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Human rights vs accessibility legislation: One does not equal the other

While the aims of human rights legislation such as Ontario's Human Rights Code may seem to be aligned with those of accessibility-specific legislation such as the Accessibility for Ontarians with Disabilities Act, the reality is that these are two very different schemes. While a violation of one may well be a violation of the other, this does not necessarily mean that complaints under both can be addressed together, or that the Human Rights Tribunal will give any credence to violations of the AODA.

A recently reported case from the Human Rights Tribunal of Ontario (Clipperton-Boyer v McDonalds Restaurants of Canada Limited, 2016 HRTO 967 (CanLII)) makes two points that advocates must bear in mind when pursuing matters through the Tribunal.

First, the Human Rights Tribunal does not have jurisdiction or the mandate to enforce or address violations of the AODA or its regulations. A violation of the AODA is not in an of itself a violation of the Code and even if it is, the fact that the AODA was contravened does not factor into the Tribunal's analysis.

Second, if a barrier is alleged, that barrier must be one that is particular to persons with disabilities. In this case, the allegation was that the new digital screen-based menu boards in McDonalds restaurants (which appear above and a few feet behind the cash registers) were too difficult for a person with (allegedly correctable) "low vision" to read. The complainant made the apparent mistake of asserting more generally that the menus were hard for everyone to read. The Tribunal therefore concluded that if the menus were in fact hard to read, they were hard to read for everyone and therefore there was no discrimination on the basis of disability, in circumstances where even the supposedly able-bodied individuals had difficulty.

The lesson? Asserting that a barrier has extremely wide implications even for those who may not be considered to have a disability under the Code may undermine a complaint of discrimination. While we often tout the benefits of universal design and the benefits that accessible solutions will have for the general public, the Human Rights Tribunal is perhaps not the best place to do that.

Take, for example, the announcement of bus stops. Advocates for automated stop announcing systems often make the point that tourists and those unfamiliar with the area could also benefit. If the logic of this decision holds, then those arguments might well lead a Tribunal to conclude that the absence of automated stop announcements is not discrimination in circumstances where many people without disabilities are equally disenfranchised.

Disclaimer:

This blog is curated by the AEBC, but welcomes contributions from members and non-members alike. The thoughts, views, and opinions expressed in the Blind Canadians Blog are those of the contributing authors and do not necessarily reflect those of the AEBC, its members, or any of its donors and partners.

Comments

You make two very good points. The Human Rights Tribunal process is to resolve discrimination issues confronted by an individual, where as the Accessibility Directorate of Ontario (ADO) enforcement office is responsible for resolving AODA legislative compliance issues. However the ADO does not resolve individual accessibility complaints, but instead refers individuals to the Human Rights Tribunal. AODA enforcement is not based on complaints, but rather on audits and reporting. So Accessibility is a universal challenge, and Usability is a personal experience that can be challenged based on discrimination. As Accessibility compliance becomes more mainstream standard, we need to focus on the user experience. A website certified as WCAG compliant does not necessarily mean it is usable by screen reader or keyboard only users.