Jodhan v. Canada (Attorney General) et al., (2012) 431 N.R. 144 (FCA)

JudgeNadon, Sharlow and Dawson, JJ.A.
CourtFederal Court of Appeal (Canada)
Case DateMay 30, 2012
JurisdictionCanada (Federal)
Citations(2012), 431 N.R. 144 (FCA);2012 FCA 161

Jodhan v. Can. (A.G.) (2012), 431 N.R. 144 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2012] N.R. TBEd. JN.016

Attorney General of Canada (appellant) v. Donna Jodhan (respondent) and Alliance for Equality of Blind Canadians (intervenor)

(A-478-10; 2012 FCA 161; 2012 CAF 161)

Indexed As: Jodhan v. Canada (Attorney General) et al.

Federal Court of Appeal

Nadon, Sharlow and Dawson, JJ.A.

May 30, 2012.

Summary:

Jodhan applied under s. 18.1 of the Federal Courts Act for a declaration that the standards implemented by the federal government for providing visually impaired persons with internet access to government websites and online services violated her s. 15 Charter equality rights. The Attorney General moved to dismiss the application "on the ground that there is no 'decision or order', no defined 'matter', nor any identifiable 'decision-maker' or 'tribunal record' which can be the subject of judicial review". Further, the matter involved review of a "general policy", which the Attorney General argued should proceed by way of an action and that the action should be stayed pending the outcome of Jodhan's complaints to the Canadian Human Rights Commission.

The Federal Court, in a judgment reported (2008), 330 F.T.R. 226, dismissed the motion. Jodhan's application was not bereft of any chance of success. The approach of the federal government in providing services to the visually impaired might result in a finding that Jodhan's s. 15 Charter rights were infringed by a failure to accommodate. Outstanding personal complaints to the Canadian Human Rights Commission did not preclude the application, where Jodhan was a public interest applicant engaging the wider general public interest.

The Federal Court, in a judgment reported (2010), 380 F.T.R. 1, held that the 2001 government standards violated the s. 15 Charter equality rights of visually impaired persons. The standards, intended to be implemented by all government departments and agencies with an online presence, were now obsolete and were never enforced. Visually impaired persons were denied the accessibility to government websites and online services that were available to sighted persons. The court ordered that the government comply with its constitutional requirements within 15 months. The Attorney General appealed, arguing that the judge erred in finding that Jodhan's equality rights were infringed and in providing a system-wide remedy that included retaining supervisory jurisdiction over implementation of the remedy.

The Federal Court of Appeal allowed the appeal in part. Jodhan's equality rights were infringed where she was denied equal access to, and benefit from, government information and services provided online to the public on the internet. This constituted discrimination based on physical disability. The court limited the scope of the declaratory order to Treasury Board, not the "government" or the 106 individual departments. The court struck the supervision portion of the declaratory order, as the judge's continued supervision of implementation was neither factually nor legally warranted.

Civil Rights - Topic 910

Discrimination - General principles - Adverse effect, indirect or constructive discrimination - [See Civil Rights - Topic 5642.2 ].

Civil Rights - Topic 974

Discrimination - Facilities and services customarily available to public - Discrimination on basis of a physical disability or mental handicap - [See Civil Rights - Topic 5642.2 ].

Civil Rights - Topic 980.1

Discrimination - Duty to accommodate - General - [See Civil Rights - Topic 5642.2 ].

Civil Rights - Topic 5642.2

Equality and protection of the law - Particular cases - Internet access for visually impaired persons - Federal government standards required that its 106 departments and agencies provide the 600,000 visually impaired Canadians with internet access to government websites and online services - The standards required building accessibility into the websites with readily available technology - There was a systemic failure to comply with the standards, as evidenced by an internal government audit in 2007 respecting 47 non-compliant departments - A visually impaired person claimed that the standards, and the systemic failure to implement them, discriminated against her on the basis of physical disability (Charter, s. 15) - The trial judge held that the standards were obsolete (eg., failed to address certain interactive applications) and were not monitored to ensure compliance - Forcing visually impaired persons to rely on sighted persons adversely affected their independence, dignity, and access to timely and accurate information on an equal basis with sighted persons - This constituted discrimination on the basis of physical disability - Although the standards were facially neutral, this was a case of "adverse effect discrimination" - The government did not argue that implementing the standards would cause it undue hardship, that it was not technically feasible to do so, or that the Charter violation was saved as a reasonable limit prescribed by law (s. 1) - The visually impaired were not "reasonably accommodated" by alternative access to the same information in person, by telephone or by mail - Those alternatives did not provide the visually impaired with independent access or the same dignity and convenience as the online services - The Federal Court of Appeal agreed with the Attorney General that the benefit of the law was access to government information and services, not online access - However, persons having online access and blind persons forced to use other modes of access were not treated equally - There was no basis to interfere with the judge's conclusion that "the failure to ensure equal access by Ms. Jodhan and by the visually impaired to departmental websites and online services violated her rights under subsection 15(1)" - See paragraphs 104 to 161.

Civil Rights - Topic 8369.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Retention of jurisdiction to enforce compliance with - The trial judge granted a declaration that a visually impaired applicant's equality rights under s. 15(1) of the Charter were infringed by the government's failure to provide the accessibility to government websites and online services available to sighted persons - The judge gave the government 15 months to remedy the infringement and retained supervisory jurisdiction over implementation of the remedy granted, with either party being entitled to apply to him to ensure proper implementation - The Attorney General challenged the judge's retention of supervisory jurisdiction, arguing that it was not an "appropriate and just" remedy under s. 24(1) of the Charter - The Federal Court of Appeal held that the judge erred in not limiting his order to the declaration sought - There was factual or legal basis for a supervisory order - Implementation of the declaratory relief was the function of the executive, not the judiciary - Supervisory orders were remedies of last resort where, for example, a government refused to carry out is constitutional responsibility - It was expected that the government would respect the declaratory judgment - See paragraphs 165 to 184.

Civil Rights - Topic 8380.25

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of rights - Jodhan applied under s. 18.1 of the Federal Courts Act for a declaration that the standards implemented by the federal government for providing visually impaired persons with internet access to government websites and online services violated her s. 15 Charter equality rights - Particularly, the application claimed that the Treasury Board failed to "develop, maintain and enforce" proper accessibility standards - The standards required that all 106 departments and agencies provide visually impaired Canadians with internet access to government websites and online services - The trial judge declared that Jodhan's equality rights were infringed and retained supervisory jurisdiction over the implementation of the remedy granted against all 106 departments and agencies (i.e., that accessibility standards be changed within 15 months to remedy the discrimination) - The Federal Court of Appeal held that the pleadings put forward a systemic violation of s. 15(1) of the Charter - However, "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" - To the extent that the declaratory order was directed at the 106 departments, it had to be set aside - The court rejected the argument that the trial judge erred in fashioning a remedy beyond Jodhan personally - Section 24(1) of the Charter did not preclude a systemic order - See paragraphs 77 to 91.

Courts - Topic 568.1

Judges - Powers - To remain seized of a matter - [See Civil Rights - Topic 8369.2 ].

Practice - Topic 5656

Judgments and orders - Declaratory judgments - Scope and content - [See Civil Rights - Topic 8380.25 ].

Cases Noticed:

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 50].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 50].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81; 151 D.L.R.(4th) 577, refd to. 52].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 52].

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 58].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 64].

Canadian Association of the Deaf et al. v. Canada, [2007] 2 F.C. 323; 298 F.T.R. 90; 2006 FC 971, refd to. [para. 65].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 71].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 73].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76; 2003 FCA 473, refd to. [para. 74].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 75].

Northwest Territories (Attorney General) et al. v. Fédération Franco-ténoise et al. (2008), 440 A.R. 56; 438 W.A.C. 56; 2008 NWTCA 6, refd to. [para. 81].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 91].

Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396; 412 N.R. 149; 300 B.C.A.C. 120; 509 W.A.C. 120; 2011 SCC 12, refd to. [para. 105].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 167].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Supp.), vol. 2, pp. 40 to 45 [para. 170].

Jones, David Phillip, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law (5th Ed. 2009), p. 756 [para. 170].

Counsel:

Gail Sinclair, Peter Hajecek and Michelle Ratpan, for the appellant;

David Baker and Meryl Zisman-Gary, for the respondent;

Karen R. Spector and Laurie Letheren, for the intervenor.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Bakerlaw, Toronto, Ontario, for the respondent;

ARCH Disability Law Centre, Toronto, Ontario, for the intervenor.

This appeal was heard on November 15, 2011, at Toronto, Ontario, before Nadon, Sharlow and Dawson, JJ.A., of the Federal Court of Appeal.

On May 30, 2012, Nadon, J.A., delivered the following judgment for the Court of Appeal.

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