3.1 The Canadian Human Rights Act
3.2 The Telecommunications Act
3.3 The Employment Equity Act

This section describes legislation and policies relating to the availability and accessibility of services for people who are Deaf, deafened or hard of hearing. Canada has no specific legislation that requires federally regulated organizations to provide TTY service.

The Canadian Human Rights Act

Section 2 of the Canadian Human Rights Act states that the purpose of the Act is as follows:

[...] to give effect [...] to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices. [...]

Among the 11 prohibited grounds of discrimination is disability.

The duty of accommodation short of undue hardship is a fundamental principle of human rights law, especially with regard to the special needs of persons with disabilities. The 1997 Supreme Court decision in the case of Eldridge v. British Columbia (Attorney General) dealt with the duty to accommodate the needs of deaf citizens.

The case concerned a Deaf couple who had a baby in a B.C. hospital. The hospital did not provide ASL interpreters to enable the mother and father to communicate with the medical staff. The Court found that the lack of ASL services contravened the couple’s right to “equal protection and equal benefit” of the law as provided under section 15 of the Charter.

In rendering the decision, Mr. Justice La Forest commented on the special needs of deaf citizens and the obligation of governments to accommodate these needs:

“[...] For many hearing persons, the dominant perception of deafness is one of silence. This perception has perpetuated ignorance of the needs of deaf persons and has resulted in a society that is for the most part organized as though everyone can hear. [...] Not surprisingly, therefore, the disadvantage experienced by deaf persons derives largely from barriers to communication with the hearing population.”

Mr. Justice La Forest went on to note the following:

“The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on “mainstream” attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.”

Other human rights jurisprudence has established key principles to be followed in devising appropriate accommodation. The most important of these is that accommodation must, to the extent possible,

• maximize the dignity of the person(s) receiving the accommodation; and
• ensure that accommodation is as similar as possible to the services provided to people without a disability.

In light of the legal requirements noted above and the jurisprudence, it is clear that if federally regulated organizations make information available via telephone, they must have services in place to ensure that persons who cannot use a telephone because they are Deaf, deafened or hard of hearing are accommodated through comparable alternative means of communication.

The duty to accommodate is required to the point of “undue hardship.” Canadian courts have yet to fully define the limits of undue hardship, but they have clearly put a very high value on the obligation of accommodation. It is unlikely that the marginal cost required to ensure adequate communication with people who cannot use the regular telephone system would constitute undue hardship.

The Telecommunications Act

In 2001, the Canadian Association of the Deaf (CAD) applied to the Canadian Radio-television and Telecommunications Commission (CRTC) to examine the issue of access to pay telephones equipped with TTYs. The CAD submitted that deaf consumers were being unjustly discriminated against, contrary to subsection 27(2) of the Telecommunications Act, because they were denied access to pay telephones in Canada. In the CAD’s view, access to pay telephones meant that deaf consumers should be able to arrive at a pay telephone with nothing other than the means of payment and be able to place a call in the same manner as a hearing user.

The CAD submitted that the CRTC’s interpretation of subsection 27(2) of the Act must be consistent with the equality protections of the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.

In Telecom Decision 2004-47 (July 15, 2004), the CRTC ordered all telephone companies in Canada to provide equitable access to pay TTY service by requiring that by December 31, 2007, any bank of two or more pay phones include one pay phone equipped with a TTY. Locations where there is only one pay phone will be equipped with a TTY if there is verifiable need for the service, no later than December 31, 2010.

The CRTC decision applies only to provision of pay phones by telephone companies and therefore is not directly relevant to the TTY services provided by federally regulated organizations. Nevertheless, it underlines the legal requirement to accommodate the legitimate communications needs of people who rely on TTYs.

The Employment Equity Act

The Employment Equity Act does not apply directly to the public but rather to candidates for employment or employees of federally regulated employers. Nevertheless, the Employment Equity Act does incorporate the principle of the duty to accommodate and the need to remove barriers to the full social and economic integration of persons with disabilities.