This article was originally published at evolt.org many moons ago – and maintained here for archival purposes. It is quite out of date!
ACCESSIBILITY LAWS IN CANADA
So you’ve read the WAI guidelines, you know what Bobby Approved is, you even know why Bobby Approved isn’t enough, but you can’t convince your self/boss/client/muckity-muck to change the design of the site you’re working on to make it accessible. And maybe you know all about the Sydney Olympics case and you’ve read about section 508 and the Americans with Disabilities Act, but you’re from Canada and those laws don’t apply to you. But don’t let the boss/client/muckity-muck dismiss you – the laws in Canada have even stronger provisions against discrimination than laws in the US! And those laws apply to every business, organization and individual in Canada.
Human rights laws in Canada attempt to balance individual and collective rights. Traditionally, courts have strongly upheld restrictions to individual rights in order to protect vulnerable groups from harm. For example, there are laws in Canada that restrict public hate speech against identifiable groups. So while you may have individual rights to free speech, your right to free speech should not infringe on another person’s rights. It is helpful to keep this tradition of protecting certain groups in mind when examining how human rights laws in Canada affect accessibility on the web.
A WEB OF DIFFERENT LAWS
In Canada, cases involving human rights don’t go immediately to regular court. They go to human rights tribunals. These tribunals are governed by various Human Rights Commissions (federal or provincial depending on the industry). A complaint is made to a tribunal by a complainant. If attempts to mediate or settle the complaint are unsuccessful, the complaint goes to a hearing. Before the hearing there is an investigation. Complaints are confidential until the hearing but the hearings are public. There are various remedies that can be enforced by the tribunals ranging from letters of apology to financial compensation.
They certainly don’t make it easy to determine which human rights laws apply to you. There is the Canadian Charter of Rights and Freedoms that is the overarching legislation. No one can make a law that contravenes it. There is also the Canadian Human Rights Act. But, although it protects all Canadians, it only applies to:
- Federal departments, agencies and Crown corporations
- The post office
- Chartered banks
- Television and radio stations
- Inter-provincial communications and telephone companies
- Buses and railways that travel between provinces
- Other federally-regulated industries.
If your company doesn’t fall under one of those categories then one or more of the provincial or territorial human rights acts or codes will apply (I’ll just call them codes from now on). If your company has offices in Quebec and Alberta, for example, then the codes from both provinces will apply to your web site. Most provisions of the codes are virtually identical, but you should check the code(s) that apply to you to make sure. Links to the federal and provincial Human Rights Commissions are at the bottom of this article.
WHAT DO THE LAWS SAY?
All codes have a blanket provision that outlaws discrimination based on disability. All codes have provisions that specifically relate to discrimination in employment and many have provisions that pertain to publicly available facilities and services.
Discrimination in employment
All of the codes have a provision that says that an employer must make accommodations for their employees with disabilities. Accommodation could mean many things; from changing the tasks a person completes, to allowing a guide dog in the office, to… well, any number of measures to ensure that the employee can continue working despite their disability. How does this affect how you build sites? The accommodation provisions could apply to any company that has an intranet that employees are expected to use to carry out their jobs. If their intranet is not accessible, they could be forced to redesign it so that it is.
All codes also have provisions against discrimination during the hiring process. Many codes say that you can’t directly or indirectly discriminate when advertising a job opening or during the interview process. Therefore, if you have a careers or jobs section of your site it must be accessible. If it isn’t accessible, you could be indirectly discriminating against disabled people by preventing them from receiving information about job opportunities that would otherwise be available to them.
Goods and services available to the public
Many codes also have provisions for goods, facilities or services. This means that if you sell goods or provide a service to the public your facilities must be as easily accessible to the disabled as to any other customer.
Does this mean virtual facilities too? One example of how this is interpreted to mean non-physical facilities, was a case involving the Canadian Broadcasting Corporation (CBC) and Henry Vlug (who is deaf). Vlug made a complaint against the CBC because 100% of it’s programming was not closed captioned. Vlug made the argument that all CBC programming, including promos, ads and news breaks should be provided in closed captioned format, otherwise he was being discriminated against by reason of his disability. Vlug argued that services of the CBC were not available to him simply because of his disability. Vlug won his case against the CBC.
So, online goods and services that are made available to the general public, must also be made available to people with disabilities.
Are there any limits?
A company can argue that accommodating a person with a disability would result in undue hardship. However, the onus is on the company to prove that the accommodation is an undue hardship.
Undue hardship can be quite difficult to prove, and it is expected that a company will go to some lengths to try to find creative ways to accommodate people with disabilities. According to Shelagh Day, an expert in Canadian human rights law, “Accommodation is now treated as a process, and a failure to engage adequately in the process of inquiring into what would be needed, and how it could be done, has been found to violate the law.” Having said that, if it isn’t technically possible to make the site accessible to a particular disability, you don’t have to hire a thousand programmers to sit in a room 24/7/365 for years to develop the new browser that would make your site accessible. That would probably be considered undue hardship.
There are also what are called “bona fide” exclusions to the right not to be discriminated against. This applies mostly to discrimination in employment. When hiring, you can discriminate against people who don’t have a specific ability required to perform the job.
CONFIDENTIALITY AND THE TRIBUNAL PROCESS
You’re probably saying to yourself, “if Canadian laws are so strong why haven’t I heard of any Canadian cases?”. Complaints are confidential until they reach the hearing stage. This means that most companies settle before it becomes public, so we never hear about the complaint or the terms of the settlement. Just because they haven’t been made public, doesn’t mean that settlements for web site accessibility have not occurred.
SO WHAT DO I DO ABOUT IT?
Most Canadian companies haven’t considered how human rights codes affect their web sites. It’s our job, as experts, to advise our employers and clients how these laws affect them. So if you are making sites in Canada they legally should be accessible, unless, of course, the site doesn’t provide any goods or services online, post job opportunities, or have any employees that need to use the site to do their jobs. That means the an awful lot of sites in Canada should legally be accessible. Too bad they aren’t.
Call, email or write to the Canadian Human Rights Commission to ask them to write guidelines on how to design and develop a site that complies with Canadian accessibility laws. A clear list of guidelines should help convince the boss/client/muckity-muck to make the site accessible.
I am not a lawyer. This article is not legal advice. If you want more information on how Human Rights law affects your company, please find a human rights lawyer and read the legislation for yourself.
LINKS AND REFERENCES
All links open in a new window.
- Canadian Human Rights Commission
- Alberta Human Rights and Citizenship Commission
- British Columbia Human Rights Commission
- Manitoba Human Rights Commission
- New Brunswick Human Rights Commission
- Human Rights Commission of Newfoundland and Labrador
- Nova Scotia Human Rights Commission
- Ontario Human Rights Commission
- Prince Edward Island Human Rights Commission
- Québec Commission des droits de la personne et des droits de la jeunesse
- Saskatchewan Human Rights Commision
- Yukon Human Rights Commission
- Canadian Human Rights Reporter has a huge, searchable database of case law