Date: 20080620
Docket: T-1190-07
Citation: 2008FC781
Toronto, Ontario, June 20, 2008
PRESENT: Kevin R. Aalto, Esquire, Prothonotary
BETWEEN:
DONNA
JODHAN
Applicant
and
ATTORNEY GENERAL OF CANADA
(REPRESENTING THE TREASURY BOARD OF CANADA, SECRETARIAT,
PUBLIC SERVICE COMMISSION OF CANADA, AND STATISTICS CANADA)
Respondents
REASONS FOR ORDER AND ORDER
[1]
The
Applicant, Donna Jodhan, is visually impaired, a recognized disability under
s.15 of the Charter of Rights and Freedoms (“Charter”). She brings this
Application for judicial review “in respect of the denial of full access to the
visually impaired to and equal benefit of the Government of Canada’s web
materials and services including Statistics Canada’s 2006 Census and the
website of the Public Service Commission”. Specifically, she seeks a
declaration that Federal Government websites and on-line services are
inaccessible to her as a visually impaired Canadian, and that as such, her
rights under section 15 of the Charter have been breached. She seeks a
systemic remedy to cure the systemic problems with Federal Government websites
which prevent her, as a visually impaired Canadian, from having equal access to
government services and information.
[2]
The motion
brought by the Respondent, Attorney General of Canada, is 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, they argue that the thrust of this proceeding is
to judicially review a general policy - the adequacy and implementation of a
Federal Government standard known as the “Common Look and Feel Standards”, a
policy designed to ensure the online accessibility of government websites for
all Canadians with disabilities, including the visually impaired. If the
matter is allowed to proceed the Respondent argues it should be in the form of
an action and the action should be stayed pending the outcome of complaints
made by the Applicant to the Canadian Human Rights Commission (“CHRC”).
[3]
Counsel
for both parties have each submitted extensive Written Representations and
three joint volumes of authorities together with some additional authorities
and motion records. As the result of decisions in two cases (Amnesty
International Canada et al. v. Chief of the Defence Staff et al.,
[2007] FC 1147 and Apotex Inc. v. Les Laboratoires Servier et al,
2007 FCA 350), which were decided after the initial hearing, the
parties were invited to make further submissions on the merits of the motion. Additionally,
because of subsequent events the Crown sought leave to file additional
evidence. As the additional evidence was not viewed as affecting the issues in
the motion, the request to grant further evidence was dismissed.
Background
[4]
In order
to understand the issues in play, a review of the background is required. As
noted, Ms. Jodhan, who is a Canadian
citizen, is legally blind. Prior to the commencement of this application, Ms. Jodhan made three separate complaints to the
CHRC. The complaints were made against the Treasury Board of Canada,
Secretariat (“TBS”), Statistics Canada (“SC”) and the Public Service Commission
of Canada (“PSC”). The complaints had a common element: the alleged
inaccessibility of government websites for the visually impaired. In addition,
they also raised issues concerning whether Ms. Jodhan was reasonably accommodated, was
treated differently because of her disability, and whether the “Policy on
the Duty to Accommodate Persons with Disabilities in the Federal Public
Service” (the “Policy”) was properly implemented or its implementation
sufficiently monitored.
[5]
This
application targets the same three government entities with the common
denominator being the alleged inaccessibility of government websites for
the visually impaired. The Applicant only seeks declarations against each of
the three government entities. Those declarations are as follows:
·
A
declaration that the failure of the Treasury Board and the Treasury Board
Secretariat to develop, maintain, and enforce standards which ensure that all
government of Canada websites and online services are accessible for
individuals with visual impairments infringes her right to equal protection and
equal benefit the law without discrimination based on physical disability, and
therefore violates section 15 of the Charter, and that such violation is
not justified under section 1 of the Charter;
·
A
declaration that Statistics Canada’s failure to ensure that the 2006 online
Census was accessible to those with visual impairments infringes her right to
equal protection and equal benefit of the law without discrimination based on
physical disability, and therefore violates section 15 of the Charter, and that
such violation is not justified under section 1 of the Charter;
·
A
declaration that the Public Service Commission of Canada’s failure to ensure
that its website and online application services are accessible to those with
visual impairments infringes her right to equal protection and equal
benefit of the law without discrimination based on physical disability, and
therefore violates section 15 of the Charter, and that such violation is
not justified under section 1 of the Charter.
[6]
No damages
or other relief is sought.
Complaint Against TBS
[7]
On September
5, 2005, the Applicant filed a complaint against TBS with the CHRC under
section 5 of the Canadian Human Rights Act. The substance of the
complaint was that TBS had discriminated against the Applicant because as the
Applicant states in her complaint:
They have failed to ensure that their
departments carry out their policies.
They have failed to monitor their
policies.
They have failed to ensure that one of
their departments provided me with my exams in an alternative format as I
requested.
They have failed to provide websites that
are accessible to blind and visually impaired Canadians and I am a visually
impaired Canadian.
[8]
In April
2006, an investigator with CHRC wrote to the Applicant and advised “Although
the TBS is the employer of the Public Service, it has no involvement,
monitoring or otherwise in accommodation during the staffing process”. Later,
after completing her report the investigator noted that TBS is “not the party
responsible for the alleged discriminatory acts”. On January 11, 2007, the CHRC dismissed the
Applicant’s complaint on the ground that TBS “is not the party responsible for
the alleged discriminatory acts”. No appeal was taken by the Applicant from
this decision.
[9]
The CHRC
dismissed the complaint against TBS on the ground that TBS was not the party
responsible for the alleged discriminatory acts. As acknowledged in the
Written Submissions of the Applicant: “This application does not relate to a
specific incident. Rather, this Application pertains to the systemic accessibility
barriers prevalent in Federal Government websites created by a series of
decisions reflective of a general policy.” The Applicant takes the position
that TB is the general manager responsible for setting and overseeing
government policy on communications. No judicial review application was
commenced with respect to this decision of the CHRC.
Complaint Against Statistics Canada
[10]
The Applicant
tried to apply for a job with SC online. She encountered difficulty and
required the aid of a sighted PSC employee to complete the application. As
part of the application process, all Applicants were required to take an
examination. The Applicant asked to be accommodated and take hers in Braille.
After this request, the Applicant was advised that as she did not meet the
criteria her application was screened out. Subsequently, SC offered the
Applicant the opportunity to take the examination in Braille but the Applicant
declined on the basis she was no longer interested in working for SC. In
September, 2005, the Applicant filed a complaint against SC with the CHRC. The
substance of the complaint is that the Applicant was discriminated against
because of the failure to provide an examination in Braille. The essence of
the complaint is summarized by the Applicant in the complaint as follows:
To summarize: I believe that as a
visually impaired Canadian I have been discriminated against because my exam
was not provided to me in Braille; the process used for the general public was
not the one used for me, and I was unable to submit my application in the
regular manner because the website was not accessible to special needs persons.
[11]
In
November, 2006, the investigator assigned to deal with the Applicant’s
complaint made the following recommendation:
·
the
evidence suggests the Respondent failed to accommodate the complainant’s
disability; and
·
the
evidence suggests that the Respondent treated the complainant in a different
manner than other candidates who applied for the MA position.
[12]
Subsequently,
a conciliation session was held in late April, 2007. The conciliation session
did not result in a settlement and the complaint was to be resubmitted to the
CHRC. It appears no decision has yet been rendered by CHRC on this complaint.
Complaint against PSC
[13]
In
September 2006, the Applicant initiated a third complaint to the CHRC, this
time against PSC. PSC is the government entity
responsible for implementing both the CLF standards and the Policy in the
online job application process. This complaint was made on the basis that
discrimination and lack of accommodation on the online job application
process. Specifically, the Applicant alleges that she had “experienced
significant difficulty navigating through the online application process at www.jobs.gc.ca website without sighted
assistance, which led to unmitigated lack of accommodation and subsequent
discrimination”. The parties agreed to mediation which occurred in February
2007. The matter did not settle and appears not yet to have been determined by
CHRC.
[14]
As noted,
no appeal was taken from the one CHRC complaint that was dismissed and
notwithstanding that there remain two open CHRC complaints this application
seeking a systemic remedy was launched.
Issues
[15]
This
motion raises the following issues:
1.
Should the
application be dismissed as being outside the jurisdiction of the Court under
s. 18.1 of the Act in that there is no “decision or order” or other justiciable
issue?
2.
If the
application is to be dismissed, should it be converted into an action and
stayed pending the resolution of the Applicant’s complaints to the CHRC against
the same government entities and relating essentially to the same issue?
Analysis
[16]
A motion
to strike an application has a very high onus for the moving party. The
parties cited many authorities on the principles to be applied on motions to
strike an application. Recently, the principles governing motions to strike
applications for judicial review have very usefully been analyzed in depth and
summarized by Justice Mactavish in the case of Amnesty International Canada
et al. v. Chief of the Defence Staff et al., [2007] FC 1147. Many
of the authorities reviewed by Justice
Mactavish were
cited by the parties on the within motion. Justice Mactavish’s summary is as follows:
Legal
Principles Governing Motions to Strike
[22] Applications
for judicial review are intended to be summary proceedings, and motions to
strike Notices of Application add greatly to the cost and time required to deal
with such matters.
[23] Moreover,
as the Federal Court of Appeal observed in David Bull Laboratories (Canada)
Inc. v. Pharmacia Inc., [1994] F.C.J. No. 1629, the striking out process is
more feasible in actions than in applications for judicial review. This
is because there are numerous rules governing actions which require precise
pleadings as to the nature of the claim or the defence, and the facts upon
which the claim is based. There are no comparable rules governing Notices of
Application for Judicial review.
[24] As
a consequence, the Federal Court of Appeal has observed that it is far more
risky for a court to strike out a Notice of Application for Judicial review
than a conventional pleading. Moreover, different economic considerations come
into play in relation to applications for judicial review as opposed to
actions. That is, applications for judicial review do not involve
examinations for discovery and a trial - matters which can be avoided in
actions by a decision to strike: David Bull, at ¶10.
[25] In
contrast, the full hearing of an Application for Judicial review proceeds in
much the same way that a motion to strike the Notice of Application would
proceed, namely on the basis of affidavit evidence and argument before a judge
of this Court.
[26] As
a result, the Federal Court of Appeal determined that applications for judicial
review should not be struck out prior to a hearing on the merits of the
application, unless the application is “so clearly improper as to be bereft of
any possibility of success”.
[27] The
Federal Court of Appeal further teaches that “Such cases must be very
exceptional and cannot include cases ... where there is simply a debatable
issue as to the adequacy of the allegations in the notice of motion”: David
Bull, at ¶15.
[28] Unless
a moving party can meet this very stringent standard, the “direct and proper
way to contest an originating notice of motion which the Respondent thinks to
be without merit is to appear and argue at the hearing of the motion itself.” (David
Bull, at ¶10. See also Addison & Leyen Ltd. v. Canada,
[2006] F.C.J. No. 489, 2006 FCA 107, at ¶5, rev’d on other grounds [2007]
S.C.J. No. 33, 2007 SCC 33).
[29] The
reason why the test is so strict is that it is ordinarily more efficient for
the Court to deal with a preliminary argument at the hearing of the application
for judicial review itself, rather than as a preliminary motion: see the
comments of the Federal Court of Appeal in Addison & Leyen, at ¶5.
[30] By
analogy to the process prescribed in the Federal Courts Rules with
respect to the striking out of statements of claim, as a general rule, no
evidence may be led on a motion to strike a Notice of Application. In
addition, the facts asserted by the Applicant in the Notice of Application must
be presumed to be true: Addison & Leyen Ltd. et al., above, at ¶6.
[31] However,
the Court is not obliged to accept as true allegations that are based upon
assumptions and speculation. Nor is the Court obliged to accept as true
allegations that are incapable of proof: see Operation Dismantle Inc. v. R.,
[1985] 1 S.C.R. 441, at ¶27.
[32] There
is an exception to the general principle that no evidence may be led on a
motion such as this. That is, where the jurisdiction of the Court is
contested, the Court must be satisfied that there are jurisdictional facts or
allegations of such facts supporting the attribution of jurisdiction: see MIL
Davie Inc. v. Hibernia Management & Development Co. (1998), 226 N.R.
369.
[33] Finally,
in deciding whether an Application for Judicial review should be struck as
bereft of any possibility of success, the Notice of Application should be read
as generously as possible, in a manner that accommodates any inadequacies in
the allegations that are merely the result of deficiencies in the drafting of the
document: see Operation Dismantle, at ¶14.
[17]
In Amnesty International, the Applicants
brought an application for judicial review with respect to “actions or
potential actions” of the Canadian Forces deployed in the Islamic Republic of
Afghanistan. Specifically, the application sought to review the conduct of the
Canadian Forces with respect to detainees held by the Canadian Forces in Afghanistan and the
transfer of those individuals to Afghanistan authorities. The Respondents sought an Order striking the
Applicant’s Notice of Application on the grounds that the Applicants had no
standing with regard to the issues in the Notice of Application nor did the
application have any chance of success. Justice Mactavish ultimately
determined, following her thorough analysis of the law relating to the striking
of applications, that the matter was not bereft of any chance of success and
concluded that the Applicants were entitled to public inter-standing in order
to pursue the issues in the application.
[18]
In my view, after having considered at
length the thorough submissions of counsel and the many authorities which they
have cited including Amnesty International, that this case is not bereft
of any chance of success for the following reasons.
[19]
The Applicant argues that The
Canadian Association of the Deaf v. Her Majesty the Queen, 2006 FC
971, (“CAD case”) a decision of Justice Mosley, is on all fours with this application.
Having reviewed the CAD case in depth and considered its application to these
facts, I am of the view that it is substantially similar.
[20]
The CAD case involved access to government by
the hearing disabled. It dealt with the Federal Government’s Guidelines for Administration of its Sign Language Interpretation Policy
(“Sign Language Policy”). The Applicants in the CAD case sought a declaration
“that the individual Applicants’ rights under section 15 of the Canadian
Charter of Rights and Freedoms were violated on the basis of disability and
that professional sign language interpretation services are to be provided and
paid for by the Government of Canada, upon request, where a deaf or hard of
hearing person accesses services from the Government of Canada or seeks input
in government decision-making” [par. 1]. In the CAD case, Justice Mosley was confronted
with issues similar to those here including the issue of justiciability of a
“decision”. Justice Mosley concluded that a breach of the Charter was
established and the Applicants were entitled to a remedy.
[21]
The specific elements of
discrimination raised in the CAD case have some significant similarity to this
case including a denial of an opportunity to contract with the Federal Government
and denial of opportunities to participate in the Statistics Canada Labour
Force Survey. In the CAD case, the Applicants were not seeking review and
reconsideration of final governmental decisions but rather “redress for
systemic acts of discrimination that by their very nature, are continuing”. It
is because of the declaratory relief sought and the continuing acts of
discrimination that the 30-day time limitation for bringing a judicial review
application was not applicable in the CAD case, nor is it applicable here.
[22]
One of the issues raised in this case is whether there is an issue which is justiciable.
Justice Mosley grappled with the same issue in the CAD case. It was argued in
the CAD case that the Applicants were seeking a remedy in which the Court was
being asked to prescribe in what manner the Federal Government should provide
services to the hearing impaired. Directing the Federal Government on matters
of policy is not within the purview of the Court’s jurisdiction. Matters of
policy are for the Federal Government to determine. However, as Justice Mosley
noted:
[76] In
order to be justiciable a matter must be properly before the court and capable
of being disposed of judicial review is not restricted to decisions or orders
that a decision-maker was expressly charged to make under the enabling
legislation. The word ‘matter’ found in s.18.1 of the Federal Courts Act,
1998 is not so restricted by encompasses any matter in regard to which a remedy
might be available under s. 18 or s-s 18.1(3): Morneault v. Canada (Attorney
General), [2001] 1 F.C. 30, 189 D.L.R. (4th) 96 (F.C.A.).
[77] If
I considered that the purpose of the application was to seek a reversal of the
government’s decision to transfer the responsibility for provision of sign
language interpretation services from the Translation Bureau to individual
department’s and agencies, I would agree with the Respondent that this is a
non-justiciable policy decision outside the scope of the Court’s mandate. But
that is not how I see the matter.
[78] The
Applicants submit that they are not asking for the Court to prescribe the
manner in which the government provides translation services, but rather to
declare what the scope of such services should be. They allege that the
current scope of the guidelines infringes the individual Applicants’ rights
under section 15 of the Charter as there is a failure to accommodate their disabilities.
This is a justiciable issue.
[23]
Similarly, in this case, the approach of the Federal Government in
providing services to the visually impaired may result in a finding that there
is an infringement of the Applicant’s rights under section 15 of the Charter as
there is a failure to accommodate. The evidence of the Applicant includes
several affidavits all of which describe the manner is which the Federal Government’s
actions fail to accommodate the disabilities. At this juncture of the
proceeding, given the high test which has to be met, it cannot be conclusively
determined that this application is without merit and bereft of any possibility
of success. The jurisprudence summarized by Justice Mactavish in Amnesty
International combined with the analysis of Justice Mosley in the CAD case
lead to the conclusion that there is a sufficient case made out in the Notice
of Application to justify dismissing this motion.
[24]
In subsequent submissions
during a further hearing, the Crown reiterated its position that this matter cannot proceed as
an application but should be converted to an action and stayed pending the
outcome of the human rights complaint process initiated by the Applicant. They
argue that a policy cannot be challenged in the abstract but can only be
challenged when the policy is applied and when someone is directly affected.
They do concede that a policy may be challenged where there is no other means
by which the policy can be challenged. Thus, they argue that since the policy
has been applied and has directly affected Ms. Jodhan the challenge should be
directed to one of these applications.
[25]
The
Respondent relies upon the decision of the Federal Court of Appeal in Timberwest
Forest Corp. v. Canada, 2007 FCA 389 in which the
Court ruled that a policy “is beyond the reach of the Courts” and that “it is
not the role of the Courts to determine the constitutionality of policies”. In
that case, a federal scheme controlling the export of logs harvested from
private lands in British
Columbia was
being challenged. The scheme was promulgated as part of a Federal Policy Statement.
This issue was whether the policy or scheme was constitutionally valid. After
a full hearing on the merits, the Court determined that the policy was
constitutionally valid. The analysis of the Court did not determine that a
policy could not be judicially reviewed but only that in this case the policy
in question was properly authorized and therefore constitutional.
[26]
A further
case referred to at length by the parties is Krause v. Canada, [1999] F.C.J. No. 179. This
decision of the Federal Court of Appeal dealt with an appeal from a decision
striking the claim. The claim sought, in essence, a direction that certain
funds be paid by the government to a superannuation account and that the funds
in the account not be used by the government for other purposes. The Applicants
were members of various associations who were either contributors to or
beneficiaries of the pension plans maintained pursuant to various statues
establishing the superannuation accounts. The Respondent to the application
sought to dismiss the application primarily on the ground that the proceeding
was filed beyond the thirty day time limit specified in the Federal Court Act.
The Applicants’ position was that the actions for which mandamus, prohibition
and declaration were sought were not “decision” within the meaning of s.18.1(2)
but a series of annual decision reflective of an ongoing policy or practice of
the government. The Federal Court of Appeal analyzed carefully the provisions
of s.18.1(2) of the Federal Courts Act and concluded that the word
“matter” found in that subsection is “reflective of the necessity to find a
word to cover a variety of administrative actions.” The Court concluded that
the word “matter” embraced not only a “decision or order” but “any matter in
respect of which a remedy may be available under section 18 of the Federal
Court Act. The Court also held that the jurisdiction under s.18 did not
depend on the existence of a “decision or order”. Such is the case here.
[27]
It is
obvious in this application that there is a resource imbalance between the parties.
The Applicant is a Public Interest Applicant who is not seeking an award of
damages. Her private interests are subordinated to the public interests which
she is pursuing on behalf of those Canadians who are visually impaired.
[28]
The
Respondent further argues that the Applicant, by virtue of pursing the
complaints before the CRHC, has available remedies. However, those proceedings
are specific to the Applicant and do not engage the wider general public
interest which is being pursued in this case and which is analogous, to some
extent, to the claims put forward by the Applicants in the Amnesty
International case. The allegation is that specific policies and practices
of the Respondents have violated the Applicants Section 15 Charter
Rights which is a matter that directly affects her as a visually impaired
person and is a matter that is ongoing much as the allegations were in the Amnesty
International case.
[29]
In the end
result, I am not persuaded that this application is bereft of any possibility
of success or is so plain and obvious that the claim will not succeed. This is
so, even though the Applicant has outstanding complaints to the CHRC. The
Applicant’s judicial review application for a declaration that her section 15 Charter
rights have been breached is a matter within the jurisdiction of this Court.
The Respondent has also argued that there is insufficient specificity of the
alleged breaches. However, in reviewing the Notice of Application it is
apparent what the issues are of which the Applicant seeks judicial review. As
this matter proceeds the Court is available to assist in refining the issues or
giving the necessary directions to ensure the Respondent is not prejudiced in
presenting its case.
[30]
This is
also a matter that should proceed by way of application. There is no benefit
to engaging in possible lengthy production and discovery as would be required
in an action. All of the relevant evidence can be compiled within this
Application which can now proceed expeditiously to a resolution of the
important issues raised by the Applicant. As noted, the Court can assist the
parties in refining the issues or providing directions concerning any matter
relating to the proceeding. Subsequent to the second round of argument the
Respondent withdrew its request that this application be stayed pending the
outcome of the CHRC proceedings as decisions have now been made in those
proceedings. For the reasons noted above that relief would not have been
granted in any event.
[31]
The Court
is grateful to counsel for their very helpful and thorough written and oral
submissions.
ORDER
THIS COURT ORDERS
that
1.
This
motion is dismissed.
2.
The
Attorney General of Canada be named as the Respondent in this Application and
the style of cause be amended accordingly.
3.
The time
for the serving and filing of the Respondents’ Affidavits be extended to August
22, 2008 and that all other time limits are extended accordingly.
4.
The
parties may seek a case conference with the Court at any time to address any matters
regarding a timetable for next steps in the proceeding or any other issue.
5.
Costs of
this motion are to the Applicant in the cause.
“Kevin R. Aalto”
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