A victory for the deaf and hearing impaired
A deaf lawyer from Vancouver wins the rights to have programs closed captioned

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 2000.

The 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.

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.

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 unfair treatment.

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.

Michelle Falardeau-Ramsay is the chief commissioner of the Canadian Human Rights Commission.