Standard for accessibility: (

i) An internal audit conducted by the CLF Office in 2007 and early 2008 of 14 Web pages from the Web sites of 47 federal government departments , designed to help the departments understand their obligations leading up to the December 31, 2008 implementation deadline for the new CLF Standard, the CLF 2.0 Standard . All of the departments failed Priority 1 and Priority 2 checkpoints of the WCAG 1.0. The CLF Office followed-up with the 22 departments that it determined suffered from “serious” violations of the CLF Web accessibility provisions by writing to their respective deputy heads.

No responses from the deputy heads or other follow-up information was presented to the Court. (ii) An external audit conducted in 2007 by Coopérative AccessibilitéWeb, a non-governmental organization based in Montréal, Quebec, entitled Are Quebec Web sites accessible? The audit consisted of an evaluation of three representative Web pages on each of the 200 Web sites most popular among French Canadians.

Of these Web sites, the Canadians government Web sites were ranked highly, but none of the Web sites were completely accessible. (iii) An external report commissioned by the Alliance for Equality of Blind Canadians, Common Look and Feel Report , in 2005. The author of the Report, an employee of the Alliance, evaluated the main Common Look and Feel Web site for compliance with the CLF Standard, and found a number of failures of Priority 1 and Priority 2 checkpoints of the WCAG 1.0 .

In addition, the author conducted cursory checks of a select few major government Web sites, including the welcome pages of the Government of Canada and Industry Canada. The author concluded: While this report was aimed at evaluating the CLF site, it was the Random Site Checks that were the most worrisome. Even though the deadline set out above is almost 3 years old, there were sites that didn’t pass Priority 1, had no Accessibility features and used coding that rendered links invisible to text only browsers and I only scratched the surface.

Without more research into other sites, it’s difficult to tell if this is just an anomaly or another consistency. Third type of evidence: Reports regarding the accessibility of ePass [ 29 ] The parties submitted reports that evaluated the accessibility of the government’s ePass security channel. These reports show that the ePass service is not accessible to the visually impaired. This means that important interactive services are not accessible online to the applicant and the blind. The reports are as follows: (

i) An audit jointly conducted by Environment Canada and Service Canada in April 2008 entitled Comprehensive Accessibility Evaluation of ePass R7.8.

The audit found that ePass failed 6 of the Priority 1 and 23 Priority 2 checkpoints of the WCAG 1.0, and among other conclusions stated: “citizens with vision related disabilities WILL require assistance during initial sign up”. (ii) A second ePass audit, CLF 2.0 Assessment of ePass R7.8, conducted by the CLF Office in April 2008, identified a total of 254 places where ePass failed to comply with accessibility requirements of the CLF Standard. (iii) A 2008 report on ePass conducted by Team Bell Canada Enterprise, the developers of ePass, found 17 violations of Priority 1 and Priority 2 checkpoints of the WCAG 1.0. (iv) A follow-up report from the CLF Office done in response to the findings made in the Team Bell Canada Enterprise report.

Fourth type of evidence: The applicant’s evidence regarding barriers to access on government Web sites [ 30 ] First, the applicant’s own affidavit details specific problems that she encountered while accessing federal government services online. In particular, the applicant provides five examples of instances in which she encountered accessibility barriers online. In each case, the applicant also provides evidence regarding the alternative options available to her when online access was precluded. First example: Searching for jobs online at jobs-emplois.gc.ca

[ 31 ] The applicant testified that in September 2004 and again between March and June 2007, she visited the jobs-emplois.gc.ca Web site maintained by the Public Service Commission of Canada on behalf of the Public Service Resourcing System. As the respondent’s witness Diane Beauchamp explained, the jobs-emplois.gc.ca Web site is the only official site for all externally advertised federal government positions. Interested applicants may apply directly through the Web site for jobs that interest them.

Users can also create a Public Service Resourcing System profile online, which allows them to automatically search for all jobs that match their profiles. [ 32 ] The applicant provided a list of difficulties that she encountered in browsing for jobs online. One difficulty that the applicant mentions is that she was unable to access the “Job Bank” and “Job Match” links on the Web site. Ms. Beauchamp explained that the Job Bank and Job Match sites are external sites maintained by a different government department.

From the evidence of the respondent’s witness Nancy Timbrell-Muckle, it appears that the Job Bank and Job Match services are provided by the Service Offerings and Implementation Directorate of the Citizen Service Branch of Service Canada at jobbank.gc.ca. Ms. Timbrell-Muckle agreed that “[d]espite efforts, the Job Search, Job Alert, and Job Match systems were not compliant with

Part 1 of the CLF in June of 2007”. Ms. Timbrell-Muckle further testified that the Job Match and Job Alert services would not be compliant with the CLF 2.0 Standard by the December 31, 2008 implementation deadline. Second example: Creating an online profile at jobs-emplois.gc.ca [ 33 ] The applicant testified that in addition to encountering difficulties in browsing the jobs posted at the jobs-emplois.gc.ca Web site, she was unable to complete an online profile at the Web site without sighted assistance.

She testified that the barrier that she encountered occurred when trying to enter the correct date in the “date available” field. In response, Ms. Beauchamp explained that such a problem would be encountered if a user entered the numbers in the wrong format, and therefore suggested that the problem was not with the design of the Web site. Ms. Beauchamp stated that during the relevant time period, 236 users who self-identified as visually impaired created profiles online. We do not know, however, whether these profiles were created with sighted assistance. [ 34 ] Ms.

Beauchamp did, however, recognize the applicant’s complaint that with the “date available” field in an error state, the applicant had to repeatedly uncheck the “no pop-up windows” option in order to prevent pop-up windows—which blind users cannot navigate—from arising. Ms. Beauchamp stated that this is a “bug” that remains on the site and is to be fixed in the future. This problem, however, while as the applicant stated, “time consuming and inconvenient”, is not a barrier to access. [ 35 ] The applicant further testified that she was not able to get help with completing the online profile on her own.

Instead, she was provided with a telephone number that was not “in service”. [ 36 ] The applicant was, however, able to complete a jobs profile and apply for jobs with the help of a sighted federal government employee. Mr. Clifford Scott of the Public Service Commission completed the applicant’s online Public Service Resourcing Commission profile and helped her to apply for jobs in which she was interested.

Third example: Accessing Statistics Canada statistics online [ 37 ] The applicant testified that in June 2007 she attempted to access information on the consumer price index and unemployment rate from the Statistics Canada Web site. She stated that actual statistics were, however, only available in “pdf” format, which is not accessible to screen-reader technology. [ 38 ] The applicant testified that when she called the information number provided on the Web site to access the statistics in an alternative form, she was told that they were unavailable.

Fourth example: Completing Census 2006 online [ 39 ] The applicant stated that she was unable to complete online the 2006 Census conducted by Statistics Canada. Instead, she completed the census over the telephone with the help of a sighted employee. The respondent’s witness, Anil Arora, testified, however, to the extensive efforts undertaken by Statistics Canada to ensure that the 2006 Census was as accessible as technologically possible.

These efforts included a March 2004 report that Statistics Canada commissioned into the compliance of the online census with the CLF Standard, and a study commissioned in November 2004 from IBM regarding the accessibility of the online census to visually impaired users. These reports made recommendations regarding how accessibility could be improved, and Mr. Arora explained that “all of the improvements related to accessibility were completed, while most of the improvements to usability that were low risk, low cost and provided a high return on investment were completed”.

Moreover, the respondent’s evidence is that 84 householders completed the online form using screen-reading technologies. [ 40 ] The applicant has countered that none of the testing was conducted with technologies other than JAWS, which is a technology that is prohibitively expensive to many visually impaired Canadians, and to which the applicant did not have access at the time that she attempted to complete her own census form.

We do not know what screen-reader technologies were used by the 84 householders who apparently completed the census using screen readers, nor whether those users were visually impaired rather than using the screen reader to assist due to some other disability, for example, a learning disability.

Fifth example: Accessing the Service Canada portal [ 41 ] Finally, the applicant asserted that she had difficulty accessing the Service Canada main Web page, which she visited in order to access information concerning the Canada Pension Plan and employment programs: Also in early June 2007, I tried to access www.servicecanada.gc.ca. It was very difficult for me to load this website and I had to try several times. When I attempted to navigate links on the home page I had to press the tab button several times in order to hear the name of each link. I had to try a few times before gaining access to this website.

My browser was unable to read the English version; it stuttered to deal with the content. Also, I had difficulty accessing links in a timely fashion. I was never sure if I would hear the name of the next link that I was attempting to access or what was happening on the screen

[ 42 ] The applicant further testified that when she called the Service Canada office seeking information in an alternative format she was told to fax her request to the relevant department. Effect on applicant [ 43 ] The applicant’s affidavit explains the negative effects that impeded access to government services online produces in her life. In particular, the applicant must rely upon sighted assistance to complete tasks that she would otherwise be able to complete independently and on her own time, and it means that she must rely on government employees to provide accurate and timely alternative formats.

To emphasize the barriers created by forced reliance upon alternative formats, the applicant provided a Canadian Human Rights Commission 2006 report that concludes that “people who are print-disabled have less than a 50/50 chance of obtaining the desired publication within a reasonable time… . Moreover, the quality of these alternative publications is often unsatisfactory”: Canadian Human Rights Commission, No Alternative: A Review of the Government of Canada’s Provision of Alternative Text Formats for People Who Are Blind, Deaf-Blind, or Visually Impaired , at page 18.

Evidence of John Rae [ 44 ] In support of her contention that other visually impaired Canadians have faced similar barriers to accessing federal government services online, the applicant provided the evidence of John Rae, who at the time of swearing his affidavit was first vice-president of the Alliance for Equality of Blind Canadians. In addition to the report by the Alliance setting out the failures of government Web sites to be accessible to the blind, which is referred to above, Mr. Rae attested to his organization’s efforts to improve accessibility to government services online.

Evidence of Jutta Treviranus [ 45 ] The applicant also provided the affidavit of an expert witness, Jutta Treviranus. Ms. Treviranus is the founder and director of the Adaptive Technology Resource Centre at the University of Toronto, and is a senior research associate with the Faculty of Information Studies at the University of Toronto; Status Faculty at the Faculty of Medicine, Department of Occupational Therapy, at the University of Toronto; and adjunct professor of the Knowledge, Media and Design Institute at the University of Toronto.

Her qualifications as an expert on Web accessibility are clear, and include a close involvement in the development of the international WCAG 1.0 and WCAG 2.0, chairing the Web Access Initiative, Authoring Tools Group of the World Wide Web Consortium, and numerous publications. [ 46 ] Ms. Treviranus’ affidavit provided background into Web accessibility standards in general, and an assessment of the CLF Standard and the way in which it is implemented and enforced. Ms. Treviranus described the development of international standards for Web accessibility at the World Wide Web Consortium. In this regard, Ms.

Treviranus drew the Court’s attention to additional standards that could provide guidance on creating accessible Web sites with new technologies. These include the Authoring Tool Accessibility Guidelines 1.0 and a draft of an updated Authoring Tool Accessibility Guidelines (ATAG) 2.0 , which describe tools that can be used by Web site developers to help them ensure that they are building accessible Web sites at the design stage. Ms. Treviranus stressed that initially creating accessible Web sites is much easier than trying to fix accessibility problems once Web sites are already designed.

She noted that costs of monitoring and enforcement are also lower in such an environment. [ 47 ] Ms. Treviranus also stated that there are problems with the CLF Standard itself and, more importantly, with the implementation of the standards it sets. Ms. Treviranus pointed to the minutes of meetings of the Access Working Group, one of the interdepartmental working groups consulted by the CLF Office in updating the CLF Standard, where issues of non-compliance and general problems were discussed. In particular, Ms.

Treviranus stated that there is a general attitude among federal government Web site developers that results in accessibility issues being “frequently ignored, relegated to the end of the development process, or seen as a constraint on creative or innovative design”. [ 48 ] Finally, Ms. Treviranus summarized the “basic accessibility problems” that she says are frequently encountered by visually impaired individuals when they use federal government services online. These problems include: (

i) images or other multi-media elements (such as video) that do not have alternative-text descriptions to allow blind users to know what information is conveyed by the element; (ii) misleading use of structural elements on pages (for instance, using heading text to create bold text that is not in fact a heading); (iii) lack of alternative information for users who cannot access the technology used by the Web site (for example, “flash” is a technology that cannot be read by many screen readers.

If a Web site uses “flash” technology, the user will not be able to access that content); and (iv) tables that are created in a way that makes their content non-sensical to screen readers (so that the tables are “read” horizontally even though their content is organized vertically within table columns). Fifth type of evidence: The respondent’s evidence [ 49 ] The respondent’s evidence is contained in the affidavits and attached exhibits of two expert witnesses and the evidence of ten government employees regarding the specific departmental Web sites impugned by the applicant.

First Expert [ 50 ] The respondent’s first expert witness, Chuck Letourneau , provided a history of the World Wide Web Consortium and in particular of the development of Web accessibility standards. Second Expert

[ 51 ] The respondent’s second expert witness, Cynthia Waddell , whose qualifications are accepted by the Court, first provided a more detailed discussion of Web accessibility, including an explanation of how people with disabilities can access the Internet, and a description of how the CLF Standard compares to other countries’ efforts to create Web accessibility standards. Second, she responded to the specific accessibility barriers cited in the applicant’s evidence. [ 52 ] Ms. Waddell defended the CLF Standard as mandating appropriate accessibility guidelines. Contrary to Ms.

Treviranus’s assertion that draft WCAG 2.0 standards ought to be considered, Ms. Waddell stated that adopting standards before they become final recommendations may impose additional costs should the standards be substantially different in their ultimate form. In addition, although Ms. Waddell acknowledged that it is preferable to create accessible Web sites at the design stages and that the Authoring Tool Accessibility Guidelines 1.0 could be helpful in this regard, she stated that there are no tools in existence that conform fully to the recommended guidelines. Moreover, Ms.

Waddell stated that the CLF Standard creates guidelines that compare favourably with standards created in other countries, for example the U.S. and various European countries. [ 53 ] Ms. Waddell also addressed the specific problems encountered by the applicant herself in accessing Web sites. Ms. Waddell stated that although in many cases the applicant’s affidavit did not disclose enough information to precisely identify the cause of her difficulties, most of the problems that she identified are unlikely to have been caused by inaccessible design of the Web sites.

One particular potential cause of the problems that Ms. Waddell identified was that the applicant was using an “outdated” assistive technology, called Home Page Reader. In their reply affidavits both the applicant and Ms. Treviranus contest this explanation, and argue that the technology used by Home Page Reader was standard and would have been able to access any Web site that was compliant with the CLF Standard. [ 54 ] In addition, Ms.

Waddell stated that the Court should distinguish between accessibility and “usability.” She stated that many of the accessibility difficulties noted by the applicant and the applicant’s other witnesses are difficulties that reduce usability of a Web site, for example by requiring great user proficiency and better technology, but not accessibility. [ 55 ] The respondent also provided evidence from employees responsible for the development and monitoring of each of the federal government departmental Web sites that the applicant mentions.

Each of these employees stated that the design of their Web sites contained few or none of the elements identified by the applicant. First fact witness [ 56 ] Wendy Birkinshaw Malo is director of Service Policy for the Treasury Board Secretariat and, in that capacity, responsible for the CLF Office, including development, implementation and oversight activities related to the CLF 1.0 Standard. She described the overall structure of roles and responsibilities within the federal government and how the Treasury Board and its policies fit within that.

Much of the relevant information provided by this witness is summarized above, in the “Background Facts” section. In her answers to undertakings that she gave at her cross-examination, Ms. Birkinshaw Malo provided extensive documentation regarding the development of the ePass/Secure Channel services. The respondent acknowledges that ePass is not compliant with the CLF Standard. Second fact witness [ 57 ] Ken Cochrane , Chief Information Officer of the Government of Canada, explained the context and content of the federal government’s commitment to providing services on the Internet.

This includes a huge number of departments, each with its own information technology infrastructure and particular needs, and a number of policy requirements, including protection for and security of personal information, compliance with human rights demands, and official language requirements. Mr. Cochrane stated that the CLF Standard applies to more than 100 institutions, each owning multiple domain names, which, in turn, consist of numerous Web sites. He concluded that there are between 23 million and 45.8 million Web pages with the domain name gc.ca.

He stated that the resource implications of converting all government Web sites into accessible formats are “almost impossible to estimate”. Mr. Cochrane recognized that the Deputy Head of each department is responsible for implementing the accessibility standards. [ 58 ] Mr. Cochrane described Canada as a “world leader” in online government service provision, and offered international reports, including a 2005 Accenture study cited in the 2006 United Nations G lobal Audit of Web Accessibility discussed above, and a 2005 U.N. “E-Government Readiness Survey”, in support of this statement.

Third fact witness [ 59 ] Clifford Scott , a resourcing officer responsible for graduate student recruitment for the Public Service Commission, described the Public Service Commission’s recruitment campaigns, which consist of various outreach activities designed to attract promising graduate students to apply for positions with the federal government, and described his interactions with the applicant during her attempts to create a profile and apply for jobs online at the Public Service Commission’s jobs-emplois.gc.ca Web site. In general, Mr.

Scott’s and the applicant’s evidence agree that the applicant was able to complete a profile and use the online application system with Mr. Scott’s sighted assistance. The applicant states that she was never provided with her account information and that she was never able to independently access the jobs Web site. Fourth fact witness [ 60 ] Diane Beauchamp responded to the applicant’s allegations of difficulties encountered on the Public Service Commission job application Web site. Ms. Beauchamp was the project manager responsible for building the system with a team of developers. Ms.

Beauchamp stated that she ran tests of the Web site as it would have looked at the times that the applicant accessed it in 2004 and 2007. She contested the applicant’s evidence that there were images without alternative text, or tables or technologies that could not be sensibly read. Regarding the applicant’s finding that the structure of the Web sites was misleading, Ms. Beauchamp offered reasons why each of the structural elements chosen by her team was present. For example, the applicant found “top of page” comments annoying, but Ms.

Beauchamp states that these were present in order to convenience users who wanted to return to the top of a Web page quickly without having to scroll up the page. Ms. Beauchamp acknowledged one area where the Web site had been, and, at the time of swearing her affidavit, continued to be, non-compliant (the pop-up window “bug” described above), but stated that this instance of non-compliance

would not have affected the accessibility of the Web site content. [ 61 ] In support of her statement that the Web site was accessible, Ms. Beauchamp provided two compliance evaluations of the Public Service Commission Web site, both conducted in 2003. Ms. Beauchamp states that the Public Service Commission used these evaluations to identify accessibility problems with its Web site and to improve it. [ 62 ] Ms.

Beauchamp stated that between September 2004 and June 2007, 1307 accounts were created on the Public Service Commission’s job application Web site by applicants who self-identified as blind or with visual impairment. It is unclear whether these accounts were created with sighted assistance. She stated further that no complaints similar to those of the applicant were made. In her reply affidavit, the applicant contests this, and notes that a July 31, 2007 report by Alan Cantor entitled “Review of jobs.gc.ca” identified some accessibility problems with the Web site, and was submitted to the federal government.

She further contends that she carefully entered the date information in the “date available” field in its proper form, and even engaged the help of a friend in so doing. Fifth fact witness [ 63 ] Nancy Timbrell-Muckle , director of the Citizen Employment Service of the Service Offerings and Implementation Directorate, Citizen Service Branch of Service Canada, provided information about the associated “Job Bank” Web site, to which the Public Service Commission’s jobs-emplois.gc.ca Web site contains links but which is a distinct service.

Like the Public Service Commission site, the Job Bank Web site allows users to search its listings for jobs, create a profile and advertise themselves to potential employers, and store search criteria so as to receive an alert when new jobs are posted that match the stored criteria. The distinction is that the Job Bank Web site provides access to private sector employment. Ms. Timbrell-Muckle recognized that “despite efforts”, the Job Bank Web sites were not compliant with the accessibility standards of the CLF 1.0 Standard in June of 2007.

Moreover, she recognized that the Web sites would not be fully compliant with the CLF 2.0 Standard by the December 31, 2008 implementation deadline. Sixth fact witness [ 64 ] Anil Arora , who in 2006 was director general of the Census Program Branch at Statistics Canada, responsible for the 2006 Census, described the measures taken by Statistics Canada to ensure that the 2006 Census was accessible to people with disabilities. These included consultations and testing in the two years leading up to census day. Mr. Arora stated that the census should have supported many types of assistive software devices.

The testing, however, was limited to a single technology, called “JAWS”, and to the short-form census form 2A. Mr. Arora noted that alternative formats, including Braille, were available. [ 65 ] Mr. Arora stated that he determined that 84 householders completed the 2006 Census online using screen reading technology. It is unclear whether any were using technology other than JAWS.

Seventh fact witness [ 66 ] Louis Boucher , director of the Dissemination Division of Statistics Canada, with overall responsibility for the Statistics Canada Web site, detailed the efforts made by Statistics Canada to ensure the accessibility of its Web site. In particular, Mr. Boucher noted that Statistics Canada has since 2005 hosted a “Centre of Expertise on Accessibility,” which has three full-time employees, of whom two are visually impaired, that is responsible for increasing awareness of accessibility issues and of testing and improving Statistics Canada’s Web site content to ensure accessibility.

In addition, Mr. Boucher stated that the Web site was compliant with the CLF 1.0 Standard since 2006, and had created a dedicated project team to ensure implementation of the CLF 2.0 Standard by the December 31, 2008 implementation deadline. Mr. Boucher recognized that while all current content is tested to ensure that it meets the requirements of the CLF Standard, Statistics Canada does face the challenge of converting older content, called “legacy content”, into accessible formats.

Eighth fact witness [ 67 ] Don Royce of Statistics Canada explained how the applicant’s job application was treated differently, and thereby accommodated, compared with non-visually impaired candidates for a job. Ninth fact witness [ 68 ] Steve Buell was the project lead, Accessibility Integration, for the Accessibility Centre of Excellence within Service Canada. In this capacity, Mr.

Buell was responsible for advising managers within Service Canada departments regarding including accessibility standards in their projects and supporting managers or other specialists in the accommodation of employees with disabilities. Mr. Buell explained the structure and function of the Accessibility Centre of Excellence within Service Canada and of Service Canada itself. He also described the Service Canada Web site and the efforts undertaken to ensure its accessibility. [ 69 ] Mr.

Buell explained that Service Canada is a portal that provides access to a range of federal government programs and services, each operated by different departments. Service Canada does not provide the services themselves, but rather provides a central location from which users can access them.

Service Canada achieves this centralized delivery through four main delivery channels (in-person, online, by telephone, and by mail) with more than 595 points of service across Canada, in call centres and over the Internet. [ 70 ] The Service Canada Web site includes a variety of tools that facilitate the usability of the portal. For example, users can create an account online through which they can view their Employment Insurance, Canada Pension Plan, and Old Age Security information online from Human Resources and Skills Development Canada.

The Web site also includes a “persons with disabilities portal” that provides a collection of information from various government departments that would be relevant to persons with disabilities, such as, for example, the Guide to Government of Canada Services for People with Disabilities and their Families, and information on the Opportunities Fund for Persons with Disabilities, the Disability Vocational Rehabilitation Program, and Entrepreneurs with Disabilities Program. [ 71 ] The Service Canada Web site is developed and maintained by the Web Channel Office of Service Canada, which is also responsible for ensuring accessibility.

Advice and accessibility testing of the site is conducted by the Accessibility Centre for Excellence.

Mr. Buell explained that the Accessibility Centre for Excellence can test the Web site and make recommendations, but has no enforcement power. [ 72 ] Mr. Buell stated that while the Service Canada Web site was fully compliant with the CLF 1.0 Standard in May and June of 2007, and while his group has been working with the Web Channel Office to ensure that the Web site be compliant with the CLF 2.0 Standard by the December 31, 2008 implementation deadline, Service Canada is not responsible for all of the applications to which its Web site links.

He acknowledged that some of those Web sites were not fully compliant with the accessibility standards of the CLF 1.0 Standard in 2007. [ 73 ] Mr. Buell explained at question 511 when cross-examined on his affidavit, that he will manually evaluate a Web site to determine if it meets the CLF Standard. He said it will take five days for a “normal branch informational site” of 20 to 30 pages. Tenth fact witness [ 74 ] The respondent’s final witness is George Smolinski , who was the program coordinator for the Government of Ontario’s Assistive Devices Program.

He testified about funding assistance to the visually impaired requiring devices to assist them retain or regain their independence at home. ISSUE [ 75 ] The main issue to be decided in this case is whether the federal government has breached the applicant’s right to equal treatment under subsection 15(1) of the Charter , either by creating inadequate Internet accessibility standards or by failing to enforce and implement existing standards. RELEVANT LEGISLATION [ 76 ]

Section 15 of the Charter guarantees equality to all individuals before and under the law, and equal protection and benefit of the law: Equality before and under law and equal protection and benefit of law 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 77 ] Subsection 24(1) of the Charter states the remedies that a court may order where it finds that an individual’s rights under the Charter have been infringed: Enforcement of guaranteed rights and freedoms 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter , have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. [ 78 ]

Section 1 of the Charter sets reasonable limits on the scope of the rights and freedoms it grants: Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [ 79 ] The remaining relevant legislation, and policies prescribed pursuant to the legislation, are attached hereto as Appendix 1. ANALYSIS PRELIMINARY LEGAL MATTERS Jurisdiction of this Court [ 80 ] In this application, the applicant is seeking a declaration under

section 18.1 of the Federal Courts Act . Subsection 18.1(1) provides that an application for judicial review may be made by “anyone directly affected by the matter in respect of which relief is sought.” Subsection 18.1(3) permits the Federal Court to order a remedy against any “federal board, commission, or other tribunal”, on any of the grounds listed in subsection 18.1(4). [ 81 ] The applicant’s complaint is one of systemic discrimination, potentially affecting the acts of 106 federal departments and agencies.

The applicant presents five alleged specific instances of discrimination and complains of a system-wide failure of the government, through each of these institutions, to meet its responsibilities under subsection 15(1) of the Charter to ensure that the benefit of online services is provided without discrimination on the basis of physical disability. [ 82 ] The respondent does not contest that this is a “matter” sufficient to give the applicant standing under subsection 18.1(1) of the Federal Courts Act . As this Court recognized at paragraph 76 in Canadian Assn. of the Deaf v.

Canada , 2006 FC 971 , [2007] 2 F.C.R. 323 [ CAD ], per Justice Mosley: The word “matter” found in

section 18.1 of the Federal Courts Act is not so restricted but encompasses any matter in regard to which a

remedy might be available under

section 18 … or subsection 18.1(3) … Morneault v. Canada (Attorney General) , 2000 CanLII 15737 (FCA) , [2001] 1 F.C. 30 (C.A.) [ 83 ] In CAD , this Court was faced with an application similar to the one at bar. In that case, the applicants were hearing-impaired individuals who sought judicial review of the acts of numerous government departments in failing to provide professional sign language

interpretation services at meetings between hearing-impaired individuals and federal government officials. The relevant law was a federal government policy issued under the authority of the Translation Bureau of the Department of Public Works and Government Services Canada that delegated to individual departments the responsibility for providing sign language

interpretation services to hearing-impaired members of the public in meetings with the department’s officials. The evidence demonstrated that a number of departments, including Human Resources and Skills Development Canada and Statistics Canada, had failed to provide these services when needed.

The applicants sought a declaration that their rights under subsection 15(1) of the Charter had been infringed. [ 84 ] Although the application was brought against three separate government departments on the basis of the separate experiences of four distinct applicants, Justice Mosley concluded at paragraph 66: In this case, the commonality among the four applicants is that their situations arose out of the application of the same set of guidelines for the provision of

interpretation services. While each incident involved its own facts and decision makers (different government departments and different employees), the heart of the matter is the application of the same policy to the same interested community. Accordingly, I agree that it would be unreasonable to split the application. Systemic complaint [ 85 ] The respondent submits that the Court cannot assess such a system-wide complaint without any specific facts to which the respondent can reply. The Court agrees.

However, the Court has the government’s own CLF audit in December 2007 which proved that the government’s online services are not meeting the government’s own accessibility standard for the visually impaired. The audit report is huge—it details the failure of each of the 47 departments audited to meet the CLF Standard.

Some failures were worse than others in that the CLF Office sent letters to the deputy heads of 22 departments which were shown to have “seriously violated” the CLF Standard. [ 86 ] The jurisprudence recognizes that an individual may bring a systemic complaint which affects her and others in the same position. The Supreme Court of Canada, in Eldridge v.

British Columbia (Attorney General ), 1997 CanLII 327 (SCC) , [1997] 3 S.C.R. 624 [ Eldridge ], per Justice La Forest at paragraph 83, held that the Court was willing to grant a declaration under subsection 24(1) of the Charter , regardless of whether the claimants had established violations of their own rights: Finally, I note that it is not in strictness necessary to decide whether, according to this standard, the appellants’ s. 15(1) rights were breached.

This Court has held that if claimants prove that the equality rights of members of the group to which they belong have been infringed, they need not establish a violation of their own particular rights. Public interest litigant [ 87 ] The applicant submits that she is a “public interest litigant”, namely that she is bringing this litigation on behalf of herself and the public interest to ensure that the visually impaired are not discriminated against with respect to government online services.

The respondent has accepted this characterization of the applicant and, indeed, it accords with the understanding of a public interest litigant that emerges from the jurisprudence. In British Columbia (Minister of Forests) v.

Okanagan Indian Band 2003 SCC 71 , [2003] 3 S.C.R. 371 [ Okanagan ], at paragraph 38 , Justice LeBel, in the course of considering when an award of interim costs would be justified, discussed the nature of public interest litigation: Furthermore, it is often inherent in the nature of cases of this kind that the issues to be determined are of significance not only to the parties but to the broader community, and as a result the public interest is served by a proper resolution of those issues. In both these respects, public law cases as a class can be distinguished from ordinary civil disputes.

ASSESSMENT OF THE EVIDENCE The importance of government online services [ 88 ] The applicant has presented the Court with evidence that the Government of Canada made a commitment to provide its information and services online to better communicate its programs, services, and information. This policy originated in the 1999 Speech from The Throne. [ 89 ] As discussed, the government has 106 departments and agencies subject to the Financial Administration Act (the Act) that provide a range of online services and programs to Canadians. These departments operate Web sites with millions of Web pages.

A person can apply online for a government job or for social services such as Employment Insurance, a Canada Pension Plan and a passport. [ 90 ] Pursuant to

section 7 of the Act , the government has issued a Communications Policy which ensures that communications by the government departments comply with various statutes including the Charter . 2000 government accessibility standards for the blind [ 91 ] In 2000, the government issued its CLF 1.0 Standard, which requires that government department Web sites are designed and programmed to ensure that online services be accessible to the visually impaired by 2001. [ 92 ] In 2007 the Treasury Board’s “CLF Office” conducted a spot audit of 47 government

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