2012 FCA 161, 2012 FCA 161

[2014] 1 F.C.R. 185 A-478-10 2012 FCA 161 Attorney General of Canada ( Appellant ) v. Donna Jodhan ( Respondent ) and Alliance for Equality of Blind Canadians ( Intervener ) Indexed as: Jodhan v. Canada (Attorney General) Federal Court of Appeal, Nadon, Sharlow and Dawson JJ.A.—Toronto, November 15, 2011; Ottawa, May 30, 2012.

Constitutional Law — Charter of Rights — Equality Rights — Appeal from Federal Court decision declaring that respondent denied equal access to, benefit from online government information, services, such denial constituting discrimination on basis of physical disability, violating rights under Charter, s. 15(1) — Respondent, visually impaired, experiencing difficulties accessing government Web sites, online services — Federal Court declaring, inter alia, respondent’s inability to access departmental Web sites system-wide failure to make Web sites accessible; government’s failure to monitor, ensure compliance with accessibility standards infringing Charter, s. 15(1); government having constitutional obligation to bring itself into compliance with Charter — Federal Court retaining jurisdiction over implementation of declaration — Whether Federal Court erring in finding that respondent denied equal benefit of law contrary to Charter, s. 15(1); by providing system-wide remedy including retention of jurisdiction to supervise implementation of remedy — No basis to interfere with conclusion that failure to ensure equal access to departmental Web sites, online services violated rights under s. 15(1) — However, remedy could not be directed to government departments not named in notice of application — Benefit of law herein access to government information, services — Access thereto necessarily including benefit of online access — However, Treasury Board’s failure to monitor, ensure compliance in and of itself not violating Charter, s. 15 rights — Treasury Board policies at issue creating distinction on basis of physical disability, denying visually impaired equal access to benefit of government information, services — Respondent entitled to access information as effectively as others, i.e. online — Appeal allowed in part.

Constitutional Law — Charter of Rights — Enforcement — Federal Court declaring, inter alia, respondent’s inability to access departmental Web sites system-wide failure to make Web sites accessible; government’s failure to monitor, ensure compliance with accessibility standards infringing Charter, s. 15(1) ; government having constitutional obligation to bring itself into compliance with Charter — Federal Court retaining jurisdiction over implementation of declaration — Because implementation of Treasury Board’s standards by all departments not raised in pleadings, remedy to which respondent entitled could not be directed at all departments — Federal Court order set aside as to those departments — Charter, s. 24(1) not preventing Federal Court from making systemic order — Charter, s. 24(1) requiring claimant to have been directly affected by impugned law — Evidence herein supporting Federal Court’s conclusion that respondent, visually impaired regularly denied access to government services, information online.

Practice — Judgments and Orders — Federal Court declaring, inter alia, respondent’s inability to access departmental Web sites system-wide failure to make Web sites accessible; government’s failure to monitor, ensure compliance with accessibility standards infringing Charter, s. 15(1) ; government having constitutional obligation to bring itself into compliance with Charter — Federal Court retaining jurisdiction over implementation of declaration — No factual or legal basis herein to justify supervisory order — Supervisory orders applying where factual situations justifying them — Such remedy not just, appropriate in present circumstances.

This was an appeal from a decision by the Federal Court declaring that the respondent was denied equal access to and benefit from government information and services provided online and that this denial constituted discrimination against her on the basis of her physical disability and thus violated her rights under subsection 15(1) of the Canadian Charter of Rights and Freedoms . The respondent, who is visually impaired, experienced difficulty applying for employment through a government Web site and had to complete her application with assistance by phone.

The respondent also had significant accessibility issues when trying to access information on Statistics Canada and Service Canada Web sites, could not complete the 2006 online Census return and had difficulty in obtaining information on the Canada Pension Plan and employment programs.

The respondent sought declarations that the failure to develop, maintain, and enforce standards that ensure all Government of Canada Web sites and online services, the 2006 online Census, Web sites and online application services are accessible for individuals with visual impairments infringes her right to equal protection and equal benefit of the law without discrimination based on physical disability, and therefore violates

section 15 of the Charter , and that such violation is not justified under

section 1 of the Charter. The Federal Court found, inter alia , that the Treasury Board’s Communications Policy of the Government of Canada (Communications Policy), which it identified as the impugned law, and the Common Look and Feel Standards for the Internet (CLF Standard) were “facially neutral” with respect to Web site accessibility standards.

It indicated that the fact that the CLF Standard had not been implemented and that rich Internet applications were not accessible to the visually impaired were systemic failures that underlined the government’s failure to provide online accessibility to the visually impaired. The Federal Court concluded that the distinction made by the impugned law created a disadvantage for the visually impaired.

It declared, inter alia , that the respondent’s inability to access certain departmental Web sites was representative of a system-wide failure by many of the 106 government departments and agencies to make their Web sites accessible; that the failure of the government to monitor and ensure compliance with the government’s 2001 accessibility standards was an infringement of subsection 15(1) of the Charter ; and that the government had a constitutional obligation to bring itself into compliance with the Charter. The Federal Court also retained jurisdiction over the implementation of its declaration.

The main issues were whether the Federal Court erred in finding that the respondent was denied equal benefit of the law, contrary to subsection 15(1) of the Charter , and by providing a system-wide remedy that included retaining jurisdiction to supervise the implementation of the remedy. Held , the appeal should be allowed in part. There was no basis to interfere with the Federal Court’s conclusion that the failure to ensure equal access by the respondent and by the visually impaired to departmental Web sites and online services violated her rights under subsection 15(1) of the Charter .

However, because the implementation of the Treasury Board’s standards by the 106 departments was not raised as an issue in the pleadings, the remedy to which the respondent was entitled could not be a declaration directed at the 106 departments. Thus, to the extent that the order made by the Federal Court was directed at those departments which were not named in the notice of application, it had to be set aside. As to whether the Federal Court could fashion a remedy beyond the individual claimant, subsection 24(1) of the Charter did not prevent the Federal Court from making such a systemic order.

What subsection 24(1) prevents is the commencement of a proceeding where the claimant is not directly affected by an impugned law. In other words, the matter was one of standing as subsection 24(1) requires a claimant to have been directly affected by an impugned law. Both the documentary evidence and the affidavit evidence supported the Federal Court’s conclusion that the respondent and the visually impaired were regularly denied access to government services and information online.

The evidence demonstrated that there are serious problems of accessibility for the visually impaired throughout the government apparatus. In considering whether the Federal Court erred in finding that the government discriminated against vision impaired persons in violation of subsection 15(1) of the Charter and that the discrimination was systemic, it was proper for the Federal Court to review the Communications Policy and the CLF Standard. The benefit of the law herein is access to government information and services.

Access thereto necessarily includes the benefit of online access, which is not just an ancillary component of the multichannel delivery mechanism, but an integral part thereof. That said,

section 15 cannot be interpreted as creating an additional right owed to the respondent and others for the government to monitor and ensure compliance. The only right at issue is the

section 15 right to equal benefit of the law. The Treasury Board’s failure to monitor and ensure compliance with its standards may well be the cause of the violation of the respondent’s

section 15 rights, but does not constitute in and of itself a violation of those rights. The Federal Court’s determination that the Treasury Board’s failure to monitor and ensure compliance constituted a violation of the respondent’s

section 15 Charter rights had to be set aside. Turning to the

section 15 test, the Communications Policy and the CLF Standard create a distinction between the visually impaired and others on the basis of their physical disability. The consequence of the Treasury Board’s failure to issue adequate standards and to ensure departmental compliance with its accessibility standards is that the visually impaired are denied equal access to the benefit of government information and services.

There was some question as to whether equal access to government information and services can be attained without access to online information and services, and whether alternative formats and channels meet the goal of substantive equal treatment. The visually impaired are entitled to full access, including online access, to government information and services. One of the goals of the Communications Policy is to allow Canadians to access government information and services at a time and place of their choosing.

If the visually impaired are relegated to alternative channels and formats, they will not be choosing the time and place in which to access the government’s information and services. Subsection 15(1) of the Charter provides that the respondent has the right to equal benefit of the law. Thus, she is entitled to access government information and services as effectively as those who have no visual impairment.

The end result of this denial is that the respondent and the visually impaired are not afforded substantive equality, because they are being denied the ability to interact with government institutions on a basis equal to that of those who can see. There was no factual or legal basis to justify the supervisory order made by the Federal Court. In cases where supervisory orders were made, the factual situation amply justified the making of such orders.

In the present matter, while the accessibility standards were issued in 1999 and were meant to be implemented by 2001, the government did attempt to make the Internet accessible to the visually impaired. Although the Web sites do not comply with the CLF Standard, they are now more accessible than they were in 1999. Therefore, such a remedy was not just and appropriate in the present circumstances. 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. Canadian Human Rights Act, R.S.C., 1985, c. H-6. Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. 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 am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26 ), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27). 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: R. v.

Kapp , 2008 SCC 41 , [2008] 2 S.C.R. 483, 294 D.L.R. (4th) 1, [2009] 8 W.W.R. 1; 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; Withler v. Canada (Attorney General) , 2011 SCC 12 , [2011] 1 S.C.R. 396, 329 D.L.R. (4th) 193, [2011] 4 W.W.R. 383.

distinguished: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, 232 D.L.R. (4th) 577; Northwest Territories(Attorney General) v. Fédération Franco-Ténoise, 2008 NWTCA 6, 440 A.R. 56, [2009] 12 W.W.R 259. considered: Andrews v. Law Society of British Columbia, (SCC), [1989] 1 S.C.R. 143, (1989), 56 D.L.R. (4th) 1, [1989] 2 W.W.R.289; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624, (1997), 151 D.L.R. (4th) 577,[1998] 1 W.W.R. 50; Law v.

Canada (Minister of Employment and Immigration), (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, (SCC), [1997] 1 S.C.R. 241,(1996), 31 O.R. (3d) 574, 142 D.L.R. (4h) 385; 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; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577;Pilette v. Canada, 2009 FCA 367, 319 D.L.R. (4th) 369, 69 C.H.R.R. D/362, 402 N.R. 183; Vriend v.

Alberta, (SCC),[1998] 1 S.C.R. 493, (1998), 212 A.R. 237, 156 D.L.R. (4th) 385. referred to: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1; R. v. Ferguson, 2008 SCC 6,[2008] 1 S.C.R. 96, 425 A.R. 79, 290 D.L.R. (4th) 17. AUTHORS CITED Hogg, Peter W. Constitutional Law of Canada, 5th ed. supplemented. Toronto: Thompson Carswell, 2007. Jones, David Phillip and Anne S. de Villars. Principles of Administrative Law, 5th ed. Toronto: Carswell, 2009. Treasury Board of Canada Secretariat.

Common Look and Feel for the Internet: Accessibility, online:<http://www.collectionscanada.gc.ca/webarchives/20061201023659/http://www.tbs-sct.gc.ca/clf-nsi/inter/inter-01-pr_e.asp?format=print>. Treasury Board of Canada Secretariat. Common Look and Feel Standards for the Internet (CLF 2.0), online:<http://www.collectionscanada.gc.ca/webarchives/20071121120008/http://www.tbs-sct.gc.ca/clf-nsi/index_e.asp?format=print>. 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 (CLF 1.0), online: <http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=25436&section=text>. 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>. Web Content Accessibility Guidelines 1.0, online: <http://www.w3.org/TR/WCAG10/WAI-PAGEAUTH.pdf>. Web Content Accessibility Guidelines (WCAG) 2.0, online: <http://www.w3.org/TR/2008/REC-WCAG20-20081211/>.

APPEAL from a decision of the Federal Court (2010 FC 1197, [2011] 2 F.C.R. 355, 223 C.R.R. (2d) 151, 380 F.T.R. 1) declaring thatthe respondent was denied equal access to and benefit from government information and services provided online and that this denialconstituted discrimination against her on the basis of her physical disability, thus violating her rights under subsection 15(1) of theCanadian Charter of Rights and Freedoms. Appeal allowed in part. APPEARANCES Gail Sinclair, Peter Hajecek and Michelle Ratpan for appellant. David Baker and Meryl Zisman Gary for respondent.

Karen Spector and Laurie Letheren for intervener. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellant. Bakerlaw, Toronto, for respondent. ARCH Disability Law Centre, Toronto, for intervener. The following are the reasons for judgment rendered in English by [1] Nadon J.A.: The Attorney General of Canada (the appellant or the Attorney General), appeals the judgment of Kelen J. (theJudge) of the Federal Court, 2010 FC 1197, [2011] 2 F.C.R. 355 (rendered on November 29, 2010 and amended on February 9, 2011),which allowed Ms. Jodhan’s (the respondent or Ms. Jodhan) 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)] (Federal Courts Act), that she had beendenied equal access to and benefit from government information and services provided online to the public on the Internet and that thisdenial constituted discrimination against her on the basis of her physical disability, i.e. blindness, and thus, a violation of her rights undersubsection 15(1) of the Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (the Charter).

[ 2 ] The Judge also declared that Ms. Jodhan’s inability to access certain departmental websites was representative of a system-wide failure by many of the 106 government departments and agencies of the Government of Canada to make their websites accessible to the visually impaired. In the Judge’s view, the government’s failure to monitor and ensure compliance with its 2001 accessibility standards was an infringement of

section 15 of the Charter since it discriminated against Ms. Jodhan and other visually impaired persons. [ 3 ] The Judge further declared that the government was constitutionally obliged to bring itself into compliance with the Charter within a period of 15 months. [ 4 ] Finally, the Judge retained jurisdiction over the implementation of his declarations, adding that he would resume proceedings, upon the application of either the Attorney General or Ms. Jodhan, if necessary, to ensure that the declarations were properly implemented. [ 5 ] Although the appeal raises a number of issues, the main one is whether Ms.

Jodhan was denied equal benefit of the law contrary to subsection 15(1) of the Charter . The Facts and Context [ 6 ] Ms. Jodhan is legally blind. She runs a consulting business that analyses the accessibility of products and services for persons with special needs and is a “sophisticated computer user”. [ 7 ] She commenced judicial review proceedings in the Federal Court on June 28, 2007, against the Attorney General as representative of the Treasury Board of Canada and Treasury Board Secretariat (jointly referred to hereinafter as Treasury Board), the Public Service Commission of Canada and Statistics Canada.

In her application, Ms. Jodhan asked for the following declarations: The applicant makes application for: 1. A declaration that the failure of the Treasury Board and the Treasury Board Secretariat to develop, maintain, and enforce standards which ensure that all Government of Canada websites and online services are accessible for all individuals with visual impairments. (

i) infringes the applicant’s right to equal protection and equal benefit of the law without discrimination based on physical disability, and therefore violates

section 15 of the Charter , and (ii) that such violation is not justified under

section 1 of the Charter . 2. A declaration that Statistics Canada’s failure to ensure that the 2006 online Census was accessible to those with visual impairments: … (iii) infringes the applicant’s right to equal protection and equal benefit of the law without discrimination based on physical disability, and therefore violates

section 15 of the Charter , and (iv) that such violation is not justified under

section 1 of the Charter . 3. A declaration that the Public Service Commission of Canada’s failure to ensure that its website and online application services are accessible to those with visual impairments: … (

v) infringes the applicant’s right to equal protection and equal benefit of the law without discrimination based on physical disability, and therefore violates

section 15 of the Charter , and (vi) that such violation is not justified under

section 1 of the Charter . [ 8 ] Ms. Jodhan alleged unequal protection and benefit of the law in two ways. First, the online accessibility standards were inadequate because they failed to deal with “rich Internet applications”, i.e. dynamic, interactive websites, through which the government provides interactive services online, which constitute some of the main benefits of online access.

Second, the accessibility standards had not been adequately implemented by the departments subject to Treasury Board supervision. [ 9 ] In support of her claim that on numerous occasions she encountered difficulty accessing government websites and that her experience was shared by other visually impaired persons in Canada, Ms. Jodhan gave five examples of inaccessibility. [ 10 ] First, in September 2004, Ms. Jodhan experienced difficulty applying for employment at www.jobs.gc.ca and had to complete the application with assistance by phone.

This was followed by failure to access information on the site between March and June 2007. [ 11 ] Second, she was unable to create an online profile at www.jobs.gc.ca because pop-up windows, which blind users cannot navigate, kept popping up.

She had to complete her online profile on the website with sighted assistance. [ 12 ] Third, she alleged significant accessibility issues when trying to access information on Statistics Canada and Service Canada websites between March and June 2007 since the information was only available in “pdf” format, which is not accessible to screen reader technology. [ 13 ] Fourth, the 2006 online Census return was only available to the visually impaired by software such as the JAWS program, which made it inaccessible to Ms. Jodhan and other visually impaired users who did not have access to such expensive software. Ms.

Jodhan alleged that the form of the Census did not meet the World Wide Web Consortium (W3C) standards for accessibility.

[ 14 ] Fifth, Ms. Jodhan experienced difficulty accessing www.servicecanada.gc.ca in June 2007 to obtain information on the Canada Pension Plan and employment programs. A. History of the Web and Content Accessibility Guidelines [ 15 ] The World Wide Web (the WWW) was created in 1989. For approximately ten years, there existed no WWW accessibility guidelines for persons with disabilities. In 1994, the W3C was created in order to develop a consensus on industry standards to ensure that the WWW remained open and accessible to all.

In 1997, the W3C launched the Web Accessibility Initiative (the WAI) to promote web accessibility for people with disabilities. [ 16 ] The WAI, through a process of consultation with its then 170 member organizations and experts from around the world, began to develop a first set of Web Content Accessibility Guidelines 1.0 (the WCAG 1.0). The WCAG 1.0 provides detailed instructions to web content developers and authoring tools developers with respect to means to make Internet content accessible to people with disabilities, including the visually impaired.

The version 1.0 of the WCAG was developed over a period of two years and, by May of 1999, final “W3C Recommendation” status was reached and published. These instructions are created in the form of guidelines which provide the basic goals that authors should work towards in order to make web content more accessible to all users. Each of the 14 guidelines focuses on a core theme of accessibility and each guideline is divided in “checkpoint”

definitions which explain how the guideline applies in typical content development scenarios.

Each checkpoint has a priority level assigned by the Working Group based on the checkpoint’s impact on accessibility. [ 17 ] Shortly after the publication of the WCAG 1.0, work on the WCAG 2.0 [ Web Content Accessibility Guidelines (WCAG) 2.0 ] began and, over the next seven years, extensive work was undertaken, with the WAI having grown by then to include over 400 member organizations which included the Government of Canada. [ 18 ] The Government of Canada was actively involved with the WCAG Working Group to ensure that WCAG 2.0 would be compatible with its own standards.

On December 11, 2008, the WCAG 2.0 reached “W3C Recommendation” status. WCAG 2.0 builds on WCAG 1.0 and is designed to apply broadly to different web technologies now and in the future, and to be testable with a combination of automated testing and human evaluation. B.

The Communications Policy and Online Activity [ 19 ] In 1999, the government introduced a new project called “Government On-Line”, intended to provide electronic services to Canadians as part of a broader strategy aimed at stimulating the provision of better, faster, trusted and more convenient and accessible government services through four delivery channels: in person, by telephone, by mail and over the Internet.

Government On-Line was meant to be client-centred, allowing Canadians to acquire information and services on their terms, and according to their needs. [ 20 ] There are approximately 106 departments and agencies (departments) of the Government of Canada which provide services and programs to Canadians. Since the late 1990s, the departments have increased their presence on the Internet in order to provide more and more information and services to Canadians. [ 21 ] As part of the government’s online initiative, the departments provide two types of services online, i.e. informational and interactive.

Informational services include guides on starting a new business, travel advisories and information on various matters, such as epidemics. As to interactive services, they include applications for social services (for example, Employment Insurance and Canada Pension Plan benefits), online passport applications, and a single website from which Canadians can access online applications to all federal government job postings.

Interactive services allow Canadians to interact with the government and are made possible through the use of dynamic, interactive websites, also called rich Internet applications. [ 22 ] The security of the information provided by those who use the departments’ interactive services is protected through a group of services referred to as the “Secure Channel”. One of these services is “ePass”, which serves to protect the confidentiality of information provided by users to the departments.

In 2008, 23 departments used the ePass technology to deliver 83 programs, including online applications for government jobs, passports and social benefits. [ 23 ] The government’s decision, inter alia , to make its services available online has allowed Canadians to access government information and services at a time and place of their choosing. [ 24 ] 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 [the Act], the Treasury Board developed the Communications Policy of the Government of Canada (the Communications Policy) dated April 1, 2002. [ 25 ] The Communications Policy governs all communications made by the federal public administration, including online communications.

In the Communications Policy, the government recognized that information must be made available in multiple formats to ensure equal access and that communications by the federal government had to comply with a number of statutes and policies, for example, the Charter , the Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, and the Privacy Act , R.S.C., 1985, c.

P-21. [ 26 ] The Communications Policy emphasizes the need for providing information to Canadians through a variety of channels, such as the telephone, mail, print, broadcast media and the Internet. [ 27 ] As part of the government’s initiative, the Communications Policy makes the departments subject to the Common Look and Feel Standards for the Internet ,

Part 2: Standard on the Accessibility, Interoperability and Usability of Web Sites (the CLF 1.0 Standard), which was issued by Treasury Board in May 2000 with a required implementation date of 2001. The CLF 1.0 Standard was made mandatory for all government departments and agencies and was created to enable access by all Canadians to information on government websites. The CLF 1.0 Standard provides an effective means for the public and the government to exchange information and for the government to offer its services in the official language and at the time and place of Canadians’ choosing.

The CLF 1.0 Standard requires that the websites of all government institutions listed in Schedules I, I.1 and II of the Financial Administration Act be in compliance with

the WCAG 1.0 Priority 1 and 2 checkpoints. [ 28 ] In September 2005, the CLF 1.0 Standard was updated to version 1.1 to bring the standards in line with current best practices. Further, in December 2006, the CLF 1.0 Standard was replaced by the CLF 2.0 Standard [ Common Look and Feel Standards for the Internet (CLF 2.0) ] (CLF 2.0 Standard) to, inter alia , build on what had been learned from implementing the CLF 1.0 Standard across the various departmental websites. The CLF 2.0 Standard came into effect on January 1, 2007 with an implementation deadline of December 31, 2008.

There is no dispute between the parties that there is little difference between the CLF 1.0 Standard and the CLF 2.0 Standard. [ 29 ] The CLF Standard is built upon international guidelines, i.e. the WCAG 1.0. To facilitate equal access to online services and information, Treasury Board incorporated elements of the WCAG 1.0 into the CLF Standard. The WCAG 1.0 measures webaccessibility according to three categories of checkpoints. [ 30 ] Priority 1 checkpoints are basic, necessary requirements because if not met, “one or more groups of persons with disabilities will not be able to access content on the Web”.

Without Priority 2 checkpoints “one of more groups will find it difficult to access content on the Web”. Priority 3 checkpoints may “prevent some groups from finding it ‘somewhat difficult’ to access website content”. The Attorney General notes that “[i]t is common ground between the parties that a checkpoint failure does not necessarily make a web site inaccessible”. Under the CLF Standard, all gc.ca websites must meet Priority 1 and 2 checkpoints. Departments may apply to Treasury Board for exemption, if need be. C. Treasury Board and the CLF Standard [ 31 ] Pursuant to paragraph 7(1) (

a) of the Financial Administration Act , Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to general administrative policy in the federal public administration. On that basis, the Treasury Board developed the government’s Communications Policy which, as I have already indicated, aims to ensure that government communications are well coordinated, effectively managed and responsive to the diverse information needs of the public. [ 32 ] In 2000, the Treasury Board therefore created a Common Look and Feel Office (the CLF Office).

The CLF Office works with the departments to develop their understanding and capability to implement the CLF Standard by, inter alia , creating consultation forums such as “Centers of Expertise”, i.e. groups of experts identified by the CLF Office to provide support to website developers within the respective departments in implementing the CLF Standard.

As no monitoring of departmental websites is effected by the CLF Office to ensure compliance with the CLF Standard, deputy heads of departments are accountable for implementing the CLF Standard within their institutions. [ 33 ] However, pursuant to the CLF Standard, the Treasury Board is to monitor compliance with all aspects of the standard in a variety of ways which include, inter alia , assessments under the Management Accountability Framework, departmental performance reports and results of audits, evaluations and studies.

Consequences of non-compliance can include informal follow-ups and requests from the Treasury Board, external audits and formal directions. D. Access to the Internet by the Visually Impaired [ 34 ] The visually impaired access Internet content with assistive technology, such as a screen reader and/or self-voicing browser software. A “screen reader” is a software application that identifies and interprets electronic text that is displayed on a computer screen, and then converts the information to an audible form or into Braille for the user to “read” tactilely.

A “self-voicing” browser software is essentially a web browser with a screen reader built in.

Screen readers have long been in use as software programs that allow the visually impaired to access online information. [ 35 ] Using one or the other device, a visually impaired person uses keystrokes entered on a standard keyboard in lieu of mouse clicking to operate the screen reader and other software, such as a web browser displaying a web page. [ 36 ] For the above to work, the web content must be designed in a compatible and accessible manner, i.e. designed so that assistive technologies can navigate and interpret the information encoded in the website.

Thus, if the website is properly programmed, a visually impaired person can access its content as easily and efficiently as a sighted person. However, if accessibility is not built into a website the information may well be totally inaccessible to a visually impaired person. [ 37 ] It is in the context whereby Canadians are choosing the time and place in which to access government information and services that the visually impaired assert the right to deal with the government over the Internet. Ms.

Jodhan says that the possibility of accessing government information online “is more than just a matter of efficiency and reliability; it represents independence and privacy” (respondent’s memorandum of fact and law, page 7, at paragraph 22). [ 38 ] Ms.

Jodhan further argues that because of the Internet, the visually impaired are able to access the same information and services that sighted persons have access to and that it allows them to interact independently and directly with the government, banks and employers. [ 39 ] The technique and tools necessary to render websites accessible include authoring tools, which help website developers to build in accessibility when creating a website by making access the default position, and automatic monitoring tools, which help to monitor websites by reason of the difficulty of manually checking websites to ensure their accessibility.

Those tools have been in existence for quite a while. [ 40 ] Because using authoring tools means that access is the default position, programmers have to remove access rather than build it in. [ 41 ] The evidence is to the effect that the government does not use, in a consistent way, either authoring tools or automatic monitoring tools.

Relevant Legislation A. The Federal Courts Act [ 42 ] Subsection 18(1) [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26 ] sets out the Court’s jurisdiction with regard to federal administrative tribunals: Extraordinary remedies, federal tribunals 18.

(1) Subject to

section 28, the Federal Court has exclusive original jurisdiction (

a) to issue an injunction, writ of certiorari , writ of prohibition, writ of mandamus or writ of quo warranto , or grant declaratory relief, against any federal board, commission or other tribunal; and (

b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph ( a ), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal. [ 43 ] A person must be “directly affected” by a decision to apply for judicial review. Application for judicial review 18.1

(1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. [ 44 ] The Federal Court has authority to provide the following remedies: Powers of Federal Court 18.1 …

(3) On an application for judicial review, the Federal Court may (

a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (

b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. B. The Charter 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. … 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. … 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. C. The Financial Administration Act [ 45 ]

Section 7 of the Financial Administration Act sets out the responsibilities of the Treasury Board of Canada: Responsibilities of Treasury Board 7.

(1) The Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to (

a) general administrative policy in the federal public administration; (

b) the organization of the federal public administration or any portion thereof, and the determination and control of establishments therein; (

c) financial management, including estimates, expenditures, financial commitments, accounts, fees or charges for the provision of services or the use of facilities, rentals, licences, leases, revenues from the disposition of property, and procedures by which departments manage, record and account for revenues received or receivable from any source whatever; (

d) the review of annual and longer term expenditure plans and programs of departments, and the determination of priorities with respect thereto; … (

f) such other matters as may be referred to it by the Governor in Council.

D. The Communications Policy of the Government of Canada [ 46 ] It is the Government of Canada’s Policy Statement to: Policy Statement … 1. Provide the public with timely, accurate, clear, objective and complete information about its policies, programs, services and initiatives . In the Canadian system of parliamentary democracy and responsible government, the government has a duty to explain its policies and decisions, and to inform the public of its priorities for the country.

Information is necessary for Canadians – individually or through representative groups or Members of Parliament – to participate actively and meaningfully in the democratic process. It is required for access to government programs and services. The public has a right to such information. … 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 network. [ 47 ] It is the Government of Canada’s Policy Requirement to: Policy Requirements 1.

Informing and Serving Canadians … To assure quality service that meets the information needs of all Canadians, institutions must ensure that: a. the Canadian Charter of Rights and Freedoms and the Official Languages Act , including all regulations and policies flowing from it, are respected at all times; b. trained and knowledgeable staff provide information services to the public; c. service is timely, courteous, fair, efficient and offered with all due regard for the privacy, safety, convenience, comfort and needs of the public; d. a variety of new and traditional methods of communication are used to accommodate the needs of a diverse public; e. published information is available on request in multiple formats to accommodate persons with disabilities; … 18.

Internet and Electronic Communication The Internet, World Wide Web and other means of electronic communication are powerful enablers for building and sustaining effective communication within institutions and with their clients across Canada and around the world. An important tool for providing information and services to the public, the Internet facilitates interactive, two-way communication and feedback. It provides opportunities to reach and connect with Canadians wherever they reside, and to deliver personalized services.

Institutions must maintain an active presence on the Internet to enable 24-hour electronic access to public programs, services and information. E-mail and Web sites must be used to enable direct communications between Canadians and government institutions, and among public service managers and employees. Institutions must advance Government of Canada on-line initiatives aimed at expanding the reach and quality of internal and external communications, improving service delivery, connecting and interacting with citizens, enhancing public access and fostering public dialogue.

Institutions must ensure that Internet communications conform to government policies and standards. Government of Canada themes and messages must be accurately reflected in electronic communications with the public and among employees. … Institutions must: a. manage their Web sites and portals in accordance with the Treasury Board’s Standards on Web Accessibility and Standard on Web Usability ;

E. The Common Look and Feel for the Internet: Accessibility Overview … In keeping with the client-centred approach of the CLF initiative, universal accessibility standards are directed toward ensuring equitable access to all content on GoC Web sites. While site design is an important element of the electronic media, universal accessibility guidelines have been developed to ensure anyone can obtain content, regardless of the technologies they use.

The key to effective implementation of universal accessibility guidelines lies in designing sites to serve the widest possible audience and the broadest possible range of hardware and software platforms, from assistive devices to emerging technologies. W3C WAI working groups continually test WCA Guidelines against a full range of browsers and assistive devices before recommending widespread implementation. … Universal accessibility does not depend on minimal Web page design, it depends on thoughtful design.

Along with WAI guidelines, the CLF standards provide direction for Web authors, particularly those using multimedia content, to ensure that all site content and functions are available to all users. Authors should not be discouraged from using multimedia, but rather should use it in a manner that ensures that the material they publish is functional for the widest possible audience. The GoC has adopted the W3C Web Content Accessibility Guidelines (WCAG) to ensure the majority of Canadians will find it relatively easy to use on-line information and services.

Standard 1.1 All GoC Web sites must comply with W3C Priority 1 and Priority 2 checkpoints to ensure sites can be easily accessed by the widest possible audience. Rationale This standard is the key requirement for accessible design in the GoC. It points to an existing international standard: the Web Content Accessibility Guidelines 1.0 recommendation, from the World Wide Web Consortium (W3C). The W3C checkpoints mentioned in the CLF standard are set out and defined in W3C’s recommendation.

That documentation explains the rationale behind each of fourteen basic guidelines for making Web sites universally accessible. Following each guideline are one or more actions that a page author must perform to meet the requirements of the guidelines. These actions are called “Checkpoints”. This CLF standard requires GoC Web sites to comply with Priority 1 and Priority 2 checkpoints. The Federal Court Decision [ 48 ] First, the Judge carefully reviewed the considerable evidence adduced before him (Judge’s reasons, at paragraphs 25 to 75).

Then, after setting out the relevant provisions of the Charter , he addressed three preliminary matters, i.e. the jurisdiction of the Court to hear Ms. Jodhan’s application, the Attorney General’s submission that the Court could not, in the circumstances of the case, provide a remedy to Ms. Jodhan’s system-wide complaint, and whether she was a public interest litigant. He first determined that the issue raised by Ms. Jodhan was a “matter” within the intendment of the Federal Courts Act . He then held, on the facts and pleadings before him, that Ms.

Jodhan could bring a systemic complaint “which affects her and others in the same position” (Judge’s reasons, at paragraph 86). Lastly, it was his view that Ms. Jodhan was a “public interest litigant”, noting that the Attorney General “has accepted this characterization of the applicant” (Judge’s reasons, at paragraph 87). [ 49 ] At paragraph 88 and following of his reasons, the Judge then turned to an assessment of the evidence. He made a number of findings, of which the following are the most pertinent for the purposes of this appeal: 1.

The Government of Canada made a commitment, originally in the 1999 Speech from the Throne, to provide both information and services online to Canadians. 2. In order to give effect to its commitment, the government issued a Communications Policy, pursuant to

section 7 of the Act , directing that communications by those departments and agencies subject to the Act be made in compliance with various statutes, including the Charter . 3. In 2000, the government issued the CLF 1.0 Standard, requiring that departments and agencies design and program their websites so as to make them accessible to the visually impaired by 2001. 4. A 2007 spot-audit of 47 departments by the CLF Office identified numerous failures by every department to meet the priority 1 and priority 2 checkpoints of the CLF 1.0 Standard. 5.

Although none of the departments complied with the CLF 1.0 Standard, the CLF Office concluded that in the case of 22 departments, “serious violations” had occurred. As a result, the CLF Office directed letters to the deputy heads of these departments, requiring them to take steps to bring their departments into compliance. 6. The CLF Standard is inadequate because interactive applications are not accessible. Rich Internet applications, i.e. dynamic, interactive websites, use ePass as a security channel.

These websites are used by 23 government departments to provide 83 online applications, such as for employment insurance or passports. For these websites to function, they must use particular technologies, such as “scripts” and “applets”, which, however, pose an access barrier to screen readers used by the visually impaired. 7. Although rich Internet applications are unable to function with scripts turned “off”, the CLF Standard obliges government websites to be made accessible by maintaining functionality with scripts turned off. In other words, the CLF Standard prevents government website

developers from creating rich Internet applications and, as a result, the government would be prevented from offering numerous onlineservices if the websites were made available as required by the CLF Standard. As a consequence, the CLF standard has been ignored bythe departments. These findings led the Judge to say, at paragraph 100: “Accordingly, the Court finds that the government should updatethe CLF Standard to refer to WCAG 2.0 and thereby incorporate the Guidelines which allow the accessibility of rich Internetapplications using ePass as a secure channel.” 8.

With regard to those government websites which do not use ePass as a security channel—in fact, the majority of the governmentwebsites—the CLF Standard has not been properly implemented and the evidence shows that there has been a “system-wide failure bygovernment departments and agencies to comply with the CLF Standard so that these Web sites are not fully accessible” (Judge’sreasons, at paragraph 101). 9.

The government’s Communications Policy requires it to provide its information through a variety of channels which, in the case of thevisually impaired, would mean the Internet, telephone, mail, in-person and, in respect of written material, the information would beprovided in Braille. 10. Although the CLF Standard requires the departments to use their “best efforts” to make the contents of their website accessible, therewas no satisfactory evidence presented to show what “best efforts” had been made.

Treasury Board witnesses took the position thatimplementation and compliance with the CLF Standard was the responsibility of the deputy head of each of the 106 departments andagencies subject to the Act. Although 93 government departments had internal CLF sections, these had been unable to impress upon thedeputy heads that their respective online services should be accessible to the visually impaired. [50] Following these findings, the Judge turned to the law and, in particular, to

section 15 of the Charter. He first turned his attentionto the Supreme Court of Canada’s decision in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483 (Kapp), where the Supreme Courtexplained that the true purpose of subsection 15(1) of the Charter was to ensure substantive equality, i.e. the idea that all Canadians were“recognized at law as human beings equally deserving of concern, respect and consideration” (Kapp, at paragraph 15, citing Andrews v.Law Society (British Columbia), (SCC), [1989] 1 S.C.R. 143 (Andrews), at page 171). [51] The Judge then pointed out that Ms. Jodhan was a member of a group falling within the ambit of

section 15, i.e. “the physical[ly]disa[bled]”, and that this group had suffered and continued to suffer discrimination, a fact which the Attorney General was notcontesting. [52] The Judge then turned to the framework for a

section 15 analysis. He indicated that the Supreme Court had provided guidance onthis issue though its decisions in: Andrews; Eldridge v. British Columbia (Attorney General), (SCC), [1997] 3 S.C.R.624 (Eldridge); Law v.

Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497 (Law); andKapp. [53] The Judge’s review of the Supreme Court’s decisions led him to state, at paragraph 140 of his reasons that in Kapp, the SupremeCourt had clearly enunciated, at paragraph 17, that the test for determining whether there had been discrimination was a two-part test: The template in Andrews, as further developed in a series of cases culminating in Law v. Canada (Minister of Employment &Immigration), (SCC), [1999] 1 S.C.R. 497 (S.C.C.), established in essence a two-part test for showing discriminationunder s. 15(1):

(1) Does the law create a distinction based on an enumerated or analogous ground?

(2) Does the distinction create adisadvantage by perpetuating prejudice or stereotyping? These were divided, in Law, into three steps, but in our view the test is, insubstance, the same. [54] The Judge then turned to the first part of the test and began with a preliminary point, which he characterized as the first stage ofthe first part of the test, i.e. identifying the impugned law and the appropriate comparator group. Relying on the Supreme Court’sdecision in Eldridge, he indicated that the government’s Communications Policy constituted a “law” within the meaning of

section 15 ofthe Charter. [55] After a brief review of the Communications Policy, the Judge opined that he was satisfied that this policy, coupled with the CLFStandard, conferred to Canadians the benefit of access to government services online, adding that the parties were in agreement that theappropriate comparator was sighted individuals who access government services online. [56] The Judge then dealt with the first part of the test and asked himself if the law created a distinction based on an enumeratedground.

The Judge sought to determine whether the Communications Policy and the CLF Standard created a distinction between thevisually impaired and those who were not. After stating [at paragraph 150] that both the Policy and the Standard were “facially neutral”with respect to website accessibility standards, he stated his view that the visually impaired were treated differently by reason of theirdisability, their visual impairment. The Judge indicated that he was satisfied that two systemic failures underlined the government’sfailure to provide online services that were accessible to the visually impaired.

First, the CFL 1.0 Standard, in regard to which thegovernment had directed that it be implemented by the departments many years ago, had not been implemented, nor had it been enforcedand clearly not made a priority by the deputy heads. The CLF 1.0 Standard was the one that applied to ordinary government onlineinformation services.

Second, with respect to the rich Internet applications which used ePass as a secure channel, they were notaccessible to the visually impaired. [57] These findings led the Judge to conclude as follows at paragraph 152 of his reasons: Accordingly, the Court concludes that the impugned law does create a distinction based on the enumerated ground of physical disability,that the applicant has not received the equal protection and benefit of the government policy to make its information and servicesaccessible to the public online, and that this arises from systemic failures pursuant to the application of the Communications Policy andthe CLF Standard. [58] The Judge then turned to the second part of the test and asked himself if the distinction created by the impugned law created adisadvantage for Ms.

Jodhan. After stating that not every difference created a disadvantage, the Judge stated that the equality guaranteed

by subsection 15(1) of the Charter was substantive equality, adding that substantive equality often required the making of a distinctionbetween disabled and non-disabled persons. For this proposition, he relied on the Supreme Court’s decision in Eaton v.

Brant CountyBoard of Education, (SCC), [1997] 1 S.C.R. 241 (Eaton) where, at paragraph 67, the Court expressed the view that inorder to prevent discrimination against disabled persons, the government might have to “fine-tune society” or “make reasonableaccommodation” so as to avoid “the relegation and banishment of disabled persons”. [59] The Judge also relied on the Supreme Court’s decision in Eldridge where, at paragraphs 77 and 78, the Court expressed the viewthat the government would be required, in some circumstances, to take special measures so as to allow disadvantaged groups to benefitequally from government services. [60] With these principles in mind, the Judge opined that, on the evidence before him, Ms.

Jodhan and others like her were notreceiving “the benefit of the government’s online services and information equally with non visually-impaired Canadians, and that theyencounter significant difficulties in being otherwise accommodated with the same information” (Judge’s reasons, at paragraph 157),noting that in three examples led before him, Ms. Jodhan had not been accommodated with written material in Braille.

Consequently, theJudge concluded that the distinction made by the impugned law created a disadvantage for the blind, adding at paragraph 158 of hisreasons: This is an adverse effect caused by differential treatment of the visually impaired, a physical disability enumerated under subsection15(1) of the Charter. This failure perpetuates a disadvantage which undermines the dignity of the visually impaired. This differentiationperpetuates the stereotyping and prejudice that blind persons cannot access and benefit from online government information and serviceswhich sighted persons can.

Of course, the evidence demonstrates that there is long-established computer technology which allows thevisually impaired to access computer programs and services, provided the Web sites are designed according to nine year old accessibilitystandards. [61] The Judge then discussed the idea of “reasonable accommodation”, stating that there were two elements to that idea. First, therewas the element that for

section 15 purposes, the government was obliged to take positive steps so that disadvantaged groups couldbenefit equally from services offered to all Canadians. According to the Judge, accommodation was, in that sense, an integral part of thesection 15 inquiry. [62] The second element of the idea of “reasonable accommodation” was that the government was only obliged to accommodate thosein need of accommodation by providing accommodations that were “reasonable”.

Citing a passage from La Forest J.’s reasons inEldridge, at paragraph 79, the Judge indicated that accommodation in that context meant to the point of undue hardship. I note thatLa Forest J., in the passage cited by the Judge, does not use the expression “undue hardship”, but rather that of “reasonable limits” in thecontext of a

section 1 analysis. [63] The Judge summarized his thoughts with regard to the idea of “reasonable accommodation” at paragraph 159, where he stated: Thus, in a

section 15 inquiry the first step must be to determine what reasonable accommodations would be necessary to ensuresubstantive equality. Any reasons for why these accommodations are not being offered are then to be considered at the justification stageunder a

section 1 of the Charter defence. However, the respondent does not plead any justification defence under

section 1 of the Chartereven though specifically challenged on this by the applicant. [Emphasis in original] [64] With regard to the first element of the idea of “reasonable accommodation”, the Judge turned to the case law and, in particular, tothe Supreme Court’s decision in Eldridge where the Court, citing the words of Sopinka J. in Eaton, held that not only did subsection15(1) of the Charter seek to prevent discrimination against disadvantaged groups, but sought to ameliorate their position within Canadiansociety.

This led the Judge to assert that the implementation of the CLF Standard would ameliorate the situation of the visually impaired.Further, relying on the Supreme Court’s decision in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15,[2007] 1 S.C.R. 650 (VIA Rail), the Judge stated that the visually impaired who sought independent access to online services and dignitywithout physical limitations were entitled to this right. [65] Finally, on this point, the Judge referred to Mosley J.’s decision in Canadian Assn. of the Deaf v.

Canada, 2006 FC 971, [2007] 2F.C.R. 323 (CAD), where the Court held that the government’s Sign Language

Interpretation Policy, which governed the manner inwhich sign language

interpretation was to be provided at meetings between public servants and deaf persons, was so under-inclusive asto be discriminatory. [66] This led the Judge to hold that the CLF Standard, like the Sign Language

Interpretation Policy in CAD, was an attempt by thegovernment to create a “reasonable accommodation” and that its failure to implement or enforce that standard has the same effect asfailing to develop any accessibility standards. Thus, the CLF Standard was so under-inclusive as to be discriminatory. [67] Finally, the Judge turned to the Attorney General’s submission on “reasonable accommodation”, i.e. that the visually impairedcould obtain information that was available online to the general public by other means, i.e. in person, by telephone and by mail.

Inassessing the merits of this submission, the Judge turned to the Supreme Court’s decisions in VIA Rail and Eldridge as well as that of theFederal Court in CAD, and concluded that the submission did not withstand scrutiny. The Judge held at paragraph 174 of his reasons: Based on the jurisprudence, the use of alternative channels is not a reasonable accommodation unless the respondent proved that it is nottechnically feasible to implement the CLF Standard or it would be so expensive that it would cause undue hardship in the context of asection 1 Charter defence.

The respondent expressly did not plead this defence even though specifically challenged on this by theapplicant. The only defence pleaded was that the applicant could obtain the information and services sought through alternativechannels. In three of the applicant’s examples this was not so.

In any event the Court has found that these other channels are so under-inclusive as to be discriminatory. [Emphasis in original.] [68] The Judge, at paragraphs 175 to 178, emphasized the fact that the Attorney General had not taken the position that it would havebeen unreasonable for the government to make its online services accessible to the visually impaired, adding that although both theCommunications Policy and the CLF Standard provided for the use of alternative measures where a federal institution was unable to

provide information or services online, the Attorney General had not made any attempt to argue that alternative means of communication constituted a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”. In other words, the Judge held that the Attorney General had not raised

section 1 as a defence. The Judge then stated that had an argument been made that providing accessibility to the visually impaired could only be done at a prohibitive cost or that it was not technically feasible or that the government had truly done its best to make the websites accessible, the Court would have considered these arguments as part of a

section 1 justification. [ 69 ] These findings and conclusions led the Judge to render the following judgment: THIS COURT ORDERS AND ADJUDGES that: 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 subsection 15(1) of the Charter ; 2.

It is also declared that the applicant’s inability to access online certain departmental Web sites is representative of a system-wide failure by many of the 106 government departments and agencies to make their Web sites accessible. The failure of the government to monitor and ensure compliance with the government’s 2001 accessibility standards is an infringement of subsection 15(1) of the Charter since it discriminates against the applicant and other visually impaired persons.

This declaration does not apply to stored government historical and/or archived information which is stored in a database and which the government shall retrieve and provide in an accessible format upon request; 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. Attorney General’s Submissions [ 70 ] In seeking the reversal of the Judge’s decision, the Attorney General makes a number of submissions: 1.

First, he says that the benefit of the law at issue is not, as found by the Judge, equal online access to government information and services, but rather effective access to government information and services by means of one channel or another in the context of a multi- channel delivery system. 2. As a second error, the Attorney General says that the Judge erred in finding that Ms. Jodhan had been discriminated against in the delivery of government information and services. 3. Next, he says that the Judge erred in interpreting

section 15 of the Charter so as to create an additional, free-standing right owed to Ms. Jodhan and other visually impaired persons by the government to monitor and ensure compliance with the CLF Standard. 4. The Attorney General also submits that the Judge erred in issuing a systemic declaration that applied to 106 government institutions without jurisdiction or sufficient evidence. 5.

Lastly, the Attorney General says that the Judge erred in retaining jurisdiction by means of a supervisory order without evidence of government delay or other unique circumstances to justify this extraordinary measure as part of a subsection 24(1) Charter remedy. The Issues [ 71 ] Two main issues must be determined by this Court on the appeal. First, did the Judge err in finding that Ms. Jodhan was denied equal benefit of the law, contrary to subsection 15(1) of the Charter ?

Second, did the Judge err by providing a system-wide remedy that included retaining jurisdiction to supervise the implementation of the remedy? To resolve these issues, it is necessary to determine: 1. The applicable standard of review; 2. Whether the Federal Court erred in finding that it had jurisdiction over the systemic application and the systemic remedy declarations; 3. Whether the Federal Court erred in finding that the government discriminated against Ms. Jodhan in violation of subsection 15(1) and that the discrimination was systemic; 4.

Whether the Federal Court erred in finding that the government could not justify its violation of subsection 15(1) because it had not raised a

section 1 defence; and 5. Whether the Federal Court erred in exercising its discretion to retain jurisdiction over implementation of the remedy granted. Analysis 1. What is the applicable standard of review? [ 72 ] This is an appeal from a judgment of the Federal Court in an application for a declaration, in which the Judge was the trier of

fact. Hence, the standards of review enunciated by the Supreme Court in Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, are applicable. Questions of law will be determined on the basis of the standard of correctness, while questions of fact and of mixed fact and law will be determined on the basis of the standard of palpable and overriding error, except where there exists an extricable question of law, in which case the standard will be that of correctness. [ 73 ] More particularly, questions of constitutional

interpretation are subject to the standard of correctness “because of the unique role of s. 96 courts as interpreters of the Constitution” ( Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ( Dunsmuir ), at paragraph 58 ). [ 74 ] In Pilette v.

Canada , 2009 FCA 367 , 319 D.L.R. (4th) 369, at paragraph 17 , Trudel J. said that once subsection 15(1) of the Charter had been interpreted, its application to the facts before a court was to be reviewed on the basis of the standard of palpable and overriding error: A question of constitutionality requires the standard of correctness, while the application of subsection 15(1) of the Charter to the facts of a case is reviewable on a standard of palpable and overriding error. [ 75 ] Thus, if the Judge incorrectly interpreted subsection 15(1) , then that is a question of pure law subject to the standard of correctness.

Similarly, subsection 24(1) of the Charter must be interpreted correctly because its

interpretation is also a question of pure law. However, once interpreted correctly, the choice of remedy thereunder involves the exercise of discretion to which deference must be afforded ( CAD , at paragraph 119). This Court “should refrain from using hindsight to perfect a remedy” and “should only interfere where the trial judge has committed an error of law or principle” ( Doucet-Boudreau v.

Nova Scotia (Minister of Education) , 2003 SCC 62 , [2003] 3 S.C.R. 3 (Iacobucci and Arbour JJ.) ( Doucet-Boudreau ), at paragraph 87 ). [ 76 ] With the above in mind, I now turn to the second question for determination. 2. Whether the Federal Court erred in finding that it had jurisdiction over the systemic application and the systemic remedy [ 77 ] The Attorney General says that the Judge erred in two ways. First, that he could not provide a remedy which went beyond the facts and issues put forward in the notice of application and in the form of the declarations sought.

Second, that a remedy could only be given to the individual claimant, i.e. Ms.

Jodhan. [ 78 ] More particularly, the Attorney General says that by reason of the pleadings and the evidence led by him in response to those pleadings, the Judge had to confine his remedy to the entities named in the notice of application, namely the Treasury Board, the Public Service Commission of Canada and Statistics Canada. [ 79 ] Although the main relief sought was couched in broad terms, i.e. for the Treasury Board’s failure to “develop, maintain and enforce” the proper standards of accessibility, it was sought solely against the Treasury Board and not against the 106 departments.

As to the two specific reliefs sought against the Public Service Commission of Canada and Statistics Canada, I note that the Judge made no declaration in regard to those reliefs and that no appeal was taken in regard thereto. Thus, all that is before us in this appeal is the relief sought by Ms. Jodhan against Treasury Board. [ 80 ] In my view, save in one respect, the Attorney General’s arguments cannot succeed. [ 81 ] In Northwest Territories (Attorney General) v.

Fédération Franco-Ténoise , 2008 NWTCA 6 , 440 A.R. 56 ( Fédération ), where the Attorney General similarly argued that the pleadings were not sufficient to justify the systemic relief granted by the Judge, the Northwest Territories (NWT) Court of Appeal held, at paragraph 72, that: The function of pleadings is to set out the relevant facts; if they disclose a cause of action, the cause of action can be dealt with by the court. [ 82 ] The Court of Appeal further opined, at paragraph 73, that to raise an issue of systemic breach, the pleadings need only “describe a reasonable number of representative breaches, indicating that these are part of a pattern of conduct.” [ 83 ] I am satisfied that the pleadings in the present matter, when examined fairly, put forward a systemic violation of subsection 15(1) of the Charter .

However, as I have already indicated, the allegations made and the declarations sought only pertained to the Treasury Board’s failure to develop, maintain and enforce the proper standards of accessibility. [ 84 ] First, in her notice of application, Ms. Jodhan sought a declaration that Treasury Board’s failure “to develop, maintain and enforce standards which ensure that all Government of Canada websites and online services are accessible for all individuals with visual impairment” infringed her right to equal benefit of the law under subsection 15(1) and that the infringement was not justified under

section 1 of the Charter . [ 85 ] Second, paragraphs 13 to 22 of the notice of application set out the factual basis upon which the sought-after declaration depends and puts in issue the steps taken by the Treasury Board to make accessible to the visually impaired the websites of the 106 departments under its authority. [ 86 ] It cannot then be argued, in my opinion, that a new ground was put forward by Ms.

Jodhan at the hearing and that the Attorney General was not given the opportunity to respond thereto by providing additional affidavits. [ 87 ] However, none of the 106 departments under the supervision of the Treasury Board are parties to this application, except for the Public Service Commission of Canada and Statistics Canada. The Attorney General was named as a respondent in his capacity as representative of the Treasury Board, the Public Service Commission of Canada and Statistics Canada. The allegations made by Ms. Jodhan and the declarations sought are directed only at these entities.

[ 88 ] Both the Communications Policy and the CLF Standard, which are at the heart of these proceedings, are creations of the Treasury Board. Consequently, the declaration with systemic consequences sought by Ms. Jodhan must, by reason of the pleadings, be limited to the content of the policies at issue and to the Treasury Board’s actions pertaining to the enforcement and implementation of the standards. [ 89 ] In my view, the implementation of the Treasury Board’s standards by the 106 departments was not the issue raised in the pleadings and thus the remedy to which Ms.

Jodhan is entitled cannot be a declaration directed at the 106 departments. Thus, to the extent that the order made by the Judge is directed at those departments which were not named in the notice of application, it must be set aside. [ 90 ] With regard to the second point raised by the Attorney General—that the Judge could not fashion a remedy beyond the individual claimant, i.e. Ms. Jodhan—I agree entirely with the position taken by Ms. Jodhan.

In my view, subsection 24(1) did not prevent the Judge from making a systemic order. (See Eldridge and Doucet-Boudreau where systemic orders were upheld by the Supreme Court under subsection 24(1).) [ 91 ] What subsection 24(1) prevents, contrary to

section 52 [of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], is the commencement of a proceeding where the claimant is not directly affected by an impugned law. In other words, the matter is one of standing as subsection 24(1) requires a claimant to have been directly affected by an impugned law whereas

section 52 does not (see R. v. Ferguson , 2008 SCC 6 , [2008] 1 S.C.R. 96, at paragraph 61 ). [ 92 ] In addition to his arguments regarding the jurisdiction of the Court to issue the systemic remedy, the Attorney General says that the Judge lacked an evidentiary foundation to make the systemic declaration. More particularly, the Attorney General says that the various reports and audits before the Judge fall short of being able to support the Judge’s broad ranging conclusions. [ 93 ] Before the Judge were numerous reports and/or audits pertaining to the accessibility of the government’s websites.

First, there were reports concerning the accessibility of ePass. Second, there were government internal and external reports concerning specific departmental websites assessing their compliance with the CLF Standard. Finally, there were international reports concerning the accessibility of various government websites. [ 94 ] With regard to the first category of documents, the Judge found that the CLF Standard “failed to address and allow ‘rich Internet applications’ that use ePass as a security channel” (Judge’s reasons, at paragraph 95).

This led the Judge to find that the CLF Standard gave Web site developers only one option, i.e. either to make their sites accessible to the visually impaired and thus not creating rich Internet applications or creating rich Internet applications and thus not making their sites accessible. [ 95 ] In the Judge’s opinion, the solution to the above problem was for the government to update the CLF Standard in accordance with the WCAG 2.0 guidelines which would thus allow the creation of rich Internet applications accessible to the visually impaired using ePass as a security channel. [ 96 ] The Judge’s findings were based on four reports prepared by the government concerning ePass.

These reports which assessed, inter alia , the security of ePass, were to the effect that it was not accessible to the visually impaired. [ 97 ] The second group of documents consisted of reports which assessed specific departmental websites for compliance with the CLF Standard.

Included in this category are internal and external audits which demonstrate that federal government websites significantly failed to meet the CLF Standard. [ 98 ] The third category of documents is made up of two international reports, one issued by the United Nations and the other by the European Commission, which assessed, inter alia , the accessibility of various Canadian government websites.

The Judge found that these reports were to the effect that most of the leading government websites, including those of the Government of Canada, did not meet international accessibility standards for the visually impaired. [ 99 ] In addition to the documentary evidence, there was further evidence regarding the lack of accessibility of federal websites. That evidence consisted of the affidavit evidence of a number of witnesses called by the parties.

More particularly, there was the evidence of, inter alia , John Rae, a past president of the Alliance for Equality of Blind Canadians, the intervener in this case, that of Jutta Treviranus, Ms.

Jodhan’s expert witness, that of Ken Cochrane, the Chief Information Officer of the Government of Canada, that of Steve Buell, the project lead Accessibility Integration, Accessibility Centre of Excellence within Service Canada, and finally that of Nancy Timbrell- Muckle, the director Citizen Employment Service, Service Offering and Implementation Directorate, Citizen Service Branch, Service Canada. [ 100 ] The Judge carefully reviewed the affidavit evidence and made crucial findings of which the following are the most relevant: 1.

Both Ken Cochrane and Steve Buell acknowledged that ePass was inaccessible and that it did not comply with the CLF Standard. Mr. Buell acknowledged that there were many instances of non-compliance with the CLF Standard on government websites. 2. Nancy Timbrell-Muckle testified that the “Job Bank” and the “Job Match” links

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