One in five Canadians lives with one or more disabilities. Everyday these 6.2 million individuals encounter various barriers. These barriers prevent persons with disabilities from participating fully in all aspects of society. It is thus not surprising that 60 percent of complaints received by the Canadian Human Rights Commission relate to disability. High proportions of disability-related complaints can be seen in all jurisdictions in Canada: 40 percent of all complaints in British Columbia, 49 percent in Alberta, 45 percent in Manitoba (2017–2018 data), 44 percent in New Brunswick, 61 percent in Nova Scotia (2017–2018 data), 36 percent in Prince Edward Island, 60 percent in Newfoundland and Labrador, 25 percent in Yukon, 42 percent in the Northwest-Territories (2017–2018 data). There is no data for Nunavut or Ontario specifically on disability.

The barriers faced by persons with disabilities are as varied as they are numerous. Communication, attitudinal, environmental and organizational barriers cause people with disabilities to be excluded from equal participation in many opportunities and activities of society. For instance, physical barriers, such as inaccessible buildings, may prevent a person with mobility issues from accessing their workplace, from voting or even from accessing their own homes. Persons living with disabilities often encounter attitudinal barriers caused by stereotypes, prejudices and stigmas about them. Communication barriers are experienced by people living with disabilities related to hearing, speaking, reading, writing and/or understanding. Such barriers can change what would otherwise be the most magnificent moments of one’s life, such as giving birth to a child, into confusing or even tragic experiences. Website inaccessibility can manifest itself in many ways. For example, intuitive or busy layouts and designs can constitute barriers to website accessibility. Websites that are not well designed, or not conscientiously designed, for text-to-speech or screen-reading software and applications are difficult to access for people with visual impairments.

In only a matter of months, the COVID-19 pandemic has drastically transformed the world in which we live. In some cases, changes brought about by the pandemic have reduced some of the barriers faced by persons with disabilities. For example, the widespread use of telework will make it difficult for employers to deny it as a form of accommodation, as they often have in the past when it is requested for disability reasons. Other changes have had mixed impacts on persons with disabilities. Take internet access, for example. In a context in which nearly all Canadians are confined to their home and increasingly relying on the internet for their social, educational and professional relationships, the importance of accessible websites has never been so important. While reliance on the internet may have facilitated participation for some persons with disabilities, such as those with mobility issues for whom travelling to work can be difficult as a result of poor accessible public transportation, it presents new challenges for others. Inaccessible websites can prevent persons with disabilities from working and having equal access to vital information about their health. The consequences can be grave. As noted by one disability rights groups, “Persons with disabilities may also be at increased risk of contracting COVID-19 because information about the disease, including the symptoms and prevention, are not provided in accessible formats such as print materials in Braille, sign language interpretation, captions, audio provision, and graphics”.

In light of this, accessibility advocacy groups have argued that “it is now more than ever that companies and Public Administrations must prioritize accessibility in their pages, and therefore, their services” in order “[t]o ensure that people with disabilities are not deprived of lifesaving information”. Despite the increased importance during the pandemic of ensuring that information on the internet is accessible, the Government of Canada has lagged behind. Rather than being a forerunner for inclusion, it has continued the longstanding practice of discriminating against persons with visual impairments in the design of its websites. In fact, it is fighting a human rights complaint lodged by the Alliance for Equality of Blind Canadians (“AEBC”) against Employment and Social Development Canada (“ESDC”), regarding its inaccessible website.

The human rights complaint relates to the accessibility of a ESDC grants program called “Performance and Accountability Framework” for which the AEBC was invited to apply. The AEBC required funding to increase its organizational capacity to better advocate for blind, deafblind and partially sighted Canadians. In particular, it hoped to hire sighted individuals to facilitate the administration of the organization.

But the AEBC was not provided an equal opportunity to apply for this federal grant as a result of Canada’s inaccessible website. For example, the ESDC’s website and online application form contain numerous dropdown menus, “check” boxes and “fill-out” sections. These features make the website nearly impossible to navigate for people with visual impairments. In order to overcome these barriers, AEBC asked the ESDC to provide screen-reader accessible grant application documents so the grant application process could be accessible for its staff person and other individuals who are blind, deafblind and partially. The ESDC denied the request. Moreover, the ESDC did not provide applicants with the option of contacting them directly by telephone for assistance, as is often the case in government programs and services. Because of the barriers in ESCD’s website and online application form, the AEBC was not able to submit a complete grant application and did not obtain funding.

Given its mandate of advocating for the independence of blind, deafblind and partially sighted Canadians, the AEBC filed a human rights complaint against ESCD. The complaint seeks to compel the ESDD to eliminate the barriers on its website so that its grants can be accessible to visually impaired people in the future. Instead of working with the AEBC to how it can better support persons with disabilities during the pandemic, Canada is seeking to have the complaint dismissed on a legal technicality based on a narrow reading of the Canadian Human Rights Act. In particular, its lawyers contend that the Canadian Human Rights Act prohibits the denial of a service to “individuals”, and not organizations. As such, they argued that its grant application process should not be subjected to human rights scrutiny because it targets organizations rather than individuals.

What this argument ignores is that organizations rely on individuals to complete funding applications. If these individuals have visual impairment, they are unable to complete the grant application process on behalf of the organizations for which they work. Furthermore, there are numerous cases in which the Canadian Human Rights Tribunal has adjudicated complaints made in the public interest by organizations (see First Nations Child and Family Caring Society of Canada v. Canada (Attorney General) (No. 8), 2012 CHRT 24, CHRR Doc. 12-3113 or Center for Research Action on Race Relations v. (No. 5), 2007 CHRT 20, CHRR Doc. 07-308). This is a shocking argument for the government to make when disadvantaged individuals rely on the organizations they form to ensure that they are not discriminated against.

Tragically, the CHRC appears to have accepted this argument and has dismissed the complaint on a preliminary basis. Despite the dismissal of the complaint, it is hoped that Canada will work with the AEBC and seek to eliminate the barriers in its websites. In a time where millions of Canadians depend on the internet in order to participate in Canadian society, Canada ought to be a leader in website accessibility and equality.

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