TRANSCRIPT OF PROCEEDINGS BEFORE

             THE CANADIAN RADIO‑TELEVISION AND

               TELECOMMUNICATIONS COMMISSION

             TRANSCRIPTION DES AUDIENCES DEVANT

              LE CONSEIL DE LA RADIODIFFUSION

           ET DES TÉLÉCOMMUNICATIONS CANADIENNES

                      SUBJECT / SUJET:

Unresolved issues related to the accessibility of

telecommunications and broadcasting services to

persons with disabilities /

Questions en suspens concernant l'accessibilité des

services de télécommunication et de radiodiffusion pour

les personnes handicapées

HELD AT:                              TENUE À:

Conference Centre                     Centre de conférences

Outaouais Room                        Salle Outaouais

140 Promenade du Portage              140, Promenade du Portage

Gatineau, Quebec                      Gatineau (Québec)

November 20, 2008                     Le 20 novembre 2008

Transcripts

In order to meet the requirements of the Official Languages

Act, transcripts of proceedings before the Commission will be

bilingual as to their covers, the listing of the CRTC members

and staff attending the public hearings, and the Table of

Contents.

However, the aforementioned publication is the recorded

verbatim transcript and, as such, is taped and transcribed in

either of the official languages, depending on the language

spoken by the participant at the public hearing.

Transcription

Afin de rencontrer les exigences de la Loi sur les langues

officielles, les procès‑verbaux pour le Conseil seront

bilingues en ce qui a trait à la page couverture, la liste des

membres et du personnel du CRTC participant à l'audience

publique ainsi que la table des matières.

Toutefois, la publication susmentionnée est un compte rendu

textuel des délibérations et, en tant que tel, est enregistrée

et transcrite dans l'une ou l'autre des deux langues

officielles, compte tenu de la langue utilisée par le

participant à l'audience publique.

               Canadian Radio‑television and

               Telecommunications Commission

            Conseil de la radiodiffusion et des

               télécommunications canadiennes

                 Transcript / Transcription

Unresolved issues related to the accessibility of

telecommunications and broadcasting services to

persons with disabilities /

Questions en suspens concernant l'accessibilité des

services de télécommunication et de radiodiffusion pour

les personnes handicapées

BEFORE / DEVANT:

Leonard Katz                      Chairperson / Président

Elizabeth Duncan                  Commissioner / Conseillère

Timothy Denton                    Commissioner / Conseiller

Suzanne Lamarre                   Commissioner / Conseillère

Candice Molnar                    Commissioner / Conseillère

Stephen Simpson                   Commissioner / Conseiller

ALSO PRESENT / AUSSI PRÉSENTS:

Sylvie Bouffard                   Secretary / Secretaire

Kathleen Taylor                   Hearing Manager /

                                  Gérante de l'audience

Martine Vallée                    Director, Social Policy /

                                  Directrice, Politiques

Sheila Perron                     Hearing Officer /

                                  Agente d'audiences

Lori Pope                         Legal Counsel /

Véronique Lehoux                  Conseillères juridiques

HELD AT:                          TENUE À:

Conference Centre                 Centre de conférences

Outaouais Room                    Salle Outaouais

140 Promenade du Portage          140, Promenade du Portage

Gatineau, Quebec                  Gatineau (Québec)

November 20, 2008                 Le 20 novembre 2008

- iv -

           TABLE DES MATIÈRES / TABLE OF CONTENTS

                                                 PAGE / PARA

PRESENTATION BY / PRÉSENTATION PAR:

Council of Canadians with Disabilities            931 / 5529

Arch Disability Law Centre                        971 / 5744

Canadian Hearing Society                         1047 / 6202

Rogers Communications                            1102 / 6520

Citizens with Disabilities - Ontario             1205 / 7197

Gatineau, Quebec / Gatineau (Québec)

‑‑‑ Upon resuming on Thursday, November 20, 2008

    at 0900 / L'audience reprend le jeudi

    20 novembre 2008 à 0900

5519             THE CHAIRPERSON:  Good morning.  This is Day Four of the hearing on accessibility.

5520             Madam Secretary, any opening remarks or comments?

5521             THE SECRETARY:  Thank you, Mr. Chairman.

5522             Good morning, everyone.  Bonjour à tous.

5523             I would like to remind everyone that when you are in the hearing room we ask that you completely turn off your cell phones and BlackBerrys and not only leave on vibration mode as they are an unwelcome distraction and as they will cause interference on the internal communications system used by our translators and interpreters.

5524             We would appreciate your cooperation in this regard.

5525             Please note also that ASL and LSQ sign language interpretation services will be made available throughout the hearing if needed.  Please advise the Hearing Secretary if you require such services.

5526             Furthermore, French and English captioning of the hearing is available on the screens to my left, as well as on the CRTC's web home page.  If you require assistance during the consultation, our staff members in and outside the hearing room or in the public examination room will be pleased to help you.

5527             We will begin today with Panel No.  20, the Council of Canadians with Disabilities.

5528             Please introduce yourselves and proceed with your 15‑minute presentation.

PRESENTATION / PRÉSENTATION

5529             MR. MARTIN:  Hello, my name is Kier Martin.  I am the Chair of the Accessibility Technology Committee for the Council of Canadians with Disabilities.

5530             MS D'AUBIN:  Good morning.  My name is April D'Aubin and I am a staff person with the Council of Canadians with Disabilities.

5531             MR. MARTIN:  The Council of Canadians with Disabilities is very pleased to have this opportunity to address the CRTC.  In advance of these hearings, CCD organized a disability community consultation on related issues and points that we bring to the CRTC today are the results of what we have heard at our own community consultation and our past work in this area.

5532             CCD is pleased to be appearing at this hearing but notes it is essential that it is just the first step in an ongoing long‑term process whereby the CRTC works actively with the disability community to address systemic barriers in the areas under its mandate.

5533             As an example, following the conclusion of this hearing, it would be advantageous for the CRTC to convene a high‑level forum for representatives of telecommunications and broadcasting industries, the government of Canada, CRTC and self‑representation from organizations of people with disabilities.  The purpose of the forum would be to develop and implement strategies for the recommendations arising from the hearings, including those of critical importance but beyond the mandate of CRTC.

5534             Such a forum could serve to put inclusive information and communication technology on a wider political, industry and community agenda, thus preventing recommendations from this hearing from being shelved.

5535             The obligations to address systemic barriers.  In a report on Stakeholder Consultations on Accessible Issues for Persons with Disabilities", CRTC was criticized for lack of global vision and approaching this issue in a piecemeal fashion.  CCD urges CRTC to take a systemic approach to the issues of persons with disabilities and to use domestic and international human rights and equality laws as the basis of decision‑making on areas of access.

5536             Of note, the United Nations Convention on the Rights of Persons with Disabilities has come into force.  It proclaims the importance of accessibility to the physical, social and economic cultural environment.  Article 9 of the Convention states:

"To enable persons with disabilities to live independently and participate fully in aspects of life, States Parties shall take appropriate measures to ensure persons with disabilities access, on an equal basis to others ... to information and communications, including information and communications technologies and systems..."

5537             As there is a monitoring mechanism Canada's progress toward reaching the objectives set out in the article will be under international scrutiny.

5538             In general, CCD recommends the following set of inclusive principles developed by a community coalition to guide the work on access to information and communication technologies.

5539             (1) Telecommunications architecture should enable inclusive telecommunications services;

5540             (2) Telecommunications infrastructure should support different modalities, allowing a broader range of inputs and outputs;

5541             (3) Procurement of user terminal products and devices should specify accessibility requirements;

5542             (4) Accessible user terminal products and services should be available on a retail level;

5543             (5) The corporate public services and policies (e.g. procurement, customer experience, service development and employment) should include and support accessibility practices;

5544             (6) Ongoing telecommunications related research and development are necessary to ensure long‑term availability of broadly accessible and inclusive services.

5545             CCD believes that there would be a merit in an annual action plan such as those undertaken by telecommunications sectors in Australia to ensure that access and inclusion remain on the agenda for telecommunications/radio‑television sector.  Included in this process should be a yearly meeting with the disability community for the purpose of reviewing the contents of these plans.

5546             Applying a disability lens, the CRTC needs to develop its own disability lens, a tool for identifying and clarifying issues affecting persons with disabilities.  It provides government policy and program developers and analysts with the framework for considering and addressing the impacts of this initiative on people with disabilities.

5547             Each decision made by the CRTC also needs to include a disability impact statement.  People with disabilities must be centrally involved in this process.  The stakeholders document noted that the CRTC is lacking human rights expertise and expertise in disability issues.  At CCD's community consultation participants suggested that CRTC is lacking staff who self‑identify as people with disabilities and approach issues from a disability rights perspective.

5548             One way to improve knowledge base at CRTC is by hiring qualified people with disabilities to work on access issues.

5549             Another way to include the expertise of people with disabilities is by appointing qualified people from the disability community to be commissioners.

5550             Of note, the involvement of individuals with disabilities is not sufficient.  The self‑representational organizations of people with disabilities needs to be involved in the development of any initiative on disability at the CRTC, including the development of the framework of the aforementioned action plans, disability lens, impact statements and consultation mechanisms.

5551             As was noted in the stakeholders report, there is considerable community dissatisfaction with the avenues which exist in the CRTC for people with disabilities to bring forward accessibility issues; licence renewals, complaints process, as an example.

5552             To redress this disadvantage, the CRTC needs to develop a more user‑friendly mechanism whereby the disability community can bring to light access issues.

5553             In 2006 a community coalition proposed to the CRTC the establishment of a national telecommunications accessibility institute and CCD reiterates this proposal.  This institute would be funded by but independent of ILECs, although ILEC and CRTC participation would be sought in its governance and operation.  The institute would consist of accessibility experts representing a national, inclusive design, and cross‑disability perspective as well as telecommunications experts from ILECs and would be chartered to advance and establish accessibility principles throughout the telecommunications industry.

5554             Markets have force but they don't ensure access.  There is overwhelming evidence that market forces do not achieve accessible information and communications technology.  Rather mandatory regulation of industry and services is the most reliable and effective way to achieve access.

5555             Of note, the rapid pace of technology change and regulation for access is even more important to ensure that people with disabilities stop falling behind.

5556             Adherence to the principles of universal design can ensure that in the rush to bring technology to market access that would enhance access and not overlook it.

5557             Universal design addresses accessibility for all types of disabilities and is based upon seven principles:  equitable use, flexibility in use, simple and intuitive use, perceptible information, tolerance of error, low physical effort and size and space for approach and use.

5558             Regulation can be the incentive which motivates business to adopt universal design approaches.

5559             CCD is very disturbed by CRTC's practice of forbearance when it affects the access for people with disabilities, because it only serves to further entrench the status quo.  The message at CCD's own consultation on telecommunications was clear:  no more forbearance on access issues.

5560             It is CCD's view that CRTC must establish a new direction which emphasizes that barrier removal and nondiscrimination against people with disabilities in relation to telecommunications are of utmost importance and that particular technologies are a means of achieving inclusion.

5561             Voluntary standards are not acceptable.  Voluntary standards are an approach that has been tested and found lacking in other sectors and can be seen in CCD's seven‑year battle with VIA rail over inaccessible rail cars which violated voluntary standards.  CCD litigated the case to the Supreme Court which supported Canadians with disabilities' right to use public facilities.  While litigation is not CCD's preferred route for barrier removal and protection of human and equitable rights, there is a willingness in the disability community to use available mechanisms.

5562             Procurement policies are required.  The CRTC needs to require service providers under its jurisdiction to offer a range of products and services that meet the needs and members of the Canadian public with disabilities.

5563             Accessible user terminal products and services should be available at a retail level.

5564             Affordability.  The CRTC and CCD's view has been that the public interest responsibility to ensure that affordable information and communication technologies is accessible to low income Canadians.  While public access sites are an excellent community resource, they do not replace home access; in particular, people with disabilities who face many barriers to using public computers.

5565             People with disabilities live in all parts of Canada, including rural and remote communities.  CRTC has an obligation to ensure that they have accessible information and communication technologies that are guaranteed under the Telecommunications Act, the Canadian Human Rights Act and the Charter.

5566             At our community consultation participants expressed the viewpoint that there is need for more research done on the approaches to information and communications technology in other international jurisdictions.  While the disability community is committed to undertaking and controlling its own research agenda, there may be ways that CRTC, CCD and other members of the disability community could collaborate on research.

5567             Moreover, when and if the CRTC undertakes research on the issues affecting persons with disabilities, it could consider qualified researchers with disabilities as potential researchers and be proactive in sharing the research results with self‑representational organizations in the disability community.

5568             In light of the input received during this hearing process, CCD recommends that the CRTC review the adequacy of the legislation for undertaking barrier removal necessary for the achievement of accessible and inclusive information and communication technology systems in Canada.

5569             Presently the Telecommunications Act does not specify or specifically address disability.  It recommends that the Act be amended and address access to telecommunications by persons with disabilities, universal design and barrier prevention and removal.

5570             Pay telephones continue to be an important part of public landscape for people with disabilities.  Generally people with disabilities have lower incomes than their nondisabled peers and individuals may not be able to afford a personal cell phone, so the pay telephone is traditional and important for people with disabilities.

5571             The pay telephone can be an important lifeline to police, medical, fire and other emergency services.  All pay phone installations must follow universal design principles so that the widest possible range of people with disabilities can access them.

5572             Through its public interest mandate, the CRTC has a responsibility to ensure persons with disabilities have equal access to emergency services.  The CRTC must ensure that 911 services are accessible to users of TTYs, voice carryover services, text phones and IP services.

5573             It is important that emergency announcements follow the principles of universal design so that they are accessible to the widest range of the public as possible.

5574             In regard to the national relay service, CCD continues to support models of VRS, video relay service, provision and is supportive of the position by the position by the Canadian Association for the Deaf.

5575             CCD reiterates calls from the deaf community for deaf people to be hired by telcos to work on their VRSs.

5576             CCD supports the recommendation of AEBC on described video.

5577             In summary, CCD holds:

5578             ‑ access and equality will only be achieved through regulation;

5579             ‑ new barriers must not be created;

5580             ‑ a national approach must be taken to information and communication technologies;

5581             ‑ CRTC must ensure its actions abide by the principles of the Charter of Rights and Freedoms and the Canadian Human Rights Act;

5582             ‑ ongoing consultation with people with disabilities is essential;

5583             ‑ the principles of universal design must guide the development of telecommunications and broadcasting services and products.

5584             Thank you.

5585             THE CHAIRPERSON:  Thank you very much.

5586             I would ask Commissioner Simpson to lead some of the questions.

5587             COMMISSIONER SIMPSON:  Thank you very much, Mr. Martin, for a very concise and cohesive presentation.  It is very laudable.

5588             I would like to start at the larger end of your presentation with respect to the overarching need for more effective ongoing consultation with not only the CRTC but, from what I'm hearing, all levels of government and industry.

5589             Your organization has a long and very effective track record of engagement and representation so I'm going to start off by asking you, do you feel ‑‑ I'm hearing you say that you wish the CRTC to engage you in an ongoing process.  But in the fullness of all of the different levels of government, would this be the most effective forum for your representation?

5590             I'm thinking mainly because accessibility issues seem to tie so strongly to technology, which is something that we don't presently have a strong enough hand in ‑‑ and I hear you criticize that.

5591             Given the present state as opposed to the ideal state, would someone other than the CRTC be a more effective group to work with, like Industry Canada?

5592             MR. MARTIN:  What we don't want to do is ever basically put our eggs in one basket.  Working with all groups, there are plenty of experts out there and we believe that we should be working with Industry Canada and that we should be working with CRTC and other government groups in all our areas of expertise.

5593             But the most important thing to add to this, it needs to be an ongoing process; that we are continually working with CRTC and other government and private sector groups and not doing catch‑up at the end, that we are not brought into this process near the end saying we are going to be spending money or we are going to be introducing these regulations.  Now how can we amend them to benefit people with disabilities?

5594             If we are part of the process all along, we are not going to be making these mistakes near the end.

5595             COMMISSIONER SIMPSON:  Thank you.

5596             With respect to information that is available to disability groups right now and those with disabilities, I myself have been finding it a very interesting challenge to try to find what is available in terms of what currently exists.

5597             To that end I'm wondering if you could share with us some recommendations.  I'm thinking particularly of the web and I'm thinking particularly of the means by which an individual with disabilities could go to a central source for information concerning what is available to the disability community as a whole.

5598             I'm finding that there is a profound lack of information that comes to a starting point for seeking more information.

5599             MR. MARTIN:  Again, it goes into a whole bunch of areas where different experts ‑‑ the web is a very broad area.  If you are talking about accessible webpage and design, what you want is your webmasters and all those people that are designing and implementing accessible webpages.

5600             Many of the leaders around creating accessible webpages of different types happen to be people with disabilities as well.

5601             You would be looking at bodies like the World Wide Web Consortium, who set standards around accessible webpage design.  Different nongovernmental organizations provide access to services, support programs, training and research on adaptive technologies for people with disabilities.

5602             So you would be looking more at the community groups in that regard.  For people with disabilities to access these devices, you would be looking at community groups.  You would be looking at more higher end technical ends for accessible webpage design.

5603             So I'm not too sure which one you are getting at, but it could be all of them all at once.  There is no one place to get everything.

5604             COMMISSIONER SIMPSON:  I think where I'm going with this is that your organization seems particularly suited to be able to engage government in the task of drawing together existing information that is out there.  I, throughout the course of this hearing, have been quite amazed at the difficulty I have had in my research at finding specific information, either from specific suppliers or technology vendors or service groups or interest groups.

5605             It is very diverse right now and we have heard, again throughout the week, a very diverse range of voices from the disability community.  And I am beginning to come to an understanding that one of the earliest fixes to be able to get some productivity out of these hearings is to talk to groups such as yourself about ways to aggregate the existing information to a central source and I wondered if you had an interest in exploring that.

5606             MR. MARTIN:  Well, absolutely, and that is why, as CCD, we took the approach of rather than just going in with what we believed, is we brought our other community partners around the table.

5607             We talk directly to the telcos on an ongoing basis and we are committed to sharing our interests and our expertise and inviting in our other community members so that we can look at this as systemically as possible and thus be able to bring this back to you in a comprehensive manner.

5608             COMMISSIONER SIMPSON:  Your goal, as you stated, would be to see some type of a large‑scale effort made by all members of the disability groups, stakeholders, government to come together into some form of a consortium or an institute, which is laudable.

5609             Have you seen any evidence of that kind of an undertaking anywhere else in the globe right now?

5610             MR. MARTIN:  There has been some undertaking to our neighbours to the south in the U.S., and in Australia there has been a strong sharing of information, resources and cooperation between governmental organizations, between broadcasters, telecommunication companies and groups, not only people with disabilities but other minority groups to ensure that they have equal access.

5611             COMMISSIONER SIMPSON:  Knowing the timeline that things take to evolve anywhere in government, or industry for that matter, is there or have you considered the option of forming an ombudsperson representation from the community to plug into industry and government in the meantime or has that mechanism ever been explored so that there is a contact point that can go back to the disability communities to try and streamline the process?

5612             MR. MARTIN:  The different disability groups that we do support have worked with government in getting their ‑‑ in advocating to government the needs of what their different groups do.

5613             As a national umbrella organization, we do get to hear ‑‑ we are in the unique position to hear all these different ideas and these different experts in the community.

5614             To that end, which is why CCD thought it was important and we formed an information telecommunications group which is all run by volunteers and some staff from CCD support us in that in making sure that we are doing the best job possible as volunteers in staying on top of telecommunications and broadcasting issues as they arise in Canada.

5615             With more support, that group could do a lot more and so could groups from other disability organizations.

5616             COMMISSIONER SIMPSON:  Just one more question on that idea of a contact point.

5617             Again, my observations have been throughout the week that the more you look at ‑‑ the more I look, as a Commission member, at both sides of the issues of understanding the needs of those with disabilities, it does not seem that it is an infinite challenge, but the more you learn, the more you realize how little you know.

5618             MR. MARTIN:  Mm‑hmm.

5619             COMMISSIONER SIMPSON:  And that same expanding universe seems to be occurring on the other side with the expansion of technology and the merging of industries.  It is a daunting task.

5620             And I just am putting out to you that it may be time within both sides of the equation to start looking at focal points where smaller, more effective groups can meet, armed with a more divergent set of understandings on both sides of the fence to really start facilitating some communication, because the application of standards just in the relay area alone is something that obviously some of the larger telcos are even having difficulty getting their hands on and they are not without resources or, from what I have seen, a desire to try and solve the problem.

5621             Now, this brings me to the issue of universal design.

5622             I had mentioned yesterday that there seemed to be some productive measures underway with the European Telecommunications Standards Institute and I went on record with some information about that.

5623             But I am wondering if you could talk to any other areas that you can point us to with respect to successful universal design standards that have been done to serve the needs of the disability community other than in the area of communications.  Is there anything you can point us to?

5624             MR. MARTIN:  It is a pretty ‑‑ there's amazing technologies that are available to really bring down barriers around technology for people with disabilities and I could probably sit here all day and list off different types of devices and technologies.

5625             The big ‑‑ one of the biggest barriers that I have seen in my 15 years working with community is seeing all these amazing devices, accessible cell phones, accessible TVs, accessible web pages, without them being implemented or people knowing about them.  That remains to be the biggest challenge.

5626             I think we have no lack of devices and communications that could serve to make life a lot better for all Canadians but without knowing what they are and putting them in the right hands of the right people, we are just going to keep running around in circles.

5627             To that end, I think one of the bigger things that I have seen in the past was around ‑‑ and it is both a barrier and yet it was a positive ‑‑ a very simple thing which is putting computers out into the public for free access.

5628             I worked in the community access program for years and had the luxury of travelling around Newfoundland and Labrador in the most rural and remote communities around there and public computers enabled people to reach out past their communities.  They were able to access information.  They were able to connect with loved ones abroad.

5629             To that end, a small coalition, a group of us, went around and found cheap and inaccessible accessible technology so that everyone in those communities, even if you had a disability, that you could go to your public library.  You didn't have to go to a disability organization that didn't exist in your community of 500 or 600 people or 1000 people.  You didn't have to come to St. John's to go to a high‑tech disability centre to get on the web.

5630             We just made those truly public computer sites.  So one of the good things that we have done is the knowledge is there, the technology is there, and when you have the people that are supported to do something like that, a lot of barriers can be brought down.

5631             COMMISSIONER SIMPSON:  Thank you.

5632             By the way, I am using your presentation as a checklist because it is very effective for me to cover the territory I want to get through today.

5633             On affordability, we had some very good presentations.  One was from the Stark family that was very enlightening.  They made a very effective case in saying that with respect to the pricing of technology services in particular, less should be less, not less is more.

5634             Their viewpoint was that why am I paying for services that I do not need and why is the removal of these ‑‑ why are the removal of these services looked at as a specialization that requires me paying more money than less?

5635             Could you expand a bit, for the record, about your perspective on affordability, both with the viewpoint to acquisition of technology such as wireless and computers and also about your view, your organization's view on pricing of services from suppliers?  Could you elaborate, please?

5636             MR. MARTIN:  Different accessible technologies for people with disabilities has either ‑‑ in its pricing has either stayed the same or increased, whereas around this room right now, I see a whole bunch of laptops and you can go out and ‑‑ well, I just bought one the other day for $500.  You can now buy a laptop for $500.

5637             But any kind of these computers a few years ago would have cost over $2,000, and adaptive technologies for people with disabilities has generally stayed the same, which is high.  So when we look that most people with disabilities don't have these high incomes to purchase these products, it has become problematic.

5638             Also, a lot of the third‑party applications that are written by some smaller companies and other groups to create accessible cell phones and accessible computers and accessible devices, they spend a lot of their time catching up.

5639             Windows changes from Windows XP to Windows Vista.  Vista changes to something else.  That is always an expense by the vendor that is being put back onto the consumer.  So it is continuously driving up the price.

5640             Basically, it catches us in an area where the accessible vendors are doing catch‑up.  People with disabilities are waiting to use new technologies that are coming out there but they don't know if they will be able to access them.

5641             And doing one or two little things, like an accessible cell phone, anyone can go out and generally get a cell phone in a package and probably get a cell phone for free that would work for them.  An accessible cell phone generally is no less than $400 out of your pocket for people with disabilities.

5642             So there is still a big barrier around price that has been created, and then that cell phone might only work for one group of people and not another.

5643             Again, on another level, we look at cell phones.  Not everyone needs all the features of a cell phone.  Some people only need to use text messaging, and I think it would be a really good idea by some telecommunications companies to look at different types of packaging for people with disabilities and maybe not charging people for voice if you are only using text, to cut down on different types of features.

5644             What I would recommend to them is to talk to some of those other disability groups and see what market is there for them.

5645             COMMISSIONER SIMPSON:  Thank you very much.

5646             Going to a specific area that is emerging ‑‑ it is on, I think, everyone's radar ‑‑ is the issue of video relay, you know, the migration from MRS to VRS.  I have a series of questions I would like to ask your opinion on, please, or your perspective from your association.

5647             The first is I assume from your presentation that your organization is in support of a national relay service as opposed to the prospect of regional services; is that correct?

5648             MR. MARTIN:  Yes.  A national video relay service would be of benefit to all folks with disabilities across this country.

5649             You would have a national standard which people from coast to coast, rural and remote, would be able to access and communicate between each other instead of the possibility of facing any kind of technical difficulties from region to region communicating with each other.

5650             It is also one established system that those of us that work out in the community, when we are working with folks with disabilities, that we are able to better support this national relay service and give support to people with disabilities in using and accessing a national relay service.

5651             And plus, as it moves nationally, a video relay service over time will get better, it will get faster, it will keep pace with technology.

5652             Regionally based, what you might have is different regions falling behind.  A video relay service done nationally would always keep up with the times.  So one fix would fix all.

5653             COMMISSIONER SIMPSON:  Thank you.

5654             If a national service was to be considered, what is your recommendation as to the definitive organization or group of organizations that should be a mandatory inclusion to the formation of the service from the standpoint of representing those with hearing disabilities?

5655             MR. MARTIN:  Well, I would see CCD playing, ourselves playing some sort of role at the table, but I would also have to highly recommend the Canadian Association for the Deaf.

5656             They were talking and bringing up video relay service before any of us really understood the benefits and why to have such a service.  They are truly the pioneers in this and they have been at this table long before many of us in other disability communities were here at this table.  So really, I have to give my hat off to them.

5657             They have done the work and I don't think you need to look too much further than the Canadian Association for the Deaf and the Canadian Hard of Hearing Society around this issue.

5658             They have looked at other models globally.  They have shared their recommendations with both telecommunication companies, other community resources like ourselves, and have always been a really good, strong community partner to us.

5659             COMMISSIONER SIMPSON:  Thank you, excellent.

5660             Does your organization have any information that you can share with the Commission with respect to the proportion or percentage of Canadians who are using exclusively ASL or LSQ signing methodology to communicate?

5661             MR. MARTIN:  I am not too sure on that one and I know coming up shortly after me would be the Canadian Hard of Hearing Association and the Canadian Association for the Deaf and they will definitely be able to give a more accurate answer on that for you.

5662             COMMISSIONER SIMPSON:  It is something that is, I think, vitally important to understand, and if it is possible to ask you, if we are not able to achieve this information, may I ask that you look to consulting with other groups other than your own to try and get us that information to help in our determinations?

5663             I think legal counsel would ask that we try and get that information within a timely period of a week or two but that would be very helpful information to have.

5664             Next question has to do with priority issues.

5665             I think you have been very effective ‑‑ I know you have been very effective in getting some very concrete examples of your goals across to this Commission.  At the end of your presentation, you had given us a summary that ‑‑ I believe there's one, two, three, four, five, six, seven points.

5666             Are these in priority in terms of your perspective of need?

5667             MR. MARTIN:  Well, I think they all connect to each other.  I mean if you look at them, I would say they are all a priority and that is the short and simple of it.

5668             Addressing ‑‑ like barriers are going to continue to be created, but to stop barriers, you need to have communication with disability community. Regulations would also address new barriers from being created.  A national information and communications approach, this is what I hope is a first step towards that.

5669             I am hoping that some of these points are actually taking place as we are here now today.  They are all a priority for me right now.

5670             COMMISSIONER SIMPSON:  I have a job jar at home and I hear that same observation with respect to equal import.

5671             But again, to guide the Commission, if there is anything you would wish to add supplementally by way of an undertaking to putting a priority to those, it would be extremely helpful to us for, I am sure, the reasons you understand.

5672             That concludes the questioning I have.  I will turn it back to the Chair.  Thank you.

5673             THE CHAIRPERSON:  Thank you very much, Commissioner Simpson.

5674             I have got a few questions and perhaps some of the other commissioners here have some as well.

5675             Mr. Martin, I refer you to your submission on July 24th, 2008.  You reference in there on page 4:

"CCD has been a member of Industry Canada's Advisory Committee on Adaptive Technology." (As read)

5676             Is that committee still operational today?

5677             MR. MARTIN:  I am not on that committee myself but as far as I know that committee is still active and that they do meet a couple of times a year.

5678             THE CHAIRPERSON:  How would you see the role that you play there and the role that Industry Canada plays distinct and separate from what I hear some of the parties, including yourselves, asking us to do to set up an institute or a forum to look at technology and future developments of products and services?

5679             MR. MARTIN:  That is an ongoing group that specifically looks at adaptive technologies for persons with disabilities and the procurement and creation by vendors for people with technologies, whereas working with CRTC, we would be looking at introducing those same technologies, some of those same technologies but not all, to the benefit of people with disabilities, putting accessible cell phones, affordable technologies, broadcasting in closed captioning, all those things that people with disabilities in this country in order to participate in the area of technology and communication need.

5680             THE CHAIRPERSON:  But why can't that forum, that committee, be used and broadened to encompass some of the issues that the people here before us are asking us to undertake ourselves?

5681             The forum already exists.  It may not have the broader mandate but it is there right now.  Certainly, if it is looking at future adaptive technologies, it can look at current technologies and current products that are in the marketplace today and just provide a one‑stop shop for all the needs of all the disabled through this committee.  Wouldn't that make sense?

5682             MR. MARTIN:  It would make sense to look at that committee and their mandate and what they do and whether or not the people on those committees are the right people to broaden this.

5683             There is nothing saying too that the disability community can't be at Industry Canada's table as well as the CRTC table and that they don't need to be exactly the same people.

5684             THE CHAIRPERSON:  Well, I am not sure you need to have two tables either is the point that I am trying to make.

5685             MR. MARTIN:  Mm‑hmm.

5686             THE CHAIRPERSON:  Okay.  I am going to refer you to page 4 ‑‑ or page 8, sorry, of that same document where you say right on top in section 2.1.5:

"No one should be made worse off by reform." (As read)

5687             I am not sure if you are referring to regulatory reform or technological evolution reform.  What is it you mean by "reform"?

5688             MS D'AUBIN:  We are referring to political reform and regulatory reform and our position is that people with disabilities are a disadvantaged group in Canadian society and that political changes that occur in our country should not make people with disabilities any worse off than they already started off as.

5689             THE CHAIRPERSON:  Any worse off, okay.

5690             MS D'AUBIN:  Yes.

5691             THE CHAIRPERSON:  Got you.

5692             And then on page 16 of that same document, you talk about devices and services not being readily available, and you say that they are usually expensive, which I heard you say, Mr. Martin, and difficult to locate.

5693             We have asked other parties the same question:  Are there specific products and services that you have found in the U.S. or elsewhere that don't exist in Canada today?

5694             MR. MARTIN:  Where the U.S. has the Americans With Disabilities Act, different groups are regulated, to have a base of accessibility.

5695             We don't have that framework, necessarily, in Canada.

5696             THE CHAIRPERSON:  But what I am looking for are products and services.

5697             What physical products allow people with disabilities in the United States to live a more fruitful life, which do not exist in Canada?

5698             MR. MARTIN:  The same products and services can be available in Canada, they are just not as centrally located as they are in some of our other counterparts, and that has created a big challenge.

5699             We have a lot of vendors.  We actually do have a lot of companies that specialize in technologies for people with disabilities.  The majority of their exports actually go into the U.S., not into Canada.

5700             We could be looked upon as leaders in creating accessible devices in Canada.  The sad truth around it is, most of those devices go south, and that is where they are implemented and used.

5701             We haven't created the base for why should people be using these products, why should companies be using these products in government and schools, and how can they best be used, and who will they best work for.

5702             I think that is one of the big steps that we have missed on this side.

5703             THE CHAIRPERSON:  But why wouldn't that be best addressed by the councils and the agencies and the associations ‑‑ the umbrella groups that are formed to support these people, these segments of society that need these types of products, rather than looking to government to do it?

5704             That's why I would tend to think that councils, yours and others, have been created, to be the focal point, the spokesperson, to seek out and to create those products and services to support these people.

5705             They do exist.  They may not exist, as you said, to the same extent as in the U.S. today, but they are available.

5706             So the question is, why can't your agencies and your associations bring that together and be the spokesperson for the distributors, or the importers, or the Canadian developers, which we hope they would be?

5707             MS D'AUBIN:  When we say that they are difficult to locate, I think it is coming from the perspective of individuals at the grassroots level who go to their local mall and look for a product that meets their particular needs, and they will likely not be able to have support from the people in the store on how to get a product that meets their needs.

5708             Our organization's perspective is that people with disabilities should be able to receive services from generic systems, that product sellers should have products available to people with disabilities, that people with disabilities shouldn't always have to go over to some other specialized service to meet their needs.

5709             We take the human rights approach that all aspects of society should be available to people with disabilities, and that goods and services should be available from commercial vendors to meet the needs of people with disabilities.

5710             Now, that doesn't mean that we think every cell phone perhaps should meet the needs of every person with a disability, but cell phone vendors should have products available to meet the needs of people with various disabilities.

5711             We are taking a human rights approach to our issues, as opposed to a medical model approach to our issues, where people with disabilities always get their needs met by some specialized service stream that the general public is not using.

5712             The problem when you go to specialized service streams is that there are always people who are left out because they don't have the information that these specialized services exist.

5713             Despite our efforts, not every person with a disability is connected to the disability organizations.

5714             We have been working over the last 30 years toward the human rights approach that the generic systems of society should meet the needs of people with disabilities.

5715             THE CHAIRPERSON:  Okay.  I am going to move on to my last question.

5716             You commented on a complaint process, and the fact that, maybe, a telecom ombudsperson is a concept that needs more consideration, and Commissioner Simpson talked about it in more general terms.

5717             Are you familiar ‑‑ I was going to ask if you are familiar with the CCTS, but you are, because later on in this document you refer to the Commissioner for Complaints for Telecommunications Services.

5718             When the government and the CRTC worked to create this independent agency, we also imposed upon it major obligations to be able to provide services to people with disabilities to the maximum extent available by any corporation in telecommunications in Canada.

5719             So it has the highest hurdle to reach.

5720             I am just wondering whether your body or constituency has tested that, and has gone to the CCTS to find out just how capable its capabilities really are.

5721             MS D'AUBIN:  We have not done that to date.

5722             THE CHAIRPERSON:  Those are my questions.

5723             Commissioner Duncan has a question.

5724             COMMISSIONER DUNCAN:  I have a quick question, just picking up on your last point to the Chairman.

5725             You mentioned, I believe, that it was a challenge, and that you had worked hard to try to involve people with disabilities in your organizations.

5726             I am curious to know how you reach out to people, and whether you think that the vast majority of people are represented within these different disability groups, and also the level of cooperation and consultation between the various groups.

5727             MR. MARTIN:  The CCD is continuously working with all of the different disability groups.

5728             I will let April jump in, just in case I slip up on it.

5729             We are an organization that is run by and for people with disabilities.  We are made up of disability groups from across the country, and to that end, people regionally and in rural and remote communities across the country make up the CCD chapter groups.

5730             So we know, very much, what is going on on the ground.  We hear it.  They feed that information up through their different disability groups, through the CCD chapter groups and other disability organizations, to the national groups.

5731             And we were very clear that, in different areas that are priorities for people with disabilities ‑‑ around transportation, around telecommunications, and information technologies ‑‑ we then involve community experts.  We sit down at a table and we talk to the different community groups.  We involve people with disabilities, and then ‑‑ we find ourselves here today.

5732             We take all of those recommendations seriously, and we find out what is the best model for us to address these issues systemically.

5733             COMMISSIONER DUNCAN:  Is there, sort of, a forum, annually, semi‑annually, of various disability groups ‑‑ for example, dealing with the hearing impaired ‑‑ where you would meet and discuss what approach you might take collectively in approaching Industry Canada and the Adoptive Technology Group, to get things that are the most productive for you?

5734             MR. MARTIN:  Using, again, this as an example, we have met numerous times with the other disability groups, and experts from the community.  We consulted, we made our views known, and we set priorities.

5735             Those priorities shaped the document that we presented to you today.  Those are priorities from people with disabilities, as well as experts from around the country.

5736             COMMISSIONER DUNCAN:  Thank you, Mr. Martin.

5737             Thank you, Mr. Chairman.

5738             THE CHAIRPERSON:  Thank you very much, Ms D'Aubin and Mr. Martin.  We appreciate your appearance here.

5739             This concludes this panel, and we will take a five‑minute recess to bring on the next panel.

‑‑‑ Upon recessing at 0958 / Suspension à 0958

‑‑‑ Upon resuming at 1007 / Reprise à 1007

5740             THE CHAIRPERSON:  Order please.

5741             Madam Secretary.

5742             THE SECRETARY:  I now call on ARCH Disability Law Centre.

5743             Please introduce yourselves, and proceed with your 15‑minute presentation.

PRESENTATION / PRÉSENTATION

5744             MS GORDON:  Good morning, and thank you for the opportunity to be here.

5745             I am Phyllis Gordon.  I used to be the Executive Director of ARCH, and now I am outside counsel, in a semi‑retirement position.

5746             My colleague is Lana Kerzner, who is an experienced lawyer, and a staff lawyer at ARCH.

5747             Before we begin, there are a couple of quick matters that I would like to make sure I cover.  The first is in response to the Chairman's questions about the Adaptive Technology unit at Industry Canada.  It no longer exists.

5748             We would be happy to talk about that and other issues with respect to Industry Canada in the question period.

5749             The second thing is that you have been provided with something called the "G3ict Toolkit for Policy Makers".  This is a document that is still in draft form.  It was prepared under the ICT's auspices, and you will note that one of the authors is Canada's expert on adaptive technology, Dr. Treviranus.

5750             The reason we are putting it in now ‑‑ and we would like it to be an exhibit ‑‑ is twofold.  One, we referred to this in answer to an interrog that the Commission asked, and at that point we indicated that it wasn't ready.  It is still not in final form, but we have the authorization of the authors to provide it to you in draft form.

5751             The other reason is that I think it will be very helpful to the Commission when you look at the international scene, particularly the last 10 pages of this document, which outline all of the different initiatives that are going on with respect to standards development internationally on questions of ICT and accessibility.

5752             It is a resource.  I will refer to it later, but we thought that it would be really important for you to have it.  As I say, it was indicated as a source material in our interrog answers.

5753             We would like to begin by thanking you, and, in Chris Stark's words, we are hoping that the Commission scores a home run.

5754             Some of you may not be aware of our organization, so I will briefly outline who we are.

5755             We are an Ontario‑based community legal aid clinic dedicated to defending and advancing the equality rights of people with disabilities, and we have been in this business for close to 30 years.  We have been at the Supreme Court of Canada frequently, and in many other legal venues.

5756             In recent years we extended our work to telecommunications because accessible telecommunications holds such potential for people with disabilities, just as inaccessible telecommunications will lead to new, significant and profound barriers.

5757             We are hoping to bring a disability law analysis to the obligations that exist under the Telecommunications Act.  It seems clear to us, with each of the presentations you have heard from the disability community, that the record now indicates that there are serious gaps in the delivery of accessible telecommunications and broadcasting services in Canada.

5758             Our focus is certainly telecommunications.  We don't have expertise in broadcasting, but we do have expertise in anti‑discrimination and equality rights, and submit, as a general statement, that those principles apply to both your actions and your interpretations of both of your founding statutes.

5759             The outline of this presentation is as follows:

5760             We first comment upon three general principles, and then briefly discuss the universal service obligation.

5761             We then briefly address how to go forward, and we recommend a disability unit, action plans and accessibility assessments.

5762             We conclude our submissions by really looking at the Telecom Act and the obligation to make decisions in light of human rights obligations.

5763             We have selected these as the key matters that we need to address, given our expertise, but we would also appreciate the opportunity to talk later with you about our understanding of international developments, to comment upon funding proposals, and the Industry Canada mandate and activities, as well, and anything else, of course.

5764             The first broad principle we are asking the Commission to be mindful of is a cross‑disability perspective, to adopt one wherever relevant.

5765             We have heard clearly articulated submissions regarding the telecom and broadcasting requirements of people without sight or hearing.  The Neil Squires Society addressed issues faced by people with physical disabilities.

5766             However, the Commission has not heard from other groups, including those representing people with intellectual disabilities, people who have had strokes or brain damage, or who experience the pain of extreme arthritis, for example.

5767             A particularly vulnerable group of people are those with communication disabilities, including severe speech disabilities, and for whom new technologies hold huge promise.

5768             We are not expecting the Commission to address the specific requirements of these groups in this proceeding, but we are asking that, where the context permits, outcomes and solutions, particularly those that include future initiatives and consultations, be available to all people with disabilities.

5769             This is not only good policy, it is consistent with human rights and equity law, which does not recognize hierarchies with respect to disability and accords all people with disabilities the same substantive considerations.

5770             The second general reminder ‑‑ and we have heard it before ‑‑ is that a large portion of people with disabilities are either poor, or very poor.  They are living at or below the poverty line and, in many cases, IP‑based solutions may not be possible options ‑‑ until, of course, as the preceding speaker mentioned, the price comes way down.

5771             Many do not have computers, and others have old computers that they can't afford to regularly update, and which may not be compatible.

5772             Regulatory solutions must take this into account and always keep the exercise of choice and the least expensive option open.

5773             A third comment is obvious, but bears repeating.  As a regulator, your task is to regulate the industry and the relations of the actors in it.  For the citizen, what you regulate is the fundamental infrastructure of our social world and the communications we have in it, whether they be personal, social, educational, economic or cultural.

5774             The Commission makes rules about services, classes of services, tariffs, et cetera, including consumer safeguards, but for many Canadians how you do so is not significant, as long as the outcomes are quality service and manageable prices.

5775             For Canadians with disabilities, your regulation has been essential.  As already noted, to our knowledge, almost all, if not every accessibility initiative that has occurred to date in the industry has been pursuant to a direction or order of the Commission.  We saw that in some of the discussions with respect to the deferral accounts.  Now that there is a little bit of money, there is some action.

5776             Years ago, when we were working on ‑‑ I think it was the VoIp hearing, or it may have been the deferral accounts hearing, we asked questions.  We had an interrogatory option then, and we asked questions of the companies:  Why are you doing things?  What are you doing?  They repeatedly said, "The Commission told us to do it, and that's why we have done it."

5777             I think that is pretty clear and, therefore, your role is that much more important.

5778             One critical aspect of the Commission's regulatory approach has had an unintended outcome, which is the serious and debilitating lack of terminal equipment required to ensure that accessible telecommunications are available in the country.

5779             We submit to you that the utility and the marvel of telecom is for everyone, and we urge you to give as full effect as possible to this entitlement.

5780             With respect to universal service, we are asking the Commission to clarify the meaning of the universal service obligation.

5781             In Canada, we refer to the availability of telephone service at affordable rates as the universal service obligation.  In the 1977 Bell general rate case, we said that the Commission must ensure that all segments of the public have reasonable access to telephone service.

5782             In fact, the Commission described universal accessibility to basic telephone service as a "fundamental principle of regulation".

5783             We submit that the evidence you have received in this proceeding underscores that accessibility is fundamental, paralleling affordability and availability.  As part of our regulatory framework, our universal service obligation should explicitly contain the notion that Canadian telecommunications services are required to be available, affordable, and accessible to Canadians with disabilities.

5784             The starting point for all of this is section 7, which sets out the telecommunications policy objectives, and, in particular, subsection 7(b), which applies to all Canadians, including Canadians with disabilities.

5785             Further, section 46.5 gives specific statutory character to the universal service obligation and provides for a mechanism of supporting access by Canadians to basic telecommunications services through the creation of a fund.

5786             While there is no fixed concept or standard definition internationally of what should be defined within the scope of the universal service obligation, in broad terms its goals have been stated to include:  availability, affordability and accessibility.

5787             Accessibility makes reference to ensuring that people with disabilities can use the service.

5788             You will note that that information is taken from a very learned article, and the cite is available for you.

5789             Australia and the United States have similarly interpreted this obligation to apply to people with disabilities.  We submit that Canada's universal service obligations should be in keeping with these approaches.

5790             Going forward:  An important outcome of this proceeding will be to establish a way of moving forward so that accessible telecom is addressed early and effectively.  To this end, ARCH submits that a Disability Unit, based at the CRTC, is essential and the preferred model.

5791             I am going to put in parentheses here, though, that if the Commission finds another effective and independent model, and a funded model that is not at the Commission, we will not oppose it.  In our view, this is the best location, and we can discuss that further.

5792             It is not appropriate or feasible for disability participants and advocacy groups to shoulder the burden for systemic change on an ongoing basis.  As Cathy Moore of the CNIB pointed out, people with disabilities, like the vast majority of members of the public, are not telecom experts.

5793             We have been blessed with, and the CRTC itself has benefited from, the stamina, insight and courage of Chris and Marie Stark and Henry Vlug for decades, but neither the Commission nor the community can continue to expect these individuals to continue their advocacy in the years ahead.

5794             The FCC has benefited significantly from its Disability Rights Office.  We submit that now is the time for Canada to do so as well, and would be happy to discuss the approach for the unit later.

5795             In our view, there are some core and very important functions, and that's why we think that the best place for it is the CRTC.

5796             The Disability Unit would fill many of the gaps that have become apparent in these proceedings.  It should be a "made in Canada" department, responsive to our national identity, both languages, and to our industry, community and regulatory constellations.

5797             The unit we propose would be a centre of technical and policy expertise and, where possible, would be staffed by people with disabilities.

5798             It would coordinate focused consultations between industry, disability organizations and technical experts, as required.

5799             It would handle any accessibility reporting obligations required by the CRTC.

5800             It would keep itself, the Commission, the industry, and people with disabilities informed about Canadian and international policy, regulatory and technological developments.

5801             It could be a central and public repository of accessible product information.

5802             The unit would monitor cases at the Commission and advise the Commission, industry, and the community if it considers that cases may have an impact on the present or future delivery of accessible telecom services.

5803             Likewise, it would be able to identify whether new technologies or services may impact accessible services.

5804             We submit that the unit could issue best practices for the industry, including such things as how to implement universal design, and the development of an accessibility impact assessment tool to be utilized by industry early on in the review of a new project or technology.

5805             This would be something like what goes on in the environmental industries when they roll out new programs and they look at environmental impacts.  Here we are looking at accessibility impacts.

5806             If I might give you a couple of examples that aren't in the written text about what I am referring to ‑‑ and I can't really address these, other than give you the examples, because I am not a technical person.  Dr. Treviranus provided them to me.

5807             Examples of some things that might be caught by an accessibility impact assessment are:

5808             Whether the security encrypted routines to be used in a new online service will prevent users of keyboard emulators ‑‑ that means people who cannot use standard keypads, keyboards and mice ‑‑ from successfully logging onto the system.

5809             That could be a barrier, if the system requires hitting the screen.

5810             Whether a conversion routine from one format to another would strip out accessibility information, such as captions or descriptions.

5811             Whether video compression routines would degrade information by someone who is using sign language ‑‑ information in the movement, rather than in the still frame.

5812             Apparently the amount, or the focus of ‑‑ I'm sorry, I can't really express it, but it is very different whether one is looking at a still image or a moving image, and ASL is a moving image, so that's an issue.

5813             ARCH submits that the Commission should place annual accessibility reporting requirements on providers, and consider the adoption of something akin to the Australian Disability Action Plans.

5814             We would note that you have the power to do that under section 37(1)(b).

5815             Now, to look more at the legal framework, I just wanted to point out that, while we think that you have the task of ensuring that TSPs deliver telecommunications in a non‑discriminatory manner, we are not asking or suggesting at this point that the Commission take on the task of determining specifications and standards applicable to the manufacture of terminal equipment.

5816             That may be a bit of a relief, because I think that you might have understood that from our written materials and we are resilling from that view, if that's what you understood.

5817             THE SECRETARY:  Excuse me, this is the hearing secretary, your time is almost up.

5818             MS GORDON:  Oh, dear.

5819             THE SECRETARY:  Can you please conclude?

5820             MS GORDON:  Well, then, you have my legal argument.

5821             I don't know how you want to handle that, Mr. Chairman.  I have identified it.

5822             I know there was a question from Commissioner Lamarre last time about your legal options under the act, and that's the rest of this package.

5823             THE CHAIRPERSON:  Can you summarize these last five pages, instead of reading it?

5824             MS GORDON:  Well, I can try.

5825             I can say that, first, with respect to the issue that we think is paramount, is that the providers TSPs must have in their inventory accessible equipment and phones, as much as they are available.  We need to have options for that.

5826             And they need to advertise that.  There's no reason why people with disabilities can't receive advertising, it's part of doing business, and that they need to keep the public informed.

5827             Now, you can do that.  Because we are submitting, and we have put in an analysis here, that there's discrimination, under section 27(2), in general.  That's an avenue you can look at.

5828             In the cellular industry in particular, we no longer have ‑‑ effectively, you get your phone from the provider.  That's the way it's done in Canada, by and large.  Therefore, we are saying that's ancillary.  The provision of the sets is absolutely ancillary and integral to the delivery of the telecommunications service.

5829             So there's quite an analysis of that in here.

5830             And then we also have relied upon the decision that you wrote last year in the Stark decision, where you set out what would be a meaning of "discrimination" and "accessibility", and on the top of 8 I have distilled from that case a statement of principle.  We are saying that's really your definition of what "discrimination against persons with disabilities" would mean if there's a failure to deliver accessible equipment.

5831             So using your principle and using the very strong language of the Supreme Court of Canada in the VIA Rail case, we are advising in our submission it is essential that you look at the obligation to provide non‑discriminatory telecommunication services in light of human rights obligations.

5832             There is no such thing in Canada as ‑‑ what was the language that was being used? ‑‑ "the American language".  We have an unjust test here.  It's not a readily achievable test, and that's pretty clear.  In the States it's readily achievable whether one needs to provide something, but in Canadian law it's "undue hardship", in the human rights context.  Your statute 27(4) said "not unjust".

5833             The VIA Rail case says you read those two together and the human rights principles are what govern you.  So that's pretty fundamental.

5834             So then I have listed some other possibilities that you can do.  We can say you should be putting a condition, a section 24 condition, on the cellular providers, that they provide at least two phones, if possible, if they are available; if they are available, they advertise; and they provide information about their accessible inventory.

5835             Another route I have outlined in paragraph c is that you could refer back to the local pay telephone competition decision of 1998, where accessibility conditions were imposed on telephones.  That's not our preferred route, for various reasons, but it is an option for you.

5836             I have commented briefly that you may sort of get kickback with respect to Decision 94‑19, and we point out that case deregulated the sale, lease and maintenance of terminal equipment.  It didn't refer to or forebear with respect to the accessibility features of necessary equipment.

5837             And if you are still unsure when you are balancing out these issues, we ask you to rely upon and remember your obligations to interpret your statute in accordance with human rights standards and the Charter.

5838             So that's the main argument there.  We also say that you have got powers to take other steps.  You have got section 58 of the Telecommunications Act, which allows you to take a proactive position making statements or guidelines.  They wouldn't be binding, but they would have a huge impact on industry and I think would be very educative in the public if you said this Commission understands the importance of accessible telecommunications for all, that kind of thing.

5839             The second thing is that you can deal with technical standards under 32(b).  And I won't go into that paragraph here because we are not asking you to do it right now, but it's just alerting you.  Because I think the question yesterday is what were the powers, you posed to Mr. Vlug, and I'm just saying so this is a response to that question in some ways.

5840             Section 32(g) authorizes you to determine any matter and make any order relating to telecommunication services of Canadian carriers in the absence of applicable provision in Part III.  So you could find that there's something in this more unusual and broad hearing a different kind of evidence coming than in the normal competition case.  You could use that section to make an order or a direction we say.

5841             So that's the summary.  We are just saying, finally, that your role as regulator is incredibly important and don't underestimate your power to achieve significant change for lives of people with disabilities.

5842             Thanks.

5843             THE CHAIRPERSON:  Thank you very much.

5844             As you can gauge from Commissioner Denton, he's going to be the person asking questions.  That's why he was so interested in your legal arguments.

5845             Commissioner Denton.

5846             COMMISSIONER DENTON:  Thank you, Mr. Chairman.

5847             Good morning, ladies.

5848             It's a really nice meaty argument you have presented, and I thank you for it.  It presents a lot of issues for us.

5849             I'm going to be asking some questions that are predicated on the problem that we actually have to balance rights and responsibilities here, and I will be seeking your guidance and views on how that balance might be struck.

5850             Where I'm coming from is that in this, as you called it, "unusual hearing", we are having to consider the rights and interests of disabled in relation to the obligations we may impose upon carriers, broadcasters and others to provide equipment or to make services available to satisfy those rights of access.

5851             I'm sure you are aware that you cannot assert a right without asserting the obligation and duty of other people to observe that right.  It's a mutual thing.  I cannot have a right unless, basically, other people accede my right to have that right.  And so that's the balancing job that we are here engaged in now, as we try to figure out what we are supposed to do.

5852             I'm going to give you a little more time, perhaps, to make the same argument you were making on paper, but I would like you to take some time to set forth your conception of the legal basis of the process we are engaged in.

5853             So to begin with, what would you say are the judgments, statutes or treaties that have got us into this position?  And more particularly, where can we, as commissioners, turn to for guidance in devising the right balance between access rights, on the one hand, and the rights of others who are required to comply with those rights?

5854             MS GORDON:  Firstly, I would like to say that you have two lawyers sitting here and we don't always agree, Lana often has as valuable information as I do, so we have agreed between ourselves that there's no priority here.  So if she has another idea, she can jump in.

5855             I guess the judgments are from the Supreme Court of Canada.  I don't think we need to go to lower courts.  I don't have a recitation of all the relevant judgments.  If that's of interest, we can provide in a couple of weeks sort of a list and relevant paragraphs.

5856             But I think the big one that started it off for people with disabilities was Eldridge, which has been referred to earlier.  That's a case from British Columbia, where a deaf woman was birthing twins and there was no ASL interpretation, something like that, and the court made very strong statements about the equality principles under the Charter for people with disabilities.  Okay?

5857             So that's a Charter principle:  that equality trumps.  In that circumstance, they needed to have the ASL interpreter.

5858             It's a public case, right?  So one of the problem we face here is that, you know, companies aren't obligated to follow the Charter.  They are private.  The Charter applies to public entities and the law, and we have to make sure that our law is consistent with the Charter.

5859             But we also have to make sure that our interpretations of statutes are consistent with the Charter.  And adjudicators and policy‑makers sitting in the place of government, as you are, in the sense of your implementing the policy of the Canadian telecommunications policy, it's your mandate, you have an obligation to incorporate into what you do the principles of the Charter.

5860             So, fundamentally, we are saying that people with disabilities are entitled to equality, substantive equality.  There's a new decision out from the court recently, which we haven't mentioned, that we can provide you, that reaffirms that it's substantive and not formal equality.

5861             For non‑lawyers, that may be ‑‑ I don't know how familiar you are with that kind of language, but "substantive equality" is what it really means.  I mean, is the person who's disadvantaged, who's entitled to equality, actually getting the real deal or is it just a formal solution that doesn't have an impact?

5862             So you are obligated to interpret your statute in light of the Charter.

5863             Not only that, in case called Tranchemontagne, you are also obligated to use human rights principles.  That's very clear, as well.  If there is a discrimination issue before you, as an adjudicator, the court says you have an obligation to consider the human rights law and anti‑discrimination law of the country.  That's, like, Tranchemontagne, Supreme Court of Canada, maybe three years ago.

5864             That was followed in VIA Rail, which is a more parallel case to your own because it's, you know, a sister regulator.  So while Tranchemontagne is a case that occurred in an Ontario administrative tribunal situation, it was followed by the Supreme Court of Canada or used in VIA Rail, so in the federal sector.

5865             MS KERZNER:  Perhaps it's worthwhile for me to quote just one bit from VIA Rail which is particularly relevant to this proceeding.

5866             The Supreme Court said, and I quote:

"Human rights legislation, as a declaration of public policy, forms part of the body of relevant law necessary to assist a tribunal in interpreting its enabling legislation."  (As read)

5867             And then it went on to say:

"Where a statutory provision is open to more than one interpretation, it must be interpreted consistently with human rights principles."  (As read)

5868             So where we are going with this is that, when you look at the language in section 27 and it uses language of "unjust discrimination", the Supreme Court tells us that in interpreting section 27, we need to look to human rights principles and human rights jurisprudence.

5869             So that's something that should be guiding the Commission in interpreting that important section for this proceeding.

5870             And then the other thing about the Charter is that, as you all probably know, the Commission has in the past applied the Charter, in particular in the ‑‑ and I don't have the decision number, but the decision with respect to winback applied section 2(b), the freedom of expression section of the Charter.

5871             So this isn't new ground, it's something that the Commission has done before.

5872             MS GORDON:  I don't know how much time you want us to take on this ‑‑

5873             COMMISSIONER DENTON:  I have got more. I have got ‑‑

5874             MS GORDON:  ‑‑ but I think that the fundamental statute or the Constitution of the country, in section 15, the equality rights provision of the Charter, is essential.

5875             The other thing that is really important is that you remember that the human rights obligation, you are to deliver the service in keeping ‑‑ your service.  Like, a tribunal is a service within the meaning of the Canadian Human Rights Act, so you have the obligation in terms of how you deliver your service.

5876             And we have seen that this week really fulfilled beautifully with respect to the kind of accommodation that people with disabilities were provided in a very natural and well‑thought‑out way.  That's an example of it.  But there are lots of other examples, as well.

5877             And I think that in setting the priorities of the Commission, itself, I mean one of our issues we have heard from the community is this whole concept of inclusive design.  Inclusive design is a principle that's bigger than technological design and it's used by government now.

5878             And one of the things inclusive design would mean would be how can the Commission look at its design to ensure that it's meeting its human rights obligations?  So it's another issue there.

5879             Treaties.  You know, there is now the new convention that our colleagues before us referred to.  It's also referred to in this toolkit.  And the fact that there is a new Convention on the Rights of Persons with Disabilities has really led the International Telecommunications Union to take up the issue of access in a more active way.  It's opened doors.

5880             COMMISSIONER DENTON:  You are referring to the UN Convention on the Rights of Persons with Disabilities?

5881             MS GORDON:  I am, yes, which explicitly addresses telecom.

5882             But we are not making an argument today that you have an obligation to fulfil that, that your authority comes directly from the convention, because we actually don't think it does at this point in time, so...it's the spirit of what's going on internationally, it's going to be guiding Canada, but we don't think you actually currently have that obligation, so...to apply the Convention.

5883             COMMISSIONER DENTON:  Well, the thing ‑‑ sorry.

5884             MS KERZNER:  No, I just wanted to add that I think what we can take from the Convention is the very fact that it's included telecommunications in the Convention and acknowledges that people with disabilities have right to accessibility with respect to telecom is illustrative of the existence of barriers and the need for the protection of this rights.

5885             MS GORDON:  If I might go back to your initial premise, though, and question, the balancing, because I do think we have a comment to make on that, we don't believe that the costs to industry are huge at all.  They come nowhere near "undue hardship" in a human rights analysis.  They are small additional costs in the scope of the budgets that large companies have.

5886             So, you know, they have to redo their websites anyhow.  Just do it.  You know, make it available to everybody.  They have to import equipment, so add some equipment that costs a little bit more, but do it properly and advertise it.  That's not very expensive in the scheme of running the kind of companies that are before you, right?

5887             So in front of a human rights tribunal, these companies would never be able to establish that there was "undue hardship" with the total costs of all of the items that you have heard put before you.

5888             I mean, I sound a bit vehement on that, but I actually think that's correct, and you may want to check with your own legal department or whatever.

5889             You know, the balancing under the human rights principles that you are obligated to look at is there.  You are no longer able to say it's just a polycentric kind of thing and we are balancing one principle off another one when the issue is discrimination.  That's why we have taken some care to try to set out for you, at least, we believe, in the cellular industry there is discrimination currently.

5890             COMMISSIONER DENTON:  Well, that raises my next question, which is:  as we all know, the same set of buttons on a device can establish different effects.  According to one's age, one's intelligence, one's degree of handicap, one's degree of dexterity, whatever, the same device can generate different effects in different people of more or less usefulness to them.

5891             I mean, I can pull a device out of my pocket and there's 27,000 functions in it that I can't access yet because no one's yet trained me.  Someone else can use it much more effectively and some people can't type it, use it or see it properly.

5892             So the same device can produce effects as different as one might be supposed for different classes, kinds and, you know, abilities of people.  Now does the mere fact of different effect constitute discrimination?

5893             MS GORDON:  No, I don't think that I would phrase it in those terms.  I think that the issue ‑‑

5894             COMMISSIONER DENTON:  Well, I don't think you would but...

5895             MS GORDON:  No, but the issue here is that you have a segment of the population that can't use most of the equipment, right, and that the equipment they can use isn't being provided.  Remember, the cellphone is connected to the network of the provider.

5896             Like, that's one of the things that I have gone into there.  It's unlike the wireline, where Bell puts my phone line in and then I go to Radio Shack or whatever to buy my phone.  We don't do that in cellular, right?  There's an aerial inside the cellphone that connects to the network of the provider.

5897             So these are not separate parts of the delivery of the service.

5898             COMMISSIONER DENTON:  I grant you that.

5899             MS GORDON:  Yes.  So this is a public service, I mean, it's run by companies, but, you know, your job is to ensure that the social and economic needs of consumers, of users, are being met, and they are not being met, in our view.  We believe that's been established.

5900             Now, it's true.  I mean, I have a very simple cellphone and I hardly use most of it.  And I can't see it very well.  I'm not raising a complaint against that.  But, you know, there are so many people who have significant disabilities, there is equipment available and it's not being marketed, it's not on the shelves.

5901             COMMISSIONER DENTON:  I understand you.  What I'm trying to get at is that, you know, our statute requires us to consider unjust and undue discrimination and preference and self‑preference.  And so before the word, you know, "discrimination", in our statutes we have "unjust" or "undue" ‑‑

5902             MS GORDON:  Yes.

5903             COMMISSIONER DENTON:  ‑‑ because that puts the balancing act into the judgments we have to make about, you know, the behaviour of former monopolies, and now competitive players ‑‑

5904             MS GORDON:  Right.

5905             COMMISSIONER DENTON:  ‑‑ as to whether they give themselves preference and my customers get a better deal than the interconnected customers, et cetera, et cetera.

5906             So we are always in the business of trying to find the appropriate balance between, I suppose, the rights of capitalists to make money and the rights of people to use it effectively, including all people, including disabled people.  So...

5907             MS GORDON:  You know, with the payphones, you did find that balance.  You told payphone companies to make them accessible in 1998, you know.

5908             I mean, the balance, to me, if you are looking at it, as I said, it's a small amount of the budget, but it has an enormous impact on a person's life and on a whole community's life.

5909             We all know that telecom is our entry into communication, and, as the examples have been given this week, you know, it's an expectation of work that you can use email, right?  Well, that cuts a whole lot of people out of work.  And if you go to a university that has a whole phone system that doesn't have the right chip in it and you can no longer use the phone system, you can't work there.

5910             Like, telecom provides that for all of us.  It's not just to say that telecom provides communication to people with disabilities and they don't get it, we all are able to communicate, more or less, and the equipment assists us, right?  The service provides the infrastructure to our social relations in the country, you know ‑‑

5911             COMMISSIONER DENTON:  I acknowledge if the value of the network goes up ‑‑

5912             MS GORDON:  ‑‑ and that is being denied.

5913             COMMISSIONER DENTON:  ‑‑ the more people can connect.

5914             MS GORDON:  If the telecom service is not available to somebody then they are denied the basic infrastructure of communication in the country.

5915             Now, balance that against the small cost.  That's our submission.

5916             COMMISSIONER DENTON:  So how does the term "substantive equality" bear in the interpretation of unjust discrimination and undue preference in this context?

5917             MS GORDON:  I think that in this context what we would be saying is that substantive equality ‑‑ like we have not asked for the world.  We have said that each provider should try to find two phones that meet the different disabilities and provide them, import them.  They are available ‑‑ if they are available.

5918             We haven't gone radical and said that they have to ‑‑ you know, have all phones provide all services.  We are just saying provide some.

5919             So that may not to some people be a substantive equality enough, but at this point in time we realize we are in an incremental situation.  The phones are still costly, so we think that would achieve quite a bit for people.

5920             The substantive formal equality discussion is primarily in the context of the Charter and we are saying ‑‑ I mean, your primary relationship here and the parallel between section 27(2) and (4) and human rights principles is really more parallel to the Canadian Human Rights Code, and there the discourse on substantive and formal equality isn't as present.

5921             So I am having a little bit of trouble moving back to your statute.

5922             COMMISSIONER DENTON:  I mean, that's the problem I have, is when I look at them, when I see the Supreme Court's decision and its kind of rhetoric and I see our statute ‑‑

5923             MS GORDON:  Excuse me, VIA and Tranchemontagne deal with human rights and administrative tribunals.  Right?

5924             They are right on point for you.

5925             COMMISSIONER DENTON:  And so did they deal with substantive equality in VIA?

5926             MS GORDON:  I don't think it's a big focus.  I can't remember.

5927             MS KERZNER:  It deals with the assessment of undue hardship and undue obstacles in the transportation industry.

5928             So what that case does is it takes from the interpretations that have been given to undue hardship in the human rights world and applies it to transportation, and the Supreme Court says that the Transportation Agency can't limit itself in assessing undue obstacles just to looking at the language of its statute.

5929             But I just wanted to add one comment about your question about balancing, and that's just a bit of a response to the interrogatory that we were asked asking us to provide concrete details relating to the benefits to people with disabilities for accessible telecom.

5930             I wanted to point out that when you are doing a balancing it's often easy to come up with figures for costs, for the cost of accommodation, but there is no parallel for coming up with figures for the benefits that people with disabilities achieve when the barriers are removed.

5931             The Supreme Court makes a nice statement about that in VIA, which is, as I said, a very similar fact situation, where it said that the costs of accessibility are financially calculable in contrast to the benefits of eliminating discrimination which tend not to be.

"What monetary value can be assigned to dignity, to be weighed against the measurable cost of an accessible environment?"

5932             So I guess what we are saying is that you can't weigh ‑‑ you can't compare numbers when you are doing the balancing exercise in this proceeding in the context of disability.

5933             COMMISSIONER DENTON:  Well, that makes our already difficult task even more difficult.  I read from your presentation, which is a very good presentation:

"The interests you will be advancing is not just the right to accessible telecom services but the right of Canadians with disabilities to enjoy the same benefits of telecom in their lives that nondisabled customers have."  (As read)

5934             Now, I would submit for your consideration that as between dollar figures that we can more or less roughly calculate and the mental state of satisfaction of the disabled in getting a better device, these are incommensurate things.

5935             It doesn't mean they are not right to serve their interests.  I'm just saying the court asks us to measure incommensurate things between dollars on the one hand of burden, which are relatively easily calculated, though they are a little harder than you might suppose, and the incommensurate benefits of dignity, participation and access.

5936             Any help here?

5937             MS GORDON:  That's your task.  I'm sorry, but it's true, it's your task.

5938             COMMISSIONER DENTON:  That's why they're paying us the big bucks, eh.

5939             MS GORDON:  Yes.  Just remember that you balance regularly ‑‑ at least you used to more before the order that suggested you should narrow your focus perhaps on the objectives.  Objective 7(h) is still there, right.  You still have an obligation to balance, in your full consideration under your own statute, the social and economic requirements of users.

5940             And our community fits right in there.  The social is what we are talking about in that balance, but there are also the economic and the economic can be writ large.  It can be writ large because the economic need ‑‑ I mean it's not only the economic need for a cheap phone, it is economic need to work.

5941             If you can't use the phone, you are in trouble.

5942             I know it's a big task, but it is what the Charter is doing for the ‑‑ I'm sorry, what human rights and the courts ‑‑ the shift is happening across the country in administrative tribunals that tribunals start to balance perhaps what are intangibles but which are very profound against monetary costs.

5943             Again, I go back and repeat that you will crunch the numbers with respect to possible costs or maybe say that we need to have another hearing on it.  I don't know.  But they are not that big.

5944             Most accessibility costs in fact are much, much smaller than people anticipate.  We are not even asking companies here to make the phones, you know.  We are not doing that.  We are saying import and make available what exists and monitor what is going on in the technological world so that you buy the phones, so you have at least two; right?

5945             This is not an unreasonable condition to be placed on somebody, to be placed on a multinational ‑‑ sorry, a multibillion dollar company.

5946             COMMISSIONER DENTON:  Well, I hear you.  I understand you.

5947             MS KERZNER:  In the VIA case what was being looked at was accessibility or inaccessibility of trains, of being able to travel by train.  But that didn't stop the Supreme Court from doing that assessment because they couldn't put a monetary value on being able to travel by train from Toronto to Montreal at a time that someone wants in a way that accommodates their disability.

5948             The other thing is that it's not uncommon in making decisions to have to assess things that can't be ‑‑ where money can't be tied to it.  For example, courts all the time assess pain and suffering.  Courts assess damages for defamation.  These assessments are done where it is obvious that you can't put a monetary value on it, but there is still recognition of the damage, or recognition of the loss and recognition of the rights and the need to address those.

5949             COMMISSIONER DENTON:  Yes, I understand those are the sort of judicial functions.  I just wanted to get on the table the idea that against monetary outlay, we have intangible but real benefit not merely to the handicapped but general participation in society.  I have blind friends who are greatly assisted by voice operated service.  You know, their e‑mail is, you know, it's a real thing, but...

5950             Okay, I'm done with this line of probing.  Now we will get onto some other I think simpler questions.

5951             MS GORDON:  May I make just one more comment on it?

5952             You know, if we don't do something then the barriers will become impenetrable.  So this is only evaluating a good, a social good of accessibility.  We are actually in the throes of huge technological change, and if things are not considered and dealt with upfront or after, if need be, then barriers will arise.

5953             So we are going back then 50 years.

5954             So that is sort of in the balance as well.  Thanks.

5955             COMMISSIONER DENTON:  Yes.  Yes, every software upgrade is a new barrier even for me and people on this Panel and you.

5956             In your submission you suggested that service standards for serving persons with disabilities should be adopted by service providers.

5957             Have you given thought to what these standards should include and what consequences should be imposed by the Commission for failure to meet those standards?

5958             MS GORDON:  Could you refer us to what paragraph?

5959             COMMISSIONER DENTON:  I'm sorry?

5960             MS GORDON:  We were just wondering if you could refer us to the paragraph in our submission.

5961             COMMISSIONER DENTON:  I can't.

5962             MS GORDON:  Okay.

5963             COMMISSIONER DENTON:  Staff...?

5964             MS POPE:  Yes.  Could I have two minutes?  If you want to go on to the next question, I can get that reference for you.

5965             COMMISSIONER DENTON:  Okay.  Our lawyers are going to look up where it is in your submission.  We will be back.

5966             Some service providers have suggested there are other resources available to persons with disabilities, such as CNIB catalogs that provide or should be providing suitable information pertaining to products of interest to the disabled.

5967             Do you have a view as to whether these resources provide an effective solution to the need for information?

5968             MS GORDON:  I have a couple of comments with respect to that.

5969             The first comment ties into what I was just saying, and that is that we don't think the service provider has an obligation to advertise and talk about all the equipment, but they do have an obligation to make known their own equipment after they have an obligation to bring it in, right, just like they let everybody know what their services are.

5970             So that's like the bottom line with respect to the service providers.

5971             The CNIB catalogs, that kind of task is a very difficult thing to keep maintaining.

5972             There are some centres around the United States and the world that are developing inventories and some of that is documented in this handbook toolkit, and it's a hard thing to keep up.

5973             I mean, when we were part of the VoIP hearing and the VoIP hearing ended up going to SISC, or our issues went to SISC and Lana prepared a nice document, which is an appendix in that review, of information about disability and accessible disability.

5974             Keeping that up is a big task.  You really need some dedicated and knowledgeable people.

5975             So I guess my concern is that the Commission not overestimate the capacity of the community to take on something for ARCH, for the CCD, for almost every one of the organizations.  Telecom is about somewhere between one and 5 per cent of our activities, and we have like six people or three people to do it all.

5976             So without funding, without sort of a permanent funding for a person to manage a repository like that, it's an enormous burden on agencies that actually don't have stable funding by and large.  Ours does have much more stable funding, but many of the national groups have to keep applying every year and it depends on the government: they get, they don't get.  It's hard.

5977             So I guess I'm just trying to urge you not to think of the community as per taking on another whole new fundamental task.  That's why we think that that could be one of the functions of a small department in the CRTC.

5978             COMMISSIONER DENTON:  Thank you.  You have answered the question.

5979             In relation to the format of consultations, how should participants for consultations be selected on the issues you have mentioned?

5980             MS GORDON:  I guess my thought about consultation is that what would be really good is if the CRTC decides where consultations are needed.

5981             One of the experiences we had subsequent to the VoIP hearing ‑‑ and if you go back and look at the VoIP decision, you'll see it sort of is large ‑‑ we were tossed everything.  The whole policy issue about accessible telecom was tossed to SISC and SISC doesn't have the kind of mandate or the kind of expertise to deal with policy; right.

5982             So depending upon the nature of the issue that you are suggesting there be consultation about would in some ways influence how the committee be structured.

5983             So if you are talking about making sure that the new ICT development in Canada is not going to create barriers and will open doors or what open access would mean, that kind of thing, then you would want a pretty highly qualified technical committee, right, and some people with disability technical overlap, as well as industry.

5984             If you are talking about setting priorities, well actually we are hoping you are going to set the priorities because you are the regulator.  Going back to that, we don't really think that it should all be tossed back to an industry community consultation.  We have kind of been there.  It needs definition.  Any consultation, no matter whether you establish a unit or not, needs clear definition and guidelines and a reporting structure back.

5985             We can't go with just let's get together.  It doesn't ‑‑

5986             COMMISSIONER DENTON:  Who would devise the guidelines?

5987             MS GORDON:  We suggested that the CRTC should after this hearing or develop a process, you know set up something.  We think that you have heard that there is this gap; that things are not happening well between industry and the committee at the community on some levels.

5988             There are some players in industry, some individuals who seem quite committed to advancing the interests of persons with disabilities, but the corporations haven't so indicated.  I mean, if the corporations were really interested, I think we would have had accessible websites a while ago.

5989             I mean, if there had been some level of recognition we wouldn't ‑‑ remember what we said earlier and what other people have said, is that no movement has happened unless you have directed or when we got the deferral account monies.

5990             So volunteer committees from the community, you know, I am there one month, I can't go the next month.  There is no staffing, there is no continuity, there is no research capacity, or very little.  So it becomes an unbalanced kind of consultation.

5991             If you are talking about consultations that say specifically we need to know what the real needs are of this user community, what are the functionalities that are required, then that is a really different kind of focused consultation and there you would really want to test.  Like Gary Birch was saying, you know, the design should happen right away by bringing in people from the community.

5992             I have heard people from the disability organizations say let us be involved in the selection of who would be part of that.  I don't really have a strong view as to how a test runs on a product or if you were just looking at a new cell phone or something, how you would select the blind people you needed to talk to.

5993             I'm not sure.  I don't know, Lana, if you have a view on that.

5994             COMMISSIONER DENTON:  It's okay not to have a view.

5995             MS GORDON:  Yes, we don't have a view on it.

5996             MS KERZNER:  But I just wanted to add or to underscore the importance of having some reporting requirement and some CRTC role with respect to consultations, and I want to go back to SISC a bit because I think it illustrates the real potential for failure and for lost resources and time in consultations that have no follow‑up and no ‑‑ nothing that comes out of them.

5997             So what happened subsequent to the VoIP decision, the SISC committee, an ad hoc SISC committee was struck to examine inaccessibility of VoIP for people with disabilities.  Phyllis and I were both on that committee, as were several service providers, and we spent countless hours researching and researching and writing and writing non‑consensus reports and filed it with the Commission.  I can't tell you the exact date but it was certainly probably a few years ago, and nothing has happened since then.

5998             So the result is that ‑‑ so we very much worry that any sort of consultation that isn't more structured with a more specific mandate, with more specific follow‑up and requirements, will end up being a lot of time and resources spent with no outcome.

5999             That is why we feel so strongly, because we have been through it and we have seen how it has failed.

6000             That's where we are coming from when we are talking about consultation.

6001             COMMISSIONER DENTON:  Got it.

6002             How should participation of persons with disabilities in consultations or working groups be funded?

6003             I ask you to give thought to that on the telecom side and on the broadcasting side.

6004             MS GORDON:  I hate to be a bit repetitive, but in some ways I think it depends on the nature of the consultation.

6005             So if Rogers is trying to figure out which two phones to sell that are most effective, then Rogers should pay for the consultation, right, and bring people in.

6006             COMMISSIONER DENTON:  Yes.

6007             MS GORDON:  Right?  So that is kind of one sort of consultation.

6008             If we are asking, you know, five companies or three companies or whatever to meet on a semiannual basis with leaders from ten disability organizations to review the state of affairs, if that is sort of the mandate, then I think that should be shared by the corporations.

6009             We have seen some willingness from the companies so far in the past.  I guess the deferral accounts, I don't know if the deferral account money actually paid for the consultations directly or if it was just somehow.  But the consultations that did take place with the deferral accounts, I think I am correct that the disability community did not pick up the tab and people were flown in.  Right?

6010             We could stand corrected on that, but that is my recollection.

6011             COMMISSIONER DENTON:  Okay.  So if you had three things that needed to be done, what would they be and in what order?

6012             MS GORDON:  Good question.  The three things that we have identified coming from where we stand as the lawyers in the community, I guess, the first one is to place conditions in the cell phone market, conditions of supplying available phones, advertising them and monitoring future developments so that the companies continue to provide accessible telephones to persons of various disabilities.

6013             That is our number one.

6014             Our number two is that there be a disability unit established.  The value ‑‑

6015             COMMISSIONER DENTON:  I'm sorry, a disability what?

6016             MS GORDON:  A disability unit established, whether it is a department within the CRTC ‑‑ it wouldn't need legislative change, just restructuring administrative resources inside the CRTC; whether it means going to estimates committee ‑‑ I'm not sure what it's called federally, but to seek more money.

6017             But we do think that it is really important that there be ‑‑ I think it's actually like a department really when we talk about a unit.  We are more on that line than an institute; that it be associated with the regulator, as it is in the United States, and it has had an important role to play in the United States.

6018             So that is ‑‑ you know, I'm happy to talk about that model more or answer more written questions, whatever.

6019             The third is that you take a look at our submission with respect to the universal service obligation, because we think that that is connected to 46(1)?

6020             MS KERZNER:  46(5).

6021             MS GORDON:  And we think that the law is already there; that the obligation is to provide telecommunications services to people with disabilities, but a clarification of that and a statement about it from the Commission in its decision is a big signal.

6022             MS KERZNER:  I just wanted to add a couple of things.

6023             With respect to a disability unit ‑‑ so the FCC's Disability Unit is called their Disability Rights Office and they have other public ‑‑ they have public participation also at the FCC through a consumer advisory committee.

6024             Just what I wanted to point out is, having spoken to people in the United States who work in accessible telecom and who are very familiar with the issues of people with disabilities in the States, one of the things that they highlight as being potentially very successful and very useful is a disability unit within the regulator.

6025             So that is something that they highlight as being very ‑‑ as having the potential to be very effective in the States and something that we should definitely be looking to consider here.

6026             Then, in the context of the universal service obligation, what is interesting is that ‑‑ and of course in our view emanates from section 7 ‑‑ I think it's (b).  But there is similar language, there was in the mid‑'90s, in the comparable legislation in Australia.

6027             There was a case that interpreted that to apply to people with disabilities even though that section didn't specify disability per se.

6028             There is also in the American experience they talk about the universal service obligation extending to people with disabilities, so it is really not ‑‑ it is something that is being done.  It is something that with similar types of statutory language has been interpreted to extend to people with disabilities.

6029             And there has been also discussion, I think as Phyllis mentioned in her presentation, at the international level, of the assumption that the universal service obligation includes accessibility for people with disabilities.

6030             COMMISSIONER DENTON:  So you are looking for an expansion or declaration of that universal service obligation?

6031             MS KERZNER:  Well, we are looking for the concept of the universal service obligation to be recognized as applicable to people with disabilities.  That isn't ‑‑ we don't see that as terribly different than what the statute already says, which talks about all Canadians.  People with disabilities are Canadians and so it would naturally follow that the principles of accessibility and affordability would apply to them.

6032             So I don't know that it is anything new.  It is just a recognition that all Canadians include people with disabilities.

6033             COMMISSIONER DENTON:  Well, that brings us right around to that same problem of incommensurate benefits and completely determinable costs; but yes.

6034             Don't worry, we will address it.

6035             I see in your brief you have Scott v. Telstra as your example of what was done in Australia.

6036             Can you speak to that just briefly?

6037             MS KERZNER:  I can.  I can speak to that briefly because I'm not ‑‑ you know, I don't practise law in Australia.  It was a case where the complainants were deaf and they claimed that they should have the right to the provision of TTY equipment in the same way that people who don't have disabilities had a right to terminal equipment that they could use.

6038             It was a complaint to the Human Rights and Equal Opportunity Commission.  It is somewhat different because it was a complaint under their Disability Discrimination Act.

6039             I'm just getting it out for a minute because ‑‑ if you would just bear with me ‑‑ because even though the context was different, the Commission makes a statement about the applicability of the universal service obligation.  And I'm going to quote from it.

"The emphasis and the objects of the Telecommunications Act on the telephone services being reasonably accessible to all people in Australia must be taken to include people with a profound hearing disability."  (As read)

6040             So it is that principle that we take out of Telstra and Scott and that we submit should be applied in Canada as well.

6041             COMMISSIONER DENTON:  Okay.  I noticed that you also cited ‑‑

6042             THE CHAIRPERSON:  Can I just interrupt for a minute?

6043             We are going to try to take a break.  I think some people need some relief.

6044             We are going to reconvene with the same panel at 11:30.

‑‑‑ Upon recessing at 1115 / Suspension à 1115

‑‑‑ Upon resuming at 1130 / Reprise à 1130

6045             THE CHAIRPERSON:  Order, please.  Let's reconvene.

6046             Commissioner Denton...?

6047             COMMISSIONER DENTON:  Okay.

6048             So we want to talk about telecom relay services and in particular the advent of Internet protocol relay service and video relay service which, as we know, are quite different things.

6049             So as you are aware, the IPRS, VRS funding model based on that of the United States is such that all telecommunications service providers contribute to a fund which compensates providers of relay services, including those who are not themselves telecom service providers.

6050             Question:  What is your view of the proposal to adopt a national model for video relay service and IPRS and what funding model might you propose and why?

6051             MS GORDON:  Mr. Commissioners, this is an issue that given the huge amount of material that is before us, we don't have a lot of expertise.  We have views, but we don't consider them to be as formed.

6052             Really it is something we haven't gone into in great depth.

6053             We do believe that a national relay service is essential.  We don't understand any logic for not doing so, but that was clearly an issue at the deferral account consultations and the community was pretty solidly together on the need for a national service.

6054             With respect to the funding model, I am somewhat personally compelled by the presentation of the Canadian Association for the Deaf on the funding model.  I am also intrigued by the way it is set up in the United States where the carriers themselves are not providing the ASL.  They are not managing and it is not part of their operation, right, it is another company ‑‑

6055             COMMISSIONER DENTON:  It is contracted out.

6056             MS GORDON:  ‑‑ that comes in.  It is contracted out, yes.  Apparently it has led to high quality service.  That is what we are told.  So that is of interest for Canadians reliant on relay services.

6057             Funding model, I think I'm going to see if Lana can address that part.

6058             MS KERZNER:  I guess we don't have ‑‑ we haven't formed a definitive view on funding for IP relay and VRS, but I guess what we do want to say is that section 46.5 provides authority for creating a fund to ensure access.

6059             So that is certainly one possibility and you have the jurisdiction to use that section to make it happen.

6060             COMMISSIONER DENTON:  Thank you.  I do appreciate that you are making a distinction between what you believe and what you know and what you think might probably be so.  Thank you, that helps.

6061             Do you ladies have any view of the best source of information of those who use sign language and who therefore might be the customer base for a video relay service?

6062             MS GORDON:  I don't quite get the question.  Can you say it again?

6063             COMMISSIONER DENTON:  Yes.  Do you have a source of information about the number of people who depend on sign language who therefore might be the logical customer base for VRS?

6064             MS GORDON:  No, we don't know the answer to that.

6065             My suggestion, although I haven't canvassed him, is Gary Malkowski who is on today for the Canadian Hearing Society may know that.

6066             COMMISSIONER DENTON:  Thank you.

6067             MS KERZNER:  Can I just go back to your question about funding, because I do have one thing I would like to add from the American experience, is that ‑‑

6068             UNIDENTIFIED SPEAKER:  Would you like to hear an answer?  (Off microphone / Sans microphone)

6069             COMMISSIONER DENTON:  Mr. Chairman?

6070             THE CHAIRPERSON:  I'm sorry...?

6071             COMMISSIONER DENTON:  Someone is volunteering to answer the question.

6072             THE CHAIRPERSON:  No, I think we should leave this witness to continue, please.

6073             COMMISSIONER DENTON:  Okay.  Thank you.

6074             MS KERZNER:  In the United States there is discussion about the expansion or the interpretation of the universal service obligation to include services such as IP relay and VRS, and there is discussion about the ‑‑ I don't know if the question is in your minds about the use of the words basic telecommunications services specifically in section 46.5.

6075             So we are asking that those words be ‑‑ I know that there is no definition of those words in the Telecommunications Act, and I understand that that was left undefined for the purpose of being able to ‑‑ for it to change in the context of evolving technologies.

6076             So what we are suggesting is that the universal service obligation and the concept of basic telecommunications services apply to IP relay and VRS.

6077             COMMISSIONER DENTON:  Thank you.

6078             You may already believe you have answered this, but I will ask it this way.  This deals with telecommunications equipment.

6079             Is ARCH aware of mobile and wireless equipment that exists in other countries that would address accessibility issues encountered by persons with disabilities?

6080             Please talk about any innovative aspects that this equipment has in providing solutions.

6081             MS GORDON:  I think that's a question that we are not prepared today to respond to.  If you would like us to send forward in two or three weeks an answer to it after completing more research, we could do so.

6082             We didn't come prepared with that information.

6083             COMMISSIONER DENTON:  I'm not prepared to rule on that.  If you feel it would be a good idea, then we will take that and I will leave that up to you.

6084             MS GORDON:  So I understand, if we send it in, you will receive it?

6085             COMMISSIONER DENTON:  If you send it in, we will receive it and read it.

6086             MS GORDON:  Thank you.

6087             COMMISSIONER DENTON:  The question that follows is:  If the Commission were to determine in a follow‑up proceeding to re‑regulate the sale, lease or maintenance of terminal equipment, what specific regulatory measures should the Commission put into place that would be effective in providing solutions?

6088             MS GORDON:  I have ‑‑ there is sort of a conundrum for me that I will explore a bit in this answer.

6089             That decision dealt with sale, lease and maintenance.  We hear about it as a total deregulation of terminal equipment.  The case itself really dealt with the commercial aspects of, you know, the old monopoly companies providing a phone in your home and that finally getting put out on the market, right.

6090             It is really kind of a market case and it doesn't deal with the nature ‑‑ the case doesn't say the nature of terminal equipment is forever forborne.  You see what I mean?

6091             There is kind of what the equipment does, what it looks like, all of that kind of thing, and then there is the sale, lease and maintenance part.  So the decision, the forbearance was with respect to the sale, lease and maintenance.

6092             I'm just putting that out because it influences my thinking about the issue.

6093             If we are talking about reconsidering terminal ‑‑ it would be nice if you reconsider terminal equipment altogether, but I would ask that you not only reconsider the sale, lease and maintenance, because you should reconsider the whole issue of terminal equipment.

6094             COMMISSIONER DENTON:  In what way?

6095             MS GORDON:  Well, in terms of what terminal equipment does.  Does it satisfy the needs of all Canadians?

6096             That terminal equipment, there are questions about availability, there are questions about safety, there are questions about accessible design, compatibility with ‑‑ certainly compatibility issues with the new evolving technologies would be a key question.

6097             And then on the provision side or the sale and lease side, I guess it is the kind of thing we have been talking about, about ensuring that as the market has tended not to provide for a lot of choice, or any choice with respect to terminal equipment, that that issue be revisited; the question of whether or not competition is sufficient in the context of accessible telephones.

6098             One of the participants this week ‑‑  and I can't recall who ‑‑ made the point that is written up in the disability accessibility community, an American professor, who really makes the point again that if there is a regulation, that that actually in some context, in the context of small markets, helps.  If there is an obligation to provide something it helps, because everybody has to do it and so there isn't the competitive advantage.

6099             I guess it was Gary Birch who was talking about the way that the competitive world and sort of the secrecy and the product development kind of thing happens isn't functional when there is a small market.

6100             The man's name is Dr. Vanderheiden who has written about this, and if that is of interest we could certainly provide you with his theory.

6101             COMMISSIONER DENTON:  I would just like to say that the reason why we dissociated telecom equipment from the service operation was to dissociate what were then monopolies of service provision from a market that could become readily competitive.

6102             In the 20 years or whatever since that has happened, you know, we now hold computers in our hands that have vastly more resources than the largest computers that were then able to exist.  So technology has accomplished a vast amount between then and now which could only have happened if those markets were deregulated and dissociated from monopoly provision.

6103             So we now see some problems ‑‑ or you now see some problems with certain devices for certain purposes.  But the fact that they have advanced so far, so much in so many different ways, is a matter of technological revolution.  We don't want to mess with that.

6104             MS GORDON:  I'm not going to dispute that historical analysis.  I did so four years ago ‑‑

6105             COMMISSIONER DENTON:  It wouldn't be a winning argument.

6106             MS GORDON:  ‑‑ but I don't any longer.  I have learned more.

6107             I think that a huge amount of innovation has happened because of the relaxed rules.

6108             With respect to people with disabilities, we are not seeing a whole lot in Canada.  So it is kind of what happens when you have a small constituency in terms of the whole market.  That is where regulators need it.

6109             COMMISSIONER DENTON:  Well, what do you think of the idea that some of the issues about the terminals might best be addressed at an international level whereby on a worldwide basis standards might be developed that would guide or assist telecom equipment manufacturers?

6110             Presumably at a worldwide level a standard might assist manufacturers to comply with something that was at least agreed upon.

6111             MS GORDON:  We agree with you.  You know, the pay phone case of '98 said basically pay phones have to have certain features.  They have to be accessible for people with physical disabilities.  They have to be hearing aid compatible and then there was about seven criteria for blind users of pay phones.

6112             It wasn't a specification setting exercise.  It set out minimum conditions.  And I guess in our view if the market isn't providing for the minimum required functionalities of a piece of equipment, that is something the CRTC could address and speak to in a new 94‑19 review or now, you know.

6113             But we don't actually imagine the CRTC itself is going to entertain the task of writing specifications.  There are people around the world doing it.

6114             I mean that's why I brought this in.  If you look at the last several pages of here, there are enormous efforts going on right now in developing accessible standards in the ICT world.

6115             COMMISSIONER DENTON:  By "this" you refer to ‑‑

6116             MS GORDON:  That's right, yes, the toolkit.

6117             COMMISSIONER DENTON:  Thank you.

6118             MS GORDON:  If you start on page 66, there is a Japanese industrial standards committee on ICT accessibility.  That is stuff that their efforts have actually led to several ISO standards being set.

6119             There is a U.S. telecommunications and electronic information technology advisory committee that is relooking at the two key statutes ‑‑ sorry, the regulations and standards under two key provisions in the United States that for the last many years have ensured that people in the United States get proper telephones are accessible telephones.

6120             THE CHAIRPERSON:  Thank you.  We will take a look at it.

6121             MS GORDON:  Yes.  I think I don't need to go through that.

6122             THE CHAIRPERSON:  I don't think you have to read it out.  Yes, thank you very much.

6123             COMMISSIONER DENTON:  Thank you.  That completes my questions.

6124             THE CHAIRPERSON:  I think Commissioner Lamarre has a question for you.

6125             Does Commissioner Duncan have a question?

6126             COMMISSIONER DUNCAN:  No.

6127             THE CHAIRPERSON:  No, okay.

6128             COMMISSIONER LAMARRE:  Merci, Monsieur le Président.

6129             I have one question.  There is a short preamble so please stick with me.

6130             I heard you say that in your opinion we would not have the obligation to apply the specific sections of the United Nations Convention on the Rights of Persons with Disabilities, those sections that relate to telecommunications, in making our decision in this proceeding.

6131             Now, based on the Treaty section of the UN ‑‑ please take my word for this ‑‑ the Convention is in effect.  Canada has ratified it and therefore is a party to it, and Canada has made no reservation nor declaration neither at the signing stage nor at the ratification stage of the convention.

6132             Why then would this legal framework not apply to a decision by an administrative tribunal like this commission, a commission which is the creation of the Canadian state and is also part of its judicial system?

6133             MS KERZNER:  So I think I should start by maybe refining the statement that we made earlier.

6134             There is a line of jurisprudence that talks about the application of UN treaties and conventions in the Canadian context to courts and tribunals and it is just ‑‑ I don't think we are saying that the UN Convention on the Rights of Persons with Disabilities does not ‑‑ is not relevant to this proceeding.  We are not saying that you don't need to consider it.

6135             From a strict legal analysis, and I think we have included a bit of it in our interrogatory response but I would have to check, but it stems from the case of Baker which talks about what use Canadian courts or ‑‑ and I would have to check to see if that applies to tribunals too ‑‑ but what use is to be made of UN treaties and conventions.

6136             And so certainly, I don't think there is any question that they are relevant to your deliberations.

6137             The law is less settled as to exactly what impact it has on your deliberations and we would be happy to put in further submissions in relation to that question if you would like.  I would be really more than happy to do that if that would be of assistance.

6138             COMMISSIONER LAMARRE:  Because remind me the Baker case, and correct me if I am wrong, but I think the difficulty in the Baker case as dealing with the convention for the rights of children was the fact that Canada had not ratified the Convention at the time.

6139             MS KERZNER:  I actually ‑‑ I think I need to check it because my recollection was ‑‑ I think I recall it differently than you, so I would need to confirm because I thought that it was.

6140             But I would be ‑‑ as I said, I would be more than happy to look into that and to provide you with more extensive submissions on this issue because it is important to the proceeding.

6141             COMMISSIONER LAMARRE:  I appreciate it, thank you.

6142             THE CHAIRPERSON:  Thank you, Commissioner Lamarre.

6143             I think Commissioner Molnar has got a question.

6144             COMMISSIONER MOLNAR:  Thank you.

6145             I understand your focus upon the terminal end of it.

6146             I would like to turn the discussion briefly to the issue of website accessibility.

6147             I will tell you, I am not a lawyer but I appreciate hearing nonetheless your perspective as it relates to the obligations that we have related to website accessibility and I am going to talk specifically on the telecommunications side.

6148             Websites in the telecommunications world really serve two primary functions, as I see it:  they are a vehicle for service and they are a vehicle for customer support.

6149             I make the distinction on the service side, of course, you know, they are used as a service channel.  There's customers served through websites where you can use the web to, for example, order a service or initiate a service and those sorts of functions, and that is, to me, a service channel.

6150             And telecommunication service providers have alternate channels.  There's customers served through things such as the web; there is a dealer‑serve model; there is a telecom‑serve model where you can phone into a call centre, for example.

6151             So there's various channels for service, and the website is one of them.

6152             The other primary purpose of a website is the customer support, information and support.  It is an avenue to access information, you know, on terms of service, on product information, just perhaps some other examples, and a vehicle on the support side, for example, to lodge a complaint.

6153             Once again, I would say that most telecommunication service providers have various, various support channels.  Again, you can call into a call centre, you can go to a business office, you can go to a store or you can use the website.

6154             Under this model where the website is one vehicle for customer service and customer support, what do you view to be the obligations to make that channel accessible?

6155             MS GORDON:  We think there is an obligation to make it accessible.  I don't think that there is an exception because there are alternate means.  The alternate means aren't available at 3:00 in the morning or, you know ‑‑ I mean it is not the same service.

6156             If I am understanding what you mean by alternate means, is that the telephone?  I mean what are the alternate means?  There is customer support ‑‑

6157             COMMISSIONER MOLNAR:  Well, as I said, with customer support, I mean there are all the means that existed before websites became a vehicle.

6158             MS GORDON:  Right.

6159             COMMISSIONER MOLNAR:  You have call centres and in many cases, you know, they are 7/24.

6160             MS GORDON:  That is true, you are right.

6161             COMMISSIONER MOLNAR:  For example, if you have a trouble, you can call in and, you know, there is 24/7 support.

6162             MS GORDON:  Right.

6163             COMMISSIONER MOLNAR:  So there are alternate means.  There are call centres.  There are, you know, stores.  There are, as I said, all the channels that were available before.

6164             I am not talking about functionality that is available only on a website but I am talking about when a website provides an alternate means of customer service or customer support, do you believe there is still a legal obligation to make that accessible?

6165             MS GORDON:  I guess my prediction would be that if that were a human rights complaint, that a human rights tribunal would say it needs to be accessible, that the alternate isn't ‑‑ just because it is an alternate is not good enough.

6166             So many people now rely on ‑‑ I mean while it may be alternate for the company, it may in fact be the most effective for people with disabilities because some people with disabilities, worlds have opened up because of the website and the communication they can have over the website.

6167             I am not ‑‑ you know, I haven't put my mind to that explicitly but my prediction would be that a tribunal would say the whole thing has to be accessible and that the alternate in that instance would not be ‑‑ it isn't justified.

6168             COMMISSIONER MOLNAR:  So are you saying every channel of service and every channel of support must be accessible?

6169             MS GORDON:  I guess it is up to the point of undue hardship, so it would be an evaluation.  If one were examining ‑‑ you know, part of the difficulty, I guess, is to not see the whole context of something.

6170             You are really asking an important question but it is somewhat hypothetical because you evaluate the undue hardship test always in the context of the corporation or the person who has the obligation to provide something, right, in terms of what their means are.

6171             So I am not sure.  I think though that when we expect ‑‑ we say that alternate format communication is essential, right?  That is for sure.  And one of the key points now for alternate format information is the website.

6172             So it would be ‑‑ yes, I can't ‑‑ I guess I can't pursue it much further other than to say that.

6173             COMMISSIONER MOLNAR:  Okay, thank you.

6174             MS KERZNER:  I just wanted to make a comment on the flip side relating to websites because it has been put ‑‑ now, I can't remember if it is on the record of this proceeding or the one relating to provision of information but it has been suggested that some information be put only on websites.

6175             And so I just wanted to raise the issue that people with disabilities have a lot less access to the internet than the general population.  And we actually have statistics that have varied but one of them is, for example, the percentage of people with disabilities who have access to the internet is only half of that of the general population.

6176             I am just picking up on Phyllis' comment about alternate formats that while the internet and websites are very important modes of communication for people with disabilities, as the general public, it is not a replacement for other modes of communication.

6177             COMMISSIONER MOLNAR:  Thank you.

6178             That is my only question.

6179             THE CHAIRPERSON:  Thank you, Commissioner Molnar.

6180             I think Commissioner Duncan has got a question.

6181             COMMISSIONER DUNCAN:  Yes, I do.

6182             Ms Gordon, when you were talking about the disability unit and you recommended that it be based at the CRTC, you made the comment that you would accept it if it was somewhere else as long as it was independent.

6183             I just wondered if you had some other ideas where that somewhere else might be, some other ‑‑

6184             MS GORDON:  Well, I actually only see it as being freestanding, either with the CRTC or freestanding.

6185             COMMISSIONER DUNCAN:  Okay.

6186             MS GORDON:  Certainly not Industry Canada.  I don't think that that is where we would see it to be.

6187             One of the real issues there is we see a key function here is, you know, really to provide a service for the CRTC so that as things come down the line you are apprised of a disability implication.  So if the terminal equipment case were before you today, somebody would say, whoa, there is a big issue here, so that we don't get into making decisions.

6188             Now, Industry Canada can't have that function.  I mean there's conflict issues.

6189             So in our view, there is a significant value to the CRTC to having it and we don't see it having to be too big.  You know, it is not an enormous thing.  It may be four staff but really dedicated.

6190             COMMISSIONER DUNCAN:  Size was actually another issue I had in mind, that I was wondering about.  Okay, no, that is fine.

6191             MS GORDON:  I could imagine 20 or 30 but core functions could happen, I think, with a small staff.

6192             COMMISSIONER DUNCAN:  Okay, thank you very much.

6193             That is it, Mr. Chairman, thank you.

6194             THE CHAIRPERSON:  Thank you, Commissioner Duncan.

6195             Does counsel have any questions?

6196             No.

6197             Thank you very much, both Ms Kerzner and Ms Gordon, for appearing before us today.

6198             We will just move right along to the next appearance.

‑‑‑ Pause

6199             THE SECRETARY:  We will now proceed with our presentation by the Canadian Hearing Society.

6200             Sorry, just some technical difficulties.  I am just going to ask the interpreters to move closer in front, if that is okay.

‑‑‑ Pause

6201             THE SECRETARY:  Please introduce yourselves and you have 15 minutes for your presentation.

PRESENTATION / PRÉSENTATION

6202             MR. MALKOWSKI (interpreted):  Hello, my name is Gary Malkowski.  I am the Special Advisor to the President and CEO and responsible for Special External Affairs.

6203             MS WILSON:  My name is Cheryl Wilson.  I am the Manager of the Sign Language Interpreting Service for the Province of Ontario, which is a core program of the Canadian Hearing Society.

6204             MS BENTLEY:  And I am JoAnn Bentley, the Manager of the Communication Devices Program at the Canadian Hearing Society.

6205             MS WILSON:  We are just going to move through our slide deck.

6206             I will give a brief overview of the Canadian Hearing Society.

6207             We were incorporated in 1940 to provide services, products and information to culturally deaf, oral deaf, deafened and hard of hearing people and to educate the hearing public.

6208             CHS is governed by a volunteer board of directors, the majority of whom are deaf, deafened or hard of hearing.

6209             We are the leading provider of services, products and information that remove barriers to communication, advanced hearing health and promote equity for people who are culturally deaf, oral deaf, deafened and hard of hearing, and we do that primarily in the Province of Ontario.

6210             Unique in North America, the Canadian Hearing Society offers a complete roster of essential services under one roof through 27 offices, including sign language interpreting, one‑to‑one language development for deaf children using play as the medium of learning, employment services, sign language instruction, speech‑reading training and the most complete range of communication devices that assist and augment communication, including TTYs, visual smoke detectors, baby monitors and alarm clocks.

6211             I will turn it over to Gary.

6212             MR. MALKOWSKI (interpreted):  I think this is an important slide to allow you to see the profile of access needs and the various groups that we serve which are deaf, deafened and hard of hearing.

6213             So we have these four different groups, beginning with the culturally deaf Canadians, oral deaf Canadians, deafened Canadians and hard of hearing Canadians.

6214             Their communication needs are very different from one another.  What is important is to understand that they all may use hearing aids, they all may use cochlear implants and they all may use American Sign Language as well, just looking at their primary and their secondary communications.

6215             And there's a number of different methods that would be used in that.  It could be interpreters, real‑time captioning, TTYs, and that is outlined in a grid in front of you.

6216             MS WILSON:  We are on to page 4.

6217             I would like to present some of our concerns.

6218             Like other agencies, we are concerned with the lack of meaningful consultations with the use of the deferral account funds to improve access to telecommunication services for persons with disabilities, including culturally deaf, deafened and hard of hearing individuals, as they are the key consumer stakeholders initially and on an ongoing engagement basis throughout the development and delivery of specifically video relay service.

6219             We have significant concerns about the delays and the development of the implementation of VRS in Canada, despite the fact that it has been in the States since the year 2000.

6220             There is a lack of understanding and consultative mitigation planning by the telecommunication industry with respect to the capacity of the interpreting field and its ability to support video relay service and community interpreting needs once video relay service is implemented and realized.

6221             There is a lack of national solutions to the provision of VRS in four languages:  ASL, English, LSQ, French.

6222             MR. MALKOWSKI (interpreted):  There is a lack of ASL and LSQ and captioning on the content in webcasts and the videos streaming from the internet providers.

6223             There is a lack of visually accessible emergency information when on the road or at home of announcements that are auditory in nature:  radio and public service announcements.

6224             I have one story I would like to ask Cheryl to share with you at this point.

6225             MS WILSON:  I would like to add to Wayne Sinclair's 911 story which he gave yesterday during the VRS Consultative Committee of BC presentation.

6226             I had a deaf colleague who was a mental health practitioner who was in a crisis situation with a deaf individual in an isolated park in Toronto.  She needed to call 911.

6227             Her technology was a BlackBerry.  There was no opportunity for her to do that directly to 911.  I was shopping in Sobey's and I got a message from my deaf colleague asking me to call 911 for her and here is her location.

6228             The deaf consumer was in a suicide mode.  It was critical and essential.  Considerable barriers.

6229             I carry a BlackBerry.  My deaf colleague carries a BlackBerry.  There was an equivalency.

6230             MR. MALKOWSKI (interpreted):  Another barrier faced is the lack of compatibility of internet phone and services such as TTYs and 711.

6231             The lack of CRTC regulations requiring cable TV and TV broadcasters to be accountable to ensure quality captioning.

6232             As an example, just last night, you know, coming to Ottawa and thinking how very accessible it was going to be, but as soon as I got into my hotel room, I wasn't able to use the captioning and when I went down to the front desk to inquire, they said:  I am sorry, we don't have that available to you.  So just another example.

6233             Lack of employment equity initiatives specifically with regards to persons with disabilities in telecommunication industries and in CRTC's personnel hiring, retention and promoting employees with disabilities practices from the front line to senior management.

6234             We are seeing the federal employment equity which is beautiful in writing and it is nice but it is not being instituted and nobody is being mandated to in fact follow it.

6235             Lack of CRTC disability secretariat, an example being the disability unit.  The advisory committees and CRTC complaint mechanism for dealing with related disability and accessibility issues.

6236             I see in front of me a number of commissioners and I don't have knowledge that any one of you have expertise with disability issues.  I don't know if any of your staff or researchers have that expertise and that is definitely a gap that is being observed.

6237             We all know the legal legislation that speaks to the duty to accommodate and I don't want to go over all of the information that has already been shared with you with other presenters, but without equal access, there can be no equal opportunity.

6238             The United Nations Convention of Rights of Persons with Disabilities, and I am speaking specifically of Article 9 which speaks to the right to access information and technology.

6239             Last May all of the political parties in the House supported the resolution so that the Government of Canada would move forward with ratification and that is in process currently and it should be ratified quite soon.

6240             The Canadian Charter of Rights and Freedoms, specifically Section 14 that recognizes deaf individuals and their right to have a sign language interpreter during court proceedings.

6241             Section 15.1, which would be an example of the Supreme Court Eldridge decision and I know ARCH has already spoken to that case, so I won't repeat it.  And that decision had impacted with all levels of government because it showed the legal accountability and the duty to accommodate up to undue hardship, which is very important.

6242             When we look at the federal group, they didn't comply, although they were reminded of the Eldridge decision.  What happened was, the federal government was brought to court, and that, in turn, brought us the Federal Court decision on the Canadian Association of the Deaf, which reaffirmed the Eldridge decision, which requires that all federal programs and services, which would include the CRTC, have the duty to accommodate any public consultation such as this, or any programs and services, any licensed projects.

6243             There is accountability there, and it is clearly stated within those decisions.

6244             I will quote Judge Mosley's comment.  He recognizes that "individuals with disabilities in Canada have the right to access democracy, and the right to participate in Canadian life," which is very important.  That is a very important quote.

6245             The Human Rights Act, again, quite clearly states the duty to accommodate.

6246             Let me quote two different reports.  The first report is "No Answer", which was a review of the Government of Canada's telephonic communications with people who are deaf, deafened and hard of hearing, and for those with speech impairment.  This report was done in 2005, and it can be found online.

6247             One of those two recommendations, speaking specifically of ‑‑ of those reports, speaking specifically of number 3, spoke to technology, VRS and VoIP.

6248             "Inclusive of innovative technology" is included in that report as well.  That means that all departments of the federal government must include this in their planning.

6249             The second report that I am going to refer to is "No Answer 2", part 2, which is a review of federally regulated organizations' telephonic communications for people who are deaf, deafened and hard of hearing, and those with speech impairment.  This is a 2006 report, which clearly recommends, again, the technology, and video relay services specifically.

6250             It is that report which has led to the memorandum of understanding between the Treasury Secretariat of Canada and the Secretariat ‑‑ with the Treasury Board of Canada.  It has led to an agreement that the duty to accommodate is in place for all federal departments.

6251             Also, the Federal Court of Canada decision has led to Service Canada and the Treasury Board, as well as Human Resources Skill Development, implementing ‑‑ which I know will be released quite soon, but it will be an accessibility policy specific to individuals who are deaf, deafened and hard of hearing.

6252             One point I would ask you to keep in mind is that there are two different groups.  There are people who currently have a disability, with the deaf and hard of hearing specifically, and then there is another group, which is made up of the rest of the individuals who are, essentially, waiting in line for their disability to happen.  That would be everybody in this room, if you do not yet have one.

6253             Technology will be needed by you in the future, so I think that is something that you really do need to give thought to.  It is worth the investment at this point to move forward with this, rather than spending all of the investments on the legal case and trying to defend what you think should or should not happen.

6254             So I would encourage you to invest in accessibility, specifically looking at the aging population.  The aging population is no longer a minority, it is the majority.

6255             I think that you should really give considerable thought to where you would like to spend your money, defending legal cases or spending it in including and moving forward with accessibility.

6256             That not only would only allow for accessibility, but I would encourage you to work with Industry Canada, and to work with industry, because that would create jobs.  It would create consumers coming to take their business.  If it is accessible, people will want to spend their money at those places.  It is a proactive opportunity.

6257             MS WILSON:  Now we will move on to Slide 8, and talk briefly about recommendations.

6258             I will speak specifically to the Video Relay Service, and my colleague JoAnn will speak to the more technical areas.

6259             It is essential that the CRTC mandate the full and complete engagement of all stakeholders.

6260             And, by stakeholders, we are not only including deaf and hard‑of‑hearing community members, we have to give consideration to the interpreting community.  For the professional field itself there will be significant impacts.

6261             The interpreting service providers, my colleagues across the country who deliver the same kind of service that I do, have a vested interest in being engaged not only in the development, but in the ongoing delivery.

6262             We recommend that the CRTC create a funding framework from which the telecommunications companies and the VRS vendors can create concrete business development plans in an accountable and transparent way.  As service providers, it is not our field of expertise, and at times we really don't get it, and we don't know where to get the information.  We don't even know if the information is accessible to us.  We are looking for accountability and transparency.

6263             Slide 9:  It is imperative that the CRTC require that deferral account funds be utilized for a national VRS solution, and that the service, again, be available in four languages.

6264             MS BENTLEY:  I will carry on with Slide 10.

6265             Part of our recommendations, continuing, is that the CRTC set regulations to ensure that internet phone service providers provide equitable, compatible and accessible phone services to consumers, regardless of the products or services used.

6266             As well, we recommend that the CRTC set regulations requiring cable TV and TV broadcasters to ensure quality captioning.

6267             As we know, captioning benefits many Canadians, not only our deaf and hard‑of‑hearing community, but the growing multicultural community, as well as children learning language.

6268             Currently, all programs do not offer captioning, and the quality of captioning that is offered at times is garbled and inconsistent.

6269             We recommend that the CRTC set regulations to require TV broadcasters to ensure that all emergency broadcasts are captioned and accessible.

6270             When there is an emergency in the community, we often receive information in a variety of ways.  TV and radio are options to us all.  It is crucial that emergency broadcasts be provided in an accessible format for the deaf and hard‑of‑hearing community, and that consideration be given to sending information to text paging systems.

6271             We recommend that the CRTC set regulations to require internet providers to provide captioned webcasts and video clips over the internet.

6272             As well, we recommend that the CRTC set regulations to require companies responsible for high‑definition technology, Blu‑ray technology, and other emerging technologies to meet requirements to make that technology compatible with captioning technology.

6273             In addition, we recommend that the CRTC set regulations requiring emergency 911 and 711 call centres to be accessible and compatible with VRS, IP relay, cell telephone compatibility, and the CapTel captioning service.

6274             As we continue to experience changes in technology and the various communication modes, the telecommunications needs of the deaf, deafened, oral deaf and hard‑of‑hearing Canadians must be considered.  We must realize that not one mode fits all, and that Canadians need equal access to the various options, which must include newer and older technologies, such as VRS, IP relay, VCO, MRS and the CapTel service.

6275             We must be careful not to create barriers to those who still use some of the older technology as we move toward the future.

6276             MR. MALKOWSKI (interpreted):  Now we are referring to Slide 12:  the CRTC to set regulations requiring telecommunications industries and CRTC personnel to establish employment equity measures, so as to comply with the federal employment equity legislation and the Canadian Human Rights Act ‑‑ for example, the duty to accommodate in the workplace.

6277             Remembering the Charter of Rights and Freedoms, it is very clear in section 15, the equality, and the recommendation from the Canadian Human Rights Act ‑‑ the "No Answer" report that I referred to has a number of different recommendations within it that are quite clearly stated.

6278             And the UN convention for rights for individuals with disabilities ‑‑ support was there from all political parties to support the government moving forward with ratification.

6279             The previous presentation by ARCH Disability Law ‑‑ we support all of the recommendations they put forth, as well.

6280             The CRTC to set a CRTC Disability Secretariat and Advisory Committee ‑‑ Disability Unit ‑‑ and the CRTC to establish a complaint mechanism ‑‑ and to make sure that that committee is effective ‑‑ and to make sure that there is a complaint mechanism in place for dealing with related disability and accessibility issues.

6281             If we look at the Federal Communications Commission, they have a Disability Unit, and they have hired expertise within that unit.  I think it is a model that we really should be looking to.  As a strong recommendation, I would suggest that the CRTC recycle all of the information from the FCC.  You don't need to reinvent the wheel, everything is quite clearly set out in that body, and in that model.

6282             They provide VRS services, and there is an excellent company ‑‑ the Purple Communications company ‑‑ which is a fabulous company in what they are doing.

6283             I am the father of six children, and three of my children reside in the U.S.  I lived in the U.S. for 15 years, and communication was easy and very accessible.

6284             The FCC has since banned all VRS services to accept Canadian calls.  If I want to contact my daughter in the States, I am not allowed to do so.  The Canadian government hasn't moved forward with VRS.  It affects my job performance.  I need to be able to network with all levels of government, and I am not able to do so.  I go back to the old method of booking an interpreter, and waiting for their ability, to then be able to meet with the people I want to, which doesn't allow for the best effectiveness.

6285             We have mobile video phones.  Purple Communications will speak to the unit they have that is mobile.  I can bring that to a meeting.  I can set it on the table and I can have a meeting with anyone I choose to, I don't need to wait for the interpreter's availability, wait in line for my turn to have access.

6286             I want to be able to participate, and that would allow me to do so.

6287             I would like to ask you an important question, and it something that I would ask you to consider.  Is it worth investing all of the money to defend a position, creating new barriers, and all of the associated expenses, or would it be better to invest that money in accessibility?

6288             I want you to keep in mind who uses elevators.  Everyone uses elevators.  Who uses captioning?  Everyone uses captioning.  People who are learning English as a second language or learning French as a second language utilize the captioning service to develop their language and literacy skills.  Children ‑‑ everyone ‑‑ seniors in a noisy environment, or even going to a bar.  The captioning is on the TV, so everybody has access to the information.

6289             Captioning is an absolutely fabulous tool to encourage the development of literacy, at all ages and at all levels, because everyone utilizes it.

6290             Keep in mind that VRS is not only going to be for deaf individuals.  I want to be part of society.  I want to be able to participate.  I want to see that bridge built for effective communication, and that will happen with VRS.  That is where we are going to see that technological solution.

6291             Again, keep in mind that you are waiting in line for your disability, but use us as the experts.  Let us provide you the expertise we have ‑‑ and use our recommendations.

6292             It is time for you to go forward and make this decision.  Bring the industry and service providers, Industry Canada and the CRTC, and the communities together.  Let us work together.  That can happen by setting up the CRTC Disability Secretariat.  That will allow us to be the symbol that everybody else in the world will look to.  They will look to Canada for what it is we have.  We will have the best accessibility ‑‑ the best quality of accessibility ‑‑ and I want us, as Canadians, to be renowned in that respect.

6293