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l’azile » overkill: Canadian government files appeal in the Jodhan case

January 18, 2011

overkill: Canadian government files appeal in the Jodhan case

catherine @ 2:00 pm

As I mentioned briefly in an update to my January 1 post on the Jodhan ruling, the federal government has filed an appeal in addition to their motion for reconsideration. Apparently, 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 become public (probably, as the court officer I spoke to speculated, because it lay around on someone’s desk for a while). Anyway, I have since received a copy of the government appeal that I am reproducing in its entirety hereafter (it is not available online but it is public).

APPEAL

THE APPELLANT APPEALS to the Federal Court of Appeal from the Judgment of the Honourable Mr. Justice Michael Kelen dated November 29, 2010, whereby he granted, with costs, the Application for Judicial Review and determined that the implementation of the federal government’s Internet accessibility standards, and the standards themselves, breached the s. 15(1) Charter right of the Applicant to equal benefit of the law as a visually impaired individual.

THE APPELLANT ASKS that this Appeal be allowed, the said Judgment of Kelen J. be set aside and the Application for Judicial Review be dismissed, with costs.

THE GROUNDS OF APPEAL are as follows:

BROAD PRINCIPLES

1. The judge erred in finding that a claim made by way of an application for judicial review that certain web sites were inaccessible at certain points in time in the past can be declared “representative of a system wide failure by many of the 146 government departments and agencies to make their web sites accessible” at the present time without either the originating process having impugned the accessibility of all web sites at all times or the Court having evidence to allow for such a declaration.

JURISDICTION

2. The judge erred in law by exceeding his jurisdiction in finding a system wide failure without evidence that a party other than the Applicant was “directly affected,” as required by section 18.1(1) of the Federal Courts Act.

3. The judge also erred in law and exceeded his jurisdiction:

a) by issuing a remedy that applies to 146 government departments and agencies when the Common Look and Feel Standards 1.0 (“CLF 1.0”) applied only to 106 government institutions as listed in Schedules I, I.1 and II of the Financial Administration Act;

b) by issuing a remedy that applies to all government web sites at the present time without evidence as to the implementation of the Common Look and Feel Standards 2.0 (“CLF 2.0”) having been before the Court, given that the implementation deadline for these updated standards fell after the Respondent had served his evidence; and

c) by finding that “Rich Internet Applications” (“RIAs”) were inaccessible to the visually impaired, when none of the web sites accessed by the Applicant and that were challenged in her Notice of Application in fact used RIAs.

EVIDENCE

4. The judge erred in misapprehending, misconstruing or failing to consider the relevant and admissible affidavit evidence before the Court.

5. The judge erred by making findings of fact on the basis of insufficient or, in some instances, a complete absence of evidence to support his findings. In particular, the judge:

a) erred in determining that the “evidence demonstrates on the balance of probabilities that there is a system wide failure by government departments and agencies to comply with the CLF Standard” when there was no evidence concerning the current accessibility of web sites of all government departments and agencies and the only evidence before the Court was with respect to the web sites of three departments, namely the Public Service Commission, Statistics Canada and Service Canada prior to December 31, 2008;

b) erred in finding that the government institutions that used ePass had done so in a manner that made their web sites inaccessible to the visually impaired in the absence of evidence demonstrating that a visually impaired person had attempted to access such web sites and was unable to do so by reason of design of the program or application;

c) erred in concluding that “failures” of Web Content Accessibility Guidelines 1.0 (“WCAG 1.0”) checkpoints noted in Treasury Board Secretariat’s spot check audits on 14 web pages of 47 department web sites (prior to the CLF 2.0 implementation deadline) demonstrated that the web sites at issue were inaccessible; and

d) erred in finding that the Internet accessibility standards outlined in CLF 1.0 are essentially the same as those set out in CLF 2.0.

SECTION 15(1) OF THE CHARTER

6. The judge erred in ruling that section 15(1) of the Charter had been breached, and in particular:

a) by concluding that the Applicant had discharged her onus of proof;

b) by concluding that a law creates a distinction based on the enumerated ground of physical disability and that the Applicant and other visually impaired individuals – who were not before the Court – have been subject to differential treatment based on their physical disability;

c) in finding that the Applicant had a right to equal online access to government information and services;

d) in misapprehending the CLF Standards to require equal online access to all content on government web sites as opposed to allowing for the government to provide the content by alternative formats or channels;

e) by misunderstanding how the concept of reasonable accommodation relates to a section 15(1) Charter analysis, and by effectively relegating considerations of reasonable accommodation to the section 1 stage of the Charter analysis; and

f) by declining to consider, at the section 15(1) stage of the Charter analysis, whether the Applicant had been reasonably accommodated and by failing to find that the alternative formats offered satisfied her s. 15(1) right.

7. In the alternative, if the judge was correct to find a s. 15(1) breach, the judge erred by not limiting his finding of a breach of the Applicant’s s. 15(1) right to equal online access to:

a) the particular web sites at issue, at the particular times at issue, all before the implementation deadline of CLF 2.0 by December 31, 2008;

b) at most, the web sites of government institutions listed in Schedules I, I.1 and II of the Financial Administration Act.

8. The judge erred in finding that the “failure to monitor and ensure compliance with the government’s 2001 accessibility standards” itself breaches section 15(1) of the Charter.

9. The judge erred in determining that there was admissible and reliable evidence that allowed the Court to conclude that the government had failed to monitor and ensure compliance with the CLF 1.0 standards, and, in particular, by ignoring or failing to consider the evidence on the extensive efforts and the mechanisms in place for monitoring and enforcement by both Deputy Heads and the Treasury Board Secretariat.

10. The judge erred in determining that the CLF 1.0 standards were underinclusive.

SECTION 1 OF THE CHARTER

11. The judge erred in finding that the Appellant had not demonstrably justified under section 1 any breach of section 15 Charter rights alleged by the Applicant.

12. The judge erred in equating reasonable accommodation with a section 1 Charter analysis, and by substituting a reasonable accommodation analysis, and, in particular, the concept of undue hardship, for a section 1 Charter analysis based on the test in R. v. Oakes.

13. In particular, the judge erred in finding under section 1:

a) that the Applicant was not reasonably accommodated in respect of her application for a job with Statistics Canada through the Public Service Commission;

b) that the Applicant was not offered reasonable accommodation on the Statistics Canada web site; and

c) that the Applicant was not offered reasonable accommodation on the Service Canada web site.

REMEDY

14. The judge erred in fashioning an overly broad, system-wide remedy with application to as many as 146 government institutions when the Applicant’s originating process, and the evidence before the Court, only concerned the inaccessibility of five (5) web sites of three (3) different government institutions at three (3) points in time prior to 2008.

15. The judge erred in fashioning a declaration equivalent to a mandatory order without examining the need or the legal test for a mandatory order, declaring that the government must “bring itself into compliance with the Charter within a reasonable time period, such as 15 months”.

16. The judge erred in finding that he, as a judge of the Federal Court on an application for judicial review, has the jurisdiction and ability to retain jurisdiction over the implementation of the remedy in the circumstances of this case, contrary to the principle of functus officio and the statutory requirements of the Federal Courts Act.

17. The judge erred in retaining jurisdiction over the implementation of this declaration without providing any reasons for doing so and absent any factual or legal need to do so.

18. The judge erred in fashioning a remedy that does not respect the constitutional separation of powers, and that unnecessarily intrudes into the sphere and institutional competency of another branch of government – the executive.

19. The judge erred in fashioning a remedy that includes continuing judicial supervision absent evidence that government institutions would not have complied in good faith and promptly with any declaration.

20. The judge erred in omitting to include in his Judgment an exception for “stored content” as requested by the Applicant in her declarations sought, or in not providing reasons on point.

21. The judge erred in including in his Judgment a declaration that the government had failed to monitor and ensure compliance with its 2001 accessibility standards when the Applicant no longer sought such a declaration.

22. The judge erred in granting costs to the Applicant in the amount of $150,000.

23. Such further and other grounds as counsel may advise and this Honourable Court may allow.

24. The Appellant proposes that this appeal be heard in the city of Toronto.

I will be brief in my comments because I am combating the nastiest and most relentless flu I have ever had in my life at the moment. Mainstream media has picked up on this latest development and others, such as the Canadian National Institute for the Blind, have publicly lambasted the government for pursuing an appeal.

And with reason. As I wrote in my earlier post on this issue, appealing is a dreadful idea as it represents more costs and more delays in an already costly and dragged out situation. Especially since, if recent work by the government on its upcoming Web standards and its Web Experience Toolkit is any indication, the government intends to upgrade its standards, provide more tools for its human resources involved in government Web development and renew its commitments anyway. So what could possibly be gained by not only filing a motion for reconsideration but an appeal as well?

The vast majority of the arguments brought forth by the government are weak if not completely irrelevant. Aside from the issue of the Common Look and Feel standards’ scope (i.e. 106 departments and agencies and not 146) which in truth can be regarded as a minor technicality, there is the issue of an overly broad ruling, as argued in various points in the appeal, which might be considered but only if you totally disregard other evidence, i.e. the results from studies conducted by independent firms as well as through internal audits by the government itself.

As for the issue of it being inappropriate for the Court to supervise another branch of the Government, there may be something there the government can latch on to, I cannot say for sure as these matters of law are beyond my knowledge. But, as I asked someone this week (and got no answer), if not the Court, then who can monitor the government in this case? Who can ensure the government respects the obligations stipulated in the ruling? As this case has proven, we certainly cannot count on the government itself or we would not be in this situation in the first place.

One thing is for sure, if this appeal is any indication, the Canadian government sure seems to think the judge “erred” a lot. Not only does the government feel he cannot grasp the basic issues of Web accessibility but it is even suggested that he does not understand the rules of law nor even charter rights! In fact, if we are to believe the government, Honourable Justice Kelen is a complete idiot who has no idea what he is doing. And actually, I have heard this somewhat echoed by others in my field who feel he does not grasp the issues, that he was ill-advised, etc. I am not buying it. I do not think he has to be able to wax poetic on the state of the alt attribute to get what the real issue is. Au contraire, I think Justice Kelen does understand what the problems are and ruled accordingly.

No, it seems clear to me the federal government is throwing everything and anything it can think of at this case and hoping something will stick. In doing so, it is wasting everybody’s time and money and severely damaging its already fragile relationship with millions of Canadians with disabilities as well as their families, friends, colleagues, caregivers and advocates. That is a lot of people who are disappointed if not outright appalled by the government’s unwillingness to just suck it up.

The federal government’s actions are also having a detrimental effect on accessibility standards work on the provincial level. For example, in Quebec, our government was supposedly set to adopt its own set of accessibility standards last December. When the federal government started its appeal process, Quebec’s lawyers undoubtedly got nervous and the province decided to postpone (as if they needed another excuse) to see how things unfold on the federal level. So years of work and waiting are now rewarded with more waiting with no clear end in sight.

So my message to the federal government is simple. Stop this madness. Quit stalling. Just get on with it already!

1 Comment »

  1. Bonjour Catherine,

    Étonnant comment un gouvernement peut mettre tant d’énergie à travailler contre sa population.

    Étonnant comment un gouvernement peut autant dégoûter toutes celles et ceux qui l’aident à rendre accessibles ses travaux.

    Au-delà de la forme particulière de l’action en justice, étonnant finalement de constater qu’un gouvernement utilise la justice pour faire taire une critique de son inaction en matière d’accessibilité.

    Et surtout, étonnant que tous les acteurs de l’accessibilité gardent encore suffisamment de foi et de courage pour continuer à faire progresser cette idée inclusive d’accessibililté, malgré tout.

    Comment by Vincent François — January 19, 2011 @ 9:29 am

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