Jodhan v. Canada (Attorney General)

Jodhan v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2010-11-29
Neutral citation
2010 FC 1197
File numbers
T-1190-07
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20110209
Docket: T-1190-07
Citation: 2010 FC 1197
Ottawa, Ontario, February 9, 2011
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
DONNA JODHAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
AMENDED
(Pursuant to Court Order dated February 9, 2011)
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for a declaration under section 18.1 of the Federal Courts Act R.S.C. 1985, c. F-7 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 section 15(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter).
TABLE OF CONTENTS
Paragraph Number
THE PARTIES................................................................................................................... [2]
BACKGROUND FACTS.................................................................................................. [5]
THE EVIDENCE – FIVE TYPES.................................................................................... [25]
ISSUE ............................................................................................................................. [75]
RELEVANT LEGISLATION.......................................................................................... [76]
ANALYSIS..................................................................................................................... [80]
PRELIMINARY LEGAL MATTERS.................................................................. [80]
ASSESSMENT OF THE EVIDENCE................................................................. [88]
APPLYING THE LAW..................................................................................... [132]
CONCLUSION............................................................................................................. [179]
LEGAL COSTS............................................................................................................. [180]
JUDGMENT.............................................................................................................. Page 72
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 Masters in 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 websites 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 website 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 website users. Examples of such websites 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, a policy issued by the Treasury Board pursuant to section 7 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, 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 websites 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 4 standards included instructions on developing websites 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:
Government must . . .
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” website content aloud to the user, and “Braille output devices,” which are devices that convert website 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, 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 website 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 websites 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 website content. Ms. Waddell, the respondent’s expert witness, described priority 1 checkpoints as follows at para. 62 of her affidavit.
Ms. Waddell is a United States-based expert on website 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.
¶62. 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 websites should have “text equivalents” 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 website should not only describe the picture in its text equivalent, but should explain that the picture will link the user to another website. 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 website content “should” implement, in order to ensure that no group will “find it difficult” to access the website. In para. 62 of her affidavit, the respondent’s expert Ms. Waddell described Priority 2 checkpoints as follows:
¶62. 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 website content “may” implement, in order to prevent some groups from finding it “somewhat difficult” to access website content.
[19] The CLF 1.0 Standard requires that government website 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 in December 2008 (WCAG 2.0). 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 heads” – 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 on different departments and agencies. The CLF Office does not conduct ongoing monitoring of departmental websites 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 websites 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 websites 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 websites to the visually impaired.
1st type of evidence: International reports surveying the accessibility of Internet websites around the world
[26] The parties introduced two international reports that evaluate websites with respect to their accessibility to persons with disabilities. The United Nations Report concluded that leading websites 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 countries in which it was found that only between one and twenty-five percent of governmental websites 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 2006 United Nations Global Audit of Web Accessibility (Nomensa Bristol, London: 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 website accessibility across different sectors around the world. In Canada, the website audited as a representation of the “government” sector was the website of the Prime Minister’s Office, a site not subject to the CLF Standard. While this audit did not look at any Canadian government websites subject to the CLF Standard, its overall conclusion was that leading websites around the world do not comply with international standards for accessibility; and
(ii) A report commission by the European Commission, Measuring Progress of eAccessibility in Europe, dated October 2007, which looked at 6 public sector and 6 private sector websites in each of the EU member states, Australia, the US 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 website 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.” 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 US, 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 websites, Canada was ranked roughly on par with the US and with 9 EU-25 countries, in which it was found that between 1 and 25 percent of governmental websites 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 websites achieved “basic” levels of accessibility, while in 2 EU-25 countries over 50% of government websites achieved that level of accessibility. While it is therefore clear that no country can boast accessible websites, 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 websites. 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.
2nd type of evidence: Canadian Reports regarding compliance of government websites with accessibility standards
[28] The parties provided a number of reports demonstrating that federal government websites 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 websites 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 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 nongovernmental organization based in Montréal, Québec, entitled Accessible, les site web au Québec? The audit consisted of an evaluation of 3 representative web pages on each of the 200 websites most popular among French Canadians. Of these websites, the Canadians government websites were ranked highly, but none of the websites 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 website for compliance with the CLF Standard, and found a number of failures of Priority 1 and 2 checkpoints of the WCAG 1.0. In addition, the author conducted cursory checks of a select few major government websites, 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.
3rd 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 six 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 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.
4th type of evidence: The applicant’s evidence regarding barriers to access on government websites
[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.gc.ca
[31] The applicant testified that in September, 2004 and again between March and June, 2007, she visited the jobs.gc.ca website maintained by the Public Service Commission on behalf of the Public Service Resourcing System. As the respondent’s witness Diane Beauchamp explained, the jobs.gc.ca website is the only official site for all externally advertised federal government positions. Interested applicants may apply directly through the website 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 website. 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.gc.ca
[33] The applicant testified that in addition to encountering difficulties in browsing the jobs posted at the jobs.gc.ca website, she was unable to complete an online profile at the website 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 website. 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 website. 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 website 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 webpage, 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 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 (N.p.: Minister of Public Works and Government Services, 2006) at 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 websites 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 2.0, chairing the Web Access Initiative, Authoring Tools group of the World Wide Web Consortium, and numerous publications.
[46] Ms. Treviranus’s 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 websites with new technologies. These include the Authoring Tool Accessibility Guidelines 1.0 and a draft of an updated Authoring Tool Accessibility Guidelines 2.0, which describe tools that can be used by website developers to help them ensure that they are building accessible websites at the design stage. Ms. Treviranus stressed that initially creating accessible websites is much easier than trying to fix accessibility problems once websites 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 website 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 website (for example, “flash” is a technology that cannot be read by many screen readers. If a website 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).
5th type of evidence: The respondent’s evidence
[49] The respondent’s evidence is contained in the affidavits and attached exhibits of two (2) expert witnesses and the evidence of ten (10) government employees regarding the specific departmental websites impugned by the applicant.
1st 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.
2nd 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 th