By Michelle Falardeau-Ramsay
A victory for the deaf and hearing impaired
A deaf lawyer from Vancouver wins the rights to have programs
Like many Canadians, Vancouver's Henry Vlug enjoys watching television.
And, like more than half a million fellow Canadians, Henry Vlug
has a hearing impairment - he is deaf. So his full enjoyment of
TV depends on whether broadcasters provide program captioning.
And that was at the heart of a complaint he filed with the Canadian
Human Rights Commission (CHRC) in 1997 against the CBC.
Vlug complained that the broadcaster's English-language network,
including local affiliate stations and Newsworld, discriminated
against him and other deaf and hard-of-hearing people by failing
to provide television captioning. He further asserted the CBC
was inconsistent in its captioning practices, and that it had
a policy of removing captioning from its broadcasts. The CHRC
referred the case to the Canadian Human Rights Tribunal in April
The CBC estimated that the cost of captioning all of its programming
would reach $1.2 million a year, over and above its annual captioning
expenditure of $1.3 million. For its part, Newsworld said that 90
per cent of its programming was captioned at the time of the hearing
and estimated that it would cost $1.3 million to caption 100 per
cent of the broadcast day - $525,000 more than it currently spends.
The CBC argued that the costs were prohibitive, given the broadcaster's
shrinking operating budget.
Vlug decision affirms that Canada's deaf and hard-of-hearing
community has the right to access a service that hearing
Canadians take for granted.
But the Tribunal disagreed. In issuing its ruling on November
15, it noted that CBC's recent efforts to improve program captioning
- while encouraging - had been haphazard. The Tribunal felt that,
with planning, 100 per cent captioning could be achieved without
imposing undue hardship. So it ordered that the CBC's English-language
network and Newsworld caption all of their television programming
- including television shows, commercials, promos and unscheduled
news flashes, from sign-on until sign-off. This is to be done
on the first reasonable occasion. It also ordered that the CBC
pay Vlug $10,000 in damages.
The CBC's record has improved since 1995, when 58 per cent of
its full schedule was captioned; it now stands at around 77 per
cent, a figure that excludes commercials and promos.
The CRTC requires Canadian broadcasters to caption 90 per cent
of their programming. However, at the time of writing, it was
not able to provide any recent audited figures on the percentage
of captioning achieved by other broadcasters.
In the United States, the Federal Communications Commission (FCC)
allows for a phase-in period, but broadcasters must provide closed
captioning. According to the rules, from January to March 2000
broadcasters were obliged to caption an average of five hours
per day of their new programming. This percentage will double
in January of 2002, increase to 15 hours per day in 2004, and
to100 per cent in 2006.
The Americans with Disabilities Act requires government-funded
public service announcements to be captioned, but makes no specific
mention of captioning beyond that.
The Vlug decision affirms that Canada's deaf and hard-of-hearing
community have the right to access a service that hearing Canadians
take for granted. According to the Health and Activities Limitation
Survey conducted by Statistics Canada in 1991 (the latest statistics
available), some 569,000 Canadians had a hearing disability. In
terms of the severity of that disability: 53 per cent were considered
mild, 27.6 per cent moderately so, and 19.4 per cent were identified
as severely disabled.
The ruling in Vlug echoes the strong messages sent by the Supreme
Court of Canada in two important decisions in 1999 concerning
the responsibility of employers and service providers to accommodate
the different needs of Canadians. In Meiorin and Grismer,
the Court confirmed that employers and service providers must
show that their standards foster real equality and emphasized
the need for systemic accommodation to ensure equal opportunity.
The CHRC welcomed these decisions because, in both cases, remedies
were ordered that respond not only to the concerns of the individuals
in question, but to any other Canadian who might face the same
This Tribunal decision leaves no doubt about the responsibility
of the CBC English network and Newsworld towards deaf persons.
The CHRC hopes that the result of Henry Vlug's complaint will
prompt private broadcasters to devote additional efforts to increase
captioning for this important segment of society.
Falardeau-Ramsay is the chief commissioner of the Canadian Human