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l’azile » federal government files a motion for Reconsideration in the Jodhan case

January 1, 2011

federal government files a motion for Reconsideration in the Jodhan case

catherine @ 7:18 pm

Update: Since the publication of this post, the Government of Canada has filed an appeal in addition to the motion for reconsideration. From what I understand, an appeal on a protective basis was filed on December 29 2010, giving the government an extra ten days to appeal the November 29 decision and the appeal itself was then filed on January 7 2011. This information took a while to be published on the Court Index and Docket website and I was only made aware of these developments on January 10 so please keep this in mind while reading this post. These developments do not however change the opinions expressed herein. I will try to write a follow-up soon. (CR - 11-01-2011)

Disclaimer: I want to make absolutely clear that any views expressed in the following article are my own and, as far as I know, do not necessarily reflect the views of the organizations I am affiliated with. Also, I know a lot of individuals who work in government and the following views are not in any way a judgment on their commitment and their work. Finally, I am not a lawyer. And I do not play one on TV.

For the last month or so, many people in Canada had been waiting to find out whether or not the Canadian government would appeal the decision in the case of Donna Jodhan v. the Attorney General of Canada. The Government of Canada had 30 days to appeal the judgment rendered by the Honourable Justice Kelen on November 29. On that day, the Judge essentially ruled that the inaccessibility of federal government websites is a violation of Article 15 (1) of the Canadian Charter of Rights and Freedoms as it constitutes discrimination based on disability towards Ms. Jodhan and others with visual impairments. The ruling further stated that the Canadian government had 15 months (now roughly 14 and counting down) to make its websites more accessible.

the story so far

Following, by her own account, several years of struggling with key government websites, of basically getting nowhere with regards to obtaining equal accommodation, of getting the Human Rights Commission involved and of fruitless negotiations, Ms. Jodhan, who has a visual impairment, finally decided to sue the Government of Canada in 2007. The case was heard last September and, in what certainly seemed like record time, the Judge rendered his “landmark decision” in November.

Not only did Justice Kelen’s decision stipulate that “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” but it also recognized “that the applicant’s inability to access online certain departmental websites is representative of a system wide failure by many of the 146 government departments and agencies to make their websites accessible”.

This is rather significant since, as the judgment points out, the government seems to have failed to monitor and ensure compliance with its own accessibility standards, the Common Look and Feel (CLF) standards, version 1.0 of which was required to be implemented by December 31, 2002 (no link available). Of note, the government later released CLF 2.0 which required compliance by December 31, 2008. But, as the judgment relates in excruciating detail, at least seven years after the government’s initial commitment to accessibility, many federal websites did not meet basic accessibility requirements (see judgment for information on results from studies conducted by independent firms as well as through internal audits by the government itself).

I will not go any further into the details of the initial case as, not only is the judgment available online, but it has also received a lot of coverage from mainstream and social media as well as the blogosphere. I will permit myself to say that while I recognize the judgment may not be perfect, on a personal level, as a person with disabilities and as a forward-thinking human being, I was happy about the outcome as I feel it marks a significant achievement with regards to human rights and disability rights in Canada. It also sends a message to other governments in the country. A message that basically says “Hey, guess what? The mild-mannered status quo no longer applies. Ignore the rights of people with disabilities and be prepared to go to court… and lose.”

you know what would make a good story?

Well, it would seem that long before anyone had the chance to really figure out how they felt about the outcome, long before some people started clamouring for an appeal, the Government of Canada had already made up its mind. On December 8, 2010 (stamped December 9), it very quietly filed a motion for Reconsideration. On December 22, written directions were received from Chief Justice Lutfy to the effect that the Respondent’s motion for Reconsideration would be heard on February 8, 2011.

I received a copy of the motion December 30 which confirms that the government is not appealing the initial judgment per se (if you read the November 29 decision carefully, you will find that the government never really disputed its websites were not accessible or poorly so but argued that other means were available to access the information or services offered online, such as by telephone or in person or by snail mail). So to be clear, this is not an appeal of the decision itself but a request for review on technical grounds (more on that later).

The motion states (I have purposely removed all the italics found in the original text, as they were not used for emphasis):

THE MOTION IS FOR reconsideration of the Judgment of Justice Kelen, dated November 29, 2010, and for the issuance of the amended Judgment:

a) amending the first sentence of paragraph 2 of the Judgment to replace the number of departments listed as 146, with the correct number of 106, such that it would now read: “It is also declared that the applicant’s inability to access online certain departmental websites is representative of a system wide failure by many of the 106 government department and agencies to make their websites accessible.” (the amended number sought is bolded);

b) amending the Judgment to address two accidental slips relating to the Applicant’s requests for relief, namely:

i) the omission of a provision to make an exception for “stored content”, which could be remedied by inclusion of the relief sought by the Applicant for a declaration that “in the case of stored content, the GC shall provide such content in an accessible format upon request (stored content refers to information that is stored in a database and is retrieved or displayed upon request by a user”; and

ii) the inclusion of declaratory relief relating to the alleged “failure of the government to monitor and ensure compliance” standards notwithstanding the withdrawal of the Applicant’s request for this relief, which could be remedied by deletion of the second sentence of paragraph 2 of the Judgment;

c) such further and other relief as counsel may advise and this Honourable Court permit.

I will forgo reproducing the rest of the 129-page scanned PDF document. If you are interested, you can order the motion and pay the 40 cents per page charge as I did. Or, you can ask me nicely and I can send it to you (hopefully, you will have no problem reading a scanned PDF file).

the unread story is not a story… or is it?

So what does the government’s motion boil down to?

First, the government is asking to amend the number of ministries, departments and agencies from 146 to 106 on the basis that the CLF standards only apply to government institutions listed in Schedules I, I.1 and II of the Financial Administration Act, R.S.C. 1985, c. F-11.

This may seem like a detail - after all, the regulation regarding CLF’s scope is longstanding. But in my mind, exclusions are important. For example, from what I understand, the Prime Minister’s Office would not be part of the 106 entities targeted. Can anyone give me a good reason why? Also, are we so sure that the other departments or agencies to be excluded will never have to deal with accessibility? Perhaps they are so… high-level? that their electronic content or applications will never be used or viewed publicly? Are we so sure that a person with a disability will never, for example, work in one of these agencies and therefore need access to such content or applications? And if we are sure, what does that mean? So basically, what I am saying is that, if the revised number means to exclude certain agencies or departments, I want to know why. And I want to know why we cannot revisit that idea.

Second, the government asks for the correction of “two accidental slips” (Rule 397 of the Federal Court Rules gives the Court jurisdiction to correct post facto any inadvertent mistake which is shown to have occurred in a decision):

“the omission of a provision to make an exception for ‘stored content’, which could be remedied by inclusion of the relief sought by the Applicant for a declaration that “in the case of stored content, the GC shall provide such content in an accessible format upon request (stored web content refers to the information that is stored in a database and is retrieved or displayed upon request by a user)”; And

“the inclusion of declaratory relief relating to the alleged ‘failure of the government to monitor and ensure compliance’ standards notwithstanding the withdrawal of the Applicant’s request for this relief, which could be remedied by deletion of the second sentence of paragraph 2 of the Judgment”.

Now, this is, under the guise of “technicalities”, where the big deal lies. It seems to me that the definition of “stored content” offered is awfully vague and could be interpreted to mean anything, at the very least a vast majority of web content produced not only in the past but also in the future by the federal government. The grounds stated for this change indicate that the “(…) Applicant specifically amended the relief sought by asking for the following exemption for ‘stored content’: ‘An order that the GC shall provide stored web content in an accessible format upon request (stored web content refers to the information stored in a database and is retrieved or displayed upon request by a user’” and that the “The Court’s Judgment does not address itself to the ‘stored content’ exception sought by the Applicant”.

Whoa! Slow down there, partner! I think the term “stored content” needs to be better defined or replaced altogether. I do not really care if the Applicant’s amended sought relief is the source of this half-ass definition. And I am not convinced this was an “accidental slip” on the Judge’s part (if it was, it is a happy coincidence). Most importantly though, I think people with disabilities, through their representative organizations, need to contribute to the process of defining this term or better yet, of defining how existing content and applications will be handled. While I agree that some existing content is not worth the trouble of making accessible at the moment and that a lot of it can probably be handled upon request, there is existing content that must be made accessible now or soon or, at the very least, sooner than later. And I want to know who will get to decide what content and applications are targeted and when. These decisions can certainly not be left up to one individual (via a lawsuit or settlement) or civil servants and industry “experts” alone.

The government is also requesting that the Judge delete the second sentence of paragraph 2 of the Judgment. The grounds for this request would seem to be that, “on the hearing of the Application, the Applicant withdrew the declaration sought in the Notice of Application relating to the alleged failure ‘to develop, maintain and enforce standards which ensure all government of Canada websites and online services are accessible for all individuals with visual impairments’”.

I am not privy to why the Applicant would have withdrawn this declaration so I cannot really comment on that. But what the request from the government suggests to me is a displacement of responsibility. Indeed, it would suggest that while the Judgment recognizes that Ms. Jodhan “has not received the equal benefit of the law without discrimination based on her physical disability and that this is a violation of section 15(1) of the Charter” (as declared in paragraph 1), “the failure of the government to monitor and ensure compliance with the government’s 2001 accessibility standards” has nothing to do with it. I guess the Charter violation happened by itself. I guess the inaccessibility of government websites happened by itself too.

Finally, the government requests “such further and other relief as counsel may advise and this Honourable Court permit”, which, quite frankly, could mean anything and everything.

can I tell you a story?

I am probably painfully obvious in my reasoning. But it seems to me that this latest move is not really constructive or useful. It seems to me we would have been better off formulating a plan that can rally everyone and move things along. As it stands officially, we risk waiting more than another month before even having these people sit down in the same room and talk. And it also seems to me the request for Reconsideration contains, under the seemingly inoffensive appearance of “corrections”, ways to seriously undermine the important gains made in this precedent-setting case. I hope the Applicant will pay attention. And I hope the Judge is not swayed by this strategy.

I think one of the interesting things about this motion for Reconsideration is what it leaves out. Namely, the infamous 15-months deadline. Indeed, this seemed to be a major irritant for several people in the accessibility industry and it was even suggested that the government should appeal on the grounds that 15 months is not a reasonable deadline to make millions of web pages accessible (I guess some people forgot they had signed, earlier this year, an online petition requesting that “(…) all information and services offered through Federal Government websites be made to comply with WCAG 2.0 guidelines by December 31, 2010”). Personally, I always felt appealing was a dreadful idea. Not only does it risk being a public relations nightmare (not that the present government has ever seemed particularly worried about that) but, most notably, it represents more costs and more delays in an already costly and dragged out situation.

And besides, I always felt the deadline was rather secondary. In 15 months’ time, when the Judge evaluates the progress of this case, if the government can prove it has in good faith made reasonable efforts to comply, I doubt anyone could credibly reproach the government of not making that deadline. Regardless, it is interesting to note that the government has not addressed the deadline issue in its request for Reconsideration. I am not an expert in this regard but I suspect this type of request may not permit it. Or perhaps the truth is that the seemingly minor technical changes requested by the government would inadvertently solve that problem…

There is so much more I could say about this issue but I am going to end this already very long post with a list of my wishes for the New Year in this matter:

  1. I want to see a stop to a waste of time and resources that pursuing this request for Reconsideration represents.
  2. I want to see a real plan for making Canadian government websites accessible to all people with disabilities, including the treatment of existing content in lieu of this dangerous blanket notion of handling “stored content” upon request.
  3. I want all stakeholders (government, people with disabilities, industry experts) to be contributors to that plan and to the solutions therein.
  4. And then, I want to see the government roll up its sleeves and do the work.

End of story.

6 Comments »

  1. I wrote a longer response before my browser refreshed by accident and I lost it. So a shorter response this time. Annoying, but..

    I did sign the petition in question, but still not sure how the 15 month time frame is possible as it was originally written. It’s a huge task with millions of pages.

    Your 4 point summary was great! Definitely needs to be repeated over and over again. This is so much the right approach!

    Comment by Mike Gifford — January 2, 2011 @ 7:55 pm

  2. Hi Mike,

    Thanks for the comment. Sorry you lost the first one.

    By the way, I signed the petition too and I think it was the right thing to do. I certainly do understand how deadline issues could be a source of worry but my point is that I believe people are focusing on the wrong thing.

    In any case, I think we can all agree that it is time to get this show on the road!

    Comment by catherine — January 2, 2011 @ 8:31 pm

  3. Absolutely. Definitely have to quickly move this from the lawyers desks and to folks who can actually & earnestly begin chipping away at this issue.

    Comment by Mike Gifford — January 3, 2011 @ 2:06 am

  4. Thanks for your post Catherine,
    I particularly like, and agree with, your comment on the deadline being secondary. It is not cause for panic, but for an earnest effort to improve things.
    Cheers

    Comment by Jeff Braybrook — January 3, 2011 @ 2:42 pm

  5. Thanks Catherine, for helping us to stay on top of this.

    Could you please send me (billATdisability.org) The PDF’d motion that you referred to in your post? I would like to review it and will respond back with any observations for what it’s worth.

    Also, and at this point I’m only speculating, referring to your concerns:

    The limitations of the court with respect to enforcing implementation on the federal government - specifically the executive branch - might be related to the fact that it is a separate branch of government (just as the executive is limited in it’s power over the courts)

    Why include some, but not other, government departments? Again, I suspect, it’s related to the limited reach of authority. This time (I suspect) the Treasury Board. Some of the government’s agencies fall outside the power of TB to enforce policies.

    Again, having not enough information (and no legal training) please takes these thoughts for what they are, just speculation.

    Cheers

    Comment by Bill Shackleton — January 12, 2011 @ 3:27 pm

  6. If “stored content” includes items such as forms that people can download to fill out or special documents they need to read, having these in accessible format is very important. It certainly is great if the site is accessible, but not too helpful if you cannot use the forms and documents you are there to download.

    Comment by Megan — January 13, 2011 @ 10:02 am

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