DRAFT BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH
DISABILITIES ACT ALLIANCE TO THE MAYO MORAN 2014
INDEPENDENT REVIEW OF THE IMPLEMENTATION AND
ENFORCEMENT OF THE ACCESSIBILITY FOR ONTARIANS WITH
DISABILITIES ACT
JUNE 18, 2014
NOTE: This is only a draft. It has not been approved for submission to the Moran AODA
Independent Review.
DRAFT BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH
DISABILITIES ACT ALLIANCE TO THE MAYO MORAN 2014
INDEPENDENT REVIEW OF THE IMPLEMENTATION AND
ENFORCEMENT OF THE ACCESSIBILITY FOR ONTARIANS WITH
DISABILITIES ACT
CONTENTS
Part I. Introduction and Summary
1. Overview
2. Summary of this Brief
3. Who Are We?
4. The AODA - How It Works
5. What This Independent Review Should Ask
6. Ontario is Not on Schedule for Full Accessibility by 2025
7. Picking up Where the Beer AODA Independent Review Left Off
8. Summary of our December 11, 2009 Brief to the Beer AODA Independent Review
9. Spoiler Alert--Reflections on the Story that This Brief Reveals
Part II. The Government's Deliberate Failure to Keep Its Promise to Effectively Enforce the
AODA
1. Introduction
2. The Government's Promise of Effective Enforcement of the AODA
3. Our Long, Arduous and Frustrating Efforts to get the AODA Effectively Enforced
4. The Government's Ten-Month Cover-Up of Its Failure to Effectively Enforce the
AODA
5. The Truth Revealed - the Government Knew for Months of Massive Non-Compliance
with the AODA, but Refused to Effectively Enforce the Law, Despite Having Funds to
Do So, Ample Enforcement Powers, and a Detailed Enforcement Plan on Hand
6. Bill 107's Privatization of Human Rights Enforcement in 2006 Made Effective AODA
Enforcement Even More Pressing
a) Overview
b) Our Concerns in 2006 with Bill 107's Proposed Privatization of Human Rights
Enforcement
c) Four Years of Experience under Bill 107 from 2008 to 2012 Demonstrated that
Our Concerns with It Were Well-Founded
7. Commitments in the 2014 Ontario Election Campaign on AODA Enforcement
8. Reflections
a) The Failure to Effectively Enforce the AODA Sends A Very Bad Signal to
Obligated Organizations
b) The Government's Few Enforcement Efforts are Too Narrowly Focused
c) The Government Has No Good Reason for Failing to Effectively Enforce the
AODA
d) The Government's Failure to Effective Enforce the AODA Dilutes Effective
Monetary Penalties
e) Final Thoughts
9. Recommendations on The AODA's Enforcement
Part III. Accessibility Standards Enacted to Date Inadequately Address Barriers in Areas they
Regulate
1. Introduction
2. The Customer Service Accessibility Standard
3. The Integrated Accessibility Standard Regulation IASR
a) Overview
b) All Known Recurring Barriers are Not Addressed
c) The IASR Mainly Addresses Preventing New Barriers, Not Removing Existing
Barriers
d) Too Often, IASR Accessibility Requirements Are Too Weak
e) IASR Exemptions from Accessibility Requirements Are Often Too Broad
(i) Unjustified Blanket Exemptions for Small Private Sector Organizations
(ii) Inappropriate Total Exemption for Entire Private Sector
(iii) Exemptions from Accessibility Requirements That Are Unjustifiably
Less Exacting than the Human Rights Code's Undue Hardship
Requirement
(iv) Exemptions Permitting Barrier-Creation Even After the IASR Was
Enacted in June 2011
(v) Other Sundry Problematic Exemptions from IASR Accessibility
Requirements
f) IASR Time Lines for Action on Accessibility Too Often Are Too Long
4. 2013 Built Environment Amendments to the Ontario Building Code
5. Reflections
6. Recommendations on Deficiencies in Current AODA Accessibility Standards
Part IV. The Government's Multi-Year Delay Deciding Which New Accessibility Standards to
Next Make and Delivering the Promised Built Environment Accessibility Standard
1. Introduction
2. Our Exhausting Effort to Get the Government to Decide Which Accessibility
Standards to Next Make -- Another Saga of Counterproductive Government Delay and
Inaction
3. Reflections on the Government's Delay in Deciding which Accessibility Standards to
Next Make
4. The Long, Sad and Unfinished Saga of the Promised Built Environment Accessibility
Standard
a) Overview
b) Hurry Up and Wait
c) Reflections on the Promised Built Environment Accessibility Standard
5. Recommendations on Next Accessibility Standards to be Developed
Part V. Reforming the Standards Development Process Has Not Fully Fixed Earlier Problems
1. Introduction
2. The Government's Failing to Comply with the Statutory Deadline for Making an
Accessibility Standard after One is Recommended
3. Transferring Responsibility for Developing New Accessibility Standards to the
Accessibility Standards Advisory Council
4. Other Sundry Issues
5. Recommendations on Improving the Process for Developing New Accessibility
Standards and Revising Existing Standards
Part VI. Public Education on Accessibility Remains Insufficient
1. Introduction
2. Public Education Targeted at Obligated Organizations
3. Public Education Targeted at School Children and Key Professions
4. Public Education Aimed at the General Public
5. Government Action that Undermines Effective Public Education on Disability
Accessibility
6. Reflections
7. Recommendations on Public Education on the AODA
Part VII. The Government's Failure to Effectively Ensure that Public Money Is Never Used to
Create, Perpetuate or Exacerbate Disability Barriers
1. Introduction
2. The Idea - No Barriers Funded with the Public's Money
3. Yet Another Long Story of Our Repeated Efforts
a) The Early Years - 1998 to 2005
b) 2009 - We Ramp Up Our Advocacy Efforts
c) Actual Progress in June 2011
d) Stretches of Inaction and a More Recent Glimmer of Progress - 2011 to the
Present
4. Barrier-Creation Using Public Money Continues
a) Overview
b) Barriers in the Ontario Government's New "Presto" Smart Card
c) Barriers in New Courthouses
d) The Need for the Government to Plan Well in Advance for a Lasting
Accessibility Legacy for The 2015 Toronto Pan/ParaPan American Games
5. Trying to Make Progress During the 2014 Election
6. Recommendations on Ensuring Public Money Is Not Used to Create, Perpetuate or
Exacerbate Barriers
Part VIII. Meeting the Unmet Need to Ensure that All Ontario Laws Do Not Authorize or
Require Disability Barriers
1. Introduction
2. The Promise Made to Us
3. Progress Far Too Slow
4. Reflections
5. Recommendations on the Government's Review of Ontario Statutes and Regulations
for Accessibility Barriers
Part IX. Our 15-Year Campaign to Make Municipal and Provincial Elections in Ontario Fully
Accessible to Voters and Candidates with Disabilities
1. Introduction
2. Progress on Elections Accessibility Since 2005
a) Overview
b) Bill 212 and the Accessibility of Municipal Elections
c) Bill 231 - An Unsuccessful Solution to Barriers in Ontario Elections
(i) The Lead-up to Bill 231 -The Select Committee of the Legislature on
Elections
(ii) The Weak and Ineffective Bill 231 is Introduced In the Legislature
(iii) Our 2010 Submissions to the Legislature's Standing Committee on
How to Improve Bill 231
(iv) Clause-by-Clause Debate and Accessibility Amendments to Bill 231
(v) Bill 231 in Operation Since May 2010 -Elections Accessibility Barriers
Remain
3. The Parties' 2014 Platforms on Elections Accessibility in the 2014 Ontario Election
4. Reflections
5. Recommendations on Ensuring Municipal and Provincial Elections are Barrier-free for
People with Disabilities
Part X. Ontario Government - Leading by Example, But By What Example is it Leading?
1. Introduction
2. Failure to Put in Place An Effective Front-line Internal System within the Government
for Embedding Accessibility Across the Ontario Public Service
3. Examples of the Ontario Government Violating or Attempting to Violate Its Own
Disability Accessibility Laws
a) Overview
b) Failure to Appoint this Independent Review by the Mandatory Deadline
c) Illegally Abolishing the Government's Statutory Employment Accommodation
Fund
d) Attempting to Amend the IASR without Following Mandatory AODA
Provisions on Revising an Existing Accessibility Standard
e) Violating the Statutory Deadline for Making an Accessibility Standard after
One is Recommended
4. Recent Government Initiatives to Improve its Implementation of the AODA Have Not
Made a Significant Difference
a) Overview - Impact of Moving the Lead Responsibility for the AODA's
Implementation and Enforcement to the Ministry of Economic Development,
Trade and Employment
b) Incorporating Accessibility into the Economic Development, Trade and
Employment Ministry's Programs
c) New Initiatives for Increasing Private Sector Employment of People with
Disabilities
d) Encouraging Ontario Businesses to Produce Goods and Services that are
Disability-Accessible
e) Assigning Responsibility for Developing New Accessibility Standards to the
Accessibility Standards Advisory Council
5. Failing to Consistently Provide a Simple, Cost-Free Accommodation - the Case Study
of Government Documents in PDF Format
6. Reflections
7. Recommendations on the Ontario Government Leading By Example on Accessibility
Part XI. Concluding Reflections and Recommendations
1. Ontario Needs a Plan to Get to Full Accessibility by 2025
2. The Government Should Not Use the Government's "Open For Business" Strategy to
Water Down Efforts on Disability Accessibility
3. Sundry Recommendations
APPENDIX 1. RECOMMENDATIONS
APPENDIX 2. LIST OF RECOMMENDATIONS SUBMITTED TO THE CHARLES BEER
AODA INDEPENDENT REVIEW IN OUR DECEMBER 11, 2009 BRIEF
DRAFT BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES
ACT ALLIANCE TO THE MAYO MORAN 2014 INDEPENDENT REVIEW OF THE
IMPLEMENTATION AND ENFORCEMENT OF THE ACCESSIBILITY FOR
ONTARIANS WITH DISABILITIES ACTJUNE 18, 2014
Part I. Introduction and Summary
1. Overview
This is the Accessibility for Ontarians with Disabilities Act Alliance's brief to the second
Independent Review of the Accessibility for Ontarians with Disabilities Act (AODA). This
Independent Review is being conducted by University of Toronto Dean Mayo Moran pursuant to
s. 41 of the AODA.
We begin with the story of six preventable barriers against persons with disabilities in Ontario.
The first three were described in the following words, which first appeared in our April 4, 2014
brief to the Ontario Government on needed revisions to its 2007 Customer Service Accessibility
Standard:
"According to an article in the April 20, 2013 on-line edition of the Toronto Star,
Spring Rolls, a Toronto restaurant, part of a chain, restricted a customer from
bringing his Hearing Ear dog with him wherever he wished to sit into the
restaurant. This occurred fully eight years after the Accessibility for Ontarians
with Disabilities Act (AODA) was enacted. That law requires the Ontario
Government to lead Ontario to becoming fully accessible to persons with
disabilities by 2025. It was also a full six years after the Government enacted the
Customer Service Accessibility Standard under the AODA, to ensure fully
accessible customer service in Ontario. Media reports on this incident made it
appear manifestly doubtful that this restaurant had an effective accessible
customer service policy, and had sufficient accessible customer service training
for its staff, as the Customer Service Accessibility Standard required.
Days later, according to an article in the May 3, 2013 on-line edition of the
Windsor Star, a store in Windsor restricted access to a patron using a motorized
wheelchair. This was reportedly not an issue of stairs blocking physical access.
Rather, according to the article, the store’s staff did not want people in motorized
wheelchairs to even be in the store at all, out of fear that they could damage
products for sale.
Just a short month after that, one day in June, the AODA Alliance chair, David
Lepofsky went to a major downtown Toronto Service Ontario office, to get a new
health card.
David Lepofsky had his white cane with him, in plain view. He lined up. A
Service Ontario representative handed him a number, written on a piece of paper,
and told him to watch the monitors for his number, and hence his turn.
No one at Service Ontario was audibly announcing the numbers as they came up
on the monitors. This would be an easy and obvious accessibility accommodation.
It would cost nothing. Fortunately, he was accompanied by a sighted friend.
However, it should have been obvious that this was a clear customer service
barrier to a blind person.
On further investigation, this was not just a fluke, or a one-off, exceptional
incident. Rather, it is a deliberate and regular practice or policy of Service
Ontario.
Service Ontario is part of the Ontario Government. It daily deals directly with
delivering services to large numbers of people from the general public. It is part
of the very Ontario Government ministry, the Ministry of Government Services,
that is supposed to lead the Ontario Government's efforts to get its own
accessibility house in order by delivering accessible customer service to the
public.
Under the 2007 Customer Service Accessibility Standard, the Government was
the first organization to be required to implement that standard. The Government
has proudly announced that it has fully implemented that standard, established
policies on accessible customer service and trained all its employees on accessible
customer service. It has also proudly proclaimed that it aims to go beyond the
requirements of the AODA and its accessibility standards, to be a role model
when it comes to providing accessibility.
What makes this third incident especially shocking is that among the many people
who use Service Ontario are Ontario Government employees at all levels, from
front line staff to deputy ministers. All those public officials are said to have
received effective training on accessible customer service. Yet it seems that no
one either noticed this obvious barrier, or acted effectively to correct it, even fully
six years after the Government enacted the Customer Service Accessibility
Standard."
In the June 12, 2014 Ontario general election, carried out four years after the Legislature
amended Ontario's Elections Act to ensure the accessibility of Ontario elections for voters with
disabilities, accounts surfaced of a Toronto area All Candidates Debate planned to be held in an
inaccessible school. It was move to an accessible location in the school's outdoor parking lot
only after we turned up the heat, and called the media. Days later, a Cambridge, Ontario All
Candidates Debate was in fact held in an inaccessible location, preventing voters with disabilities
from attending.
In this recent election, a Toronto polling station was accessed by an elevator with only a 33 inchwide elevator door. Elections Ontario knew that this was too narrow for some wheelchairs and
scooters, and had received a complaint about this from a voter with a disability when it was used
last year in a by-election. Despite this, Elections Ontario chose to use it anyway.
Elections Ontario used an accessible voting machine in its Returning Offices, for voters who
can't mark their own ballot due to a disability such as blindness. Yet reports surfaced of
difficulties that some voters with disabilities experienced in this election, using that machine.
On Monday, June 16, 2014, CBC Radio's flagship Toronto morning program "Metro Morning"
included an interview with Ms. Hazel Self, a woman who rides the TTC subway using a power
wheelchair. She reported that she won't ride that subway any more, because TTC's new subway
cars are unsafe for her. There is too wide a gap and step in at least some subway stations, to get
from the subway car to the station's platform. This problem did not exist in the case of the older
TTC subway cars that the new cars replaced.
In other words, TTC used public money to replace older, more accessible subway cars with
newer, less accessible cars. This was so despite the Supreme Court of Canada ruling in Council
of Canadians with Disabilities v. ViaRail [2007] 1 S.C.R. 650. That case held that ViaRail
violated federal human rights provisions in the Canada Transportation Act when it replaced
older, more accessible passenger train cars with newer, more inaccessible ones.
Finally, on June 16, 2014, CITY-TV News ran a story reporting that TTC had announced that it
would not be retrofitting all Toronto subway stations to be accessible by 2025, despite the
requirement that Ontario become fully accessible by 2025 in the Accessibility for Ontarians with
Disabilities Act. We criticized that decision, because TTC had announced on more than one
occasion in the past that it would ensure that all subway stations are fully accessible by 2025.
Next year, Ontario will be halfway through the 20 years that the AODA allowed for Ontario to
become fully accessible. Ontario has made progress toward that goal. However, these six
examples of avoidable barriers illustrate that Ontario still has far to go, and that Ontario should
have made much more progress than it has by now, if it is to reach the mandatory goal of full
accessibility by 2025.
This brief shows over and over that Ontario is not on schedule for full accessibility by 2025. It
recommends concrete, practical measures needed to get Ontario back on schedule, and to ensure
that Ontario reaches full accessibility within the next eleven years.
In this brief we explore the AODA's implementation and enforcement to date, and identify where
it is succeeding and where it is falling short. Our brief's analysis is thoroughly researched and
carefully documented. It draws heavily on the contents of AODA Alliance Updates that we have
made public over the past nine years, and briefs that we have submitted to various Government
consultations. Those documents are all public. We provide copies of those Updates and briefs to
the Government as they are made public. The Government has had ample opportunity to alert us
if there had been any information in them which the Government considers inaccurate, to enable
us to correct them.
2. Summary of this Brief
In this introductory Part of this brief, we explain who the AODA Alliance is. We give a quick
explanation of how the AODA works. We propose the questions that we encourage this
Independent Review to ask about the AODA's implementation and enforcement. We explain
why we have concluded that Ontario is now not on schedule for reaching full accessibility for
persons with disabilities by 2025.
We then summarize the 2010 final report of the Charles Beer AODA Independent Review, as a
starting point for the Moran Independent Review, and our December 2009 submissions to the
Beer Independent Review. That is followed by some general reflections on this brief's
conclusions.
In each of the following parts of this brief, we address an important area of concern and then
offer recommendations for reform. In Part II, we address the effectiveness of the Government's
enforcement of the AODA. In Part III, we explore the accessibility standards enacted to date, and
comment on whether they go far enough.
In Part IV, we describe the ordeal we have had to undergo to try to get the Government to
develop new accessibility standards, and to keep its commitments regarding the Built
Environment Accessibility Standard. In Part V, we address the need for further improvements to
the way that the Government develops accessibility standards.
Part VI looks at the effectiveness of Government efforts to educate the public on accessibility.
Part VII explores how effectively the Government has acted to ensure that public money is never
used to create, perpetuate or exacerbate disability barriers. Part VIII delves into what the
Government has done to keep its promise to review all Ontario legislation and regulations for
accessibility barriers. Part IX addresses barriers facing persons with disabilities in elections in
Ontario.
Part X examines how effectively the Government has kept its commitment to lead by example in
the accessibility context. Part XI offers some general conclusions and recommendations.
At the end of this brief are two appendices. Appendix 1 sets out all the recommendations that we
propose in this brief. Appendix 2 sets out all the recommendations that we proposed in our
December 11, 2009 brief to the Charles Beer AODA Independent Review.
In this brief, we establish the following:
1. Ontario is not on schedule for reaching full accessibility by 2025.
2. The AODA requires the Ontario Government to lead the public and private sectors, to become
fully accessible by 2025. To achieve this, the Government has two major duties, and a third
supportive role. It must develop and enact all the accessibility standards needed to ensure that
Ontario reaches full accessibility by 2025. Second, it must effectively enforce those standards, to
ensure full compliance. Third, as a subsidiary duty to support the first two, the Government must
deploy effective public education on the AODA to reinforce compliance. Despite a range of
good efforts by the Government, the Government is now failing at all of these tasks.
3. The Charles Beer 2010 AODA Independent Review found that, to ensure Ontario reaches full
accessibility by 2025 the Ontario Government must show new leadership on the AODA, to
revitalize, institute transformative change and breathe new life into its implementation. Since
then, the Government has done none of this, even though it implemented some of the Beer
report's recommendations.
4. The Government is not effectively enforcing the AODA. Yet the Government promised to
effectively enforce it, has ample enforcement powers, unused budget and an internal enforcement
plan available. The Government failed to enforce the AODA even when it knew of rampant
AODA violations among private sector organizations with at least 20 employees. The
Government attempted for months to suppress this information from coming to public light.
5. The Government has no good reason for failing to effectively enforce the AODA, and, after
being driven to enforce it by adverse publicity, for having only used paltry efforts to only enforce
one of many enforceable AODA duties, the duty of private sector organizations with at least 20
employees to file an accessibility self-report under the Customer Service Accessibility Standard.
6. The Government's failure to effectively enforce the AODA contributes to Ontario falling
behind schedule for full accessibility by 2025. It undermines the efforts of those who try to
persuade and motivate obligated organizations to comply with the AODA. It is unfair to
obligated organizations who comply with the AODA, especially if their competitors do not. It
creates a harmful disincentive against investing a person's or organization's limited time and
scarce resources to take part in the development of accessibility standards, or other consultations
vital to the AODA's effective implementation.
7. The need for the AODA's effective enforcement is amplified because in 2006, the Government
privatized enforcement of human rights. This made it harder for persons with disabilities (and
other discrimination victims) to challenge barriers, one at a time, by complaints filed under the
Ontario Human Rights Code.
8. It was good for the Government, in 2005-2006, to decide that the first AODA accessibility
standards to be created would address barriers in customer service, transportation, employment,
information and communication, and in the built environment. However, the accessibility
standards enacted to date in these areas, while helpful, are grossly insufficient to effectively
ensure that all recurring barriers in those fields are removed and prevented by 2025. Several
requirements are too weak. They mostly if not totally only deal with preventing new barriers, but
not removing existing barriers. They don't address a number of important recurring barriers.
Their time lines are often too long. They wrongly create exceptions, exemptions and defences
that are broader than the undue hardship defence in the Human Rights Code. We and the Ontario
Human Rights Commission unsuccessfully pressed the Government to ensure that AODA
accessibility standards be at least as strong as the Human Rights Code's accessibility
requirements. As a result, obligated organizations face the risk of multiple litigation over the
same barrier.
9. It was counterproductive for the Government to administratively carve out of the AODA the
important area of the built environment. It did so by addressing built environment barriers inside
buildings only via amendments to the Ontario Building Code. These are not also incorporated in
an AODA accessibility standard. This broke the Government's repeated promises to enact a Built
Environment Accessibility Standard under the AODA.
10. Also dragging Ontario behind schedule for full accessibility by 2025, the Government took
an unwarranted number of years to enact its modest regulations addressing some barriers in the
built environment. The Government has not kept its 2009 promise to address the need for
retrofitting of existing buildings which are not undergoing a major renovation, and barriers in
residential housing, via an AODA accessibility standard. As such, Ontario's built environment is
now not on schedule for full accessibility by 2025, or ever.
11. The Government's unexplained and unjustified multi-year dithering over which AODA
accessibility standards to create next has squandered important time, as the 2025 deadline grows
closer. The Government has taken longer to decide which accessibility standards to next make
than it takes to develop an accessibility standard. This delay cannot be justified by the fact that
Ontario had a minority government from October 2011 to June 2014. As the Government
dithered, old barriers remained in place. New ones were created that could have been prevented.
12. There are still residual problems with the process for developing AODA accessibility
standards, despite the Government's reforms to date. The Government's transferring
responsibility to the Accessibility Standards Advisory Council (ASAC) for developing proposals
for the content of all new accessibility standards, has not yet yielded any benefits that it was
expected to deliver.
13. The Government's efforts on AODA public education, while helpful, have been too limited
and delayed. This too has held Ontario back behind schedule for full accessibility by 2025. The
Government, as far as we can tell, has not kept its 2007 promise to promote public education on
accessibility aimed at school children, and at key professionals such as architects. Despite
producing some good educational materials on accessibility, there are also some very troubling
instances of Government public statements that undermine efforts at accessibility.
14. The Government's failure to provide effective accessibility public education makes it likely
that that fewer organizations are complying with the AODA. In rare instances when the
Government has of late started limited enforcement steps, too often there is push-back, because
the obligated organizations say they hadn't known of their obligations or appreciated why they
are beneficial.
15. Despite our many efforts and some progress, the Government still has in place no
comprehensive, monitored policy in place to ensure that public money is never used to create,
perpetuate or exacerbate disability barriers. A number of huge opportunities were lost. Even
though we made some progress in the 2011 summer, the Government has in some instances
continued to engage in conduct that can create new barriers against persons with disabilities,
using public money.
16. The Government has been very tardy in addressing its 2007 election promise to review all
Ontario laws for accessibility barriers. In 2007, the Government called this review "the next step
toward our goal of a fully accessible Ontario." Almost seven years later, despite progress at the
speed of a turtle, this promised review is still years away from completion, due to Government
lethargy. The longer laws remain on the books that require or permit disability accessibility
barriers, the longer it will take Ontario to reach full accessibility.
17. Voters and candidates with disabilities continue to face preventable barriers when trying to
exercise their fundamental legal and constitutional rights in municipal and provincial elections.
These include barriers impeding them from attending an All Candidates Debate, from getting
into a polling station and/or from being able to independently mark their own ballot in private
and verify their choice. To become fully accessible, Ontario must ensure that municipal and
provincial elections become fully accessible for voters and candidates with disabilities. Elections
accessibility continues counterproductively to be addressed in isolated silos in the Ontario
Government. The Government wastefully requires the same barriers to be separately tackled in
the provincial and municipal levels, and separately in each municipality. Legislative reforms in
2009 and 2010 have not solved this problem. Ontario still does not have the accessible elections
action plan we were promised in 2007, or the further progress towards accessible Ontario and
municipal elections we were promised in 2011. Telephone and internet voting, as a solution, is
thankfully spreading in municipal elections but is unjustifiably stalled at the provincial level.
18. The Ontario Government has taken some commendable steps to achieve accessibility within
its own house. Yet there are a series of stunning examples of the Government leading by a very
poor example, setting back progress towards a fully accessible Ontario. This has included,
among other things, palpable violations of the AODA and the Ontarians with Disabilities Act
2001. The Government needs to take significant action to better ensure that the Ontario Public
Service becomes a fully accessible employer and service provider.
19. Commendable efforts by the Government in the past two years to improve the AODA's
implementation have not made a positive difference. This includes its moving lead responsibility
for implementing and enforcing the AODA from the Community and Social Services Ministry to
the Economic Development, Trade and Employment Ministry. There has been enough time for
such measures to make a difference. We have not seen accessibility effectively incorporated into
the work of the Economic Development, Trade and Employment Ministry. Its efforts on
implementing a promised strategy to increase private sector employment for persons with
disabilities has been much talk and delayed action. We have seen no progress on getting Ontario
businesses to produce accessible goods and services, for use by persons with disabilities here and
abroad.
20. The continued periodic elusiveness of one specific cost-free, easy-to-provide accommodation
provides a good illustration of the roadblocks we too often encounter, and of the Government's
failure to effectively lead by example. We have had a seemingly-endless battle in our
unsuccessful effort to get Government to consistently ensure that whenever it posts a PDF
document on its public websites or internal intranet, it also posts that document in an accessible
format such as an accessible MS Word or HTML document.
21. Accessibility has not been effectively entrenched within the Ontario Public Service on a dayto-day basis. It is too often seen as a superficial "add-on" that pops up infrequently and is
someone else's responsibility. The Government's 2011 pledge to integrate accessibility as a
fundamental principle when it comes to making vital decisions that affect the daily lives of
Ontarians, has not become a reality in the Ontario Public Service for the most part.
22. A serious deep-rooted problem with the AODA's implementation is demonstrated by the
ordeal that Ontario's disability community has had to undergo for many years, for example:
a) to get the Government to enforce the AODA, and to find out what the Government has done
on its enforcement.
b) to get the Government to keep its promise to enact the promised Built Environment
Accessibility Standard, and to decide which accessibility standards it would next develop;
c) to get the Government to implement an effective, monitored and enforced program to ensure
that public money is never used to create, perpetuate or exacerbate disability barriers.
d) to get the Government to undertake and complete its promised review of all Ontario laws for
accessibility barriers.
e) to get the Government to implement effective measures for ensuring that municipal and
provincial elections in Ontario are fully accessible.
23. The Government's recurring foot-dragging cannot be written off as simply the inevitable
delay in government. This Government has shown itself to be capable of prompt and bold action
on the disability accessibility front, when it wishes. From October 2003 to October 2004, as a
new, inexperienced Government, it quickly and effectively conducted a broad, open and
inclusive public consultation and developed Bill 118, the proposed AODA.
24. Since the 2011 summer, the Government's progress on accessibility has ground down to a
virtual stand-still. Among the many causes for this has been a stunning lack of leadership on this
issue within the Government, and the Government's failure to put in place effective measures to
ensure that accessibility is taken seriously across the government, and that all its accessibility
promises are kept. The result is that Ontario falls further behind schedule for full accessibility by
2025, while many Government accessibility promises languish, unkept.
25. It is critical for Ontario to now develop, make public, and implement a comprehensive plan
for ensuring that our province gets back on schedule, and reaches full accessibility by 2025.
Unless that plan is developed now, and unless the Government quickly gets to work on
developing all the remaining accessibility standards needed to ensure full accessibility, the
Government in the next four years will condemn Ontario to miss the 2025 goal of full
accessibility.
Our brief therefore presents a series of recommendations to:
1. ensure that the AODA is effectively enforced.
2. strengthen the accessibility standards that have been enacted to date under the AODA.
3. get the Government to immediately get to work, developing new accessibility standards to
address barriers in health care, education and residential housing.
4. keep the Government's commitment to address retrofits of built environment barriers in
existing buildings that are not undergoing any major renovation, through the standards
development process.
5. enact under the AODA an accessibility standard that incorporates the Ontario Building Code's
accessibility requirements, as amended in 2013.
6. ensure that the Government promptly identifies all the other accessibility standards that need
to be developed to ensure Ontario becomes accessible by 2025, and gets to work developing
them.
7. further reform the process for developing new accessibility standards and for revising existing
standards under the AODA.
8. expand public education on accessibility, aimed at obligated organizations, at school children,
at key professions such as architects, and at the general public.
9. ensure that public money is never used to create, perpetuate or exacerbate barriers against
persons with disabilities.
10. substantially speed up and complete the Government's review of all Ontario statutes and
regulations for accessibility barriers that it promised in 2007.
11. enact new, effective legislation and implement new strategies to ensure that municipal and
provincial elections in Ontario are fully accessible to persons with disabilities, including the
option of telephone and internet voting which at least 44 Ontario municipalities already use.
12. ensure that the Ontario Government itself obeys Ontario's accessibility laws, and leads by a
good example on accessibility.
3. Who Are We?
The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Its
mission is:
"To contribute to the achievement of a barrier-free Ontario for all persons with
disabilities, by promoting and supporting the timely, effective, and comprehensive
implementation of the Accessibility for Ontarians with Disabilities Act."
To learn about us, visit: http://www.aodaalliance.org.
Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA
Committee led the province-wide, decade-long campaign advocating for the enactment of strong,
effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work.
We draw our membership from the ODA Committee's broad, grassroots base. To learn about the
ODA Committee's history, visit: http://www.odacommittee.net.
To learn more about our activities, and about accessibility issues around the world, you can
follow us on Twitter. We aim to be a leading source of news and information about accessibility
efforts in Ontario and around the world. Our Twitter handle is @aodaalliance
4. The AODA - How It Works
The AODA seeks to implement the right of persons with disabilities to full participation and
inclusion in society that the Ontario Human Rights Code and s. 15 of the Canadian Charter of
Rights and Freedoms guarantee to all persons with disabilities. It endeavours to achieve this
without persons with disabilities having to individually sue, one barrier at a time, to achieve the
goal of a barrier free society. The AODA requires the Ontario Government to lead Ontario to
become fully accessible to all persons with disabilities by 2025. In this brief, when we say "the
Government" we refer to the Ontario Government.
To achieve this, the AODA requires the Government to make all the accessibility standards
needed to achieve that goal, and to effectively enforce them. The Government also must provide
the public, including obligated organizations, with the knowledge, training and other tools
needed to ensure that Ontario reaches this goal.
5. What This Independent Review Should Ask
We propose that to discharge its mandate, this Independent Review should ask these questions:
1. Is Ontario now on schedule to achieve full accessibility by 2025, as the AODA requires?
2. Has the Government effectively used all its powers and fulfilled all its obligations under the
AODA in order to ensure that Ontario reaches full accessibility by 2025?
3. Does the Government now have in place a full action plan for ensuring that Ontario reaches
full accessibility by 2025?
4. Has the Government kept all the commitments it has made regarding the implementation of
the AODA, and regarding disability accessibility generally?
5. What actions are needed to ensure that Ontario reaches full accessibility by 2025?
6. Ontario is Not on Schedule for Full Accessibility by 2025
Ontario is not now on schedule for full accessibility by 2025. At the present rate of progress,
Ontario will not reach full accessibility by 2025. It will not even come close.
In the lived experience of persons with disabilities with whom we are in contact, and from whom
we regularly hear, and from our own observations of progress to date, the majority of the many
existing barriers confronting persons with disabilities in Ontario are still not being removed. At
the same time, despite some progress, new barriers continue to be created.
We are now close to the halfway point in the twenty-year period that the AODA gives Ontario to
reach full accessibility. Yet we have not seen anything close to 50% progress toward full
accessibility. We conclude this, even generously allowing for initial time needed to get the
apparatus for the AODA's implementation up and running.
There is conclusive proof that Ontario is not on schedule for full accessibility by 2025. If every
obligated organization covered by the AODA did everything that is required of them under the
accessibility standards enacted to date by the deadlines set out in those accessibility standards,
Ontario would not become fully accessible by 2025, or ever. This brief's detailed exploration of
the accessibility standards enacted to date amply demonstrates this.
Even if that alone were not proof positive, we offer an additional compelling basis for this
conclusion. In its 2010 final report, the Charles Beer Independent AODA Review (the first
Independent Review conducted under the AODA, four years after the AODA was enacted) in
effect found that for Ontario to achieve full accessibility by 2025, it would be necessary for the
Ontario Government to show new leadership on the AODA, to revitalize its implementation of
the AODA and breathe new life into the AODA's implementation. It found that “transformative
change (i.e. in how the Government implements the AODA) is necessary to achieve accessibility
by 2025.” This needed to be much more than mere tinkering with the AODA's implementation.
According to the Beer Report, the degree of change required could not occur in a “business as
usual” environment. The Report concluded that: “…it is essential to raise the profile of the goals
and objectives of the act and apply a renewed and refocused sense of commitment and
leadership.” It concluded that: “structural changes” are needed. The Report called for significant
improvements to the AODA’s implementation, in order for Ontario to be able to reach the
AODA’s deadline of full accessibility by 2025. It found: “It is critical that the government build
a broader public awareness and understanding about the AODA and that the necessary tools and
supports be available for the obligated sectors.”
This brief demonstrates that the Government did not show new leadership, implement
transformative change, revitalize the AODA's implementation or breathe new life into it.
The Government only committed to implement some of the Beer Report's recommendations. It
agreed to harmonize AODA standards (a modest step that doesn't correct the major problems
Charles Beer identified). It agreed to reform the process for developing new accessibility
standards by consolidating this within one permanent body, rather than leaving it spread among a
number of different Standards Development Committees. Even then, the Government acted very
slowly on this latter recommendation. It took the Government from early 2010 (when it received
this recommendation) to late 2012 or early 2013 to act on that recommendation, and until the
2013 summer to have in place the revitalized Accessibility Standards Advisory Council as the
new permanent body for developing proposals for new accessibility standards. In contrast, it only
took the Government 1.5 years to design the AODA from scratch, and to get it passed and
proclaimed in force. This brief demonstrates that this change has not made a practical difference,
fully four years after delivery of the beer Independent Review's report.
The Government did not make any of the changes to internal Government operations that the
Beer Report recommended. For example, it did not consolidate all accessibility responsibilities
under one cabinet minister. It did not elevate the position of Assistant Deputy Minister for the
Accessibility Directorate into a fulltime Deputy Minister position. It did not launch a longoverdue strengthened initiative for educating the obligated sectors on their duties under the
AODA. It necessarily follows that Ontario is behind schedule for achieving full accessibility by
2025.
Finally, we are aware of no credible person who claims that Ontario is now on schedule for full
accessibility by 2025. For example, in each election since the AODA was passed, at least two of
Ontario's major political parties have made election commitments in letters to our coalition,
promising to strengthen the AODA's implementation.
7. Picking up Where the Beer AODA Independent Review Left Off
The 2010 final report of Charles Beer's AODA Independent Review, the first such review
conducted under the AODA, is the proper starting point for this AODA Independent Review's
investigation. With minor exceptions, we endorsed the Beer Report's findings and
recommendations.
The Beer report is an excellent starting point for the Moran Independent Review's work. The
Beer Report recommended that the Government:
1. harmonize the accessibility standards prior to releasing the remaining proposed standards as
regulations
2. renew leadership for implementation of the AODA by
a. formally designating the Minister of Community and Social Services as the
Minister Responsible for Accessibility
b. strengthening the Accessibility Directorate of Ontario by:
i. elevating the role of the assistant deputy minister to deputy minister, and
ii. focusing on renewed priorities including a public awareness and education
campaign to support the AODA
3. amend the AODA to establish an arm’s-length advisory body — the Ontario Accessibility
Standards Board — to review and develop accessibility standards — replacing the standards
development committee process.
4. strengthen support for municipal accessibility advisory committees that advise municipal
governments on accessibility issues, and
5. not repeal the Ontarians with Disabilities Act 2001 until addressing all of its contents in
amendments to the AODA or in accessibility standards.
We have only disagreed with two of the Beer Report's recommendations. The first was the
Ontarians with Disabilities Act's repeal. We do not support any weakening of laws that aim to
advance the goal of disability accessibility.
In any event, the Beer Report's proposals regarding repeal of the Ontarians with Disabilities Act
presuppose that the Government has enacted all of the first five accessibility standards that were
under development when his report was submitted in 2010. As demonstrated later in this brief,
the Government has still not enacted a full Built Environment Accessibility Standard under the
AODA, despite its promise to do so. This brief later explains why the Government's December
2013 accessibility amendments to the Ontario Building Code do not constitute the promised
Built Environment Accessibility Standard.
The second recommendation of the Beer AODA Independent Review's report with which we
disagreed was its proposal that the second AODA Independent Review, the one now being
conducted, be delayed until four years after his report, rather than being conducted only three
years after the Beer report, as the AODA requires. This brief's description of the many problems
with the AODA's implementation shows why the current Independent Review was needed to be
conducted on time, and not delayed. Ontarians with disabilities cannot afford any more delays
before getting the AODA's implementation back on track.
The Ontario Government initially gave a very tepid, defensive public response to the Beer
Report. It never explicitly accepted the Beer Report's findings. The most the Government
publicly said, when it released the report on May 31, 2010 and immediately afterward, was that it
was then acting on what we consider the Beer Report’s least ambitious recommendation, the
Report’s proposal that the Government harmonize the forthcoming accessibility standards.
In the early days after the Beer Report was made public in 2010, the Government also said
vaguely that it was implementing “a lot” of the Beer Report’s recommendations. No specifics
were then given.
On June 1, 2010 the McGuinty Government acknowledged in the Legislature that the Beer
Report is a good report. At the same time, the Government claimed that Ontario was in effect on
schedule for achieving full accessibility. That claim directly conflicted with the spirit and content
of the Beer Report, as well as the daily experience of Ontarians with disabilities.
On August 11, 2010 the Government released a weak and inadequate final response to the Beer
report. In it the Government disregarded, ducked or delayed much of what Charles Beer found
about the Government’s inadequate implementation of the AODA to date. It did not commit to
make the transformative changes to the AODA’s implementation that the Beer Report
recommended.
Our August 11, 2010 AODA Alliance Update included the following:
“The Beer Report calls for the Government to make transformative change. The
Government’s response largely just sticks to business as usual. Charles Beer’s
Report shows that the Government’s business-as-usual approach is a problem, not
the solution.”
That AODA Alliance Update summarized and analyzed the Government's response to the Beer
Report in part as follows:
"Central to the Beer Report, it called for the Government to show new leadership
for implementation of the AODA e.g. by appointing a full-time deputy minister to
be responsible for all Government work on accessibility. Right now, the
Government’s many departments take a disorganized, uncoordinated “silo”
approach to accessibility. The Government’s response does not even mention the
Beer Report’s recommendation of a new full-time accessibility deputy minister. It
does not commit to create that position. Instead of committing to show new
leadership, the Government response claimed was already showing leadership on
accessibility. The responsible Minister Madeleine Meilleur, stated: "I believe, as
the Minister responsible for accessibility, that this government has shown
substantial leadership when it comes to improving accessibility." In what we
consider a substantial exaggeration, she stated that Ontario is a "world leader on
accessibility."
The Beer Report called for a bold new public education campaign on
accessibility, because it found such a serious knowledge gap on this issue in the
public. In effect, the Beer Report concluded that the Government efforts on this to
date were insufficient.
The Government response does not commit to any major changes or any major
specific and new public education program, beyond what it is already doing. It
just points to the programs it already has underway, and says it is now shifting
focus beyond the broader public sector vis à vis one accessibility standard, the
Customer Service Accessibility Standard. The Government response also says it
has a new YouTube accessibility channel. That is not transformative change to
meet our needs.
The Beer Report called for substantial improvements to the way the Government
develops accessibility standards under the AODA. It recommended that the
Government establish an arm’s length advisory body — the Ontario Accessibility
Standards Board — to review and develop accessibility standards.
The Government response vaguely agrees that “changes are needed.” It only
commits that public officials will study the proposal of a new independent
Accessibility Standards Board and report back to the Community and Social
Services Minister early in 2011. We have no idea when the public will hear more
about this, or whether this will lead to any actual changes.
The Government has already had six months to study this recommendation. The
disability community, and the opposition NDP and Conservative Parties, urged
this recommendation on the Government back in 2004-2005 when the
Government was first developing the AODA.
While public officials continue to study this recommendation, the Government
says it is not contemplating any immediate organizational changes.
The Beer Report called for the Government to strengthen support for municipal
accessibility advisory committees. These committees advise municipal
governments on accessibility issues.
The Government’s response points to a new Government website on this, and
otherwise mainly commits to continue doing what it has done in the past in this
area.
The Beer Report called for the Government to harmonize the accessibility
standards prior to releasing the remaining proposed standards as regulations. The
Government already announced back on May 31, 2010 that it would do this. This
is the Report’s least significant recommendation in terms of strengthening the
AODA’s implementation.
We expect the Government would have done this whether or not the Beer Report
would have recommended it. Harmonizing those standards does not fix the other
major problems with the AODA that the Beer Report found.
The Beer Report calls for the Government not to repeal the Ontarians with
Disabilities Act 2001 until addressing all of its contents in amendments to the
AODA or in accessibility standards. We and others in the disability community
urged that nothing be done in this regard that would reduce the tools available to
promote work toward removing and preventing barriers against persons with
disabilities.
The Government response states that it plans to repeal the Ontarians with
Disabilities Act once the regulations for the five standards under the Accessibility
for Ontarians with Disabilities Act, 2005 are in place. It also states: “Appropriate
aspects of the Ontarians with Disabilities Act will be incorporated into the
Accessibility for Ontarians with Disabilities Act, 2005 at that time.”
This vague announcement does not commit that all provisions in the Ontarians
with Disabilities Act that contribute to the removal and prevention of barriers will
be retained and incorporated into the AODA or accessibility standards enacted
under it. We may have to campaign to retain these.
For example, the Ontarians with Disabilities Act 2001 requires the Government to
consider accessibility when procuring goods and services, or when investing in
infrastructure. The Government does not here commit to retain those requirements
in the AODA once the Ontarians with Disabilities Act is repealed."
The Government ultimately adopted a reform to the process for developing accessibility
standards, a move that we commended. As addressed above, it took almost three and a half years
to get this change approved and implemented.
8. Summary of our December 11, 2009 Brief to the Beer AODA Independent Review
Our December 11, 2009 brief to the Beer AODA Independent Review demonstrated that even
four and a half years ago, Ontario was not on schedule for reaching full accessibility by 2025.
Our brief summarized our position as follows:
"1.
There clearly has been some progress under the Accessibility for
Ontarians with Disabilities Act 2005 (AODA) and the Ontarians with Disabilities
Act 2001 (ODA) toward the AODA’s mandatory goal of full accessibility in
Ontario by 2025. However, this progress has been too slow. Ontario is not now on
schedule to reach full accessibility by 2025. Significant new reforms, including
amendments to Ontario legislation, are needed to get Ontario on schedule for full
accessibility by 2025.
2.
The AODA’s implementation to date has not had a significant impact on
the daily lives of Ontarians with disabilities.
3.
Strong, effective accessibility standards have not been developed under
the AODA to date. Only one accessibility standard has been enacted, the
Customer Service Accessibility Standard. It is weak, ineffective and actually
creates a barrier. The other four accessibility standards now under development
address important areas, but are not yet law. The proposals for these four
accessibility standards range in their quality. We do not know whether the
Government will be bold or timid when finalizing them.
4.
There have been problems with the standards development process. We
recognize that the Government is ploughing new terrain in this area and is
building experience. During the first two years of developing standards, the
Government used a flawed approach to developing them. It operated under the
incorrect view that these standards need not attempt to comply with the
accessibility requirements of the Ontario Human Rights Code.
5.
In the 2007 election, the Ontario Government made several important
commitments regarding the AODA’s implementation. It has kept some of these,
which have helped the standards development process. However several of its
important 2007 election promises remain unkept.
6.
The Ontario Government has not made full and effective use of its other
powers under the AODA, beyond developing accessibility standards, to promote a
fully accessible province. For example, it has not yet put in place its full regime
for enforcing the AODA, even though the first accessibility standard goes into
force and can be enforced in January, 2010.
7.
The Ontario Government, which should be a leader on accessibility, is
itself quite behind in making Ontario Public Service employment and services
fully accessible to persons with disabilities.
8.
The Ontario Government has not effectively ensured that public tax
dollars, spent on infrastructure capital projects and procurement of goods and
services, are not used to create or perpetuate barriers against persons with
disabilities.
9.
The Government has not acted sufficiently to reduce the impending
attitudinal barrier created by the incorrect perception, held by some, that the
AODA imposes new accessibility obligations.
We recommend that the Independent Review make specific findings, based on the
foregoing, to support recommendations for needed reform. Based on these
proposed findings, we offer 69 recommendations to improve the AODA and its
implementation, by:
a) Securing strong new leadership for the AODA’s implementation, including a
minister with lead responsibility for all accessibility issues;
b) Strengthening the process for developing strong, effective accessibility
standards to ensure that they comply with the Human Rights Code;
c) Providing for the strong and effective enforcement of the AODA.
d) Ensuring that all Ontario and municipal laws neither create nor perpetuate
barriers against persons with disabilities;
e) Ensuring Ontario tax dollars are not used to create or perpetuate barriers
against persons with disabilities;
f) Expanding other efforts by the Government beyond developing accessibility
standards, to promote accessibility;
g) Improving Ontario Government compliance with accessibility requirements;
h) Making provincial and municipal elections barrier-free for voters and
candidates with disabilities;
i) Educating school students and professional trainees on disability accessibility;
j) Expressly requiring all boards, commissions and other tribunals to consider
accessibility when exercising discretionary powers."
Our December 11, 2009 brief to the Beer AODA Independent Review also offered this overall
assessment:
"From the front-line perspective of Ontarians with disabilities, there has not been
a significant increase in their access to employment, goods, services, facilities or
buildings in Ontario since the AODA 2005 was passed. It was understood that
dramatic change was not expected overnight. A disproportionate amount of the
earliest implementation work would involve start-up activity which might not at
first produce highly-visible results. However, with well over one-fifth of the time
available for achieving full accessibility now behind us, our supporters tell us that
they do not perceive or experience major progress toward the AODA’s goal.
That is not to say that there has been no progress on the accessibility front. Some
barriers have been removed or prevented since 2005. There has been a clear
increase in attention and action on accessibility issues. The profile and public
acceptance of the goal and worth of accessibility for persons with disabilities has
increased. Had Ontario had no AODA 2005 at all, we would be further behind
than we are now, albeit by a gap that is hard to now precisely quantify.
Yet from the perspective of persons with disabilities, the question is not “Has
there been some progress toward accessibility?” It is too easy to point to one new
ramp in front of a courthouse, or one newly accessible website, to say that more
than nothing is going on. The AODA 2005’s goal is not merely “some progress.”
It is full accessibility by 2025."
The text of our entire December 11, 2009 brief to the Beer AODA Independent Review is
available at http://www.aodaalliance.org/strong-effective-aoda/12152009.asp
9. Spoiler Alert--Reflections on the Story that This Brief Reveals
This AODA Independent Review comes at an especially important time. Ontarians have just
entrusted the Government that enacted the AODA with a four-year majority government. The
Government is well positioned, if it wishes, to take the actions that this brief recommends.
As demonstrated throughout this brief, progress toward accessibility slowed to a virtual snail's
pace by the 2011 summer, within a year after the Beer Report was made public. This was the
opposite of what the Beer Report declared to be necessary. Moreover, the Beer Report was
written at a time when the Government was not yet obliged to enforce any accessibility standards
under the AODA. It did not assess the sufficiency of the AODA's enforcement. It was also
prepared at a time when four of the initial five accessibility standards were still under
development, and the fifth, the Customer Service Accessibility Standard, had not yet been
implemented.
As such, Charles Beer was not in a position to comprehensively assess the effectiveness of
accessibility standards under the AODA, or the effectiveness of the AODA's enforcement. Those
two issues, the effectiveness of the AODA's enforcement and the sufficiency of accessibility
standards enacted to date, are pivotally important for this Independent Review. They are the first
two topics that this brief thoroughly explores.
This brief's detailed exploration of the Government's implementation reveals a sad and entirely
unavoidable state of affairs. When Ontario's Government embarked on developing
comprehensive disability accessibility legislation in October 2003, it proceeded promptly,
boldly, and responsibly. Within one year, it moved mountains that had been virtually un-budged
for years. One year later, in October 2004, it brought forward a bill which was unprecedented in
Canada, Bill 118, the proposed AODA.
Between 2003 and 2005, the Government commendably took very seriously the input it solicited
and received from the disability community and other sectors of society, both when it was
developing the bill, and after that, when the bill was before the Legislature. On May 10, 2005,
when the bill passed in the Legislature on Third Reading, the three disputatious political parties
showed more non-partisan unity than is typically seen in Ontario politics both by all voting for
the bill, and by standing in unison to applaud its passage.
Over the following few years the Government set about to implement this law with admirable
and serious determination. Along the way, the Government made some mistakes early in the
process. These were an understandable part of the learning process, when doing something so
new in Ontario.
This all proves that Government can move promptly, boldly, and effectively in this area. Yet, the
2009-10 final report of the Charles Beer AODA Independent Review correctly found that after
that initial flourish, the Government went back to "business as usual." Its leadership focused on
other issues. The AODA did not secure the strong leadership it needed to be effectively
implemented.
As indicated above, in 2010, the Beer AODA Independent Review wisely recommended that the
Government needed to breathe new life into the AODA's implementation, to make
transformative change, and to show new leadership. This brief to the Moran Independent Review
shows time and again that the Government did not do any of that. To the contrary, especially
since the 2011 summer, the AODA's implementation slowed to a crawl. In the past 18 months it
has come to a virtual stop. Boldness was replaced with bureaucracy. Leadership was replaced
with lethargy. Progress was replaced with procrastination.
The recurring story in this brief, in issue after issue, is the saga of a Government that repeatedly
boasts that it is a world leader on accessibility, but whose actions so often demonstrate the
hollowness of those claims. Many of the politicians and their political advisors who were part of
the initial flurry of activity on this issue from 2003 to 2005 have left public life. Since then, we
too often encounter their well-intentioned replacements who know little if anything about this
issue, and who have no sense of mission. They naively seem to think that all they need to do is to
proclaim their deep commitment to accessibility and to publicly proclaim that it is a top priority
for the Government, after which all will be well. This brief demonstrates that the opposite is the
case.
Under the AODA, the Government has three major roles: First, it must enact all the strong,
effective accessibility standards needed to ensure that Ontario becomes fully accessible to
persons with disabilities by 2025. Second, it must effectively enforce those accessibility
standards, so that they are mandatory in practical fact, not just in theoretical law. Third, the
Government must effectively educate the public, including obligated organizations, on what they
need to do to become fully accessible.
This brief demonstrates that the Government is failing on all three fronts. As well, it has not used
other levers available to it, often at little or no cost, to further create and promote accessibility
across Ontario. Our brief shows that the Government claims to want to lead by example on
accessibility. Yet it has too often led by the wrong example, at times violating the AODA or
trying to do so, and doing an ineffective job of embedding accessibility into the day-to-day
operations of the Ontario Public Service.
Another lens through which the AODA's implementation can be viewed, is the extent to which
the Government has kept its promises on the AODA. In 2005, the Government largely kept its
word on what the AODA would contain. After 2007, it substantially kept its word on
improvements to the standards development process that it promised in the 2007 election.
However, as this brief's detailed analysis shows, many of its other election promises have gone
partially or totally unkept. These include, e.g. the Government's promises
a) to ensure that Ontario is on schedule for full accessibility by 2025. (Kathleen Wynne’s
December 3, 2012 letter to the AODA Alliance)
b) to effectively enforce the AODA. (April 7, 2003 letter to the ODA Committee from Dalton
McGuinty; August 19, 2011 letter to AODA Alliance from Premier McGuinty)
c) to decide which new accessibility standards will next be developed based on information
the Government already has in hand. (Ontario Government news release January 21, 2013)
d) as a priority, to promptly enact the Built Environment Accessibility Standard. (August
19, 2011 letter to AODA Alliance from Premier McGuinty)
e) to extend the Government's 2011 Ten Year Infrastructure Plan, to include a requirement
that information technology infrastructure and electronic kiosks, acquired with Ontario
public money, are accessible to persons with disabilities. (August 19, 2011 letter to AODA
Alliance from Premier McGuinty)
f) to create a full-time Assistant Deputy Minister position in the Ministry of Government
Services responsible for accessibility of the Ontario Public Service and the Ontario
Government. (August 19, 2011 letter to AODA Alliance from Premier McGuinty)
g) to complete the review of all Ontario laws for accessibility barriers, which the McGuinty
Government initially promised in the 2007 election, through the work of a central team, to
have ministries report on their progress as part of their annual performance plans, and to
pursue strategies to address defined barriers in an efficient and suitable manner.
(September 14, 2007 letter to the AODA Alliance by Premier McGuinty; August 19, 2011 letter
to AODA Alliance from Premier McGuinty)
h) to integrate accessibility as a fundamental principle when the Government is making
vital decisions that affect the daily lives of Ontarians. (August 19, 2011 letter to AODA
Alliance from Premier McGuinty)
i) to break down the barriers and silos experienced across government when implementing
accessibility initiatives. (August 19, 2011 letter to AODA Alliance from Premier McGuinty)
j) to continue to build on progress on making municipal and provincial elections more
accessible to voters with disabilities. (August 19, 2011 letter to AODA Alliance from Premier
McGuinty)
k) to raise with self-governing professional organizations, (e.g. those which govern
architects, lawyers, doctors, nurses or social workers) the need to include in their
professional training mandatory education on meeting the accessibility needs of persons
with disabilities. (September 14, 2007 letter to the AODA Alliance by Premier McGuinty;
August 19, 2011 letter to AODA Alliance from Premier McGuinty)
l) to ensure that school children in Ontario receive education on disability accessibility, and
that this is included in the Ontario Government's "Character Education" curriculum for
Ontario schools. (September 14, 2007 letter to the AODA Alliance from premier McGuinty;
August 19, 2011 letter to AODA Alliance from Premier McGuinty)
m) to continue making progress under the Accessibility for Ontarians with Disabilities Act.
(August 19, 2011 letter to AODA Alliance from Premier McGuinty)
n) to ensure that Ontario is on schedule for full accessibility by 2025. (December 3, 2012
letter to the AODA Alliance from Kathleen Wynne)
The Government's sputtering into evident paralysis on accessibility is most starkly revealed by
its conduct in 2013. In the middle of that year, its lead minister for the AODA, Dr. Eric Hoskins,
declared that accessibility is a "top priority" for him and the Government. This was quickly
followed by the Government's violating the AODA by not appointing this Independent Review
by the statutory deadline, endlessly stalling a decision on which accessibility standards to make
next, covering up information to which the public was entitled on the AODA enforcement,
failing to keep its commitment to effectively enforce the AODA, stalling for months to make
public its promised plan for AODA enforcement, and failing to incorporate a meaningful
disability legacy in its plans for the 2015 Toronto Pan/ParaPan American Games.
We have keenly felt and experienced this deceleration on accessibility issues in the last three
years. In the past year, for example, we have had to resort to a Freedom of Information
application and asking opposition parties to grill the Government in the Legislature during
Question Period, to try to get action. From 2003 to 2010, we rarely if ever had to resort to any
such recourse, except when dealing with the Government's 2006 legislation to privatize
enforcement of human rights under the Human Rights Code (addressed later in this brief).
We are fortunate and appreciative that the Government has remained open to meeting at all
levels, including the Premier. However, meetings alone have not jolted the Government out of its
recent pervasive inaction on accessibility issues.
Our efforts, documented in this brief, have revealed fundamental problems. Yet none appears to
be rooted in any substantive policy opposition to accessibility, or to mandatory, enforceable
legislation that require that accessibility be effectively achieved in a timely way.
One of the brilliant ingredients in the AODA was its deadline for full accessibility. Yet in recent
years, it appears that the Government is governing itself as if that deadline was lip service to be
ignored. For example, the Government's lethargic, multi-year delays in simply deciding which
accessibility standards to make next, detailed in this brief, show a Government that has forgotten
or chosen to ignore that deadline.
A partial explanation for some of the problems identified in this brief is the fact that no one
minister has a leadership role within the Ontario Cabinet and Government, with full
responsibility and accountability for delivering on all the Government's accessibility
commitments. We have reason to doubt that at least some of the Government's election
commitments on accessibility ever got transmitted to the Ontario Public Service as directives to
be implemented. We have heard from a number of public servants over the years that they first
heard of the Government's accessibility commitments from us, not from higher officials within
the Government. We were told more than once that a Premier's letter to us during an election
campaign is not Government policy unless it is transmitted from the governing party to the
public service through the proper channels.
There are clear instances when the Premier's election commitments to us must have been
transmitted to the Ontario Public Service through the proper channels. In the 2007 election,
Premier McGuinty made detailed commitments, at our request, to improve how AODA
accessibility standards are developed. After that election, those pledges must have been
transmitted to the Community and Social Services Ministry. That ministry acted promptly and
decisively at both the ministerial and public service levels to implement those commitments. In
sharp contrast, several of the Government's 2007 election commitments and many, if not most of
its 2011 election commitments, must not have been similarly transmitted through the proper
channels.
As we became aware of this as a serious problem in late 2011, we tried to get around it. If the
Premier's office was not going to check in with each cabinet minister with responsibility for parts
of the Premier's election accessibility commitments, we decided that we would do it ourselves.
Therefore, on December 2, 2011 we wrote to seven cabinet ministers across the Government, to
identify the Premier's accessibility election pledges that fell within the mandate of each ministry.
We offered to work together with them, and asked for their specific plans for keeping those
promises.
In early 2012 we received seven telling responses, one from each minister. For the most part,
they were non-responsive. Our May 4, 2012 AODA Alliance Update summarized them as
follows:
"In summary, these ministers' letters to us identify a number of helpful initiatives
that have been underway on accessibility. However, they give very little in the
way of specifics on the Government's future plans for new action to keep Premier
McGuinty's election promises. A number of our key inquiries, anchored to
Premier McGuinty's specific election commitments to us, go unanswered.
Where there are direct answers in these letters on the issue of accessibility, the
ministers tend to refer only to their obligations to comply with the Accessibility
for Ontarians with Disabilities Act. They don't generally also refer to their
typically higher and more immediate accessibility obligations under the Ontario
Human Rights Code.
Typically, when a letter from the public comes into a minister's office, it can get
routed to a ministry's communications branch to prepare a reply. Often, that
results in a responding letter from the minister that simply aims to list and
promote the Government's record on the issue which the member of the public
addressed. In other words, it is more of a public relations exercise than a serious
policy re-examination. We leave it to you to assess the letters from each minister
to decide if that was the case here."
For the most part, that non-responsiveness and stultified inaction continued for the balance of
that term of the Government. Those seven letters, and our detailed analysis of them, is available
at http://www.aodaalliance.org/strong-effective-aoda/05042012.asp
We have found that in recent years, the accessibility file has been shuffled from person to person
at the political level. Since the 2011 summer, it has gone through three different Cabinet
ministers, a parade of changing advisors to those ministers, and a seeming revolving door of
political advisors with responsibility for this file at the Premier's office. The two most recent
ministers, John Milloy and Dr. Eric Hoskins, largely seemed absent and unengaged with this
issue, apart from a few isolated instances. Our contact with a diverse number of ministers' offices
across the Government over the past two years has revealed a deeply troubling lack of
knowledge about the AODA, even at the most basic level.
Why has this happened? We reject as incorrect a range of possible explanations for the loss of
momentum. It is not due to the natural slow pace of government. Governments can deliver
quickly when resources or energies are marshalled to that end, and when the Government holds
itself accountable for progress. The impressive speed with which the AODA was drafted and
taken through the entire legislative process proves this.
This loss of momentum is not due to the fact that there was a minority government from October
2011 up to June 2014. No vote in the Legislature was needed to address any of the issues
addressed in this brief, except for the need to strengthen the Elections Act's accessibility
provision. On that latter score, the opposition Conservatives and New Democrats were willing to
present amendments to strengthen the Government's weak Bill 231 in the 2010 spring. As such,
it is not likely that an effort by the Government to implement measures like those in the
opposition amendments to Bill 231 would have met resistance in a minority Legislature. We
would have been active to rally support for any such improvements to elections accessibility.
It is not a question of Government budget restraint. Over the key period, the Government was
annually increasing the budget of the Accessibility Directorate of Ontario, and yet that budget
was never fully spent in any year. It is not a question of the Government not knowing what
needed to be done. The Charles Beer Independent Review had shown the way, as had the many
constructive, practical ideas for action that we presented, often documented in this brief.
It is not a question of declared good intentions. If we had a dollar for every time a public official,
elected or unelected, high or low in the hierarchy, professed their commitment to accessibility,
we would be able to retire the provincial debt.
What we have encountered is a profound lack of leadership within the Government on
accessibility. Whether this was a deliberate decision in the Premier's office, or just a matter of
neglect, is something we cannot unearth. The rudderlessness that this brief repeatedly reveals can
only be remedied by a secure and strong hand on the tiller of government, and a steely
commitment to achieve the goal of full accessibility to which the Government the Premier and
the Legislature have committed Ontario.
What we also discovered time and again is that the Government has had no comprehensive plan
or road map for ensuring that Ontario reaches full accessibility by 2025. It seems that the
Government has never focused itself on how it can use its various powers and opportunities to
ensure that Ontario reaches that goal, beyond enacting and enforcing accessibility standards. As
this brief documents, it has many such levers, which typically involve little if any added public
cost, e.g. the capacity of Cabinet ministers to use their bully pulpits to advocate for accessibility,
the opportunity to use inspectors under other legislation to piggy-back AODA audits and
inspections on inspections that they already conduct, and the opportunity for the Government to
ensure that anyone who receives public money for capital or infrastructure projects, for business
development loans or grants, or for the procurement of goods, services and facilities, never uses
that public money to create or exacerbate disability barriers. In the AODA's first nine years, so
many of these opportunities have been squandered, as this brief documents. It is vital that this
stop.
At the same time the Government professed its commitments on accessibility, we at times had
public officials tell us that against that, the Government requires them to balance the
Government's "Open for Business" policy. We of course, have no objection to the Government
trying to make government services more business-friendly and trying to eliminate pointless,
counter-productive, wasteful or duplicative regulatory burdens. However, it is wrong to consider
disability accessibility to have anything to do with that. It is wrong to treat an "Open for
Business" policy as akin to a watering-down of the duty to accommodate persons with
disabilities, and of the duty to provide accessibility.
This brief shows in instance after instance the extraordinary effort we have had to apply on so
many different fronts to try to get the most rudimentary and obvious action -- action with which
few if any would take real exception. This brief also documents how often our efforts were
rewarded with brick walls resulting from a lack of Government leadership and direction. We
cannot attribute this to the specific personality of a specific minister.
It is our view that the Government needs strong medicine. The gentle and modest findings and
recommendations in the Beer AODA Independent Review's final report did not trigger the
transformative change and new leadership for which that report called, and which Ontario still
needs. This Independent Review comes at a decisive time in the twenty years that the AODA
allocates for Ontario to become fully accessible. The next Ontario Government must get Ontario
back on schedule for full accessibility and must put in place all the measures needed to ensure
that Ontario reaches that goal on time. If it does not, then we fear that there will not be enough
time left to correct this.
We believe that reforms to get Ontario back on schedule for full accessibility do not require
amendments to the AODA. They require the Government to effectively implement the AODA,
and to use its other powers to reinforce the AODA's implementation. We do not want the
Legislature to re-open the AODA. We do not want this Independent Review to recommend any
re-opening of the AODA. We do not want to risk any possibility of its provisions being diluted
or weakened.
All our recommendations in this brief can be achieved without any amendments to the AODA.
The only part of our recommendations which calls for legislative reforms concerns elections
accessibility. Those reforms require amendments to Ontario's Elections Act. They do not require
any amendments to the AODA.
Our proposals also pre-suppose that the Ontarians with Disabilities Act 2001 is not repealed.
Nothing now should be done to diminish any legislation that could contribute to getting Ontario
on schedule for full accessibility by 2025.
We reach the troubling conclusions documented in this brief despite the fact that the Government
has in a number of contexts made good faith efforts at the AODA's implementation, though not
its enforcement. We do not want the avoidable, sad story that recurs, in issue after issue in this
brief, to undermine the efforts or morale of those public servants in the Ontario Public Service
who are deeply committed to the AODA and to accessibility for persons with disabilities, and
who have tried their best to move this issue forward. Rather, we aim for this brief to put wind at
their backs by generating the positive change needed to enable all Ontarians to benefit more from
their dedication, professionalism and energy.
Part II. The Government's Deliberate Failure to Keep Its Promise
to Effectively Enforce the AODA
1. Introduction
A key way for the Government to fulfil its responsibility to lead Ontario to full accessibility by
2025 is to promptly and effectively enforce any and all AODA requirements, as soon as they
become enforceable. As documented later in this brief, AODA standards give organizations
ample, if not excessive time to bring themselves into compliance before AODA accessibility
requirements become enforceable. Moreover, decades before those AODA standards were
enacted, the same or greater accessibility requirements were already mandatory under the
Ontario Human Rights Code, and in the case of public sector organizations, the Charter of
Rights.
To ensure that Ontario reaches full accessibility by 2025, obligated organizations need to know
from the outset that the Government means business about enforcement and will be taking its
enforcement mandate very seriously. Otherwise, organizations will tend to treat AODA
requirements as optional or voluntary, not mandatory.
That has for years been a problem with the Ontario Human Rights Code which led the disability
community to fight so long and so hard for the AODA from 1994 to 2005. Moreover, as
addressed later in this brief, the Government's weakening and privatizing enforcement of the
Ontario Human Rights Code under Bill 107 in 2006 made the AODA's effective enforcement all
the more important.
The following discussion shows that the Government has consistently failed to effectively
enforce the AODA, despite its repeated promises. This is a fundamental deficiency with the
AODA's implementation.
The Government is responsible to enforce all AODA accessibility requirements as they come
into force. The Government's enforcement mandate is not limited to enforcing, in connection
with a limited class of obligated organizations, the filing of an accessibility self-report with the
Government.
The Government's failure to effectively enforce the AODA has several harmful effects. It is
contributing to Ontario falling behind schedule for full accessibility by 2025. It is a major
disservice to, and disrespectful of Ontarians with disabilities. It undermines the efforts of those
who try to persuade and motivate obligated organizations to comply with the AODA. It is unfair
to obligated organizations who do invest the required time and effort to comply with the AODA,
especially where their competitors do not. It gives a counterproductive disincentive to
individuals and community organizations from the disability community to invest their limited
time and scarce resources taking part in AODA implementation activities such as the
development of accessibility standards.
In this part of this brief, we detail the Government's promise to effectively enforce the AODA.
We describe the ordeal we have had to undergo just to find out what the Government was doing
to keep this promise. We describe the substantial and serious failure of the Government to keep
this promise, which we made public in November 2013. We describe why the Government's
privatization of the enforcement of human rights in 2006 under Bill 107 makes it all the more
important that the Government effectively enforce the AODA. Finally, we offer
recommendations on the AODA's enforcement.
2. The Government's Promise of Effective Enforcement of the AODA
Over many years, the Ontario Liberals repeatedly committed to the AODA's effective
enforcement.
Between 1995 and 2003, the previous Mike Harris Conservative Government made it clear that
the Ontarians with Disabilities Act it would enact would not have effective enforcement. It
would be voluntary legislation. In response, the Ontario Liberal Party, then in opposition,
repeatedly blasted the Harris Government. The Liberals commendably argued that legislation is
ineffective unless it is effectively enforced. The Liberals, like the disability community,
inextricably tied the idea of mandatory legislation with the notion of effectively-enforced
legislation. The two go together.
On a pivotal day in the history of our 20-year disability accessibility campaign, October 29,
1998, the Ontario Legislature unanimously passed a resolution, introduced for the Liberal Party
by then-backbench MPP Dwight Duncan. It set out 11 principles that the Disabilities Act must
fulfil. At an ODA Committee news conference immediately after that vote, then-Opposition
leader Dalton McGuinty said that if elected, his party would honour that resolution. That
resolution has, to this day, served as the yardstick by which the content and implementation of
Ontario disability accessibility legislation is measured.
Among the principles that that resolution mandated were these:
"6. The Ontarians with Disabilities Act should provide for a prompt and effective
process for enforcement. It should not simply incorporate the existing procedures
for filing discrimination complaints with the Ontario Human Rights Commission,
as these are too slow and cumbersome, and yield inadequate remedies;"
and
"11. The Ontarians with Disabilities Act must be more than mere window
dressing. It should contribute meaningfully to the improvement of the position of
persons with disabilities in Ontario. It must have real force and effect."
One year later, in the 1999 Ontario election, the Ontario Liberals promised, if elected, to enact a
Disabilities Act that would comply with that resolution. Four years later, in his April 7, 2003
letter to our predecessor coalition, the ODA Committee, then-Opposition leader Dalton
McGuinty wrote the following as part of his 2003 election commitments to us:
"We will introduce, with the intent of passing within one year of forming
government, a strong and effective Ontarians with Disabilities Act, following
fully-accessible, province-wide hearings. It will incorporate all 11 principles that
were adopted by the Ontario Legislature on October 29, 1998. The legislation and
regulations will include timelines, standards and a mechanism for effective
enforcement, and, at a minimum, will reflect the substance of amendments to the
Conservative bill offered by the Liberal party in the fall of 2001."
During public debates over Bill 118 in 2004 and 2005, the Liberal Government's proposed
accessibility law, the promise of effective enforcement was reiterated. On May 10, 2005, right
after the Ontario Legislature unanimously passed the AODA on Third Reading, Dr. Marie
Bountrogianni (the minister who spearheaded the AODA through the Legislature) said the
following at a Queen's Park news conference about the AODA with David Lepofsky, then-chair
of the ODA Committee, at her side:
“Well, once a standard is a regulation, it will be immediately enforceable. Which
means if it's not complied with, there will be fines. Having said that, we do
believe in an education campaign, so that there are no surprises, that people are
educated with respect to what's expected of them. That there will be spot audits
very, much like the environment in the United States uses these spot audits. We're
talking about over three hundred thousand organizations, private and public, that
will be affected. So can't have an inspector going in every one every day. So
there'll be spot audits. Special technology will be used to track these audits, and
where there will be inconsistencies, that is where the inspectors will go in. They
will be given of course chances to remedy their situation. It's not about
punishment. It's about doing the right thing. However if they do not comply, there
is a fine -- fifty thousand dollars for individuals and a hundred thousand dollars
for corporations. So we're serious. That was missing in the previous act. That was
one of the things that was missing in the previous act. And without that
enforcement compliance, when you just leave it to the good will of the people, it
doesn't always get done. And so we know that we know that from the psychology
of human nature. We know that from past research in other areas, like the
environment, like seatbelts, like smoking. And so we acted on the research in
those areas.”
In the 2011 Ontario general election, the Ontario Government repeated this commitment. In his
August 19, 2011 letter to the AODA Alliance, setting out his party's disability accessibility
election commitments for the 2011 election, Premier McGuinty wrote:
"We remain committed to ensuring effective enforcement of the AODA."
Two years later, both Kathleen Wynne, as Premier, and Dr. Eric Hoskins, the minister with lead
responsibility for the AODA's implementation and enforcement from February 2013 up to the
2014 election, promised us in writing during the 2013-2014 Ontario Liberal leadership race that
they would honour all previous Liberal Party disability accessibility commitments.
In the 2014 Ontario election, we asked the major parties to make specific accessibility
commitments regarding the AODA's enforcement. In her May 14, 2014 letter to the AODA
Alliance, Premier Kathleen Wynne wrote:
"B. Ensure that all enforceable requirements under the AODA are effectively
enforced
4. The Ontario Liberal Party is dedicated to pursuing compliance and enforcement
action to bring more private sector organizations into compliance with AODA. To
speak to our track record, 99 per cent of Designated Broader Public Sector
Organizations have submitted their reports by the deadline to date. If I am elected,
I will see to it that this becomes 100 per cent.
We will ensure that organizations that fail to comply with AODA requirements
are met with monetary penalties and be subjected to prosecution, where
necessary. Under my government, we issued the first monetary penalties. I am
committed to using all enforcement provisions under the AODA to ensure that
organizations that do not comply with the law are penalized and to encourage
compliance. To date, my government has issued over 500 Notices of Director’s
Orders and we will continue to send more out monthly. Paired with enforcement
activities, we are actively reaching out to businesses and not-for-profit
organizations to help them understand and follow their obligations under the
AODA.
5. With respect to additional enforcement activities, we commit to investigating
the possibility of having government inspectors and investigators enforce the
AODA within the context of existing resources and as training capacity exists.
6. We will make a detailed plan on all enforcement activities available, along with
establishing and publicizing an accessible toll-free phone number to report
violations of AODA requirements. Unfortunately, communication of the
enforcement plan is on hold during the writ period. I look forward to releasing it
promptly should we win the honour of re-election.
7. To ensure increased transparency going forward, we will make an annual report
publicly available on levels of compliance including the effectiveness of our
enforcement measures."
In her May 11, 2014 letter to the AODA Alliance, NDP leader Andrea Horwath wrote:
"B. Ensure that all enforceable requirements under the AODA are effectively
enforced
New Democrats have been disappointed with the Liberal approach to enforcement
of the AODA.
In the fall of 2013 media reported that the majority of businesses in Ontario were
not in compliance with the law’s reporting requirements; yet no point of orders
had been issued and no audits had been conducted.
This prompted the ministry to send 2,500 enforcement letters to businesses.
However, last November, 70 per cent of companies — about 36,000 across the
province — had not yet filed a report.
Andrea and the Ontario NDP don’t believe that enforcement should happen only
when the media is looking. New Democrats are committed to the full enforcement
of the AODA and will ensure that all agreements are enforced.
A NDP government will make it a priority to issue an enforcement plan that
ensures action."
In his May 12, 2014 letter to the AODA Alliance, Conservative leader Tim Hudak wrote:
"An Ontario PC government is committed to working with the AODA Alliance to
address implementation and enforcement issues when it comes to these
standards."
3. Our Long, Arduous and Frustrating Efforts to get the AODA Effectively Enforced
In 2009, before any accessibility standards could be enforced, we raised early concerns about the
enforcement issue with the Charles Beer AODA Independent Review. In our December 11, 2009
brief to the Beer Independent Review, we wrote:
"As indicated above, the Government has still not made public the process and
machinery for the AODA’s enforcement. The Customer Service Accessibility
Standard becomes enforceable on January 1, 2010. As also indicated above, the
Minister’s August 13, 2009 letter to us reveals the following about the
Government’s plans regarding enforcement:
“The compliance and enforcement approach has been developed to evolve with
new regulations enacted under the AODA. Development of compliance and
enforcement measures will involve risk assessments in order to prioritize
compliance and will encourage close cooperation with organizations to support
them meeting the requirements of the standards. We will also support compliance
by encouraging organizations to exceed the minimum requirements of standards
and to establish industry/sector leadership.
Further information regarding the Accessibility Directorate of Ontario's (ADO)
approach to compliance is currently under development and will be
communicated to stakeholders when finalized.”
This response is quite sketchy and generic. It tells us little. It provides no
assurance that the enforcement will be strong and effective.
The Government’s failure to have established and made public the AODA
compliance/ enforcement mechanism by now does not accord with requirements
in ss. 18 and 26 of the AODA to appoint inspectors and a tribunal or tribunals
within a reasonable time after the first accessibility standard was established. It
impedes this Independent Review from being able to review the effectiveness and
sufficiency of that enforcement mechanism. It prevents the disability community
from giving this Independent Review valuable feedback on the sufficiency of that
enforcement mechanism.
The promised enforcement mechanism should be up and running, and publicized
to the public, before the public is entitled to use it on January 1, 2010. There
should be a meaningful opportunity for the public, including the disability
community, to be consulted on this enforcement mechanism, so that it can be
revised, if needed, in accordance with the input received during that consultation.
There is not enough time for a proper public consultation on this before January 1,
2010. That consultation, if held after January 1, 2010, should not be a cosmetic
exercise, after which the Government simply reaffirms the enforcement
mechanism it had already established, regardless of any feedback received.
We therefore recommend that:
42.
The Government should immediately
a) establish and make public an AODA enforcement mechanism so that it is
available on January 1, 2010.
b) early in 2010, conduct public consultations on the plans for
compliance/enforcement, and then revise this compliance/enforcement
mechanism, if needed, in accordance with the input received from the public….
…As indicated earlier, four and a half years after the AODA was enacted, the
Government has not made public its detailed plans for the enforcement of the
AODA. It has, we understand, had some limited discussions with some in the
public about a draft compliance framework. That compliance framework has not
been made public at the time of writing, if indeed the Government has finalized
it."
In 2010, the Government took none of the steps we recommended to the Beer Independent
Review. We promptly sent the Government a copy of our December 11, 2009 brief to the Beer
Independent Review. Since the Beer Independent Review rendered its report to the Government
in February 2010, and the Government made it public on May 31, 2010, we continued to press
the Government on the AODA's enforcement. We made it clear that it remains a major priority
for us.
On July 15, 2011, in the lead-up to the 2011 Ontario general election, we wrote to the major
parties' leaders seeking election commitments regarding disability accessibility. Among other
commitments, we sought the following:
"E.
Fully Implement Compliance and Enforcement of the AODA
In 2003, the current Government commendably promised effective enforcement
of the AODA. It has not yet implemented all AODA enforcement provisions. We
therefore ask you to commit to:
13. fully implement and provide proper funding
enforcement/compliance provisions by April 2012.
for
all
AODA
14. also mandate Ontario Government inspectors under other legislation to
include enforcement of the AODA in their other activities, where feasible, to
make enforcement more cost-effective."
In the lead-up to the 2011 evidence, in response to our July 15, 2011 letter, Premier McGuinty
reaffirmed his party's promise to effectively enforce the AODA, in his August 19, 2011 letter to
us, quoted earlier in this part of this brief. Shortly after the October 2011 Ontario election, John
Milloy was appointed the new minister responsible for implementing and enforcing the AODA.
By then, the Integrated Accessibility Standards Regulation (IASR) had been enacted. Several of
its requirements were already enforceable. More would become enforceable within weeks.
On November 1, 2011, we wrote Minister Milloy to identify key priorities for him regarding the
AODA. Among other things, we wrote:
"Among the top priorities that we encourage you and your Ministry to consider
first are these: …
…
2. Implementing measures for the effective enforcement of accessibility standards
enacted under the AODA. There are already two standards on the books, but the
full range of enforcement has not yet been fully implemented. In his August 19,
2011 letter to us, Premier McGuinty promised effective enforcement of the
AODA. This echoes his 2003 election promise that the AODA would have
effective enforcement. In addition to having appropriate staff in your Ministry
tasked with enforcement, we urge you to consider designating Ontario
Government inspectors under other legislation to include enforcement of the
AODA in their activities, where feasible."
We similarly raised enforcement as a major priority in February 2013 when Premier Wynne took
over from Premier McGuinty, and assigned Dr. Eric Hoskins with responsibility for the AODA's
implementation and enforcement. In our February 27, 2013 introductory letter to Dr. Hoskins,
we listed the AODA's enforcement as a major priority for him.
As part of our ongoing campaign to get the AODA effectively enforced, we have for years asked
the Government to establish a public phone number where members of the public can call to
report AODA violations. We have acknowledged that the Government is not expected to
investigate every reported AODA violation. Such a number will give the Government a better
picture of what is happening on the front lines of AODA implementation. It would enable the
Government to track data on report violations, to help guide its enforcement efforts and allocate
its enforcement resources. If serious violations are reported, or if repeated reports are received
regarding the same organization, this should trigger increased enforcement efforts.
Publicity of this public number would signal to obligated organizations to take AODA duties
seriously. The absence of such a number signals the opposite to obligated organizations.
The need for this public phone number is all the more pressing because several AODA
requirements include a duty of obligated organizations to make specified information or
documents available to the public on request. This mandates a measure of crowd-sourced
enforcement. If a member of the public requests information to which they are entitled, and they
are not provided it, or the information provided falls palpably short of the AODA's requirements,
the member of the public should be able to report this to the Government for enforcement. An
AODA violation would be readily documented and easily proved.
If the member of the public has nowhere to go with this information, it guts effective
enforcement. It signals to obligated organizations that they need not take the AODA seriously.
On October 29, 2012, fourteen years after the Legislature passed its landmark resolution that
adopted our 11 principles for the Disabilities Act, we had to resort to a grassroots blitz to try to
convince the Government to establish a call-in line to report AODA violations. Face-to-face
discussions with the Government had gotten us nowhere. Called our "Dial Dalton" campaign, we
urged the public to call Premier McGuinty's office to ask what number to call to report disability
barriers and to seek enforcement of the AODA.
It was not until the recent spring 2014 election campaign that the Government finally committed
to establish this public phone number. In her May 14, 2014 letter to us, Premier Kathleen Wynne
committed:
"We will make a detailed plan on all enforcement activities available, along with
establishing and publicizing an accessible toll-free phone number to report
violations of AODA requirements."
4. The Government's Ten-Month Cover-Up of Its Failure to Effectively Enforce the AODA
The extensive efforts that we had to deploy, including resort to Freedom of Information
legislation, to find out how little the Government was doing to enforce the AODA, is a strong
indication of serious problems with the AODA's implementation.
By the start of 2013 no real Government intention to seriously enforce the AODA was shown.
References to enforcement were strikingly lacking or conspicuously downplayed in Government
announcements, emails or web pages about the AODA. The Government appeared fearful to
make clear public statements implying an intention to enforce this legislation. At the same time,
by 2012 or 2013, many obligations under AODA standards had become enforceable.
In recent years, the intensity of central control within the Government of most if not all public
statements was escalating and obvious. As such, this avoidance of public comment on
enforcement of the AODA seemed deliberate, not inadvertent, and appeared likely to come from
the Premier's office, Cabinet Office or the office of the minister responsible for the AODA, or
some combination of the three.
Since 2010 the only public Government comments about AODA compliance about which we
became aware had emphasized the reported high levels of public sector compliance with the
AODA. Ministerial speeches emphasized that upward of 99% of public sector organizations had
reported to the Government that they had complied with the Customer Service Accessibility
Standard. Of course, this only meant that those public sector organizations had filed an
accessibility self-report, self-declaring that they were in compliance. Ministerial invocations of
these statistics did not point out that the Government had not substantially deployed its auditing
and inspection powers to ensure that the high levels of compliance about which the Government
boasted were independently verified as true.
We understood that there had been some very limited enforcement activity focused on the
broader public sector under the Customer Service Accessibility Standard in or around 2010,
when that accessibility standard became enforceable vis à vis the public sector. However, the
Government said nothing about private sector compliance with that standard, or any levels of
compliance with requirements under the IASR that had become enforceable in 2011, 2012 or
2013 (of which there were several).
January 1, 2013 became an especially important date for us. By then, private sector organizations
with at least 20 employees were required to have e-filed with the Government an accessibility
self-report about their compliance with the Customer Service Accessibility Standard.
Therefore, on January 22, 2013 we wrote to Minister Milloy, then still responsible for the
AODA's enforcement. We asked how many private sector organizations had e-filed their selfreports, how many had not, and what the Government's plans were for enforcement. This letter
became a focal point for our activity over the next months on the enforcement issue. In it we
wrote in material part, referring to the Customer Service Accessibility Standard:
"We would like to know how many private sector organizations with 20 or more
employees have filed those required accessibility reports by the December 31,
2012 deadline. Of the private sector organizations who were required to file an
accessibility report by the end of 2012, how many have not filed the required
report? What is the total number of organizations that were required to meet the
December 31, 2012 filing deadline?
We would also like to know in detail what your Government's specific plans and
time lines are for enforcing compliance with AODA standards. For example:
1. What plans does your Government have for enforcement in the case of any
private sector organization with 20 or more employees that has not filed the
required accessibility report for the Customer Service Accessibility Standard?
What financial penalties will you be seeking? What time lines have you set for
various stages of enforcement? In relation to how many such organizations do you
plan to take each successive step for enforcement? In other words, we want to
know what enforcement steps you will be taking, and in relation to how many
organizations.
Enforcement of this reporting requirement should be extremely easy. Your
Ministry will now know which organizations have to report and which in fact
have reported. Either an organization is in compliance or it is not.
2. What plans does your Government have for auditing private sector
organizations for compliance with the Customer Service Accessibility Standard?
For how many organizations per year? The accessibility reports that organizations
must file under the AODA are simply self-reports. In them, an organization states
whether it is in compliance with the standard. A key part of enforcement is going
beyond such self-reporting, lest the legislation be nothing more than a form of
voluntary compliance.
Enforcement here as well should be easy to do. The Customer Service
Accessibility Standard requires that organizations have certain required
documentation regarding their accessibility policies, practices, training and
customer feedback systems. It should be readily apparent to any Government
officials who take enforcement steps under the AODA that an organization either
has the required documentation, or it does not.
3. We appreciated receiving a briefing some months ago about initial compliance
initiatives regarding public sector organizations. Building on that information,
what steps has your Government taken since 2010 to audit compliance by public
sector organizations with the Customer Service Accessibility Standard? How
many public sector organizations must comply with that standard? How many
have been audited? What has been the aggregated result of these audits? In what
number and in what percentage of cases were the audited public sector
organizations in full compliance? To what extent, if any, did the audits reveal a
situation different from that found in that organization's accessibility report that it
had filed with the Ministry?
4. In how many cases has the Ministry levied a financial penalty against a public
sector organization for non-compliance with the Customer Service Accessibility
Standard? What was the amount of the fines, if any? Were there any appeals from
these fines? If so, what was the result of the appeals?
5. What plans does the Ministry now have to go beyond auditing an organization's
documentation? It is not good enough for an organization to have required pieces
of paper on file, or in a computer. It is important for these documents to be
translated into actual removal and prevention of barriers against persons with
disabilities in customer service.
6. What specific plans does your Government have for enforcing the requirements
of the Integrated Accessibility Regulation? It addresses barriers against persons
with disabilities in transportation, employment, public spaces, and information
and communication. A number of its provisions have already gone into effect, or
will shortly go into effect.
7. What steps has your Government taken to date to publicize to obligated
organizations that it will be actively enforcing these standards? What plans does
the Government have for conveying this to obligated organizations now or in the
future?
There is no good reason why all organizations would have not filed an
accessibility report on the Customer Service Accessibility Standard and to have
implemented that Standard's other requirements by now. Private sector
organizations in Ontario with 20 or more employees have had a great deal of time
to comply with it. This accessibility standard was enacted back in July 2007, over
five years ago.
Public sector organizations were required to file accessibility reports regarding
their compliance with this Standard much earlier, over two years ago. Your
Government has made available free resources to aid organizations to comply.
Your Government has several times made public the high percentage of broader
public sector organizations that have reported their compliance with the Customer
Service Accessibility Standard.
Many Ontarians with disabilities were very appreciative during the previous Mike
Harris Conservative Government in Ontario, when your Party vigorously argued
that to be meaningful, disability accessibility legislation had to be enforced, and
not voluntary and self-enforcing. Your Party spearheaded the landmark October
29, 1998 resolution, introduced by MPP Dwight Duncan, and which the
Legislature unanimously passed on October 29, 1998. That resolution called for a
Disabilities Act that, among other things, would be effectively enforced.
In both the 1999 and 2003 elections, your Party promised a Disabilities Act that
would fulfil the Legislature's October 29, 1998 resolution. Therefore, your party
has promised effective enforcement in writing in three different elections in 1999,
2003 and 2011.
Your Government's current approach to the enforcement of this legislation is
critically important to us. How your Government approaches organizations that
are not complying with the simple and basic requirement to file accessibility
reports under the Customer Service Accessibility Standard, as well as to all other
requirements under the various standards enacted under the AODA, is a litmus
test of the Government's oft-repeated promise of effective enforcement of this
law. Obligated organizations will be watching the Government, to see if it means
business about enforcing the AODA. If the Government does not effectively
enforce as simple a requirement as the filing of accessibility reports under the
Customer Service Accessibility Standard, this will signal whether they need to
expect any enforcement of the substantive accessibility requirements in the
various AODA accessibility standards.
We recognize that enforcement must be coupled with other strategies to best
ensure that the AODA is effectively implemented. However, without effective
enforcement, we fear that any other strategies would pale, as the AODA would
fade into voluntary legislation that your Party rightly condemned as inadequate,
during the previous Harris Government.
We would appreciate hearing back from you as soon as possible, with as many
specifics as possible. The time has come when the Government must act, to fully
and effectively enforce this important legislation."
We understood that the Government could easily punch up information on numbers of private
sector organizations had e-filed these reports. Any e-filing system should be able to quickly
generate those statistics. Moreover, as noted earlier, in 2010 and afterward, the Government
proudly announced such statistics for the public sector. The Government has never claimed to us
that it could not easily get this information about the private sector at the push of a button.
Neither Minister Milloy nor his successor Minister Hoskins (who took over this portfolio in late
February, 2013) ever voluntarily answered this letter. On February 27, 2014, we wrote to Dr.
Hoskins to outline top AODA priorities, as he took on his new role. Among other things, we
wrote:
"Ontario now confronts both a real challenge and an important opportunity. We
are now behind schedule for achieving full accessibility by 2025. Only 12 years
remain to reach that mandatory destination. We need decisive new action now. In
this letter, we offer practical ways to get Ontario on schedule:…
…
2. Promptly Announcing and Implementing Measures to Effectively Enforce
Accessibility Standards enacted under the AODA.
There are already two enforceable accessibility standards on the books under the
AODA, the Integrated Accessibility Standard (which addresses barriers in
transportation, employment and information and communication) and the
Customer Service Accessibility Standard. In the 2003 and 2011 elections, former
Premier McGuinty promised that your Government’s Disabilities Act would be
effectively enforced. However, the Government has not yet effectively deployed
the enforcement powers it enshrined in the AODA. Obligated organizations
cannot be expected to take this law seriously if it is not effectively enforced.
We wrote your predecessor, Minister John Milloy, on January 22, 2013, to ask for
specific information about your Government’s past actions and future plans for
enforcing this important legislation, and to urge prompt action. We have received
no response to that inquiry. Responsibility for that inquiry now rests with you and
your Ministry. We would appreciate a response to, and effective action on our
letter to Minister Milloy. The AODA Alliance’s January 22, 2013 letter to
Minister Milloy about enforcement of the Accessibility for Ontarians with
Disabilities Act is available at http://www.aodaalliance.org/strong-effectiveaoda/01242013.asp
In addition to having appropriate staff in your Ministry tasked with enforcement,
we urge you to designate Ontario Government inspectors under other legislation
to include enforcement of the AODA in their activities, where feasible. We also
urge you to make it clear to the public that this legislation will be effectively
enforced."
On March 4, 2014, we also wrote to Premier Wynne to identify disability accessibility for her as
premier. Among other things, we urged her to make sure that Dr. Hoskins treats the items we had
identified for him in our February 27, 2013 letter to him as a top priority. We wrote in material
part:
"1. Please direct the Minister of Economic Development, Trade and Employment
to make disability accessibility a top priority. This should be the case when his
Ministry is implementing and enforcing the Accessibility for Ontarians with
Disabilities Act, and in all his Ministry’s work in the areas of economic
development, trade and employment."
The Government did worse than merely remaining silent for months in the face of our request for
information on AODA enforcement. On April 22, 2013, the Toronto Star reported that a senior
Government official suggested that the Government did not know how many organizations were
complying with the AODA. We challenge the veracity of that claim.
The Toronto Star's April 22, 2013 edition included an article reporting on a Toronto Spring Rolls
restaurant's refusal to accommodate the needs of a patron accompanied by a Hearing Ear
service dog (addressed in more detail later in this brief). This article also stated:
"A spokesman for Economic Development and Trade Minister Eric Hoskins, who
oversees disability issues, was unable to say how many businesses have filed their
customer accessibility reports.
“We still have work to do to improve the number,” said Gabe DeRoche.
Lepofsky said the Spring Rolls incident is an example of why the government,
which has promised to enforce the act, must do more."
Our April 23, 2013 AODA Alliance Update stated:
"In sharp contrast, the Ontario Government was readily able to proudly report to
the public on how many public sector organizations had filed the required
accessibility reports under that accessibility standard. Here is what Community
and Social Services Minister Meilleur said in the Legislature on May 31, 2010 re
compliance with the Customer Service Accessibility Standard by the broader
public sector as of that time:
“Accessible customer service is now a requirement for our broader public sector,
and 96% of Ontario's broader public sector has either reported full compliance
with the standard or is in the process of reporting.” Minister Meilleur’s May 31,
2011 statement in the Ontario Legislature is available at
http://www.aodaalliance.org/strong-effective-aoda/06132010.asp
One year later, on May 24, 2012 then Assistant Deputy Minister of Community
and Social Services Ellen Waxman (who was responsible for the Accessibility
Directorate of Ontario) reported the following according to her PowerPoint slides
presented at an international conference on information technology accessibility,
held at Toronto’s Ontario College of Art and Design University:
"Designated public sector organizations were required to comply by January 1,
2010.
• These include the Ontario Government, municipalities in Ontario, schools,
hospitals, colleges and universities
• We are pleased to report that a 100% of BPS Organizations have reported their
compliance with the customer service standard."
Ellen Waxman’s May 24, 2012 speech PowerPoint slides can be seen at
http://www.aodaalliance.org/strong-effective-aoda/06292012.asp
It is hard to believe that the Government cannot quickly figure out how many
private sector organizations have filed the required accessibility reports, and how
many have not."
Eventually, we started a daily count on Twitter. We reported the number of days that our inquiry
remained unanswered. We know that the Government closely follows our Twitter tweets. We
also informally warned the Government that a Freedom of Information Act application would be
filed if our letter remained unanswered.
The Government's silence on our inquiry continued. During the lead-up to the August 1, 2013
Ontario by-elections in five Ontario ridings, we asked the candidates for disability accessibility
commitments. Included was the following:
"4. Will you support our call for the Government to act now to effectively enforce
the Disabilities Act, and to reveal its plans for enforcing this important law?"
The Liberal Party's response for the Government did not make this commitment. It came from
Peter Milczyn, candidate in the Etobicoke-Lakeshore riding. Such responses are typically
scripted from the party's centre, not by the candidate alone.
Mr. Milczyn did not say he supported our call for the Government to now act to effectively
enforce the AODA, and to make public its plans for doing so. He referred to the Government’s
enforcement powers, but not to any specific plans to use them. He evasively stated:
“Our goal is to support organizations in meeting their accessibility requirements
across the province. Our government works directly with organizations by
providing free tools and resources to help organizations understand and meet their
accessibility requirements. Organizations are responsible for submitting online
self-certified reports indicating their compliance with the accessibility standards.
Failing to do so may result in monetary penalties and/or prosecution through the
courts.”
Finally, out of deep frustration, on August 15, 2013, the AODA Alliance chair David Lepofsky
personally filed a Freedom of Information Act application, and made it public via our email
Updates, our website, Twitter and our Facebook page. By then, 203 days had passed since we
had written the Government to ask for its plans to keep its pledge to effectively enforce the
AODA.
This Freedom of Information application asked how many private sector organizations have filed
mandatory Accessibility Reports under the AODA, how many did not do so, what the
Government had done and plans to do to enforce the AODA and how many officials have been
designated under the AODA as enforcement “directors” and “inspectors.” It asked for any
directions or instructions sought or obtained on how extensively the AODA will be enforced.
Among other things, it asked how many organizations have been audited or inspected under the
AODA, how many have been written to notify them that they need to comply, and how many
have been issued a compliance order or administrative penalty for non-compliance. It asked to be
told how much money the Government budgeted for the Accessibility Directorate each year, and
how much money it actually spent each year.
To speed up the process of fulfilling this application, the AODA Alliance chair offered to clarify
or narrow it, if needed, in discussions with the Government, so long as our core goals were
achieved. Some such discussions were held. The text of David Lepofsky's August 15, 2013
Freedom of Information application is available at http://www.aodaalliance.org/strong-effectiveaoda/08152013.asp
Some six weeks after this Freedom of Information application was filed, on October 2, 2013, the
Government emailed David Lepofsky to advise that to get the information he requested, the fee
would be approximately $2,325.00. That email required a down payment up front, stating:
“If you would like us to continue to process your request please provide a cheque
of $1,162.50 made out to the Minister of Finance for 50% of the Fee estimate
within 30 days upon receipt of this letter.”
On October 2, 2013, David Lepofsky promptly responded by email, asking the Government to
waive this hefty fee. Lepofsky had earlier been told that the Government has discretion to waive
such fees. He emphasized that he is the volunteer chair of a volunteer public interest community
coalition. It is the widely-recognized coalition to whom all major Ontario political parties have
made election promises, and to whom the Liberal Government made the promise to effectively
enforce the Disabilities Act. He argued that the information he sought is the kind that would or
should have been sought by the new minister responsible for enforcing the Disabilities Act, Dr.
Hoskins, and that this Independent Review would need.
On October 21, 2013, the Government asked for the AODA Alliance’s financial statements. It
said it needed these to help decide whether to waive the $2,325 fee.
On the next day, October 22, 2013, David Lepofsky wrote the Government to let it know that the
AODA Alliance has no financial statements. The AODA Alliance is an informal,
unincorporated, community coalition. It has no money, no bank accounts, no real or personal
property, and no financial statements. Ironically, the Government created this latest delay in our
effort to unearth its AODA enforcement plans on the very day that Premier Kathleen Wynne
announced a new strategy to ensure a more open Ontario Government, and greater accessibility
of the Government’s information.
During Question Period in the Legislature on October 29, 2013, NDP Opposition MPP Cheri
DiNovo tried without success to get answers from the Wynne Government on why the
Government wanted to charge Lepofsky $2,325 to answer his Freedom of Information request.
Dr. Hoskins replied by applauding his Government’s work but ducked Ms. DiNovo’s question.
On October 31, 2013, the Toronto Star ran a hard-hitting editorial. It called on the Ontario
Government to make public its plans for AODA enforcement. It is a rare and important boost to
our efforts when a newspaper runs an editorial backing us. The Star editorial included:
"Ontario Premier Kathleen Wynne has promised "open and transparent." Now's
her chance to fulfill that promise. Premier Kathleen Wynne has promised an
“open and transparent” government more times than it’s possible to count. So it’s
particularly perplexing that Ontario’s Ministry of Economic Development has
refused to give a volunteer group for the disabled important information on hardwon rights for equality.
They’re looking for details on the compliance and enforcement of the province’s
standards for accessibility in private businesses and organizations. In other words,
the very information that would prove whether the Accessibility for Ontarians
with Disabilities Act is actually working — or not. The government’s response so
far isn’t anywhere close to “open and transparent.” That’s a shame.
Wynne must prove her promises of accountability are principled and not just
empty words. The information should be provided as soon as possible, for the
benefit of all Ontarians who are disabled. The public should not be kept in the
dark about the successes or failures of the law. Since the roll-out of the new rules
won’t be completed until 2025, it’s especially important to keep a close watch on
the system.
Problems — like lack of compliance and enforcement — should be fixed as soon
as possible. If the act fails to embrace the needs of the disabled in everyday life —
something as simple reaching an office in a wheelchair — then what’s the point of
moving forward with new rules that don’t work?
The obfuscation began in January when David Lepofsky, chair of the volunteer
group Accessibility for Ontarians with Disabilities Act Alliance, asked the
ministry for information that would determine if the new standards were having
any effect. Lepofsky, who is blind, wanted to know how businesses had to file the
new online compliance reports; how many actually did file; and what, if any,
enforcement action, including hefty fines, was taken against those not following
the new rules.
“They made a fundamental commitment to us and we want to know what they’re
doing about it,” Lepofsky says. It’s a reasonable request for accountability.
Companies with 20 or more employees are among those that are now supposed to
fill out these online reports. They must state whether they comply with the act’s
accessibility standards, which focus on areas like employment, transportation and
customer service. One question, for example, asks if service dogs are allowed on
the premises. The ministry’s response was unfortunate.
Lepofsky said he received no response despite months of requests for the
electronic data. He gave up in August and filed a freedom of information request.
Instead of getting the files, he received a letter informing him of a $2,325 charge
to process his request — an impossible amount for his small volunteer group to
pay. On Tuesday, NDP MPP Cheri DiNovo asked about the request in the
legislature and received a similarly opaque answer from Economic Development
Minister Eric Hoskins, who said a five-year routine review of the act is underway.
Unfortunately, that response doesn’t meet the premier’s new transparency
standards. As DiNovo says, “It’s egregious that no one knows whether the law is
being enforced.” She’s right.
Since DiNovo raised the issue, the government has offered to lower the freedom
of information processing fee. That may be well-intentioned but it’s an
insignificant development, to say the least. Ontarians have a right to scrutinize the
implementation of important standards that — on paper — support the basic
rights of so many. It’s a sad statement that a government that uses transparency as
a slogan won’t allow disabled citizens to see whether there’s any truth to the act’s
promise for change."
It was only after the Government received a double-barrelled blast, in the Legislature and then in
the media, that it agreed in early November 2013 to waive its fee, and to provide the information
we sought over ten months earlier. Once we received it, the Government's reason for keeping it
from us and the public for so long became obvious. The only reasonable conclusion was that the
Government withheld this information because it was so transparently and overwhelmingly
damaging.
5. The Truth Revealed - the Government Knew for Months of Massive Non-Compliance
with the AODA, but Refused to Effectively Enforce the Law, Despite Having Funds to Do
So, Ample Enforcement Powers, and a Detailed Enforcement Plan on Hand
On November 18 2013, we made public, and the Toronto Star reported, shocking information
that took us over ten months to unearth. The Government had known for months that fully 70%
of Ontario private sector organizations with at least 20 employees had not complied with the
AODA's self-reporting requirement, even ten months after the December 31, 2012 deadline. Yet
the Government was not effectively enforcing this law, despite having ample unused funds on
hand for this, despite knowing of this high rate of AODA violations, despite having ample
statutory enforcement powers, and despite having an internal enforcement plan on hand that the
Ontario Public Service had prepared.
Our November 18, 2013 news release stated:
"Government Records Reveal Triple Affront To Over 1.7 Million Ontarians With
Disabilities: Thousands Of Ontario Organizations Violating Ontario’s Disability
Accessibility Law’s Reporting Requirement - Government Breaching Its Promise
To Effectively Enforce This Law - 24 Million Dollars, Allocated From 2005 To
2013 to Government Agency To Implement/Enforce This Law, Go Unspent.
November 18, 2013: Toronto: The Ontario Government has finally admitted that
a staggering 70% of private sector organizations in Ontario with at least 20
employees are violating Ontario’s 2005 disability accessibility law’s reporting
requirement. Making this worse, the Government has flagrantly broken its
promise to effectively enforce this law, despite unused appropriated public
funding available for it. Ontario’s 2005 Disabilities Act requires the Ontario
Government to lead Ontario to become fully accessible to people with disabilities
by 2025.
These revelations are all shown in Government documents that the non-partisan
AODA Alliance pried from the Government, after a 287-day ordeal to unearth
this information. A key four-page Government document including the pivotal
information is set out at the end of this news release.
1. Rampant Violations of Disabilities Act Reporting Requirement
Under a 2007 regulation, private sector organizations in Ontario with at least 20
employees were given a lengthy five years to take modest steps. It required them
to adopt a customer service accessibility policy (to help accommodate customers
with disabilities), to train their staff on this policy, and to establish a customer
feedback process. By December 31, 2012, private sector organizations with at
least 20 employees were required to e-file with the Government a report simply
self-declaring if they did what they are required to do.
By the end of 2012, only 7,983 private sector organizations with at least 20
employees had filed the simple mandatory report. The Government wrote to these
organizations this summer to remind them. As of November 3, 2013 this number
only increased to 15,293, about 30% of the total number of Ontario private sector
organizations required to obey this requirement.
Government records report that until recently, the Government pegged the total
number of Ontario private sector organizations with at least 20 employees at
60,000. The Government now says that the lower total of 51,421 is more accurate,
based on Statistics Canada. Even with that 20% reduction, fully 70% of obligated
Ontario private sector organizations are now violating the accessibility law’s
simple reporting requirement, after five years to be ready.
This only relates to the e-filing requirement. The Government cannot say how
many of the 30% of private organizations which filed the mandatory reports, have
actually done what the law says they must do, to ensure accessible customer
service for customers with disabilities.
2. Broken Government Promise to Effectively Enforce the Disabilities Act
In the 2003 and 2011 elections, Ontario’s Liberal Government promised to
effectively enforce this legislation. Yet the recently-revealed Government
information also shows that the Ontario Government has been palpably derelict in
its duty to enforce this law.
Under the Disabilities Act, the Government must appoint one or more directors
and inspectors to audit and inspect public and private sector organizations across
Ontario, and can levy monetary administrative penalties. Government records
reveal that for this huge province, it now has a paltry two directors and one
inspector, to enforce the entire Disabilities Act. It has conducted no inspections of
any organizations and a paltry percentage of audits. It has issued no compliance
orders and imposed no monetary administrative penalties.
On May 10, 2005, when the Legislature unanimously passed the Disabilities Act,
the Government proudly proclaimed at a Queen’s Park news conference that there
would be spot audits, inspections, and available monetary penalties and
enforcement for violators. Then-Minister Marie Bountrogianni reiterated why it is
important for the AODA to be effectively enforced, not voluntary, referring to the
previous Conservative Government’s weak and unenforceable disability law:
“They will be given of course chances to remedy their situation. It's not about
punishment. It's about doing the right thing. However if they do not comply, there
is a fine -- fifty thousand dollars for individuals and a hundred thousand dollars
for corporations. So we're serious. That was missing in the previous act. That was
one of the things that was missing in the previous act. And without that
enforcement compliance, when you just leave it to the good will of the people, it
doesn't always get done. And so we know that we know that from the psychology
of human nature. We know that from past research in other areas, like the
environment, like seatbelts, like smoking. And so we acted on the research in
those areas.”
3. 24 Million Unspent Public Dollars Allocated to Government Agency to
Implement/Enforce Disabilities Act Since 2005
The Government has no excuses. This breach of promise is not due to the
provincial deficit, or a lack of funding for the Government’s office charged with
responsibility for implementing and enforcing the Disabilities Act, the
Accessibility Directorate of Ontario. That Directorate has consistently had
substantial unspent funds and a clear legal mandate to enforce this law.
Government records reveal that that office has operated well under budget each
year since 2005, the year the Disabilities Act was enacted. Between 2005 and the
present, fully $24,264,833.00 has been unspent that was allocated to it.
Here is how much the Government annually appropriated to the Accessibility
Directorate, and how much per year it spent.
2005-06 Budget = $ 7,284,800.00
2,819,740.00
2006-07 Budget = $10,284,800.00
2,508,672.00
2007-08 Budget = $10,284,800.00
879,328.00
2008-09 Budget = $14,784,800.00
2,350,364.00
Actuals = $ 4,465,060.00
Difference = $
Actuals = $ 7,776,128.00
Difference = $
Actuals = $ 9,405,472.00
Difference = $
Actuals = $12,434,436.00
Difference = $
2009-10 Budget = $17,617,000.00
4,817,222.00
2010-11 Budget = $16,468,100.00
4,224,069.00
2011-12 Budget = $17,600,300.00
3,116,538.00
2012-13 Budget = $16,446,500.00
3,548,900.00
Actuals = $12,799,778.00
Difference = $
Actuals = $12,244,031.00
Difference = $
Actuals = $14,483,762.00
Difference = $
Actuals = $12,897,600.00
Difference = $
4. Conclusions – Appalling Abdication of Government’s Duty to Effectively
Enforce the Disabilities Act
“Before this new revelation, an important Government-appointed 2010
Independent Review of the Disabilities Act urged the Government to show new
leadership under the Disabilities Act, and to revitalize its implementation of the
Disabilities Act. The Government has inexcusably fallen down on the job,” said
David Lepofsky, who chaired the non-partisan coalition that campaigned to pass
the disabilities act from 1994-2005, and now chairs the coalition that fights to get
it effectively implemented and enforced. “Accessibility is good for business and
for the public. It helps the bottom line by opening up business to more customers
with disabilities. The Government said this is a top priority. Their inaction speaks
far louder than their hollow words.”
“It is important for the Government to give organizations the information they
need to comply with this law, and only to resort to enforcement when all else
fails, but it now has been over 8 years since the Disabilities Act was passed, over
5 years since the customer Service Accessibility Regulation was passed, and over
10 months since the deadline for e-filing accessibility reports,” said Lepofsky.
“Enough is enough!”
The Government has kept this embarrassing information from the public for
months. Back on January 22, 2013, the AODA Alliance wrote the Government to
find out how many organizations were complying with the Disabilities Act, and
what the Government planned to do with those who don’t comply. For 287 days,
the Government did not answer.
Fed up, on August 15, 2013, AODA Alliance chair David Lepofsky filed a
Freedom of Information request to get this information. On October 2, 2013, the
Government told him it would cost him about $2,325 to get the answers he
sought.
Ten days ago, the Government finally agreed to disclose the requested
information. This came only after an embarrassing exchange during Question
Period in the Ontario Legislature with NDP MPP Cheri DiNovo and after a
blistering October 31, 2013 Toronto Star editorial."
The information that the Government disclosed in answer to the Freedom of Information
application included the following regarding deployment of the Government's AODA audit and
inspection powers:
"7.
How many public sector organizations have been audited or inspected for
compliance with the AODA or accessibility standards enacted under it by 2010,
broken down by year if possible.
MINISTRY RESPONSE:
2010
Audits = 36
2011
Audits = 41
2012
Audits = 200
2013
Audits = 0
Inspections = 0
Inspections = 0
Inspections = 0
Inspections = 0
COMMENT: There were no reporting requirements in 2012 so therefore no audits
were necessary in 2013. Public sector organizations are submitting their second
compliance report in 2013.
8.
How many private sector organizations with at least 20 employees have
been audited or inspected for compliance with the AODA or accessibility
standards enacted under it?
MINISTRY RESPONSE:
2013
Audits = 1428
Inspections= 0"
Under the AODA, the Government is obliged to appoint one or more directors (s.
30) and inspectors (s. 18) to discharge important enforcement functions. We
revealed that for the entire province, and the hundreds of thousands of obligated
organizations who must comply, the Government had done as little as it could to
ensure enough directors and inspectors to handle this work. The Government's
response to David Lepofsky's Freedom of Information application included:
"16.
The number of
a)
directors appointed under s. 30 of the AODA in total since the AODA was
enacted;
MINISTRY RESPONSE:
4
b) directors appointed under s. 30 of the AODA now working within the Ontario
Government or under its authority;
MINISTRY RESPONSE:
2
c) inspectors appointed under s. 18 of the AODA per year since 2007; and
MINISTRY RESPONSE:
2
d) inspectors appointed under s. 18 of the AODA now employed in or on behalf
of the Ontario Government.
MINISTRY RESPONSE:
1"
The Toronto Star's November 18, 2013 report on this bore the headline: "Ontario businesses
ignore provincial accessibility law; Queen's Park not enforcing legislation, activist says." The
Star reported that Minister Eric Hoskins, was “upset” about the lack of compliance. The Star
report included the following:
""I believe we are not doing enough to make sure companies and organizations
are complying with the standards," he said in an interview. "The percentage of
compliance is unacceptably low."
Since taking over the portfolio in February, Hoskins said he has doubled the
number of businesses in compliance from about 7,000 to 15,000.
He ordered the ministry to send information notices to every business last spring
and again last summer. On Monday, he is sending out 2,500 enforcement letters.
"I will pursue vigorously those businesses that don't respond," he said.
As for the $24 million in unspent funds to oversee the law, Hoskin predicted that
once enforcement measures begin, spending will increase.
"Until Dec. 31, 2012, we really only had the ability to increase awareness," he
said. "This calendar year, we have turned our attention to identifying those that
didn't comply."
Ontario's 2005 disabilities act requires the government to ensure the province is
fully accessible by 2025.
"Professionally, this is one of my top priorities as a minister and I have worked
very seriously on this," he added.
A 2010 independent review of the disabilities act urged the government "to show
new leadership" and "revitalize" implementation of the law.
But these latest documents show the government has fallen down on the job of
serving the province's 1.7 million Ontarians with disabilities, Lepofsky said.
"The government said this is a top priority," Lepofsky said. "Their inaction speaks
far louder than their hollow words. I'd hate to see what it would be like if it was a
low priority.""
The quotation attributed in that Toronto Star article to Minister Hoskins revealed a fundamental
misunderstanding or misstatement of his basic duties under the AODA. There were a number of
important requirements under accessibility standards that were enforceable well before the start
of 2013. Yet the Minister reportedly did not know this. This is shown where the Star article,
quoted above, stated:
"Until Dec. 31, 2012, we really only had the ability to increase awareness," he
said. "This calendar year, we have turned our attention to identifying those that
didn't comply."
This article revealed the Government's "spin" on this issue. The Government has repeated it
several times since then. The Government claimed that it had "doubled" the number of
organizations that are complying, this only refers to the requirement to e-file a self-report, not the
more important requirement to take specific measures to ensure accessible customer service.
Moreover, "doubling" the number of complying organizations gives a misleadingly rosy picture.
That "doubling" is a tiny drop in a huge bucket. According to the Government, by the end of
2012, only 7,983 private sector organizations with at least 20 employees had filed the mandatory
accessibility self-report. By November 2013, this had only risen to 15,293 organizations. There
were still 70% of private sector organizations with at least 20 employees that had not filed.
Seventy percent of these organizations still had not filed, even using the Government's lower
figure for the total number of organizations of that size.
Moreover, this is even a smaller fraction of the entire private sector. The clear majority of private
sector organizations, those with fewer than 20 employees, had no e-filing requirement. The
Government had taken no steps to monitor or enforce regarding those smaller organizations,
despite having ample statutory powers to do so.
Media coverage of this story spread over the next days, including CBC Radio around Ontario,
the Hamilton Spectator, and Toronto’s CFRB 1010 News Talk Radio. On November 18, 2013,
the day this story broke in the media, the Government responded by taking the unusual step of
having one of its own MPPs ask Dr. Hoskins about the AODA’s enforcement, in Question
Period. The Government put to Minister Hoskins the very questions that we had been trying
without success to get the Government to answer since at least January 22, 2013. Usually, the
Government uses Question Period to ask its own minister a question when it has good news to
report.
Minister Hoskins responded in Question Period that he takes the AODA’s enforcement “very,
very seriously.” He agreed that not enough businesses have complied with the AODA’s
Customer Service Accessibility Standard and that this is “unacceptable.” He said his goal is to
enforce the law until full compliance is reached.
Minister Hoskins departed from the Government's multi-year unwillingness to say virtually
anything about taking enforcement steps in the case of non-compliance. He announced:
“the next two weeks, we will be sending warning notices to businesses that have
failed thus far to file compliance reports. Failure to comply, failure to file, will
result in penalties.”
He also said:
“To increase the number of organizations that have filed their customer service
standard compliance report, we will work with the Accessibility Directorate of
Ontario to promote the customer service standard and fine those organizations
that, after multiple warnings -- I repeat, multiple warnings -- have not yet
complied.”
In contrast, months earlier, on May 28, 2013, NDP MPP Cheri DiNovo tried without success to
get Dr. Hoskins to answer a question in Question Period about the AODA’s enforcement. He
ducked that question.
On the day after we broke this story, November 19, 2013, the Toronto Star ran a blistering
editorial. It blasted the Ontario Government for failing to effectively enforce the AODA. It
echoed our call for the Government to bring forward an enforcement plan. For there to be two
major newspaper editorials on AODA enforcement within a matter of weeks is extremely
exceptional in our 20-year campaign for accessibility in Ontario. The editorial stated:
"Enforce the rules
Imagine a blind person with a guide dog is turned away from a store or restaurant.
Not only is that refusal a sign of bad judgment, it's also a breach of Ontario's
accessibility law.
Unfortunately, the 2005 legislation that promised equal access for the disabled
within Ontario businesses has actually accomplished very little. And that should
be an embarrassment for the provincial government.
After all, the Liberals got a moral boost by passing the Accessibility for Ontarians
with Disabilities Act. But the reality is that the act is little more than whimsical
window dressing because the vast majority of businesses don't comply with the
basic rules. To make matters worse, the government has done nothing to enforce
those rules. It's a sham.
As the Star's Laurie Monsebraaten reports, 70 per cent of Ontario's private
businesses with 20 or more employees (about 360,000 across the province) have
not bothered to comply with the law's most basic reporting requirements. That
rule says businesses had to file an electronic report with the government by Dec.
31, 2012, detailing how they accommodate disabled customers, train staff and
listen to feedback.
The time to take action is long overdue.
The government should immediately tell the public, through a comprehensive
plan, how it will finally enforce these hard-won rights. This plan must detail
follow-up for inspections, compliance orders and fines. It is these requirements
that give the law teeth and it's now clear that without proper enforcement, little
improvement will be made.
The data analysis comes from lawyer David Lepofsky, of the non-profit
Accessibility for Ontarians with Disabilities Act Alliance. According to
Lepofsky's analysis, using government documents obtained through a freedom of
information request, not one of the businesses in violation has faced a compliance
order or fine. That's just wrong.
It's not bad enough that it took the Ministry of Economic Development 11 months
to provide Lepofsky with the information he requested. Now, as he says, it turns
out that the laws are largely irrelevant, and it's clear why the government did not
want to produce the documents.
It's not going to harm businesses to answer questions, especially for such basic
rules as accepting service dogs or training workers to interact with people of
various disabilities.
And it's not too much to demand that the government fulfil its promise for
equality - or just admit that it's doing nothing to help the disabled."
Later on November 19, 2013, NDP MPP Cheri DiNovo raised the same issue with Minister
Hoskins in Question Period. He answered:
“Since becoming minister, I’ve taken this issue extremely seriously. During my
tenure as minister and minister responsible for the AODA, we have doubled the
number of businesses that now are complying. In September, I asked the ministry
and they sent out more than 50,000 letters; 2,500 enforcement letters are going
out this week, Mr. Speaker. This is an issue that I take very seriously.
To some extent, unfortunately, I have to admit that in the AODA legislation itself,
as was passed unanimously by this Legislature, the mechanism for enforcement is
in some respects cumbersome in terms of the process that we have to follow. For
that reason, we are following the process as outlined in the law, but I am working
on this vigorously. I intend to go as far as we need to to get full compliance.”
He also said:
“I want to say, because this is important, on the positive side as well, many
businesses have complied. But we have 100% compliance for this act as well as
for this standard in the entire Ontario public service and the agencies this
government is responsible for.
We are working on this vigorously, and I’m prepared, if necessary, to issue
further enforcement letters, including fines, until businesses comply.”
Minister Hoskins made claims on November 19, 2013 that deserve scrutiny. He said that "Since
becoming minister, I’ve taken this issue extremely seriously.” Earlier in 2013, he described
accessibility as a top priority.
Yet inaction speaks much louder than such words. It took over 275 days, a Freedom of
Information application, questions in Question Period, and two pointed Toronto Star editorials to
get the minister to answer our enforcement inquiries, and to publicly announce any enforcement
measures.
He called the AODA’s enforcement terms cumbersome. We disagree. The Government could
have taken prompt action on January 1, 2013 under the AODA to kick into gear with these
enforcement powers regarding the duty to file accessibility self-reports. It could have effectively
used its inspection and audit powers starting back in 2011 to enforce the IASR. It could have
done a much better job of alerting the private sector of their obligations under this Act. It was
counterproductive for the Government to blame its own legislation, of which it is so proud. What
was to blame is the Government’s inaction under this legislation, not the legislation itself.
We again urged the Government to announce a detailed plan for effective AODA enforcement.
We called on Minister Hoskins and his fellow Cabinet ministers to bring the message to the
public, including the private sector, that this law is now to be effectively enforced. It was not
enough to say this in tweets or in the Legislature. We explained that it must often be conveyed,
in a much more public way that will reach a much larger audience.
We urged the opposition NDP and Conservatives to keep pressure on the Government. We also
called on them to announce what they would do, if elected, to effectively enforce the AODA.
Even after all the negative publicity, the Government did not come forward with its promised
enforcement plan at any time over the next half a year before the June 12, 2014 election was
called. We sought the same commitments in the lead-up to two Ontario by-elections on February
13, 2014 that we had earlier sought for the five August 1, 2013 by-elections. This again included
our request for the Government to act immediately to effectively enforce the AODA, and to
reveal its enforcement plans.
During the lead-up to the February 13, 2014 by-elections the Liberals spoke about their
enforcement activities and agreed that the AODA should be enforced. Beyond this, they did not
make the specific commitment we sought. In the February 11, 2014 email from Liberal Thornhill
Candidate Sandra Yeung Racco to the AODA Alliance, the candidate stated:
"I support the Act and agree that it needs to be enforced. Our goal is to support
organizations in meeting their accessibility requirements across the province. We
work directly with organizations by providing free tools and resources to help
organizations understand and meet their accessibility requirements. Since taking
office, Ontario Liberals have doubled the number of companies that are
complying with these standards. Of course, there is still more to do. Our
government is the first to use all enforcement tools available to us under the
AODA. We are in the process of fining companies that have not filed their
compliance reports.
Your organization's advocacy on this issue has been critical in promoting our
government's strategy to enforce the AODA. Our strategy includes a combination
of public information, providing assistance to companies looking to come into
compliance and penalties for those who do not."
Our public revelation of Government inaction on AODA enforcement was rendered even more
troubling when, on February 20, 2014 the Toronto Star reported on its front page that we
exposed that the Government had, since at least May 2012, been sitting on a detailed internal
plan, prepared by public servants, for AODA enforcement. On February 20, 2014 our AODA
Alliance Update announced:
"It is fundamentally unfair to over 1.8 million Ontarians with disabilities, and to
all organizations that have complied with the Disabilities Act, for the Government
to sit on plans for enforcing this legislation for almost two years. There is no
reason why we should have had to resort to a Freedom of Information application
to flush out this sorry news. We should not have to now wait even longer for the
Government to announce its enforcement plans - plans that it should have had up
and running since 2012."
In the front page February 20, 2014 Toronto Star article, the Government was quoted as saying
that the previous cabinet minister (presumably John Milloy) did not receive that briefing note.
The article stated:
"The June 2012 "briefing note" obtained by the Accessibility for Ontarians with
Disabilities Act Alliance outlines a two-year strategy to target 3,600 businesses,
issue compliance orders and conduct audits of violators.
As reported by the Star last fall, at that point no orders had been issued and no
audits had been conducted, despite government statistics showing the vast
majority of businesses covered by the legislation had failed to comply with the
law's reporting requirements.
"Clearly the bureaucrats had a plan. What happened to it? Where is the political
will to enforce this legislation?" said lawyer David Lepofsky of the alliance."
Later the article stated:
""Filing an accessibility report is a legislated requirement. . . . Failure to do so is
considered a major violation of the act," says the briefing note, entitled "AODA
Compliance and Enforcement Strategy," and obtained through a Freedom of
Information request.
A spokesman for Eric Hoskins, the minister of economic development, trade and
employment - who has been responsible for the legislation since last February said the briefing note was an "internal planning document" and was never given
to the former minister.
"We are currently developing a publicly available compliance plan and will be
posting it in short order," said Gabe De Roche.
The ministry is also planning to conduct 1,700 compliance audits this year to
ensure companies are carrying out their customer service plans, he added.
Last fall, when the Star first reported the government's inaction on the file,
Hoskins called the percentage of businesses in compliance "unacceptably low"
and vowed to crack down on violators.
In November, the ministry sent 2,500 enforcement letters to businesses that failed
to submit their reports and. since then, almost half of those who got the letters
have complied, De Roche said.
Up to 500 remaining businesses are being issued compliance orders that require
them to file within 30 days or face fines of between $500 and $2,000, he added.
"Since November, the ministry has been able to successfully increase the number
of compliance reports (from 15,000) to over 17,000," he said. "We are continuing
to work to increase this number."
Lepofsky welcomed the government's plan to publicly post its compliance
strategy. But he said the additional 2,000 companies that have come into
compliance is still a "microscopic drop in the bucket."
"So we have gone from 36,000 companies who have not filed their reports to
34,000. You do the math. That's still a huge majority of companies who have no
plan to deal with customers with disabilities," he said."
Why would such an internal enforcement plan not have been shared with the previous minister,
John Milloy, or the then-minister, Dr. Hoskins? We had extensive dealings with the minister's
office under both ministers. Both ministers were well-aware that we were pressing for the
AODA's effective enforcement. Both knew that the Accessibility Directorate of Ontario, under
their authority, was responsible for the AODA's implementation and enforcement. The question
for them to ask was obvious. The government officials to ask were also obvious.
Since the public servants within the Accessibility Directorate of Ontario properly did their job in
developing enforcement plans for the AODA, the successive Cabinet ministers who are
responsible as the law-enforcers-in-chief would be expected to ask for such plans, and to
promptly approve their deployment. It is clear that no approvals were given. This is obvious,
since we know from the Government's own records that as of last November, 18 months after
that briefing note, the Ontario Government had conducted no inspections of any private sector
organizations under the AODA, nor issued a single compliance order, nor imposed one dime in
monetary penalties.
6. Bill 107's Privatization of Human Rights Enforcement in 2006 Made Effective AODA
Enforcement Even More Pressing
a) Overview
Beyond the foregoing there is an additional compelling reason why it is critical for AODA
enforcement to be substantially and quickly ramped up. In 2006, over our strenuous objection the
Government privatized the enforcement of human rights in Ontario when it enacted Bill 107.
That legislation made it harder for discrimination victims, including persons with disabilities to
enforce their human rights under the Ontario Human Rights Code.
This had lasting adverse consequences for achieving the goal of a barrier-free society for persons
with disabilities. With the Human Rights Code less practically available to persons with
disabilities to individually enforce their rights, our need for effective AODA enforcement
became even more pressing. We here explain why this is so.
In 2011-2012, Bill 107 was the subject of its own Independent Review, conducted by Andrew
Pinto. We do not here attempt to re-open the entire Bill 107 Independent Review that was
undertaken by Andrew Pinto from 2011 to 2012. Nevertheless, it is important for this
Independent Review to consider Bill 107 in the context of our concerns about ineffective AODA
enforcement.
We here explain why we objected to Bill 107's privatization of human rights enforcement in
2006. We then show why the experience during the first four years under Bill 107 proved our
predictions to be accurate.
b) Our Concerns in 2006 with Bill 107's Proposed Privatization of
Human Rights Enforcement
In our December 11, 2009 brief to the Charles Beer AODA Independent Review, we provided
the following summary of our original concerns with Bill 107:
"When the McGuinty Government was developing the AODA between 2003 and
2005, it asked the disability community, including the ODA Committee, what
form the effective enforcement mechanism should take. Leading this campaign,
the ODA Committee, the AODA Alliance’s predecessor, called on the
Government to establish a new, independent enforcement agency, to be arms
length from the Government, with the mandate to enforce the AODA.
Ultimately, the government included some enforcement provisions in the AODA.
These did not include an independent, arms length enforcement agency. The
government told the ODA Committee it would not establish a new independent
enforcement agency. However, the Government also said that the disability
community would continue to have access to the Ontario Human Rights
Commission, to publicly investigate and prosecute when individuals with
disabilities faced discriminatory barriers.
Ultimately, many in the disability community, with the ODA Committee in the
lead, commended the enactment of the AODA 2005, even though it did not
include an independent enforcement agency. It was a compromise. In so doing,
the disability community relied on the government's representations about
continued access to the Ontario Human Rights Commission to publicly
investigate and publicly prosecute individual disability discrimination cases.
On February 20, 2006, some eight months after the AODA went into operation,
the McGuinty Government announced its intention to amend the Ontario Human
Rights Code to privatize the enforcement of human rights in Ontario. It did not
consult with the disability community in advance on this decision. Before the
AODA 2005 was passed, the Government had not given the broad disability
community any indication that such a dramatic change was being planned.
The AODA Alliance, and others from within the disability community and
elsewhere, promptly contacted the Government to voice opposition to the
Government’s plans regarding the Human Rights Commission. We and others
called on the Government to hold a public consultation on this issue before
introducing a bill into the Legislature. The Government refused our request for a
public consultation before bringing a bill to the Legislature.
On April 26, 2006, Michael Bryant, the Minister responsible for the Human
Rights Commission and Code, introduced Bill 107 into the Legislature for First
Reading. Bill 107 removed from the Human Rights Commission its mandate to
investigate, mediate, and where evidence warrants, publicly prosecute individual
discrimination claims. This included claims of discrimination because of
disability.
Before Bill 107, if a person with a disability was the victim of discrimination, he
or she had the right under the Human Rights Code to have the Human Rights
Commission publicly investigate the case, if the complaint wasn’t trivial or
vexatious. He or she also had the right to have their case publicly prosecuted if the
Human Rights Commission decided that the evidence warranted this, and if the
case didn’t settle by a voluntary agreement. From 1980 to 1982, persons with
disabilities fought long and hard to win the right to make disability discrimination
illegal, and to win the right to a public investigation and public prosecution of
disability discrimination cases. They campaigned tenaciously for years to have the
Human Rights Code amended to ban disability-based discrimination.
Put simply, in 2006, after the AODA was enacted, Bill 107 took away the right of
discrimination victims to a public investigation and where appropriate, public
prosecution of their individual discrimination cases. Under Bill 107, it is left to
the individual discrimination victim to investigate their own case, and to
prosecute it themselves before the Human Rights Tribunal.
Despite the rising controversy and public opposition to Bill 107, the McGuinty
Government passed it in 2006. During the public debates over Bill 107 in 2006,
the AODA Alliance and many others from the disability community and other
sectors of society, voiced strong objections to this privatization of human rights
enforcement. These events are documented extensively at:
http://www.aodaalliance.org/reform/default.asp
Among our objections was a deep concern that this legislation flew in the face of
the McGuinty Government's commitments and understanding reached with the
disability community regarding the AODA’s enforcement, described above.
Those from the disability community who had endorsed and applauded the
AODA had relied upon the government's commitment that we would continue to
have access to and resort to the Human Rights Commission to investigate and
prosecute individual disability discrimination cases. Yet, a mere eight months
after that legislation passed, the government announced its intention to privatize
human rights enforcement. It thereby stripped from people with disabilities and
other discrimination victims their pre-existing right to have access to the Human
Rights Commission to publicly investigate and publicly prosecute their
discrimination cases.
In a number of news conferences, media interviews, and letters to the
government, the AODA Alliance raised this objection. The Government never
specifically answered it. Of equal importance, the Government never denied or
disputed the accuracy of our description of the commitments made during the
AODA 2005’s development.
We took active part in public debates over Bill 107 in the media and the
community. However we were barred from taking part in public hearings before
the Legislature. The Government promised public hearings to all wishing to
present. However, it later invoked closure to shut down further hearings that had
been promised, advertised, and scheduled. The AODA Alliance’s presentation to
the Standing Committee reviewing Bill 107 was one of the many that had been
scheduled, but then was cancelled due to the closure motion.
In 2006, in response to many objections to Bill 107, the McGuinty government
committed that it would provide free independent legal counsel to all
discrimination victims appearing before the Human Rights Tribunal. For
government statements making this commitment, see:
http://www.aodaalliance.org/reform/update-081806.asp
Despite this, Bill 107 does not ensure full legal representation to all
discrimination victims. It requires the Government to set up a new legal clinic, the
Human Rights Legal Support Centre, which can provide legal services to
discrimination victims as it wishes. That organization can and does turn away any
discrimination victim if it chooses. That Legal Support Centre receives less than
half of the funding which the then-severely backlogged Ontario Human Rights
Commission used to receive.
According to information from the Human Rights Tribunal, as of February 2009
fully 80% of applicants who bring discrimination cases before the Human Rights
Tribunal under Bill 107’s new regime were unrepresented by any legal counsel at
that time. This is a far cry from the promised, assured free, independent legal
counsel for all discrimination victims. Under the old human rights enforcement
system before Bill 107, disability was the largest category of discrimination
complaints that the Human Rights Commission received. Also, according to
information disclosed to us by the Human Rights Legal Support Centre in
February 2009, it did not represent the vast majority of people who came to it,
seeking legal representation.
It is impossible for us to track how many people would have brought claims under
the old human rights system, but who have given up under the new system. We
have received some anecdotal feedback of this.
Under Bill 107, the Government announced that the Human Rights Commission
would be strengthened, not weakened. The Government committed that the
Human Rights Commission would have the ability to launch its own systemic
discrimination cases. In fact, Bill 107 reduces the scope of the Ontario Human
Rights Commission's pre-existing power to launch its own discrimination cases.
Moreover, since the enactment of Bill 107 the Human Rights Commission has
been reluctant to use its power to launch its own discrimination cases. In the 2009
summer, only after months of being pressured from within the blind community,
the Human Rights Commission finally launched three applications to challenge
the failure of three municipal transit authorities to audibly announce all bus stops.
As far as we have been able to ascertain, the Human Rights Commission has not
announced any systematic, open and accessible process for the disability
community or other discrimination victims to ask the Human Rights Commission
to initiate its own discrimination cases, in order to raise public interest issues.
For the Human Rights Commission to be able to effectively launch and litigate its
own public interest discrimination cases, it needs to conduct effective
investigations to gather evidence. Yet in the wake of Bill 107’s proclamation in
2008, the Human Rights Commission ultimately laid off all its investigators. It did
so despite the fact that an earlier organization chart, developed in response to Bill
107, had suggested that they were retaining some investigative capacity. The
Commission has also substantially reduced its Legal Department. This
significantly reduced its capacity to effectively launch and prosecute
discrimination cases. The Human Rights Commission’s organizational charts,
which
we
obtained,
are
available
at:
http://www.aodaalliance.org/reform/default.asp
During the 2006 public debates over Bill 107, the McGuinty Government claimed
that to ensure that the Human Rights Commission would be proactive on
disability issues, it would be required to establish a Disability Rights Secretariat.
Section 31.4 of Bill 107 required this. It provides:
“Disability Rights Secretariat
31.4 (1) The Chief Commissioner directs the Disability Rights Secretariat which
shall be established in accordance with subsection (2).
Composition
(2) The Disability Rights Secretariat shall be composed of not more than six
persons appointed by the Lieutenant Governor in Council on the advice of the
Chief Commissioner.
Remuneration
(3) The Lieutenant Governor in Council may fix the remuneration and allowance
for expenses of the members of the Disability Rights Secretariat.
Functions of the Secretariat
(4) At the direction of the Chief Commissioner, the Disability Rights Secretariat
shall,
(a) undertake, direct and encourage research into discriminatory practices that
infringe rights under Part I on the basis of disability and make recommendations
to the Commission designed to prevent and eliminate such discriminatory
practices;
(b) facilitate the development and provision of programs of public information
and education intended to promote the elimination of discriminatory practices that
infringe rights under Part I on the basis of disability; and
(c) undertake such tasks and responsibilities as may be assigned by the Chief
Commissioner.”
In 2006, the Government first proposed this Disability Rights Secretariat as a
response to our concerns with Bill 107. At that time, we condemned this proposal
of a Disability Rights Secretariat, as mere powerless window dressing. Even then,
as late as February, 2009, seven months after Bill 107 was proclaimed in force,
the Human Rights Commission still did not have any Disability Rights
Secretariat. We raised this in a presentation to the Legislature’s Standing
Committee on Government Agencies on February 9, 2009. That presentation is
available at:
http://www.aodaalliance.org/strong-effective-aoda/02112009.asp
In a responding February 24, 2009 letter to the AODA Alliance, Human Rights
Chief Commissioner Barbara Hall did not dispute that no Disability Rights
Secretariat had yet been established. She wrote:
“As to the creation of the new Disability Rights and Anti-Racism Secretariats,
people must first be appointed to those bodies. But Order-in-Council
appointments are the prerogative of government, not the OHRC. We note that the
Government of Ontario advertised for these postings, with applications due by
January 15, 2009. We are working with the government on the establishment of
the new Secretariats and our staffing structure clearly supports the new
Secretariats.”
As of December, 2009, 17 months after Bill 107 went into effect, there is still no
Disability Rights Secretariat at the Ontario Human Rights Commission, contrary
to the requirements of Bill 107.
The McGuinty Government's privatization of human rights enforcement makes it
essential for a new independent, arms length AODA enforcement agency to be
established, or for an existing appropriate independent law enforcement agency to
be given the mandate to receive, investigate and prosecute cases where
individuals experienced discriminatory barriers when seeking to access
employment, goods, services or facilities.
We recognize that the Government will be hesitant to create a new agency for
this, in the current economic climate. That does not derogate from the breach of
its understanding with the disability community regarding the Human Rights
Commission, described above.
One option open to the Government is to assign this responsibility to the Ontario
Human Rights Commission. It might expand the mandate, powers and budget of
the as-yet unestablished Disability Rights Secretariat at the Human Rights
Commission, described above. As authorized in Bill 107, that Secretariat does not
have the required powers to discharge this function. Some within the disability
community may understandably be reluctant to see the stripped-down Human
Rights Commission take on this role, especially unless it is given the budget
needed to carry out this function appropriately…"
c) Four Years of Experience under Bill 107 from 2008 to 2012
Demonstrated that Our Concerns with It Were Well-Founded
On March 1, 2012, we submitted a detailed brief to the Andrew Pinto Independent Review of
Bill 107. The AODA Alliance's March 1, 2012 initial brief to the Pinto Review, and its April
12, 2012 supplemental brief to the Pinto Review (the latter of which Andrew Pinto refused to
read) (which give a comprehensive history of this issue and constructive recommendations on
how to fix Ontario's human rights enforcement system) are available at
http://www.aodaalliance.org/strong-effective-aoda/04122012.asp
In our March 1, 2012 brief to the Pinto Review, we describe, among other things, Ontario's new
human rights enforcement system from the perspective of an individual applicant, such as
persons with disabilities, as follows:
"Under Ontario's new system for enforcing human rights, what is life like for a
person who believes that he or she was the victim of discrimination contrary to
the Human Rights Code? They likely didn't know where to call to take action.
Many would think they had to call the Human Rights Commission since, for
decades, that is where one went. We have seen no high-visibility Government
publicity campaign to educate the public on the fact that they no longer take their
case to the Human Rights Commission. We understand the Human Rights Legal
Support Centre has done public outreach, using its limited resources.
If the individual did call the Human Rights Commission, they would sit through
an automated voice announcement system, to learn that they must take their case
to the Tribunal and that they can call the Human Rights Legal Support Centre for
advice and help. If they simply call the Human Rights Tribunal themselves, they
will be confronted by long application forms (which a blind person will have
difficulty accessing on line). They will also have to navigate the Tribunal's
complex rules of procedure that lay people are not trained to analyze and follow.
If the person then called the Human Rights Legal Support Centre, there was a
good chance that he or she didn't even get their call answered. Thousands of
people who have called that Centre since it opened cannot get through to a human
being, according to the Centre's own data. The Centre says it has recently reduced
the rate of failed calls, but that rate is still far too high.
If the individual was lucky enough to get through to a human being at the Centre,
they had a real chance that the Centre would refuse to provide them with full legal
representation throughout the Human Rights Tribunal process. The Centre might
tell them they have no case, without having investigated it. The Centre might say
that the caller may have a case, but the Centre will only give them advice on how
to represent themselves. They will very likely find that their pre-application legal
advice on whether they have a case worth pursuing is given to them by a nonlawyer, whom the Centre calls a "legal advisor."
The caller may find that the Centre has reached the judgement that the individual
is able to be their own lawyer throughout the Human Rights Tribunal process,
even though the individual has no legal training at all, and has never taken part in
a legal proceeding like this.
Even if they are one of the lucky people who try to call the Centre, and who get a
lawyer to agree to actually provide them with legal representation, they will find
that the Centre will make no commitment up front to represent them right through
to the end of the proceeding, even if the Centre thinks they have a good case. The
Centre has a policy of only agreeing, if at all, to represent the individual for the
first part of the process (e.g. drafting their application and representing them up
through the mediation process). At any stage, if the Centre decides that the
individual's case lacks "merit," they may drop the case, leaving the applicant to
fend for themselves, partway through a challenging legal process.
If the Centre agrees to represent a person from the start and partway through the
Human Rights Tribunal process, the applicant may find themselves at a Tribunal
mediation. At that mediation, a respondent may well make a settlement offer that
is less than the applicant thinks is appropriate. That applicant has no assurance
that the Centre's lawyer will stick with their case after the mediation, if the
applicant turns down the settlement offer. That can only create pressure on the
applicant to take an inadequate settlement, rather than run the risk of a full
Tribunal hearing, possibly with no lawyer from the Human Rights Legal Support
Centre to assist.
If at the outset of the process, the individual doesn't get the Centre to serve as
their lawyer, they must either hire their own lawyer, which can be very costly, or
they must choose to represent themselves at the Human Rights Tribunal. If the
person has no lawyer, they must figure out how to decide what evidence they
must prove, which witnesses they need to call and which documents they need to
produce. They must learn what information they are entitled to withhold, and how
to skilfully cross-examine witnesses that the respondent calls against them. If the
respondent brings procedural motions, the individual who is alleging
discrimination has to learn how to argue these procedural motions, including
finding out what legal principles apply.
If the individual does choose to represent himself or herself, they will find that it
is very likely that they are up against a respondent (the party accused of
discrimination) who does have a lawyer. From data we obtained from the
Tribunal, it appears that most respondents are represented. It will seem to many
(including us) that it is not a fair fight, when the applicant has no lawyer but the
respondent does. However, the Tribunal, through its then chair, has told a
Standing Committee of the Legislature that that does not necessarily make the
Tribunal hearing unfair.
For an unrepresented individual, they must prove their discrimination case. They
must comply with the Tribunal's detailed rules of procedure. The respondent's
lawyer is skilled at exploiting these rules to the respondent's advantage and the
applicant's disadvantage.
Of course, the other option open to an applicant or potential applicant is to simply
walk away. If the applicant does go through the Tribunal process, with or without
a lawyer, statistics show that just like under the pre-Bill 107 regime, they are very
likely to have their case come to an end without a full Tribunal hearing on the
merits. This is either because they agree to settle their case, or because they
abandon it, or because the Tribunal throws it out on preliminary grounds.
Even if they are one of the few applicants who approach the new system, and
manage to go all the way to a full Tribunal hearing, and win at the Tribunal, they
face a new risk that as a practical matter, wasn't present under the old system. As
was the case under the old system, the respondent may take the case to court,
challenging the Tribunal ruling against them.
What is new since Bill 107 is that under the new system, the Court may decide
that the Tribunal made factual or legal errors in its decision, and order the
applicant to personally pay the respondent's hefty legal costs for this court
proceeding. This has happened twice so far to our knowledge under the new Bill
107 regime. The person who alleged discrimination could end up having to pay
this hefty bill not because of anything they did, but because the Tribunal didn't do
its job properly, in the court's view. Under the old system it was the Human
Rights Commission, and not the person alleging discrimination, that would
typically be on the hook for paying that legal costs bill.
Under this new system, if an applicant can either afford a lawyer or be one of the
lucky ones for whom the Human Rights Legal Support Centre represents them
from beginning to end, this new system may be quicker than the old system. That
is not entirely clear as a comprehensive average, from the data we have gathered,
despite the Human Rights Legal Support Centre's claims that the new system is
faster. In any event, we have no proof that this lucky group, who can have a faster
process, is representative of the experience of even a majority of those who now
try to access the new system."
Our March 1, 2012 brief to the Pinto Independent Review of Bill 107 summarized our concerns
with Bill 107's first three years in operation, as follows:
"1.
The McGuinty Government has broken several of the important
commitments it made when it enacted Bill 107 back in 2006. Those commitments
are listed and documented at http://www.aodaalliance.org/strong-effectiveaoda/07022008-3.asp.
The core breaches of Government commitments include:
* The Government has not ensured that all human rights applicants have a free
publicly-funded lawyer throughout the processes at the Human Rights Tribunal,
as the Government had promised. A very substantial number of applicants at the
Tribunal are unrepresented. Thousands of people who call the Human Rights
Legal Support Centre cannot even get through on the phone to raise their
concerns.
* The Human Rights Commission has not become a strengthened force for
promoting human rights and combating systemic discrimination, as the
Government had promised. To the contrary, it is a mere shadow of its pre-Bill 107
self. It has not effectively used the few enforcement powers it has left.
* The reformed human rights system has not assured to applicants a hearing on
the merits within one year of filing their application, as the Government had
promised.
* The Government has not established the Disability Rights and Anti-Racism
Secretariats at the Human Rights Commission that it promised. To the contrary,
the Government is in direct contravention of its own law, because it failed to fulfil
its mandatory duty to have established these organizations over three and a half
years ago.
2.
The Human Rights Legal Support Centre has in effect become Ontario's
new Human Rights Commission, but without important safeguards, accountability
and public oversight that applied to the Human Rights Commission under the old
system.
3.
The Human Rights Legal Support Centre's criteria for choosing clients
raise serious concerns.
4.
The Human Rights Legal Support Centre has a grossly inadequate budget
for expert witnesses, contrary to its commitment to pay for experts that its clients
need.
5.
A lower percentage of disability cases are handled by the Human Rights
Legal Support Centre under Bill 107 than the Human Rights Commission handled
under the old system, according to data provided.
6.
There is a pressing need to restore to discrimination victims the option of
having their case publicly investigated and, where the evidence warrants, publicly
prosecuted by the Human Rights Commission. This option should be available if
a person doesn't want to privately investigate and prosecute their own human
rights case at the Human Rights Tribunal. It is also necessary for the Commission
to have in place processes to ensure that it more quickly addresses each case, and
is more willing to take cases to the Tribunal.
7.
The Human Rights Commission has not made effective use of its power to
bring its own human rights applications to the Human Rights Tribunal, or to
intervene in individual cases at the Tribunal, to combat problems like systemic
discrimination. It also needs its full pre-Bill 107 powers restored to it to enable it
to most effectively combat discrimination via those Commission-initiated human
rights applications and interventions.
8.
The Human Rights Commission needs broader power to intervene in
human rights cases brought to the Human Rights Tribunal by individuals.
9.
Ontario now does not have an effective system for effectively ensuring
that orders of the Human Rights Tribunal and settlement agreements under the
Human Rights Code are publicly monitored and enforced.
10.
There need to be stronger measures to ensure that the Human Rights
Tribunal is following policies on human rights that the Human Rights
Commission establishes.
11.
Additional measures are needed to better ensure that in human rights
cases, the public interest is represented by a public human rights agency that is
mandated to represent the public, and not merely to represent the private interests
of individual clients, to help ensure that public interest remedies are included as
often as possible in Human Rights Tribunal rulings and negotiated settlement
agreements.
12.
There remains serious concern about the fact that the Human Rights
Tribunal has the power to make rules of procedure that violate the fair hearing
guarantees in the Statutory Powers Procedure Act, a power that seems
unnecessary since the Tribunal says it has not used it.
13.
Problems have been reported with the accessibility of the Human Rights
Tribunal's on-line application forms for people who use adaptive technology to
access the internet.
14.
The unelected Human Rights Tribunal has taken on itself the role of
setting the standard for deciding when a case should not get a full hearing on the
merits. Only the Legislature should be setting this, in legislation.
15.
Added safeguards are needed to ensure that the Human Rights Tribunal
renders decisions promptly, and without undue delay.
16.
It is entirely unfair that fully 885 human rights complainants with
unresolved cases in the old system had Bill 107 pull the rug out from under them.
Bill 107 took the Human Rights Commission's mandate away on January 1, 2009.
885 complainants with unresolved cases at the Human Rights Commission, not
yet referred to the Human Rights Tribunal, chose to let their case die rather than
proceed unaided on their own to investigate and prosecute their case at the Human
Rights Tribunal. The Human Rights Legal Support Centre also refused to help
this group of complainants.
17.
This Review has no mandate to consider empowering the Human Rights
Tribunal to order a losing party at the Tribunal to pay the winning party's legal
costs. If anything, under Bill 107, discrimination victims now face an unjustified
enhanced exposure to paying their opponents' court costs.
18.
Ontario needs an independent, arms-length process for merit-based
screening appointments to the Human Rights Commission, Human Rights
Tribunal and Human Rights Legal Support Centre.
19.
There is an ongoing need for future Independent Reviews of Ontario's
system for enforcing human rights in Ontario."
Our March 1, 2012 brief to Andrew Pinto summarized that it made recommendations to:
"1. Ensure that all human rights applicants get the free, publicly-funded lawyer to
represent them throughout the Human Rights Tribunal's processes, that the
McGuinty Government promised;
2. Make the Human Rights Legal Support Centre more open and accountable for
its work bringing human rights cases for discrimination victims;
3. (except in the case of unresolvable ethical clash) Stop the Human Rights Legal
Support Centre's policy or practice, when it agrees to represent a human rights
applicant, of only agreeing at the outset to represent them partway through the
Tribunal process, and leaving it to later to decide if the Centre will continue to
represent the applicant through to the end of the process;
4. Correct problems with the way the Human Rights Legal Support Centre
decides whether to represent a human rights applicant;
5. Ensure that the Human Rights Legal Support Centre has a proper budget to hire
expert witnesses;
6. Give discrimination victims the option, instead of privately investigating and
prosecuting their own human rights case, of taking their human rights case to the
Human Rights Commission for a public investigation and public prosecution of it,
where the evidence warrants it;
7. Require the Human Rights Commission to bring substantially more
Commission-initiated cases at the Human Rights Tribunal, and to intervene more
often at the Tribunal in cases that individuals present themselves;
8. Give the Human Rights Commission broader rights of participation in cases
that individuals bring to the Tribunal;
9. Give the Commission a broader role in the enforcement of human rights
decisions and settlements;
10. Strengthen the availability and accountability of public interest remedies in
human rights cases;
11. Get the Government to at last establish at the Human Rights Commission the
long overdue and promised Disability Rights and Anti-Racism Secretariats, while
strengthening the weak powers that the Code now gives these offices;
12. Take steps to make the Tribunal's procedures more fair and accessible;
13. Ensure that the Human Rights Tribunal is not allowed to order a losing party
to pay the winning party's legal costs at the Tribunal;
14. Limit the situations when a court can order a human rights applicant to pay
court costs;
15. Create an arms-length non-partisan process for selecting people to serve in
key roles at the Human Rights Tribunal, Human Rights Commission and Human
Rights Legal Support Centre;
16. Ensure further independent reviews of Ontario's system for enforcing human
rights every four years."
On November 8, 2012, the Government made public the Andrew Pinto Human Rights Code
Review's final report. The Pinto Review's November 2012 Final Report is available in MS
Word format by visiting http://www.aodaalliance.org/docs/20121109.doc
On November 16, 2012, we released our detailed analysis of the final report of the Pinto Review
of Bill 107. Our November 16, 2012 analysis of the Pinto Report can be found at
http://www.aodaalliance.org/strong-effective-aoda/11162012.asp
We summarized the Pinto Report's findings and our critical analysis of the Pinto report as
follows:
"1. The Pinto Review's Final Report correctly makes damning findings about
problems that discrimination victims now face in Ontario when they try to get
their human rights enforced. This paints a bleak picture for many discrimination
victims who come to Ontario's human rights system to seek a remedy. The Pinto
Report found that:
a) It is a "serious problem" that far too many human rights applicants (those
claiming they suffered discrimination) have no legal representation when they
present a discrimination claim at the Human Rights Tribunal. Fully 65% of
applicants are unrepresented. The Government's new Human Rights Legal
Support Centre only represents a mere 12% of those applicants. A human rights
applicant is likely opposed by a respondent (the one accused of discrimination)
that has legal representation. Fully 85% of respondents have a lawyer. The report
found that "applicants with meritorious cases who cannot otherwise find legal
representation and who are unable to navigate the Tribunal’s processes are not
having their needs met." It also reported the frustration that individuals experience
when trying to call the Human Rights Legal Support Centre but can't get through
on the phone. It concluded that a human rights applicant whom the Centre
declines to represent can be left "floundering."
b) The delay in resolving cases at the Human Rights Tribunal is too long.
c) Human Rights Tribunal forms and procedures are too complex for
unrepresented applicants to navigate.
d) Even if an applicant overcomes all these barriers and wins a case at the
Tribunal, Human Rights Tribunal damages awards for discrimination victims are
too low.
e) The Ontario Human Rights Commission is not making effective use of its
powers to launch public interest cases, and to intervene in individual cases at the
Human Rights Tribunal.
f) The Human Rights Commission has focused insufficient effort at securing
voluntary compliance in the private employment context.
g) The Human Rights Commission now has trouble keeping on top of Human
Rights Tribunal case trends.
h) There is a need for increased funding to Ontario's human rights enforcement
system. We disagree with the Pinto Report's recommendation that this new
funding should be directed to the Human Rights Legal Support Centre. Instead,
that Centre requires much more public accountability and oversight. We believe
that any new funding should instead be shared among other organizations that
could help provide legal representation to human rights applicants.
2. The Pinto Report found that all these problems need to be fixed. We believe
that taken together, those problems cry out for a strong conclusion that Bill 107's
new human rights enforcement system is seriously flawed.
3. Instead of reaching that conclusion, the Pinto Review's Final Report reached
the unwarranted finding that Ontario's new human rights enforcement system is a
"qualified success." That conclusion is made all the more untenable, because the
Pinto Report also inappropriately ignored or downplayed several other serious
problems that we and others raised with Bill 107's human rights enforcement
system, and many of our constructive proposals on how these could be fixed. The
Pinto Report thereby painted an undeservedly rosy picture:
a) The report wrongly claims that there is a general consensus that the new system
is more efficient, quick and transparent.
b) Rather than finding that the government broke its 2006 promise to provide
publicly funded lawyers to all human rights applicants, the report wrongly claims
that the government never promised this and faults the AODA Alliance for
publicizing this publicly-documented promise.
c) The report wrongly denies that Bill 107 privatized human rights enforcement in
Ontario.
d) The report makes an unsubstantiated claim that the new system is faster than
the old system.
e) The report ignored our key recommendation that the Human Rights Code be
amended to give discrimination victims the option of either asking the Human
Rights Commission to publicly prosecute their case or themselves privately
presenting their own case to the Human Rights Tribunal.
f) The report doesn't identify serious concerns about the Human Rights Tribunal's
power to override fair hearing guarantees in the Statutory Powers Procedure Act.
g) The report papers over concerns on whether public interest remedies are as
frequently imposed under Bill 107 as they were before Bill 107.
h) The report urges the government to further study whether to let the Tribunal
order a losing party to pay the winning party's legal costs – a new barrier to access
to justice.
i) The report failed to consider the barrier to access created by a new risk that
discrimination victims face under Bill 107 of having to pay a respondent's court
costs if a Tribunal win is reversed on judicial review through no fault of the
applicant's.
j) The report didn't consider problems with the Human Rights Legal Support
Centre's deciding if it thinks a human rights applicant can represent themselves at
the Tribunal, as a criterion for the Centre's refusing to represent that applicant.
k) The report failed to recognize that the Human Rights Legal Support Centre is a
new gate-keeper under Bill 107.
l) The report failed to recognize that the Human Rights Legal Support Centre has
become a new Human Rights Commission without the same public accountability
and oversight.
m) The report didn't examine problems for human rights applicants caused when
the Human Rights Legal Support Centre only agrees to represent a client partway
through the Tribunal process.
n) The report disregarded several key measures we proposed to improve public
accountability and oversight of the Human Rights Legal Support Centre.
o) Instead of criticizing the government for failing to keep its promise, required
by law, to establish a new Disability Rights Secretariat and Anti-Racism
Secretariat at the Human Rights Commission, the Pinto Report makes the
unwarranted recommendation that the Code be amended to abolish these
Secretariats before they are even created.
p) The report praised human rights commission efforts at advocating for voluntary
action to comply with the Code, without recognizing that the government has
ignored a number of important Commission recommendations regarding disability
accessibility.
q) The report left uncriticized the plight of cases lost in the shuffle during the
transition to Bill 107.
r) The report disregarded a number of other important recommendations we
presented.
4. The Pinto Report gives the Ontario government undeserved political cover. The
report didn't identify the fact that the Government broke several key promises that
it made in 2006 regarding Bill 107, including the promises that each human rights
applicant would get a hearing at the Tribunal within one year, that the Human
Rights Commission would be a strengthened force for human rights by launching
public interest cases at the Tribunal, and that there would be a new Disability
Rights Secretariat and Anti-Racism Secretariat established at the Human Rights
Commission.
5. Ontario has needed an Independent Review of Bill 107 to be conducted by an
impartial person who did not take part in the 2006 public campaign either for, or
against Bill 107. Instead, the Government appointed Mr. Pinto. He is an
experienced and knowledgeable human rights lawyer. However, he was a member
of the small group of lawyers who successfully advocated in 2006 to get Bill 107
passed.
6. That so strong a proponent of Bill 107 found such substantial problems with
Bill 107's operations testifies to how pressing is the need for this human rights
system to be repaired. That so partisan a supporter of Bill 107 rejected or ignored
many concerns that we and others raised with the Pinto Review, leaves a cloud
permanently hovering over the Pinto Report and its claim that Bill 107 is a
"qualified success."
7. The cloud over the Pinto Report is made all the darker for additional reasons.
For example, the Pinto Review did not do enough to publicize its public
consultations. It unfairly enforced against us its March 1, 2012 deadline for
receiving written submissions, while it continued to receive information from the
Human Rights Legal Support Centre thereafter.
8. Ontario still needs its human rights enforcement system to be properly,
impartially and independently reviewed by a person with no ties to either side of
the Bill 107 debate. The Pinto Report in many ways reads like a partisan, onesided reprise of the pro-Bill 107 side of the 2006 debate over this legislation,
dressed up as an independent assessment of it."
7. Commitments in the 2014 Ontario Election Campaign on AODA Enforcement
With the possibility of a spring 2014 Ontario election, our March 3, 2014 letter to the political
parties, seeking pledges on disability accessibility, requested the following regarding the
AODA's enforcement:
"B. Ensure that All Enforceable Requirements under the AODA are Effectively
Enforced
In 2003, the current Government commendably promised the effective
enforcement of the AODA. All parties voted in favour of including in the AODA
important enforcement powers for audits, inspections, compliance orders, and stiff
monetary penalties. Earlier, on October 29, 1998, all parties supported a
resolution in the Legislature that required the Disabilities Act to have teeth.
Government records show that that the Government has not been effectively
enforcing the AODA. As of November 2013, the Government knew that fully
70% of private sector organizations with at least 20 employees had not filed
mandatory self-reports on their compliance with the 2007 Customer Service
Accessibility Standard. Those organizations had well over five years to comply.
Despite this, as of November 2013, the Government had not conducted a single
audit or inspection of any private sector organizations, or issued a single
compliance order, or imposed a dime in monetary penalties.
For years, the Government has had unused appropriated funding available for
enforcement and an unused plan on how to enforce this legislation. Since we
revealed this situation in November, 2013, any new Government enforcement
effort has focused only on 2,500 of the 36,000 private sector organizations with at
least 20 employees, and which are clearly violating the AODA. There is no
indication that the Government has taken any action to enforce the AODA vis à
vis private sector organizations with under 20 employees, or vis à vis any AODA
requirements in force regarding transportation, employment or information and
communication.
We therefore ask your Party to commit to:
4. in order to achieve full compliance with the AODA, effectively use all AODA
enforcement powers, and to use them to enforce all requirements that are in force
under the AODA, and in connection with all classes of organizations that are
obliged to comply under the AODA.
5. immediately give Ontario Government inspectors and investigators under other
legislation a full mandate to include enforcement of the AODA when they inspect
or investigate an organization for any other reason.
6. within two months of a spring 2014 election (or, if no election is called this
spring, then by March 15, 2014), make public a detailed plan for enforcing all
AODA requirements. ("Enforcement" referring to audits, inspections, compliance
orders and monetary penalties) Among other things, this should include
establishing and publicizing an accessible toll-free phone number for members to
report violations of AODA requirements.
7. semi-annually give a detailed report to the public on levels of compliance with
AODA requirements, and frequency of measures taken to audit, inspect or
otherwise enforce AODA requirements. This should include the amount of funds
appropriated for, and the funds spent on, implementing the AODA, including on
enforcement."
In her March 14, 2014 letter to us, setting out the Liberal Party's accessibility platform, Premier
Kathleen Wynne said the following regarding AODA enforcement:
"B. Ensure that all enforceable requirements under the AODA are effectively
enforced
4. The Ontario Liberal Party is dedicated to pursuing compliance and enforcement
action to bring more private sector organizations into compliance with AODA. To
speak to our track record, 99 per cent of Designated Broader Public Sector
Organizations have submitted their reports by the deadline to date. If I am elected,
I will see to it that this becomes 100 per cent.
We will ensure that organizations that fail to comply with AODA requirements
are met with monetary penalties and be subjected to prosecution, where
necessary. Under my government, we issued the first monetary penalties. I am
committed to using all enforcement provisions under the AODA to ensure that
organizations that do not comply with the law are penalized and to encourage
compliance. To date, my government has issued over 500 Notices of Director’s
Orders and we will continue to send more out monthly. Paired with enforcement
activities, we are actively reaching out to businesses and not-for-profit
organizations to help them understand and follow their obligations under the
AODA.
5. With respect to additional enforcement activities, we commit to investigating
the possibility of having government inspectors and investigators enforce the
AODA within the context of existing resources and as training capacity exists.
6. We will make a detailed plan on all enforcement activities available, along with
establishing and publicizing an accessible toll-free phone number to report
violations of AODA requirements. Unfortunately, communication of the
enforcement plan is on hold during the writ period. I look forward to releasing it
promptly should we win the honour of re-election.
7. To ensure increased transparency going forward, we will make an annual report
publicly available on levels of compliance including the effectiveness of our
enforcement measures."
The Premier's recent commitment to establish a phone number where persons with disabilities
can report AODA violations was an overdue breakthrough. The same is so for her promise to
"…make an annual report publicly available on levels of compliance including the effectiveness
of our enforcement measures." If and when that promise is kept, we won't again have to undergo
another long, difficult struggle to obtain such information.
The Premier's pledge "to bring more private sector organizations into compliance" is trivial. The
Government may well claim that it is fulfilled if a handful of private sector organizations are
brought into compliance. There is more potential in Premier Wynne's commitment:
"I am committed to using all enforcement provisions under the AODA to ensure
that organizations that do not comply with the law are penalized and to encourage
compliance."
There is little optimism where Premier Wynne stated: "we commit to investigating the possibility
of having government inspectors and investigators enforce the AODA within the context of
existing resources and as training capacity exists." We understand that the Government has been
investigating this, either constantly or on and off, for some years. We raised this proposal with
the Government at least as far back as the 2011 election campaign, if not earlier.
The Premier's claim that the Government cannot release their plan for AODA enforcement
during the election period makes no sense. Political parties make all sorts of policy commitments
during an election campaign. That is what an election campaign is all about. There is no
exception for AODA enforcement. Moreover, even during an election campaign, the
Government has an ongoing duty to enforce the law.
The Progressive Conservative Party's May 12, 2014 letter to the AODA Alliance, setting out its
accessibility pledges, merely stated: "An Ontario PC government is committed to working with
the AODA Alliance to address implementation and enforcement issues when it comes to these
standards." This promised no specific action on enforcement.
The New Democratic Party's May 11, 2014 letter to the AODA Alliance, setting out its 2014
election accessibility platform, said the following regarding the AODA's enforcement, which
includes no specifics beyond committing to a plan for full enforcement:
"B. Ensure that all enforceable requirements under the AODA are effectively
enforced.
New Democrats have been disappointed with the Liberal approach to enforcement
of the AODA.
In the fall of 2013 media reported that the majority of businesses in Ontario were
not in compliance with the law’s reporting requirements; yet no point of orders
had been issued and no audits had been conducted.
This prompted the ministry to send 2,500 enforcement letters to businesses.
However, last November, 70 per cent of companies — about 36,000 across the
province — had not yet filed a report.
Andrea and the Ontario NDP don’t believe that enforcement should happen only
when the media is looking. New Democrats are committed to the full enforcement
of the AODA and will ensure that all agreements are enforced.
A NDP government will make it a priority to issue an enforcement plan that
ensures action."
8. Reflections
a) The Failure to Effectively Enforce the AODA Sends A Very Bad Signal
to Obligated Organizations
From all the information we have obtained from the Government over the past many years, the
only conclusion that makes sense is that someone high up in the Government, whether in the
Premier's office or elsewhere, had for years in effect decided that the AODA will not be
effectively enforced, and that references to AODA enforcement in public Government
statements, websites, and the like, are to be downplayed or avoided. The only departures from
this de facto policy came only after mid-November 2013, when we made public the
Government's failure to effectively enforce the AODA, despite its promises to do so and its
knowing about rampant AODA violations. We have no reason to believe that the Government's
failure to effectively enforce the AODA for so long happened by accident, or was the product of
a public servant rungs down the ladder in the Community and Social Services Ministry and later
the Economic Development, Trade and Employment Ministry, taking it upon themselves to
block the AODA's enforcement.
Even after the media makes public an obligated organization's demonstrated violation of the
AODA, it is clear to one and all, including obligated organizations, that there are no adverse
consequences for breaking that law. Two examples illustrate this.
First, in 2012, London Transit, London Ontario's publicly funded public transit provider, openly
and publicly announced that it would not be implementing courtesy or priority seating for
passengers with disabilities on its buses by the deadline that the IASR required. A March 12,
2012 article appeared on the website of London Community News with the headline "LTC
priority seating campaign to roll out this spring." That article was posted at
http://www.londoncommunitynews.com/2012/03/ltc-priority-seating-campaign-to-roll-out-thisspring/
It stated in part:
"London transit users will notice a new program rolled out this spring that will see
priority and courtesy seating assigned in buses. In a London Transit Commission
(LTC) board meeting Wednesday evening (March 28), members discussed the
strategy and offered insight on the program.
Under the Accessibility for Ontarians with Disabilities Act (AODA), public
transit providers in the province were required to develop a priority seating plan
by Jan. 1 this year.
While it won’t be implemented until May, LTC board members have been
working with representatives from Barrie, Brampton, Toronto, Windsor and York
Region since the fall of 2011 to discuss a co-ordinated effort toward compliance.
The rationale of this working group was to offer a consistent approach to lessen
customer confusion, as many people transfer between the systems daily.
LTC board members said the program was delayed to ensure it will be completed
properly.
Priority seating is for passengers with a disability, whereas courtesy seating is for
groups like seniors, expectant mothers and adults traveling with infants or small
children. The priority seating will be collapsible and located at the front of buses,
whereas the courtesy will be nearest to the front, past the priority seating.
The LTC board created a comprehensive communication package that will
include on-board advertising, shelter posters, customer and employee brochures
and website content, which will be rolled out in early May."
It is staggering that a public sector organization could openly declare at a public meeting of its
leadership that it was defying the AODA, with complete impunity. We brought this AODA
violation to the attention of the Ontario Government. We are aware of no enforcement action
having been taken as a result.
There is no reason why that simple accommodation couldn't have been made available sooner.
For years, London Transit officials were directly involved with the development of the
transportation provisions of the IASR. They knew this priority seating requirement was coming,
long before it was finally enacted in June 2012. It could have been provided at any time, as a
most basic courtesy for passengers with disabilities.
The AODA's deadlines are not supposed to be mere suggestions. Once London Transit saw that
it could violate the AODA's time lines without any adverse consequences, the message to them,
to their fellow public transit providers (who have always worked closely together on these
issues), and to all obligated organizations is clear: They can safely disregard other AODA
deadlines with similar impunity.
In a second illustrative example, according to an article in the April 20, 2013 on-line edition of
the Toronto Star, a Toronto Spring Rolls restaurant, part of a chain, reportedly restricted a
customer from bringing his Hearing Ear dog with him wherever he wished to sit in the
restaurant. The Star’s April 21, 2013 on-line edition included a second article, reporting that the
Spring Rolls restaurant apologized and planned to provide its disability service staff with
disability training. The Human Rights Code forbids a restaurant from excluding or limiting a
person with a disability due to their being accompanied by such a service animal.
The April 20, 2013 Toronto Star article stated in part;
"Peter Stelmacovich has grown accustomed to being the victim of discrimination.
“If I go into six restaurants, two or three would refuse me service,” says the
hearing-impaired Oakville resident who uses a Hearing Ear dog — a flat-coated
retriever named Flora.
On Thursday, the 48-year-old Stelmacovich says it happened again, this time at a
downtown Toronto restaurant, where he says the restaurateur told him and two
friends at lunch they would have to sit upstairs or outside because of Flora.
“Or, he said, I could tie my dog outside.”
At the Spring Rolls restaurant on Queen St. W., Rupinder Bahl told the Star the
reason Stelmacovich and his friends were offered seats upstairs or outside was
because the tables at the front were either occupied or reserved. Stelmacovich,
however, says many of the tables up front were empty.
When the restaurateur was asked if he understood that under Ontario’s Human
Rights Code Stelmacovich cannot be refused proper service, Bahl said the dog
didn’t need to be inside because he had friends who could help. Asked if he
refused proper service he said, “Of course not.”
Stelmacovich says he plans to make a formal complaint to the Ontario Human
Rights tribunal over the incident. He feels it’s time to take a stand for others who
rely on guide dogs for help and are routinely refused service because of it.
Stelmacovich says he fears the GTA might be slipping behind other places where
there’s been more progress about the rights of service dog owners.
“If I call ahead for a cab it’s okay, but if I try to hail a cab they won’t stop,” says
Stelmacovich, who works in Toronto for a company that makes hearing aids and
wireless devices for people with hearing problems.
Along with his active blog about issues that the hearing impaired face, he’s trying
to engage the broader community about the problem. He says many service
providers aren’t aware of their legal obligations.
“The Ontario Human Rights Code is pretty clear, but, for example, on Thursday
we told the man at the restaurant about my rights under the Code and it didn’t
make a difference.”
The Human Rights Code states that to deny access to a service animal amounts to
discrimination on the basis of disability.
“I hear a lot of excuses,” Stelmacovich says. “We have staff with allergies, is a
common one.”
He carries photo ID of both of them that makes it clear Flora is a service dog and
what their rights are, but says it seldom helps when service providers already have
their minds made up.
In Ottawa, where he used to live, there was more awareness, a better
understanding that discrimination against service animals was the same as
discrimination based on race, gender or any disabilities, he says. But he’s not sure
why.
“I don’t want to get anyone in trouble or fired. I just want to make life easier for
people, do something around Toronto to create some awareness.”"
The
Toronto
Star's
April
20,
2013
article
was
posted
at
http://www.thestar.com/news/gta/2013/04/20/oakville_man_says_restaurant_told_him_to_leave_
hearing_ear_dog_outside.html
One day later, the Toronto Star's April 21, 2013 article stated in part:
"In a statement emailed to the Star on Sunday morning and posted on Facebook,
Spring Rolls apologized for the incident, saying it should never happen again. The
company added it will implement disability training for individual managers.
“Sometimes either they were not aware of, or don’t know how to respectfully and
properly deal with, situations like this,” reads the statement.
But Stelmacovich isn’t the only one to have a service dog barred from a Spring
Rolls restaurant. Graphic design researcher Michelle Hopgood says she was
refused service at the chain’s location at the Atrium on Bay last May.
Hopgood says she was told not to enter with her Special Skills service dog, which
helps her navigate with her impaired mobility. When she proceeded to a table, the
restaurant served Hopgood’s table, but closed down the surrounding section until
the dog left.
Hopgood says she emailed the restaurant and was offered a VIP card, which she
declined. She has since boycotted the chain.
“It was an incredibly demeaning and humiliating experience of which I have
never experienced before,” Hopgood said.
After reading Spring Rolls’ apology, Stelmacovich was initially looking forward
to working with the company to develop anti-discrimination policies.
But after hearing that Hopgood had a similar incident with little support from the
chain, Stelmacovich said, “This is clearly not an isolated incident . . . This is a
little bit concerning now; it sounds more like a systemic problem.”
A Spring Rolls spokesperson said he wasn’t familiar with Hopgood’s complaint
and insisted that service dogs aren’t barred from the restaurant chain. He said the
incident will be used as a lesson when training employees.
“Many people don’t know how to act in the exact scenarios, so they may not
know how to deal with a service dog,” sales and marketing manager Jose Munoz
said."
The
Toronto
Star's
April
21,
2013
article
was
posted
at
http://www.thestar.com/news/gta/2013/04/21/spring_rolls_apologizes_for_treatment_of_hearingi
mpaired_man_with_service_dog.html
After this Spring Rolls incident, the AODA Alliance quickly swung into action. As a result, in a
third article, published in the Toronto Star’s April 22, 2013 on-line edition, we highlighted that
such incidents show that the Government must at long last keep its pledge to effectively enforce
the AODA. If the Spring Rolls restaurant was only then, in the 2013 spring, looking at providing
training on accessible customer service for people with disabilities, it was in violation of the
Customer Service Accessibility Standard. Having had five years to bring themselves into
compliance with the Customer Service Accessibility Standard, there would be no excuse for this.
The Toronto Star's April 22, 2013 article stated in part:
"The Toronto restaurant that told a hearing impaired man to leave his service dog
outside broke more than the Ontario Human Rights Act.
It appears that Spring Rolls contravened a 2008 provision of the Accessibility for
Ontarians with Disabilities Act which requires businesses to implement customer
accessibility policies, including staff training and customer complaints procedures
to ensure people don’t face this kind of discrimination, said disability rights
lawyer David Lepofsky.
Businesses with more than 20 employees were required to report their policies to
the government by Dec. 31, 2012.
“More than five years after the Ontario government enacted the Customer Service
Accessibility Standard under the disabilities act, why are we hearing about alleged
incidents like this?” said Lepofsky, chair of the Accessibility for Ontarians with
Disabilities Act Alliance, a community coalition working to ensure the act is
enforced.
“Why should a person with a disability have to resort to possibly taking a case to
the Human Rights Tribunal . . . when the disabilities act is supposed to be
effectively enforced to reduce the need for such individual litigation?” he added."
The
Toronto
Star's
April
22,
2013
article
was
posted
at
http://www.thestar.com/news/gta/2013/04/22/spring_rolls_restaurant_ignored_customer_accessi
bility_policy_in_barring_service_dog_disability_rights_lawyer_says.html
b) The Government's Few Enforcement Efforts are Too Narrowly
Focused
From all our dealings with the Government, and as illustrated by examples in this brief, the
Government appears to date to have narrowed any enforcement efforts vis à vis the private
sector. It only has taken enforcement steps regarding private sector organizations with at least 20
employees, and even then, only to a small fraction of those organizations.
Its public statements about AODA enforcement since the enforcement issue garnered major
media attention starting in November 2013, only address the Customer Service Accessibility
Standard, not any IASR requirements. As for the Customer Service Accessibility Standard, the
Government's public statements only address the obligation to file accessibility self-reports, and
not any requirements to provide accessible customer service. The Government is acting as if
unless and until obligated organizations must file an accessibility report, they have no AODA
compliance obligations. That is palpably wrong.
By only focusing on private sector organizations with 20 or more employees, the Government
gives an unwarranted free pass to a large part of the private sector. The Government did not
promise to only effectively enforce the AODA vis à vis a small fraction of the private sector. It
promised categorically that the AODA would be mandatory and would apply to the private
sector, pure and simple. To withhold any enforcement for a significant part of the private sector
would be, through the back door, to treat the AODA as in substance a voluntary law, vis à vis a
large part of that sector.
c) The Government Has No Good Reason for Failing to Effectively
Enforce the AODA
The Government has never publicly given Ontarians with disabilities any reasons for not
effectively enforcing the AODA. As indicated above, Minister Hoskins' claim that the AODA
itself is the problem is inaccurate. Had the legislation been the problem, the Government could
have proposed amendments to AODA enforcement provisions at some time in the past nine
years.
We doubt Dr. Hoskins' claim is the true reason for no inspections, compliance orders or
monetary penalties before November 2013. We doubt that is why the Government did nothing to
enforce any accessibility requirements under the IASR. The AODA's enforcement terms did not
prevent the Accessibility Directorate of Ontario from developing, as it did in 2012, an
enforcement plan -- one which the Government never adopted and implemented.
On a number of occasions, the frequency of which we cannot document, when the Government
received complaints about possible AODA violations, or about the lack of a phone number to
report such violations, Government representatives have responded that the AODA is not
"complaints-based legislation." For example, the Government gave this excuse to the Toronto
Star, when the lack of a publicly-advertised phone number for reporting AODA violations was
raised.
On the front page of the Wednesday, January 29, 2014 Toronto Star was an appalling story about
inexcusable accessibility barriers that a woman with a disability reportedly suffered on an intercity bus. It reported that a woman with a disability, taking a one-hour bus ride from Toronto to
Kitchener, suffered a four-hour ordeal. This included accessibility equipment breakdowns and
evidently, insufficient internal staff training and accessibility procedures. It culminated,
according to the Toronto Star, with the victim of this breakdown having to endure some 30
minutes, stranded outside the bus in the freezing cold, on a defective lift, needing to use the
washroom. Firefighters had to be summoned to free her.
The Star quoted the AODA Alliance, pressing the fact that persons with disabilities have no
public number to call to report AODA violations. The Star reported a spokesperson for Dr.
Hoskins as in effect ignoring the Government's promise to enforce the AODA. That
spokesperson reportedly wrongly shifted responsibility to individuals with disabilities to solve
these issues by privately investigating them and presenting a personal discrimination case at the
Ontario Human Rights Tribunal.
The article stated:
"A spokesperson for Eric Hoskins, the minister of economic development, trade
and employment, said the act sets standards; it doesn't play a role in resolving
complaints.
Individuals are encouraged to contact organizations directly. If they feel their
rights are still not being upheld, they can file a complaint with the Ontario Human
Rights Tribunal, said Gabe DeRoche."
Yet the AODA was promised so that individuals with disabilities wouldn't have to endure the
ordeal of battling barriers one at a time, by personally fighting such individual human rights
complaints. The Government must do more than simply enact accessibility standards. It must
effectively enforce them. The Government also thereby omitted its vital role as AODA Enforcer.
The formalistic fact that the AODA does not specify a formal process for individuals to lay
individual AODA violation complaints proves nothing. It does not mean that the Government
must or should refuse to give members of the public an accessible way to alert the Government
about AODA violations. For the Government to give members of the public a way to alert the
Government about AODA violations makes good policy sense, if the aim is to lead Ontario to
full accessibility by 2025.
When the Government addresses the topic of AODA enforcement, it has been our observation
that this discussion too often gets blended with and side-tracked into issues concerning public
education, outreach, and other such strategies to secure voluntary AODA compliance. We agree
that such other activities are valued. However, they are not "enforcement." Enforcement
concerns deployment of the AODA's enforcement powers to audit, inspect, issue compliance
orders and impose monetary penalties, where an obligated organization is not prepared to comply
without their actual or threatened deployment.
d) The Government's Failure to Effective Enforce the AODA Dilutes
Effective Monetary Penalties
The IASR includes a series of provisions on enforcement, focusing on how to calculate monetary
penalties. One important factor when calculating the size of a monetary penalty is an obligated
organization's history or record of past non-compliance. These provisions all rest on the implicit
premise that the Government is effectively enforcing the AODA.
If the Government's enforcement efforts are sparse and paltry, as is demonstrated in this brief, no
obligated organization will likely face more than one monetary penalty in an enforcement cycle.
This makes it far more likely that the smallest monetary penalty will be imposed. That would
trivialize the AODA. It would create a massive economic disincentive against an organization
bothering to comply with the legislation.
For example, s. 83 of the IASR provides in material part:
"(3) For the purposes of paragraph 2 of subsection (1), the contravention history
of the person or organization shall be determined by ranking it as minor, moderate
or major in the following manner:
1. A contravention history is minor where there has been no more than one
previous contravention within the current two reporting cycles period.
2. A contravention history is moderate where there has been between two and five
previous contraventions within the current two reporting cycles period.
3. A contravention history is major where there has been six or more previous
contraventions within the current two reporting cycles period. O. Reg. 191/11, s.
83 (3).
(4) For purposes of this section and subject to subsection (7), the current two
reporting cycles period is determined as follows:
1. A reporting cycle corresponds to the cycle within which a person or
organization must file an accessibility report under subsection 14 (1) of the Act
and begins on the first day the person or organization must file the report and ends
on the last day before the next report must be filed.
2. Subject to paragraph 3, the current two reporting cycles period refers to the
period that begins on the first day of a reporting cycle (“the first reporting cycle”)
and ends on the last day of the next reporting cycle (“the second reporting cycle”).
3. The first reporting cycle in a current two reporting cycles period commences as
an odd reporting cycle, as in the first reporting cycle, the third reporting cycle and
the fifth reporting cycle, and the second reporting cycle in a current two reporting
cycles period commences as an even reporting cycle.
(5) For purposes of determining contravention history in the current two reporting
cycles period, on the first day of the first reporting cycle the contravention history
of the person or organization is deemed to be zero and on the first day of every
odd reporting cycle after that the contravention history of the person or
organization is deemed to be zero. O. Reg. 191/11, s. 83 (5).
(6) If a person or organization filed an accessibility report before July 1, 2011, the
two reporting cycles period is calculated from the first day that the person or
organization was required to file an accessibility report. O. Reg. 191/11, s. 83 (6).
(7) For persons or organizations that are exempted from the reporting
requirements of subsection 14 (1) of the Act, the two reporting cycles period
consists of the 12-month period that begins at the earliest of the following and
ends at the end of each 12-month period:
1. The first day that a director requests reports or information from the person or
organization under section 17 of the Act.
2. The first day that an inspector requires a person or organization to produce a
document, record or thing under subsection 19 (5) of the Act.
3. The first day that the person or organization receives or is deemed to have
received a notice of order under subsection 22 (1) of the Act. O. Reg. 191/11, s.
83 (7).
(8) For persons or organizations to which subsection (7) applies, their
contravention history is deemed to be zero at the end of each 12-month period."
Yet further weakening effective enforcement, the IASR creates a delayed cycle for organizations
to file an accessibility self-report under the IASR. According to s. 86.1 of the IASR, public
sector organizations, including the Government, had to file their first IASR accessibility selfreport at the end of 2013. After that, the Government must again file annually.
However other public sector organizations only must file once every two years. Large private
sector organizations need not file their first IASR accessibility self-report until the end of 2014,
and after that, only once every three years. They only have to file four times before the 2025
deadline is reached, at the end of 2014, 2017, 2020 and 2023. Given the massive non-compliance
with filing accessibility self-reports by private sector organizations with at least 20 employees
under the Customer Service Accessibility Standard, this gives us no comfort or confidence.
It is no surprise that obligated organizations, and those who advise them (e.g lawyers and AODA
practitioners), watch the Government to see if it effectively enforces AODA requirements. When
over a period of years, they see the Government so clearly and obviously not effectively
enforcing the AODA (e.g. no publicized cases of enforcement, publicized monetary penalties
imposed, and scant reference by public officials to AODA enforcement), the signal is clear: they
don't have to worry. The Government will do nothing to them if they do not comply.
e) Final Thoughts
We have heard from those who advise obligated organizations on accessibility and the AODA
that they are undermined by the Government's obvious failure to effectively enforce the AODA.
They try to press obligated organizations to comply, both because it is good for them and the
right thing to do, and because of the enforcement risks if they don't comply. Yet their credibility
is undermined by the Government's protracted, highly visible enforcement inaction.
When we urge individuals and organizations in the disability community to take part in the
Government's process of developing and reviewing AODA accessibility standards, and other
AODA-related public consultations, we increasingly hear skeptical responses. They ask us why
they should invest their scarce time and effort into those AODA activities when the Government
won't be effectively enforcing the AODA. This makes it harder for us to engage the involvement
of the disability community. This in turn undermines achievement of the AODA's goals. The
AODA is designed on a strong foundation of the disability community's ongoing and active
consultative participation.
We know that enforcement resources are limited, not infinite. That does not justify the
Government's failure to effectively enforce the AODA. This is so for several reasons.
First and foremost, as indicated earlier, we have proven that the Government had ample unused
funds allocated each year to the AODA. Second, the Government again repeated its promise of
effective enforcement in the 2011 election, after the last economic downturn. The Government
was then well-aware of Ontario's fiscal situation.
Third, the Government also promised effective enforcement back in 2003 and 2005. It then knew
this would span a 20 year period, with economic ups and downs. It did not promise only to
deliver effective enforcement when times are good. Fourth, Ontario's deficit has not, to our
knowledge, led the Government to abandon enforcement of other important Ontario legislation.
Fifth, for several years, we have advocated for a cost-effective solution. As mentioned earlier, we
have urged the Government to deputize inspectors and investigators under other legislation to
also serve as AODA enforcement officials. This would be in addition to any inspectors and
directors whom the Government designates to work on a fulltime basis under the AODA. The
Government has supposedly had this common sense idea under study for years. As indicated
earlier, in the 2014 election campaign, Premier Kathleen Wynne merely promised to study it.
There is a striking and troubling difference between the way the Government has approached the
enforcement of the AODA and the way it approaches the enforcement of many other laws. It
certainly does not take such a lax approach to the enforcement of Ontario's environmental
legislation. There appears to be a significant denial to Ontarians with disabilities of the equal
protection and the equal benefit of the law.
We agree that before the Government resorts to its enforcement powers with an obligated
organization, the organization should be given enough time to bring itself into AODA
compliance. It would be helpful, though not absolutely necessary if the Government makes
available resources to help obligated organizations comply with AODA accessibility
requirements.
Any preconditions to vigorous AODA enforcement have been met. Obligated organizations have
had many years, indeed too many years, to bring themselves into compliance. Requirements for
accessibility have been the law in Ontario since 1982 under the Human Rights Code and, in the
case of the public sector, the Charter of Rights as well. As addressed later in this brief, time lines
under the IASR, like the Customer Service Accessibility Standard, are often far too long.
Later in this brief we conclude that the Government has done a very inadequate job of educating
the public about the AODA. However, there has been enough opportunity through Government
publicity, media coverage, and the AODA Alliance's own work, for obligated organizations to
have fair notice to comply. In the case of the Customer Service Accessibility Standard, the
Government says it has sent out hundreds of thousands of letters to notify the private sector. The
Government has also provided resources, albeit inadequately publicized ones, to aid
organizations to comply.
It would be wrong to now delay effective enforcement while the Government belatedly ramps up
its publicity of the AODA's requirements, over four years after the Beer AODA Independent
Review urged it to do so. Ontario is only eleven years away from the mandatory deadline for full
accessibility.
Our experience with the AODA's enforcement shows that there is a pressing need to extricate the
AODA's enforcement from any direct political control. It appears to us that while the
Government was promising Ontarians with disabilities that the AODA would be effectively
enforced, it was tacitly signalling to Accessibility Directorate of Ontario not to enforce it, or at
the very least, not giving it any affirmative directions to effectively enforce this legislation. It
seems that it was more likely the former. As mentioned earlier, for years, and up until we
revealed its inaction on enforcement in November 2013, the Government's public statements on
the AODA steered away from any clear, resolved talk of enforcement. It is hard to believe that
the Government meant business on the enforcement front, and was only coincidentally
downplaying any public talk about enforcement in its public statements.
9. Recommendations on The AODA's Enforcement
We urge this Independent Review to recommend that:
*#1. The achievement of a fully accessible Ontario requires the AODA to be effectively
enforced.
*#2. The Government should now effectively enforce all requirements under accessibility
standards, as soon as the applicable time line for compliance with a requirement has been
reached. The Government should not wait for months or years after an accessibility requirement
has become enforceable to enforce it.
*#3. The Government should not just enforce the requirement of certain obligated organizations
to file an accessibility self-report.
*#4. The Government should effectively enforce AODA requirements vis à vis both the public
and private sectors, and vis à vis all classes of organizations within each sector.
*#5. Effective enforcement includes deployment of all enforcement powers as needed to ensure
full compliance with the AODA.
*#6. The Government should immediately give a wide range of Ontario Government inspectors
and investigators under other legislation a full mandate as AODA inspectors or directors. The
Government should give these officials training and instructions to include enforcement of the
AODA when they inspect or investigate an organization for any reason and under any other
legislation.
*#7. The Government should develop an effective strategy for ensuring that municipalities
effectively enforce the Ontario Building Code's accessibility requirements, including
a) providing effective training tools on the Ontario Building Code accessibility requirements that
can be used by municipal enforcement officials;
b) monitoring levels of enforcement and compliance at the municipal level across Ontario
regarding the Ontario Building Code accessibility requirements.
*#8. If it still has not done so by the time of this Independent Review's report, the Government
should immediately make public its promised comprehensive plan on how it will enforce all
requirements enacted in or under the AODA. This plan should substantially increase the level
and breadth of enforcement activities. "Enforcement" refers to deployment of enforcement
powers such as inspections, audits, compliance orders and monetary penalties. This is not meant
to include other voluntary compliance strategies such as public education and offering
compliance resources and supports to obligated organizations. This plan should, at a minimum:
a) have the goal of achieving full compliance with all AODA requirements.
b) apply to and ensure effective enforcement of all AODA requirements whose deadlines have
been reached, as they are reached, without delay;
c) apply to all organizations in all sectors, not merely those organizations with an obligation to
file an accessibility self-report.
d) not withhold enforcement of an AODA accessibility requirement once its compliance deadline
is reached for some arbitrary reason, e.g. until an organization has also reached a deadline for
having to file an accessibility self-report;
e) include the Government's efforts to ensure that the accessibility requirements in the Ontario
Building Code are effectively enforced, and levels of compliance with those requirements.
*#9. If it has not done so by the time of this Independent Review's report, the Government
should immediately establish and widely publicize an accessible toll-free phone number for
members to report violations of AODA requirements. The Government should make public
summaries of complaints received without disclosing names or identifying information about the
caller or obligated organization.
*#10. The Government should publicly report every six months in detail on the steps it has taken
to effectively enforce the AODA, the specific accessibility requirements to which these steps
pertained, the results achieved, the levels of compliance or non-compliance of which the
Government is aware, and any changes to its enforcement plans. This should include the amount
of funds appropriated for, and the funds spent by the Government on implementing the AODA,
including on enforcement.
*#11. To reverse the public perception that the Government is not and will not be effectively
enforcing the AODA, the Government should immediately and widely publicize its enforcement
plans and its intention to substantially increase its efforts at AODA enforcement. This should not
be limited to website postings.
*#12. The Government should within three months of its re-election, establish and make public
protocols to ensure that there is no political interference with or restraining of AODA
enforcement activities and procedures.
Part III. Accessibility Standards Enacted to Date Inadequately
Address Barriers in Areas they Regulate
1. Introduction
Section 7 of the AODA requires the Government to create and implement "all accessibility
standards necessary to achieving the purposes of this Act."
It was wise in 2005-2006 for the Government to choose the first five accessibility standards to
address barriers in customer service, transportation, employment, information and
communication and the built environment. However, the accessibility standards enacted to date
in these areas, while helpful, are grossly insufficient to effectively ensure that all recurring
barriers in those fields are removed and prevented.
At various points, their requirements are too weak. They mostly if not totally only deal with
preventing new barriers, but not removing existing barriers. They leave out important recurring
barriers. At various points, they create exceptions and defences that are broader than the undue
hardship defence under human rights legislation. Their time lines are often too long. Taken
together, they will not ensure that Ontario ever becomes fully accessible, even in the areas they
regulate.
In the following discussion, we first examine the Customer Service Accessibility Standard,
enacted in 2007. We then examine the Integrated Accessibility Standards Regulation (IASR). It
was enacted in June 2011 to address transportation, information and communication, and
employment. It was amended in December 2012 to address public spaces in the built
environment. That is just a small fraction of the barriers facing persons with disabilities in the
built environment. We then discuss the 2013 amendments to the Ontario Building Code. The
Government enacted these amendments to address barriers in the built environment. We
conclude this Part of our brief with reflections and recommendations.
2. The Customer Service Accessibility Standard
The first accessibility standard enacted under the AODA, and the only one which the
Government has tried at all to enforce, albeit to a limited extent, is the Customer Service
Accessibility Standard. It is far too weak. Despite this, it has served as a helpful first "icebreaker" with some obligated organizations. It has helped some obligated organizations get over
early jitters about the AODA, because its requirements are so minimal and obviously good for
any organization that serves the public.
To explain what is problematic with the 2007 Customer Service Accessibility Standard, we
reproduce an excerpt from our analysis of its deficiencies in our April 4, 2014 brief to ASAC on
ASAC's 2014 proposed revisions to the Customer Service Accessibility Standard. That brief
called for the Customer Service Accessibility Standard to be substantially strengthened. It
offered a series of recommendations to that end. Our April 4, 2014 brief to ASAC on its 2014
initial proposed revisions to the Customer Service Accessibility Standard, is available at
http://www.aodaalliance.org/strong-effective-aoda/04082014.asp
"In summary, it is our conclusion that the 2007 Customer Service Accessibility
Standard is very weak and limited. It is no surprise that it has not brought Ontario
on schedule for full accessibility by 2025.
We made public a review and analysis of the Standard on September 12, 2007,
two months after it was enacted. We draw on that analysis here. Our 2007
findings remain fully valid today.
In 2007, we concluded that this accessibility standard is very weak, limited and
ineffective. It will not bring Ontario to a position of having fully accessible
customer services by the AODA’s requirement of January 1, 2025, even if it is
fully implemented. Our September 12, 2007 analysis of the Customer Service
Accessibility Standard is available at http://www.aodaalliance.org/strongeffective-aoda/09122007.asp
1. Standard is Too Weak and Lacks Needed Specifics
The Customer Service Accessibility Standard only covers the providers of goods
and services. It doesn’t cover the providers of facilities. This is a significant
omission. Section 1 of the Human Rights Code guarantees the right to equal
treatment with respect to goods, services and facilities.
This standard is seriously lacking in the specificity we need. It doesn’t do what
the AODA was enacted to do – identify a full range of specific recurring barriers
that must be removed, and to name the dates by which they have to be removed. It
only explicitly addresses a few named barriers, e.g. problems persons with
disabilities face getting customer service if accompanied by a service animal or
support person.
The standard is very, very short - a mere eight pages, including its introductory
materials. If the list of organizations that it governs is removed, it becomes even
shorter. In sharp contrast, well before the Government finalized and enacted this
Standard, the Canadian Standards Association had developed a much longer and
more detailed customer service standard.
Section 3 of the standard is its weak and excessively vague central provision. It
provides:
“3.(1) Every provider of goods or services shall establish policies,
practices and procedures governing the provision of its goods or services to
persons with disabilities.
(2) The provider shall use reasonable efforts to ensure that its policies,
practices and procedures are consistent with the following principles:
1.
The goods or services must be provided in a manner that respects
the dignity and independence of persons with disabilities.
2.
The provision of goods or services to persons with disabilities and
others must be integrated unless an alternate measure is necessary, whether
temporarily or on a permanent basis, to enable a person with a disability to obtain,
use or benefit from the goods or services.
3.
Persons with disabilities must be given an opportunity equal to that
given to others to obtain, use and benefit from the goods or services.
(3) Without limiting subsections (1) and (2), the policies must deal with
the use of assistive devices by persons with disabilities to obtain, use or benefit
from the provider’s goods or services or the availability, if any, of other measures
which enable them to do so.
(4) When communicating with a person with a disability, a provider shall
do so in a manner that takes into account the person’s disability.
(5) Every designated public sector organization and every other provider
of goods or services that has at least 20 employees in Ontario shall prepare one or
more documents describing its policies, practices and procedures and, upon
request, shall give a copy of a document to any person.”
This weak provision doesn’t require organizations’ customer service policies to
actually address all of the listed principles, much less to address them effectively.
It doesn’t require service providers to achieve barrier-free customer services. It
just requires an organization to use reasonable efforts to ensure that its stated
policies, practices and procedures are consistent with the listed vague general
principles.
This doesn't ensure that the accessibility policies an organization establishes will
be strong and effective. It also doesn’t require the organization to actually obey its
own policy. It is grossly insufficient for an organization to simply write a nice
policy and to hand it out on request.
This central provision delegates to service providers far too much discretion to
choose what recurring accessibility barriers to remove and prevent, and to choose
the time lines for removing and preventing them. The AODA requires the
enactment of standards that would themselves set these detailed requirements, not
simply leave to service providers a large preponderance of the choices over them.
This provision also presents real problems for enforcement. How does one show
that “reasonable efforts” weren’t used? The measure of success should be the
removal and prevention of barriers to customer service, not the standard’s vague
requirement of mere reasonable efforts to try to make a policy cover a list of
“principles.”
The time lines in this standard were far too long, especially given the weak,
limited range of actions it requires organizations to take. It gave public service
organizations from the 2007 summer up to January 1, 2010 (or almost 2.5 years)
to start complying. It gave private sector organizations up to January 1, 2012 (or
4.5 years) to comply. This is 4.5 years and 6.5 years respectively after the passage
of the AODA in 2005. The experience about which we have learned shows that
compliance with the Standard's limited provisions would take a matter of weeks
or at worst, months, not years, to complete, for an organization that took it
seriously, with the possible exception of a huge organization like the Ontario
Government, which had thousands of employees to train. People with disabilities
shouldn’t have been forced to wait so long, for organizations providing customer
service to do so little.
The final version of this standard was even weaker than the weak one which the
Ontario Government’s Customer Service Standards Development Committee
proposed as its final recommendation dated February 27, 2007.
For example, that Committee’s final proposal would have required organizations
delivering customer service to actually take certain concrete steps, albeit in terms
that are not sufficiently detailed or specific to live up to the AODA’s aims. The
Customer Service Standards Development Committee's 2007 final proposed
standard (not the one LATER passed into law) provided in part:
“6.1 Accessible and Alternative Customer Service Policy, Procedure and
Practice
Persons and organizations in classes I and II shall establish and implement
practices to deliver accessible customer service consistent with this standard.
Persons and organizations in classes III, IV and V shall establish, implement,
maintain and document policies and procedures to deliver accessible customer
service consistent with this standard.
All customer service policies and practices shall include the following elements:
a)
Commitment to identifying, removing and preventing barriers;
b)
Provision of alternative services;
c)
Presence of accessibility support persons, service animals and assistive
devices;
d)
Information on service disruptions;
e)
Employee and volunteer training;
f)
Customer feedback.
In establishing and maintaining policies, procedures or practices, all classes shall
identify, remove and prevent barriers to accessible customer service.
6.2
Alternative Service
Persons and organizations shall provide alternative customer service until barriers
are removed."
In sharp contrast, as noted above, the Standard which the Government passed
merely requires that services providers "…shall use reasonable efforts to ensure
that its policies, practices and procedures are consistent with the following
principles…."
2. Wrongly Mandates the Creation of a Barrier against Customers with
Disabilities, Which an Accessibility Standard Cannot Do
Especially troubling is the fact that section 4(5) of the standard authorizes some
organizations to create new barriers to impede access to persons with disabilities.
Standards made under the AODA cannot do this. It states:
"4(5) The provider of goods or services may require a person with a
disability to be accompanied by a support person when on the premises, but only
if a support person is necessary to protect the health or safety of the person with a
disability or the health or safety of others on the premises."
Section 4, which includes this provision, applies “if goods or services are
provided to members of the public or other third parties at premises owned or
operated by the provider of the goods or services and if the public or third parties
have access to the premises.”
Under this provision, an organization can force a person with a disability in some
situations to bring a support person with them (presumably at the expense of the
person with a disability). If the person with a disability doesn’t comply, the
organization can refuse to admit the person with a disability.
The vague standard governing this is “only if a support person is necessary to
protect the health or safety of the person with a disability.” There is a real and
serious risk that an organization with an uninformed stereotype-induced
perception of disabilities will wrongly conclude that some person with a disability
poses a health and safety risk to themselves. This provision also doesn’t require
the risk to health and safety to be serious or substantial or imminent, or
preventable by reasonable means short of forcing the person with a disability to
be accompanied by a support person.
This standard lets an organization create this barrier against persons with
disabilities even if a person with a disability, with far superior understanding of
their disability, knows he or she poses no such risk, or concludes that the risk is
one they are prepared to bear. This violates the fundamental dignity of persons
with disabilities to decide what risks they wish to undertake for themselves.
Making this even worse, the standard goes on to potentially let the organization
charge the patron with a disability an added admission fee for the unwanted
support person that the organization forces the person with a disability to bring
with them. Section 4(6) of the standard states:
“4(6) If an amount is payable by a person for admission to the premises or
in connection with a person’s presence at the premises, the provider of goods or
services shall ensure that notice is given in advance about the amount, if any,
payable in respect of the support person.”
A published law journal article co-authored by AODA Alliance chair David
Lepofsky and Prof. Randal Graham, entitled "Universal Design In Legislative
Drafting – How To Ensure Legislation Is Barrier-Free For People With
Disabilities" (2009), 27 National Journal of Constitutional Law pages 129-157,
states the following about this provision:
"It is important to be especially vigilant about and quickly red-flag legislation that
purports to impose added burdens on persons with disabilities, whether all persons
with disabilities or persons designated as having a certain kind of disability.
Strong constitutional justification will be required to defend any such legislation
under section 1 of the Charter as a reasonable limit, demonstrably justified in a
free and democratic society.
An illustration of this can be found in a regulation that the Ontario Government
enacted in 2007 under the Accessibility for Ontarians with Disabilities Act 2005.
Addressed earlier in this article, that statute requires the Ontario Government to
develop, enact and enforce accessibility standards to make Ontario fully
disability-accessible by 2025.
The first accessibility standard the Ontario Government enacted under it aims to
make customer services in Ontario disability-accessible. Yet the Customer
Service Accessibility Standard includes a provision that creates or mandates the
creation of barriers against persons with disabilities. It lets a provider of goods or
services require a customer with a disability to bring a support person with them
(presumably at the expense of the person with a disability) if they are to be
admitted to the premises, and potentially to charge an added admission fee for that
support person, if a support person is necessary to protect the health or safety of
the person with a disability or the health or safety of others on the premises. An
enactment that is supposed to eliminate barriers against persons with disabilities
in accessing goods and services should not give goods and service providers
added power to exclude customers with disabilities, potentially relying on
stereotypes that underestimate the abilities of persons with disabilities and that
exaggerate the risk they pose to themselves or others." (Footnotes omitted)
3. No Requirement for Sufficient Accountable Action to Ensure an Organization
Delivers Accessible Customer Service
The standard doesn’t require organizations, and especially larger organizations, to
put in place an effective means for accountably delivering accessible customer
service. For example, it doesn’t require any large organizations to designate an
official from within their existing staff to be responsible for leading the
organization’s removal and prevention of barriers to access.
4. Training Requirements are Insufficient
In principle, it is good that the standard requires training of persons who deliver
customer service on disability issues. However, the training requirements are
deficient in several important ways. Section 6 of the standard provides:
“Training for staff, etc.
6. (1) Every provider of goods or services shall ensure that the following
persons receive training about the provision of its goods or services to persons
with disabilities:
1.
Every person who deals with members of the public or other third
parties on behalf of the provider, whether the person does so as an employee,
agent, volunteer or otherwise.
2.
Every person who participates in developing the provider’s
policies, practices and procedures governing the provision of goods or services to
members of the public or other third parties.
(2) The training must include a review of the purposes of the Act and the
requirements of this Regulation and instruction about the following matters:
1.
How to interact and communicate with persons with various types
of disability.
2.
How to interact with persons with disabilities who use an assistive
device or require the assistance of a guide dog or other service animal or the
assistance of a support person.
3.
How to use equipment or devices available on the provider’s
premises or otherwise provided by the provider that may help with the provision
of goods or services to a person with a disability.
4.
What to do if a person with a particular type of disability is having
difficulty accessing the provider’s goods or services.
(3) The training must be provided to each person as soon as practicable
after he or she is assigned the applicable duties.
(4) Training must also be provided on an ongoing basis in connection with
changes to the policies, practices and procedures governing the provision of goods
or services to persons with disabilities.
(5) Every designated public sector organization and every other provider
of goods or services that has at least 20 employees in Ontario shall prepare a
document describing its training policy, and the document must include a
summary of the contents of the training and details of when the training is to be
provided.
(6) Every designated public sector organization and every other provider
of goods or services that has at least 20 employees in Ontario shall keep records
of the training provided under this section, including the dates on which the
training is provided and the number of individuals to whom it is provided.”
This provision’s inadequacies include:
a) It doesn’t say it requires any training on the fundamental and vitally important
requirements of the Ontario Human Rights Code, including the duty to
accommodate persons with disabilities in customer service. The Human Rights
Code is the bedrock law on which the Accessibility for Ontarians with Disabilities
Act is founded, and which the AODA seeks to implement. In contrast, training
required under section 7 of the 2011 Integrated Accessibility Standards
Regulation includes training on the Ontario Human Rights Code. Section 7(1) of
the Integrated Accessibility Standard Regulation provides in material part:
"7(1) Every obligated organization shall ensure that training is provided on the
requirements of the accessibility standards referred to in this Regulation and on
the Human Rights Code as it pertains to persons with disabilities …"
b) The standard doesn’t explicitly require training on the organization’s policies
that are made under the standard, nor does it require training on the barriers
persons with disabilities face when seeking equal access to goods, services and
facilities. It addresses at most only some of these topics, and in some cases, only
indirectly.
c) This standard doesn’t require any training to be in person. If the training is
done via detached, impersonal on-line materials alone, which we understand to
often be the case, it is far less effective. People taking on-line training do not have
a chance to ask questions, or to learn directly from people with disabilities, live
and face-to-face. The organization has no way of knowing if the training is
actually making a difference, or if the participant is simply clicking buttons and
links to inattentively rush through it.
d) The standard requires no assessment of the training’s effectiveness. This is
especially troubling given the lack of teeth throughout the bulk of this short
standard.
5. Insufficient Requirements for Customers with Disabilities to Give Feedback to
the Organization
It is good that the standard requires organizations to have in place a system for
persons with disabilities to give the organization feedback on disability-related
customer service. However, this standard doesn’t require persons in position of
authority such as senior management to be told of any feedback received. It does
not require any accountability whatsoever for action taken or not taken on such
feedback. Under this standard, persons with disabilities in large numbers could
repeatedly raise serious accessibility problems with the organization, while the
persons in a position to change the organization’s direction need never know
about that feedback or do anything about it.
Under this standard, larger organizations must give persons with disabilities a
document describing the feedback process if asked. However it doesn’t require
any organization to let their patrons know proactively about the availability of a
feedback process if they don’t ask. Section 7 provides:
“7.(1) Every provider of goods or services shall establish a process for receiving
and responding to feedback about the manner in which it provides goods or
services to persons with disabilities and shall make information about the process
readily available to the public.
(2) The feedback process must permit persons to provide their feedback in
person, by telephone, in writing, or by delivering an electronic text by email or on
diskette or otherwise.
(3) The feedback process must specify the actions that the provider of
goods or services is required to take if a complaint is received.
(4) Every designated public sector organization and every other provider
of goods or services that has at least 20 employees in Ontario shall prepare a
document describing its feedback process and, upon request, shall give a copy of
the document to any person.”
6. Insufficient Requirement for Notifying the Public of the Availability of
Accessible Customer Service
For accessible customer service to make a difference, customers with disabilities
must be informed that it is available. The standard’s provisions for notifying the
public about the availability of accessible services are seriously inadequate. They
require some service providers in some situations to prepare a document that
persons with disabilities can get on request that sets out some accommodations
that the service provider will make for their disability. Commendably, this
document must be available in alternative formats for persons with disabilities
who cannot read print.
However, the standard doesn’t require the service provider to give persons with
disabilities barrier-free notification that this accessible document is available.
Instead, sections 8 and 9 of the standard let the service provider merely post a sign
on their premises or a notification on their web site about the availability of the
document.
Posting a sign in a public place will not accommodate the needs of a person who
cannot read print due to blindness, low vision, or dyslexia. Posting on the internet
is only effective for persons with disabilities who can and do use the internet.
Even then, it only assists persons with disabilities if the service provider has
ensured that their website complies with international standards for website
disability accessibility. This standard, however, doesn’t require service providers
to ensure that their websites are disability accessible.
Fortunately, the 2011 Integrated Accessibility Standard regulation imposes a
number of important website accessibility requirements. However that regulation
does not impose those on all organizations. Moreover, it sets excessively and
unjustifiably long time lines for compliance.
In the interim, the customer service standard doesn’t ensure that a notification
described above on a website will be accessible to all persons with disabilities
who use the internet, even if the organization can readily and easily achieve this
now.
Section 4(7) of the standard states:
“(7) Every designated public sector organization and every other provider
of goods or services that has at least 20 employees in Ontario shall prepare one or
more documents describing its policies, practices and procedures with respect to
the matters governed by this section and, upon request, shall give a copy of a
document to any person.”
Similarly, section 5(4) states:
“(4) Every designated public sector organization and every other provider of
goods or services that has at least 20 employees in Ontario shall prepare a
document that sets out the steps to be taken in connection with a temporary
disruption and, upon request, shall give a copy of the document to any person.”
Sections 8 and 9 address how these documents are to be made available and how
the public is to be notified about them:
“8.(1) Every designated public sector organization and every other provider of
goods or services that has at least 20 employees in Ontario shall notify persons to
whom it provides goods or services that the documents required by this
Regulation are available upon request.
(2) The notice may be given by posting the information at a conspicuous
place on premises owned or operated by the provider, by posting it on the
provider’s website, if any, or by such other method as is reasonable in the
circumstances.
9.(1) If a provider of goods or services is required by this Regulation to give a
copy of a document to a person with a disability, the provider shall give the
person the document, or the information contained in the document, in a format
that takes into account the person’s disability.
(2) The provider of goods or services and the person with a disability may
agree upon the format to be used for the document or information.”
7. Insufficient Requirements Regarding Accessible Public Notification of Service
Disruption
The standard permits a barrier-ridden process regarding notification of patrons
about service disruptions. Section 5 provides in material part:
“5. (1) If, in order to obtain, use or benefit from a provider’s goods or
services, persons with disabilities usually use particular facilities or services of the
provider and if there is a temporary disruption in those facilities or services in
whole or in part, the provider shall give notice of the disruption to the public.
(2) Notice of the disruption must include information about the reason for
the disruption, its anticipated duration and a description of alternative facilities or
services, if any, that are available.
(3) Notice may be given by posting the information at a conspicuous place
on premises owned or operated by the provider of goods or services, by posting it
on the provider’s website, if any, or by such other method as is reasonable in the
circumstances.”
This provision suffers from the same problems we describe above, regarding the
insufficient accessibility of posting printed material on a public sign or a website.
8. Ontario's Human Rights Legal Support Centre is not Required to Comply with
the Standard
The standard lists a range of public agencies that must obey the standard,
including, among others, the Ontario Human Rights Commission and the Human
Rights Tribunal of Ontario. Remarkably, it didn't include the Government’s new
Human Rights Legal Support Centre, established in 2008 under the Ontario
Government’s widely-criticized Bill 107.
By the time the Human Rights Commission was required to start complying with
this standard, discrimination victims like persons with disabilities were no longer
able to file their human rights complaints with the Human Rights Commission.
This is because Bill 107 privatized human rights enforcement, and took away
from discrimination victims the right to have the Human Rights Commission
investigate and (where appropriate) prosecute their discrimination cases. Instead,
Bill 107 forces discrimination victims like persons with disabilities to find their
own lawyer to investigate and present their discrimination case.
The Government’s Bill 107 created a new Government-funded Human Rights
Legal Support Centre to provide legal help to discrimination victims. However,
that under-funded Centre only got a fraction of the Human Rights Commission’s
pre-Bill 107 under-funded budget level. To learn more about Bill 107, visit:
www.aodaalliance.org/reform/default.asp
In December 2006, when Bill 107 was before the Legislature, the opposition
Conservatives proposed an amendment to Bill 107 to require the Human Rights
Legal Support Centre to have a disability accessibility policy. The NDP supported
this, too. The governing Liberals used their majority to defeat that amendment.
9. Lessons Learned from Experience with the Implementation of the Customer
Service Accessibility Standard
From our ongoing contact with persons with disabilities, with disability
organizations around Ontario, and with obligated organizations, it is clear that the
actual experience with the Customer Service Accessibility Standard does not
reduce any of the foregoing concerns. It is commendable that a number of
organizations have acted to implement the standard. From reports in the media
and elsewhere, it is also evident that some organizations have commendably gone
further than the Standard's requirements.
However it is also clear from our collective experience that too many
organizations, particularly in the private sector, did nothing to implement the
Customer Service Accessibility Standard for several years after it was enacted.
Indeed, as discussed later in this brief, as of November 2013, fully ten months
after the final deadline for filing compliance self-reports, over 70% of private
sector organizations with at least twenty employees were in clear violation of the
Standard. Making matters worse, the Government's publicity of this Standard and
other accessibility standards under the AODA has been palpably inadequate and
low profile. Moreover, the Government did not send a clear public message to
obligated organizations that it would keep its promise to effectively enforce the
AODA, until we recently made public the embarrassing fact of the massive noncompliance with the AODA, and the Government's failure to effectively enforce
it.
In retrospect, the time lines in this Standard should have been years shorter. Nine
of the twenty years for achieving a fully accessible Ontario have now passed.
Only eleven remain. Yet as we stated earlier, Ontario is in our experience
nowhere near the halfway mark to fully accessible customer service.
The fact that the Government enacted detailed provisions on the accessibility of
information and communication in the 2011 Integrated Accessibility Standard
Regulation is further proof that the 2007 Customer Service Accessibility Standard
was substantially inadequate. Providing effective and accessible information and
communication is a key part of effective customer service. Yet the 2007 Customer
Service Accessibility Standard did not include the range of accessible information
and communication requirements that were later to be established in the
Integrated Accessibility Standard Regulation. The Integrated Accessibility
Standard Regulation was needed to help fill a huge gap that the weak Customer
Service Accessibility Standard unjustifiably left…"
3. The Integrated Accessibility Standard Regulation IASR
a) Overview
The IASR includes helpful provisions and targets recurring barriers that need to be addressed.
However, it includes several serious deficiencies. When it was first enacted in June 2011, we
commended the Government for it, despite its deficiencies. We here examine the entire IASR,
including both the original provisions enacted in June 2011 to address barriers in transportation,
employment and information and communication, and the provisions which the Government
added to it in December 2012 to address barriers in public spaces of the built environment.
b) All Known Recurring Barriers are Not Addressed
It is good that the IASR attempts to address a number of known recurring accessibility barriers in
transportation, employment, information and communication, and public spaces in the built
environment. However, it does not address a number of well-known and serious recurring
barriers in these areas.
For example, its transportation provisions do not address recurring barriers in public transit
stations, such as bus, train or subway stations. If a person cannot get full access to transit
stations, this dramatically limits whether he or she can fully access transit services offered there.
What is the point of having accessible public transit vehicles if persons with disabilities cannot
get to them?
As well, the IASR's information and communication provisions exempt information and
communication barriers in products or product labels, unless it otherwise specifically includes
them. Section 9(2) of the IASR provides in material part:
"(2) The information and communications standards do not apply to the
following:
1. Products and product labels, except as specifically provided by this Part…"
This means that an organization need not address these barriers under the IASR, even though
there is a duty to do so under the Human Rights Code. Section 1 of the Human Rights Code
guarantees, among other things, the right to equal treatment with respect to goods, without
discrimination because of disability.
As but one illustration of how this inadequately serves persons with disabilities, an organization
of people with vision loss in British Columbia, Access for Sight Impaired Consumers,
announced on June 3, 2014 that it filed a complaint with the B.C. Human Rights Tribunal against
WalMart and Shoppers Drug Mart, for refusing to accommodate customers with vision loss. It
alleges that these large private sector organizations refused to provide accessible labels for
prescription drugs, using a technology that has been successfully deployed in the U.S. ASIC's
June 3, 2014 news release provides in part:
An advocate for the blind has filed separate representative human rights
complaints against WalMart Canada Corporation and Shoppers Drug Mart,
charging them with discrimination against people with print disabilities for
dispensing prescription medication with information in a non-accessible format
(print labels only).
"Despite our best efforts to make both organizations aware of technology that
overcomes this barrier for people who are blind or partially sighted or who have
other print disabilities, their pharmacies continue to dispense prescription
medications based only on the pharmacists' verbal information" says Rob Sleath,
Chair of Access for Sight Impaired Consumers. "The print label affixed to the
prescription bottle has no value for a person who is blind or partially sighted.
And, suggesting that patients may contact their pharmacist by telephone to discuss
their medications does little good when we are trying to identify one particular
medication amongst several others in our medicine cabinet."
Sleath has been corresponding with WalMart Canada since April 2013 and
Shoppers Drug Mart since May 2006, encouraging them to affix an RFID label to
prescription medications. The RFID label and companion audio device,
manufactured by En-Vision America, reads aloud critical dosage information,
possible side effects and other important information. An audio demo is available
at http://www.asicbc.ca/Pages/Successful-Initiatives.aspx
"Providing an RFID label with each prescription would enable a person who is
blind or partially sighted to confidently and independently manage their
prescriptions properly, eliminate any confusion as to which medication is which
and dramatically reduce the likelihood of taking prescription medications
incorrectly." Sleath says, "We are disappointed we have had to file this action
when other pharmacy outlets have readily understood the importance of providing
such critical information to their patients with vision loss. We were optimistic
Shoppers Drug Mart and WalMart Canada would voluntarily accommodate their
patients with vision loss given the dangers associated with improper medication
management."
c) The IASR Mainly Addresses Preventing New Barriers, Not Removing
Existing Barriers
The IASR deals almost exclusively with preventing new barriers, but not with removing existing
barriers.
One of the most troubling of the many inappropriate exemptions in the IASR is that provided for
inaccessible public transit vehicles. Section39 and 40 of the IASR provide:
"39. Where a conventional transportation service provider has, on June 30, 2011,
existing contractual obligations to purchase vehicles that do not meet the
requirements of sections 53 to 62, the transportation service provider may honour
the existing contract.
Transition, existing vehicles
40. (1) Conventional transportation service providers are not required to retrofit
vehicles that are within their fleet as of July 1, 2011 in order to ensure that the
vehicles meet the accessibility requirements of sections 53 to 62. O. Reg. 191/11,
s. 40 (1).
(2) If a conventional transportation service provider modifies a portion of a
vehicle to which subsection (1) applies in a way that affects or could affect
accessibility on or after July 1, 2011, the transportation service provider shall
ensure that the modified portion meets the requirements of sections 53 to 62. O.
Reg. 191/11, s. 40 (2).
(3) Where subsection (2) applies and the modification is with respect to matters
referred to in section 53, 55, 57 or 61 or subsection 62 (2), the conventional
transportation service provider does not have to meet the requirements of those
provisions if the modifications would impair the structural integrity of the vehicle
or the mobility aid accessible rail car. "
Our March 11, 2011 brief to the Ontario Government on the draft final IASR urged that these
provisions be deleted. The Government did not act on our recommendation. We wrote:
"Section 39 - Transition, Existing Contracts
Section 39 sets out a completely inappropriate exemption for inaccessible buses
contracted for before July 1, 2011. This violates the requirement that the Supreme
Court of Canada enunciated in Council of Canadians with Disabilities v. ViaRail,
referred to above, that new barriers not be created in the acquisition of new public
transit vehicles.
There is no good reason why any public transit authority in Ontario should have
entered into any contract to buy inaccessible passenger vehicles. The
Transportation Accessibility Standard has been under development since 2006.
The public transit sector has been actively involved in its development at all
stages. These requirements for accessibility could not be a surprise to them, now
or in the past several years.
Moreover, the Ontario Human Rights Commission recently warned all public
transit authorities against contracting to buy new inaccessible passenger vehicles.
It clearly implied that this provision in the draft IAR flies in the face of the
Human Rights Code. See:
http://www.aodaalliance.org/strong-effective-aoda/02172011.asp ...
…Section 40 - Transition Existing Vehicles
Section 40 includes a comparably improper blanket exemption from any retrofits
of any existing passenger vehicles even if they will be in service for the next 20
years, and even if the retrofits can be achieved without any hardship, much less
undue hardship. A narrow exemption from this exemption is created where a
passenger vehicle is modified for other purposes. Even then, accessibility retrofits
are only required for those parts of the vehicle that are otherwise modified. That
may accomplish nothing for people with disabilities."
These provisions entirely disregard and contradict the Supreme Court of Canada's decision in
Council of Canadians with Disabilities v. ViaRail Canada Inc. [2007] 1 S.C.R. 650. That case
held that ViaRail violated human rights provisions in the Canadian Transportation Act when it
bought new inaccessible passenger train cars. A narrower provision could have applied these
new requirements to earlier transit vehicles, except in limited situations which could an undue
hardship under the Human Rights Code.
As well, the Public Spaces built environment provisions of the IASR only address built
environment barriers in new construction or redevelopment of those public spaces it regulates,
such as recreational trails, beach access routes, exterior paths of travel, public parking and public
service areas inside buildings. (See IASR ss.80.1 to 80.44) The IASR's Public Spaces provisions
exempt any existing barriers except where otherwise provided. Section 80.2 provides:
"Except as otherwise specified, this Part applies to public spaces that are newly
constructed or redeveloped on and after the dates set out in the schedule in section
80.5…"
When the AODA was enacted in 2005, it was widely recognized that Ontario was full of serious
barriers against persons with disabilities. The AODA was meant to remove existing barriers as
well as preventing new barriers. That is why the Ontario Government allocated a full twenty
years for reaching full accessibility. Had the AODA been aimed solely at preventing new
barriers, that twenty-year period would have made no sense. It would have been far too long.
If accessibility standards under the AODA mainly or only address new barriers, Ontario will not
reach full accessibility by 2025, or ever.
d) Too Often, IASR Accessibility Requirements Are Too Weak
As noted earlier, a number of IASR provisions are helpful. However, in a disturbing number of
areas, the IASR's accessibility guarantees are quite inadequate. Since the IASR aims primarily if
not exclusively at preventing new barriers, the recurring weakness of its provisions is particularly
difficult to justify.
Barrier prevention often costs little or nothing. If a new barrier is created, the cost of later
removing it is typically much higher. Moreover, when a preventable new barrier is created,
Ontario must suffer the avoidable costs and personal hardships that the new barrier inflicts, until
it is later removed. Here are some key representative examples.
First, public libraries use the public's tax dollars to provide a vast array of printed information for
free to the public. Yet libraries don't make the vast majority of that content available in an
accessible format for people with vision loss or dyslexia, or who otherwise cannot read print.
To fill this gap, Canada, unlike the U.S., does not have a national public library that provides free
access to a wide array of printed material to persons with disabilities in an accessible format. It is
principally left to the non-profit charitable sector, such as the CNIB, to fill this gap, except for
children with print disabilities in public schools.
To address this gap, s. 19(1) of the IASR requires public libraries to "provide access to or
arrange for the provision of access to accessible materials where they exist." That is a vague and
minimal requirement.
Section 19(3) merely adds that public libraries "may provide accessible formats for archival
materials, special collections, rare books and donations." By saying "may", it doesn't require
public libraries to ever provide any accessible formats for archival materials, special collections,
rare books and donations.
Second, there are several instances when the IASR sets a duty that sounds more diluted than the
Human Rights Code's duty to accommodate. The IASR's employment accessibility provisions
mainly seek to implement an employer's duty under the Human Rights Code to accommodate the
needs of employees with disabilities. However, in several places, the IASR only requires an
employer to "take into account" an employee's accessibility needs, rather than a stronger
requirement that the employer shall meet that employee's accessibility needs.
Section 30(1) provides:
"An employer that uses performance management in respect of its employees
shall take into account the accessibility needs of employees with disabilities, as
well as individual accommodation plans, when using its performance
management process in respect of employees with disabilities."
Section 31(1) states:
"An employer that provides career development and advancement to its
employees shall take into account the accessibility needs of its employees with
disabilities as well as any individual accommodation plans, when providing career
development and advancement to its employees with disabilities."
Section 32(1) specifies:
"An employer that uses redeployment shall take into account the accessibility
needs of its employees with disabilities, as well as individual accommodation
plans, when redeploying employees with disabilities."
Merely taking into account an employee's accessibility needs is not sufficient. An employer
might argue that they took these into account, by simply thinking about them, without actually
doing anything about them, even when doing something about them would cause the employer
no undue hardship. From the enforcement perspective, it is harder to prove that an employer
didn't think about an employee's accessibility needs. It is easier to prove that the employer did
not in fact provide a needed accommodation.
Similarly, section 6(1) of the IASR obliges public sector organizations to "incorporate
accessibility features when designing, procuring or acquiring self-service kiosks." However,
section 6(2) imposes a weaker duty on private sector organizations to simply "have regard to the
accessibility for persons with disabilities when designing, procuring or acquiring self-service
kiosks." That private sector organization obligation seems only to require a private sector
organization to think about accessibility, not to actually ensure accessibility, even when it is
readily achievable. Since this focuses only on acquiring new self-service kiosks, there is no
downside to imposing the same stronger requirement on private sector organizations as it does on
public sector organizations. It will not help Ontario reach full accessibility by 2025 for private
sector organizations to now acquire new inaccessible self-service kiosks. It does not help for the
IASR to lead private sector organizations to think it is permissible to continue deploying new
inaccessible electronic self-serve kiosks, so long as they first ponder about accessibility, even for
just a moment.
Third, it is commendable that s. 38(1) of the IASR bans transit providers from charging persons
with disabilities a second fare when accompanied by a support person. However, s. 38(2) creates
a requirement for persons with disabilities which is unclear and potentially very arbitrary in the
hands of transit providers. Section 38(2) provides:
"It is the responsibility of a person with a disability to demonstrate to a
transportation service provider described in subsection (1) their need for a support
person to accompany them on the conventional or specialized transportation
service and to ensure that the appropriate designation for a support person is in
place."
This provision does not set criteria for proving that a person with a disability needs a support
person. It does not clarify who within a transportation provider shall make this decision, nor how
they will make it, nor whether there must be a right of appeal from a refusal. The provision refers
to an "appropriate designation" for the support person, without clarifying what this is.
Fourth, the IASR provides inadequately for addressing the need for para-transit providers to clear
the excessive waiting lists and backlogs that persons with disabilities too often suffer on their
services. Para-transit services are not available with the reliability and ready availability that
people routinely enjoy on conventional public transit systems.
Section 42(1) of the IASR requires para-transit services to simply:
"(a) identify the process for estimating the demand for specialized transportation
services; and
(b) develop steps to reduce wait times for specialized transportation services."
This does not require para-transit services to ever succeed in reducing wait times for their
services, even if a reduction can be accomplished without undue hardship. In their accessibility
plans, they must simply think about it, and plan something to address it, no matter how little and
how ineffectually.
Fifth, section 43(1) of the IASR sets virtually toothless requirements for conventional and paratransit services to plan ahead for ensuring that accessibility equipment works. Too often persons
with disabilities find that this equipment is not working, and takes too long to get repaired.
Section 43(1) provides:
"Conventional transportation service providers and specialized transportation
service providers shall, in their accessibility plans, describe their procedures for
dealing with accessibility equipment failures on their respective types of
vehicles."
This provision does not require those procedures to be adequate or effective. It does not require
those procedures to be improved, even if they are known to be inadequate, and even if an
improvement is readily achievable.
Sixth, section 58 provides for accessible signage on public transit vehicles. However it lacks the
rigour and detailed specificity that we repeatedly sought, to ensure that signage is truly
accessible to people with low vision. For example, it uses vague terms for text on a sign
requiring it to be "high colour-contrasted with its background, in order to assist with visual
recognition." This leaves it to each transportation provider in their uninformed discretion to
design how accessible the signage shall be. It thus runs the risk of insufficient accessibility,
difficulties with enforcement, and wasteful duplication of efforts by each transportation provider
as each struggles to figure out what this requires.
Seventh, section 62(1) requires any passenger train to have only one accessible passenger car.
This is entirely inadequate. It falls far short of true equality. If that one car is jammed, or out of
order, passengers with disabilities are left out in the cold.
Eighth, section 68 of the IASR, if applied in the way that the transportation sector would like,
threatens to serve as and escape hatch that will let obligated organizations circumvent core
accessibility needs of people with disabilities. It permits a transportation provider to provide to
persons with disabilities an "overall package of transportation services."
This could let the transportation provider decide how they will provide their service to an
individual, whether through conventional transportation, para-transit or some combination of the
two. The transportation provider's decision threatens to become the final word.
Section 68 of the IASR provides in material part:
"Origin to destination services
68. (1) Every specialized transportation service provider shall provide origin to
destination services within its service area that takes into account the abilities of
its passengers and that accommodates their abilities. O. Reg. 191/11, s. 68 (1).
(2) Origin to destination services may include services on any accessible
conventional transportation services. O. Reg. 191/11, s. 68 (2).
(3) For the purposes of this section, origin to destination services refers to the
overall package of transportation services that allows a specialized transportation
service provider to provide, in a flexible way, transportation services in a manner
that best meets the needs of persons with disabilities."
The transportation sector very much wanted this "escape hatch" language in the IASR. Earlier in
the standards development process, they used the term "family of services" for that purpose.
They later cosmetically changed it to "package of services" when the disability community
vehemently objected to the concept. The name was superficially changed, but not the thrust of
the provision.
Our March 11, 2011 brief to the Government on the final draft proposed IASR maintained our
objection to this proposed provision, even after the superficial change of its name was inserted
into the draft IASR:
"Section 68 - Origin to Destination Services
This seriously flawed provision reflects the public transit sector's relentless effort
to ensure that the regulation enshrine its regressive and troubling "family of
services" approach. This flawed approach leave it to the sweeping discretion of
transit providers to deliver services however they wish, and then claim they have
met their accessibility obligations. In this latest version, the slightly-modified
term "package of services" is used, instead of "family of services," to reflect the
same troubling approach. It should be eliminated.
We accept that para-transit services might be delivered by a para-transit vehicle or
by a taxi, booked and paid for by the para-transit service, and made available for a
single para-transit fare that meets the fare parity requirements of this regulation.
This provision should be amended to that end.
Moreover, this provision should provide that the area of service that the paratransit service will cover will be the same as that covered by the conventional
transit service in the same area.
At that time, we recommended that this provision be deleted from the draft IASR, and replaced
with a provision that:
(a) allows para-transit services to be delivered either via a para-transit vehicle or
via an accessible taxi, so long as the service meets the regulation's fare parity
requirements, and
(b) Requires a special transportation services provider, in its accessibility plan
under Part I, to explore alternative options for delivering specialized
transportation services, including by accessible taxicabs.
(c) requires that the para-transit area of service is at least the same territory as that
covered by the conventional transit service in that community."
Regrettably, the government did not implement our proposal.
Ninth, in several critically important areas, accessible taxi cabs and accessible bus stops, the
IASR sets no substantive provincial accessibility standards at all. We provide several
illustrations of this.
Sections 78 and 79 of the IASR simply require municipalities to make plans for accessible bus
stops and taxis. Under ss. 78 and 79, there may end up being no new accessible bus stops or taxis
on the road, depending on the whim of each municipality, as each creates whatever plan for them
that it wishes.
The IASR leaves it to each municipality to decide what features a taxi must have in order to be
accessible, how many cabs need to be accessible, which bus stops need to be accessible, and
what features are needed to make a bus stop accessible. This forces each municipality to reinvent
the accessibility wheel -- something the AODA was intended to prevent. This in turn requires
Ontarians with disabilities to have to lobby one municipality at a time, across Ontario. That is an
enormous and unfair burden, just to win the same accommodation in each community across
Ontario.
The criteria for an accessible taxi or bus stop should be the same across Ontario. One
accessibility standard is supposed to set these standards for all Ontarians, so that such wasteful,
redundant efforts are not needed. The result of the IASR is an enormous waste of effort and time
across Ontario, and unneeded delays in reaching the goal of full accessibility by 2025.
It is good that the IASR's Public Spaces provisions address the accessibility of outdoor play
spaces. However, the IASR sets no specific standards or technical requirements for them. It
merely requires obligated organizations to consult persons with disabilities on the needs of
children and caregivers with disabilities, and to incorporate accessibility features, such as
sensory and active play components, into the design of outdoor play spaces. It also requires them
to ensure that outdoor play spaces have a ground surface that is firm, stable and has impact
attenuating properties for injury prevention, and sufficient clearance to provide children and
caregivers with various disabilities the ability to move through, in and around the outdoor play
space." (See s. 80.20)
Here again, there is no need to require all obligated organizations to wastefully repeat
consultation work. Children with disabilities need the same accessibility in a play space,
wherever in Ontario it may be. Their needs don't depend on the municipality where they live and
play. Moreover, it is unreasonable to expect persons with disabilities and their parents to know
the technical specifications to build into an outdoor play space. There are good models for such
technical specifications in the U.S. to address outdoor play areas.
The IASR's requirement for ensuring accessible parking on public streets (as opposed to offstreet parking lots) is very minimal. It merely requires public sector organizations, principally
municipalities, to consult on the need, location and design of accessible on-street parking spaces.
(See s. 80.39).
The IASR leaves municipalities free to not increase the number of accessible parking spots on its
streets. It yet again forces each municipality to reinvent the wheel, and forces persons with
disabilities to have to separately lobby every Ontario municipality.
It is very good that the IASR's Public Spaces provisions set new accessibility requirements for
public service areas in buildings, including accessible counters, fixed queuing guides and waiting
areas. However, here again, the Government counterproductively missed an important
opportunity to set specific standards. The IASR requires at least one accessible service counter.
Yet s. 80.41(2)sets vague requirements for these, as follows
"(2) The service counter that accommodates mobility aids must meet the
following requirements:
1. The countertop height must be such that it is usable by a person seated in a
mobility aid.
2. There must be sufficient knee clearance for a person seated in a mobility aid,
where a forward approach to the counter is required.
3. The floor space in front of the counter must be sufficiently clear so as to
accommodate a mobility aid."
Obligated organizations want and need to know what counter height and knee depth they must
use, to avoid a violation of the IASR. The IASR does not tell them this. Each organization should
not be saddled with a need to retain consultants for advice on this, hoping the height and knee
depth they pick will meet this imprecise standard.
This cries out for clear technical specifications. In sharp contrast, the IASR provides helpful
technical specifications in other areas, such as recreational trails and off-street accessible parking
spots. In its evident fear to step on the toes of obligated organizations, the Government has done
them, as well as persons with disabilities, a major disservice.
Needed specifics is similarly lacking in s. 80.42 for new fixed queuing guides, as follows:
"1. The fixed queuing guides must provide sufficient width to allow for the
passage of mobility aids and mobility assistive devices.
2. The fixed queuing guides must have sufficiently clear floor area to permit
mobility aids to turn where queuing lines change direction.
3. The fixed queuing guides must be cane detectable. O. Reg. 413/12, s. 6."
It is helpful that s. 80.28 requires the installation of audible pedestrian signals. However that
provision does not require that these devices operate automatically. Under the IASR, a
municipality can require a person with vision loss to have to navigate around an intersection
corner, just to find the device mounted on a telephone pole, and to push a button before the
device will emit audible traffic light signals. We are concerned that many if not most people with
vision loss will not bother to do this, especially in cold weather. This may result in municipalities
spending money on these devices, and then complaining that people don't benefit from them.
We regret that the Government did not heed our advice. In our submissions to the Government
on the Public Spaces provisions of the IASR in 2012, we recommended that the IASR should
require audible pedestrian signals to operate automatically without any need for a person with
vision loss to find and trigger it. Sighted people don't need to push a button to get traffic lights to
be operated and understandable. People with vision loss deserve no less.
e) IASR Exemptions from Accessibility Requirements Are Often Too
Broad
The IASR too often includes exceptions or exemptions from its accessibility requirements that
are far broader than those available under the Human Rights Code. As such, they leave too much
scope for an organization to create new barriers even though the Human Rights Code would
forbid this in the same situation. These make it harder for Ontario to reach full accessibility by
2025. They also expose an obligated organization to a successful human rights claim, even
though that organization has complied with the IASR. Here are some salient examples.
(i) Unjustified Blanket Exemptions for Small Private Sector Organizations
The IASR categorically exempts small private sector organizations (those with under 50
employees) from a range of important accessibility obligations. It does so even if complying with
them would cause those organizations no undue hardship, or no hardship at all. It cannot be
established that it would be an undue hardship, even on a go-forward basis, for any small private
sector organization to ever meet any of these exempted accessibility requirements.
This cuts a very large part of the private sector out of the picture. Persons with disabilities do not
only or even primarily deal with large private sector organizations.
As well, by defining exempted organizations by the number of employees, the IASR erroneously
treats an organization as "small" even if it has a huge revenue stream, and substantial assets. A
small private sector organization could have ample capacity to deliver accessibility more
quickly.
Moreover, the IASR requires an organization to have at least one employee for the IASR to
apply to it. Hence, it may be viewed as entirely exempting a sole proprietorship which is owneroperated, and which has no employees. Yet such organizations also have a duty under the
Human Rights Code to remove and prevent barriers to the accessibility of its goods and services.
There is no reason why owner-operated sole proprietorships should be entirely exempted from
the IASR.
As a first example, Section 3(2) of the IASR exempts small organizations from having to include
in their accessibility policy "a statement of organizational commitment to meet the accessibility
needs of persons with disabilities in a timely manner." Small organizations as well as large
organizations have an obligation to meet the accessibility needs of persons with disabilities in a
timely manner. There can be no justification for exempting small organizations from the
requirement to include this in their accessibility policy. This sends the wrong signal to such
organizations that they need not truly be committed to this.
Second, section 3(3) of the IASR exempts small organizations from the requirement to set out
their accessibility policy in written form, and from the requirement to make it available to the
public. This undermines effective enforcement of the IASR for the large number of small
organizations in Ontario. If an organization need not have the policy in writing, how is one to
prove that the organization has no accessibility policy? If a member of the public or AODA
inspector asks for their policy, a director or employee of the small organization need simply say:
"Yes we have an accessibility policy. It's in my head!" If the policy need not be provided to a
member of the public, how is a member of the public to hold that organization to that policy?
A requirement to set out the policy in writing and to make it publicly available creates an
incentive for the organization to create such a policy, and to devote effort to ensure that it is a
good policy. To not require that the policy be in writing is to strip that incentive away. That
undermines the AODA's goals.
Third, section 4 exempts small private sector organizations from the requirement to develop a
multi-year accessibility plan "which outlines the organization’s strategy to prevent and remove
barriers and meet its requirements under this Regulation." Planning for accessibility is a core part
of the IASR's strategy. If small private sector organizations do not need to have any accessibility
plan at all, this cuts them out of a large part of the IASR.
One of our gains in the IASR is that this accessibility plan, for those organizations that must
make one, must not only address the specific barriers that the IASR addresses. It must also
include the organization's strategy for removing and preventing barriers. By exempting small
private sector organizations from this planning requirement, the IASR is gutting this gain that we
had won, for a large part of the private sector.
We accept that there can be imposed a less-detailed planning obligation on small private sector
organizations. However that does not justify a total exemption from any planning obligations at
all.
This is all the more problematic when this exemption is combined with the exemption just
discussed, from the requirement to set out the organization's accessibility policy in writing. The
Government's limited approach to AODA enforcement has focused primarily if not totally on
inspecting and auditing an organization's compliance documents. If no compliance documents
need to be prepared, there is no paper trail to audit.
Fourth, section 8 of the IASR gives all small private sector organizations a blanket, indefinite
exemption from filing an accessibility report under the IASR. This provision does not simply
delay the filing of an accessibility report by small private sector organizations. It eliminates the
requirement altogether.
This dramatically weakens AODA enforcement. The key way we have documented the massive
non-compliance with the Customer Service Accessibility Standard by private sector
organizations with at least 20 employees, is via the Government's records of how many of those
organizations had filed accessibility reports. Moreover, as addressed in Part II of this brief, the
only enforcement efforts the Government has announced to date have focused on the duty of
private sector organizations with at least 20 employees to file an accessibility self-report.
The obligation to file an accessibility report is not burdensome. It is a self-reporting process that
can be completed on-line.
Moreover, the Government's standard-form boilerplate justification for this exemption rings
hollow. Section 8(2) of the IASR provides:
"(2) The following are the reasons for the exemption:
1. It is consistent with a phased approach to implementing the Act.
2. It allows the exempted obligated organizations to focus their efforts and
resources on complying with the accessibility standards."
A "phased approach" might justify delaying to a later date the duty to file an accessibility selfreport. It does not justify a permanent elimination of that duty. A desire to allow an organization
to focus their resources on compliance could similarly justify exempting small private sector
organizations from any AODA accessibility duties. It rings especially hollow since the
Government has exempted small private sector organizations from so many obligations under the
IASR despite their overarching requirement to provide accessibility under the Human Rights
Code.
Fifth, section 14 in effect exempts any small private sector organizations from the IASR's
important website accessibility provisions. These are among the most significant provisions in
the IASR.
This exemption is unjustified. A private sector organization with up to 50 employees can be
amply able to make its website disability-accessible, especially on a go-forward basis. Such an
organization may have a major web presence and revenue stream associated with it. Persons with
disabilities should not have to separately take each small private sector organization with an
inaccessible website to the Human Rights Tribunal whenever they encounter a small private
sector organization's inaccessible website.
Sixth, section 29 of the IASR exempts small private sector organizations from the duty to
develop and have in place a return to work process for its employees absent from work due to a
disability and who require disability accommodations to return to work. It also requires obligated
organizations to document the process. At the very least, for an organization with 20 to 50
employees, this is not an unrealistic expectation. Even if the minimal documentation requirement
were softened, a carte blanche exemption here is similarly excessive.
Seventh, section 80.16 totally exempts small private sector organizations from addressing
accessibility in outdoor eating areas that are newly developed. This imposes a real hardship on
persons with disabilities.
Finally, it is unjustified for the same reasons for small private sector organizations to be similarly
exempted from the IASR's accessibility requirements regarding outdoor play spaces (See s.
80.20), exterior paths of travel (See s. 80.22), and outdoor rest areas (See s. 80.29).
(ii) Inappropriate Total Exemption for Entire Private Sector
Section 5(1) of the IASR unjustifiably totally exempts all private sector organizations from the
important duty to incorporate accessibility design, criteria and features when procuring or
acquiring goods, services or facilities. Even huge profitable corporations with ample resources
are free to continue to create new barriers for their employees and customers through the
procurement of inaccessible new goods, services and facilities. This is so even where there is no
downside to the private sector organization procuring accessible goods, services or facilities.
Rather than limiting the scope of this duty for private sector organizations, or giving longer time
lines to comply, the IASR simply cuts them out. Such accessible procurement requirements put
positive economic pressure on the producers of goods, services and facilities to ensure that they
are disability-accessible. Had this procurement duty been extended to all or part of the private
sector, that positive incentive would have been even stronger.
(iii) Exemptions from Accessibility Requirements That Are Unjustifiably
Less Exacting than the Human Rights Code's Undue Hardship Requirement
In quite a number of places, the IASR creates exceptions from its accessibility requirements that
are more lenient to obligated organizations than is the Human Rights Code's undue hardship test.
This weakens accessibility protections. It exposes obligated organizations to conflicting results
under the AODA and the Human Rights Code. That serves no one's interests.
Yet again, this also defeats a key purpose for the AODA, namely, eliminating where possible the
need for persons with disabilities to fight barriers one-at-a-time by filing individual human rights
complaints. It also misleads obligated organizations to think they have done all they need to do
on accessibility by meeting sub-standard AODA requirements. No doubt an organization that
tries to comply with an AODA standard will become understandably frustrated to later learn that
they had a higher accessibility obligation under the Human Rights Code about which the
Government had not alerted them.
Here are several examples of this.
First, the IASR's provision regarding public sector organizations procuring accessible goods,
services and facilities includes a sweeping exemption where including accessibility in procured
goods, services or facilities is not "practicable." This is far broader than the Human Rights Code
exemption, which is only available where it is impossible to provide accessibility without undue
hardship. Section 5 of the IASR provides:
"5. (1) The Government of Ontario, Legislative Assembly and designated public
sector organizations shall incorporate accessibility design, criteria and features
when procuring or acquiring goods, services or facilities, except where it is not
practicable to do so."
This provision concerns prevention of new barriers by not procuring inaccessible goods, services
or facilities. It will rarely if ever impose an undue hardship to incorporate accessibility features
when buying new goods, services or facilities. It is important never to lower that legal bar. To
lower that bar will make it seem to obligated organizations that it may be permissible to create
such new barriers, in circumstances where doing so would violate the Human Rights Code.
The fact that s. 5(2) of the IASR requires an obligated organization to give reasons, on request, if
it concludes that it is not practicable to incorporate accessibility design, criteria and features
when procuring or acquiring goods, services or facilities, does not fix this problem. There is no
way for persons with disabilities to know that an obligated organization reached that conclusion,
in order for them to pose the question that the obligated organization is required to answer.
Second, it is justifiable for s. 9(2)(2) to exempt "unconvertible information or communications"
from the IASR's information and communication requirements. However, it is wrong for s. 9(4)
of the IASR to define information and communication as unconvertible if:
"(a) it is not technically feasible to convert the information or communications; or
(b) the technology to convert the information or communications is not readily
available."
If the needed technology can be obtained without undue hardship, the Human Rights Code
would not exempt this accommodation. Similarly, the "not technically feasible to convert the
information" wording may be seen as being more lenient to an obligated organization than the
Human Rights Code's "undue hardship" test.
Third, it is very helpful that the IASR sets accessibility requirements for websites. Many, if not
most obligated organizations would otherwise have no idea that they have a duty to provide
accessible websites under the Human Rights Code.
However, the website accessibility provisions have entirely unjustifiable exemptions.
Section 14(1) of the IASR only requires the Ontario Government and Legislature to meet WCAG
2.01 Level AA accessibility standards. In contrast, section 14(2) requires public sector
organizations and large private sector organizations to comply with accessibility "initially at
Level A and increasing to Level AA." This makes no sense. It lures these organizations to create
new information and communication barriers, by only complying with Level A for a time, rather
than starting right away to meet the higher Level AA.
There can be no categorical undue hardship justification for this. In fact it costs an organization
more to gear up for Level A, creating new barriers for a time, only to then have to re-learn to
gear up for Level AA, and then go back and undo the barriers it earlier created when it posted
information to its website that only meets the inferior Level A.
As well, s. 14(5) exempts an organization from meeting a website accessibility "where meeting
the requirement is not practicable." As indicated earlier, this falls short of the Human Rights
Code's undue hardship requirement.
Making this worse, section 14(6) improperly widens this exemption as follows:
"(6) In determining whether meeting the requirements of this section is not
practicable, organizations referenced in subsections (1) and (2) may consider,
among other things,
(a) the availability of commercial software or tools or both; and
(b) significant impact on an implementation timeline that is planned or initiated
before January 1, 2012."
This regulation was enacted in June 2011. Obligated organizations were on notice that these
requirements were coming as early as February 2011, if not sooner. Moreover, the Human Rights
Code had imposed website accessibility requirements long before this accessibility standard was
enacted. Yet the IASR wrongly lets an organization plan strategies from June 2011 (when this
accessibility standard was enacted) up to the end of 2011, which conflict with meeting these
accessibility requirements. The Human Rights Code would not tolerate this.
Fourth, section 35(1) imposes a duty on transit providers to repair defective accessibility
equipment on a transit vehicle "as soon as is practicable." This is slippery wording. "As soon as
reasonably possible" would have come much closer to the Human Rights Code undue hardship
standard.
Fifth, section 45(1) and (2) of the IASR impose a vague and imprecise requirement that in a
community with no other para-transit services, "a conventional transportation service provider
that does not provide specialized transportation services shall ensure that any person with a
disability who, because of his or her disability, is unable to use conventional transportation
services is provided with an alternative accessible method of transportation." However, this
limited duty is not imposed "where not practicable."
That exemption again falls short of the Human Rights Code undue hardship standard. Moreover,
the IASR does not specify what kinds of reasons can justify a refusal to provide this service. Is it
"not practicable" because the transportation provider has no accessible vehicles, even if it can
buy or rent one? Is this exemption permanent, or just time-limited?
Sixth, it is especially odd that in one IASR provision, the burden of proof for justifying a failure
to accommodate is improperly reversed. Under the Human Rights Code, that burden of proof is
supposed to be on the organization that fails to accommodate.
Section 48(1) of the IASR unjustifiably reverses that burden of proof, so that the accommodation
is only required where safely possible. Instead, it should be required unless the transportation
provider can show that it is not safely possible. Section 48(1) provides:
"Every conventional transportation service provider shall, if safe storage is
possible, ensure that mobility aids and mobility assistive devices are stored in the
passenger compartments of its transportation vehicles within reach of the person
with the disability who uses the aid or device."
Seventh, section 74 of the IASR lets a para-transit passenger bring a companion with or children
with them, but then creates sweeping exceptions. Section 74 provides in material part:
"74. (1) Every specialized transportation service provider shall allow companions
to travel with persons with disabilities if space is available and will not result in
the denial of service to other persons with disabilities. O. Reg. 191/11, s. 74 (1).
(2) Every specialized transportation service provider shall allow dependants to
travel with a person with a disability who is the parent or guardian of the
dependant if appropriate child restraint securement systems and equipment are, if
required, available. O. Reg. 191/11, s. 74 (2)."
Our March 11, 2011 brief to the Government on the draft final IASR levelled these serious
criticisms and made concrete recommendations, which the Government appears to have rejected.
We wrote:
"Section 74 - Companions and Children
This provision lets a para-transit service refuse to let a passenger with a disability
bring with them a companion on a para-transit ride, in some situations.
This presents real hardships for single parents and others in a similar situation.
This is made worse by the fact that the para-transit service does not have to show
that it made any efforts to accommodate the need of the passenger to travel with
another person or persons.
This problem would not arise if the para-transit service had the option of using an
accessible taxi to provide this trip. A taxi could readily accommodate more than
one passenger without denying anyone else access to para-transit services. As
such, it is wrong and misleading for this provision to make it seem that needs of
one passenger with a disability may deny the rights of another passenger with a
disability."
In that brief, we recommended that:
"Section 74(1) and (2) be replaced with the following:
"74. (1) Every specialized transportation service provider shall allow companions
to travel with persons with disabilities unless it is shown that space is not
available and that it will result in an unavoidable denial of service to other persons
with disabilities.
(2) Every specialized transportation service provider shall allow dependants to
travel with a person with a disability who is the parent or guardian of the
dependant if appropriate child restraint securement systems and equipment are, if
required, available, and it is the responsibility of the specialized transportation
service provider to make such required equipment available if notice is given of
the need for that equipment"
(3) Notwithstanding subsections (1) and (2), no specialized transportation service
provider shall refuse to allow a person to accompany a qualified passenger under
subsection (1) or (2), unless it is shown to be impossible to accommodate their
needs by other means, such as contracting with an accessible taxi for provision of
the trip ride."
Eighth, the IASR's Public Spaces provisions wrongly give a sweeping exemption from
complying with certain accessibility requirements, where they would merely "affect" certain
heritage aspects of a property. This is a much broader exemption from accessibility requirements
than that which the Human Rights Code provides.
Section 80.15 of the IASR provides in part:
"80.15 Exceptions to the requirements that apply to recreational trails and beach
access routes are permitted where obligated organizations can demonstrate one or
more of the following:
1. The requirements, or some of them, would likely affect the cultural heritage
value or interest of a property identified, designated or otherwise protected under
the Ontario Heritage Act as being of cultural heritage value or interest.
2. The requirements, or some of them, would affect the preservation of places set
apart as National Historic Sites of Canada by the Minister of the Environment for
Canada under the Canada National Parks Act (Canada).
3. The requirements, or some of them, would affect the national historic interest
or significance of historic places marked or commemorated under the Historic
Sites and Monuments Act (Canada).
4. The requirements, or some of them, might damage, directly or indirectly, the
cultural heritage or natural heritage on a property included in the United Nations
Educational, Scientific and Cultural Organisation’s World Heritage List of sites
under the Convention Concerning the Protection of the World Cultural and
Natural Heritage.
5. There is a significant risk that the requirements, or some of them, would
adversely affect water, fish, wildlife, plants, invertebrates, species at risk,
ecological integrity or natural heritage values, whether the adverse effects are
direct or indirect….
6. It is not practicable to comply with the requirements, or some of them, because
existing physical or site constraints prohibit modification or addition of elements,
spaces or features, such as where surrounding rocks bordering the recreational
trail or beach access route impede achieving the required clear width."
Our October 4, 2012 brief to the Government on its final proposal for the Public Spaces
Accessibility Standard raised serious concerns in this area, which the Government appears to
have disregarded. We wrote in part:
"It is important that decisions about providing accessibility for persons with
disabilities not be delegated to heritage officials. We are deeply concerned that
such "heritage" considerations are easily and unfairly overblown. Heritage
officials have no expertise in accessibility. They should not trump accessibility for
persons with disabilities.
As one example, in recent years, there was unwarranted and inappropriate pushback against making the front door accessible for the historic Osgoode Hall
courthouse in downtown Toronto. Municipal heritage officials and others wrongly
claimed that this would erode the heritage features of that building.
Commendably, the Ontario Government rejected those claims. It decided to make
accessibility the primary consideration. The result was an excellent new
accessible walkway to the front door of the historic Osgoode Hall courthouse that
replaced the supposedly "historic" steps. Had the views of municipal heritage
officials and others objectors been heeded, persons with disabilities would not
have secured full, ready and equal access to that important and historic building
through its front door. The new ramp is now a benefit for persons with
disabilities, as well as for lawyers, judges and others who come to court with large
bags of court materials on wheels.
The Western Wall to the historic Temple in Jerusalem and the ancient Acropolis
in Athens have evidently been made accessible. So can recreational trails and
beach access paths in Ontario."
As but one illustration, the exemption in s. 80.15(4) where these accessibility standards
requirements "might damage, directly or indirectly, the cultural heritage or natural heritage on a
property included in the United Nations Educational, Scientific and Cultural Organisation’s
World Heritage List of sites under the Convention Concerning the Protection of the World
Cultural and Natural Heritage" reduces the burden on obligated organizations far below the
mandatory undue hardship bar which they must meet under the Human Rights Code.
Ninth, similarly, the "not practicable to comply " exemption in s. 80.15(6) falls well short of the
Human Rights Code's undue hardship bar. In the instance in that provision, one is left wondering
why some rocks might not simply be moved, if they are in the way. Section 80.15(6) provides an
exemption where:
"6. It is not practicable to comply with the requirements, or some of them,
because existing physical or site constraints prohibit modification or addition of
elements, spaces or features, such as where surrounding rocks bordering the
recreational trail or beach access route impede achieving the required clear
width."
Tenth, the same concern applies to the same overbroad exemptions from the Public Spaces
accessibility requirements for exterior paths of travel. (See s. 80.31)
(iv) Exemptions Permitting Barrier-Creation Even After the IASR Was
Enacted in June 2011
There can be no justification for permitting new barriers being created even after the IASR was
enacted, and its provisions went into effect. Yet a series of technical requirements for
accessibility of public transportation vehicles include exemptions for vehicles manufactured
before January 1, 2013 or vehicles regulated under Regulation 629 of the Revised Regulations of
Ontario, 1990 (Vehicles for the Transportation of Physically Disabled Passengers) made under
the Highway Traffic Act. Moreover, exempted are new or used vehicles that a conventional
transportation service provider enters into a contractual obligation to purchase, on or after July 1,
2011, if the accessibility feature's installation would impair the structural integrity of the vehicle.
(See s. 53 grab bars, handholds, handrails or stanchions; s. 54 floors and carpeted surfaces with
no exemption for impairing vehicle structural integrity; s. 55 allocated mobility aid spaces; s. 56
accessible stop request and emergency response controls with no exemption for vehicle structural
integrity impairment or for vehicles regulated under the Highway Traffic Act; s. 57 lighting
features s. 58 accessible signage with no exemption for vehicle structural integrity impairment; s.
59 requirements for lifting devices, with no exemption for vehicle structural integrity, and only
an exemption for vehicles that are equipped with lifting devices, ramps or portable bridge plates
and that are regulated under Regulation 629 of the Revised Regulations of Ontario, 1990
(Vehicles for the Transportation of Physically Disabled Passengers); s 60 accessibility of steps,
with no exemption for vehicle structural integrity impairment; s. 61 indicators and alarms when
accessibility features operating s. 62 accessible washrooms on the one passenger train car that
must be accessible)
Similarly, section 77 of the IASR governs accessibility of ferries operated by public sector
organizations. However s. 77(3) limits certain accessibility requirements to ferries manufactured
on or after July 1, 2013, fully 1.5 years after the IASR was passed. Here again, a public sector
organization could contract for inaccessible ferries for months after the IASR was passed,
contrary to the Supreme Court of Canada's ViaRail ruling, discussed earlier.
As well, the IASR Public Spaces requirements section 80.3 exempts any construction contracted
for before January 1, 2013. Section 80.3 provides:
"Where an obligated organization has entered into a contract on or before
December 31, 2012 to construct or redevelop any public space to which this Part
applies and the contract does not meet the requirements of this Part, the obligated
organization is not required to meet the requirements of this Part in honouring the
existing contract."
Yet it is long settled that no one can contract out of their accessibility obligations under the
Human Rights Code. This provision misleads obligated organizations into thinking they can do
just that. That does a disservice to them, and weakens efforts at ensuring accessibility by 2025.
(v) Other Sundry Problematic Exemptions from IASR Accessibility
Requirements
There are a series of other overbroad exemptions from IASR accessibility requirements. Here are
examples:
First, in the IASR's Public Spaces provisions, the accessibility provisions for recreational trails,
beach access routes, outdoor seating areas, outdoor play spaces, exterior paths of travel and off-
street parking only apply if an obligated organization intends to maintain it See s. 80.6, 80.10,
80.11, 80.17, 80.18, 80.22, 80.32. If an obligated organization simply says it does not intend to
maintain the trail, we risk that the Government will conclude that the trail or other regulated
public space is exempt from these accessibility requirements, even though the Human Rights
Code still applies to them.
Second, a huge problem facing para-transit riders is the wait times for booking rides, and the
difficulty of getting a same-day para-transit ride. People using conventional public transit never
have to book their ride that day, much less, the day beforehand.
Section 71(1)(a) of the ISR only guarantees same-day service "to the extent that it is available."
That exemption nullifies the rule. It is ultimately a guarantee of nothing.
Section 71(1)(b) doesn't provide a full solution where it requires an organization, "where same
day service is not available" to "accept booking requests up to three hours before the published
end of the service period on the day before the intended day of travel." A transportation provider
might say that they will accept requests up to 3 pm on the day before the intended day of travel,
but might try to argue that the ISR does not require them to fulfil that request, if service is not
"available." We hope the IASR is not interpreted in such an impoverished way. Yet this wording
was carefully crafted at the behest of the transportation sector. That sector was trying to avoid
any iron-clad obligations of service here.
Third, the IASR includes some helpful requirements regarding the provision of accessible
parking spots in off-street parking. However s. 80.33(2)(a) exempts an organization if:
"(a) the off-street parking facilities are not located on a barrier-free path of travel
regulated under the Ontario Building Code".
This makes no sense. It is possible for the organization to later choose to install a barrier-free
path of travel. Moreover, for cars to get in to the parking lot, there has to be some sort of level
access.
In our October 4, 2012 brief to the Ontario Government on the draft Public Spaces Accessibility
Standard, we wrote:
"A second unjustified exemption, this one set out in s. 80.32(2), concerns a new
or redeveloped off-street parking lot that is not located on a barrier-free path of
travel. This, in effect, permits the existence of unjustified existing barriers
(including those that can be readily removed) to authorize the creation of new
barriers. It is far better to require that a barrier-free path of travel be created to the
new lot, except where to do so would cause undue hardship, rather than
authorizing the creation of new barriers.
Moreover, disability parking spots are needed by persons with disabilities who
can climb steps. For example, a person with a serious fatiguing condition can
properly qualify for a disability parking permit, because he or she can only walk
short distances, even if that person can climb steps and uses no mobility device.
Such people could benefit from accessible parking spots in a lot, even if there are
some steps on the path to or from that lot."
Our brief recommended that
"The exemptions in s. 80.32(1) of the draft regulation from the accessibility
requirements for off-street parking need to be justified by the Government, or
curtailed."
Regrettably, once again, the Government did not accept our input.
Fourth, section 18(2) totally exempts special collections, archival materials, rare books and
donations from the duty of libraries of educational or training institutions to provide an
accessible or conversion ready format of print, digital or multimedia resources or materials for a
person with a disability, upon request. This too makes no sense. If these are available, why
should the organization not have a duty to provide an accessible version on request?
Moreover, it is remarkably easy for an obligated organization to scan and convert to an
accessible format any printed text. This includes such rare or archival materials.
f) IASR Time Lines for Action on Accessibility Too Often Are Too Long
One of the many reasons why Ontario is behind schedule for full accessibility by 2025 is that the
IASR sets time lines that are too long, in numerous instances. These squander time that could be
effectively used for earlier action. These long time lines leave organizations free to continue to
create new barriers in the meantime, thereby making things worse when they should be getting
better.
These unduly long time lines rest on the incorrect idea that organizations need all this time, and
will spend all this time, meeting these obligations. We have learned from our experience with
excessively long time lines in the Customer Service Accessibility Standard, especially for the
private sector, that when the private sector is given four or five years to prepare for a new
standard, organizations do not spend that time preparing. They delay until the last minute, and in
the case of some 70% of private sector organizations with 20 or more employees, they even
delay getting started until well past the deadline.
These time lines also evidently rest on the bogus notion that the Ontario Government should
have to clean up its accessibility act before the private sector should have to do the same. Yet
Ontario doesn't have the luxury of the time for this, when 2025 is less than 11 years away.
Moreover, the private sector is not excused from obeying the Human Rights Code's accessibility
requirements until the Ontario Government fully obeys them. Each sector is obliged to become
accessible, pure and simple. One sector cannot use another sector's unwarranted delay to justify
its own delay.
Here are illustrations of excessively long time lines under the IASR:
Section 3(4) of the IASR gives large private sector organizations and small public sector
organizations an excessive two and a half years, to 2014, just to develop their accessibility
policies. It gives small private sector organizations an even more excessive three and a half
years, to 2015, to do the same, without those organizations even having to set out that policy in
writing or ever make it publicly available. This is an inordinate delay just to create a policy,
before doing anything to put that policy into action.
Section 6(3) of the IASR lets large private sector organizations keep acquiring new electronic
self-service kiosks up to 2013, and in the case of small private sector organizations, up to 2015,
without having to even think about accessibility. The Human Rights Code does not let an
organization refuse to even think about accessibility for two or three years, unless that
organization can prove that even thinking about it in this context would cause that organization
undue hardship -- hardly a plausible claim.
Section 7(6) of the IASR gave a leisurely three and a half years, up to 2015, for large private
sector organizations to train their staff on accessibility. It gave small private sector organizations
an excessive four and a half years, up to 2016, to train their employees. For a small organization
to train less than 50 people on accessibility cannot possibly need four and a half years.
With regard to the requirement to provide accessible ways to give feedback to obligated
organizations, by providing communication supports where needed, Section 11(4) gives small
public sector organizations and large private sector organizations until 2015, or three and a half
years. It gives small private sector organizations until 2016, or four and a half years.
Regarding the provision of information and communication supports, section 12(5) of the IASR
lets a large public sector organization refuse this accommodation until 2015. It lets a small public
sector organization and a large private sector organization off the hook until 2016, and a small
private sector organization until 2017. The Human Rights Code would not give any of these
organizations such a blanket multi-year exemption. It cannot be argued that it will always pose a
blanket undue hardship for any of these organizations to ever provide such information and
communication supports any earlier than those multi-year deferred deadlines.
The time lines for meeting website accessibility are similarly too long. In Jodhan v. Canada
(Attorney General), 2010 FC 1197, [2011] 2 F.C.R. 355, the court gave the federal Government
18 months to bring its websites into conformity with specified accessibility requirements. Yet
section 14 of the IASR gives the public sector and large private sector organizations much, much
longer.
While section 14(3) imposes shorter time lines for some website requirements, section 14(3)(3)
does not require the Ontario Government and Legislature to fully meet WCAG 2.0 Level AA
until 2020, eight and a half years after this regulation was enacted. By that time, it is very likely
that a new international standard for website accessibility will have been enacted to supersede
the WCAG 2.0 standard. Telling an organization in 2011 that they need not achieve something
until 2020 is tantamount to telling the people working in that organization's front lines to simply
forget about it. By the time that deadline approaches, those frontline workers will likely be
working in another job, if not in another organization.
Similarly, section 14(4)(2) gives other public sector organizations, and large private sector
organizations, until 2021. Even then, it still exempts them from some of the Level AA
requirements at that late date. These time lines are in no small part an invitation to the broader
public and private sectors to ignore website accessibility for some years after the IASR was first
enacted. The Government should instead have signalled prompt action to start working on
website accessibility.
Section 15 of the IASR imposes helpful requirements on educational organizations to provide
teaching materials in accessible formats, where needed. Even though the Human Rights Code
has imposed comparable duties on educational organizations for decades, section 15(3) gives
small public or private sector organizations until 2015, or three and a half years after the IASR
was enacted, to comply.
In the same way, section 16 of the IASR imposes helpful requirements on educational
organizations to train their staff on how to provide barrier-free learning opportunities for students
with disabilities. To some it would seem shocking that this had not been done for decades. Yet
section 16(3) gives small public or private sector organizations until 2015 to do this training. If
an organization has fewer than 50 employees, it cannot possibly take them three and a half years
to provide this training. In the interim, their students with disabilities must continue to endure a
learning environment that may not meet their needs.
It is quite good that s. 17 of the IASR requires organizations that produce books and other printbased educational materials for educational organizations to make accessible or conversion ready
versions of those materials available on request. However, the time lines for this are absurdly
long. They don't have to make accessible or conversion ready versions of textbooks available
until starting in 2015, three and a half years after the IASR was enacted. They don't have to make
accessible or conversion ready versions of printed materials that are educational or training
supplementary learning resources available until starting in 2020, or eight and a half years after
the IASR was enacted.
This allows serious and entirely preventable education barriers to continue to be created for
years. There is no undue hardship defence for such inordinate delays. We are long past using
typesetters for creating such educational materials.
Section 18 of the IASR sets the same excessively-long time lines for the libraries of educational
or training institutions to provide or procure, where available, an accessible or conversion ready
format of print, digital or multimedia resources or materials for a person with a disability, upon
request. This duty does not arise for print-based resources until 2015 and for digital or
multimedia resources or materials until 2020. If these are available to obligated organizations
now, there is no reason why they should not provide them now, and why they should wait until
2015 or 2020 to start doing so.
The IASR's employment accessibility requirements ostensibly implement the duty to
accommodate employees with disabilities that has existed under the Human Rights Code since
1982. This is not a new obligation. Yet, s. 21 of the IASR provides that unless otherwise
specified, small public sector organizations have until 2015 under the AODA to comply (3.5
years). Large private sector organizations were given until 2016 (4.5 years). Small private sector
organizations were given until 2017 (5.5 years). Yet any number of the IASR's requirements
could readily have been implemented years earlier by these organizations.
For example, no organization large or small needs three, four or five years to start notifying job
applicants with disabilities that they can request accommodation in the recruitment process (s.
23), or to start to tell a successful job applicant with a disability about the organization's policies
for accommodating employees with disabilities (s. 24) or about the organization's policies for
accommodation supports (s. 25), or to consult with employees with disabilities on request, on
needed communication supports (s. 26).
This is especially problematic since the IASR's employment provisions do not specify in detail
the barriers that need to be removed and prevented in the workplace. That would have reduced
the need for individualized workplace accommodation in a number of cases.
Section 52(5) gives conventional transportation providers until 2017 (or 5.5 years) to install
automated route stop announcements. They must make manual route stop announcements until
then. They cannot possibly need such a long period. The technology now exists. TTC has had all
bus and subway route stops announced via automated technology well before the date the IASR
was passed in June 2011.
Section 63 of the IASR gives public transportation providers who provide para-transit up to 2017
to implement the eligibility criteria that this provision mandates to qualify for para-transit. This
is an unconscionable delay. The public transit sector was intimately involved in the development
of this standard from 2006 onward. It had years of prior notice that this requirement was coming.
Section 66 of the IASR commendably requires that a para-transit service not charge persons with
disabilities more than the highest fare charged on the conventional transportation service in that
community by a separate conventional transportation service. However, it gives up to 2017 for
this to be obeyed. It is hard to imagine that implementing fare parity takes 5.5 years for a paratransit service. Where the two services are provided by the same transportation provider, the
IASR gave a more reasonable 18 months for fare parity to be provided. If the para-transit service
is now charging so much more than the community's conventional transportation service, that
alone signals a real barrier against persons with disabilities that needs prompt action.
Finally, several time lines in the Public Spaces provisions of the IASR are clearly excessive.
They all relate to new construction in public spaces. They authorize creation of new barriers no
matter how preventable and unjustified, e.g. Section 80.5 Recreational Trails and Beach Access
Routes: Ontario Government 2015 (2 years after the Public Spaces provisions were enacted)
public sector organizations 2016 (3 years after) large private sector organizations 2017 (4 years
after) and small private sector organizations 2018 (5 years after).
4. 2013 Built Environment Amendments to the Ontario Building Code
We regret that we cannot provide a detailed analysis of the accessibility amendments that the
Government made in December 2013 to the Ontario Building Code, to address barriers in the
built environment. This is because, as addressed later in this brief, the Government has not made
public any detailed explanation of these provisions, or other like resource guides, even though
these amendments were enacted a half a year ago, and they soon come into effect at the start of
2015. The amendments are written in extraordinarily complex language. They required detailed
Building Code expertise to decipher.
The fact that we do not comment on them here in detail should not be taken as an endorsement of
them. Some of these amendments were understood to be helpful as they were being developed.
However we had a number of serious concerns about their modest, limited reach, during their
development. We had to give confidentiality commitments in order to take part in consultations
with the Municipal Affairs and Housing Ministry leading to their enactment. We therefore
cannot make public our specific input on earlier drafts of these amendments that we reviewed
over the months before they were finalized. Due to the amendment's highly technical wording,
we cannot effectively compare the final amendments with earlier drafts to see if the Government
strengthened them as a result of our input.
The fact that we, the broader disability community, and this Independent Review face this same
problem is a matter of serious concern. We want to be able to give this Independent Review
detailed feedback on those amendments, to assist this Review in determining if the Government
has sufficiently responded to built environment barriers.
5. Reflections
The fact that accessibility standards so often do not measure up to the requirements of the
Human Rights Code is a huge concern. We repeatedly urged the Government before and after the
AODA was enacted to ensure that accessibility standards enacted under it be at least as strong as
the Human Rights Code's accessibility requirements. Particularly as the IASR was being
developed, we often raised concerns that the draft IASR embodied real human rights concerns.
We were not alone. The Ontario Human Rights Commission also publicly expressed to the
Government its serious human rights concerns. It did so in writing fully four times in four years
leading up to the June 3, 2011 enactment of the initial IASR to address barriers in transportation,
employment and information and communication.
First, on August 30, 2007, the Human Rights Commission released a damning critique of the
initial proposed Transportation Accessibility Standard. That proposed accessibility standard had
been put forward in the 2007 summer by the Transportation Standards Development Committee.
The Human Rights Commission’s August 30, 2007 news release bore the headline:
“Commission concerned that Proposed Transportation Accessibility Standards are a setback for
Ontarians
with
Disabilities.”
To
see
that
public
statement,
visit:
http://www.aodaalliance.org/strong-effective-aoda/09052007-
ACCESSIBILITYFORONTARIANSWITHDISABILITIESACTALLIANCEUPDATE.asp
Second, in the fall of 2010, the Human Rights Commission slammed a summary of the proposed
integrated accessibility standard that the Government made public on September 2, 2010. For
details, visit: http://www.aodaalliance.org/strong-effective-aoda/10192010.asp
Third, in February 2011, the Human Rights Commission wrote to all municipal public transit
authorities. It warned them that they could face human rights complaints if they rely on the
Government's February 1, 2011 draft IASR to purchase inaccessible buses over the next few
months. See: http://www.aodaalliance.org/strong-effective-aoda/02172011.asp
Fourth, on March 18, 2011, the Ontario Human Rights Commission made a public submission to
the Government that vigorously argued that the draft final IASR, which the Government posted
for public comment on February 1, 2011, raised significant human rights concerns. The
Government did not address many if not most of these when it finalized the IASR.
We recommend to this Independent Review a careful read of the Human Rights Commission's
entire March 18, 2011 submission on the February 1, 2011 draft IASR. The Human Rights
Commission is Ontario's flagship human rights agency, which is supposed to provide leading
advocacy and advice to the Government and the public on human rights issues. That the
Government chose to largely ignore its advice set Ontario further behind schedule for full
accessibility by
2025.
The
Commission's
submission
can
be
found
at
http://www.aodaalliance.org/strong-effective-aoda/03212011.asp
The Human Rights Commission summarized its human rights concerns:
"Many concerns remain with standards that could result in contraventions of the
Ontario Human Rights Code (Code):
•
The complete exemption of smaller organizations, as well as organizations
with no employees, from many technical requirements, such as accessible
websites
•
The exemption of volunteers from employment standards
•
The exemption of inaccessible transit vehicles that exist in a fleet on July
1, 2011
•
Minimal “upon request” requirements, while consistent with the Code, add
nothing new in terms of advancing standards. When deferred by schedule, they
actually take away from the Code’s duty to accommodate unless it would cause
undue hardship
•
“Where not practicable” exemptions appear throughout. These could lead
to contraventions of the Code’s duty to accommodate unless it would cause undue
hardship
The AODA Alliance is raising similar concerns. The OHRC generally supports
the AODA Alliance’s submission dated March 11, 2011, including other matters
not raised in the OHRC’s submission."
A similarly important overarching concern has been the Government's willingness to carve
important areas out of the AODA, through the back door. The effect of this is to potentially
remove them from AODA oversight and enforcement.
First, as is addressed further later in this brief, the Government has taken built environment
accessibility issues within buildings that the Ontario Building Code covers, and incorporated
them into amendments to the Ontario Building Code, without also incorporating them into an
AODA accessibility standard. This flies in the face of the Government's repeated promises to
enact a Built Environment Accessibility Standard. A Built Environment Accessibility Standard is
by definition, an accessibility standard enacted under the AODA.
Second, the Government opted to include several accessibility requirements regarding public
transit vehicles in regulations under the mandate of the Ministry of Transportation, carving them
out of the IASR's accessible transportation provisions.
In each case, we lose the statutory guarantees of AODA reviews of these accessibility
requirements every five years under the AODA. The Government thereby ducks its
commitments that the body that makes or reviews accessibility standards will have 50%
representation from the disability community. We also lose the AODA public consultation
requirements associated with those reviews, and the avenue of resort to AODA enforcement.
We were never consulted on nor agreed with this Government strategy. If we had been consulted
we would have objected to any contracting or carving out of any part of the AODA's mandate.
6. Recommendations on Deficiencies in Current AODA Accessibility Standards
We urge this Independent Review to recommend as follows:
*#13. Any accessibility standards enacted under the AODA should, at least, measure up to the
accessibility standards and accommodation and undue hardship requirements of the Ontario
Human Rights Code. Where any existing standard falls below that standard, or provides defences
to obligated organizations that are broader than those under the Human Rights Code, the AODA
accessibility standard should be amended as part of any ASAC review of that accessibility
standard, to bring it in line with the Human Rights Code.
*#14. Because of the IASR's deficiencies, the Government should immediately accelerate the
start of the mandatory review of the IASR's provisions on accessibility of transportation,
employment and information and communication. This review is required to commence no later
than five years after they were enacted in 2011, but it should be started in 2015, not 2016.
Part IV. The Government's Multi-Year Delay Deciding Which New
Accessibility Standards to Next Make and Delivering the
Promised Built Environment Accessibility Standard
1. Introduction
As discussed earlier in this brief, one of the Government's vital jobs under the AODA is to
develop and enact all the accessibility standards needed to ensure that Ontario becomes fully
accessible by 2025. As also addressed earlier, the Government got a good start on this shortly
after the AODA was enacted. However, over the past three years, these activities have gradually
ground to a veritable halt.
Section 7 of the AODA provides:
"7. The Minister is responsible for establishing and overseeing a process to
develop and implement all accessibility standards necessary to achieving the
purposes of this Act."
Typically, legislation gives a government a power to make regulations, but does not oblige the
government to do so. The AODA is different. Not only does it require the Government to make
accessibility standard regulations, (which is in and of itself unusual); it also requires the
Government to make all the accessibility standards needed, to ensure that Ontario reaches the
mandatory destination of full accessibility by 2025.
The disability community fought hard for this requirement to be enshrined in law. The earlier
Ontarians with Disabilities Act 2001 gave the Government the power to make accessibility
standards. However it did not require the Government to do so. We tried to get the previous
Harris Conservative Government to use its power to make accessibility standards under the
Ontarians with Disabilities Act 2001. The Harris Government refused to do so.
Having learned that lesson, as the AODA was being developed we did not want to have to wage
a long campaign, just to get the Government to develop all the accessibility standards we would
need. Section 7 of the AODA was the result of our efforts.
Shortly after the AODA was passed, the Government commendably showed that it could act
quickly and decisively, when deciding which first accessibility standards to make. As discussed
earlier in this brief, the Government chose to first develop accessibility standards in five areas:
customer service, employment, transportation, information and communication, and the built
environment. It promptly appointed five different Standards Development committees, one for
each of those areas.
With less budget and a smaller staff than it has at present, the Accessibility Directorate of
Ontario provided staff support for these Standards Development committees. For a good stretch
of time, there were as many as four Standards Development Committees separately working at
any one time.
This Part of this brief shows that the Government has in recent years taken an unjustified and
inordinate amount of time just to decide which accessibility standards to next develop under the
AODA. It seems as if the Government has been stuck in neutral. With the 2025 deadline growing
ever nearer, this was time that Ontario could not afford to squander.
This is followed in this Part of this brief by a description of the long-delayed and incomplete
government efforts to keep its promise to enact a Built Environment Accessibility Standard to
ensure that Ontario's built environment becomes fully accessible. We then provide
recommendations regarding the development of new accessibility standards under the AODA.
This Part of this brief shows that the Government's protracted delay in deciding which
accessibility standards to make next is unjustified. It has set Ontario further behind schedule for
reaching full accessibility by 2025.
2. Our Exhausting Effort to Get the Government to Decide Which Accessibility
Standards to Next Make -- Another Saga of Counterproductive Government Delay and
Inaction
We have been clear with the Government for years that the first five areas that it chose for
accessibility standards, while a good first pick, did not cover the entire waterfront of barriers
impeding persons with disabilities. More accessibility standards would be needed.
For almost six years, we have been trying to get the Government to decide which accessibility
standards would be made next. It was only very belatedly, during the 2014 Ontario election,
under the pressure of waging a campaign to get re-elected, that the Government finally made any
intentions in this regard public. The Government has offered no public explanation for its multiyear foot-dragging on a decision of which accessibility standards to next make.
Over the years since the AODA was enacted, the Government at times made public statements
intimating that the first five accessibility standards it was developing were the only ones it would
ever be making. For example, in her July 16, 2012 letter to the AODA Alliance, Kathleen
Wynne, then the Municipal Affairs and Housing Minister, wrote: "As you know, the Built
Environment Accessibility Standard is the final standard to be regulated under the AODA." At
other times, typically only after our pressure, the Government intimated that the door was open
to creating additional accessibility standards.
It was in the 2011 election, and then again within the past year and a half or so that the
Government finally made it clear and unequivocal that it would be making new accessibility
standards, and that the first five were not the only ones to be made. However, it remained silent
in public on which areas would be the subject of the next accessibility standards, before the 2014
Ontario election campaign.
Our efforts on this issue began almost six years ago. In our September 8, 2008 letter to the
Assistant Deputy Minister responsible for the Accessibility Directorate, Ms. Ellen Waxman, we
wrote in part as follows regarding our September 4, 2008 meeting with her:
"We were told at this meeting that your current projection is that the
Transportation Standards Development Committee is expected to submit its final
recommendation for a transportation standard by November 2008. The
Information and Communication Standards Development Committee is expected
to submit is initial recommendation for an information and communication
accessibility standard by mid- to end-October 2008. The Employment Standards
Development Committee is expected to submit its initial proposal for an
employment accessibility standard by February 2009. The Build Environment
Standards Development Committee is expected to submit its initial proposal for a
built environment accessibility standard by spring 2009.
We asked what plans there were for establishing further standards development
committees. We were told that there has been some preliminary general thought
on this, but nothing has yet been decided. You told us that you don’t expect to
turn your minds to this until these remaining standards have been finished, and the
audit of the standards development committee process has been conducted.
We indicated that the process should be sped up for selecting the next areas for
standards development, and for getting new standards development committees
selected and up and running. This is important, given that we are now under 17
years away from the AODA’s deadline for full accessibility across Ontario, and
given the time it takes for a standards development committee to undertake its
work."
Almost one year after that, in June 2009, the Government appointed Charles Beer to conduct the
first Independent Review of the AODA. Despite some public statements before and after that
time intimating that the Government only planned to make the first five accessibility AODA
standards, the Government asked him, among other things, to advise the Government on which
accessibility standards it should next make.
We then doubted that it was appropriate to assign this question to Charles Beer, for whom we
had the utmost respect. Mr. Beer was not privy to all the information that the Government had on
barriers it was expecting to address in its first five accessibility standards and those that were
likely not to be covered. Despite this, we did what we could to assist the Beer Review, including
on this issue.
In its final Report, which the Government received in early 2010, Charles Beer concluded:
"Though included in the review’s terms of reference, the need to develop
additional accessibility standards was not a top-of-mind issue for most people
consulted. When prompted, some did mention the possibility of considering
accessibility standards for education or health care.
On the other hand, a number of stakeholders remarked that not all issues can be
addressed in a standard and some may need to be dealt with through policy or
legislation. Overall, the view was that the government should finalize the first five
standards before considering new ones."
By the 2011 summer, one and a half years after Mr. Beer submitted his final report to the
Government, no Standards Development Committees were in operation. None had met for a
year. In the 2011 summer, if not a year earlier, the time was ripe for the Government to get to
work on developing the next accessibility standards. The IASR was enacted in June 2011. The
Customer Service Accessibility Standard was enacted four years before that. The Ministry of
Municipal Affairs and Housing had the bulk of the recommendations of the Built Environment
Standards Development Committee on its plate. All that the Accessibility Directorate of Ontario
had on its plate in the way of new accessibility standards was the small slice of the Built
Environment Standards Development Committee's recommendations - those addressing public
spaces.
The Accessibility Directorate of Ontario had more staff and funding on hand than in previous
years. As documented in Part II of this brief, the Accessibility Directorate of Ontario annually
had substantial unspent funds in its yearly budget. The Government was gradually increasing the
Directorate's annual budget, not reducing it.
Yet we could not get any Government action on deciding which accessibility standards it would
next make. We could not even engage a meaningful substantive discussion with the Government
on this topic. Therefore, on July 15, 2011, with the 2011 Ontario election weeks away, we wrote
the leaders of Ontario's major political parties to ask them to commit to support our proposal that
the next accessibility standards to be developed should be in the areas of education, health care,
and residential housing. In that letter we specifically asked for a commitment to:
"…develop AODA accessibility standards in the next term of the Government, in
the areas of health care and education/training (including schools, universities,
colleges and other educational institutions), and of access to housing/residential
accommodation, with work on these standards to begin by April, 2012."
In the 2011 election the governing Liberal Party did not commit to the three standards we
requested. Only the Ontario NDP made the commitment we sought. The Liberal Party only
committed to work with us and others to decide which accessibility standards it would next
make. In his August 19, 2011 letter to us, setting out his 2011 election commitments, Premier
Dalton McGuinty wrote:
"It is a priority for us to enact the Accessible Built Environment standard
promptly and responsibly. Having the first five accessibility standards under the
AODA enacted will set a firm foundation for further progress on accessibility,
and we look forward to working with Ontario’s accessibility communities and
partners to identify the next standards that will move accessibility forward in our
province."
After the 2011 election, we successively wrote each of the two Cabinet ministers who, one after
the other, had responsibility for the AODA, John Milloy, followed by Dr. Eric Hoskins. We
asked each in turn to decide which next standards the Government would make. The AODA
gives them, as the AODA implementation and enforcement minister, that decision to make. We
urged the selection of the three areas that we recommended.
We wrote to John Milloy on November 1, 2011, stating in material part:
"We have asked the Government to next develop accessibility standards in the
areas of access to education at all levels, to health care, and to residential housing.
In his August 19, 2011 letter to us, Premier McGuinty promised: "…we look
forward to working with Ontario’s accessibility communities and partners to
identify the next standards that will move accessibility forward in our province."
Because it takes years to develop an accessibility standard, it is important to get to
work on developing the next round of standards right away."
Sixteen months later, we repeated the same thing in substance, when we wrote to Dr. Hoskins on
February 27, 2013. Despite our efforts, neither minister made a decision on which next
accessibility standards to develop. Neither minister announced the consultation on which next
accessibility standards to develop that Premier McGuinty promised in the 2011 election.
Almost one year after the 2011 election, with Government action on this issue clearly stalled we
used the fact that two by-elections were to be held on September 6, 2012 to focus public
attention on accessibility issues, with an emphasis on the need to get to work developing new
accessibility standards. Our August 23, 2012 AODA Alliance Update urged voters to ask byelection candidates about disability accessibility issues, including:
"Will you press the Government to agree to develop accessibility standards to
enable people with disabilities to get access to education, to health care, and to
residential housing?"
On October 31, 2012, the Government announced that in response to the Beer Independent
Review final report it would consolidate all work on the development of proposals for new
accessibility standards in the hands of one body, not a series of separate Standards Development
Committees. That one body would be a revitalized Accessibility Standards Advisory Council. In
our November 5, 2012 AODA Alliance Update, we applauded this move. We added the
following:
"For this new reform to be truly meaningful, the McGuinty Government must
now take two additional steps. These are steps that we have been urging for quite
some time.
First, the Government should at long last conduct its long-overdue, promised
public consultation on which new accessibility standards to develop. Before year's
end, the Government should announce what the next new accessibility standards
will be. Unless the McGuinty Government identifies the next new accessibility
standards to be developed, all that ASAC will have to do in the next four years in
the arena of accessibility standards is to review the existing Customer Service
Accessibility Standard. A major reform to the process for developing accessibility
standards was not needed for that single task."
Three months later, on January 21, 2013 the Government in substance re-announced this same
news. Its news release added in unequivocal terms that new AODA standards will be developed.
It stated that the new ASAC's mandate will include, among other things, responsibility to
"develop new accessibility standards based on the advice and feedback we have received to date
from stakeholders."
By carefully stating that the new standards will be created "based on the advice and feedback we
have received to date," the Government thereby committed that there need not be any more delay
for consultations before it decides the new accessibility standards subject area. This was
important because an indecisive government's typical tactic, when it cannot make up its mind on
a policy question, is to announce a plan for broad, extensive public consultation. That lets a
government further delay a decision it does not want to make.
Our January 21, 2013 AODA Alliance Update, addressing this news, publicly commented:
"We are very disappointed that today's news release does not specify when the
Government will decide which new accessibility standards it will create next. It is
important for the Government to now decide what the topic of those new
accessibility standards will be, and to promptly get on with the work of having
ASAC develop them. There is no reason for any further delay. There are now less
than 12 years to go before Ontario reaches 2025, the date by which this province
must become fully accessible to persons with disabilities. Ontario is behind
schedule for meeting that 2025 deadline."
In our February 27, 2013 letter to Dr. Eric Hoskins, referred to above, sent to him right after he
was appointed as the next minister responsible for the AODA's implementation and enforcement,
we identified the development of new accessibility standards as his first priority. Our list of
priorities for him began:
"1. Starting Now on Developing and Promptly Enacting the Next Accessibility
Standards under the Accessibility for Ontarians with Disabilities Act
The time has come for the Government to identify the next accessibility standards
to be developed and enacted under the AODA. We have urged the Government to
next develop three new accessibility standards, to address barriers impeding
persons with disabilities in the important areas of education at all levels, of health
care, and of residential housing. In his August 19, 2011 letter to us, former
Premier McGuinty promised: "…we look forward to working with Ontario’s
accessibility communities and partners to identify the next standards that will
move accessibility forward in our province." It can take years to develop and
enact a new accessibility standard. It is vital to get to work right away on
developing the next round of standards.
Your Government’s January 21, 2013 news release committed that new
accessibility standards would be developed under the restructured Accessibility
Standards Advisory Council. ASAC now reports to you. The news release states
that the new ASAC's mandate will include, among other things, responsibility to
"Develop new accessibility standards based on the advice and feedback we have
received to date from stakeholders." The Government has thus committed that
there need be no further delay for more consultations before it decides what the
topics of the new accessibility standards will be. The Government’s January 21,
2013 news release is available at http://www.aodaalliance.org/strong-effectiveaoda/01212013.asp
We would welcome a chance to discuss this with you. We have been urging the
Government for several years to get to work developing additional accessibility
standards. The standards that have been enacted to date, while helpful, do not
address anywhere near the full range of barriers that need to be removed or
prevented to ensure that Ontario becomes fully accessible by 2025. We have
gotten consistently positive feedback on our three proposals for new accessibility
standards. We have heard no objections, nor any other suggestions for the next
standards to create.
You should quickly announce the next standards to develop, and direct ASAC to
get right to work on developing them."
Our advocacy efforts with the successive ministers responsible for the AODA led to no progress.
In frustration we had to again resort to the political process as the opportunity arose. The August
1, 2013 and February 13, 2014 Ontario by-elections provided an opportunity for candidates to
answer our request that these three be the next accessibility standards that the Government
creates.
We sent requests on this topic to all the major parties' by-election candidates. Special public
attention focused on these by-elections, because the Liberals had a minority government that
could fall at any time. Many saw these by-elections as testing grounds for the next Ontario
general election.
In neither by-election did we get a clear and decisive answer from any Liberal candidates. It is
evident that their answers were scripted at the centre by the Liberal Party, and not by the
individual candidates. In the August 1, 2013 by-elections, the only Liberal Party response on this
request was as follows, from candidate Peter Milczyn:
"1. Will you support our call for the Ontario Government to develop an Education
Accessibility Standard under the Disabilities Act to make Ontario’s education
system fully accessible to students, parents, and education staff with disabilities?
Our government announced the creation of a new Accessibility Standards
Advisory Council/Standards Development Committee which we formally
announced on July 5th 2013. This new body will have the power to advise
government on new accessibility initiatives. This new structure will allow us to
streamline and strengthen the way we review and develop standards and we look
forward to their recommendations on new accessibility initiatives for ways we can
advance accessibility standards in Ontario.
Five accessibility standards are now law under the AODA: customer service,
information and communications, employment, transportation, and the design of
public spaces, but we know we can do more.
Regarding our education system specifically, school boards are required to
develop multiyear accessibility plans outlining their strategy to prevent and
remove barriers, and to meet the requirements of the AODA. School boards and
educational institutions are also required to provide educators with accessibility
awareness training related to accessible program or course delivery and
instruction. Finally, realizing that transportation can often be a difficulty for
Ontarians with accessibility issues, each school board is required to develop
individual school transportation plans for each student with a disability.
2. Will you support our call for the Government to develop a Health Care
Accessibility Standard to make our health care system’s services fully accessible
to patients and health care providers with disabilities?
As mentioned above, our government announced the creation of a new
Accessibility Standards Advisory Council/Standards Development Committee
which we formally announced on July 5th 2013. This new body will have the
power to advise government on new accessibility initiatives.
Five accessibility standards are now law under the AODA: customer service,
information and communications, employment, transportation, and the design of
public spaces, but we know we can do more. Our government is committed to
enhancing accessibility standards across Ontario and we will continue working
with our stakeholders to ensure that accessibility is integrated into all we do in
Ontario.
3. Will you support our call for the Ontario Government to develop a Residential
Housing Accessibility Standard to address our crisis of accessible housing in
Ontario?
As mentioned above, our government announced the creation of a new
Accessibility Standards Advisory Council/Standards Development Committee
which we formally announced on July 5th 2013. This new body will have the
power to advise government on new accessibility initiatives. This new structure
will allow us to streamline and strengthen the way we review and develop
standards and we look forward to their recommendations on new accessibility
initiatives for ways we can advance accessibility standards in Ontario.
Five accessibility standards are now law under the AODA: customer service,
information and communications, employment, transportation, and the design of
public spaces, but we know we can do more.
Residential Housing is obviously a critical area of concern for all Ontarians. Our
government will soon be introducing a suite of changes to the Building Code that
will increase accessibility in new buildings in Ontario. These changes are part of
our commitment under the AODA to achieve the goal of an accessible Ontario by
2025."
In the February 13, 2014 Ontario by-elections, the Liberal Party response, from candidate Sandra
Yeung Racco (with similar answers from Liberal candidate Joyce Morocco), included:
"1. Will you support our call for the Ontario Government to develop an Education
Accessibility Standard under the Disabilities Act to make Ontario’s education
system fully accessible to students, parents, and education staff with disabilities?
Ontario Liberals have been exploring possible new standards to be developed.
Along with the options below, we have been consulting with the broader
accessibility community to determine how best to move forward with any new
standards.
Five accessibility standards are now law under the AODA: customer service,
information and communications, employment, transportation, and the design of
public spaces, but we know we can do more.
School boards are required to develop multiyear accessibility plans outlining their
strategy to prevent and remove barriers, and to meet the requirements of the
AODA. School boards and educational institutions are also required to provide
educators with accessibility awareness training related to accessible program or
course delivery and instruction. Finally, recognizing that transportation can often
be a difficulty for Ontarians with accessibility issues, each school board is
required to develop individual school transportation plans for each student with a
disability.
2. Will you support our call for the Government to develop a Health Care
Accessibility Standard to make our health care system’s services fully accessible
to patients and health care providers with disabilities?
Ontario Liberals are committed to enhancing accessibility standards across
Ontario and we will continue working with our stakeholders to ensure that
accessibility is integrated into all we do in Ontario. The Accessibility Standards
Advisory Council/Standards Development Committee has the power to advise
government on new accessibility initiatives. Five accessibility standards are now
law under the AODA: customer service, information and communications,
employment, transportation, and the design of public spaces, but we know we can
do more.
3. Will you support our call for the Ontario Government to develop a Residential
Housing Accessibility Standard to address our crisis of accessible housing in
Ontario?
As mentioned above, the Accessibility Standards Advisory Council/Standards
Development Committee has the power to advise government on new
accessibility initiatives. It will allow us to streamline and strengthen the way we
review and develop accessibility standards. We look forward to their
recommendations on new accessibility initiatives for ways we can advance
accessibility standards in Ontario.
Five accessibility standards are now law under the AODA: customer service,
information and communications, employment, transportation, and the design of
public spaces, but we know we can do more. Residential Housing is a critical area
of concern for all Ontarians. That’s why Ontario Liberals recently announced
amendments to the building code, effective Jan. 1, 2015, that will substantially
enhance accessibility in newly constructed buildings and existing buildings that
are to be extensively renovated. These changes are part of our commitment under
the AODA to achieve the goal of an accessible Ontario by 2025."
On October 26, 2013, some eight months after becoming Ontario Premier, Kathleen Wynne
made, to our knowledge, her first public statement about the AODA's implementation. She
referred to our ongoing advocacy efforts to get the Government to decide which next
accessibility standards to make. Her remarks make it sound like the Government was
contemplating making only one new accessibility standard next, though her remarks were clearly
extemporaneous. She did not say which new standard or standards the Government would make.
In her speech at the CNIB's annual Braille Conference in Toronto, she said, among other things:
"And David Lepofsky was in my office not that long ago, couple of weeks ago.
And as a result of his visit, you know, we are we're continuing to push on some of
the some of the concerns around enforcement of our standards, and getting in
place another standard to work on in terms of accessibility. So there is a lot of
work yet to be done."
As the 2014 spring arrived, the Government had still not publicly announced which accessibility
standards it would next make, nor said when it would decide, or what was holding back a
decision. In anticipation of a possible spring election, our March 3, 2014 letter to the major party
leaders sought election commitments regarding the development of new accessibility standards.
We wrote:
"C. Develop the New Accessibility Standards under the AODA Needed to
Achieve Full Accessibility by 2025
We need the Ontario Government to develop and enact new accessibility
standards. The AODA requires the Ontario Government to enact and implement
all the accessibility standards needed to ensure that Ontario becomes fully
accessible to all people with disabilities by 2025. The accessibility standards
enacted to date will not ensure that Ontario becomes fully accessible by 2025,
even if they are fully enforced and complied with.
The Ontario Government has not designated any new accessibility standards to be
developed since well before the 2011 Ontario general election. For over two and a
half years, we have advocated for the next three accessibility standards to address
disability barriers in health care, education (including schools, universities,
colleges and other educational institutions), and residential housing.
On January 21, 2013, the Government announced that it would decide which
accessibility standards it would next create based on information already
gathered. The Government also announced that it designated the Accessibility
Standards Advisory Council (ASAC) to develop any new accessibility standards
that the Government directs. However, the Government has not directed ASAC to
develop any new accessibility standards.
It can take years to develop a new accessibility standard. With only eleven years
left to reach 2025, it is necessary for the Ontario Government in the next term to
ensure that all accessibility standards are developed and enacted that will ensure
that that goal is reached.
We therefore ask your Party to commit to:
8. develop accessibility standards under the AODA in the areas of education, of
health care, and of residential housing, with work on these to begin immediately.
9. over the three months immediately following a spring 2014 election (or
between May and July 2014, if there is no spring 2014 election), consult with the
public, including the disability community, on all the other accessibility standards
that need to be developed to ensure that Ontario becomes fully accessible by
2025, with a decision to be announced on those standards within three months
after that consultation."
All parties responded. The NDP promised to enact the three new accessibility standards we
requested, as it had in the 2011 election and in the August 1, 2013 and February 13, 2014 byelections. It also promised to develop all other new accessibility standards needed to ensure full
accessibility by 2025. The Conservatives made no specific commitments on new standards, but
tacitly acknowledged the important of accessibility to education, health care and public housing.
The Liberal Party's May 14, 2014 letter to the AODA Alliance, setting out its accessibility
pledges in the 2014 election, said more about developing new accessibility standards than the
Government had ever before publicly announced. In her May 14, 2014 letter to us, Kathleen
Wynne wrote:
"C. Develop the new Accessibility Standards under the AODA needed to achieve
full accessibility by 2025.
8. We are committed to a fully accessible Ontario by 2025. This is important work
and we need to make sure it is done right. Our pride stems from our most recent
accomplishments in which five accessibility standards became law under the
AODA.
The existing standards focus on five key areas of daily living and the AODA
requires that all public and private sector organizations comply with the existing
standards. The next accessibility standard we will develop will focus on education
and/or health.
The education sector, including publicly funded school boards, colleges and
universities are responsible for compliance with the AODA and associated
regulations. Healthcare organizations must also comply with accessibility
standards. Examples of requirements that already apply to these organizations
under the current five accessibility standards include:
•
•
•
•
•
Establishing policies on providing accessible customer service;
Providing information in accessible formats upon request;
Developing accommodation plans for employees with disabilities;
Requiring schools and hospitals that provide transportation services to
provide accessible vehicles or equivalent services upon request; and
Ensuring that public spaces are accessible.
9. In order to develop a new accessibility standard, the Ministry of Economic
Development, Trade and Employment has been actively working with the
Ministries of Education, Training, Colleges and Universities as well as Health and
Long-Term Care to examine where changes and new standards are required to
make our education and healthcare systems more accessible. This important work
needs to be done prior to broad consultation with the accessibility community."
On May 16, 2014, in the middle of the 2014 election campaign, we held a "Virtual News
Conference" on-line, to make public the parties' election commitments to us. In our analysis of
their pledges, made public at the same time, we said the following about Premier Wynne's
commitment regarding new accessibility standards:
"It has taken us at least three years of pressing the Liberals and two elections to
finally get them to agree to say something about the next accessibility standard
they will choose to create under the AODA. Their commitment that the next
accessibility standard will address education and/or health is some progress. Yet
here again, it is very tepid.
The Liberals still won't decide whether they will make accessibility standards to
address education, or health care, or both. People with disabilities need full
accessibility to both health care and education. They still face too many barriers in
each.
The Liberals do not say when they will finally decide this question. They also
don't say when they will decide which other accessibility standards they need to
create to ensure Ontario reaches full accessibility by 2025.
As a serious setback for people with disabilities, the Liberals here for the first
time announce a new and deeply troubling bureaucratic barrier to progress. The
Liberals' letter states that "In order to develop a new accessibility standard, the
Ministry of Economic Development, Trade and Employment has been actively
working with the Ministries of Education, Training, Colleges and Universities as
well as Health and Long-Term Care to examine where changes and new standards
are required to make our education and healthcare systems more accessible. This
important work needs to be done prior to broad consultation with the accessibility
community."
This is a serious distortion of the AODA legislation that the Liberals themselves
designed. Under the AODA the Ministries of Education, Health and Colleges,
Training and Universities do not first develop recommendations for what an
accessibility standard will contain. That is the job of an arms-length body
appointed under the AODA. The Government assigned that role to the
Accessibility Standards Advisory Council, as Premier Wynne's letter elsewhere
states.
Only after the Accessibility Standards Advisory Council consults the public, and
makes a recommendation about an accessibility standard's contents, does the
Government then internally deliberate on which of ASAC's recommendations it
will adopt. Yet here, the Liberals are improperly deciding what an Education
and/or Health Care Accessibility Standard should contain before it asks ASAC to
develop recommendations on what it should contain. This flies in the face of the
AODA's carefully designed, finely-balanced process for developing accessibility
standards.
This is a new bureaucratic roadblock. In 2005, the Government did not go through
such extensive bureaucratic hoops before it decided to develop accessibility
standards in the areas of transportation, employment, information and
communication, and the built environment. Had it done so in 2005, it would have
dramatically delayed progress.
Ontario is already behind schedule for reaching full accessibility by 2025. We
cannot afford any additional bureaucratic delays."
The troubling new bureaucratic barrier to which we referred puts the cart before the horse. It is
akin to demanding a pre-nuptial agreement before agreeing to go out on a first date. It reflects an
ever-escalating governmental timidity about taking any decisive steps under the AODA. It flies
in the face of the spirit of the AODA.
By agreeing to develop an accessibility standard in an area like education or health care or
residential housing, the Government is not pre-deciding what that accessibility standard will
contain. The Government does not thereby relinquish its ultimate power to decide what it will
include in such an accessibility standard. It merely opens the door to the standard's development.
In any event, it cannot have taken this long for the Government to internally size up whether
people with disabilities continue to face barriers in those three fields.
The latest development on this issue occurred on Twitter during the 2014 election campaign.
During that campaign, a Liberal candidate, cabinet minister, and former Ontario Liberal Party
president, tweeted us on May 31, 2014 that a re-elected Liberal Government would create an
accessibility standard to address both health care and education.
During the election campaign, we used Twitter to send various requests for accessibility
commitments to any candidates from the major parties who have a Twitter handle. Among other
things, we sent public tweets on Twitter to every Liberal candidate in this election who has a
Twitter account, asking the following:
"Do you support our call 4OntGov 2enact Education HealthCare&Housing
Disability #accessibility standards? #voteOn"
On May 31, 2014, we received two tweets from Ontario Liberal candidate, Cabinet minister, and
former president of the Ontario Liberal Party, Yasir Naqvi. He said for the first time that a
Liberal Government, if re-elected, would create a standard for both health care and education.
His two May 31, 2014 tweets, separately sent to both the AODA Alliance and to its chair, David
Lepofsky, stated:
"Yasir Naqvi: @DavidLepofsky Yes, the next accessibility standard a re-elected
@OntLiberal will develop will focus on education and health standards."
And
"Yasir Naqvi: .@aodaalliance Yes, the next accessibility standard a re-elected
@OntLiberal will develop will focus on education & health standards."
We immediately announced on Twitter and in our May 31, 2014 AODA Alliance Update that
this was a breakthrough. We stated:
"Tweets are on the public record. We will hold the Liberal Party to this new,
strengthened commitment. We know the parties track Twitter activity on the
election, including ours."
We immediately tweeted back:
"@Yasir_Naqvi pledges #OLP would create accessibility standard
4EducationANDHealthCare. B4 Libs only said and/or Progress! #voteOn"
We also tweeted to Premier Wynne about this:
"@Kathleen_wynne: "@Yasir_Naqvi committed next LibGov #accessibility
standards will focus on education & health #AODA #voteOn"
In Twitter speak, #OLP refers to the "Ontario Liberal Party."
OntGov means "Ontario Government."
B4 means "before."
#voteOn makes this tweet searchable as being about the "Ontario election."
This was an unorthodox way for us to learn of progress on this issue. However, it was progress.
3. Reflections on the Government's Delay in Deciding which Accessibility Standards to
Next Make
We advanced a compelling case for making the next three accessibility standards in the areas of
education, health care and residential housing. All three are vital to a happy life. They are
perennially major priorities for all political parties. They are inextricably tied to other key
priorities such as employment. They underpin Ontario's effort to be competitive in the global
marketplace.
In our years campaigning for these new accessibility standards, we have heard no public
opposition to any of our proposed areas for accessibility standards, either from within the
disability community or from obligated organizations. It was always intended under the AODA
that the Government would craft a series of accessibility standards to individually target different
sectors of the economy. Yet to date, of the five areas that the Government has tackled with
accessibility standards, only one, transportation, targets a specific sector of the economy.
It cannot plausibly be said that under the existing accessibility standards, Ontario will achieve
fully accessible education and/or health care and/or residential housing by 2025, or indeed, ever.
There has been some positive action on the accessibility front in these three sectors. However,
the Government has not undertaken a comprehensive, top-to-bottom review of the accessibility
of Ontario's education system, or its health care system, or its residential housing, in decades. It
has no comprehensive plan for ensuring that by 2025, any of these sectors will become fully
accessible. This is long overdue.
In the education context, we won important public letters of endorsement in 2013 for our
proposal for an Education Accessibility Standard from four major organizations. These
organizations represent many of those who deliver education at the front lines of our education
system. These include the Ontario Confederation of University Faculty Associations OCUFA
(representing university professors), the Elementary Teachers Federation of Ontario ETFO
(representing English public elementary school teachers), the Ontario Secondary School
Teachers Federation OSSTF (representing English public secondary school teachers) and the
Ontario English Catholic Teachers Association OECTA (representing English Catholic
elementary and secondary school teachers).
This shows that so many who teach on the front lines of Ontario's education system agree that
more must be done. They are not pushing back against us. They are in a unique position to vouch
for our call for this accessibility standard.
As far as we can ascertain the Government has not even asked ASAC what accessibility
standards should next be developed. The Government has had ASAC available to it since 2005.
It would have been easy for the minister responsible for the AODA to seek ASAC's input on this
at any time, either during one of its several face-to-face meetings each year, or via a telephone
conference call. It is now far too late to hold this up for such a consultation. However the
Government's failure to even ask ASAC's views shows how glacial has been the pace of progress
on this issue.
The Government's unexplained and unjustified multi-year dithering over which accessibility
standards to make next has squandered important time, as the 2025 deadline grows ever closer.
The Government has taken longer to decide which accessibility standards to next make than it
takes to actually make an accessibility standard. This is among the more troubling illustration of
the Government's failure to show new leadership on the AODA, to breathe new life into its
implementation and to institute transformative change -- all changes in governmental direction
that Charles Beer found so necessary over four years ago.
This delay cannot be justified by the fact that Ontario had a minority government since October
2011. The Government does not need any vote to be taken in the Legislature to decide which
accessibility standards to next develop. The AODA gives that power to the minister responsible
for the AODA. Moreover, neither opposition party has said a word in public against any of the
three new accessibility standards that we have sought. As noted earlier, the NDP has been on
record supporting the three new accessibility standards that we seek. The Conservative Party has
not endorsed them, but has not opposed them or denied the need for them.
This foot-dragging cannot be written off as simply the inevitable delay in government. This
Government has shown itself to be capable of prompt and bold action on the disability
accessibility front, when it wishes. As discussed in Part I of this brief, from October 2003 to
October 2004, as a brand new Government with no experience in this area, it quickly and
effectively conducted a broad, open and inclusive public consultation and developed Bill 118,
the proposed AODA.
After the AODA was enacted in 2005, the Government, still relatively new, quickly and
decisively selected the first five accessibility standards to develop. It made that decision without
any of the multi-year dithering from which we have suffered since 2010. It could support five
different Standards Development Committees, with up to four operating at the same time. It
achieved this when the Accessibility Directorate of Ontario had fewer staff and a lower budget
than it now has, with the Accessibility Directorate of Ontario still coming in under budget in
every year since the AODA was passed.
Only the Government can explain why it continued this foot-dragging, despite the fact that the
most recent minister responsible for the AODA, Dr. Eric Hoskins, repeatedly said that the
accessibility issue is a "top priority" for the Government and for him.
We do not attribute this delay to the Accessibility Directorate of Ontario. It appears clear that
they were not given a green light to develop new accessibility standards. This delay is due to a
failure of effective leadership at the political level within the Government.
The Government cannot claim that ASAC can only develop one standard at a time. The Charles
Beer recommendations were not designed to slow down the development of new accessibility
standards. They were intended to speed up and simplify the process.
ASAC can set up subcommittees to work at the same time in different areas, all the while
avoiding duplication, ensuring harmonization, and saving costs. That is why we supported the
reform to the standards development process which vested all Standards Development committee
work in the single ASAC. Had the Government thought that ASAC would only be able to
develop one accessibility standard at a time, we would have strenuously opposed the assignment
of all standards development to ASAC.
This dithering must end now. Ontario's next Government, in the next term of government, must
embark on and complete the development of all the remaining accessibility standards that are
needed to ensure that Ontario reaches full accessibility by 2025. This is not limited to the three
next accessibility standards for which we have been advocating.
By 2025, the Government must have developed and fully implemented all the accessibility
standards needed to ensure that Ontario becomes fully accessible by 2025. This includes giving
obligated organizations enough time to fully implement all accessibility standards, so that those
organizations become fully accessible by or before 2025. If the next Government does not do
this, it in effect has failed in its obligations under the AODA, in a way that cannot later be
readily corrected.
It takes at least two years, if not more, for a new accessibility standard to be developed and
enacted. The Government took from 2006 to 2011 to fully develop the IASR's provisions
concerning transportation, employment and information and communication. We alerted the
major Ontario political parties of this in our March 3, 2014 letter to them, seeking their disability
accessibility election commitments.
Ontarians with disabilities suffer as a result of the Government's dithering. As the months go by,
old barriers remain in place and get even more entrenched. New ones get created that could have
been prevented. When the Government announces that it plans to develop a new accessibility
standard, e.g. in the area of health care, obligated organizations such as health care providers will
get right to work on how to better address accessibility issues. They will do so even before a new
accessibility standard is created and enacted, in order to get out in front, ahead of new
legislation.
4. The Long, Sad and Unfinished Saga of the Promised Built Environment Accessibility
Standard
a) Overview
The AODA requires Ontario's buildings to become accessible to persons with disabilities by or
before 2025. Ontario is clearly not on schedule for achieving a fully accessible built environment
by then or ever.
During the Legislature's 2004-2005 debates on Bill 118, the proposed AODA, the need to make
Ontario's built environment was a central focus. MPPs addressed not only the need to prevent
new barriers in new buildings, but as well, the need to retrofit the existing built environment to
ensure it becomes fully accessible by 2025. The 20 years that the AODA allows for achieving
full accessibility was driven in substantial part by the time needed to retrofit Ontario's largelyinaccessible built environment.
Even though the Government commendably focused efforts on the built environment within the
first years after the AODA was passed, its efforts eventually slowed to a glacial pace after 2010.
It will not be until 2015, if not later, that all its insufficient regulations enacted to date to prevent
new built environment barriers will go into operation. No new built environment accessibility
standards are now under development. The Government has, to date, done nothing to keep its
promise to also address retrofitting of existing built environment barriers, through AODA
standards.
b) Hurry Up and Wait
It was not long after the AODA was enacted that the Government commendably decided to make
the built environment a priority. In October, 2007 it established the Built Environment Standards
Development Committee to develop proposals for a Built Environment Accessibility Standard to
be enacted under the AODA.
The Built Environment Standards Development Committee began its work in 2008. In the
following year, on July 14, 2009 the Government posted for public input the initial proposed
Built Environment Accessibility Standard that the Built Environment Standards Development
Committee prepared. When the Government released the initial proposed Built Environment
Accessibility Standard, its web announcement included the following:
“It is important to note that the government does not plan to impose requirements
for retrofitting existing buildings at this time. Also, the government does not
intend to require Ontarians to make their existing or new single family houses
accessible at this time.”
The Government's web posting also said:
“The initial proposed standard sets out specific requirements for making the built
environment in Ontario accessible, including all new construction and extensive
renovations.
The Accessibility for Ontarians with Disabilities Act is built on a vision of
improving accessibility in Ontario - looking forward, not looking back.
We asked the standards development committee to take a broad look at how to
make Ontario’s buildings, structures and other spaces accessible. The
requirements the committee is proposing are not law.
Requirements for single family residential housing and for retrofitting existing
buildings have been included for public discussion. But the government will not
impose these requirements in the final built environment standard at this time.
The government does not plan to require that all existing buildings be retrofitted
to meet accessibility requirements in the final accessible built environment
standard at this time. Terms of reference outline that this standard will be focused
on preventing barriers on a go-forward basis. Also, the government does not
intend to require Ontarians to make their existing or new houses accessible in the
final accessible built environment standard at this time.”
The terms of reference which the Community and Social Service Ministry (then responsible for
the AODA's implementation and enforcement) set for the Built Environment Standards
Development Committee required, among other things that the Committee:
“Focus on first 5 year efforts on preventing barriers, on a go forward basis;”
After these announcements were made public in the 2009 summer, we and others raised serious
concerns with the Ministry about the need to address, at some point and where appropriate, the
retrofitting of existing buildings and accessibility to residential housing. It was a substantial
repudiation of much of the AODA's mission and mandate for the Government to state that the
AODA is meant to address accessibility “looking forward, not looking back.” The AODA
explicitly addresses not only the prevention of new barriers, but the removal of existing barriers.
Otherwise, it would not be possible to reach the AODA’s goal of full accessibility in Ontario by
2025.
It was similarly troubling that the Government's web posting referred to the AODA in terms of
"improving accessibility." This massively diluted the AODA's goals. There was similar language
in a number of the Government's pronouncements about the AODA after it was enacted.
"Improving accessibility" is an impoverished, minimalist goal. It is achieved merely if a single
ramp is installed somewhere in Ontario. The AODA seeks to achieve much, much more. Its goal
is full accessibility.
After we and others objected to the Government's attempt to walk back much of what the AODA
promised, the Ministry promptly replaced the preceding portions of its website so it instead read:
“On July 14, 2009, the Ontario government released the initial proposed
Accessible Built Environment Standard for a public review period. A standards
development committee developed the proposed standard. The committee was
made up of representatives from the disability and business communities.
Creating an accessible Ontario by 2025 is a big undertaking, but a goal the
government is committed to achieving.
The committee’s terms of reference outline that this standard will focus on
preventing barriers on a go-forward basis. Under this proposed standard, all new
buildings and buildings undergoing major renovations would need to meet the
proposed requirements if passed as law.
The government does not plan to require that all existing buildings be retrofitted
to meet accessibility requirements in the final accessible built environment
standard at this time. Also, the government does not intend to require Ontarians to
make their existing or new houses accessible in the final accessible built
environment standard at this time.
A subsequent step the government plans to take to achieve an accessible built
environment in the province is to take a more focused look at how to deal with
retrofitting existing buildings and making houses accessible. These two issues are
expected to be addressed through a standard development committee process.
The standard development process going forward will consider any
recommendations made by Charles Beer in his independent review of the AODA,
which is currently underway.”
We understood this to mean that the Government planned first to enact the first part of a Built
Environment Accessibility Standard which addresses barrier-free construction in new buildings
and renovated properties. After that was done, the Government would designate a Standards
Development Committee or Committees to address measures regarding the retrofitting of
existing buildings that are not undergoing renovations, and accessible housing needs facing
Ontarians with disabilities. We made it clear to the Government and the public that we hoped
that the latter initiative would include the full spectrum of issues relating to access to housing,
such as removing barriers to community living options for persons with disabilities.
A 2009 CBC report confirmed the Government's commitment to later deal with retrofits. CBC's
Website on Friday July 17, 2009 included:
"The province plans to deal with the issue of retrofits at a later date, according to
Social Services Minister Madeleine Meilleur, MP for Ottawa-Vanier."
One year later, on June 1, 2010, Community and Social Services Minister Meilleur committed in
Question Period in the Legislature that the four accessibility standards that were then still under
development, including the Built Environment Accessibility Standard, would be enacted by the
end of 2010. She stated: “Before the end of this year, the five standards will be in place.” It turns
out that insofar as the promised Built Environment Accessibility Standard was concerned, she
was off by as much as three years.
In July, 2010, the Built Environment Standards Development Committee finished its work. It
submitted its final proposal for the Built Environment Accessibility Standard to the Government.
Two months later, on September 10, 2010 the Accessibility Directorate of Ontario, part of the
Community and Social Services Ministry posted the final proposed Built Environment
Accessibility Standard on the Government's website for 45 days. The Government did not
request public input on that proposal.
On September 28, 2010, Minister Meilleur committed that the Built Environment Accessibility
Standard would cover barriers both inside and outside buildings. Speaking to the "Business
Takes Action" Symposium, she said (according to her speaking notes):
"And last but not least, we have the Built Environment Standard. This will
address access into and within buildings and outdoor spaces."
On October 14, 2010, Minister Meilleur committed that the final public review period for the
Built Environment Accessibility Standard would likely be in 2011. That is the period when the
Government posts a draft of the accessibility regulation that it proposes to enact for a final round
of public comment and input. This is the last step before an accessibility standard can be enacted.
By that announcement, she in effect pushed back the deadline she had earlier announced for
enactment of the Built Environment Accessibility Standard. Speaking to honour "World
Standards Day" at the Standards Council of Canada, the minister stated (according to her
speaking notes):
"The Built Environment Standard – which will address access into and within
buildings and outdoor spaces – is at an earlier stage of development. It has been
submitted by the standards development committee for consideration and is now
available on my ministry’s website for the public to see. The public review period
for the Built Environment Standard will likely take place next year."
In that same month, October, 2010 the Government announced that the Ministry of Municipal
Affairs and Housing would be undertaking a consultation on proposed changes to the Ontario
Building Code. The first round of consultations, to begin in the fall of 2010, would not include
Building Code amendments arising from the final proposed Built Environment Accessibility
Standard. Rather, that Ministry was deferring accessibility amendments to the Building Code to a
later consultation by that Ministry. This would be followed by much more foot-dragging by the
Municipal Affairs and Housing Ministry.
Four months after that, on February 23, 2011, the Accessibility Directorate of Ontario sent out a
broadcast email, announcing that the Ministry of Municipal Affairs and Housing was
commencing a second round of Building Code consultations. However, that too would not
include accessibility issues arising from the final proposed Built Environment Accessibility
Standard. Accessibility issues were again being deferred to an unspecified future time. It stated:
"I want to reassure you that the government continues to consider the Final
Proposed Accessible Built Environment Standard submitted to the Minister in
July 2010, and is working hard to respond to requests for further research in key
areas of the proposed standard to make sure that when we move forward, all
requirements will be clear, consistent, enforceable and will build on current
accessibility requirements."
The months dragged on with no progress in sight. On June 9, 2011, the AODA Alliance wrote to
the two public officials with lead responsibility for this issue at the Ministry of Municipal Affairs
and Housing and the Community and Social Services Ministry respectively. We asked for a
comprehensive update on the state of the government's work toward enacting the promised Built
Environment Accessibility Standard:
"It is our understanding that the Ministry of Municipal Affairs and Housing is
working on proposals for incorporating changes regarding accessibility of the
built environment within buildings, into the Ontario Building Code, where they
fall within the scope of the Building Code. We also understand that proposals
from the Standards Development Committee that do not fall within the scope of
the Ontario Building Code, are now the focus of work by the Accessibility
Directorate at the Ministry of Community & Social Services. To the extent that
those are enacted into law, the latter would not be done by amendments to the
Building Code.
We want to know in detail what has been done in both of these areas, since the
Standards Development Committee submitted its final proposal last year. We also
want to know what plans the Government has in both of your ministries, and
elsewhere, for completing this project. Among other things, we would appreciate
learning about the current time lines that are now expected for completing the
work that each of your respective ministries is now undertaking.
Finally, we are eager to ensure that whatever is enacted, including any changes to
the Building Code, is also fully enforceable as a standard enacted under the
Accessibility for Ontarians with Disabilities Act. What decisions have been made,
or action taken in this regard to date."
On June 24, 2011, the two senior Ontario Government officials to whom we had written wrote us
a joint response. They described their activities in very general terms. They gave no time lines
for finalization of the Built Environment Accessibility Standard. They wrote:
"The Accessible Built Environment Standard is still under development. The
Accessibility Directorate of Ontario and the Ministry of Municipal Affairs and
Housing (MMAH) are working together to complete a careful analysis of the
proposed standard. In addition, you may be aware that the Standards
Development Committee identified a number of areas where additional research
was required in order to develop regulations, which were not part of the Final
Proposed Standard. These additional recommendations are also part of our
analysis of the Standard Development Committee’s recommendations.
We are working hard to make sure that the requirements put forward are clear,
consistent and enforceable, and build on current accessibility requirements. Once
this analysis is complete, the government will make decisions on what
requirements will be proposed as regulations and when they will come into force."
In the 2011 Ontario general election, still seeing no end in sight, we sought commitments from
the major parties to expeditiously complete the Built Environment Accessibility Standard. In our
July 15, 2011 letter to the party leaders, we wrote:
"In July 2010 the current Government received a final proposal for a Built
Environment Accessibility Standard under the AODA. The current Government
has studied it for one year and has set no date for enacting it. See
http://www.aodaalliance.org/strong-effective-aoda/07082011.asp. We agree with
the current Government's plan to incorporate it into the Ontario Building Code, to
the extent feasible. We ask you to commit to:
2. enact a Built Environment Accessibility Standard as a regulation under the
AODA, and to the extent feasible, include the same content as an amendment to
the Ontario Building Code, no later than the end of 2012, to address built
environment barriers inside and outside buildings."
On August 19, 2011, during the 2011 Ontario election campaign, Premier Dalton McGuinty
wrote to us to promise that the Built Environment Accessibility Standard that his Government
had under development would be enacted "promptly." He wrote:
"It is a priority for us to enact the Accessible Built Environment standard
promptly and responsibly."
Four months after that, on December 2, 2011, after the dust had settled from the October 2011
Ontario election, and with still no signs of progress on the Built Environment Accessibility
Standard, we wrote to the new Minister of Municipal Affairs, Kathleen Wynne. Among other
things, we urged prompt action on the promised Built Environment Accessibility Standard. Our
letter stated in material part:
"1. Expediting Enactment of the Built Environment Accessibility Standard
First, your ministry has taken on a major role in the development of the
forthcoming built environment accessibility standard under the Accessibility for
Ontarians with Disabilities Act. In his August 19, 2011 letter to us, setting out
your party's 2011 election commitments, Premier McGuinty pledged that: "It is a
priority for us to enact the Accessible Built Environment standard promptly and
responsibly."
Over four years ago, in October, 2007, your government appointed the built
environment standards development committee, under the provisions of the
Accessibility for Ontarians with Disabilities Act. It was established to develop a
proposal for this standard in consultation with experts in the field. After many
hours of painstaking work, that Standards Development Committee submitted a
very detailed initial proposal for the Built Environment Accessibility Standard to
the government.
On July 14, 2009, your Government made public the initial proposed Built
Environment Accessibility Standard for public comment. After public comment
was received, the Built Environment Standards Development Committee
undertook many more hours of study to refine their initial proposal in light of
public feedback on the initial proposal. Well over a year ago, in July 2010, the
Built Environment Standards Development Committee submitted its final
proposal for the Built Environment Accessibility Standard to your Government.
Since then, that proposal has been under study in your ministry and in the
Ministry of Community and Social Services.
We understand that your Ministry was extensively involved with the work of the
Built Environment Standards Development Committee throughout its many
months of activity. As such, your Government should be well-positioned to fulfil
the Premier's commitment to promptly finalize and enact this much-needed
accessibility standard.
Despite this, this initiative has unfortunately been behind schedule for some time.
On June 1, 2010, the Minister of Community and Social Services Minister
committed that the Built Environment Accessibility Standard would be enacted by
the end of 2010. That deadline was missed.
Back on June 9, 2011, we wrote the relevant assistant deputy minister in your
ministry and the assistant deputy minister in the Ministry of Community and
Social Services, who together have lead responsibility for the development of the
built environment accessibility standard. We asked for details on their plans for
bringing this project to completion. Their answer to us, dated June 24, 2011,
provided little information. You can find a detailed chronology of these events
and supporting documentation at http://www.aodaalliance.org/strong-effectiveaoda/07082011.asp
We understand that your ministry has taken on responsibility for the parts of the
built environment accessibility standard that are to be incorporated in the Ontario
Building Code. We ask you to expedite the work of your ministry's officials on
this project, so that your government can keep the Premier's commitment to us.
We also ask that any requirements that are incorporated into the Building Code
also be enacted as accessibility standards under the Accessibility for Ontarians
with Disabilities Act, so that we have the full benefit of the protections we won in
that legislation."
Municipal Affairs and Housing Minister Wynne responded in a letter to us dated January 17,
2012. Her formulaic letter said nothing new. Regarding the built environment, she wrote:
"Expediting Enactment of the Built Environment Accessibility Standard
I want to acknowledge the work done by the Accessible Built Environment
Standards Development Committee, and the contribution of the AODA Alliance
as members of the committee, for the development of its final proposed
Accessible Built Environment Standard. As you know, the committee’s
membership included people from the disability, municipal and business
communities. All of them worked very hard to develop and submit their final
proposed standard to the former Minster of Community and Social Services in
July 2010.
It takes time to develop a standard of this complexity and magnitude. In other
jurisdictions, it has taken up to 10 years to develop accessibility standards. The
Accessible Built Environment Standards Development Committee also identified
a number of areas where further research is required. Work is ongoing through
analysis of the entire proposed standard by staff from this ministry as well as the
Accessibility Directorate of Ontario at the Ministry of Community and Social
Services.
New requirements will address both the internal built environment (buildings) and
the external built environment (which includes parking spaces, signs and displays,
and recreation areas such as parks and trails). Once this analysis is complete, our
government will decide what requirements will be proposed as regulations and
when they will come into force. Any requirements that the government moves
forward on must be clear, consistent, enforceable, and must build on current
accessibility standards."
Yet another five months slipped past with no discernible progress. Therefore, on Friday, June 1,
2012 we wrote to the two Ministers responsible for the Built Environment Accessibility
Standard, to press for its enactment. Our letter to Community and Social Services Minister John
Milloy and Municipal Affairs and Housing Minister Kathleen Wynne, raised five key issues:
1. We asked when the Government will be publicly posting a draft of the proposed Built
Environment Accessibility Standard for public comment.
2. We asked the Government as soon as possible to release a summary of the intended contents
of the proposed Built Environment Accessibility Standard, in advance of finalizing its precise
legal language.
3. We reiterated that the Government planned to enact part of the new Built Environment
Accessibility Standard in the form of amendments to the Ontario Building code. We yet again
asked the Government to commit that any new accessibility requirements to be added to the
Ontario Building Code also be enacted as part of the enforceable Built Environment
Accessibility Standard enacted under the AODA. Our earlier requests in this regard had never
been answered. To this day, this request has gone unanswered and unfulfilled.
4. We asked the Government to include in the Built Environment Accessibility Standard, a
requirement that when public sector organizations engage in downsizing of their buildings
holdings, they give priority to closing inaccessible properties in favour of retaining more
accessible properties. The Government has to this day never agreed to this, or responded
substantively to this proposal.
5. We noted that the anticipated Built Environment Accessibility Standard would not require
retrofitting of any existing buildings that are not undergoing major renovations. We asked for a
clear commitment now that as soon as the part of the Built Environment Accessibility Standard
that addresses the sphere of the Ontario Building Code was enacted, the Government would
immediately launch a prompt standards development process to develop a part of the Built
Environment Accessibility Standard to deal with retrofitting of existing buildings that are not
slated for major renovations. To this day, that request has gone unanswered and hence,
unfulfilled.
On July 16, 2012, Minister Wynne responded. Her letter provided few, if any specifics. It stated
in material part:
"As you know, the Built Environment Accessibility Standard is the final standard
to be regulated under the AODA. It is the largest and most complicated standard
requiring the cooperation of both the Ministry of Community and Social Services
and the Ministry of Municipal Affairs and Housing. Our work has been greatly
advanced by the noteworthy contribution of the Accessible Built Environment
Standard Development Committee.
The Ministry of Municipal Affairs and Housing has a long history of contributing
to an accessible built environment through Ontario’s Building Code. We have set
increasingly rigorous requirements for barrier-free design since 1975. Moreover,
Ontario’s Building Code has been, and continues to be, a leader among Canadian
building codes, including the model National Building Code.
Currently, ministry staff are developing recommendations for potential Building
Code changes based on the Final Proposed Standard, and we expect this
information to be made available in the coming months. Any proposed changes to
the Building Code will be made available to all Ontarians as part of a public
consultation. The consultation will include an explanatory document that outlines
the proposed changes in plain language. Once this is complete, the Ontario
government will decide which requirements will be proposed as regulations and
when they will come into force.
Once again, thank you for your input and continued engagement. I look forward
to further dialogue with you on this matter."
Our August 16, 2012 AODA Alliance Update commented publicly on this letter:
"Minister Wynne's letter to us…makes undeserved self-congratulatory claims
about her Ministry's past work in this area. In fact, deficiencies over the years in
the Ontario Building Code have contributed to the ongoing presence of barriers
that persons with disabilities too often still encounter in the built environment.
Had her ministry's work on barrier-free building standards been as effective as
Minister Wynne's letter claims, her Government would not now still be unable to
even tell us when it will bring forward the "inside buildings" Built Environment
Accessibility Standard provisions for which her ministry has lead
responsibility…"
On August 15, 2012, a full two years after the Government received the final proposed Built
Environment Accessibility Standard from the Built Environment Standards Development
Committee, the Government posted for public comment, a draft accessibility standard, to address
built environment in public spaces. This in substances was a very limited, partial Built
Environment Accessibility Standard.
Addressed in detail in Part III of this brief, this accessibility standard, which was ultimately
incorporated into the IASR, did not comprehensively address built environment barriers in
buildings. It only addresses barriers in outdoor public spaces of new developments or major
renovations. It did not address retrofitting of pre-existing barriers in outdoor public spaces where
the public space is not being redeveloped. The only thing it addressed inside buildings were new
or redeveloped service areas e.g. a public counter and waiting area.
Our August 16, 2012 AODA Alliance Update commended the Government for taking this step,
but noted:
"We still have no specific word from the Government on when it will bring
forward its promised draft accessibility standard to address barriers inside
buildings. That is a very central part of any effective Built Environment
Accessibility Standard."
It also stated:
"We remain frustrated that the Government is now only dealing with new
construction and renovations to the existing built environment. It has not
announced any specifics on how or when it plans to deal with retrofits of barriers
in the existing built environment that are not undergoing any renovations. It has
previously committed that it would eventually address those retrofits through the
standards development process."
Four months later, in December 2012, the Government enacted the Public Spaces provisions of
the IASR. It was clear to us that the Community and Social Services Ministry was far ahead of
the Municipal Affairs and Housing Ministry in its work and its commitment to this issue. From
the outside, it appeared that the Community and Social Services Ministry had hived off the
Public Spaces part of the Built Environment Accessibility Standard, in hopes of moving forward
more quickly and making some progress despite the manifest foot-dragging at the Municipal
Affairs and Housing Ministry. It was our perception that the delay at the Municipal Affairs and
Housing Ministry came at least as much from the public servants within that ministry, as from
the lack of political leadership on this issue.
It was well over two years after the Built Environment Standards Development Committee
submitted its final recommendations to the Government in 2010, before we saw the glacial
activity at the Municipal Affairs and Housing Ministry start to pick up. That ministry's Building
Code officials then went through a long process of consultations that led to Ontario Building
Code accessibility amendments that were enacted by the Ontario Cabinet as regulations in
December 2013. That was well over two years after Premier McGuinty promised on August 19,
2011 that the Built Environment Accessibility Standard would be enacted "promptly" as a
priority.
c) Reflections on the Promised Built Environment Accessibility Standard
We acknowledge the advantages of including accessibility requirements in the Ontario Building
Code. Builders look to the Ontario Building Code for directions on what a building must include.
Builders likely know little if anything about the Human Rights Code, and even less about the
AODA.
However, there are major disadvantages to the Government having gone the Ontario Building
Code route. As these Building Code accessibility amendments were being developed, we were
told time and again that there are some accepted conventions in the Building Code. These led the
Government to feel constrained about how effectively it could deal with built environment
barriers in that legislation.
For example, when we proposed a specific requirement to the Government, we were baldly told
that this would be problematic "due to cost." We have taken the position that the simple fact that
an accessibility requirement can occasion some costs cannot of itself stop the Government from
imposing it. Under the Human Rights Code, cost can justify a denial of accessibility only where
it would cause an organization undue hardship.
As we understand it, the Ontario Building Code amendments do not take the approach of
requiring an accessibility measure, but exempting an organization from that requirement if its
cost would cause that organization undue hardship. We understand that crafting a requirement in
that way is not a convention that is typically used in the Ontario Building Code. Instead, the
Ontario Building Code simply imposes accessibility requirements, but they are watered down to
avoid any chance of an organization having a claim that they would impose costs amounting to
an undue hardship.
Such "conventions" should not be treated as if they were engraved in stone. The AODA and
Human Rights Code prevail over laws that provide lesser accessibility protections.
It is troubling that the Government in effect hacked this major part of the built environment away
from the Accessibility Directorate of Ontario, the public agency that has led the process of
developing accessibility standards. It gave it instead to the Municipal Affairs and Housing
Ministry. That Ministry has a sorry track record on built environment accessibility. Indeed, when
our predecessor coalition, the Ontarians with Disabilities Act Committee, was advocating for the
AODA from 1994 to 2005, it saw a need to wrench the built environment's accessibility away
from the public officials who had had responsibility for it for years at the Municipal Affairs and
Housing Ministry. This was because their track record on this issue was so poor. Their delays in
dealing with this issue, once the Government re-assigned it to them after the Built Environment
Standards Development Committee finished its work in 2010, demonstrated that this long,
troubling track record was to continue.
It remains seriously problematic that the Government has to date not agreed to enact accessibility
requirements in an AODA accessibility standard, that replicate the built environment
accessibility provisions of the Ontario Building Code, as amended in 2013. As demonstrated in
this Part of this brief, we have made this request of the Government, but it simply has not
responded.
The Government is in clear breach of its promises to us. What we were promised was a Built
Environment Accessibility Standard, to address the physical barriers in the built environment.
Only the small slice of the built environment is addressed in the Public Spaces provisions of the
IASR. The rest is all addressed, if at all, only under the Ontario Building Code. That is not an
AODA accessibility standard.
We were not consulted before the Government decided to take this approach. We have not and
do not agree with it as the sole way to regulate accessibility barriers in the built environment
inside buildings.
We need these Ontario Building Code built environment accessibility requirements to be
replicated in an accessibility standard enacted under the AODA, so that we can have the benefit
of their enforcement under the AODA. Ontario's Building Code enforcement is conducted by
municipal building inspectors, over whom the Ontario Government has no direct control. We
have no way to track how well they are trained, or how seriously they take these accessibility
requirements, or how effectively they enforce them.
In addition to those municipal inspectors, any provincial official with AODA inspection or
auditing authority should be able to include these accessibility requirements in their enforcement
activities. It would be absurd for an AODA compliance order, audit, inspection, enforcement
proceeding, appeal, or monetary penalty to disregard unlawful accessibility deficiencies in an
organization's built environment.
We also need these Ontario Building Code built environment accessibility requirements to be
replicated in an accessibility standard under the AODA, so that we have full recourse to a fiveyear review of them through the process which the AODA makes mandatory. Ontarians with
disabilities fought long and hard for that process to be enshrined in law. The Government's
process for review of the Ontario Building Code does not include all those safeguards. Long
experience with the Ontario Building Code also shows that the Ontario Building Code review
process has been systemically deficient at effectively addressing the needs of persons with
disabilities.
It is fundamentally unacceptable that it took from 2005, when the AODA was passed, to 2015,
for these Ontario Building Code accessibility requirements to go into effect. That is halfway
through the twenty years that the AODA allocates for Ontario to become fully accessible. That in
turn means that for the first ten of those twenty years, the AODA did nothing to prevent the
creation of new built environment barriers, much less to deal with eliminating old built
environment barriers in buildings that will otherwise undergo no major renovations.
It makes this sad picture even worse that, as noted earlier, the Government has not kept its
promise to address retrofitting of the built environment, in the context of residential housing, and
of buildings that are not undergoing a major renovation, through a standards development
process. As documented earlier, in response to direct advocacy efforts by us and others in the
disability community, the Government promised this in July 2009, to begin after the Government
had enacted requirements to deal with barrier-prevention in new construction and major
renovations. That work was completed in December 2013, half a year ago.
We have repeatedly referred to this commitment in correspondence with the Government and in
discussions with public officials at all levels. No Government official has denied that this
commitment was made. However, whenever we raise this with the Government, we are typically
met with blank stares. It is clear to us that the public service has been given no directions to take
any action on this.
The Government's 2009 commitment to this effect was on a web page that the Government has
since taken down from the internet. This is because it was part of a posting, discussed earlier,
where the Government made public, for public comment, the Built Environment Standards
Development Committee's initial proposed Built Environment Accessibility Standard. The
Government has an unfortunate practice of taking down any such postings for public comment
after the consultation period expires. However, that announcement, including this specific
commitment, is preserved on our website, and is available to be viewed at
http://www.aodaalliance.org/strong-effective-aoda/07242009.asp
Part of that 2009 Government commitment, as noted earlier is to address barriers in residential
housing through the standards development process. Yet, as documented earlier in this Part of
this brief, the Government has never positively responded to our call that the next three standards
that the Government should create should include one to address residential housing.
To the contrary, when the Government was finally driven to say something in public about the
next standards to be developed, under the pressure of the 2014 Ontario election campaign the
Government only spoke of accessibility standards to address education and/or health care. That
purported to take an accessibility standard to address residential housing right off this table,
contrary to its 2009 commitment.
5. Recommendations on Next Accessibility Standards to be Developed
We urge this Independent Review to recommend as follows:
*#15. If it has not done so by the time of this Independent Review's report, the Government
should immediately direct ASAC to develop proposals for the contents of new AODA
accessibility standards in the areas of education and of health care, with ASAC's work on these
to begin immediately. These should encompass the entire education system, including preschool, school, post-secondary institutions and job training programs. These should also
encompass the entire health care system.
*#16. The Government should not delay a decision on whether to have a new accessibility
standard developed while the Ontario Public Service decides what barriers it might include. That
is the job of ASAC, as it develops proposals for the content of an accessibility standard.
*#17. For three months commencing immediately, the Government should consult with the
public, including the disability community, to identify all the other accessibility standards that
need to be developed under the AODA to ensure that Ontario becomes fully accessible by 2025,
with a Government decision to be made, and to be announced to the public, on those standards
within three months after that consultation is completed.
*#18. Immediately after the Government announces the remaining standards that need to be
developed to ensure Ontario becomes fully accessible by 2025, the Government should assign
ASAC responsibility to develop proposals for the contents of all those other accessibility
standards to be created under the AODA. ASAC's work on developing proposals for the contents
of those accessibility standards should begin no later than 2016.
*#19. The Government should ensure that the accessibility of the Built environment is fully and
effectively addressed by requirements enacted under the AODA, e.g.
a) To keep the Government's promise to enact the Built Environment Accessibility Standard
under the AODA, and to ensure that full AODA enforcement can be deployed in relation to built
environment barriers against persons with disabilities, the Government should immediately enact
a Built Environment Accessibility Standard that incorporates the same terms and requirements as
were enacted in the accessibility provisions of the Ontario Building Code, including the
Government's 2013 accessibility amendments to the Building Code.
b) The Government should direct ASAC to immediately start developing the promised next
phase of the Built Environment Accessibility Standard, to address accessibility retrofits in
existing buildings, and barriers in residential housing. These should not be artificially
constrained by traditional protocols used in the Ontario Building Code if these impede effective
action on accessibility.
*#20. Accessibility standards should include, where appropriate, not only end-dates for
achieving results, but also interim benchmarks for major milestones towards full accessibility.
Part V. Reforming the Standards Development Process Has Not
Fully Fixed Earlier Problems
1. Introduction
The Beer AODA Independent Review final report identified significant problems with the
process under the AODA for developing accessibility standards. That report made specific
recommendations to fix those problems.
That report was not able to capture all the problems with the standards development process,
since four accessibility standards were still in the midst of being developed when the Beer report
was written.
We agree with the Beer report's findings and recommendations on point. We here go beyond that
report, based on experience garnered after his review was completed.
None of our concerns require any amendments to the AODA. They can all be addressed
administratively.
2. The Government's Failing to Comply with the Statutory Deadline for Making an
Accessibility Standard after One is Recommended
Under the AODA, the Government assigns to a Standards Development committee the duty of
preparing a proposal for an accessibility standard in a specific field that the Government assigns.
After the Standards Development committee submits its final proposal to the Government, the
AODA sets a specific 90-day time line for the Government to decide whether to adopt that
proposal. It appears that the Government has repeatedly violated the AODA's mandatory short
90-day time line for the minister responsible for the AODA to recommend to Cabinet what to
enact in an accessibility standard, once the Standards Development committee has submitted its
final proposal to the minister.
Section 8(7) and (8) of the AODA provide:
"(7) No later than 90 days after receiving a proposed accessibility standard under
subsection (6), the Minister shall decide whether to recommend to the Lieutenant
Governor in Council that the proposed standard be adopted by regulation under
section 6 in whole, in part or with modifications.
(8) On making a decision under subsection (7), the Minister shall inform, in
writing, the standards development committee that developed the proposed
standard in question of his or her decision."
The Government took at least a year, if not years to make its final decisions on which standard to
enact in the areas of transportation, employment, information and communication and the built
environment. The Transportation Standards Development committee submitted its final
recommendation to the minister in late 2008 or early 2009. The Employment Standards
Development committee submitted its final recommendation to the Government in September
2009. The Information and Communication Standards Development Committee submitted its
final proposal for the Information and Communication Accessibility Standard to the Ontario
Government on May 29, 2009. The Government did not enact the Integrated Accessibility
Standard Regulation to implement parts of those recommendations until June 2011.
The Built Environment Standards Development Committee submitted its final proposal for a
Built Environment Accessibility Standard in 2010. The Government did not enact the Public
Spaces provisions of the IASR until December 2012.
We had negotiated the AODA's detailed tight time lines for this action with the Government
during the development of this legislation. Our predecessor coalition, the Ontarians with
Disabilities Act Committee was concerned that otherwise, the standards development process
would get bogged down in the Government bureaucracy. It turns out that those concerns were
well-founded.
3. Transferring Responsibility for Developing New Accessibility Standards to the
Accessibility Standards Advisory Council
Since the start of 2013, one of the Government's few major initiatives to improve the AODA's
implementation was its transferring responsibility for developing new accessibility standards and
for reviewing existing ones to the Accessibility Standards Advisory Council (ASAC). Before
2013, the Government appointed separate stand-alone Standards Development Committees for
each new accessibility standard to be developed. By this reform, ASAC would serve as a
permanent Standards Development Committee, responsible for developing all proposals for the
new accessibility standards that the Government assigned to it, and for reviewing any existing
standard once it had been law for five years.
We had commended the Government in 2012 and 2013 for this upcoming reform. This move
resulted from the Beer AODA Independent Review report. By this reform, ASAC would develop
expertise in crafting proposals for accessibility standards. It would not have to re-plough the
same terrain each time it started on a new project, as would a stand-alone new Standards
Development Committee. It could better ensure familiarity with the needs and views of the
different stakeholders, business, the public sector and the disability community.
This reform was expected to reduce the cost of developing new accessibility standards, without
reducing the number of accessibility standards that could be developed at the same time, or the
time needed to develop them. It was not expected that the ASAC members would constitute the
sole Standards Development Committee for every new standard to be developed. Rather, it was
expected that ASAC would establish subcommittees, including non-ASAC members that could
work on more than one standard at a time.
This reform was expected have the benefit of ensuring consistency in the development of
different accessibility standards. This is because ASAC would be involved with and overseeing
all this work at once. In the past, each separate Standards Development Committee operated in
its own silo. We found and heard from Standards Development Committee members during
development of the first accessibility standards under the AODA that this was frustrating for
them. It led them at times to be working at cross-purposes.
We have two concerns over how this reform has worked. We certainly have no concerns with the
choice of individuals appointed to the reformed ASAC.
First, when we pressed the Government to assign to ASAC the next three accessibility standards
we want the Government to create, the Government raised with us concerns over whether ASAC
could work on three new standards at the same time. It seemed to us that in 2013 and beyond, the
Government thought that ASAC only had the capacity to work on one new accessibility standard
at a time.
Such a view flies in the face of the reason why the standards development process was reformed
in this way in 2013. Viewed most charitably, it revealed a stunning lack of institutional memory
at the Government. As indicated earlier in this brief, had we been told that the Government
would treat ASAC as only being able to work on one standard at a time, we would have
strenuously opposed the assignment of this responsibility to ASAC. We would have stuck to the
original standards development process, and urged the Government to appoint three new
Standards Development Committees to separately develop new accessibility standards for
education, health care, and residential housing.
Second, the reformed ASAC's only substantive work product is very troubling. On March 3,
2014, the Government made public the reformed ASAC's proposal for revisions to the 2007
Customer Service Accessibility Standard. This proposal is very deficient.
Our detailed critique of ASAC's proposed revisions to the Customer Service Accessibility
Standard is set out in our April 4, 2014 brief to ASAC on the Customer Service Accessibility
Standard, which can be found at http://www.aodaalliance.org/strong-effective-aoda/04042014final-aoda-alliance-brief-on-ASAC-initial-proposed-Customer-Service-revisions.doc
Our April 4, 2014 brief summarizes our concerns:
"In general, we respectfully conclude that ASAC's initial proposals are manifestly
inadequate. They do not address and fix the serious problems with the Standard
that we identify here, and that we first made public on September 12, 2007.
Moreover, a number of ASAC's core proposals would counterproductively cut
back on the Standard, contrary to Government commitments not to cut back on
any gains we had made to date. Those proposals would make things worse for
persons with disabilities.
ASAC offers a few minor improvements to the Standard. While we agree with
those minor improvements, they are certainly not sufficient. Even if they were
added to the Standard, the Standard will not ensure accessible customer service in
Ontario by 2025, or indeed ever."
In that April 4, 2014 brief, for example, we show that two of ASAC's proposals would reduce the
accessibility obligations of private sector organizations. There is a pressing need to strengthen
the Customer Service Accessibility Standard, not weaken it.
First, ASAC proposes to reduce the accessibility obligations of organizations with 20 to 49
employees. This would reward the massive non-compliance with the Customer Service
Accessibility Standard by organizations with 20 to 49 employees. ASAC's proposal would also
make it harder for members of the public, including the disability community, to document
whether an organization within this class has complied with the AODA.
Second, ASAC proposes that the Standard be amended to include a general provision that would
further limit obligations of an obligated organization under the Standard. Any obligation under
the Standard would evidently be subject to a new exemption or limitation based on
reasonableness or practicability. This proposal would weaken the Standard, which, as indicated
above, is already too weak. This would be much weaker than the Human Rights Code's duty to
accommodate people with disabilities.
At the same time, ASAC did not propose needed measures to strengthen this Standard. For
example, ASAC erroneously did not call for the repeal of the illegal and counterproductive
provision in the Standard provisions, letting an organization force persons with disabilities to
bring a support person and to pay a separate admission for them. ASAC only proposed tightening
them up. That would not eliminate their illegality and bad policy.
Some of ASAC's revisions were poorly explained. We didn't understand why ASAC wanted
those, or what their impact would be on people with disabilities.
After our April 4, 2014 brief reviewed ASAC's weak proposals, we recommended that ASAC
urge the Government to:
a) strengthen the Standard's purpose clause;
b) redefine small businesses, so that organizations with few employees but a great deal of
resources are not treated as akin to tiny "mom and pop" businesses;
c) ensure that sole proprietorships are covered by the standard;
d) include in the Standard provisions to specifically address recurring customer service
accessibility barriers with time lines for action;
e) effectively address built environment barriers in places where the public is served;
f) ensure that signage for customers is accessible, to ensure timely snow removal;
g) expand the duty to provide accessible point of sale devices and electronic self-serve kiosks for
customers, where self-service kiosks are deployed;
h) prohibit surcharges for accessible customer service (e.g. when ordering products over the
phone, rather than on-line);
i) require an organization to review their goods, services and facilities for barriers;
j) require organizations to publicly post their customer service accessibility policies, and to file
them with the Government;
k) require organizations to publicize customer service accessibility supports and feedback
opportunities;
l) provide one-stop assistance for customers with disabilities with accessibility needs;
m) improve accessible customer service training; and
n) require an organization's senior management to periodically review feedback received
regarding accessibility issues.
The fact that ASAC's initial proposal did not effectively address any of these important matters
raises serious concerns for us. ASAC's March 3, 2014 proposal for revising the Customer
Service Accessibility Standard is among the weakest proposals regarding accessibility standards
that we have seen from any Standards Development committee since the AODA was enacted.
We are not yet in a position to know whether ASAC's final proposal for revising this Standard
will effectively respond to our concerns.
Finally, when ASAC first invited public input on its proposed revision to the Customer Service
Accessibility Standard, we wrote to ASAC on March 14, 2014 to ask for three measures to aid
the public in taking part in ASAC's public consultation.
First, we asked that the 45-day deadline be extended. This was because at the same time as
ASAC was consulting on this proposal, this AODA Independent Review was holding its public
consultations.
Second, we asked ASAC to convene public consultation meetings to gather input in person. The
Government did this when earlier Standards Development Committees released initial proposals
for new standards, for public comment. Third, we also asked ASAC to urge the Government to
better publicize this consultation process.
Regrettably, ASAC responded on March 13, 2014 by refusing all our requests. We had to
advocate directly to the Government to get the Government to extend the deadline.
Commendably, the Government ultimately extended the deadline to May 22, 2014, as we
proposed. This exchange left persons with disabilities concerned about ASAC's responsiveness
to the needs of the disability community when taking part in such important public consultations.
4. Other Sundry Issues
To provide a means for public accountability in the standards development process, section 8(9)
of the AODA requires each Standards Development committee to keep minutes of its meetings.
Section 8(9) provides:
" (9) A standards development committee shall keep minutes of every meeting it
holds and shall make the minutes available to the public by posting them on a
government internet site and by such other means as the terms of reference may
provide."
We found some of the Standards Development committee minutes difficult to understand. They
were not in all cases written to be clear and understandable by a member of the public.
Where a Standards Development committee was reviewing a draft of a standard or other
document, there were times that the minutes referred to the document without quoting it, or
making it part of the minutes. This made the minutes impenetrable.
As well, it is our understanding that some if not all Standards Development Committees assigned
important work to subcommittees. Some or all of those subcommittees either didn't keep
minutes, or did not post them on the internet. When dealing with the Government on issues, after
a Standards Development committee had submitted its final report, concern arose over whether a
Standards Development committee's recommendation was correctly reflected in the final
proposal. The key decision on point had been made in a subcommittee, for which there were no
minutes available to the public.
It is important that all deliberations of a Standards Development Committee, including those of
ASAC when it serves as a Standards Development Committee, are fully documented in minutes
that the public can read and fully understand. The minutes should include any document that the
Standards Development Committee considers. If any subcommittee does any work on the
development of an accessibility standard, it should keep minutes. Those minutes should similarly
be made public.
Our December 11, 2009 brief to the Charles Beer AODA Independent Review made submissions
on concerns about the standards development process which remain relevant today, including,
for example, its submissions on the need for the Ontario Human Rights Commission to be more
centrally involved in the work of any Standards Development Committee. We are separately
resubmitting that brief to this Independent Review.
5. Recommendations on Improving the Process for Developing New Accessibility
Standards and Revising Existing Standards
We urge this Independent Review to recommend as follows:
*#21. The Government should enable ASAC to effectively work on developing proposals for the
content of more than one accessibility standards at a time, as was contemplated when the
Government assigned ASAC to develop all new accessibility standards, e.g.
a) by appointing ASAC sub-committees to work on different accessibility standard proposals,
ensuring that each has at least 50% representation from the disability community, in accordance
with Premier McGuinty's September 14, 2007 election promise.
b) by ensuring that the Accessibility Directorate of Ontario provides effective staff support to the
disability sector representatives on ASAC, including on its sub-committees, in accordance with
Premier McGuinty's September 14, 2007 election commitments.
c) by ensuring that ASAC subcommittees vote on a clause-by-clause basis on proposals and
recommendations for new accessibility standards, in accordance with Premier McGuinty's
September 14, 2007 election promises.
*#22. The Government Should widely publicize the opportunity for community groups to
request a chance to present to ASAC, when it is developing proposals for an accessibility
standard.
*#23. When it is developing proposals for the contents of an accessibility standard, the
Government should encourage ASAC to invite stakeholders from the disability community and
regulated sectors to meet together with ASAC to informally discuss issues that ASAC have
found challenging to resolve.
*#24. When ASAC submits an initial proposal to the Government for the contents of a new
accessibility standard, or for revisions to an existing accessibility standard, the Government
should convene face-to-face stakeholder meetings as one avenue for gathering input, and should
not restrict input to written submissions from the public.
*#25. When ASAC submits to the Government a final proposal for the contents of a new
accessibility standard, the Government should obey s. 9(7) of the AODA by the minister,
responsible for the AODA, deciding within 90 days what to enact from that proposal. The
Government should immediately make that decision public.
*#26. The Municipal Affairs and Housing Ministry may be consulted, but should not be put in
charge of or have lead responsibility for the development or finalization of the Built
Environment Accessibility Standard.
*#27. When ASAC is developing an accessibility standard, the Accessibility Directorate should
provide to it, and post on the internet for public input, a review of measures adopted in other
jurisdictions to advance the goal of accessibility for persons with disabilities in the area that the
new accessibility standard is to address.
*#28. The Human Rights Commission should be far more extensively involved in the formal and
informal work of each Standards Development Committee, including during review of public
input and discussion and votes on clauses of proposed accessibility standards. This could include
having a representative of the Ontario Human Rights Commission sit on ASAC subcommittees
as they work on proposals for the contents of accessibility standards.
*#29. The Government should encourage ASAC, when developing proposals for the contents of
an accessibility standard, to identify where changes are needed to provincial or municipal
legislation, regulations or bylaws, to advance the goal of a fully accessible Ontario.
*#30. The Government should not conduct or make public costing studies on accessibility
standards, until it ensures that costing studies reliably document the net additional costs, if any,
of compliance with the proposed accessibility standard, over and above the pre-existing cost of
complying with the requirements of the Ontario Human Rights Code and the Charter of Rights,
as offset against the benefits produced by compliance with the proposed accessibility standard.
Any future costing studies should also identify the cost to Ontario of not providing accessibility
in the sector in issue for people with disabilities.
*#31. The Government should ensure that the minute-keeping of ASAC, when developing
proposals for the contents of an accessibility standard, or of any of its sub-committees should
make it clear when an option or proposal is discussed and rejected, and the reasons for this.
*#32. Minutes of meetings of ASAC should accurately and comprehensively record the detailed
issue-by-issue deliberations of that Council on accessibility standard proposals, , and should be
written in a fashion to make them fully understandable by members of the public who did not
attend those meetings.
*#33. When ASAC considers a document at a meeting where it is considering proposals for the
contents of an accessibility standard, such as a draft of an accessibility standard, that document
should be made public along with the minutes of the meeting which considered it.
*#34. The Government should leave initial and final proposed accessibility standards, submitted
by ASAC acting as a Standards Development Committee, on the Government’s website on a
permanent basis.
Part VI. Public Education on Accessibility Remains Insufficient
1. Introduction
This Independent Review will have heard a great deal about the pressing need for more and
better public education on accessibility. The Government's public education efforts, largely its
Enabling Change program, have included good projects with helpful results.
However, the Government's efforts on public education have been substantially too limited and
too often, substantially delayed. This has contributed to Ontario being behind schedule for full
accessibility by 2025. Once again, we attribute this failure to a lack of effective political
leadership, and not to the public servants in the Accessibility Directorate of Ontario.
It is important for the Government's efforts on public education to immediately and substantially
be ramped up. However, we urge this Independent Review not to view public education on
accessibility as a replacement, in whole or in part, for effective enforcement of AODA
accessibility standards, or for making all the new accessibility standards needed to ensure that
Ontario reaches full accessibility by 2025.
Governments that are timid about using these important regulatory tools will typically scurry
away from them, and embrace public education on accessibility as their priority. We do not agree
with such an approach. We urge this Independent Review to ensure that its final report does not
give such a back-door route for continued abdication of the Government's important duty to
make new accessibility standards and to enforce all existing ones. Instead, the Government's
accessibility public education efforts should be closely tied to, and support effective enforcement
initiatives.
Public education alone will not achieve a barrier-free society for persons with disabilities. Only
the effective implementation and enforcement of a full spectrum of mandatory accessibility
legislation will do so. What makes public education on accessibility effective is when an
organization, taking part in that educational programming or activity, knows that accessibility is
the law, and that non-compliance will trigger regulatory consequences that the organization
would wish to avoid.
Decades ago, the disability rights movement here and elsewhere argued that because public
attitudes towards persons with disabilities were the greatest problem they faced, the solution was
to "raise awareness." Yet decades later, we have learned that the disability community and
governments can try and try to educate the public, without seeing significant improvements in
opportunity for persons with disabilities.
What is needed to ensure accessibility is to change the behaviour of obligated organizations.
When this happens, their attitudes will change. Even if those attitudes don't change, the result
that persons with disabilities need is a positive change in the behaviour of obligated
organizations, whether or not their attitudes have caught up with their more accommodating
actions. This in turn shows why effective enforcement of a full spectrum of mandatory
accessibility standards is the key to achieving full accessibility. When an obligated organization
knows that accessibility is the law, it will be more motivated to take part in public education
efforts, and to learn from them.
In this Part of this brief, we review the Government's efforts at conducting accessibility public
education aimed at obligated organizations, at school children, at specific professions that can
influence accessibility (such as architects) and at the general public. We then focus on ways the
Government has worked against the goal of effective accessibility public education. We then
offer reflections and recommendations.
2. Public Education Targeted at Obligated Organizations
The first (and perhaps the most important) major target of accessibility public education must be
obligated organizations as a whole. This is needed to make sure obligated organizations know
about their specific accessibility duties and are motivated to remove and prevent disability
barriers. It will also counteract the risk of counter-productive "push-back" against the AODA,
which can come from a lack of understanding about the AODA in combination with the Human
Rights Code.
To achieve these goals, that educational effort must first ensure that obligated organizations
know that they have accessibility obligations under the AODA, the Human Rights Code, and in
the case of public sector organizations, the Charter of Rights. Second, it must educate obligated
organizations on what they must do to fulfil these accessibility obligations. Third, it should
demonstrate that providing accessibility is not just a legal requirement, but also good for
obligated organizations. Finally, it should make it clear that non-compliance will trigger clear
Government enforcement efforts.
In 2009, we raised serious concerns on this score with The 2010 Charles Beer AODA
Independent Review of the AODA. These remain a matter of serious concern to us today. In our
December 11, 2009 brief to the Charles Beer AODA Independent Review we wrote:
"6. Is There Now Sufficient Public Understanding of and Recognition of the
Existing Legal Duty to Remove and Prevent Barriers Against People with
Disabilities?
The AODA seeks to implement the duty to remove and prevent barriers against
persons with disabilities that has been imposed by the Ontario Human Rights
Code and, in the case of the public sector, the Canadian Charter of Rights and
Freedoms, for well over two decades. Both during the development of the AODA
between 2003 and 2005, and since the enactment of the AODA, there has been a
commendable and heartening number from the public and private sectors who
have voiced their support for the project of making Ontario fully accessible for
persons with disabilities.
Yet, during the period since 2005, we have encountered and still read reports of a
regrettable number of people who incorrectly suggest that the AODA imposes a
new obligation, and who also voice resistance to this supposedly new obligation
that Queen’s Park has imposed on businesses and local governments. Such an
attitude reflects an implicit and troubling denial of the longstanding duty to
accommodate the needs of people with disabilities under human rights law.
This attitudinal barrier is made worse by a view, expressed by some in both the
private and public sectors, including some within the Ontario Government, that no
one in the private sector should be required to remove and prevent barriers until
the Ontario Government has removed and prevented barriers within its own
operations. We agree that it is desirable in this area for the Ontario Government to
lead by example. We have always recognized that more action and shorter time
lines may be required of larger organizations like the Ontario Government, to
achieve accessibility.
However, the Human Rights Code imposes a duty to accommodate persons with
disabilities on all organizations at the same time. It does not let a private sector
organization refuse to fulfil its duty to accommodate until the Ontario
Government has fulfilled its duty to accommodate. A failure of the Ontario
Government to live up to its legal duties does not justify any other organization in
failing to live up to its own legal duties.
This attitudinal barrier, if not addressed, can grow to substantially impede the
AODA’s mandatory goal of full accessibility. The AODA requires all barriers
against persons with disabilities to be addressed, including attitudinal barriers.
Section 2 of the AODA defines a barrier as follows:
“barrier” means anything that prevents a person with a disability from fully
participating in all aspects of society because of his or her disability, including a
physical barrier, an architectural barrier, an information or communications
barrier, an attitudinal barrier, a technological barrier, a policy or a practice;”
In preparation for this Independent Review, we wrote the Minister of Community
and Social Services on July 23, 2009 to find out what has been done to address
this issue, and what the Government plans to do in the future. For over two years,
we have been urging the Government that a bold new strategy is needed to
address this issue. The minister responded by letter on August 13, 2009. She
stated:
“4. Section 32(3) (e) of the AODA 2005 mandates the Accessibility Directorate to
conduct public education campaigns on accessibility. What has the Ministry done,
or does it plan to do, in this regard?
My Ministry's AccessON: Breaking Barriers Together campaign is raising public
awareness about the barriers that exist for people with disabilities and the need for
accessibility. The campaign includes a website full of tips and tools to improve
accessibility in Ontario. This website, which is promoted across the province, is
regularly updated with success stories and videos to showcase accessibility
initiatives taking place in Ontario and to inspire others to break down barriers.
We also launched a province-wide transit ad campaign in March 2008 to
challenge people's perceptions about barriers and accessibility. We are currently
finalizing plans for the next leg of AccessON.
My ministry promotes accessibility in a variety of ways on an ongoing basis
across Ontario through:
media events and outreach
events and speeches
meetings, events and conferences, such as annual general meetings.”
The Minister’s general description does not make it possible to tell how many
Ontarians have been reached by those commendable educational efforts, or how
effective this has been at removing and preventing the troubling attitudinal barrier
which we here address. Moreover, her answer does not indicate any future plans
in this regard."
Later in our December 11, 2009 brief to the Beer Independent Review we wrote:
"d)
Implementing Extensive Public Education/Outreach Strategy
Section 32(3) of the AODA 2005 authorizes the Accessibility Directorate to
conduct public education initiatives on disability accessibility issues. It mandates
the Accessibility Directorate to:
“(e) conduct research and develop and conduct programs of public education on
the purpose and implementation of this Act;”
As indicated earlier, it is clear that there is still very limited public understanding of the AODA,
of the pre-existing duty under human rights legislation to remove and prevent barriers impeding
persons with disabilities, and the benefit to society of achieving a barrier free Ontario. We have
observed this through many avenues, e.g. by reviewing media coverage of the AODA and of
some resistance to its requirements, from feedback we have received from the various Standards
Development Committee discussions and, from our participation in consultation sessions on
various proposed accessibility standards and from other dealings with the public.
We earlier showed that a disturbing attitudinal barrier threatens to impede the achievement of the
AODA’s requirement of a fully accessible Ontario – a belief by some that they should not have
to comply with AODA accessibility standards unless the Ontario Government pays the cost of
doing so. This is in fact not a new cost burden which the AODA imposes.
At consultation meetings that the Ministry convened on the proposed standards on transportation,
information and communication and employment, we found that some representatives of
regulated sectors, who attended to give input, in fact knew very little about the AODA or about
the proposed standard on which they were to comment. Those individuals said they were
attending these consultation sessions to learn more about what was being proposed under the
AODA.
We are deeply troubled that too many have such a limited understanding of basic human rights
requirements and of the AODA. This can only work to the detriment of achieving the AODA’s
goal of a fully accessible Ontario by 2025.
A Government public education campaign is most effective when it is not glossy and glitzy, and
where it addresses the public in an intelligent and mature fashion. It can be done at low cost via a
media blitz, via participation in radio call-in shows, and other such avenues. For example, each
MPP could take this message to their communities during constituency weeks. A minister, whose
fulltime job is as Minister responsible for Disability Accessibility, could use their position and
their profile to take this message across Ontario.
Our December 11, 2009 brief to the Beer AODA Independent recommended that:
the Government should launch a substantial, expanded public education campaign on the
AODA’s requirements, on the Human Rights Code’s pre-existing duty to provide accessibility
and on the benefits to all of removing and preventing barriers against persons with disabilities to
remove the attitudinal barrier created where some believe the AODA imposes new requirements
which ought to be accompanied by new public subsidies.
In recommending this we emphasize that public education is no substitute for
strong, effective implementation of the AODA. We also note that brochures and
websites are no substitute for face-to-face opportunities to learn about the AODA,
the pre-existing duty to provide accessibility, and the benefits of removing and
preventing barriers against persons with disabilities."
Our brief to the Beer AODA Independent Review continued:
"To achieve a fully accessible Ontario, it is necessary for the Ontario Government
to do much more than enact accessibility standards and educate the public on the
need to comply with them. It is very important, for example, for the Government
to provide obligated organizations, such as municipalities, hospitals, school
boards, universities, colleges and businesses with user-friendly, easily-accessed,
free technical supports, including tools that would assist them in removing and
preventing barriers. This has been done in the U.S. under the Americans with
Disabilities Act. We received word from obligated organizations in Ontario,
expressing a strong desire to receive such material. Where an organization wants
to remove and prevent barriers, these technical supports and assistance can make
it easier for them to put that desire into action. It reduces the cost to those
organizations of removing and preventing barriers. This will make that activity
more attractive. Helpful technical supports reduce the need for each organization
to re-invent the wheel.
We are aware that the Accessibility Directorate is limited by the resources that the
Government gives it.
As a result, our brief to the Beer AODA Independent Review also recommended:
"The Ministry should be funded to substantially expand the technical supports,
including tools and resources that it provides to obligated organizations to assist
them to understand what to do to remove and prevent barriers."
The Beer Review's final report made decisive findings that as of late 2009, four and a half years
after the AODA was enacted, and almost three decades after disability accessibility requirements
were added to the Ontario Human Rights Code, obligated organizations typically had too little
knowledge of the AODA. That report recommended that the Government deploy significant new
public education efforts to rectify this problem. Since then, the Government has not done so.
The 2010 Beer Final Report included:
"The minimal awareness of the AODA among both obligated organizations and
the public at large was frequently mentioned. Even some members of standards
development committees knew little about the legislation when they began their
work. And when committee members told colleagues in their sectors what they
were doing, they often found people had no idea this work was underway.
The attitudinal barrier, if not addressed, can grow to substantially impede the
AODA’s mandatory goal of full accessibility.
Written Brief, AODA Alliance
This awareness gap is viewed as a huge hurdle to securing compliance as
standards are phased in. Many in the disability community, in fact, regard
attitudes as the biggest barrier they face. They believe that attitudinal change must
go hand in hand with the implementation of standards or else the AODA will not
succeed and a backlash could even result. People with invisible disabilities, such
as mental health or learning disabilities, emphasize that the attitudinal barriers
confronting them are significant and only beginning to be acknowledged. Both
people with disabilities and representatives of the obligated sectors agree on the
need for the government to make a substantial investment in public education and
awareness as part of the rollout of standards, to create a culture and environment
to support change.
Part of the problem appears to be the vagueness of the vision expressed in the
AODA itself. Many stakeholders in both the disability community and the
obligated sectors found it hard to visualize what an accessible society would
really look like.
One initiative mentioned was the government’s 2008 advertising campaign on
transit vehicles and bus shelters across Ontario, supported by print ads in
commuter papers. Stakeholders however felt that the campaign had little impact
on public awareness.
What the Review Heard: Key Themes - Implementation Challenges
While support for the vision behind the AODA is wide, much anxiety exists about
how this will be achieved. In written submissions, public meetings, sector round
tables and individual interviews, stakeholders raised four major challenges
involving the implementation of standards, once adopted. These are:
harmonization, costs, education and training, and compliance and enforcement."
Later, the Beer Report stated:
"As indicated above, my mandate is to consider the effectiveness of the AODA
for both the obligated sectors and the disability community. I heard from some in
the disability community that they fear the risk of alienating the obligated sectors
and even more so the potential backlash when organizations realize the broad
scope of the standards. This again shows why public education and stakeholder
engagement are so critical to the success of the AODA. It is critical that the
government build a broader public awareness and understanding about the AODA
and that the necessary tools and supports be available for the obligated sectors."
Ultimately the Beer Report made these findings and recommendations:
"As I noted earlier, all stakeholders — including those representing the disability
community, the government, and the other obligated sectors — are very
concerned about the low level of public awareness and understanding of the
AODA.
Achieving the transformational change needed to fulfil the vision for 2025 will
require a, broad-based public awareness and education strategy. The benefits of
accessibility should be profiled to help erode attitudinal barriers and to advocate
for a philosophy of barrier prevention and a more inclusive society.
I believe it is imperative for the government to intensify its public awareness
effort, particularly with respect to the new standards. The ADO should take the
lead in communicating the purpose and intent of the AODA and the role of
accessibility standards, to ensure successful implementation of the legislation. To
date, the government has not developed a strong communications campaign to
promote the AODA, its objectives, obligations and broad application.
At the political level, in addition to the minister, it is important for the Premier
and senior ministers to reinforce accessibility in their speeches and
communications to the public. Over time such a strategy will help build greater
public awareness and understanding and reinforce the benefits and value of
achieving accessibility by 2025."
We endorsed the Beer Report's findings and recommendations on accessibility public education.
We urged the Government over and over to promptly implement them. Regrettably, the
Government has not done so. Its "communication strategy" on this and many other topics has
appeared, especially since 2010, to approach virtual lockdown.
We here provide several illustrations of this concern. First, the commendable education outreach
efforts under the Accessibility Directorate of Ontario's Enabling Change program have been a
drop in the bucket. They are far less than Ontarians with disabilities and obligated organizations
need. They have not reached the breadth of audience that needs to benefit from them.
Second, despite the Beer Report's recommendations and our repeated entreaties to the
Government at all levels both before and after the Beer Report, successive ministers responsible
for the AODA over the past nine years have not had a high profile on the accessibility issue.
They were seldom seen in the media, talking about the AODA and accessibility. Every few
months they would make a low-profile speech in the Legislature. Those command no public
attention. Accessibility might arise intermittently in, at most, a handful of paragraphs in a
ministerial speech in the community. These were neither frequent, nor noticeable.
As a very brief and limited exception, in and around December, 2012 Community and Social
Services Ministry Minister John Milloy gave interviews to media around Ontario about the fact
that the 2007 Customer Service Accessibility Standard was about to come into force vis à vis the
private sector. This was somewhat helpful, but several years too late. A Cabinet minister should
not have waited until the end of 2012 to take that message to the broad media. The Customer
Service Accessibility Standard itself came into effect for the private sector at the start of 2012,
not the end of that year. At the end of 2012 private sector organizations with at least 20
employees had a duty to file with the Government an accessibility self-report.
Over the past fifteen months, the most recent minister responsible for the AODA, Dr. Eric
Hoskins, was virtually invisible on this issue when in the public arena, except on the rare
occasions when he surfaced to proclaim that accessibility is a "top priority." In one of his rare
planned statements in the Legislature on accessibility on May 28, 2013, to mark National Access
Awareness Week Dr. Hoskins's office was busy the day before, trying to get persons with
disabilities to be in the Legislature's public gallery, as a backdrop for his short speech.
As far as we could track, other Cabinet ministers rarely gave this topic any profile. We tried to
keep track of their public statements on this topic, and encouraged them to send them to us. We
had emphasized to the Government that its ministers could easily send a strong, positive signal to
obligated organizations.
When the Transportation Minister is speaking to meetings of the transportation sector, when the
Municipal Affairs and Housing Ministry Minister is speaking to municipalities, when the Labour
Minister is speaking to employers, when the Finance Minister is announcing Government
priorities in the amply-covered Budget Speech, and when the Premier is making important
speeches to such audiences, the Government could make effective use of its "bully pulpit" to
spread the word. The Government's overwhelming silence on accessibility, with rare exceptions
at these kinds of events, itself sent a signal to obligated organizations -- a counterproductive
signal.
Third, the Government acted far too slowly, and with far too low a profile, to publicize new
accessibility standards when enacted, and to educate obligated organizations on what they need
to do. A new accessibility standard is useless, if obligated organizations don't know it exists or
have no idea what they need to do to comply with it.
When the Government enacted the IASR in June 3, 2011, it did not, to our knowledge, do
anything to publicize it, apart from a short and very general posting on the Government's
website. For months, there was a single web page on the IASR. It had a few bare and vague
paragraphs on the IASR, and a suggestion to read the regulation. Unless a person happened to be
cruising the web and was lucky enough to stumble on that web page, they would likely have no
idea about the very existence of this regulation. It seemed that the Government was afraid to let
obligated organizations know it existed.
When the Government enacted the IASR and for months afterward, we saw no Government
press release, no announcement in the Legislature, and no major Government outreach to the
media. We likely did more to publicize the enactment of the IASR through our AODA Alliance
Updates than did the Government. It is the Government that has a duty to implement and enforce
that regulation.
The Government then took an unjustified and leisurely 13 months after it enacted the IASR
before it posted an online policy guide and related support materials for The IASR's
requirements (which then covered employment, information and communication and
transportation). This delayed obligated organizations' efforts at compliance with the IASR for
over a year. Here again, the Government simply had those helpful materials "go live" on the
internet, without any other publicity to let obligated organizations know that they were available.
There were again no news releases, news conferences, call-in radio shows, ministerial speaking
tours, or other like high-profile Government efforts to let obligated organizations know they
could benefit from these supports.
In recent months, the Government has expanded some efforts in this regard. It has tweeted
several times about support materials available on the Government's website for complying with
AODA standards. This should have been done much sooner. Moreover, its Twitter feed does not
reach a sufficiently wide audience to offset the enormity of this governmental failure to date.
This inaction was a serious disservice to obligated organizations, to persons with disabilities, and
to the many who worked so hard for so long on Standards Development Committees, through
public consultations, and in other ways, on the development of the IASR. Moreover, when the
Government was developing the IASR, for the most part it refused to reduce the excessive time
lines that organizations were given to comply, detailed in Part III of this brief. The Government
acted on the basis that obligated organizations need all that time to ready themselves. Yet by its
ineffective public outreach when it passed the IASR, and after that, when it made its IASR
support materials available on the web, the Government squandered 13 months, which obligated
organizations could have used to ready themselves.
The Government repeated this unjustified conduct after it enacted accessibility amendments to
the Ontario Building Code in December 2013. As discussed in Part IV of this brief, these were
enacted as a partial response to the 2010 recommendations of the Built Environment Standards
Development Committee.
At the time that this brief is being written, fully six months after the Ontario Building Code
amendments were passed, and just six months before they go into effect, the Government has
still made public no resources, guides or other useful information for builders and other obligated
organizations, to aid them in learning about and implementing these built environment
accessibility provisions. The Municipal Affairs and Housing Ministry has claimed to have years
of expertise and experience with the Ontario Building Code and accessibility. It took active part
in the work of the Built Environment Standards Development Committee dating back to 2008. It
should not take that Ministry this long to meet this important need.
Here again, it is not enough for the Government to simply point to the posted text of its 2013
Ontario Building Code regulatory amendments. These are worded in extremely technical
language. They are not written in the kind of clear, plain language that a builder could pick up
and read on their own. Similarly, members of the public would find it difficult, if not impossible
to read them with sufficient fluency to ensure that a building complies with them. The
amendments include such language as:
"8. Sentence 3.7.4.3.(1) of Division B of the Regulation is amended by striking
out “Sentence 3.7.4.2.(8)” and substituting “Sentence 3.7.4.2.(9)”.
9. Sentence 3.8.1.1.(1) of Division B of the Regulation is amended by striking out
“and” at the end of Clause (b), by adding “and” at the end of Clause (c) and by
adding the following Clause:
(d) camps for housing of workers."
The Ontario Building Code 2013 accessibility amendments can be seen at http://www.elaws.gov.on.ca/html/source/regs/english/2013/elaws_src_regs_r13368_e.htm
The longer the Government delays making such materials public, the longer it will take obligated
organizations to start following these new accessibility requirements. Indeed, had the
Government made these accessibility standard resource materials available sooner, it could have
encouraged builders to start now to obey these new requirements, even in advance of the 2015
start date. Some obligated organizations want to be ahead of the law, complying even before it is
mandatory. Building inspectors could have been trained well in advance on them, so that they
could start enforcing them right away in 2015. This is yet another example of an opportunity for
advancing the cause of accessibility that the Government has needlessly squandered.
In our effort to ensure that we are fair to the Government, we note that in David Lepofsky's
August 15, 2013 Freedom of Information application regarding AODA enforcement, addressed
earlier in this brief, a request was made for the numbers of private sector organizations that the
Government had contacted via email, letter, etc., to alert them of certain AODA obligations. The
Government's response provided, in material part:
"10. To how many private sector organizations, potentially obliged to comply
with the AODA or accessibility standards enacted under it, did the Accessibility
Directorate of Ontario, or any officials, persons or organizations acting on its
behalf or under its direction, send an email, letter or other correspondence, in
2011 or 2012, to advise that private sector organization that it is or may be
obliged to file an accessibility report under s. 14 of the AODA by the end of
2012?
MINISTRY RESPONSE: 934,925. Please see explanatory comment.
COMMENT: The Accessibility Directorate of Ontario, and officials, persons or
organizations acting on its behalf or under its direction sent 934,925 emails,
letters and other correspondence to organizations, in 2011 or 2012, to advise them
of obligation or potential obligation to file an accessibility report under s. 14 of
the AODA by the end of 2012.
Due to multiple outreach initiatives the Accessibility Directorate of Ontario is
unable to confirm the exact number of unique organizations to receive a
correspondence from the ADO. The aforementioned number is the sum total of
organizations that received a correspondence in 2011 and 2012 regarding
reporting from the ADO or organizations acting on its behalf.
…
12.
To how many private sector organizations, potentially obliged to comply
with the AODA or accessibility standards enacted under it, did the Accessibility
Directorate of Ontario, or any officials, persons or organizations acting on its
behalf or under its direction, send an email, letter or other correspondence, in
2013 to advise that private sector organization that it has not filed an accessibility
report under s. 14 of the AODA by the end of 2012?
MINISTRY RESPONSE: 113,920. Please see explanatory comment.
COMMENT: The Accessibility Directorate of Ontario, and officials, persons or
organizations acting on its behalf or under its direction, sent 113,920 emails,
letters and other correspondence to organizations, in 2013 to advise them that they
have not filed an accessibility report under s. 14 of the AODA by the end of 2012.
Due to multiple outreach initiatives the Accessibility Directorate of Ontario is
unable to confirm the exact number of unique organizations to receive a
correspondence from the ADO. The aforementioned number is the sum total of
organizations that received a correspondence in 2013 regarding reporting from
ADO or organizations acting on its behalf."
It is difficult to reach categorical conclusions from these raw numbers. It is clear that the
Accessibility Directorate of Ontario was commendably trying to reach out to obligated
organizations. However, in the face of the high levels of non-compliance discussed in Part II of
this brief, this outreach clearly was not enough.
3. Public Education Targeted at School Children and Key Professions
The second and third key targets for accessibility public education are school children on the one
hand, and key professionals on the other. We have wanted for years to motivate school children
on disability accessibility for two reasons. First, they could grow up to be the first generation in
our society who already accepts the important of disability accessibility, as they later take on key
roles in our economy as employers, policy-makers and community leaders. Second, just as has
been accomplished with educating school children on environmental concerns, they can take the
accessibility message home to their parents and start to effect change. We want to reach key
professions such as architects, planners, health care providers, social workers, lawyers, etc,
because they are especially well-positioned to make a big difference on accessibility.
Our predecessor coalition, the ODA Committee, raised concrete proposals on this issue when
Bill 118, the proposed AODA, was before the Legislature for public hearings in early 2005. The
ODA Committee’s January 26, 2005 Brief to the Standing Committee on Social Policy stated:
"15. MANDATING EDUCATION OF STUDENTS ON DISABILITY
ACCESSIBILITY
Much has been said during debates on Bill 118, throughout the decade-long
campaign for this legislation, and for years before about the need to educate the
public on the barriers impeding persons with disabilities, and about the benefits of
removing and preventing these barriers. Citizenship Minister Bountrogianni,
speaking about the need for Bill 118, has made the compelling point that there
needs to be a substantial change in public attitudes. This needs to be akin to the
change in public attitudes she has seen in her professional career, toward
providing such rudimentary needs as washrooms in the workplace for women.
Transitory publicity campaigns to temporarily raise public awareness about the
barriers facing persons with disabilities won't single-handedly accomplish this.
Community organizations, governments and individuals with disabilities have
extensively tried such education campaigns of every sort for decades. From this
they have learned that much more than more "awareness-raising" is needed.
There is nevertheless a special role for new approaches to focussed efforts at
educating the public, when combined with a strong, mandatory accessibility law.
Partnered with Bill 118's new compliance/enforcement program should be a new
ongoing program for educating the public on the benefits of a barrier-free society
for persons with disabilities. What s sought here is not the announcement of a
new, transitory initiative. To be effective, such a program needs to be something
much different than a short term "feel good" series of advertisements that tell the
public that disability accessibility is a good thing to do.
What is needed instead is to create a clever new permanent, long term education
initiative, to be mandated in legislation which targets the next generation. This
would include students in school. It should also include those studying in key
fields and professions whose work will have a dramatic impact on creating a
barrier-free province. These measures would ensure that all future generations of
Ontarians, all future professionals who could make a difference such as architects,
doctors, lawyers, nurses, social workers and teachers, will know what previous
generations have too often not known in this area. This would best fulfil the
laudable and lofty aims of the Citizenship Minister, expressed when she kicked
off Second Reading debate on Bill 118 on October 12, 2004, stating:
"The next principle: public education. This area is my passion. I will use every
tool available to help shape a change in attitude, a change in values. Over and
over again, people with disabilities have told me that the biggest barrier of all is
one of attitude. On this score, I look forward to working closely with every MPP
to help foster a true culture of inclusion for people with disabilities.""
The ODA Committee's brief recommended that:
"The bill be amended to provide:
(a) a requirement that within a specified time frame, school boards
develop and implement school curriculum components on disability accessibility
and the importance of a barrier-free society. It should authorize the Ontario
Government to develop a sample curriculum which school boards could adopt if
they wish in lieu of developing their own curriculum;
(b) a requirement that (after an appropriate transition period) to qualify in
future for a licence or other qualifications certificate as an architect or other
designer of the built environment, a specified amount of training in barrier-free
design must be completed. This should go beyond the insufficient requirements of
the Ontario Building Code. To be licensed to design the built environment, it
should be a reasonable minimum requirement that a person know how to
undertake barrier-free design;
(c) a similar requirement that certain other professional training, such as to
qualify to be a lawyer, doctor, other health care provider, teacher, social worker
and other relevant professions, must include a specified amount of training on
barrier-free provision of services to persons with disabilities;
(d) time lines to allow for the development of new curricula. In the case of
professional training, authority can be assigned to self-governing professional
bodies to set criteria or standards for this training and to monitor its sufficiency.”
In 2005, the McGuinty Government amended Bill 118 in terms far less helpful than the ODA
Committee recommended. Section 32(3)(f) of the AODA 2005 provides that the Accessibility
Directorate may:
“(f) consult with organizations, including schools, school boards, colleges,
universities, trade or occupational associations and self-governing professions, on
the provision of information and training respecting accessibility within such
organizations;”
Seeking to make use of that provision, we again raised this issue with the party leaders two years
after the AODA was enacted, in the lead-up to the 2007 election. Our August 14, 2007 letter to
the major parties' leaders asked them to commit to:
"4. Mandate a permanent program to ensure that students in the school system,
and people training in key professions, such as architects, are educated in
disability accessibility."
In the 2007 election, Premier McGuinty made specific commitments regarding public education
on disability accessibility. In his September 14, 2007 letter to us, Premier McGuinty said:
"Institute a new program to ensure that students in schools and professional
organizations are trained on accessibility issues.
We already include awareness of and respect for students with special needs: in
every curriculum document there is a front piece on planning programs for
students with special education needs. Disability awareness is an expectation in
the Grade 12 Social Sciences and Humanities course. Our government also
introduced character education.
Character education is about schools reinforcing values shared by the school
community – values such as respect, honesty, responsibility and fairness. It is
about nurturing universal values, upon which schools and communities can agree.
We will ensure that this curriculum includes issues relating to persons with
disabilities.
The Government of Ontario does not set the training curriculum for professional
bodies such as architects, but we commit to raising this issue with the different
professional bodies."
We have not been able to discover decisive progress in the seven years since that election
promise was made. Our December 11, 2009 brief to the Charles Beer AODA Independent
Review documented how little had been done to keep this 2007 public education pledge as of
that point in time.
"As far as we could tell, as of writing this brief, this election commitment has not
been kept. On July 20, 2009, in preparation for our submissions to this
Independent Review, we wrote to the Ministers of Education, of Training,
Colleges and Universities, and of Community and Social Services, to find out
what, if anything, had been done on this election promise. That letter is available
at: http://www.aodaalliance.org/strong-effective-aoda/07212009.asp
In their responses to us, none of the three ministers said that the election promise
has been kept, nor indicated when it will be kept. Their responses, which are
largely unresponsive to our specific inquiries, are available at:
http://www.aodaalliance.org/strong-effective-aoda/11102009.asp
Their answers to our simple, clear questions are troubling. None indicates that the
Government has incorporated a disability accessibility component in its Character
Education curriculum. None indicates that they have approached any selfgoverning professional bodies to attempt to establish training of professionals or
student professionals on meeting the accessibility needs of persons with
disabilities. None indicates any specific future plans to take these promised
actions.
The Community and Social Services Minister wrote to us on September 3, 2009.
Reinforcing the need for the Government to keep its 2007 election commitments
on disability accessibility education, she noted:
“The Accessible Information and Communication Standard Development
Committee (SDC) made specific reference to the training of regulated
professionals in its final proposed standard. The SDC recommended that
mandatory professional development include training on the information and
communication needs of persons with disabilities and the prevention,
identification and removal of barriers to accessible information and
communications.”
She did not report any specific actions taken by the Government to keep this
election promise. She noted:
“The government is considering the recommendations made by the SDC (i.e. the
Information and Communication Standards Development Committee) along with
the Premier's commitments on accessibility in curriculum and for regulated
professionals. My ministry will engage both the disability community and
obligated organizations, including regulated bodies, to determine how to
proceed.”
She left it to the two other ministers to whom we had written, to explain what they
are doing to keep this election promise.
On September 15, 2009, Education Minister Kathleen Wynne wrote to us. Her
letter does not address the specific election commitment about which we wrote to
her. Her opening line shows she may have misunderstood what we asked. She
stated:
“Thank you for your letter to my colleagues and me inquiring about actions taken,
results achieved and future plans with regard to ensuring an awareness of, and
respect for, students with special education needs in Ontario schools.”
Our July 20, 2009 letter had asked about the Premier’s clear election commitment
to educate school students on the accessibility needs of people with disabilities. It
was not limited to the needs of students with special needs.
She described on-line tools being developed to help school boards comply with
the Customer Service Accessibility Standard that “will help staff and teachers in
schools learn how to interact with people who have a variety of disabilities…”
She described initiatives to review school curricula with materials to address the
needs of students with special needs. She stated that:
“The revised curriculum documents will provide strengthened expectations
around the awareness of, and respect for, students with special education needs
(for example, students in wheelchairs and students who have visual
impairments).”
The closest she came to addressing the Premier’s commitment, was as follows:
“Please note that this ministry has proceeded with creating a suite of draft courses
relating to Equity Studies, Gender Studies, and World Cultures in the revised
Social Sciences and Humanities, Grades 9 to 12 curriculum. These courses will
provide additional opportunities for students to learn about equity and social
justice issues in relation to persons with special education needs, particularly in
the courses related to Equity Studies.”
She also discussed Ontario’s new legislation aimed at addressing bullying in
schools. That is a commendable initiative that is irrelevant to the Premier’s
election commitment, about which we inquired.
Her letter said nothing about any steps taken, or planned, to include in Ontario
school curricula, a teaching component on meeting the accessibility needs of
persons with disabilities in society generally.
On October 6, 2009, Training, Colleges and Universities Minister John Milloy
wrote us. He described his Ministry’s involvement in development of accessibility
standards under the AODA, and his Ministry’s efforts at supporting
implementation of the Customer Service Accessibility Standard. This
commendable activity does not pertain to the election commitment about which
we inquired.
The closest he came to responding to our inquiry was as follows:
“It is important that students starting new careers are able to ensure compliance
with the legislation in their chosen profession. While the Ministry of Training,
Colleges and Universities does not set the curriculum for postsecondary
institutions, I have written to college presidents and university executive heads
urging them to consider accessibility when conducting curriculum reviews.
The Ministry committed to removing the barriers faced by people with disabilities
so that all Ontarians have access to the service they need. To this end, the
Ministry of Training, Colleges and Universities will continue to address the issue
with the postsecondary education community.”
Well after we posted and circulated these letters publicly, we were approached by
officials of the Minister of Education in or around December 2009, to say that
they have in fact done something with the Character Education Program in
relation to disability. As of the time that this brief is finalized, we have no
specifics on this, and cannot comment on its sufficiency."
In our December 11, 2009 brief to the Charles Beer AODA Independent Review, after we
documented that the Government's 2007 promises regarding educating school children and key
professionals on accessibility had not been kept, we concluded:
"It is important that the education of school students and professional trainees on
disability accessibility be enshrined in the AODA, so that it will commence, will
be enforceable, and will continue into the future, after this Government’s mandate
expires."
Our December 11, 2009 brief to the Beer AODA Independent Review recommended that:
"The AODA should be amended to
a) Require that within a specified time frame, school boards develop and
implement school curriculum components on disability accessibility and the
importance of a barrier-free society.
b) Authorize the Ontario Government to develop a sample curriculum which
school boards could adopt if they wish, in lieu of developing their own
curriculum;
c) Require that (after an appropriate transition period) to qualify in future for a
licence or other qualifications certificate as an architect or other designer of the
built environment, a specified amount of training in barrier free design must be
completed, that goes beyond the insufficient requirements of the Ontario Building
Code.
d) Similarly require that certain other professional training, such as to qualify to
be a lawyer, doctor, other health care provider, teacher, social worker and other
relevant professions, must include a specified amount of training on barrier free
provision of services to persons with disabilities;
e) Establish time lines to allow for the development of new curricula. In the case
of professional training, authority can be assigned to self-governing professional
bodies to set criteria or standards for this training and to monitor its sufficiency."
The Government's silence on these 2007 election pledges continued, well after the Beer AODA
Independent Review rendered its final report. Therefore, we wrote Community and Social
Services Ministry Minister Meilleur on November 12, 2010 to ask about the status of a number
of un-kept Government promises regarding disability accessibility. On this issue, our letter
recited Premier McGuinty's 2007 election pledge and then stated:
"To date, we have no information that your Government has kept these promises.
Over a year ago, on July 20, 2009, we wrote to you, as well as the Minister of
Education and the Minister of Training, Colleges and Universities to find out
what steps your Government had taken to keep this commitment, and what plans
it has for future action on that pledge. That letter is publicly available at:
http://www.aodaalliance.org/strong-effective-aoda/07212009.asp
You wrote back on September 3, 2009, largely leaving it to the two other
ministers to respond. The replies we received from then Minister of Education
Kathleen Wynne dated September 15, 2009 and Minister of Training, Colleges
and Universities John Milloy, on October 6, 2009 were very vague. They did not
indicate either that this election commitment has been kept, or any detailed plans
for ensuring that it is kept, before the next Ontario election. Those letters and our
analysis of them are available at: http://www.aodaalliance.org/strong-effectiveaoda/11102009.asp
The importance of this election commitment is amplified by the 2010 Report of
Charles Beer on his Independent Review of the Accessibility for Ontarians with
Disabilities Act. As you know, he found a pressing need for significantly
expanded public education on the Accessibility for Ontarians with Disabilities
Act. His report includes, for example:
* “Both people with disabilities and representatives of the obligated sectors agree
on the need for the government to make a substantial investment in public
education and awareness as part of the rollout of standards, to create a culture and
environment to support change.”
* “One initiative mentioned was the government’s 2008 advertising campaign on
transit vehicles and bus shelters across Ontario, supported by print ads in
commuter papers. Stakeholders however felt that the campaign had little impact
on public awareness.”
* “It is critical that the government build a broader public awareness and
understanding about the AODA and that the necessary tools and supports be
available for the obligated sectors.”
Moreover, your September 3, 2009 letter to us, responding to our earlier inquiry
of you on this issue, reinforced the importance of keeping this pledge. You wrote:
“The Accessible Information and Communication Standard Development
Committee (SDC) made specific reference to the training of regulated
professionals in its final proposed standard. The SDC recommended that
mandatory professional development include training on the information and
communication needs of persons with disabilities and the prevention,
identification and removal of barriers to accessible information and
communications.”
We are thus eager to know what has been done on this commitment, and what
specific plans exist for completing your Government’s fulfillment of this pledge
before the next Ontario election."
Neither Minister Meilleur nor any other Government official answered this letter.
We have made no further progress on this issue since the October 2011 general election. On
December 2, 2011, shortly after the 2011 election, we tried to find out what the applicable
ministries, the Ministry of Education and the Ministry of Training, Colleges and Universities,
planned to do to keep this election promise. On December 2, 2011, we wrote Training, Colleges
and Universities Minister Glen Murray. We asked him to (among other things) advocate to selfgoverning professions to include disability accessibility training for their members
In Minister Murray's February 15, 2012 response, he stated that his ministry "is committed to
removing the barriers to postsecondary education across the province."
Minister Murray only referred to accessibility training requirements in the IASR and said
generally: "I can confirm that the Accessibility Directorate of Ontario is working with my
ministry and a number of partners to further curriculum development, including encouraging the
implementation of accessibility practices and education into curriculum, as well as into business
practices." We received no specifics on whether this has involved any approaches to any selfgoverning professional bodies, such as those that govern lawyers, architects, doctors or social
workers. The Minister gave no details on future plans in this area.
In our December 2, 2011 letter to her, we asked Education Minister Laurel Broten to ensure
school children receive education on disability accessibility. In the Education Minister's March
2, 2012 response, she identified some positive efforts underway aimed at educating school
children on accessibility issues:
"The letter mentions ensuring that students in the school system receive curriculum on disability
accessibility. This ministry continues to work on accessibility issues in the education setting.
I am pleased to inform you that further information has now been included in the introductory
material of curriculum documents. For example, in the Grades 1-8, Health and Physical Education,
Interim Edition (2010) document, there is a section entitled Planning the Use of Facilities and
Equipment. Also, within this document you will see specific expectations, including teacher
prompts that assist students in understanding accessibility. The document is available at
www.edu.gov.on.ca/eng/curriculum/elementary/health.html. In addition, as we revise
other documents, there is a greater focus within the curriculum expectations for teachers and
students to discuss information and supports relating to disability accessibility."
To this day, we have no information on how many students have actually received in-class teaching on disability
accessibility as a result of these efforts. We have also received no information indicating that anyone in the Ontario
Government has ever approached any self-governing profession, to try to advocate for the inclusion of disability
accessibility requirements in their professional training or qualifications. No one in the Government has ever
explained why they haven't done this.
4. Public Education Aimed at the General Public
The final important target for public education on accessibility is the broad public. Even nine
years after the AODA was enacted, most members of the public don't know anything about it.
Most people with disabilities know little if anything about disability accessibility. Most don't
know how many barriers persons with disabilities face until they personally encounter them, e.g.
by themselves or a close friend or family member acquiring a disability. Many, if not most
people without disabilities incorrectly think that the Ontario Building Code, or some other such
law, already requires all new buildings to become fully disability-accessible. Few know that the
Human Rights Code imposes accessibility obligations on employers and those who provide
goods, services and facilities to the public.
It is also all too common for people without disabilities to think that providing accessibility is
very costly, and that there are few people with disabilities who need it.
As a result as our December 11, 2009 brief to the Charles Beer AODA Independent Review
contended in the passage cited earlier in this brief, Ontario needs an ongoing campaign to
educate the public on the need for accessibility, the importance and benefits of providing
accessibility, and of the harms when new barriers are created. To date, the Government has not
acted sufficiently to meet this need.
5. Government Action that Undermines Effective Public Education on Disability
Accessibility
Despite producing some good educational materials on accessibility, there are some very
troubling illustrations of Government action that undermines efforts at accessibility. We provide
examples.
First, the Government at times has unfairly and inaccurately downplayed the obligations of
organizations to provide accessible customer service. Its web page that presents the
Government's guide to compliance with the Customer Service Accessibility Standard, states
under the heading "Becoming Accessible":
"Accessible customer service is not about ramps or automatic door openers. It’s
about understanding that people with disabilities may have different needs."
As of June 5, 2014, this statement was on the Government's website at
http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/customerservice/under_20_get_start.
aspx
This erroneous statement is very counterproductive. An organization cannot provide accessible
customer service if its public premises have insurmountable physical barriers. Under the Ontario
Human Rights Code, providing accessible customer service can include a duty to provide
physical access to public premises, such as the public areas of a retail store.
The Government is seriously misinforming and misleading organizations that provide goods,
services and facilities to the public. This must stop. This misleading impression must be
corrected in the case of any organizations which have, to date, relied on it.
If, for example, there are only one or two steps to get into the establishment's public location for
serving customers, it is typically not difficult to fix that barrier. That simple action can
significantly improve accessibility.
Second, on April 15, 2014 we alerted the Ministry of Government services by email that the elearning training course that it requires all employees in the Ontario Public Service to complete
on the information and communication provisions of the IASR included inaccurate information
that will lead to the creation of more preventable information and communication barriers.
As background, PDF documents can present major accessibility problems for people with certain
disabilities such as people with vision loss or dyslexia. As addressed later in this brief, we have
tried for years to get the Government to ensure that whenever it posts a document in PDF format,
it also posts it in an alternative format that is accessible, such as an accessible MS Word or
HTML document. We have not succeeded in getting the Government to universally adopt and
follow that practice. Some parts of the Government commendably do. Some do not. It is entirely
inconsistent and unpredictable.
The Government's current information and communication IASR training course inaccurately
says that the easiest way to make an accessible document is to make it accessible in its source
document, and then convert it to a PDF. This is simply not true. By requiring all Ontario public
servants to take this course, the Government is using public money to convey counterproductive
information that will increase the use of PDF documents without ensuring proper accessibility.
On April 15, 2014, AODA Alliance chair David Lepofsky emailed the Government's Chief
Diversity Officer to raise this concern and to ask that this be corrected. He wrote in part:
"I write to ask that the course be immediately withdrawn and corrected. I also ask
that mandatory correcting information be provided to all OPS employees who
took the course up to now.
Specifically, it leaves the incorrect impression that making a so-called "accessible
PDF" is sufficient to meet information and communication accessibility
requirements. For example, it states: "The easiest way to make an accessible
document is to make it accessible in its source document, then convert it to a
PDF.
This is wrong. I have briefed your predecessor, the former Deputy Minister of
Government Services, the Assistant Deputy Minister at Cabinet Office, and many
others about this.
I am happy to discuss this, but request that immediate action be taken to rectify
this counterproductive training content."
This is especially troubling since the inaccurate perception seems not to be uncommon within the
Ontario Public Service that it is sufficient to provide a PDF format to meet the needs of persons
with disabilities. To date, the Government has not told us that it has stopped the dissemination of
this information, nor has it committed to do so, or to provide its employees with correcting
information to undo the harm it has already caused.
Third, up until mid-November 2013, and even at times after that the Government avoided
wherever possible giving any indication to the public, including obligated organizations, that it
would effectively enforce the AODA. As discussed in Part II of this brief, by downplaying
enforcement, this diminished the motivation to comply with the AODA that effective
enforcement can generate.
6. Reflections
The Government's failure to provide effective public education on accessibility despite the Beer
report's recommendations on this subject is an especially striking illustration of the Government's
lax approach to the AODA. Of all the things the Government must do to implement and enforce
the AODA, this is the easiest.
The Government's failure to provide effective accessibility public education leads to several
harmful results. Fewer organizations are complying with the AODA. In the rare instances when
the Government has, of late, started to take limited enforcement steps, too often there can be
push-back, because the obligated organizations hadn't known of their obligations or appreciated
why they are beneficial.
Certain public sector obligated organizations have continued, without effective countermeasures,
to disseminate an inaccurate and misleading complaint that the Ontario Government has, by the
AODA, imposed a new and unfunded obligation on them. We have noticed this coming from the
Association of Municipalities of Ontario and the organized public transit providers in Ontario.
This in turn threatens to generate unfair counterproductive backlash among some. We have
repeatedly reminded the public, including those sectors, that the AODA imposes no new
mandate. The duty to provide accessibility has existed for those sectors since 1985 under the
Charter of Rights, and since 1982 under the Human Rights Code. We have felt largely alone in
trying to educate them, and the public, that the Government has no duty to finance their
provision of accessibility to persons with disabilities. This is a cost of operating their
organizations. By analogy, no organization can credibly complain that they won't obey Ontario's
anti-pollution laws unless the Government foots the bill for them.
7. Recommendations on Public Education on the AODA
We urge this Independent Review to recommend as follows:
*#35. The Government should widely advertise on the mass media, and not just on the internet,
via email and on Twitter the availability of resources, training materials and guides it has already
developed for organizations to comply with accessibility standards enacted under the AODA.
*#36. The Government should immediately make available and widely publicize a free guide,
policy guideline and other like resource materials for obligated organizations to comply with the
accessibility requirements in the Ontario Building Code, as amended in December 2013.
*#37. Promptly after any new AODA accessibility standard is enacted or an existing accessibility
standard is revised in the future, the Government should make available and widely publicize a
free guide, policy guideline and other like resource materials for obligated organizations to
comply with that accessibility standard's accessibility requirements
*#38. Whenever a new accessibility standard is enacted or an existing one is revised, the
Government should promptly and widely publicize it. This should include much more than
posting it on the internet, and sending out tweets and emails about it.
*#39. The Government should promptly develop, make public and widely publicize a guide for
persons with disabilities and other members of the public (apart from obligated organizations), a
plain language guide to the accessibility obligations of obligated organizations under the AODA,
as well as under the Human Rights Code and Charter of Rights, including e.g. a list of the
information which obligated organizations are obliged to make available on request, and the
accessibility supports that the obligated organizations are required to provide. It should also
include information on what to do to enforce those standards in the case of non-compliance. As
new accessibility standards are enacted or existing ones or revised, these resource materials
should be promptly revised and re-publicized.
*#40. The Government should develop, make available and widely publicize a free webauthoring tool for creating accessible web pages, to comply with the IASR's information and
communication website accessibility requirements.
*#41. The Government should immediately launch an effective public education campaign
(including, but not limited to community speeches by ministers and other members of the
Legislature), on the benefits and importance of removing and preventing barriers against persons
with disabilities and the AODA obligation to become fully accessible by 2025, as well as
accessibility obligations under the Human Rights Code and Charter of Rights.
*#42. The Government should promptly implement a permanent program to ensure that students
in the school system are educated in disability accessibility. For example:
a) The Government should identify the Minister and public officials responsible for this
program's development and implementation.
b) School boards and teachers' representatives should be consulted on its development and
implementation.
c) The Government should develop a sample curriculum which school boards could adopt if they
wish, in lieu of developing their own curriculum.
d) The Government should report to the public on this program's implementation and
effectiveness. Among other things, the Government should promptly implement a permanent
program to advocate to self-governing professional bodies to educate people training in key
professions, such as architects, on disability accessibility. The Government should identify the
Minister and public officials responsible for this program's development and implementation.
The Government should report to the public on its implementation and effectiveness.
*#43. The Government should promptly implement a program to advocate to the self-governing
bodies for key professions (such as architects, lawyers, doctors and social workers) to adopt,
implement and require education on disability accessibility to qualify for those professions, and
to require continuing professional development on this topic for those already qualified in those
professions. Among other things, as part of this effort:
a) The Government should advocate to key professions such as architects and planners that to
qualify in future for a licence or other qualifications certificate as an architect or other designer
of the built environment, a specified amount of training in barrier free design must be completed,
that goes beyond the insufficient requirements of the Ontario Building Code.
b) A lead minister and public servants should be identified as responsible for this initiative.
c) The Government should make available to those self-governing body any readily-available
resource materials to help those self-governing professional bodies develop needed disability
accessibility curriculum on accessibility needs of persons with disabilities.
d) The Government should report to the public on this program's implementation and
effectiveness.
*#44. The Government should promptly consult with persons with disabilities, including the
AODA Alliance, on the content of these public education materials. This should involve inperson discussions, and not merely an invitation to provide on-line feedback to the Government.
Part VII. The Government's Failure to Effectively Ensure that
Public Money Is Never Used to Create, Perpetuate or Exacerbate
Disability Barriers
1. Introduction
In this part, we examine a remarkable but dramatically under-utilized way that the Government
could make Ontario progress more quickly toward full accessibility. It could do this by ensuring
that public money is never used to create, perpetuate or exacerbate accessibility barriers. We
describe our proposed strategy. We outline our frustrated efforts to date to get the Government to
take serious action on our proposal. We give troubling examples of missed opportunities that fly
in the face of stated Government policy and election promises. Then we offer recommendations
for improvement.
2. The Idea - No Barriers Funded with the Public's Money
We have campaigned for years to get the Government to adopt, monitor and enforce a strict
policy that public money can never be used to create, perpetuate or exacerbate barriers against
persons with disabilities. We have only had limited success, much less than is needed. It is not
clear so far that our modest success has translated into actual progress for persons with
disabilities.
Every year, the Ontario Government spends billions of public dollars on capital projects,
including new infrastructure. It spends billions more on goods and services that it buys for use by
the Ontario Public Service and by the public. Added to this is the large annual expenditure on
grants and loans for business development, as well as research grants to universities and other
organizations. The Government could give Ontario a major boost in its effort to become fully
accessible by 2025, if the Government made sure that that taxpayers' money was never used by
the Government itself, or by any other recipient of public money, to create, perpetuate or
exacerbate disability barriers.
Any infrastructure or other capital project built in whole or in part with Government money
should itself be fully accessible. This includes projects that the Government itself builds, or that
another organization (such as a municipality, hospital, school board, public transit provider,
college or university) builds, using public money to cover any part of its cost. No infrastructure
money should be given to improve a building, if that improvement is located in a part of a
building that is not accessible.
If the Government is going to purchase goods or services for its own use or use by the public, the
Government should ensure that the goods, services or facilities are themselves fully accessible to
and useable by people with disabilities. If more than one competitor bids on a procurement
project, they should be required to specify that the goods, services or facilities are accessible, or
what steps the organization will do to make them fully accessible and by what deadline. The
Government should ascribe significant weight to this, when deciding which vender should win
the bidding competition.
If an organization applies for any other kind of Government grant or loan, or a subsidy for
business development, the Government should make it clear that preference will be given to
applicants who ensure that their workplace, goods, services and facilities are accessible, or who
stipulate accelerated deadlines for achieving full accessibility.
Any research grants that include public funding should make it a condition that people with
disabilities will be properly included in the research. Any psychological or medical research
should ensure, where possible, that test subjects are not solely people without disabilities.
It is not enough for the Government to ask applicants for any of these kinds of public
expenditures to commit that they will comply with AODA standards. They already must comply
with these standards. Such a condition would add nothing, and hence, accomplish nothing.
Instead, the Government should require the recipient, as a condition of receiving public money
through these avenues, to meet the accessibility requirements of the Human Rights Code and
where applicable, the Charter of Rights. They should be required to show how they will ensure
full accessibility of their capital project, goods, services or facilities, or program/workplace. If
not now accessible, they should be required to commit to a specific deadline by which they will
be fully accessible, which can be sooner than AODA standards otherwise require. The
Government should negotiate specific commitments so that these can be written into the terms of
the grant, loan or other payment. Put simply, if the organization wants the public's money, these
strings should be attached.
This would create a substantial, positive new incentive for the public and private sectors to
produce accessible goods, services, facilities and capital projects, and to operate accessible
programs and workplaces. It costs the Government nothing. It requires no increase in the
infrastructure, procurement, research or business development budgets. It simply leads the
Government to use its existing budget more smartly.
The benefits of this strategy would be far-reaching. Once a recipient organization ensures that
their goods, services or facilities are accessible, all customers with disabilities benefit, whether
the purchaser is in the public or private sector. They can meet the growing unmet demand for
accessible goods and services here, across Canada, and around the world. There are estimated to
be one billion persons with disabilities around the world.
Although we have been raising this issue since the mid- to late 1990s, we ramped up our efforts
in 2009. Despite our efforts and some progress, the Government still has in place no
comprehensive, monitored policy and process for ensuring this.
A number of huge opportunities were lost. For example, the Government spent billions, after the
2008 economic downturn, in a major stimulus initiative to kick-start the economy. Yet it did
nothing to ensure that stimulus funding was never used to create or perpetuate disability barriers.
3. Yet Another Long Story of Our Repeated Efforts
a) The Early Years - 1998 to 2005
In 1998 our predecessor coalition, the Ontarians with Disabilities Act Committee, convinced the
Ontario legislature to unanimously pass a resolution establishing the 11 principles that an
accessibility law must enshrine. These were the 11 principles around which the ODA Committee
had been established in late 1994 - early 1995.
One of the 11 principles the Legislature unanimously approved and that the subsequent Liberal
Government promised to achieve through the AODA, provides as follows:
"10. The Ontarians with Disabilities Act should require the provincial and
municipal governments to make it a strict condition of funding any program, or of
purchasing any services, goods or facilities, that they be designed to be fully
accessible to and usable by persons with disabilities. Any grant or contract which
does not so provide is void and unenforceable by the grant-recipient or contractor
with the government in question."
As is discussed further below, the weak, unenforceable Ontarians with Disabilities Act 2001 that
was passed under the Harris Conservative Government included weak provisions regarding
accessibility requirements for projects receiving capital grants and for Government procurement.
We are aware of no concerted effort by the Ontario Government after that law was passed, to put
those provisions into effect.
When Bill 118, the proposed AODA, was before the Legislature for public hearings in the 2005
winter, the ODA Committee proposed a series of amendments to strengthen it. In our January 26,
2005 brief to the Legislature on Bill 118, we recommended, among other things, the following,
which the Government did not adopt:
"the bill be amended to provide:
(1) Capital funding for projects under a government-funded capital
program shall be made available only if there is an accessibility plan incorporated
into the project that meets the standards specified in the regulations made under
subsection (2).
Regulations
(2) Within six months after subsection (1) comes into force, the Lieutenant
Governor in Council shall make regulations specifying the standards mentioned in
that subsection, which shall include an accessibility plan for the benefit of all
persons with disabilities.
The ODA Committee also proposed that:
"the bill be amended to provide:
(1) The Government of Ontario shall not purchase goods or services for
the use of itself, its employees or the public that create or maintain barriers for
persons with disabilities or that contravene the standards specified in the
regulations made under subsection (3) unless it is not possible to do so because
the goods or services are not available in a form that complies with this subsection
and otherwise cannot reasonably be obtained in such form if so requested or
ordered.
If goods or services not available
(2) If the goods or services cannot be obtained in a form that complies
with subsection (1), the Government of Ontario shall ensure that the benefits of
the goods and services are available to persons with disabilities at no extra cost or
effort to persons with disabilities.
Standards
(3) In consultation with persons with disabilities and others including
through the Accessibility Directorate of Ontario, the Lieutenant Governor may
make regulations specifying the standards mentioned in subsection (1) for goods
and services which promote the purposes of this Act.
Finally, the ODA Committee also proposed:
"the bill be amended to provide:
(1) The council of every municipality shall not purchase goods or services
for the use of itself, its employees or the public that create or maintain barriers for
persons with disabilities or that contravene the standards specified in the
regulations made under subsection (3) unless it is not possible to do so because
the goods or services are not available in a form that complies with this subsection
and otherwise cannot reasonably be obtained in such form if so requested or
ordered.
If goods or services not available
(2) If the goods or services cannot be obtained in a form that complies
with subsection (1), the municipality shall ensure that the benefits of the goods
and services are available to persons with disabilities at no extra cost or effort to
persons with disabilities.
Standards
(3) In consultation with persons with disabilities and others through the
Accessibility Directorate of Ontario, the Lieutenant Governor may make
regulations specifying the standards mentioned in subsection (1) for goods and
services."
b) 2009 - We Ramp Up Our Advocacy Efforts
Four years after the AODA was enacted, we decided to focus more energy on this issue. It took
many weeks of effort in the first half of 2009 to arrange a face-to-face meeting, on June 11,
2009, with representatives from several Ontario Government ministries, called so we could
address this issue. In our June 25, 2009 letter to the Assistant Deputy Minister for Infrastructure
and the Assistant Deputy Minister for the Accessibility Directorate of Ontario, following up on
that meeting, which was held earlier that month with this Government contingent, we set out a
full proposal. We wrote in part:
"We do not here propose that Ontario increase its spending on infrastructure or
procurement. For this proposal, we assume that the Government has decided how
much it will spend on infrastructure and procurement for a given year. Our
proposal addresses the criteria by which the Government will choose to spend
those funds, and specifically how it will decide between different competitors for
those funds.
We propose that when an organization from the broader public sector or the
private sector applies to the Government for a capital grant or loan, such as for an
infrastructure project, the applicant should have to show in their application how
the funds will be used to improve accessibility for persons with disabilities. Their
application should also show what steps they will take to ensure that no public
funds are used to create any new barriers against persons with disabilities, or to
perpetuate existing ones. Similarly, when suppliers bid to provide goods and
services to the Ontario Government, the suppliers should have to show that these
goods and services will be fully accessible to and usable by persons with
disabilities. In deciding between competing applications or bids, a preference
should be given to those applications which best promote accessibility and least
perpetuate inaccessibility.
This would create an additional incentive for applicants for these funds to do
better on the accessibility front. For example, if a university applies for funding to
renovate or expand the upper floors of a building, and if there is no accessible
entrance to that building or no accessible means to reach the floors to be
renovated, that should substantially weigh against that application. In that case,
the Government should give preference to giving that capital grant instead to a
university that proposes to use the funds on a facility that is accessible, or that will
become accessible through the grant.
We recognize that there must be flexibility in how this works. Some infrastructure
projects are very important, and well-deserving of public funding, but may not
significantly contribute to accessibility. If a major highway or bridge is in
substantial disrepair and needs significant work, we recognize that this can be a
priority for the Ontario Government even though, apart from sidewalk width and
curb-cuts, there is little that can be done to advance disability accessibility
through such projects.
To promote accountability on the part of recipients of Ontario Government capital
funding, we proposed that applicants for such grants (and loans, where feasible)
should be required to post on their public website their intended steps on
accessibility, and their planned use for the infrastructure funds. This would enable
members of the public, including Ontarians with disabilities, to monitor these
expenditures and offer the Government feedback on whether the goal of
accessibility is being effectively advanced.
Under our proposal, it would not be sufficient for an applicant for capital funding,
or for an organization bidding on a procurement opportunity, to merely note in
their application that they will comply with existing legislation on accessibility,
such as the Ontarians with Disabilities Act 2001 or the Accessibility for Ontarians
with Disabilities Act 2005. Those laws do not impose comprehensive accessibility
standards at this point that would ensure that public funds are not used to create
new barriers against persons with disabilities. We don’t just want applicants for
Government funding to put boilerplate language into their bids or applications.
We want to change how public funds are actually used. We want public funding
to be used as an incentive to spur more activity toward the goal of accessibility in
the private sector and broader public sector.
Our proposal requires no major new Government spending. It addresses how the
Government will choose between competing applicants for existing funds. As it
is, the Government vets applications for grants to decide to which competitors it
will award public funds. We simply propose a modification of the criteria to be
used to judge the merits of capital funding applications and procurement bids.
It would be very beneficial for the Government to make it widely known to the
public, including prospective applicants for these grants or bidders for
procurement contracts, that the Government will gauge the accessibility impact of
competing applications for these public funding opportunities. This can include
public statements by cabinet ministers or the Premier. This necessitates no public
spending on commercial advertising. Giving this message good profile would
advance the Government’s public commitment to the goals of the Accessibility
for Ontarians with Disabilities Act. It would show that the Government is backing
this commitment with concrete action. We believe this initiative is especially
important during these tough economic times. This is when the Ontario
Government is most likely to expand its infrastructure stimulus spending."
Our June 25, 2009 letter detailed what the Government had done on this issue to date, in terms to
which the Government did not later disagree:
1"At our June 11, 2009 meeting, we learned that the Ontario Government now has
no such comprehensive program. In advance of the meeting, we had asked for
copies of any Government policies or standards requiring the incorporation of
accessibility in capital or other infrastructure grants or procurement bids. We were
given none. We took it from that that none now exist. Anything happening within
the Government on this score is ad hoc.
We also learned at our meeting that the Ministry of Energy and Infrastructure
mainly leaves it to the front-line ministries that give out infrastructure capital
grants to address disability accessibility. We were told that those ministries will
require recipients to comply with existing legislation such as the Ontario Building
Code, and any standards enacted under the Accessibility for Ontarians with
Disabilities Act. We took it from this that there is no common, consistent
approach mandated and monitored across the Government. This is instead left to
the ad hoc discretion of each ministry that gives out public capital funds such as
infrastructure money, e.g. the Ministry of Health, the Ministry of Transportation,
the Ministry of Education or the Ministry of Training, Colleges and Universities.
With no centralized, consistent approach to this in the Ontario Government, there
is no way to know whether the Government is using its spending power to the
best effect as an incentive to promote accessibility.
We noted at the meeting that section 9 of the Ontarians with Disabilities Act 2001
(which is still in force) authorizes the Government to make disability accessibility
a criterion in allocating capital grants. It provides:
Government-funded capital programs
9. (1) If a project relates to an existing or proposed building, structure or premises
for which the Building Code Act, 1992 and the regulations made under it establish
a level of accessibility for persons with disabilities, the project shall meet or
exceed that level in order to be eligible to receive funding under a governmentfunded capital program.
Same, other projects
(2) If a project is not a project described in subsection (1) or if the projects in a
class of projects are not projects described in that subsection, the Government of
Ontario may include requirements to provide accessibility for persons with
disabilities as part of the eligibility criteria for the project or the class of projects,
as the case may be, to receive funding under a government-funded capital
program. S.O. 2001, c. 32, s. 9, in force September 30, 2002 (O. Gaz. 2002, p.
898- 899).
We might add here that the Ontarians with Disabilities Act 2001 also addresses
requirements for accessibility when the Ontario Government spends public funds
on the procurement of goods and services. It provides:
Government goods and services
5. In deciding to purchase goods or services through the procurement process for
the use of itself, its employees or the public, the Government of Ontario shall
have regard to the accessibility for persons with disabilities to the goods or
services.
The Ontario Human Rights Code sets accessibility requirements well above those
which the Ontario Building Code requires. The Ontario Human Rights
Commission’s submissions to the Ontario Government on the need to harmonize
the Building Code with the Human Rights Code (the latter of which has primacy
in case of any conflict between them) is available at:
http://www.ohrc.on.ca/en/resources/submissions/SubmBldngCode2
As such, if various ministries are expected to ensure that grant recipients comply
with Ontario legislation on accessibility, they need to ensure that this includes the
higher requirements of the Human Rights Code, not just the lower requirements
of the Building Code."
We concluded our June 25, 2009 letter with a series of concrete recommendations for action.
Regrettably, we never received word that any of these was specifically acted upon. We wrote:
"We appreciate your agreeing to take our proposal to the Ministry of Energy and
Infrastructure, and to consider how it might be addressed through the
Government’s annual Results-Based Planning process. You explained to us that
that is where annual infrastructure spending is designed for the next budget year.
You reflected on the possibility that this might be added to the planning process
for the 2011-2012 fiscal year.
This would be a constructive step toward making significant progress in this area.
We welcomed your agreeing to take back our ideas, to discuss them with us
further, and for Ms. Waxman and Mr. Hughes to serve as our lead contact
persons.
It is important to follow up on this issue promptly, since the clock is ticking
toward the end-date of full accessibility by 2025 as Ontario law requires.
We propose these next steps:
1.
It would be helpful if you could arrange a follow-up meeting for us as
soon as possible that also includes key representatives from the front-line
ministries that choose recipients of infrastructure funding, such as those ministries
listed above. It would be helpful to learn from them what accessibility steps they
now take in connection with capital and procurement spending, and to get their
input on the proposal we have tabled with you.
2.
We regret to have learned at our June 11, 2009 meeting that the major
stimulus spending, announced in the recent Ontario Budget, has already largely
been allocated. We had hoped that this substantial stimulus spending would give
an especially good chance to make progress on accessibility during these difficult
economic times. From what you have told us, that opportunity has now been lost.
We want to ask you to explore what steps can be undertaken to immediately
incorporate new accessibility measures, for capital spending still unallocated
under the stimulus package, and for upcoming initiatives before the 2011-2012
fiscal year. It is important not to miss any more opportunities. We recognize that
interim measures may not be as fulsome as ones that you may later incorporate
into the 2011-2012 Results-Based Planning initiatives.
3.
We do not believe that it is necessary to await the enactment of the new
Built Environment Accessibility Standard currently under development at the
Ministry of Community and Social Services. That accessibility standard may not
be finalized and enacted until some time next year.
The law already requires the removal and prevention of barriers to accessibility,
and requires the Government to take the needs of persons with disabilities into
account when designing and operating Government programs, whether or not
details on how to do this have already been spelled out in existing accessibility
standards. This includes those the Government delivers itself, and those it delivers
through private parties.
Within the next few weeks it is expected that an initial draft of the Built
Environment Accessibility Standard will be circulated for public input. In the
interim, it would be sufficient to let applicants for grants, loans and procurement
opportunities know that the Government will be looking for measures which are
along the lines of those in the initial proposal of that accessibility standard (as
well as the other accessibility standards now under development), even though
there will be room for flexibility before that accessibility standard is finalized and
enacted.
4.
It would be beneficial for you to research what policies are used in other
jurisdictions such as the U.S. Government’s longstanding contract compliance
programs.
We propose to bring our ideas on this issue to members of the Government
caucus. We want to give you a good opportunity, as public servants working in
this field, to take a look at this issue in advance, to raise any questions with us that
you wish, and to formulate possible options, to assist the elected officials whom
we will ask to act on our proposal."
Over the many months after that initial meeting, we had a frustrating series of meetings with
successive revolving-door deputy ministers at the Ministry of Infrastructure, as well as other
public officials who had some responsibility for infrastructure spending and/or procurement. At
these meetings, we typically had to start from scratch, re-ploughing the same turf again and
again, as we had covered at our initial June 11, 2009 meeting.
As a positive step resulting from our efforts, we were invited to do a training session for public
servants at the Infrastructure Ministry who are involved in parts of the process of deciding which
projects to fund. We were also invited to do a training session for some public officials from the
Ministry of Government Services who are involved in some parts of the Government's
procurement of goods and services. These public officials were all receptive to our training, and
supportive of our goals and proposals.
No one we trained voiced any objection to or concerns about our proposals to include
accessibility requirements in procurement and infrastructure spending decisions. Our
presentation appeared to be the first that they had heard about our proposal that accessibility be
built into their criteria for spending public money. It was clear to us that had the Government
earlier acted on our proposals, and brought these to front-line public servants, it would have been
well-received. It would have helped contribute to more accessibility in Ontario.
c) Actual Progress in June 2011
As our efforts continued, we won two potentially major victories in the 2011 summer. First, the
IASR, enacted on June 3, 2011, imposed two important requirements on this issue. These built
upon the unenforceable and vaguer requirements in the Ontarians with Disabilities Act 2001.
Sections 5 and 6 of the IASR provide:
"5. (1) The Government of Ontario, Legislative Assembly and designated public
sector organizations shall incorporate accessibility design, criteria and features
when procuring or acquiring goods, services or facilities, except where it is not
practicable to do so. O. Reg. 191/11, s. 5 (1); O. Reg. 413/12, s. 4 (1).
(2) If the Government of Ontario, Legislative Assembly or a designated public
sector organization determines that it is not practicable to incorporate accessibility
design, criteria and features when procuring or acquiring goods, services or
facilities, it shall provide, upon request, an explanation. O. Reg. 191/11, s. 5 (2);
O. Reg. 413/12, s. 4 (2).
(3) The Government of Ontario, Legislative Assembly and designated public
sector organizations shall meet the requirements of this section in accordance with
the following schedule:
1. For the Government of Ontario and the Legislative Assembly, January 1, 2012.
2. For large designated public sector organizations, January 1, 2013.
3. For small designated public sector organizations, January 1, 2014. O. Reg.
191/11, s. 5 (3).
Self-service kiosks
6. (1) Without limiting the generality of section 5, the Government of Ontario,
Legislative Assembly and designated public sector organizations shall incorporate
accessibility features when designing, procuring or acquiring self-service kiosks.
O. Reg. 191/11, s. 6 (1).
(2) Large organizations and small organizations shall have regard to the
accessibility for persons with disabilities when designing, procuring or acquiring
self-service kiosks. O. Reg. 191/11, s. 6 (2).
(3) The Government of Ontario, Legislative Assembly and designated public
sector organizations shall meet the requirements of this section in accordance with
the schedule set out in subsection 5 (3). O. Reg. 191/11, s. 6 (3).
(4) Large organizations shall meet the requirements under subsection (2) as of
January 1, 2014 and small organizations shall meet the requirements as of January
1, 2015. O. Reg. 191/11, s. 6 (4).
(5) In this section,
“kiosk” means an interactive electronic terminal, including a point-of-sale device,
intended for public use that allows users to access one or more services or
products or both. O. Reg. 191/11, s. 6 (5)."
Second, on June 24, 2011, the Government unveiled its Ten-Year Infrastructure Plan for Ontario.
It enunciated the policies and principles that were supposed to govern any of the billions of
dollars of infrastructure spending by the provincial government over the next decade.
As a result of our advocacy efforts, mandatory accessibility requirements were enshrined in this
10-year plan. That Plan requires that:
"all entities seeking provincial infrastructure funding for new buildings or major
expansions/renovations to demonstrate how the funding will prevent or remove
barriers and improve the level of accessibility where feasible."
In our July 4, 2011 AODA Alliance Update, we commended the Government for this new
initiative. We emphasized the need for prompt and effective steps to put this commitment into
action:
"It will be important for the Government to now convert this principle from the
lofty language of the new 10-Year Infrastructure Plan to a concrete operational
policy and practice. This must be one that is monitored and consistently practiced,
and for which public servants involved in all stages of infrastructure spending will
be held accountable.
We commend the McGuinty Government for weaving this accessibility
requirement into its 10-Year Infrastructure Plan."
Our Update later stated:
"Having just won a new, key measure, we need it implemented as quickly and
effectively as possible. The Government needs to promptly commit to taking steps
like these:
* Getting the strong message widely broadcasted as soon as possible to any
organization that seeks Ontario infrastructure funds, such as municipalities,
universities, colleges, school boards, public transit providers, and hospitals, that
they must prove in their applications that they will ensure that public money isn't
used to create, perpetuate or exacerbate barriers against persons with disabilities.
* Ensuring that this infrastructure accessibility commitment applies to all forms of
provincially-funded infrastructure, and not just the built environment such as
buildings. It should, for example, extend with full and equal force to electronic
and information technology infrastructure, such as the Presto Smart Card for
paying public transit fares.
* Ensuring as well that the same principles apply to the Government's use of
public funds to procure goods, services and facilities for use by the Government
or the public…
…
* establishing detailed guidelines for infrastructure accessibility, beyond those set
out in the current accessibility standards enacted under the Accessibility for
Ontarians with Disabilities Act. These should, for example:
a) make it clear that for infrastructure projects to be accessible, they must meet
the accessibility requirements of the Ontario Human Rights Code, and not just the
more limited requirements of accessibility standards enacted to date under the
AODA.
b) Make it clear that "where feasible" in this policy will be interpreted in a manner
consistent with the Human Rights Code. By this, barriers against persons with
disabilities cannot be created, exacerbated or perpetuated with public
infrastructure money if there is a way to avoid this without proven undue
hardship.
* implementing in the Ontario Public Service policies for implementing this
accessibility commitment, and for monitoring compliance with it. This should not
simply leave it to each ministry to decide whether it will implement this
accessibility commitment, or what accessibility will mean, or how much weight to
give it in making decisions among competing applicants for capital and
infrastructure grants."
The Government never agreed to take any of these recommended steps. As well, we have never
received any word that the Government has done anything whatsoever to implement its
Infrastructure Plan's accessibility requirement.
Later that summer, as the October 2011 election approached, we sought commitments from the
major parties to get this accessibility commitment effectively implemented. In our July 15, 2011
letter to the party leaders, we sought commitments as follows:
"F.
Ensure Taxpayers' Money is Never Used to Create or Buttress Disability
Barriers
The Ontario Government spends billions each year on capital and infrastructure
projects, and to procure goods, services and facilities for use by itself or the
public. Ontario needs a comprehensive, effective strategy to ensure that no one
ever uses Ontario tax dollars to create, exacerbate, or perpetuate barriers against
persons with disabilities.
It is very commendable that the current Government's new Ten-Year
Infrastructure Plan has accessibility requirements. See:
http://www.aodaalliance.org/strong-effective-aoda/07042011.asp These must be
strengthened. We ask you to commit to:
15. maintain and strengthen the Ten-Year Infrastructure Plan's accessibility
requirements, by:
a) ensuring it applies to all forms of provincially-funded infrastructure, such as
information technology infrastructure and electronic kiosks, and not just the built
environment e.g. buildings.
b) extending those accessibility principles to the Government's use of public funds
to procure goods, services and facilities for use by the Government or the public.
c) establishing detailed guidelines for infrastructure accessibility, beyond those set
out in the current AODA accessibility standards. These should, e.g.
(i) ensure that to be accessible, they must meet the Human Rights Code's
accessibility requirements, and not just the more limited AODA accessibility
standards.
(ii) ensure that "where feasible" in this policy will be interpreted in a
manner consistent with the Human Rights Code's undue hardship standard.
(iii) establish Ontario Public Service implementation procedures for
monitoring and enforcing this requirement, so it is not simply left to each ministry
to decide whether or how much it will implement this commitment, in deciding
among competing applicants for Government grants and contracts.
d) widely and prominently broadcasting as soon as possible to any organization
that seeks Ontario infrastructure or procurement funds, that they must prove in
their applications that they will ensure that public money isn't used to create,
perpetuate or exacerbate barriers against persons with disabilities."
In his August 19, 2011 letter to us, setting out the Ontario Liberal Party's 2011 disability
accessibility election commitments, Premier McGuinty committed as follows:
"•
We are integrating accessibility as a fundamental principle when it comes
to making vital decisions that affect the daily lives of Ontarians. For instance, as
part of our 10-year infrastructure plan, we are requiring all entities seeking
provincial infrastructure funding for new buildings or major expansions or
renovations to demonstrate how the funding will prevent or remove barriers and
improve the level of accessibility where feasible. We will also extend this to
include information technology infrastructure and electronic kiosks."
d) Stretches of Inaction and a More Recent Glimmer of Progress - 2011
to the Present
In the three years since then, we have received no word that the Government did anything to
keep that 2011 election commitment.
Shortly after the October 2011 election, and six months after the Government announced its TenYear Infrastructure Plan we wrote to Infrastructure Minister Chiarelli, to ask what steps the
Government was taking to implement that Infrastructure Plan's accessibility commitment, and
the Government's 2011 disability accessibility election commitments regarding infrastructure
accessibility, information technology and electronic kiosks.
Minister Chiarelli's February 27, 2012 response did not specifically answer our inquiry. He said:
"the government will require all entities seeking provincial infrastructure funding
for new buildings or major expansions/renovations to demonstrate how the
funding will prevent or remove barriers and improve the level of accessibility
where feasible."
That appears merely to repeat what was already included in the Government's June 24, 2011
announcement of its Ten-Year Infrastructure Plan. He added the following, which appeared to be
a description of what they were already doing, not what new steps they planned to take to
enhance this (about which we had asked):
"The Ministry of Infrastructure and Infrastructure Ontario are striving to be
leaders in developing an accessible built environment and uses barrier-free
guidelines that are above current legislative requirements. Where enhanced
accessibility could be achieved, it is incorporated into the facility design in
cooperation and agreement with the client ministry and project design team.
The barrier-free guidelines are used as the accessibility design criteria for a
variety of building elements and improve access within the built environment.
They serve as the minimum requirement for new construction (including
Alternative Financing Procurement projects) and major retrofits at Ontario
government facilities. These guidelines are applied where it is technically
feasible."
He gave some examples of efforts to include accessibility measures in new capital projects, and
referred to the IASR's transportation accessibility provisions. He did not provide important
specifics that we requested. He announced no detailed specific plans to:
1. Ensure that to be accessible, new capital projects must meet the Human Rights Code's
accessibility requirements, and not just the more limited AODA accessibility standards.
2. Ensure that "where feasible" in this policy will be interpreted in a manner consistent with the
Human Rights Code's undue hardship standard.
3. Establish Ontario Public Service implementation procedures for monitoring and enforcing this
requirement, so it is not simply left to each ministry to decide whether or how much or how little
it will implement this commitment, in choosing among competing applicants for Government
grants and contracts.
4. Widely and prominently broadcast as soon as possible to the public, including to any
organization that seeks Ontario infrastructure or procurement funds, that they must prove in their
applications that they will ensure that public money isn't used to create, perpetuate or exacerbate
barriers against persons with disabilities.
5. Announce any steps to expand Ten-Year Infrastructure Disability Accessibility Requirements
to Information Technology and Electronic Kiosks.
On December 2, 2011, the date on which we had written to the Infrastructure Minister, we also
wrote to Government Services Minister Takhar, to ask what the Government planned to do to
keep Premier McGuinty's August 19, 2011 commitments vis à vis procurement activities. That
minister's January 18, 2012 letter in reply did not give any specifics that we had sought. He
wrote:
"…key procurement mechanisms, including vendor of record agreements, are
incorporating accessibility requirements as they are renewed."
This response lacked much-needed detail. The Government Services Minister didn't say what
"accessibility requirements" were being incorporated, or whether they live up to the Human
Rights Code's accessibility obligations. His answer also fell short of answering our request in our
December 2, 2011 letter asking his ministry "to establish a strong, effective, monitored and
enforced policy that ensures that the goods, services and facilities that the government procures
are, to the extent possible, fully accessible to and fully useable by people with disabilities."
His letter said nothing about how his ministry would work to implement the Premier's August
19, 2011 commitment to extend the accessibility requirements of the Government's Ten-Year
Infrastructure Plan to include the procurement of accessible information technology and
electronic kiosks. His ministry plays a pivotal role in the Ontario Government's procurement of
information technology for use by the Ontario Government.
Since receiving those letters, the Government suggested to us that in at least some contexts, it
was making progress. In his March 21, 2013 letter to us, then Deputy Minister for Government
Services Kevin Costante, wrote:
"The OPS (i.e. Ontario Public Service) has been focused on accessibility in the
procurement of goods, services, and facilities and is making progress towards
ensuring no barriers are created or perpetuated for persons with disabilities.
The Management Board of Cabinet Procurement Directive, October 2012 outlines
the mandatory compliance with the requirements of the Ontarians with
Disabilities Act, 2001 and the Accessibility for Ontarians with Disabilities Act,
2005 within all procurements for goods and services.
In addition to the mandatory compliance requirements outlined in the
Procurement Directive, the Supply Chain Management Division of the Ministry
of Government Services has developed additional tools and resources to support
the OPS procurement community in meeting accessibility requirements. These
documents include:
•
The Meeting Accessibility Obligations in Procurement Checklist that
allows ministries to document their compliance with accessibility legislation.
•
Meeting Accessibility Obligations in Procurement Guidelines that
provides step by step guidance for ministries on how to consider accessibility at
every stage of the procurement process.
•
Accessibility Language for Procurement Documents that ministries may
wish to consider when developing their own procurement documents
•
A list of frequently asked questions on accessibility in procurement; and
•
A standard procurement Request for Proposals Template that outlines
information on accessibility requirements.
All ministry procurements valued over $1M are also subject to approval or review
by Supply Chain Leadership Council. Shamira Madhany, Chief Officer, Diversity
and Accessibility, was selected as a member of this executive council expressly to
review the accessibility provisions of procurement strategies."
That letter was the best indication of substantive action on this issue we have seen documented in
the years that we have been raising this issue. Yet such high-level policy statements all too often
do not get translated into front-line action, especially in the absence of monitoring, auditing and
effective enforcement. The following discussion vividly illustrates this.
4. Barrier-Creation Using Public Money Continues
a) Overview
Despite the Ontarians with Disabilities Act, AODA, the IASR, the Human Rights Code, the
Charter of Rights, and the Government's 2010 Ten-Year Infrastructure Plan, the Government has
in some instances continued to pursue conduct that can create new barriers against persons with
disabilities, using public money. We give three illustrations.
b) Barriers in the Ontario Government's New "Presto" Smart Card
On November 30, 2009, CBC Radio Toronto’s Metro Morning program aired an interview with
a Metrolinx spokesperson. Metrolinx is an Ontario Government agency that leads strategy for
public transit at the local level, e.g. in the Greater Toronto area. The official proudly announced a
new Presto smart card that they were testing on Toronto-area public transit services. The smart
card was developed by Presto System, part of the Ontario Government. The Presto smart card
would let passengers load money on the smart card and then use it to pay transit fares on various
public transit systems that opt into the Presto technology.
We immediately asked what steps Metrolinx took to ensure that this new technology was fully
accessible to persons with disabilities. We were given commitments that this Governmentfunded project, in which the Government was deeply involved, was dedicated to ensuring
disability accessibility. We were told that the project had consulted with persons with
disabilities.
We spoke by phone with key Presto officials on March 8, 2010. After we asked just a few
questions, we quickly discovered that the Government's custom-designed Presto system had
troubling disability barriers.
One obvious and easily predicted barrier we identified was in the new Presto Smart-Card reading
machines. The Government planned that in transit stations there would be a machine into which
one can insert a Presto card, to find out how much money still remains on the card. The cardreading machine that Presto designed only provided a card balance on a video screen. People
with vision loss and dyslexia obviously cannot read that screen. The card-reading machines
included no alternative interface for those persons with disabilities to use.
We went public with this issue two months later. In our June 21, 2010 AODA Alliance Update,
we urged the Government to intervene in the Presto project immediately, to stop the creation of
new barriers with taxpayers’ money. We warned that once inaccessible new technology is
purchased and installed, it will cost more to retrofit it after the fact to make it accessible.
We noted that it was not enough for the Government, the Presto team, and Metrolinx to comply
with the AODA. There were then no AODA standards in force that specifically addressed these
barriers. We emphasized that those public organizations must comply with the accessibility
requirements of the Human Rights Code and the Charter of Rights.
On July 20, 2010, the AODA Alliance received a troubling email from Presto Systems. It did not
credibly justify the barriers in the new Presto Systems Smart Card technology. On August 10,
2010, we wrote three key letters, to call for prompt Government action to rectify this situation:
First, we wrote to Presto Systems to call for a halt in the deployment of their Smart Card
technology until it is made fully accessible. We ask Presto Systems to make public important
information, to help us and the public understand how the Government could have created these
new disability barriers with public money.
Second, we wrote to Transportation Minister Kathleen Wynne, asking the Government to look
into this. We asked the Government not to press any public transit authorities to implement the
Presto Smart Card until it is barrier-free for passengers with disabilities.
Third, we wrote to Community and Social Services Minister Madeleine Meilleur (then
responsible for the AODA's implementation and enforcement) asking her to intervene, to stop
the deployment of the Presto Smart Card until it is accessible. We urged her to ensure that the
forthcoming new AODA accessibility standards include strong measures to ensure that such
electronic kiosk technology is fully accessible to persons with disabilities.
On August 12, 2010, we again went public on this issue. We once more called on the Ontario
Government to halt deployment of the Presto Smart Card, until the disability barriers that we
identified are eliminated.
As a result, an August 12, 2010 Toronto Star article quoted the head of the Government’s Presto
System Project, Ernie Wallace, offering new and indefensible excuses for its conduct. The article
stated:
“Presto executive director Ernie Wallace says the new tap system is far more
accessible than a token or cash one. Wallace says the alternatives - an audible
balance announcement via speaker or plug-in - weren't deemed viable.
"It makes no sense ... both from a safety and privacy viewpoint, to get voiceactivated plug-in pins at a TTC gate," he says. "It just operationally doesn't work.
You can't have the gate stopped or the device stopped in the middle of rush hour.”
Neither Presto Systems nor the Government had ever earlier claimed that incorporating readilyavailable voice output technology in the Presto Smart Card system was not “viable.” They had
never before claimed that such poses a threat to safety or privacy.
The Presto claim that passenger safety is threatened during rush hour was absurd. There is no
reason why a machine for checking the balance on a Smart Card must be placed at the turnstiles
where one pays admission to a public transit system. It could be located elsewhere in the station.
A passenger with vision loss or dyslexia does not threaten public safety when checking his or her
card balance, any more than does a passenger with no disability.
To have a machine for checking a Smart Card balance speak one’s balance aloud, if one wishes,
need not threaten anyone’s privacy. As with ATM machines, these machines can have a jack for
plugging in earphones. Bank machines have been available with a talking voice output feature
for years.
For people who cannot read print, the new Presto System was not as accessible as the old system
of bus tickets and tokens. One can always count the number of tickets or tokens in one's pocket,
even if one has vision loss or dyslexia.
The Star article further stated:
"Wallace points out that visually impaired transit users can check their balance
online or by phone. But Lepofsky says they should be able to get their balance as
they enter, "just like everyone else.""
The Toronto Star article reported a very troubling response to this issue by Transportation
Minister Kathleen Wynne’s office. The article said:
“Katherine King, spokeswoman for Transportation Minister Kathleen Wynne,
said the Presto System meets accessibility standards.”
Yet no accessibility standard under the Ontarians with Disabilities Act or the AODA then
specifically required such electronic kiosks to be accessible. Thus, the Minister’s office was
merely saying they were obeying nothing. The Minister's Office's response disregarded the
accessibility requirements of the Charter of Rights and Human Rights Code.
Making matters worse, a Ministry of Transportation July 23, 2010 news release, showed that the
Transportation Minister had used the Government's formidable might to pressure the TTC to
adopt the Presto Smart Card. This was evangelizing for creating new barriers. The Toronto Star's
August 12, 2010 article quoted AODA Alliance chair David Lepofsky as follows:
"We have enough problems with old barriers, like steps down the subway stations
that were built 50 years ago. Now we're talking about them using our tax money
to build new barriers into new technology that could have been prevented."
The Government publicly argued that it had consulted with persons with disabilities when
designing this new technology. The August 12, 2010 Toronto Star article quoted the minister's
spokesperson as follows:
"Presto has been working with an Accessibility Advisory Group, including
representatives from the visually impaired community, as the Presto card was
developed.
"Now that the devices are in service, Presto has been soliciting feedback on using
the devices in the real transit environment," she said, adding that consultation will
continue as the system moves forward."
We revealed that this Government claim was disingenuous. Right after we made public the
Government's claim that it had consulted persons with disabilities on the presto Smart Card, we
received and made public information showing the Government had been warned as far back as
2008, two years earlier, that the Presto Smart Card technology had barriers.
That warning came from Mr. Craig Nicole, a blind person whom Presto had consulted when
designing this technology. He had warned the Government's Presto team about more barriers
than we had ourselves identified in this technology.
We promptly forwarded this information to Transportation Minister Kathleen Wynne, by a letter
dated August 15, 2010. The Government did not publicly dispute the accuracy of this
information.
As a result of our pressure, the Government agreed to take a second look at barriers in the Presto
system. The Government didn't deny that these barriers against transit riders with disabilities
exist. However, even after taking this second look, it did not agree to halt Presto's deployment
until these barriers are fixed.
The Government wrote us twice in response to our August 15, 2010 letters. Minister Wynne
wrote us on October 20, 2010. Minister Meilleur wrote us on October 21, 2010. These letters
include statements on the Government’s commitment to accessibility that are quite similar to
those we earlier received from the Presto Project. For example, Minister Wynne wrote:
“PRESTO is committed to identifying, removing and preventing barriers for
people with disabilities.”
Yet the Presto team’s past conduct contradicted this rhetoric.
The Government's two letters gave no reasons why Presto ignored the earlier warnings about
these Presto barriers. They didn't claim it was impossible to design fully accessible technology.
These two Government letters committed that any future electronic self-serve kiosks will be
designed to be accessible. This gave little comfort. The Government did not give any reason to
believe that it would honour those commitments in the future any more than it had in the past.
These Government letters included a new commitment by Transportation Minister Wynne to
have the Presto technology reviewed for accessibility problems. She wrote:
“I have asked staff to review compliance of the PRESTO system with all
accessibility standards. I have also directed staff to reconstitute the Accessibility
Advisory Committee and report back to me on its performance in the field with
any changes that need to be made. The Accessibility Advisory Group recently
held their first meeting and will be providing advice to us on the creation of a
Ridership Focus Group.”
It was good that the Government thereby agreed to take a second look at Presto’s accessibility
problems, albeit belatedly. However, it was then not clear that the Presto project team would
listen any more effectively, when the same consultants again tell the Government that the 2010
Presto technology had the barriers that they had forewarned about in the past.
We received no information that the Government held accountable those officials who were
responsible for not acting on the earlier warnings about barriers. It has been a recurring theme in
our dealings with the Government, as described in this brief, that Government officials are
typically not held accountable for improperly creating barriers against persons with disabilities.
Minister Wynne said in her letter that Presto is committed to keeping up with changes in
technology. She wrote:
“We understand that advancements to accessibility standards and guidelines are
ongoing. PRESTO will evolve to meet the new standards. That is why we are
working on developing a pilot program on a fully accessible self-serve PRESTO
kiosk. Improvement will be based on advancements in technology and on the
progress made in advancing accessibility standards and guidelines, such as those
currently being approved for the AODA.”
Yet the Government's Presto team had clearly not been keeping up with technology. Technology
had existed for years that would have prevented the barriers we made public that summer. For
example, AODA Alliance Chair David Lepofsky told Minister Wynne’s and Minister Meilleur’s
staff at a meeting in the 2010 fall of his hands-on experience in the 2010 summer with the
accessible self-serve electronic kiosks throughout the Chicago subway system for buying a fare
card, checking its balance and adding funds to the card.
At our meeting with the Minister’s staff earlier that fall, they referred us to the Government
having signed contracts for the purchase of this technology. No specifics were provided on how
much the Government had already contracted for, or what the consequences would be for
backing out of those contracts. In any event, the Government cannot contract out of its duties
under the Human Rights Code. We emphasized that there is a need for accountability of those
who signed any such contracts.
After these events, the Government continued to blaze forward, pressuring local public transit
providers to adopt the Presto Smart Card, without first ensuring that it was made fully disability
accessible.
On June 6, 2011, one year after we first made this Presto issue public, the media reported that the
City of Toronto was working out, or had worked out, an agreement for the Toronto Transit
Commission to adopt the Presto Smart Card. We then had no word that the Presto barriers had
been fixed.
The AODA Alliance wrote to the Toronto Mayor, the TTC Chair, and Ontario's Transportation
Minister. We asked them to commit that the Presto Smart Card would not be rolled out in the
TTC until those barriers are removed and the Presto Smart Card is fully accessible.
On June 8, 2011 we received a letter in response. It was not from any of the people to whom we
wrote. Instead, evidently on the Transportation Minister's behalf, it came from the President of
Metrolinx. That letter did not give the specific commitment we requested.
When first read, the letter sounded like a strong endorsement of accessibility. However, when
read more closely, it turned out to be much less than that. For example, Metrolinx stated:
"The current PRESTO system will meet AODA standards and provide equivalent
service to all members of the public including those with disabilities. As the
system continues to evolve, we value the insight of the accessibility community to
assist us in overcoming barriers and providing a convenient and easy method for
transit fare payment."
Metrolix wrote:
"We will be installing, as a pilot, a fully accessible self service kiosk including
audio jack in Union Station by fall this year. Ottawa will be installing a new
generation of devices complete with audio jacks on unattended devices in 2012
when PRESTO rolls out there. This is substantial and real progress."
In what amounts to a complete denial of what we had demonstrated in the 2010 summer,
Metrolinx wrote:
"PRESTO is removing the barriers that existing fare collection systems have for
those persons with disabilities."
Echoing words we earlier heard throughout the creation of new barriers in the Presto system,
Metrolinx concluded:
"Moving forward we will work with our municipal partners to ensure the
accessibility of devices and services does not create barriers to take transit for any
Ontarians."
On June 9, 2011, the AODA Alliance wrote back to Transportation Minister Wynne. We
repeated our request for the commitment that no one had yet given us. We also pointed out our
serious concerns with what the Metrolinx president said on this topic on behalf of the
Government in his June 8, 2011 letter to us. AODA Alliance chair David Lepofsky wrote to
Minister Wynne:
"The Metrolinx president repeats commitments we have so often received in the
past from your Government, that the Presto Smart Card technology aims to be
accessible to persons with disabilities. However, he does not specifically commit
that this technology will not be rolled out in the TTC until the barriers in that
technology are removed – the very commitment we sought.
For example, the Metrolinx president does not make the important commitment
we requested, that the Presto system will not be rolled out in the TTC until and
unless it complies with the accessibility requirements of the Ontario Human
Rights Code and the Canadian Charter of Rights and Freedoms. His only qualified
commitment pertains to the Integrated Accessibility Regulation your Government
enacted last Friday. In several respects, including those applicable to this kind of
technology, that regulation's requirements, while helpful, fall well short of the
accessibility requirements of the Human Rights Code and the Charter of Rights.
In addition, the Metrolinx president's commitment on complying with the new
Integrated Accessibility Regulation under the Accessibility for Ontarians with
Disabilities Act is guarded. We had wanted the Presto technology to now fully
comply with the letter and spirit of the new Integrated Accessibility Regulation.
Yet the Metrolinx president's carefully worded response on your behalf was that
"in keeping with the recently proclaimed Integrated Accessibility Standards
(IAS), any procurements for TTC equipment will meet the requirements of
sections 5 and 6 as applicable of the IAS, once a decision is made by the TTC to
implement PRESTO."
His guarded statement leaves wiggle room for TTC or your Government to later
argue that the accessibility requirements of the Integrated Accessibility
Regulation are not "applicable." For example, that regulation's requirements for
TTC's procurement of technology such as Presto do not even go into effect until
2013. Any deployment of Presto in 2012 would not need to comply with the
Integrated Accessibility Regulation, even though it must still comply with the
Human Rights Code and the Charter of Rights.
That is one reason why we need a commitment that your Government and TTC
will obey all of the Integrated Accessibility Regulation, the Human Rights Code
and the Charter of Rights, and will do so now.
The Metrolinx president only commits that the Presto technology will provide
"equivalent service." "Equivalent service" is a term which is at times used to
mean something very different from, and manifestly less than fully accessible and
equal service.
The Metrolinx president does not deny the existence of the barriers we have
identified in the Presto Smart Card technology. He does not deny that your
Government has refused to halt the Presto roll-out until those barriers are
removed.
The Metrolinx president proclaims with pride how far the Presto roll-out has
proceeded and how many people are using it. He says it was successfully rolled
out in GO Transit rail network, along with municipal transit services in Hamilton,
Burlington, Oakville, Mississauga, Brampton and 12 TTC subway stations. This,
with respect, is not "successful," from the perspective of those persons with
disabilities who cannot fully use it. It only shows how far the use of public of
public money has gone, in a growing number of communities, to implement a
system of new technology that is not fully accessible to all persons with
disabilities.
The Metrolinx president notes that as a result of concerns we expressed to your
Government, "We will be installing, as a pilot, a fully accessible self service kiosk
including audio jack in Union Station by fall this year."
A new, fully-accessible kiosk is, of course, a good thing.
However, with the extensive existing roll-out of Presto that his letter details, the
fact that there will be only one single accessible electronic kiosk, anywhere in the
system, by the end of 2011, is unacceptable. People without disabilities would not
find it acceptable to have only one fully-usable electronic kiosk in the entire
Presto system.
On your behalf, the Metrolinx president states: "PRESTO is removing the barriers
that existing fare collection systems have for those persons with disabilities."
With respect, this is incorrect, as our correspondence last year with you and the
Presto team who work for you documents. Right now, a TTC patron with vision
loss or dyslexia can reach in his or her pocket and count the number of tokens
they have. In contrast, with the current Presto technology, if they are in a transit
station equipped with a card-reader for checking their balance, their card balance
comes up on a video screen that people with these disabilities cannot read. For
them, Presto adds a serious barrier, rather than removing one.
The Metrolinx president advises that the panel of persons with disabilities you
established last fall to assess accessibility barriers in the Presto system, will report
their findings after this month. That panel was re-established after we raised our
accessibility concerns, and they were the subject of media coverage.
We appreciate any effort to get the input of persons with disabilities. However
there was no need for over eight months of testing for your Government to learn
that people with vision loss and dyslexia cannot read a Presto Smart Card
balance-reader's video screen.
We ask that the report of your accessibility testers be promptly sent to us and
made public. We ask the same about any actions your Government will take in
response to it.
The Metrolinx president generally described some future plans to consult with
persons with disabilities on accessibility issues. However, as you know, your
Government's Presto team solicited input from persons with disabilities on Presto
barriers over the past years, but did not implement sound recommendations they
received. Last August, when the media approached your office to raise our
accessibility concerns, your office reportedly said in your defence that Presto had
consulted with persons with disabilities. Yet it turned out that although Presto had
consulted, it didn't properly listen to what they were told about the barriers.
You can understand that vague promises of future consultations with persons with
disabilities offer us little comfort. We ask for you to commit to prompt, concrete
measures to ensure that that is not repeated again now.
The June 6, 2011 Toronto Star on line reported that deployment of Presto in the
TTC could cost as much as $300 million, and that your Government may be asked
to pay as much as $160 million to TTC to cover part of this cost, in exchange for
implementing this new technology. The June 9, 2011 Toronto Star reports that
TTC is now facing an operating budget shortfall, and faces the prospect of fare
hikes and/or service cuts.
Especially in these circumstances, we propose that not a dime of public money
should be spent creating new barriers against public transit passengers with
disabilities. Before such mammoth sums of public money are spent on a
technology that does not increase any actual transit ride opportunities for anyone,
at the very least the Government should ensure that it is fully accessible.
Just a few years ago, TTC unwisely spent fully $450,000 of public money on
lawyers, to oppose human rights complaints that forced TTC to announce all
subway, bus and streetcar stops – an obvious and simple accommodation for
passengers that many now welcome. It makes more sense to ensure that a public
transit authority's fare-collection technology is fully accessible in advance, then to
have to later fight such a losing battle to justify such denials of accessibility
guaranteed under the Human Rights Code and the Charter of Rights.
It was a cruel irony that the Metrolinx president sent us his June 8, 2011 letter,
voicing a strong commitment to accessibility, in an inaccessible PDF file. We
appreciate that his assistant promptly rectified this and apologized, after I asked
for a copy I could read in an accessible format. However this illustrates in a small
way, as does this entire exchange, the distance we still must go from accessibility
rhetoric to accessibility reality, especially in the area of public transportation.
Metrolinx didn't alone design the Presto Smart Card. It is not ultimately
responsible for the barriers against persons with disabilities in it. That is
ultimately your responsibility as the Minister of Transportation. As such, we ask
you to commit that the Presto Smart Card technology will not be rolled out in the
TTC, until and unless it is fully accessible to persons with disabilities, and that it
will fully comply with the Human Rights Code and the Charter of Rights."
Up to the present, we are aware of no Government announcements that indicate that all
accessibility barriers in Presto have been eliminated, and that any Presto equipment earlier
deployed that included barriers has been taken out of service. All we have heard from persons
with disabilities have been some anecdotal reports of difficulties they have experienced using the
Presto Smart card.
c) Barriers in New Courthouses
Since 2005, Ontario has been commendably working on a strategy to remove and prevent
barriers that impede court participants with disabilities from full access to Ontario's courts. Some
important progress has been made. However, perhaps one of the most shocking examples of the
Government creating new barriers, using public money, has been in the construction of two new
courthouses.
The Ontario Government is responsible for the courthouses in Ontario except the Federal Court
and those which municipalities operate. Most Ontario courthouses are older buildings that the
Government owns or rents. Typically, older courthouses have real accessibility problems.
Ontario rarely builds a new courthouse. When it does, the new court facility will be used for
decades far into the future. A new courthouse replaces at least one old courthouse, and at times,
more than one old court building. A new courthouse costs many millions of dollars. Years are
spent designing and constructing a new court building. Many public officials are involved in the
process.
It is essential that any new courthouse be designed to be fully accessible. For several years after
the AODA was passed, Ontario did not have an up-to-date standard or guideline for how to
design a new courthouse to be fully accessible.
Several years after the AODA was enacted, and even longer after the earlier Ontarians with
Disabilities Act 2001 was enacted, the Government completed the construction of two major
court facilities, one in Durham Region, and the other in Waterloo Region. A number of good
accessibility features were commendably included in these buildings.
However, these buildings included in their design a stunning new barrier that could easily have
been prevented. Each of these courthouses has a good number of courtrooms, to accommodate a
high volume of different kinds of legal proceedings. Yet only 25% of the courtrooms in each of
these two new buildings are equipped with an accessible judicial dais. For fully 75% of those
courtrooms, a judge with a mobility disability cannot get up to the judge's bench and preside.
This was a deliberate decision by the Government. It was no accident.
The judiciary is drawn from more senior members of the legal profession. Advancing age is the
greatest cause of disability. Therefore, this new barrier, which the Government created using the
public's money, bears on the segment of the population which will have a higher proportion of
disabilities. Moreover, judges who take office when they have no disability will likely acquire a
disability during their tenure in office. The mandatory retirement age for federally-appointed
judges is 75.
The presiding judge is the most senior official in a courtroom, and the central focus of the
proceedings. For 75% of new courtrooms in those two regions to be designed to be inaccessible
to judges with mobility disabilities is entirely inexcusable. This flies in the face of the AODA's
goals, the Human Rights Code, the Charter of Rights, and the Government's 10 Year
Infrastructure Plan. These barriers will have a lasting negative impact. The cost of removing
these barriers is clearly greater than the cost of preventing them, (if preventing them would have
cost anything at all).
d) The Need for the Government to Plan Well in Advance for a Lasting
Accessibility Legacy for The 2015 Toronto Pan/ParaPan American
Games
In 2015 Toronto will host the Pan/ParaPan American Games. The Ontario Government is
spending millions of public dollars on the Games. It justifies this expenditure on the basis that
the 2015 Games will bring substantial economic benefits to Ontario. For example, the
Government expects some 250,000 people to come to Toronto to attend the Games.
For several months, we have pressed the Government, without success, to ensure that the 2015
Games have a significant legacy of accessibility for persons with disabilities. The “legacy”
comprises the long-term benefits to Ontario that will be left behind from the large public
investment that is planned for them. The recent Olympics in London England and Vancouver
each included planning in advance for a lasting disability accessibility legacy.
To learn about the legacy of the 2010 Vancouver Olympics for people with disabilities, visit
http://tourismbc-web.ktx002.com/0810/news/3.html
To learn about the legacy for people with disabilities of the 2012 London Olympics, visit
http://odi.dwp.gov.uk/docs/wor/leg/legacy-full.pdf
On August 28, 2013, the Ontario Government held a carefully-planned and scripted hour-long
news conference for its lead Cabinet minister to unveil its planned legacy for Ontario for the
2015 Toronto Pan/ParaPan American Games. Yet at that high-profile, carefully scripted event,
not a word was said by the Cabinet Minister responsible for these Games, Michael Chan, about
improving long-term accessibility for people with disabilities in Ontario.
The Toronto 2015 Pan/ParaPan American Games take place at the halfway point between 2005,
when the AODA was enacted, and 2025, when Ontario must achieve full accessibility.
Depending on whether the Ontario Government changes course now, these Games will either
show the world that Ontario is on schedule for full accessibility, by being at least halfway there
(with plans to ensure we will finish that journey on time), or it will show Ontario still sluggishly
dragging behind schedule.
Our August 30, 2013 AODA Alliance Update concluded:
"The lead Ontario minister’s failing to even mention much less highlight
disability accessibility as part of the key legacy for these Games sends the wrong
signal at the August 28, 2013 news conference. It calls into question the
Government’s priorities."
This came right on the heels of the embarrassing fact that the Government’s email, inviting the
public, including the AODA Alliance, to attend its August 28, 2013 news conference, was sent in
an inaccessible format. While only a small incident, this was packed with great symbolism to
accessibility advocates.
Our Update stated:
"The Government has earlier referred to a legacy of accessible sports facilities.
Any accessibility legacy must go much further. It must benefit a wide range of
people with disabilities, not just the important needs of those people with
disabilities who engage in sporting activities.
It should apply to all infrastructure, not just sports infrastructure. For example,
with the expected influx of tourists for these Games, including tourists with
disabilities, we need to ensure a substantial legacy of accessible tourism services
and accommodations for people with disabilities, of public transit, taxis, other
transportation services, hotels, restaurants, entertainment, public venues,
sidewalks, all public information and communication including electronic
infrastructure and digital information, and other public services and facilities. We
must ensure that no public money is ever spent to create, perpetuate or exacerbate
barriers against any people with disabilities. The Government should live up to its
two-year-old pledge that all new physical infrastructure, as well as digital
infrastructure, will be disability accessible."
Despite our ongoing months of pressure, the Government has not yet announced a
comprehensive accessibility legacy for the 2015 Games. On October 1, 2013, to fill the gap
created by the Government's inaction, we made public our own proposal for a comprehensive
disability
accessibility
legacy
for
the
Games.
It
is
available
at
http://www.aodaalliance.org/strong-effective-aoda/10012013.asp
In Dr. Eric Hoskins' December 3, 2013 statement in the Legislature to mark the International
Day for People with Disabilities, the Government committed:
“Ontario will also have an opportunity to demonstrate how much we’ve
accomplished in building an accessible province when we welcome the world to
the Pan Am/ParaPan Am Games in 2015. That year, we will also be celebrating
the 10th anniversary of the Accessibility for Ontarians with Disabilities Act. We
will have a real opportunity for the games—in fact, the first fully accessible
games—to leave a lasting legacy when it comes to a more accessible province.
We will seize that opportunity.”
We understand that some initiatives are now underway to produce some kind of limited disability
accessibility legacy. However, as far as we have been able to ascertain, the public transit to the
Games sites are not assured to be accessible. Ample tourism venues such as restaurants, hotels,
etc., are not assured to be accessible.
The 2015 Games provide a wonderful chance to use public spending to leverage the private
sector to produce greater accessibility, at no added cost to the taxpayer. However this required
action to start at least two years before the Games begin. The Government's ongoing delay again
squandered a chance to get Ontario on schedule for full accessibility.
We have not been able to unearth the reason why the Government has not made a comprehensive
plan public up until now for a lasting and strong disability accessibility legacy for the 2015
Toronto Games.
5. Trying to Make Progress During the 2014 Election
In our March 3, 2014 letter to the major party leaders, we sought an election commitment in this
area, as follows:
"D. Ensure Taxpayers' Money is Never Used to Create or Buttress Disability
Barriers
The Government has a promising but largely-untapped additional way to help
ensure that Ontario becomes fully accessible by 2025. It can immediately be fully
deployed within the Government's existing budget.
The Ontario Government spends billions of public dollars each year on capital
and infrastructure projects, and to procure goods, services and facilities for use by
itself or the public. Ontario needs a new, comprehensive, effective strategy to
ensure that no one ever uses Ontario tax dollars to create or perpetuate barriers
against persons with disabilities. This can be done within the existing budget for
infrastructure and procurement.
Even in recent years, public money has unjustifiably been spent to create new
barriers against people with disabilities. For example, the Ontario Government
created the new Presto Smart Card, replete with barriers, for paying public transit
fares.
Moreover, the Ontario Government is heavily investing in the 2015 Toronto
Pan/ParaPan American Games. Yet it has not announced a comprehensive plan
for a disability accessibility legacy. On October 1, 2013, we made public our own
proposal for a comprehensive disability accessibility legacy for the 2015 Toronto
Games, which is available at http://www.aodaalliance.org/strong-effectiveaoda/10012013.asp
We ask your Party to commit to:
11. implement, monitor, enforce and publicly report on a comprehensive strategy
to ensure that public money is never used by anyone to create or perpetuate
barriers against people with disabilities, for example, in capital or infrastructure
spending, or through procurement of goods, services or facilities.
12. ensure that the 2015 Toronto Pan/ParaPan American Games have a strong
disability accessibility legacy. Among other things, it should lead public and
private sector organizations to significantly increase the accessibility of the
infrastructure, services, facilities and goods for serving the public, especially the
tourism market, in the regions that will host the 2015 Toronto Pan/ParaPan
American Games. This should include such things as public transportation, taxis,
hotels, stores, restaurants, tourist sites and other tourism facilities. It should also
leave a lasting legacy by investing in Ontario's parasports system to ensure that
children and young people with disabilities have equal opportunity for
participation in sports and recreation."
The three major parties were united in agreeing that public money should not be used to finance
barriers against persons with disabilities. In her May 14, 2014 letter to the AODA Alliance for
the Liberal Party, Kathleen Wynne wrote:
"D. Ensure taxpayers' money is never used to create or buttress disability barriers
11. We will continue to ensure that taxpayer dollars are not used to create or
perpetuate barriers against Ontarians with disabilities. Our current mandate fully
supports responsible governance and we will continue to pursue objectives that
align with this belief. The Progressive Conservative Party of Ontario has
explicitly called for the elimination of 1/3 of all regulations, which could threaten
enforcement of the AODA. By contrast, the Ontario Liberal Party believes that
greater accessibility means greater opportunity and prosperity for Ontario.
12. On accessibility at the Pan Am/Parapan Am Games, the organizing committee
(TO2015) has developed an Accessibility Advisory Council to give advice on the
development of an accessibility strategy, guidelines and programs. The Council
will also identify and deliver legacy opportunities related to accessibility in this
strategy. Examples of initiatives to date include training all employees and
volunteers on the requirements of the Customer Service Standard as required by
the AODA; focusing on accessibility of infrastructure developed including
meeting applicable accessibility requirements under the Ontario Building Code
and the AODA; and the development of a Transportation Master Plan with input
and advice from the Accessibility Advisory Council as well as ensuring
compliance with the requirements of the Accessibility Standard for
Transportation."
Our May 16, 2014 analysis of the parties' accessibility pledges included the following:
"The Liberal Party does not make the commitment we sought to ensure a strong
disability accessibility legacy for the 2015 Toronto Pan/ParaPan American
Games. In part, the Liberals talk about meeting built environment requirements
under the AODA and Ontario Building Code. Yet there are no comprehensive
built environment accessibility requirements yet created under the AODA, beyond
such things as recreation and beach trails, public parking and new sidewalk curbs.
The new Ontario Building Code accessibility requirements are not sufficient to
ensure built environment accessibility, even if they apply to these structures.
Neither the AODA standards enacted to date nor the Ontario Building Code
sufficiently address our major concern with existing barriers to accessibility in
tourism services and facilities such as hotels and restaurants."
In her May 11, 2014 letter to the AODA Alliance on behalf of the New Democratic Party,
Andrea Horwath wrote:
"Our plan also includes ensuring the Pan Am Games are fully accessible to all
Ontarians. We believe that hosting the Pan Am Games is an ideal opportunity to
leave an accessibility legacy.
D. Ensure taxpayers' money is never used to create or buttress disability barriers.
New Democrats do not support any measure that would weaken accessibility
protections in Ontario. Further, we believe it's the role of government to reduce
barriers, not create more. Public dollars should be spent in ways that promote and
ensure accessibility for all Ontarians and always in accordance with provincial
legislation and standards.
Andrea and the Ontario NDP believe that accessibility for all Ontarians is
important. We are committed to meeting with the AODA Alliance and working
together to ensure disability barriers are never created."
Our May 16, 2014 analysis of the parties' accessibility pledges also stated:
"The NDP goes the furthest of any party to commit to a disability accessibility
legacy for the Toronto 2015 Pan/ParaPan American Games."
In his May 12, 2014 letter to the AODA Alliance on behalf of the Conservative Party, Tim
Hudak wrote:
"Through our Million Jobs Plan, we will be focused on making government
affordable and taking steps that will create jobs and better our day-to-day lives.
For this reason, we support the AODA Alliance’s request to spend tax dollars
wisely and ensure public funds are not used to create new disability barriers.
For example, we found it troubling to learn the current government’s PRESTO
smart card program for paying for public transit was established without meeting
the necessary specifications for accessibility. In this case, the procurement process
failed Ontario’s disabled community while contributing to wasteful government
spending. We believe this scenario could have been avoided with a government
plan that ensures government spends wisely with respect to procuring accessible
public transportation and infrastructure."
6. Recommendations on Ensuring Public Money Is Not Used to Create, Perpetuate or
Exacerbate Barriers
We urge the Independent Review to recommend that:
*#45. The Government should immediately implement, widely publicize and report to the public
on a comprehensive strategy to ensure that public money is never used by anyone to create,
perpetuate or exacerbate barriers against people with disabilities. This should include recipients
of public money expended for example, through Ontario capital or infrastructure spending,
through procurement of goods, services or facilities, or through Government grants or loans of
any sort. As part of this activity, the Government should keep its August 19, 2011 promise to
extend its Ten Year Infrastructure Plan's accessibility requirements to information technology
and electronic kiosks.
*#46. The Government should make it a condition of research grants that it funds or to which it
contributes that people with disabilities should, where feasible and appropriate, be included in
research study as subjects.
*#47. In any Government strategy to ensure that public money is not used to create, perpetuate or
exacerbate accessibility barriers, it is not sufficient for the Government to make it a condition
that a recipient of public money merely obey the AODA and AODA accessibility standards. It
should require that recipients of public money comply with accessibility requirements in the
Ontario Human Rights Code, and where applicable the Charter of Rights. It should require,
among other things, that the recipient organization's specific capital project or goods, services or
facilities be fully disability accessible or require a commitment to remediate these to become
fully accessible by time lines to be set out in the grant, loan or other terms of payment of public
money.
*#48. The Government should immediately announce a comprehensive, effective plan to ensure
that the 2015 Toronto Pan/ParaPan American Games will have a strong disability accessibility
legacy. Among other things:
a) It should lead public and private sector organizations to significantly increase the accessibility
of the infrastructure, services, facilities and goods for serving the public, especially the tourism
market, in the regions that will host the 2015 Toronto Pan/ParaPan American Games. This
should include such things as public transportation, taxis, hotels, stores, restaurants, tourist sites
and other tourism facilities. Among other things, the Government should ensure that no venue is
used for any formal or informal activities related to the Games, including any celebrations, in a
venue that is not fully accessible, and should immediately announce that tit will urge all 2015
Games employees and volunteers not to patronize any establishemnts that are not fully accessible
to people with disabilities during the Games.
b) It should also leave a lasting accessibility legacy by investing in Ontario's parasports system to
ensure that children and young people with disabilities have equal opportunity for participation
in sports and recreation.
*#49. The Government should also make it a condition of transfer payments and capital or other
infrastructure funding to municipalities, hospitals, school boards, public transit providers,
colleges, universities, and transfer partners that these recipient organizations adopt comparable
initiatives to ensure that their procurement and infrastructure spending, and any loans or grant
programs, do not create, exacerbate or perpetuate barriers against people with disabilities. The
Government should make public a resource guide to assist those transfer partners to know how to
effectively implement this requirement.
*#50. The Government should promptly establish a process for monitoring and enforcing the
recommended comprehensive strategy to ensure that public money is not used to create,
perpetuate or exacerbate accessibility barriers. It should not be left to each ministry to do as little
or as much as it wishes to implement Government policy and procedures on this topic.
*#51. The Government should widely and prominently publicize as soon as possible to any
organization that seeks Ontario infrastructure or procurement funds, or any Government funded
or subsidies, loans or grants, that they must prove in their applications that they will ensure that
public money isn't used to create, perpetuate or exacerbate barriers against persons with
disabilities.
*#52. The Government should establish and widely publicize an avenue for the public to report
to the Government on situations where public money is used to create, perpetuate or exacerbate
disability accessibility barriers.
*#53. The Provincial Auditor should audit the Government to ensure compliance with
recommendations on ensuring that public money is not used to create, perpetuate or exacerbate
disability accessibility barriers.
Part VIII. Meeting the Unmet Need to Ensure that All Ontario
Laws Do Not Authorize or Require Disability Barriers
1. Introduction
An important step for Ontario to reach full accessibility by 2025 is to ensure that all Ontario
statutes and regulations are themselves barrier-free. The Government needs to ensure that all
existing laws and any new laws neither require nor mandate the creation or perpetuation of
barriers against persons with disabilities. Among other things, the Government must ensure that
Ontario statutes and regulations incorporate active measures to ensure the full accessibility of the
programs, policies, rights and opportunities that they address.
To achieve this, the Government must do more than simply creating, enacting and enforcing
AODA accessibility standards. The Government must conduct a thorough review of all of its
statutes and regulations for accessibility barriers. Where any are found, these laws must be
amended to ensure they are barrier-free. The Government must also implement new proactive
measures to ensure that new statutes or regulations are carefully screened before they are
enacted, to ensure that they are entirely barrier-free.
To date, we have had the good fortune of receiving great promises from the Government,
followed by years of delay and foot-dragging. It is unjustified for the Government to take so long
to undertake and complete its promised review of all Ontario statutes and regulations for
accessibility issues. This further delays Ontario's progress toward full accessibility. It cannot
blame this delay on the Government's having a minority government from October 2011 to June
2014. This is because we have seen no indication that the Government ever tried to bring a bill
forward to the Legislature during that period to amend any Ontario legislation to fix accessibility
barriers.
In this Part of this brief, we describe the promises received, and the scant progress to date on
keeping them. We conclude with recommendations in this area.
2. The Promise Made to Us
In the 2007 Ontario election campaign, two years after the AODA was enacted, we asked the
parties to pledge to conduct an accessibility review of all Ontario laws. The parties all committed
to this. In his September 14, 2007 letter to us, setting out his party's 2007 election campaign
commitments on disability accessibility, Premier Dalton McGuinty wrote:
"Review all Ontario laws to find any disability accessibility barriers that need to
be removed.
The Ontario Liberal government believes this is the next step toward our goal of a
fully accessible Ontario. Building on our work of the past four years, we will
continue to be a leader in Canada on accessibility issues. For Ontario to be fully
accessible, we must ensure no law directly or indirectly discriminates against
those with disabilities. To make that happen, we commit to reviewing all Ontario
laws to find any disability barriers that need to be removed."
3. Progress Far Too Slow
We spent several years from 2007 to early 2011 trying to get the Government to get started on
keeping this commitment, and to identify which minister and ministry had lead responsibility for
it. For years, we got no answers.
In the face of this protracted Government inaction on this, yet another front, on November 12,
2010 we wrote to Community and Social Services Minister Madeleine Meilleur. We asked what
the Government had done up to that time, and what it planned to do in the final year of that term
in office, on three important 2007 election promises to Ontarians with disabilities, including the
Government’s commitment to address barriers in provincial laws.
We reminded the minister of Premier McGuinty's 2007 election promise to conduct this review
of Ontario laws for accessibility barriers, and then stated:
"We are eager to know what steps your Government has taken on this to date, and
how it plans to fulfil this promise over the next year. Have all Ontario laws,
including all statues and regulations, been reviewed for direct or indirect barriers
against persons with disabilities? If not, when will this be done? If so, who did the
review? What were the results? What plans do you have to introduce legislation to
amend any Ontario legislation or regulations to remove those barriers? Who has
lead responsibility within your Government for keeping this promise? Since this
is a major undertaking, it is important that there be an authoritative official
identified as being in charge of this project.
We have tried without success to find out many times over the past two years who
is in charge of this project, what steps are being taken, and with what progress.
Some two years ago, we gave your Government constructive ideas on how to
carry out this project, and a tool to assist when reviewing Ontario statutes and
regulations for accessibility barriers. We have also offered to provide training on
this to those tasked with reviewing all Ontario statutes and regulations.
We commend your Government for committing that “For Ontario to be fully
accessible, we must ensure no law directly or indirectly discriminates against
those with disabilities.” We would expect, as a result of a comprehensive review
of Ontario enactments, that a package of legislative amendments would need to be
brought forward to the Legislature, to correct any barriers found. We are not
aware of any such package or omnibus bill being tabled with the Legislature for
debate.
In contrast, over two decades ago, in the mid-1980s, the previous Liberal
Government, under Premier David Peterson, brought forward and passed an
omnibus bill to bring Ontario legislation in line with the Charter of Rights, and
especially the equality rights guarantee in section 15 of the Charter. We know of
no comparable omnibus bill being brought forward by any Ontario Government
since then to address disability barriers, in response to Supreme Court rulings on
the Charter’s equality rights guarantee for persons with disabilities.
It is clear to us that the Government has not firmly embedded an effective practice
of screening any new proposed legislation, for disability barriers. This spring your
Government passed Bill 231, an amendment to Ontario election laws. That
legislation bans the use of telephone and internet voting in the 2011 Ontario
election, even though that access technology is permitted and has been
successfully used in municipal elections. If new Ontario legislation were being
effectively screened to prevent barriers against persons with disabilities, that
legislative ban on access technology in the next Ontario election would never
have been brought forward. We state this, noting that only as a result of our
advocacy efforts, your Government amended Bill 231 after it was introduced into
the Legislature, to create a process that might allow that ban on this access
technology to be lifted after the 2011 election."
Minister Meilleur did not answer our letter. As far as we have been able to ascertain, the
Government took no real action on this 2007 election commitment until the 2011 spring, three
and a half years after the commitment was made, and just months away from the October 2011
election.
On April 4, 2011, the Government held a training session for public servants who would, as of
that time, be involved in conducting all or part of this accessibility review of legislation and
regulations. We were delighted that AODA Alliance chair David Lepofsky was invited to give a
speech as part of that training session.
During that session, the Government announced that its target for completing the review of all
legislation was 2015, and for the review of all regulations was 2020.
We promptly objected that those time lines were far too long. Three years later, it turns out that
the Government is not on track for fulfilling the 2015 target for reviewing all Ontario statutes.
We have no word that the Government has even started any review of its regulations.
On July 15, 2011, when we wrote the major parties to seek their 2011 disability accessibility
election commitments, we referred to the time lines for this review that were announced at that
April 4, 2011 training session. We stated:
"These excessive deadlines are 8 and 13 years respectively from the 2007
promise. In contrast, in 1982 the Charter of Rights gave governments three years
to review all legislation for all equality issues."
We asked the parties to commit to the following in the October 2011 election:
"22. complete a review of all legislation for accessibility barriers by 2013, and all
regulations by 2014.
23. introduce into the Legislature, with the intent of passing it, a first omnibus bill
to amend any legislation as a result of this review, by June 30, 2013.
24. amend any regulations that the government deems necessary as a result of the
review by June 30, 2014.
25. designate a minister with lead responsibility for conducting this review."
In his August 19, 2011 letter to us, setting out his party's disability election commitments,
Premier Dalton McGuinty promised:
"We are committed to completing our review of all legislation for accessibility
barriers and, through the work of a central team, we will ask ministries to report
on their progress as part of their annual performance plans. We will also pursue
strategies to address defined barriers in an efficient and suitable manner."
Four months later, and three months after the 2011 election, on December 2, 2011, we wrote to
Government Services Minister Takhar. We understood that his Ministry then had lead
responsibility for this review of Ontario laws for accessibility barriers. We asked, among other
things, for his plans to complete this review of Ontario laws for accessibility barriers. On January
18, 2012, the minister responded in writing as follows:
"The government is also committed to ensuring that no Ontario law creates accessibility barriers
to people with disabilities. As such, we have committed to reviewing all of our legislation and
regulations to identify and remove any such barriers. In April 2011, all ministries participated in
training for multidisciplinary teams on how to use the OPS Inclusion Lens to review laws for
accessibility barriers. Ontario has over 750 acts and more than 1500 regulations. We recognize the
desire to proceed promptly, and we are committed to conducting a review of all legislation.
Currently, the OPS Diversity Office and the Ministry of the Attorney General are working
together to support a co-ordinated approach to this legislative review. Timelines for this review
will be established early in the new year, following joint meetings of my ministry and the Ministry
of the Attorney General."
His commitment on behalf of the Government "…to ensuring that no Ontario law creates
accessibility barriers to people with disabilities" was important and categorical. The same is true
for his commitment "to reviewing all of our legislation and regulations to identify and remove
any such barriers." (Emphasis added)
We had asked for the Government's delayed review of all Ontario legislation and regulations to
be speeded up. However, the Minister's letter merely stated:
"Timelines for this review will be established early in the new year, following
joint meetings of my ministry and the Ministry of the Attorney General."
We did not receive a public notification of any such time lines until March 2013, as indicated
further below. The minister's letter said nothing about our proposal that the Government bring to
the Legislature an omnibus bill within two years, to address barriers in legislation that have been
found in Ontario legislation by then as a result of this legislative review. Unless the Government
uses an omnibus bill to correct accessibility barriers that it finds in different laws, it will have to
amend each statute by a separate bill. It will be virtually impossible for a Government to secure
enough time in the Legislature to introduce, debate and pass a blizzard of different bills, each to
individually fix barriers in a separate piece of legislation.
As noted earlier, in 1987, the Legislature passed an omnibus bill to amend a wide range of
different Ontario statutes, to bring them in line with section 15 of the Charter of Rights. That
provision guarantees equality rights, including, among other things, equality for people with
disabilities.
We have tried for years to do whatever we can to assist the Government with this project. We
have provided training on five different occasions to teams of public servants that we were told
were taking part in some part of this legislative review. When we conducted training within the
past two years to Ontario's Legislative Council Office (responsible for drafting statutes and
regulations for Ontario) it was evident that this was the first training they had ever received on
this topic.
As well, AODA Alliance chair David Lepofsky co-authored a law journal article describing how
to review legislation and regulations for accessibility issues. Although it was published in 2009,
we made a copy of it available to public officials in the Government well before it was
published. (See David Lepofsky and Prof. Randal Graham "Universal Design in Legislative
Drafting – How To Ensure Legislation is Barrier-Free for People with Disabilities" (2009), 27
National Journal of Constitutional Law 129-157.)
Just under six years after this promise was first made, on March 21, 2013 Deputy Minister of
Government Services Kevin Costante wrote us, to provide the most thorough report on progress.
He wrote:
"1.
Accessibility Legislative Review
I understand that you have concerns about the timelines for this review and that
you would like to see progress sooner. We are moving forward with a focused
approach that we feel will have the greatest and most immediate impact on the
lives of people with disabilities by prioritizing the review of high impact
legislation. I have spoken to the Deputy Attorney General, and he, like me, is
committed to completing this phase of the review by December 2014.
The Ministry of the Attorney General (MAG) has the lead for this phase of the
review under the leadership of the Director of the Justice Policy Development
Branch. MAG has fine-tuned the tools and will provide training to ministry legal
counsel and accessibility leads on the revised tools and process beginning in early
April 2013. Following the review of their legislation, ministries and/or MAG will
seek to introduce amending legislation in the Legislative Assembly by December
2014, if necessary. It is important that responses to similar barriers be addressed
in a consistent fashion and that is why the review is being coordinated in this way.
I am attaching the list of 52 statutes that have been identified for this phase of the
review. I understand that MAG has shared this list with you as well."
According to that correspondence, the Government is now scrutinizing a mere 51 of its 750
statutes, chosen for their high importance for persons with disabilities. The Government aims to
have the review of those statutes completed by the end of 2014.
In a related March 21, 2013 email to us from a Government lawyer overseeing the legislative
review, we were advised as follows:
"We have consulted with our ministry partners to develop a list of high impact
statutes that meet the following criteria.
a.
Statutes that affect persons with disabilities directly;
b.
Statutes that provide for the delivery of widely applicable services or
programs;
c.
Statutes that provide benefits or protections to individuals; or
d.
Statutes that affect a democratic or civic right or duty."
Some time later in 2013, the Government publicly posted a public announcement with details
about this review process. As far as we can tell, this was the Government's first public statement
about the specifics of this review of Ontario laws. On its website the following was posted:
"The Ontario Public Service is conducting an Accessibility Legislative Review to
remove any potential barriers in Ontario statutes to persons with disabilities.
Between 2013 and the end of 2014, 13 ministries will review 51 statutes and will
consider steps to remove any barriers that are identified.
Reviewing Ontario statutes for accessibility
The OPS is taking a leadership role in accessibility by working to build a more
accessible Ontario. As part of this effort, the OPS is conducting an Accessibility
Legislative Review. The goal of the review is to identify and consider steps to
remove any potential barriers in Ontario statutes to persons with disabilities.
Statutes that are considered to have the highest impact on persons with disabilities
will be reviewed first. These statutes are considered high impact because they
affect persons with disabilities directly, provide for the delivery of services to a
large group, provide benefits or protections or affect democratic or civil rights.
Between 2013 and the end of 2014, 13 ministries will review 51 statutes and will
consider steps to remove any barriers that are identified.
Ontario statutes being reviewed for accessibility
Ministry of the Attorney General
• Blind Persons’ Rights Act
• Compensation for Victims of Crime Act
• Election Act
• Employers and Employees Act
• Family Law Act
• Human Rights Code
• Interjurisdictional Support Orders Act, 2002
• Juries Act
• Legal Aid Services Act, 1998
• Limitations Act, 2002
• Public Guardian and Trustee Act
• Real Property Limitations Act
• Substitute Decisions Act, 1992
• Trustee Act
• Victims’ Bill of Rights, 1995
Ministry of Children and Youth Services
• Child and Family Services Act
• Provincial Advocate for Children and Youth Act, 2007
Ministry of Community and Social Services
• Family Responsibility and Support Arrears Enforcement Act, 1996
• Ontario Disability Support Program Act, 1997
• Ontario Works Act, 1997
• Services and Supports to Promote the Social Inclusion of Persons with
Developmental Disabilities Act, 2008
Ministry of Consumer Services
• Consumer Protection Act, 2002
Ministry of Economic Development, Trade and Employment
• Accessibility for Ontarians with Disabilities Act, 2005
Ministry of Education
• Education Act
Ministry of Finance
• Ontario Guaranteed Annual Income Act
Ministry of Government Services
• Freedom of Information and Protection of Privacy Act
• Government Services and Service Providers Act (ServiceOntario), 2012 (Note:
Not yet in effect)
• Highway Traffic Act, Part III
• Municipal Freedom of Information and Protection of Privacy Act
Ministry of Health and Long-Term Care
• Health Care Consent Act, 1996
• Health Insurance Act
• Health Protection and Promotion Act
• Home Care and Community Services Act, 1994
• Homes for Special Care Act
• Long-Term Care Homes Act, 2007
• Mental Health Act
• Ontario Drug Benefit Act
• Personal Health Information Protection Act, 2004
• Public Hospitals Act
Ministry of Labour
• Employment Standards Act, 2000
• Occupational Health and Safety Act
• Workplace Safety and Insurance Act, 1997
Ministry of Municipal Affairs and Housing
• Building Code Act, 1992
• Elderly Persons’ Housing Aid Act
• Commercial Tenancies Act
• Housing Services Act, 2011
• Municipal Elections Act, 1996
• Residential Tenancies Act, 2006
Ministry of Tourism, Culture and Sport
• Retirement Homes Act, 2010 (Ontario Seniors' Secretariat)
Ministry of Transportation
• Highway Traffic Act, Part IV
• Metrolinx Act, 2006
• Public Vehicles Act"
This information has been posted at http://www.ontario.ca/government/ontario-statutes-beingreviewed-accessibility
In the recent Ontario election we once again tried to speed up action on this front. In our March
3, 2014 letter to the major party leaders, we sought the following commitment, in the event of a
2014 spring election:
"G. Complete the Overdue Promised Review of All Ontario Laws for
Accessibility Barriers
In the 2007 election, your parties committed that if elected, they would review all
provincial laws for accessibility barriers. The current Government did not start
this full review until the 2011 spring. In contrast, back in 1982 the Charter of
Rights gave governments three years to review all legislation for all equality
issues, not just disability equality.
We ask your Party to commit to:
17. complete a review of all legislation for accessibility barriers by 2015, and all
regulations by 2016, and to introduce into the Legislature, with the intent of
passing it, a first omnibus bill to amend any legislation as needed a result of this
review, by the end of 2014, with a further omnibus bill to be introduced at the
review's completion by July 1, 2016.
18. amend any regulations that the government deems necessary as a result of the
accessibility review, by the end of 2016."
In her May 14, 2014 letter to the AODA Alliance, Liberal leader Kathleen Wynne appear to
possibly have confused the review of all Ontario laws, which was promised in 2007, with the
AODA's requirement of this Independent Review of the AODA's implementation and
enforcement. She wrote:
"G. Complete the overdue promised review of all Ontario laws for accessibility
barriers
17. In September 2013, we appointed Dean Mayo Moran to review the AODA.
This follows the first review of the act conducted by Charles Beer, completed in
2010. His review examined the process for developing accessibility standards,
municipal accessibility advisory committees and the government’s administration
of the act. When our government introduced the AODA, we also required regular
reviews to ensure the act remains effective.
Dean Moran has completed her public consultations but continues to accept
written submissions from the stakeholder community. My government responded
to the AODA Alliance’s request to move the deadline of the Customer Service
Standard to ensure that stakeholders had adequate time to also submit their
feedback to Dean Moran’s review. Dean Moran has committed to submit her
review by October 1, 2014 – one year from commencing her review.
In addition to the review of the AODA, the government is currently conducting a
legislative review with the goal of identifying and considering steps to remove
any potential barriers in Ontario statutes. In the current phase of the review, 13
ministries are reviewing 51 high impact statutes. The list of high impact statutes
includes statutes that affect persons with disabilities directly, provide for the
delivery of services to a large group, provide benefits or protections or affect
democratic or civil rights. This phase of the review will be complete by the end of
2014. We commit to addressing the findings of the review and continuing to
review additional Ontario statutes to remove any potential barriers.
18. We commit to making amendments to regulations to remove accessibility
barriers as required based on the findings of the current review and the review of
additional Ontario statutes going forward."
4. Reflections
In his September 14, 2007 letter to us, Premier McGuinty called this review of Ontario laws for
accessibility barriers "the next step toward our goal of a fully accessible Ontario." Almost seven
years later, this goal appears to still be years away before it is completed. The 2015 deadline for
reviewing all legislation which the Government announced on April 4, 2011, seemed at the time
to be a signal for inexcusable delay. Now it seems doubtful that even that leisurely deadline will
be reached.
If the Government succeeds in reviewing the 51 important statutes by the end of 2014, that
would leave 2015 for the Government to review all of some 700 other Ontario laws, in order to
reach its 2015 deadline to complete its review of all statues.
We have no indication that any review of Ontario's 1,500 regulations has started. Having set
2020 as the deadline to complete the Government's review of all regulations, this was and is a
strong signal to public servants to simply forget about it. By the time the Government gets
around to starting that review, current public servants who might otherwise be responsible to
take part in that review will likely have moved on to other jobs, or retired.
The Government has not brought to our attention a single law in which it found barriers, and
which it has fixed, in the intervening seven years. We have had to lobby the Government
numerous times, to get any real action started on keeping this commitment.
Once action started on keeping this commitment, we had to again advocate vigorously against
the counterproductive idea that each ministry should simply be left to figure out how to fix
barriers they find in their laws, e.g. by bringing to the Legislature piecemeal their own legislative
amendments where needed. It is very hard for a minister to get a chance to bring any bill before
the Legislature. There is fierce competition among ministries, and within ministries, for those
scarce opportunities. We anticipated that most ministers would not want to use those rare
opportunities for bringing a bill to the Legislature, on an accessibility amendment, when each
minister has their own agenda of other legislation that they want to get enacted. Unless a single
omnibus amending bill is brought forward to address a range of different legislative barriers, this
review of Ontario laws for accessibility will be largely pointless.
As but one indication of the internal disarray on this issue, between 2011 and 2013, the
Government re-arranged its internal plans for conducting this Independent Review. Initially, the
Ministry of Government Services had the lead. Later this was shifted, in whole or in part, to the
Ministry of the Attorney General.
As noted earlier, when we provided training for Ontario's legislative counsel and other officials
to take part in this exercise over the past three years, we found for the most part that ours was the
first training they had received on this important topic. This all signals here again, as in too many
other contexts described in this brief, that the Government has taken a lax approach to this
accessibility commitment which marginalizes the looming 2025 deadline for full accessibility.
For example, in 2007, the Government should have immediately alerted its own Office of
Legislative Counsel that it had committed to this review. It should have then directed its
legislative counsel to key an eye out for disability accessibility issues whenever it works on new
legislation or regulations, or on amendments to existing legislation or regulations. We have no
indication that the Government did that.
The longer laws can remain on the books that require or permit disability accessibility barriers to
remain in effect, the longer it will take Ontario to reach its goal of full accessibility. The longer it
takes the Government to embed accessibility in its process of developing new laws and revising
old ones, the longer it will take to develop expertise in how to avoid and prevent accessibility
problems.
Two examples illustrate the harm that persons with disabilities suffer as a result of the
Government's unjustified delay and lethargy in fulfilling this promise. First, in 2010 the
Government's failure to act sooner on this commitment led the Legislature to erroneously include
in Bill 231, addressed in the next Part of this brief, an impermissible legal bar to the use of
certain accessible adaptive technologies -- technologies that would have made the voting process
more accessible for voters with disabilities. Had the Government been effectively screening its
new proposed legislation for accessibility barriers, that provision would not have been
introduced in the Legislature.
The second example is described in Part III of this brief. The first accessibility standards enacted
under the AODA, the Customer Service Accessibility Standard, erroneously mandated a barrier
against persons with disabilities. A proper screening of legislation and regulations for
accessibility barriers should have also caught this barrier. The Customer Service Accessibility
Standard wrongly let obligated organizations require a customer with a disability in some
circumstances to bring with them a support person, as a condition of being admitted to their
premises. That accessibility standard also wrongly let obligated organizations charge the
customer with a disability a second admission fee for the support person whom the obligated
organization forced the customer to bring with them.
5. Recommendations on the Government's Review of Ontario Statutes and Regulations
for Accessibility Barriers
We urge this Review to recommend that:
*#54. The Government should complete a review of all legislation for accessibility barriers by
2015, and all regulations by 2016.
*#55. The Government should introduce into the Legislature a first omnibus bill to amend any
legislation as needed a result of this review, by the end of 2014 (to address barriers that the
Government's legislative review has already unearthed), with a further omnibus bill to be
introduced at the review's completion by July 1, 2016.
*#56. The Government should amend any regulations the Government deems necessary as a
result of the review by the end of 2016.
*#57. The Government should institute a formal process for ensuring that in future, no bill is
introduced into the Legislature until Legislative Counsel certifies that it has been reviewed for
disability accessibility barriers, and it will not mandate, permit or create, perpetuate or
exacerbate barriers against persons with disabilities. The same certification requirement should
apply for regulations that are presented to the Ontario Cabinet or other body authorized to enact
regulations under Ontario legislation.
*#58. The Government should report to the public by the end of 2014, the end of 2015 and the
end of 2016 on its progress toward meeting the deadlines for reviewing all legislation and
regulations for accessibility barriers. These reports should give specifics on what the
Government has done and plans to do, whether by legislative amendments or other actions, to
address accessibility barriers it has discovered in this review.
*#59. By September 1, 2014 the Government should make public a comprehensive plan for
ensuring that it completes its review of all legislation and regulations for disability accessibility
barriers in accordance with this Independent Review's recommendations.
*#60. By October 1, 2014, the Government should implement and announce a permanent
screening process to ensure that new bills introduced into the Legislature and new proposed
regulations brought to Cabinet or other body with regulation-making power, have been certified
that no new barriers are being created, and none are being perpetuated, in or under the proposed
enactment.
Part IX. Our 15-Year Campaign to Make Municipal and Provincial Elections
in Ontario Fully Accessible to Voters and Candidates with Disabilities
1. Introduction
The opportunity for people with disabilities to fully participate in municipal and provincial
elections in Ontario, as voters and as candidates, is fundamental in a democracy. If we cannot
use this avenue for having our voices and concerns influence those who govern us, we have been
permanently disempowered and disenfranchised.
We focus special attention in this brief to our often-frustrated efforts at ensuring full elections
accessibility for persons with disabilities. It provides a good illustration of the broader problems
we have faced, in our advocacy for the AODA's effective implementation and enforcement.
Because it involves, among other things, our efforts to get Ontario's elections legislation
reformed, it allows for a focused look at what specific actions the Government was prepared to
take in the face of undisputed accessibility barriers in an important part of Ontario life, the
elections process.
For far too long, voters and candidates with disabilities have faced barriers when trying to
exercise their fundamental legal and constitutional rights. Among the many accessibility barriers
in the election process, two are especially problematic. First, we have never had an effectively
enforceable, iron-clad guarantee 100% honoured at the front lines, that all polling stations will be
fully barrier-free with no physical accessibility barriers.
For example, the February 5, 2010 Toronto Sun reported that a polling station in the February 4,
2010 Toronto provincial by-election was inaccessible to voters with disabilities. Making this
incident worse, Elections Ontario initially denied that the polling station was inaccessible.
In the 2014 Ontario election, the June 5, 2014 on-line Toronto Star reported that a Toronto area
polling station, to be used on June 12, 2014 voting day, required use of an elevator whose 33inch-wide door was too narrow for some wheelchairs and scooters. When that same location was
used in a 2012 Ontario by-election, a voter with a disability reported this barrier to Elections
Ontario. Elections Ontario nevertheless decided to use it again in the 2014 election, knowing of
the problem with the elevator door width.
Second, the requirement to mark one's own paper ballot creates a barrier for voters with vision
loss, dyslexia, or others who, due to disability, cannot independently mark their own ballot in
private and verify their choice. We have pressed for voting options for these voters that fully
guarantee the right to mark one's own ballot, to do so in private, and to verify one's selection,
principally telephone and internet voting.
These barriers are illegal, unfair and bad public policy. They benefit no one. Voters and
candidates with disabilities in provincial and municipal elections have a fundamental right to
full, equal and barrier-free access to those elections, including the right to vote, to receive
accessible campaign information from candidates and parties, and to run for office.
This fundamental democratic right has ample foundation including:
a) Section 3 of the Charter of Rights guarantees to every adult citizen the right to vote and run
for office in provincial elections.
b) Charter s. 15’s guarantee of equality rights to persons with disabilities.
c) The right to equal treatment with respect to services and facilities guaranteed by the Ontario
Human Rights Code; and
d) The AODA's requirement that Ontario become fully accessible to persons with disabilities by
2025.
Comprehensive, enforceable and effective legislation is needed especially because voters with
disabilities cannot be expected to fight these barriers one at a time. If a polling station and/or
vote-casting is inaccessible, a human rights or Charter case, fought long after the fact, cannot
restore to that voter the right to fully participate in an election which has already been completed.
In 2009, the Information and Communication Standards Development Committee, appointed
under the AODA, reinforced the pressing need for effective laws in this area. It recommended
that legislative reforms are needed to address barriers to full participation in elections that
confront persons with disabilities. The need for a new legislative initiative was also reinforced by
the Premier’s 2007 election pledge to review all provincial legislation for accessibility barriers,
addressed in Part VIII of this brief.
If Ontario is to become fully accessible by 2025, it must, among other things, ensure that
municipal and provincial elections become fully accessible for voters and candidates with
disabilities by no later than 2025. At present, municipal and provincial elections in Ontario are
far from barrier-free. There is no effective plan now in place to ensure that Ontario ever achieves
fully accessible provincial or municipal elections at any future time. The barriers are well known.
The solutions which the Ontario Government, including Elections Ontario, have tried in the past
have been amply proven to be inadequate. The result has been, and will continue to be, a serious
undermining of Ontario's democracy, until this problem is fixed.
The Ontario Government must lead us to fully accessible provincial and municipal elections. The
sensible solution that we have pressed for years without success is for the Ontario Government to
tackle both municipal and provincial elections at the same time. Persons with disabilities face the
same barriers in each instance. The solutions are the same in each case. Yet elections
accessibility continues to be addressed in isolated silos in the Ontario Government, to the
detriment of Ontarians with disabilities. It is wasteful, and delays progress, for the Government
to require the same barriers to be separately tackled in the provincial and municipal levels, and
separately in each municipality.
The Government enacted two separate laws, one in 2009 to address municipal elections, and one
in 2010 to address provincial elections. Experience since then proves that they were not
sufficient.
In this Part of this brief, we review what actions have been attempted since 2005, offer
reflections on the poor progress to date and propose recommendations for reform. We conclude
that for Ontario to become fully accessible by 2025, as the AODA requires, one important
requirement is that new legislation must be enacted to ensure that municipal and provincial
elections become fully accessible and barrier-free to voters and candidates with disabilities.
Ontario Government action to date on its promises regarding election accessibility has been
inadequate to ensure fully accessible municipal and provincial elections for voters and candidates
with disabilities. We propose recommendations to solve this problem.
2. Progress on Elections Accessibility Since 2005
a) Overview
In the 2007 election the governing Ontario Liberal party promised to implement an accessible
elections action plan. Premier Dalton McGuinty's September 14, 2007 letter to us, setting out his
accessibility commitments in the 2007 Ontario election, committed:
"Develop an action plan to make provincial and municipal elections fully
accessible to voters.
We have just released guides on how to make election communications materials
accessible and how to make all candidates meetings accessible. A third guide will
be released in October on how to make constituency offices and campaign offices
accessible. In addition, we will commit to developing an action plan to make
elections fully accessible to voters with disabilities."
During the Liberal Government's second term in office, from 2007 to 2010, it enacted two
statutes that included provisions to improve accessibility of elections in Ontario. First, in late
2009, the Government included modest disability accessibility amendments to Ontario's
municipal elections legislation in an omnibus bill, Bill 212. We were unable to get any material
changes to those before that bill was passed.
Second, in May 2010, the Legislature enacted Bill 231, to modernize provincial elections. Bill
231 initially included extremely weak disability accessibility provisions. We mounted a major
lobbying effort that led to very modest improvements to the bill, addressed further below.
Taken together, these reforms do not ensure and have not achieved fully accessible provincial or
municipal elections. It was understood that the Government's 2007 election pledge of a disability
accessibility elections action plan was to go further than these bills. Yet no such plan was
announced since the 2007 Ontario election.
b) Bill 212 and the Accessibility of Municipal Elections
On October 27, 2009, without first consulting with us on municipal elections accessibility, the
Government introduced Bill 212, the “Good Government” bill, into the Legislature for first
reading. This massive bill included amendments to a wide array of different laws. Among these,
Minister of Municipal Affairs and Housing James Watson included amendments to legislation
governing municipal elections, to try to remove some of the recurring barriers that impede voters
and candidates with disabilities.
Bill 212 proposed to amend municipal elections legislation to require that:
a) A municipal clerk, responsible for conducting a municipality's election must have regard to
the needs of voters and candidates with disabilities.
b) Within 90 days after voting day in a regular election, the municipal clerk must submit a report
to that municipality's council about the identification, removal and prevention of barriers that
affect voters and candidates with disabilities.
c) In choosing locations of voting places, the municipality's clerk must ensure that each voting
place is accessible to voters with disabilities.
d) A Candidate's election expenses, for purposes of election finance restrictions, do not include
expenses that a candidate with a disability incurs, that are directly related to the disability, and
that would not have been incurred but for the election to which the expenses relate.
Those amendments set no accessibility standards. They left it to each municipality to reinvent the
accessibility wheel.
Shortly after Bill 212 was introduced for First Reading, Municipal Affairs and Housing Minister
James Watson’s office told us about it. We sent a delegation to meet with the Municipal Affairs
Minister on November 2, 2009.
We commended the Government for proposing to legislate in this area, but expressed serious
concerns that the proposed amendments were very weak. The Minister invited us to send a short
list of proposed amendments within two weeks.
On November 18, 2009, we wrote Minister Watson to propose a rushed list of amendments. Our
modest but constructive amendments included the following:
"(8) The Act is amended by adding the following section:
Electors and candidates with disabilities
12.1 (1) A clerk who is responsible for conducting an election shall ensure that
the election is fully accessible to electors and candidates with disabilities, for the
purpose of promoting their full participation in that election, and without limiting
the generality of the foregoing, shall:
a) Make public no less than six months before the date fixed for the election the
proposed locations for voting places, including posting this information on an
internet site that is accessible to persons with disabilities, and shall invite public
feedback on whether these proposed locations are sufficiently accessible;
b) Establish and publicize an elections accessibility hotline during the period
before and during voting day, for voters and candidates with disabilities to give
feedback on proposed locations for voting places, and to give feedback and
present inquiries on any accessibility problems;
c) Review the proposed locations of voting places in light of feedback received
and make a final determination no later than 30 days before the election of the
location of polling places;
d) In any event, ensure that all advanced polling locations of voting places are
fully accessible to electors with disabilities, in accordance with subsection (2);
e) Ensure that all ballots are printed in large font; (get precise details from CNIB)
f) Ensure that an accessible voting machine will be available to enable voters who
cannot read printed ballots, or who cannot independently mark a printed ballot, to
independently and privately mark their ballot and verify their selection, at one
advanced polling location on all advance polling dates, and at one location on the
date of the election, such location to be as central as possible, and to be publicized
in advance of those voting dates;
g) Ensure that the Clerk’s office is accessible to persons with disabilities, and
provides TTY services for callers with hearing loss.
(2) In establishing the locations of voting places, the clerk shall ensure that each
voting place is fully accessible to electors with disabilities, including, without
limiting the generality of the foregoing, that:
a) there is unobstructed level access to a plainly visible public entrance to the
building in which the voting place is to be located, without needing to ascend or
descend any stairs, and that there is level access within 25 meters from the road to
that entrance to that building;
b) There is level unobstructed access from the accessible entrance to the building
to the voting place within the building, without needing to ascend or descend any
stairs;
c) Any doorway from the outside of the building, and inside the building on the
route to the voting place within the building is sufficiently wide to enable a person
using a mobility aid to pass through;
d) A building where a voting place is to be situated is, to the extent feasible,
located within 100 meters of a regular route stop for an accessible public transit
vehicle on a conventional bus route, and within 100 meters of designated
accessible parking for persons with disabilities;
e) An elector need not travel more than 50 meters after entering the building to
reach the voting place within the building;
f) Any walking route to access the voting place will be unobstructed, including
being free of any signs;
g) The voting place will have sufficient lighting to accommodate the needs of
persons with low vision.
Report
(3) Within 90 days after voting day in a regular election, the clerk shall submit a
report to council and to the Minister of Municipal Affairs and Housing, and shall
post on the municipality’s internet site in a format that is accessible for persons
with disabilities, about the identification, removal and prevention of barriers that
affect electors and candidates with disabilities, which shall include:
a) The steps that the Clerk took to ensure that the election was accessible for
electors and candidates with disabilities;
b) A survey of candidates and electors with disabilities on any barriers or
difficulties they experienced when taking part in the election;
c) A summary of any complaints or feedback received from electors or candidates
with disabilities during the election regarding the accessibility of the election, and
steps taken to address these; and
d) Recommendations of any steps that need to be taken to ensure that the next
election will be fully accessible to electors and candidates with disabilities.
(4) The Minister shall make public in an accessible form on an internet site the
reports under subsection 3 that he or she receives, and shall submit a report to the
Legislature no more than six months after the election on barriers which electors
or candidates with disabilities encountered during the election, and
recommendations on any steps that will ensure that the next election will be fully
accessible to persons with disabilities."
The Legislature passed Bill 212 on December 3, 2009. We later learned from the Minister’s
office that all of our proposals were rejected. The omnibus bill's fast track made it difficult for
amendments to be considered. We were told, however, that the Government would be open to
reconsider this issue after the fall 2010 municipal elections. We are aware of no further
consideration of elections accessibility in that Ministry after the October 2010 municipal
elections. The Ministry never followed up with us on any provincial action since these
amendments were passed just under five years ago.
We wrote the Minister a follow-up letter on December 15, 2009. In it, we repeat in detail our
concerns regarding the weak amendments in Bill 212. We also urged the Government to try to
implement as many of our proposed amendments as possible for the 2010 election, even if those
amendments were not incorporated into law. Finally, we urged the Minister and his Government
to include further disability accessibility requirements in Bill 231, the proposed amendments to
Ontario's Elections Act, addressed further below. The Government did none of this, as far as we
were ever told.
Shortly after the 2011 election, on December 3, 2011, we wrote to Municipal Affairs and
Housing Minister Kathleen Wynne. We asked her to commit, among other things, to:
"Implement effective measures to ensure accessibility of municipal elections to
voters and candidates with disabilities."
In Minister Wynne's January 17, 2012 response to us, she wrote:
"At this time, this ministry continues to monitor comments received by the public
and will take them into consideration."
Municipal Affairs Minister Wynne indicated no specific plans or time frame for action. She
referred to the fact that local governments are responsible for operating their local elections. Yet
the Ontario Government has oversight over the entire process and can pass legislation to set
mandatory accessibility requirements. She also stated:
"Our government will continue to engage the municipal sector through policy
discussions and initiatives, such as the EnAbling Change Partnership Program.
Such initiatives build awareness and support effective implementation of the
standards under the Accessibility for Ontarians with Disabilities Act, 2005."
We have heard nothing further on municipal elections accessibility from the Municipal Affairs
and Housing Ministry since that letter.
c) Bill 231 - An Unsuccessful Solution to Barriers in Ontario Elections
(i) The Lead-up to Bill 231 -The Select Committee of the Legislature on
Elections
After the 2007 election, we tried without success to engage the Government in substantive
discussions on election accessibility reform. No minister was identified for us as having
responsibility for this topic, insofar as provincial elections were concerned.
In 2009, a Select Committee of the Legislature looked into ways to modernize Ontario elections.
It did not hold public hearings or invite presentations from the public. We inadvertently learned
about its work.
As a result of our vigorous lobbying efforts, we secured an opportunity to make a presentation to
the Select Committee on Elections on April 28, 2009. As far as we know, we were the only
community group that was given an opportunity to appear before that Select Committee. We
submitted a brief and made practical suggestions on elections accessibility reforms. We made it
clear to the Select Committee that much more needed to be done to ensure accessibility of
elections for voters with disabilities.
The Select Committee rendered a report proposing elections reforms. Its proposals on
accessibility reforms were far too tepid. They were not sufficient to ensure accessible elections.
After this, despite specific 2007 election promises to our coalition on election accessibility, and
despite our repeated efforts to engage the Government in substantive discussions on this issue,
the Government did not consult us on what it should include in elections reform legislation
arising from the Select Committee's report. The Government did not even alert us that it was
developing amendments to the Elections Act on disability accessibility, in response to the Select
Committee's report. It did not solicit any views from us on this topic.
(ii) The Weak and Ineffective Bill 231 is Introduced In the Legislature
In late 2009, we accidentally stumbled on information to the effect that the Government had
introduced Bill 231 into the Legislature. The Government did not notify us about it. Bill 231
aimed at modernizing Ontario elections.
As initially drafted, this bill did little of any consequence for persons with disabilities. Bill 231
did nothing to ensure that polling stations are located in fully accessible locations.
As originally drafted, Bill 231 would permit Elections Ontario to deploy an accessible voting
machine which it had already field tested, to assist voters who cannot mark their own paper
ballot. However Bill 231, as originally drafted, did not require Elections Ontario to deploy any
accessible voting machines. Even if Elections Ontario decided to deploy any of them, it did not
require that they be deployed in every riding. They could only be deployed during advance polls,
not on voting day. They could only be used in a Returning Office, i.e. one or two venues per
riding.
The original version of Bill 231 would have made it illegal for Elections Ontario to use any
network-connected accessible voting technology, such as telephone and internet voting. It is, to
us, unheard of for legislation to ban an accessible technology that can remove barriers impeding
voters with disabilities.
(iii) Our 2010 Submissions to the Legislature's Standing Committee on How
to Improve Bill 231
We successfully pressed for the Legislature to hold public hearings on Bill 231. Drawing on our
community organizing experience, we rallied individuals and organizations within the disability
community to come forward to make depositions. They did so in impressive numbers.
On March 17, 2010, we submitted a detailed brief on Bill 231 to the Legislature's Standing
Committee on the Legislative Assembly. We identified our serious concerns with the bill and
recommended amendments. Our brief summarized:
“The intention behind Bill 231 is laudable. However, its provisions on disability
accessibility are extremely weak and limited. Unless substantially strengthened, it
will not ensure fully accessible elections for voters with disabilities at any time in
the future.
We offer a series of recommendations to strengthen this bill to:
a) make it effectively ensure the removal and prevention of all barriers impeding
voters and candidates with disabilities in provincial elections;
b) make comparable provision requiring removal and prevention of the barriers
which impede voters and candidates with disabilities in municipal elections.
These are typically the same barriers as arise in provincial elections;
c) provide effective monitoring and enforcement to ensure that there is full
compliance with these accessibility requirements.”
Our brief went on to provide a detailed critique of Bill 231, and to offer constructive
improvements. We here highlight our key points.
Bill 231 as originally drafted gave Elections Ontario sweeping power to exempt itself from a
range of the Elections Act's requirements without sufficient safeguards. For example, it wrongly
let Elections Ontario exempt itself from the Elections Act's minimal accessibility requirements. It
did not require that when Elections Ontario exempts itself from an Elections Act requirement, it
ensures that this doesn't further undermine elections accessibility.
On Bill 231's provision permitting Elections Ontario to deploy an accessible voting machine, our
March 17, 2010 brief stated:
"This provision suffers from serious flaws. It does very little for persons with
disabilities. First and foremost, it merely permits Elections Ontario to use
accessible voting machines. It does not require Elections Ontario to use any
accessible voting machines. Under it, no accessible voting machines need ever be
deployed. This falls far short of the requirements in the AODA, the Charter of
Rights and the Human Rights Code to ensure barrier-free voting for voters with
disabilities.
This is especially troubling since the current Government has made no
commitment to fund the deployment of accessible voting machines. Elections
Ontario has had a prototype accessible voting machine designed, tested and
available for over one year. Elections Ontario reported to us that it is priced at
about $11,000 per machine. To install only one of these machines in each Ontario
riding during a general election would cost over $1,000,000. Absent a clear
Government commitment to provide this technology and to fund it, and absent
any mandatory language in this legislation to require its deployment, there is no
reason for voters with disabilities to have any confidence that it will be widely
deployed.
Second, this provision is far too restrictive on the kind of accessible voting
technology that can be deployed. It seems almost tailor-made to permit the
specific machine that Elections Ontario has commissioned from one supplier. The
bill should give far more latitude for the technology that can be used to enable all
voters with disabilities to vote independently and to verify their vote. For
example, this provision would not allow, even on a trial basis, a far lower cost
method for a great many voters with disabilities to overcome the barriers they
now face, i.e. a secure system for over-the-phone voting. Where this provision
would impede the adoption of other less-expensive and better technology for
accessible voting for persons with disabilities, this provision would run afoul of
the Charter of Rights’ guarantees of equality to persons with disabilities (s. 15)
and the right to vote (s.3).
Third, this provision does not adequately specify the level of accessibility that the
voting machine should provide for voters with disabilities. It should specify in
non-exhaustive terms the kinds of functionality it should provide.
We recognize that fully-accessible voting technology may not be able to be
deployed this year. However, this bill should specify by when that technology
must be deployed, and set a minimum of how available it must be. This should
take into account the substantial barriers to accessible transportation that
Ontarians with disabilities continue to face.
Fourth, this bill does not require Elections Ontario to let voters with disabilities
know in an accessible way, and well in advance, when and where accessible
voting machines will be deployed. If voters with disabilities don’t know about
them, they won’t make efforts to use them. If they don’t use them, they will be
faced with unfair claims that there is little demand for them.
It is especially important to ensure proper notice to the broad voting public, and
not merely via internet postings, since this bill also lets Elections Ontario depart
from the tradition of consistent polling hours, and lets Elections Ontario open and
close different polls at different times. This is likely to create confusion for the
public, including voters with disabilities. If a voter with a disability has arranged
pre-scheduled para-transit, only to find that the poll is not open for the full day,
this could lead them to lose their right to vote, since it is usually not possible to
book a second ride in the same day with para-transit services."
Bill 231 allowed Elections Ontario to make available to any voter a mail-in "special Ballot", as
an alternative to voting at a polling station. On this new option, our March 17, 2010 brief stated:
"Section 25 of the bill is helpful. It lets voters vote via a “special ballot” i.e. a mail-in
ballot. However, it includes only limited provisions aimed at ensuring that the special
ballot procedures are fully accessible to voters with disabilities. …
…This provision gives Elections Ontario a sweeping discretion to decide which voters it
will assist via a special ballot. Elections Ontario would have unilateral authority to decide
if “…it would be impossible or unreasonably difficult for the elector to attend at a
returning office; and … the elector needs assistance with making an application to vote
by special ballot, because of a disability or because of inability to read or write.” If a
voter says he or she cannot go to the returning office due to problems getting accessible
transit, or because he or she cannot afford a taxi, the bill leaves it to Elections Ontario to
decide if that qualifies the voter for a special ballot. There is no limitation in the bill on
what Elections Ontario can demand of a voter to prove that he or she meets this test.
If Elections Ontario refuses a request for a special ballot, the bill provides no recourse, or
right of appeal. An expeditious appeal is needed, so that the matter can be resolved before
the election is over….
…Nothing in this regime of special ballots requires that the special ballot kit or the
procedures for home visits, ensure that voters with disabilities can independently mark
the ballot in privacy and verify his or her choice."
Bill 231 included a provision which lets Elections Ontario research new ways to make elections
accessible to voters with disabilities. On this, our March 17, 2010 brief submitted:
"This provision is mere window-dressing, because:
a) It does not require Elections Ontario to undertake any research;
b) Elections Ontario does not need a provision in the bill to be able to do research,
hold conferences or consult with persons with disabilities. Thus, this provision
adds nothing of any substance;
c) This provision does not require Elections Ontario to make the results of their
research public.
d) The Government has made no commitment to fund greater research efforts by
Elections Ontario in this area;
e) We have been urging the Ontario Government to do research in this area since
it made its 2007 election commitment to us. We are unaware of any significant
efforts in response to our proposals."
The need for Elections Ontario to ensure that all polling stations are in accessible locations is
especially important. It has been a long term problem. We quote here extensively from our
March 17, 2010 brief. This provides a good illustration of recurring deficiencies at Elections
Ontario. Our brief submitted in part:
"1. Accessible Polling Stations
This bill does not impose any requirements to ensure that all polling stations are
fully accessible to voters with disabilities. It leaves it to Elections Ontario to
select polling station locations. It requires Ontarians with disabilities to trust
Elections Ontario not to select and operate inaccessible ones.
Past experience with Elections Ontario, culminating with the February 4, 2010
Toronto by-election, shows that voters with disabilities cannot count on Elections
Ontario to ensure accessible polling stations.
…
…These laws, together with the Ontario Human Rights Code, clearly require that
when a returning officer in a riding chooses the location of a polling station, it
must be accessible to voters with disabilities. The essence and thrust of the
Ontarians with Disabilities Act 2001 and the Accessibility for Ontarians with
Disabilities Act 2005 amplifies this.
On February 12, 2010, the Canadian Human Rights Tribunal rendered a landmark
ruling on the rights of voters with disabilities to accessible polling stations during
federal elections. Hughes v. Elections Canada applies the Canadian Human Rights
Act. This important victory on the road to fully accessible elections applies
equally to Ontario, in our view. If a voter with a disability in Ontario encountered
inaccessible polling stations, a comparable complaint could be filed under the
Ontario Human Rights Code. To see the entire Hughes decision, visit:
http://www.aodaalliance.org/strong-effective-aoda/02122010b.asp
This decision, though focused on federal elections, speaks about issues which the
AODA Alliance continues to raise at the provincial level regarding the rights of
voters with disabilities in provincial and municipal elections….
The Election Act is designed on the bedrock principle that Ontarians, including
Ontarians with disabilities, should simply trust Elections Ontario to do the right
thing when it comes to ensuring accessibility, including accessible polling
stations, for voters with disabilities. It leaves it to each returning officer in each
riding to pick the right place for a polling station. It leaves it to Elections Ontario
to decide how much training to give returning officers and when to give that
training. It leaves it to Elections Ontario to decide how much oversight, if any, to
provide for returning officers when they decide where to locate polling stations. It
provides no means for Ontarians to enforce the requirements of accessibility, or to
ensure in advance that polling stations will be accessible. To enforce accessibility,
voters with disabilities must file human rights complaints, bring an action under
the Charter of Rights, or try to bring a proceeding under the Accessibility for
Ontarians with Disabilities Act’s Customer Service Accessibility Standard (for
which the Ontario Government has not yet implemented the promised
enforcement mechanism). In short, it does not contain effective safeguards to
ensure that Elections Ontario does the right thing.
Bill 231 in general merely expands the philosophy of “trust Elections Ontario.” It
gives Elections Ontario several new powers over Ontario elections. It leaves
Elections Ontario to decide how and when to use those powers. It adds no
meaningful oversight, public accountability, or enforcement, with one marginal
exception. The Election Act and Bill 231 require in some instances that Elections
Ontario create a public report after the fact.
The mere requirement that Elections Ontario publicly account for some of its
conduct after the fact, including in the area of providing for accessible elections,
has proven itself to be entirely inadequate. Elections Ontario was required to
publicly account for its efforts on accessibility in the 2007 election. As this brief
showed earlier, that report included sweeping claims of great efforts on Elections
Ontario’s part on accessibility. Yet over 40% of voters with disabilities canvassed
reported encountering accessibility problems. That shocking report should have
led Elections Ontario to massively revamp its efforts on accessibility, to ensure
that such problems did not repeat. Yet as shown earlier, two and a half years after
that general election, in the 2010 Toronto Centre by-election, problems with the
accessibility of some polling stations were reported.
Moreover, Elections Ontario’s response to the problems with the February 4,
2010 by-election further shows why “trust Elections Ontario” is no solution.
When the Toronto Sun investigated the complaint of one inaccessible polling
station in the February 4, 2010 by-election, Elections Ontario initially denied to
the Toronto Sun on the record that there was any accessibility problem. The
February 5, 2010 Toronto Sun reported: “A spokesman for Elections Ontario told
the Sun that the site is wheelchair accessible with an elevator that leads directly to
the voting place.” In our February 8, 2010 letter to the Chief Electoral Officer, we
asked Elections Ontario to explain how Elections Ontario came to give out that
inaccurate information to the media, and what consequences there would be for
the official that did this. Elections Ontario has never answered that inquiry.
As set out earlier in this brief, our February 9, 2010 letter to Elections Ontario
reported on the further accessibility problems at other February 4, 2010 byelection polling stations, described to us by candidate Cathy Crowe. In that letter,
we asked Elections Ontario for its position on those additional reported
accessibility problems. Elections Ontario has not answered that request, despite
the fact that we reiterated our request for a specific response to those concerns in
two successive emails to the Chief Electoral Officer, two conversations with his
executive assistant, a further letter to the Chief Electoral Officer dated March 12,
2010 and two efforts to get the Chief Electoral Officer to speak to us on the
phone. (See Appendix 2.) We have emphasized to Elections Ontario that the
Standing Committee on the Legislative Assembly, considering Bill 231, would
want to know Elections Ontario’s position on this.
Elections Ontario’s explanation of the one polling station whose inaccessibility it
eventually acknowledged is troubling. On February 5, 2010, the Chief Electoral
Officer wrote us via email in material part:
“Since our meeting, an unfortunate situation occurred in the Toronto Centre byelection where a voter had trouble accessing a poll to cast his ballot. I’m relieved
that the voter managed to vote, but the challenges he experienced and the
challenges others may have faced disappoints me.
As your members are well aware, we face challenges throughout the province
finding accessible voting locations. Until the province becomes fully accessible,
insight such as yours will help us make accommodations that meet the needs of
electors with disabilities.
I recognize the history of discrimination against persons with disabilities in the
province, and the fundamental importance of developing, implementing and
enforcing standards in order to achieve accessibility for Ontarians with
disabilities.
We are actively addressing barriers all Ontarians face in the electoral process.
These challenges range from informational to physical and geographical.
However, an important step forward to addressing these challenges is through
partnerships with organizations such as yours.
As the Chief Electoral Officer of Ontario, I am committed to improving elections
in this province for all Ontarians who may experience barriers to voting, including
electors with special needs. I share your concerns and am dedicated to achieving
equitable access to voting for all.”
We promptly communicated to Elections Ontario our concerns with its
explanation for that inaccessible polling station. In our February 8, 2010 letter to
the Chief Electoral Officer, we wrote:
“I regret that your response to this incident which we received via email on
February 5, 2010, seems to exaggerate the difficulty facing Elections Ontario in
ensuring accessible polling locations. You wrote: “As your members are well
aware, we face challenges throughout the province finding accessible voting
locations. Until the province becomes fully accessible, insight such as yours will
help us make accommodations that meet the needs of electors with disabilities.”
We have no indication that this incident was due to any difficulty on Elections
Ontario’s part in finding a fully accessible venue for this polling station. This byelection occurred in a densely-developed, downtown Toronto urban riding. No
matter how many inaccessible buildings there may be, it should be especially easy
to find an accessible venue in such a riding.
We have told Elections Ontario in the past that we are happy to provide input on
elections accessibility issues. However, in 2010, Elections Ontario should not
need our input to know that if one must traverse several stairs to get to a polling
station, that polling station is not accessible to persons with disabilities.
Additionally, Elections Ontario has ample time to find accessible venues for
polling venues. You now know when the next general election will be. Even in
the case of by-elections, there is sufficient time to ensure that venues selected for
polling stations are fully accessible.
In your February 5, 2010 email to us, you also wrote:
“We are actively addressing barriers all Ontarians face in the electoral process.
These challenges range from informational to physical and geographical.
However, an important step forward to addressing these challenges is through
partnerships with organizations such as yours.”
We are delighted to partner with you and to do whatever we can to help you reach
out to the broader disability community. However, I must emphasize that we have
had this same discussion with Elections Ontario officials over the past decade. We
have agreed to “partner” over and over again, and have offered our services to
reach the disability community. It is time to stop re-inventing that same wheel,
and to get on with implementing effective solutions.”
Elections Ontario’s further effort at explaining this incident was also troubling.
Chief Electoral Officer Greg Essensa wrote us again on February 19, 2010
providing a further explanation of the single inaccessible polling station in the
February 4, 2010 Toronto centre by-election that Elections Ontario has
acknowledged. He stated in material part:
“In follow-up to my letter of February 5, 2010 I’m writing today with respect to
the February 4, 2010 story titled “Man in wheelchair has trouble voting in
Toronto Centre by-election”.
The voting location was selected for being accessible but at the last minute the
school moved the room in which the polls were stationed. Elections Ontario was
advised the room was accessible. However, the morning of the election our
workers found this not to be the case and then made other appropriate
accommodations for electors with limited mobility. Had this change been known
earlier, we could have done more to assist electors on polling day.
We are reviewing the matters you have raised in your letters to determine how we
can better serve electors.”
Elections Ontario has not explained how a school principal was permitted to
exercise a unilateral decision to relocate a polling station from an accessible part
of the school to an inaccessible part of that school. It does not appear to us that the
principal has such authority under the Election Act. The Elections Ontario
officials on the scene should have directed that the polling station not be located
down several stairs. If the school did not comply, the polling officials should have
contacted Elections Ontario to immediately intervene to correct the situation on
the spot. Section 13(4) and (4.1) of the Election Act entitle Elections Ontario to
select a location such as a school and designate it as a polling station, on sufficient
notice to the school. If that provision is not strong enough, then there is need for a
strong amendment to prevent such from happening again.
Mr. Essensa also claimed in this letter that when Elections Ontario learned on the
by-election voting day that the room was not accessible, their officials “made
other appropriate accommodations for electors with limited mobility.” The
Toronto Sun reported that voters with disabilities had to go down six stairs, and
some had to be assisted by polling officials, leaving their wheelchairs behind.
Elections Ontario’s response here signals a fundamental failure to understand key
rudiments of the duty to accommodate persons with disabilities. With respect, this
treatment of voters with disabilities is not “appropriate accommodation.” It risks
physical injuries to voters with disabilities. It denies them the dignity and respect
that full accessibility provides. Voters without disabilities do not have to undergo
such treatment just to exercise their constitutional right to vote.
We regret that this recent by-election is not an isolated incident. In our April 28,
2009 presentation to the Legislature’s Select Committee on Elections, former
AODA Alliance Chair Catherine Tardik offered a unique former-insider’s
perspective on Elections Ontario’s approach to disability accessibility in the 2007
general election. In reading her remarks, it is important to emphasize that the
2007 election occurred two years after enactment of the Accessibility for
Ontarians with Disabilities Act. Ms. Tardik told the Select Committee:
“As a former employee of Elections Ontario’s communications department, I had
the unique opportunity to view the accessibility features espoused during the 2007
provincial election and referendum from a good vantage point. Part of my duties
during the 2007 election and referendum included working on a variety of
projects aimed at supporting Elections Ontario’s accessibility features,
specifically the information kits for electors with special needs, arranging for
large print and for Braille printing of householders, contacting stakeholder
organizations and contributing to the training manual for Elections Ontario staff.
During my remarks, I’d like to outline some of the challenges in relation to the
accessibility of provincial elections.
In 2008, Elections Ontario completed a report on accessibility that speaks to the
accessibility goals and outcomes of the 2007 election. This report includes details
of Elections Ontario’s efforts to achieve full accessibility. If you read it, it sounds
very promising. Some of the measures it describes included providing targeted
information to special needs populations; accessibility at advanced polls and
returning offices; reaching out to stakeholder organizations to provide them with
election kits; updating the TTY phone system to incorporate new web
technologies for persons who are deaf, deafened or hard of hearing; providing
Braille householders and householders on tape; training call centre staff to answer
questions related to accessibility; and, last but not least, providing training
specific to accessibility for poll officials.
I can attest that Elections Ontario planned to provide accessibility features during
the 2007 election. However, intention is not the goal; delivering accessibility is
the goal. Unfortunately, the way Elections Ontario acted on these initiatives
clearly and significantly limited the outcome’s effectiveness. This resulted in
inconsistencies and service delivery gaps. The troubling result is documented in
the aforementioned report on accessibility. The report claims that Elections
Ontario received 100% accessibility at returning offices and advanced polls and
98% accessibility at poll locations on voting day.
Unfortunately, this optimism is flatly contradicted by the results of an
independent survey detailed in the report that was completed by Ipsos Reid on
behalf of Elections Ontario. According to the statistics found in the Elections
Ontario accessibility report, the Ipsos Reid survey revealed that a very troubling
percentage of electors with special needs reported facing barriers when
participating in the electoral process. …(She recited the survey results quoted
earlier in this brief and then continued.)
…Given my first-hand experience working as an employee of Elections Ontario,
it is my assessment that the Ipsos Reid statistics provide an accurate depiction of
accessibility features during the 2007 election and referendum. In 2007, this
outcome is simply unacceptable.
To illustrate my assessment, I will address two service delivery gaps: first,
choosing accessible poll locations. The current Elections Act and Elections
Ontario policy related to sourcing accessible returning offices and poll locations
indicates that this duty is the responsibility of the returning officer in each riding.
Based on my observations during the 2007 election, returning officers did, in fact,
choose these temporary locations. However, it should be pointed out that
returning officers made these decisions without training outlining how to best
determine accessibility features of temporary locations, or with any reliance on
best practices from other jurisdictions. When it came to accessibility training,
returning officers and poll officials received training consistent with general
special needs training concerning assisting electors with special needs. This
training was provided to all Elections Ontario front-line staff, including the call
centre. With regard to the training for the call centre, I can speak specifically to
that as I was asked to provide the training to those staff members only two days
prior to Election Day.
Second, an important accessibility feature that was promoted in advance of the
election was not in working order on Election Day. TTY services enable persons
who are deaf, deafened or hard of hearing to directly communicate with others
over the phone. The updated TTY technology that was put in place for members
of the public to call did not work properly during Election Day. Approximately 40
TTY calls were left unanswered due to technical difficulties. Unfortunately, the
call centre staff did not provide this information to the communications
department or the IT department until after the polls had closed. Thus, it was not
possible to fix the problem until it was too late.
Given my experience specific to the accessibility features offered during the 2007
election and referendum and the results of the Ipsos Reid independent survey, it is
clear that Elections Ontario failed to fulfil its mandate to ensure consistent
accessibility features for electors with special needs.”
The problem is not a lack of professed commitment by Elections Ontario to
accessibility. The current management at Elections Ontario has committed to us
that accessible elections are a high priority for Elections Ontario. However, the
same commitment has been made by prior Elections Ontario administrations over
the past decade…"
Our brief on Bill 231 made specific recommendations to address such other things as: ensuring
that print ballots use a sufficiently large font; ensuring full accessibility of Elections Ontario
website postings; addressing information and communication needs of persons with hearing loss;
Requiring Elections Ontario to engage in better accessibility planning; establishing one
Government minister with lead responsibility for elections accessibility; ensuring accessibility of
candidate campaign offices, campaign literature and All Candidates Debates; centrally
addressing accessibility of municipal elections; and providing for an independent review of
accessibility barriers facing persons with disabilities during elections in Ontario.
(iv) Clause-by-Clause Debate and Accessibility Amendments to Bill 231
We were heartened when the April 12, 2010 Toronto Star ran yet another editorial supporting our
cause, this time, under the headline: "Disabled voters snubbed." It stated:
"It is widely recognized that disabled Ontarians are poorly served when
attempting to cast an election ballot. Barriers haven't yet been eliminated at many
polling places, some of which feature multiple steps or doorways too narrow to
accommodate a scooter.
As recently as the Toronto Centre by-election two months ago, one determined
voter had to leave his wheelchair and grapple, with help, down a stairway to cast
his ballot. Others struggled, too, to reach the ballot box at St. Joseph's College
School. It's not known how many simply turned away.
This is frankly inexcusable.
Unfortunately, in Bill 231, a series of amendments to the Election Act now before
the Legislature, the government ducks the accessibility issue. While stopping
short of making it mandatory, the bill allows for possible deployment of
"accessible voting equipment." However, the bill specifies that such gear must not
be connected to any electronic network and must generate a paper ballot - features
that seem to rule out alternatives such as voting by telephone, the same way that
many people now do their banking.
Advocates for the disabled are understandably unimpressed. "We deserve better,"
says lawyer David Lepofsky, chair of the Accessibility for Ontarians with
Disabilities Act Alliance.
There are simple measures that could be taken, especially with a fixed election
date. These include earlier determination of polling places so that disabled
advocates may examine them to ensure that they are accessible.
Elections Ontario officials say they are trying to do better by giving field staff a
more detailed guide for use in selecting voting locations. But that's hardly enough,
given the extent of past failures.
Lawyering up, the officials note that the law does not actually require
accessibility for the disabled across the province until 2025. But the disabled
shouldn't have to wait that long to exercise their democratic rights. Accessible
voting places should be written into the law now."
As a result of our advocacy efforts, debates in the Legislature on Bill 231 and public hearings
were dominated by disability accessibility issues. From the Government's perspective, Bill 231
was not initially conceived as primarily focusing on our needs. The public outpouring and media
attention had the result of channelling much of the public and legislative attention thereafter on
disability accessibility in the election context. This highlights the need for the Government to
have engaged us in a meaningful way before drafting and introducing Bill 231 in the Legislature.
Days before clause-by-clause debates at the Standing Committee on the Legislative Assembly
began on April 14, 2010, the opposition Conservative and New Democratic Parties introduced
packages of proposed amendments. These amendments substantially responded to our concerns
with the bill. In contrast, the Liberal Government introduced an impoverished package of
amendments.
Our April 14, 2010 AODA Alliance update offered this detailed synthesis of the Liberal Party's
proposed amendments;
"In general, of the three parties’ packages of amendments, the NDP’s is the
strongest on disability accessibility. The NDP package implements the broadest
range of the recommendations that the AODA Alliance put forward. Taken
together, the amendments proposed by the two opposition parties would go a long
way to ensure fully accessible elections in Ontario.
The Liberal package is clearly the shortest and weakest, from the perspective of
disability accessibility. It would not ensure fully accessible elections in Ontario
now or ever…
…1. Accessible Voting Machines for Voters Who Cannot Independently Mark
A Paper Ballot and Verify Their Choice:
The Government’s amendments continue to bar the use of telephone voting and
internet voting, because they forbid any voting machines that are connected to a
network. This would create a legal barrier to effective and more cost-effective
options for enabling voters with disabilities to conveniently and independently
vote.
The Government’s amendments seem to continue to lock the Government into the
one kind of accessible voting machine that Elections Ontario has piloted. The
Government’s Chair of the Select Committee on Elections, Liberal MPP Greg
Sorbara, felt that machine was far too expensive to place in every polling station.
…
The Liberal amendments would only require an accessible voting machine in a
riding’s Returning Office during advanced polls, and in one single location in
each riding on election day in a general election. They state:
“(3) The accessible voting equipment and related vote counting equipment shall
be made available in returning offices during the period that begins on the first
day of advance polls and ends on the day before polling day, as follows:
1.
The equipment shall be made available during advance polls that
are held in returning offices.
General election
(4) At a general election, the accessible voting equipment and related vote
counting equipment shall be made available in every electoral district.”
That would be fair, if there was only one polling station in each riding for all
voters without disabilities on election day. However, on election day, there are
many polling locations in each riding. Voters without disabilities get to go to a
polling station in their neighbourhood. In contrast, a voter with a disability who
cannot independently mark and verify their own paper ballot must find their way
to the one single location in their riding where there will be an accessible voting
machine, if they want to be able to independently mark their ballot in private, and
verify their choice. That is not equal treatment of persons with disabilities.
Had the Government’s amendments mandated technology such as telephone
voting, possibly combined with an option for internet voting, voters with
disabilities would not need to be subjected to the added and unfair burdens that
the Liberal amendments would impose. This is an especially troubling burden, in
rural and northern ridings. There it can be a long trip to get to the one location
where the accessible voting machine might be situated.
It is also unfair in urban ridings. A large percentage of persons with disabilities
are seniors. To require seniors who are losing their vision, and possibly their
mobility, to have to make their way across their riding – even an urban riding —
to find the one location with an accessible voting machine, is an unfair burden to
which voters without disabilities are not subjected.
The Government amendments still tie Ontario to technology that produces a paper
ballot. Telephone and internet voting can generate paper ballots. However,
maximum flexibility would be attained if the paper ballot requirement were not
mandatory.
2.
Procedures for Special Ballots (i.e. Mail-In Ballots)
The amendments do not fix any of the major problems with the “Special Ballots”
(i.e. mail-in ballots) available to some voters with disabilities, which the AODA
Alliance identified in its brief, available at: http://www.aodaalliance.org/strongeffective-aoda/03172010.asp
However, the Government amendments would add a new provision that threatens
a serious intrusion into the privacy of any voters with disabilities who apply to use
these mail-in “special Ballots.” A Liberal amendment would entitle any candidate
in the election to have Elections Ontario disclose to the candidates a list of the
names of any voters with disabilities who have asked to vote via mail-in ballot.
The Government amendments state:
List of special ballot electors
Applications in electoral district
45.2.3 (1) Each day during the period that begins on the 28th day before
polling day and ends at 6 p.m. on the last day before polling day, the special ballot
officer in the returning office shall notify the returning officer of the names,
addresses and polling division numbers of all electors whose applications to vote
by special ballot are approved on that day.
Applications to Chief Electoral Officer
(2) On receiving notice under subparagraph 4(i) of subsection 45.2 (6) that
an elector is voting by special ballot, the returning officer shall record the
elector’s name, address and polling division number.
Candidates
(3) On request, the returning officer shall provide to every candidate who
has been nominated a list of electors with respect to whom the returning officer
has received notice under subsection (1) or (2) up to the time the request is made.”
A voter’s disability is deeply private personal information. Many disabilities are
invisible. Voters have the right to decide whether to disclose their disability, and
to whom.
If Elections Ontario discloses to a candidate the names of those voters who are
using a special ballot, they are in effect disclosing that those voters have a
significant disability. Whether a voter has a disability and has opted for a special
ballot is, with respect, none of the candidates’ business. That information is
shared with Elections Ontario for the specific purpose of being able to get the
accommodation of a mail-in ballot. To provide that accommodation there is no
need for Elections Ontario to in effect reveal this private information with
candidates. The price of opting to use the new mail-in Special Ballot option
should not be a surrender of their right to decide whether to disclose to any or all
candidates that they have a disability.
3.
The Need for an Effectively Enforceable Right for All Polling Stations to
be Fully Accessible to Voters with Disabilities
The Government amendments make a limited effort at addressing the need for an
enforceable right to fully-accessible polling stations. The Government
amendments baldly state that all polling stations must be “accessible.” They
provide no definition of accessibility, nor any legal criteria for accessibility. They
state:
“Accessibility
13.1 (1) In establishing the locations of polling places under section 13,
the returning officer shall ensure that each polling place is accessible to electors
with disabilities.”
This merely repeats what is already the law, according to the thrust of what
Ontario Human Rights Chief Commissioner Barbara Hall presented to the
Standing Committee on the Legislative Assembly on March 24, 2010, and
according to the Canadian Human Rights Tribunal ruling in Hughes v. Elections
Canada. That decision is available by clicking here:
http://www.aodaalliance.org/strong-effective-aoda/02122010b.asp
We asked the Standing Committee to include mandatory accessibility criteria in
the bill and to require Cabinet to make regulations to further spell out the
accessibility Elections Ontario must provide when choosing polling station
locations. The Government’s amendment is clearly insufficient since Elections
Ontario seems to still be learning about the concept of accessibility as it applies to
polling stations. In his March 24, 2010 presentation to the Standing Committee on
the Legislative Assembly, Chief Electoral Officer Greg Essensa had this
exchange:
“Mr. Greg Sorbara: Given the hundreds and hundreds of polling stations across
the province, what percentage would you say are accessible now? How are we
doing, in other words?
Mr. Greg Essensa: What was reported after the 2007 general election was that
99% of our polls were accessible. What we understand better now is — as we’re
learning more and more about accessibility features, and the standards are being
reviewed under the AODA, I think that we are quite confident that some of those
numbers perhaps weren’t exactly accurate, given the standards that we would
apply today.
One of the things that we are doing at Elections Ontario now is embarking on a
fairly aggressive consultation process where we will be working with focus
groups to assess what the quality standards and accessibility standards need to be
and what the barriers are that we need to remove to ensure that we can comply
and become as fully accessible as possible, given the current restraints that
perhaps pertain in some locations that we need to utilize for voting. We intend to
fully engage the disability community in those consultations to ensure that the
standards that we put in place — that we get them right.”
It is helpful that the Government amendments at least partially adopt' an idea we
presented. They require Elections Ontario to make public intended polling station
locations six months before an election, so persons with disabilities can give
feedback in advance of voting day on any accessibility problems. The
Government’s amendments state:
“13.1 (1) In establishing the locations of polling places under section 13,
the returning officer shall ensure that each polling place is accessible to electors
with disabilities.
Application
(2) Subsection (3) applies only with respect to general elections held under
subsection 9 (2).
Posting for comment
(3) The returning officer shall provide the following information to the
Chief Electoral Officer, who shall publish it on a website on the Internet:
1.
The proposed locations of polling places.
2.
Details about steps that could be taken to ensure the accessibility
of those locations.
3.
An invitation to members of the public to comment, within one
month after the posting, on whether the proposed locations are sufficiently
accessible.
Time for posting
(4) The posting described in subsection (3) shall take place at least six
months before polling day.”
However, this amendment lacks the required teeth to make it effective. It does not
require Elections Ontario to consider and act on the feedback it receives from
persons with disabilities. It does not require Elections Ontario to give reasons if
an accessibility objection is raised, but Elections Ontario does not act on it. It
provides no right of appeal from any decision by Elections Ontario not to fix an
accessibility problem that voters with disabilities identify.
It only requires Elections Ontario to post its intended polling station locations on
a website. Further publicity is needed to ensure that this information reaches a
wide range of voters with disabilities. It is not enough to just reach internet users.
Moreover, internet users are not likely to keep visiting Elections Ontario’s
website every day in hopes that one day these polling locations will be posted.
4.
The Need for Elections Ontario to Provide Accessible Information
The Government’s amendments seek very modestly to address the need for
Elections Ontario to provide information in a format that is accessible to voters
with disabilities. They state:
“Accessible format
114.3.1 Every report, direction or notice that this Act requires the Chief
Electoral Officer to publish shall be made available to persons with disabilities in
a manner that takes their disabilities into account, in accordance with the
Accessibility for Ontarians with Disabilities Act, 2005 and the regulations made
under that Act.”
All this appears to say is that Elections Ontario must obey the AODA. An
amendment is hopefully not needed to do this. Moreover, there are no regulations
under the AODA that now impose any obligations regarding accessibility of
information. The proposed Information and Communication Accessibility
Standard has not been enacted. Even if it is enacted later this year, it may not
come into force until after the 2011 election.
This falls far short of what the AODA Alliance proposed. We wanted detailed
information accessibility requirements written into the bill. Moreover, this
amendment does not even hold Elections Ontario to the level of accessibility
required under the Ontario Human Rights Code. It only refers to the AODA.
5.
The Need to Address Barriers during Election Campaigns
The Government amendments do not address any barriers during the election
campaign e.g. inaccessible all-candidates’ debates.
6.
The Need to Address the same Accessibility Barriers in Municipal
Elections
The Government amendments do not address any of the barriers in municipal
elections. We had urged that the bill be amended to address the same solutions to
the same barriers in both provincial and municipal elections."
We continued to press for last-minute improvements to Bill 231, even after the parties introduced
their amendments packages. Because the Liberals had a majority Government, we knew that
only the Liberals' amendments were likely to be adopted.
As a result, on April 20, 2010, the eve of the resumption of clause-by-clause debates on Bill 231
by the Standing Committee on the Legislative Assembly, the McGuinty Government proposed
more amendments. These address the issue on which we had been vigorously campaigning over
the previous days and weeks, namely the bill’s proposed ban on network-connected accessible
voting technology like telephone voting and internet voting.
As context for these new amendments, under the pre-existing Elections Act it was open to
Elections Ontario to test out any new voting technology such as telephone or internet voting in a
by-election. As originally proposed, however, Bill 231 would have banned the use of any
network-connected voting technology in a general election.
Our April 20, 2010 AODA Alliance Update offered this analysis of the Government's additional
last-minute amendments package:
"Under these proposed amendments,
1. Elections Ontario is required to study different voting technologies and to
report on them to the Legislature by June, 2013, three years from now. That this
report is now mandatory is helpful. Three years is considerably more time than
should be needed to study this.
It would be considerably better if this end-date were moved up, or if Elections
Ontario were required to prepare and submit an interim report within 18 months.
We don’t want the 2013 end-date to be used as a justification for three years of
delay. We have too often had the 2025 date for full accessibility in the
Accessibility for Ontarians with Disabilities Act used as an excuse for delaying
actions that could be taken far sooner.
2. Starting in January, 2012 (i.e. right after the next Ontario general election), a
process would exist which would allow Elections Ontario to use new accessible
voting technology, including technology that is connected to a network, such as
telephone voting or internet voting. It is an unusual process that, if invoked
successfully, would not require us to get the Elections Act amended by the entire
Legislature.
To get this technology implemented, it would first be necessary for the Chief
Electoral Officer to submit a report to the Standing Committee of the Legislature,
recommending that the technology be used. The Chief Electoral Officer can only
do this after he or she has tested out this technology in a by-election. On receiving
that report, the Standing Committee could approve this technology after holding
public hearings. If public hearings are held, that would give the disability
community and others a chance at a very public platform to present their views, as
our community did so effectively on March 24 and 31, 2010. After holding
hearings, the Standing Committee could approve the technology that the Chief
Electoral Officer recommended. After that, the Chief Electoral Officer would be
permitted to use it.
This proposal is better than the world as we found it at any point since Bill 231
was proposed. If the Chief Electoral Officer recommends new voting technology,
the Standing Committee can approve its use, thereby lifting the legal ban. The
Standing Committee holds its proceedings in the open, unlike Cabinet. If there is
a minority government, this process lets opposition parties have more of a say.
However, on our first review, there are some real difficulties with this proposal.
We identify these and offer ways to address them. For example:
a) It still leaves in place a clear ban on access technology that impedes our right to
independently vote in private, and verify our choice. It would be better if that ban
was removed from the legislation altogether.
b) It gives the Chief Electoral Officer an absolute veto over whether the Standing
Committee can even consider this new technology. If the Chief Electoral Officer
does not submit a recommendation, or if his recommendation is against this
access technology, the Standing Committee has no power to override the Chief
Electoral Officer’s views. The ban on that access technology remains. There are
no public hearings on it. This is so, even if we could prove to the Standing
Committee that access technology such as telephone voting works safely, securely
and reliably.
The Chief Electoral Officer, an unelected public official, should not have such
one-sided conclusive power over the basic democratic rights of Ontarians,
including over one million voters with disabilities. Instead, the Chief Electoral
Officer should be required to submit a report and recommendations within
specified time lines that would not cause undue delay, after which the Standing
Committee should study it and hold hearings, even if the Chief Electoral Officer
recommends against any new accessible voting technology. We should have the
chance to go before the Standing Committee and discuss whether the Chief
Electoral Officer was wrong, e.g. if he or she recommended against technology
that is reliable.
c) Under this proposal, even if the Chief Electoral Officer submits a
recommendation to adopt new voting technology, the Standing Committee does
not have to hold hearings. The provision simply says that the Standing Committee
cannot approve the technology without first holding public hearings. If the Chief
Electoral Officer submits a recommendation, but the Standing Committee does
not hold any hearings, as it would be free to do under this amendment, the
proposal is lost in stasis.
It would be better if the amendment required the Standing Committee to hold
public hearings, once it receives a recommendation from the Chief Electoral
Officer.
d) Under this proposal, even if the Chief Electoral Officer submits a
recommendation to the Standing Committee, the Standing Committee can only
approve it as is, or reject it. It cannot make any changes to it, even if the public
hearings show a need for a change. The Standing Committee should not be so
hog-tied in its work. Once the Chief Electoral Officer has submitted a report and
recommendations, it should be open to the Standing Committee to adopt it, reject
it, or alter it, after holding public hearings.
e) Under this proposal, an exception to the ban on network-connected technology
can only occur if “…The Chief Electoral Officer is satisfied that the alternative
voting method protects the security and integrity of the election to a standard that
is equal to or better than the protection afforded by section 44.1.”
We of course recognize that there is a need for any voting system to have a proper
degree of security and reliability. However, this amendment sets the
security/integrity standard too high, in a way that is unfair to voters with
disabilities.
Right now, many voters with disabilities must suffer tremendous insecurity in
their voting, such as those who cannot mark their ballot independently due to
vision loss or other disability. They must reveal their vote to someone else, have
them mark their ballot and hope they will get it right, that they won’t spoil the
ballot and that they won’t tell others for whom the voter with a disability voted.
Voters without disabilities don’t have to put up with that.
Moreover, Bill 231 now allows any voter in Ontario to vote by mail via the new
“special ballot.” That means the security of their ballots is automatically and
entirely entrusted to Canada Post. Special ballots could be stolen from the mail.
They could be stolen from a voter’s kitchen counter by a visitor. It is unfair to
require a low bar for security for all other voters who use mail-in ballots, but to
impose a much higher bar before voters with disabilities can get access to
technology that will let them independently and privately mark their ballot from
home.
It is necessary for the security/integrity provision in this amendment to be
softened.
f) These amendments do not ensure that Elections Ontario will consult with voters
with disabilities on this technology as a focused effort. We would expect the
Government and Elections Ontario to welcome any amendment to include a
strong requirement that the Chief Electoral Officer consult with voters with
disabilities, since both the Chief Electoral Officer and Liberal MPP Greg Sorbara
have spoken so favourably about such consultations.
g) Under these amendments, even if the Chief Electoral Officer recommends new
voting technology after studying it and trying it in a by-election, and even if the
Standing Committee holds public hearings and votes to approve it, the
amendments only provide that the Chief Electoral Officer afterwards “may” use
that technology. It does not require that he or she do so. This leaves the Chief
Electoral Officer with the power to leave in place barriers to voting that can be
overcome, and that have gone through all of this scrutiny. The amendment should
be changed to provide that once the Standing Committee approves the voting
technology, the Chief Electoral Officer shall use it.
h) It would be worthwhile for these amendments to require that Elections Ontario
undertake these reviews jointly with the Ontario Human Rights Commission,
which is also an independent public agency untied to the government of the day.
This is especially so where, as here, the current Chief Electoral Officer told the
Standing Committee on the Legislative Assembly on March 24, 2010 that
Elections Ontario is still learning about accessibility, and that it has to
significantly improve in the area of accessibility. Elections Ontario would benefit
from undertaking this effort in a joint enterprise with the public agency with
expertise in human rights and accessibility.
i) These amendments also would benefit from some technical refinements. For
example, it would help to put in language that makes it clear that any of the
measures described in them override the ban, elsewhere in Bill 231, on networkconnected voting technology. The new section 44.2 should simply state that it
operates notwithstanding section 44.1 (the provision that bans network-connected
voting technology)."
The Government used its majority to pass its proposed amendments and to defeat almost all of
the opposition amendments that had been proposed on our behalf.
(v) Bill 231 in Operation Since May 2010 -Elections Accessibility Barriers
Remain
On May 3, 2010, when the amended Bill 231 was about to receive passage on Third Reading, we
issued a news release, claiming a partial victory. Our news release stated in part:
"The bill tabled last fall did little for voters with disabilities. A grassroots
campaign by the disability community, fuelled by Elections Ontario’s using
several inaccessible polling stations in February’s Toronto by-election, led
disability issues to dominate the bill’s debates.
“After 11 long years of campaigning for equal access to the vote for Ontarians
with disabilities, this bill is a partial victory on the road to fully accessible Ontario
elections,” said David Lepofsky, chair of the non-partisan AODA Alliance,
spearheading efforts to strengthen Bill 231. “The McGuinty Government
amended the bill to require all polls to be accessible, in the face of Elections
Ontario’s sorry record. Elections Ontario now must post poll sites six months in
advance, so we can check their accessibility. Sadly the Government defeated
amendments that would make this enforceable.”
The bill bans telephone and internet voting. “We’ve never heard of a government
banning an access technology they’d never even investigated,” said Lepofsky.
“This access technology would create real accessibility for many voters with
disabilities and would appeal to all voters.”
At the last minute, voters with disabilities won amendments softening that ban.
Elections Ontario must study alternative voting technology and report by June
2013. A legislative committee can lift the ban on that technology after 2011, if
Elections Ontario tries it in a by-election and recommends it.
“This bill gives the unelected Elections Ontario a veto over whether this access
technology will be used, and a leisurely three years to study it,” said Lepofsky.
“Cobourg successfully used telephone and internet voting in the 2006 municipal
election and will use it this fall. If we can securely bank by phone, and file our
taxes on the internet, why can’t we vote by phone or internet?”
In the 2011 election, the bill only makes Elections Ontario have one accessible
voting machine per riding, for voters who can’t mark a paper ballot themselves,
such as blind voters. In contrast, sighted voters vote privately at their local poll.
Blind voters wishing to privately mark their own ballot, may have to trek to the
one poll in their entire riding with this accessible voting equipment – possibly far
in rural areas.
At public hearings, voters with disabilities told of appalling election barriers. The
NDP and Conservatives proposed strong amendments to make Bill 231
groundbreaking. The Liberal majority defeated almost all of them, in favour of
baby-steps.
The spotlight shifts to Elections Ontario. Bill 231 gives it responsibility to tear
down barriers against voters with disabilities. Today, the AODA Alliance wrote
to Elections Ontario, urging it to immediately study telephone and internet voting,
to report to the Legislature in 2011, to test it when a by-election next comes up,
and to make public their plans for accessible elections."
Six months later, on November 12, 2010, with the next Ontario election less than a month away,
we wrote to Community and Social Services Minister Madeleine Meilleur. We asked for the
Government's plans for keeping the promises it made in the 2007 election, which remained unkept. We recited Premier McGuinty's 2007 election pledge to us on elections accessibility, and
then stated:
"We have been told that your Government has been working on an accessible
election action plan that is separate from and additional to Bill 231, the recently
passed election reform law. We are eager to learn what steps have been taken to
date to develop this promised plan, who has lead responsibility for it, when it will
be finished, and what opportunities we will have for input into it."
The Government did not answer that letter. Eight months later, in the 2011 Ontario general
election, we again asked the parties to commit to specific action to address accessibility barriers
in municipal and provincial elections. In his August 19, 2011 letter to us, Premier McGuinty's
2011 election pledges to us included:
"•
We amended the Election Act to require provincial elections to include:
•
accessible voting equipment and polling locations
•
accessible formats of Elections Ontario publications
•
accessibility training for election officers.
•
We also amended the Municipal Elections Act to require that all municipal
polling stations be accessible to voters with disabilities and that staff be trained on
accessibility issues. We recognize that there is more to do, and we will continue to
build on our progress when it comes to making municipal and provincial elections
more accessible."
Bill 231 triggered positive new action by Elections Ontario on making polling stations
accessible. We have not been able to independently and comprehensively verify how much of a
difference this made in practice.
We do know that Bill 231 has not ensured fully accessible polling stations. In the 2014 election,
we learned of a Toronto area polling station with accessibility barriers. To access it, a voter must
use an elevator whose door is only 33 inches wide. The Ontario Building Code requires 36
inches, to ensure that many if not most wheelchairs and scooters can get through it.
When we raised this with Elections Ontario immediately upon receiving a voter's complaint,
Elections Ontario acknowledged that this was narrower than its own accessibility guidelines or
standards, but persisted in the venue's use, and claimed it was sufficient. Our June 6, 2014
AODA Alliance Update, making public our information on this issue, and on which the Toronto
Star's June 5, 2014 on-line edition reported, stated:
"Elections Ontario has focused more effort on polling station accessibility than it
did years ago, largely due to pressure from the disability community. Yet
Elections Ontario's excuses for using this location for a polling station, set out in
its two emails below, are unacceptable:
a) Elections Ontario in effect acknowledges that it knew that 33 inches is not a
sufficient width for an elevator to reach a polling station.
b) Elections Ontario had used this polling station location the past, including in a
by-election last summer, so it had first-hand experience with that location, and
should have known better than to keep re-using it.
c) The fact that Elections Canada has used that location in a federal election is
hardly a ringing endorsement. In 2010, the Canadian Human Rights Tribunal
found that Elections Canada had violated the human rights of voters with
disabilities by using another inaccessible location elsewhere in Ontario for a
polling station. To learn more about the Canadian Human Rights Tribunal's
February 12, 2010 ruling requiring accessibility of federal election polling
stations, visit http://www.aodaalliance.org/strong-effective-aoda/02122010b.asp
d) The fact that this Ontario election was called on short notice is also no excuse
for using this polling station location. Under the 2010 accessibility reforms to the
Elections Act that we fought for, Elections Ontario had to review all polling
station locations for accessibility issues six months before the 2011 Ontario
general election. As noted above, it also had experience with this polling station
location in a 2012 by-election in the same riding. It knew an Ontario election
could come after that at any time, since Ontario had a minority government.
e) Elections Ontario's response to our inquiries, set out below, does not reveal
who within Elections Ontario authorized the use of this polling station, even
though Elections Ontario knew the elevator door width did not meet proper
accessibility requirements. This makes it impossible for us and the public to know
whom, if anyone, will be held accountable for authorizing the use of a polling
station location lacking full accessibility."
On the similarly important issue of making the actual voting process more accessible for those
who cannot mark their own ballot independently due to a disability, Bill 231 has been a dismal
failure. No solution appears in sight. Four developments since the passage of Bill 231
demonstrate this.
First, the deployment of the accessible voting machine in one or two locations per riding across
Ontario in the 2011 election was in effect, a failure. According to Elections Ontario, a meagre
166 voters used them. There are far more voters with disabilities that preclude their
independently marking their own ballot.
It is far from clear to us that Elections Ontario has sufficiently publicized the availability of this
voting option. It is quite possible that more people didn't use these accessible voting machines
because they did not know of their availability.
Some, including AODA Alliance chair David Lepofsky, reported technical problems with their
operations in the 2011 election. In the 2014 election, he had no problem using that machine, but
we received reports of problems. One such problem ended up on the front page of the Kingston
Whig-Standard on June 11, 2014.
Moreover, the Government's 2010 justification for not deploying more of these accessible voting
machines per riding turns out to have been false. During the 2010 legislative debates over Bill
231, the Government argued that the cost of purchasing an accessible voting machine for each
polling station was prohibitive. It turns out that Elections Ontario does not purchase them. It
rents them. As such, the cost per machine is, of necessity, considerably lower than the figures
that the Government presented in 2010 to support its opposition to providing more of these
machines. We have, to date, seen no costing figures to justify a refusal to make these accessible
voting machines more available than merely in one or two places per riding. We have learned
that accessible voting machines are deployed in every polling station in Chicago, being 2,500
within the City of Chicago, or a total of some 6,000 across the entire Cook County.
Second, Bill 231 gave Elections Ontario a mandate to test telephone and internet voting in a byelection starting in 2012. That gave Elections Ontario a full year and a half to get ready to test it.
It has not done so.
On December 3, 2010, Elections Ontario committed to us in writing that it planned to be ready to
test telephone and internet voting in a by-election starting in 2012. It wrote:
"We plan to be ready for this testing in by-elections held after January 1, 2012 as
there are currently no vacancies in the Legislative Assembly and it will be
dissolved less than a year from now."
Despite this, Elections Ontario has consistently refused to test telephone and internet voting in
any by-election since 2012. It has had ample opportunity to do so, in fully nine by-elections.
Two were held on September 6, 2012. Five were held on August 1, 2013. Two more were held
on February 13, 2014.
Elections Ontario has not given a convincing justification for its refusal to test telephone and
internet voting in any of these by-elections. Insofar as the most recent February 13, 2014 byelections were concerned, Elections Ontario has had almost four years to get ready. Elections
Ontario seems unwilling to try it, and has been looking for excuses to justify its inaction. By
failing to test telephone and internet voting in a by-election, Elections Ontario has barred a
standing committee of the Legislature from being able to exercise its new power under Bill 231
to lift the legislative ban on telephone and internet voting.
Third, as indicated above, Bill 231 required Elections Ontario to study alternative voting options
such as telephone and internet voting, and to report to the Legislature on them by June 30, 2013.
Elections Ontario took the full three years to do this study, despite the fact that it could have
been completed far more quickly. We urged Elections Ontario to release an interim report
partway through that three-year period. It declined to do so.
On June 24, 2013, Elections Ontario released its final telephone and internet voting report. That
report put telephone and internet voting off to the indefinite future. It concluded three years of
study by recommending more study. It offered no other options for voters with disabilities to
overcome voting barriers that are amply documented.
We were critical of Elections Ontario's report. Our June 26, 2013 analysis of the Elections
Ontario report included:
"This Report is ultimately a recipe for more delays and more study, without
concrete specifics for its future plans, and with no end in sight. Elections Ontario
says that even after fully three years of study, it is still not ready to test telephone
and internet voting in an Ontario by-election. It is not clear that Elections Ontario
will ever be ready to test these accessible voting technologies. This is so even
though Elections Ontario’s final Report shows that telephone and internet voting
has been deployed in many Ontario municipalities in municipal elections.
Elections Ontario provides no specific and detailed roadmap and plan leading to a
test pilot of telephone and internet voting in an Ontario by-election.
The major impetus for telephone and internet voting in Ontario comes from voters
with disabilities. They want to be able to mark their ballots independently and in
private, and to verify their choice, without facing unfair barriers. For example,
blind or low vision voters, and voters with dyslexia cannot mark their own paper
ballot in their local polling station anywhere they live in Ontario. Below we
address Elections Ontario’s unsuccessful efforts to address the needs of these
voters in the 2011 election.
Despite this core source of the campaign to adopt telephone and internet voting in
Ontario, the main body of Elections Ontario’s final report gives very limited
attention, quite low profile and ultimately short shrift to this disability
accessibility concern, for the most part. A reader of the Report who does not
venture all the way to and through its long Appendix 5 will not fully appreciate
that telephone and internet voting has this tremendous benefit, or that it was the
main thrust of the call for deployment of these voting options. Where the main
body of the final Report purports to summarize the pros and cons of experience
with telephone and internet voting to date in places where these have been used, it
makes no mention of the benefits for voters with disabilities until it eventually
reaches Australia.
The Report in effect condemns telephone and internet voting as unsafe and
untrustworthy, even though it reveals that fully 44 Ontario municipalities and 15
Nova Scotia municipalities have used some form of these voting options in
municipal elections. It is telling that Elections Ontario does not claim that any or
all of those municipal elections were hacked, were insufficiently secured, or
illegitimate or invalid, or that the public lacks confidence in them, due to
telephone and internet voting. The Report does not specifically show why at least
one of the options for telephone and/or internet voting used in even one of those
59 Canadian municipalities cannot safely be tested in an Ontario by-election.
Elections Ontario having in effect given up for the immediate future on telephone
and internet voting as a way to now overcome barriers impeding voters with
disabilities, that important public agency offers no new alternative to address
these recurring barriers. This is all the more troubling since Elections Ontario’s
recent effort to meet those needs has for most voters with disabilities not solve the
problem.
Many of the one million or more voters with disabilities in Ontario cannot
independently and privately mark their own ballot and verify their selection. In
2010, acting on Elections Ontario’s recommendation, the Legislature approved
deployment of a minimum of only one accessible voting machine per riding.
Elections Ontario doubled up in some larger ridings. For all of Ontario, Elections
Ontario only deployed 144 of its accessible voting machines. Voters with
disabilities who wanted to use these machines had to vote in an advance poll and
had to trek all the way to the one or two spots in their entire riding where these
were available.
According to Elections Ontario, a mere 166 voters with disabilities in all of
Ontario use these accessible voting machines in the entire 2011 Ontario general
election. That is a tiny percentage of the voters with disabilities in Ontario who
now face voting barriers. Of those voters who used Elections Ontario’s accessible
voting machines, some encountered problems with these machines, even after
Elections Ontario had already tested and approved them for deployment.
Partway through the three years that Elections Ontario took to prepare this Report,
it unjustifiably dissolved the Disability Advisory Committee that it had just
created months earlier. It therefore presumably couldn’t run this final Report by
that Committee before finalizing it.
Elections Ontario’s main excuse for more delays is its concern about the security
of telephone and internet voting. It never answers our main contention, namely
that if we can reliably bank by phone or on line, and file our taxes on line, why
can’t the Government figure out how to securely vote on line or by phone?
For Elections Ontario to rely so heavily on stated concerns about security of the
vote is especially troubling. This is because the Report uses an unfair and
unjustified double standard about voting security. This works directly against
voters with disabilities.
Elections Ontario uses security criteria which it says telephone and internet voting
can’t now overcome. Yet Elections Ontario does not insist on these criteria when
it now enthusiastically offers voters the option of mail-in ballots. Mail-in ballots
have major security gaps. These are subject to the minimal security of Canada
Post, and an utter lack of security at the voter’s home address. If a voter has a
mail-in ballot at their home, someone else can swipe it, mark the ballot, and mail
it in. Add to that the risk of Canada Post either losing the ballot in the mail en
route to the voter, or en route back to Elections Ontario. Elections Ontario will be
none the wiser. Elections Ontario says that current voting options, that include
mail-in ballots, serve Ontarians well.
Elections Ontario knew well that the Legislature’s aim for this mandatory study
was to address the needs of voters with disabilities. Having now discarded
telephone and internet voting for the present and indefinite future, the main
Report offers the Ontario Legislature no suggestions of other ways to reduce the
many unfair barriers that impede voters with disabilities.
For example, Elections Ontario’s Final Report rejects the option of testing
telephone and internet voting in a by-election now and for an indeterminate time,
but does not offer any other option for testing it. We asked Elections Ontario fully
seven months ago to propose other options for testing telephone and internet
voting, such as during a mock election, or during the next Ontario municipal
elections (where a number of municipalities will deploy telephone and internet
voting).
A June 25, 2013 Toronto star article, set out below, quotes Elections Ontario as
contemplating the possibility of requiring a driver’s license as a mandatory form
of identification for using telephone and internet voting during a by-election test.
This, of course, would constitute a huge barrier for those voters with vision loss,
who don’t qualify for a driver’s licence. These are among the voters who most
pressingly need telephone and internet voting. Elections Ontario acknowledges in
that Toronto Star article that this is an impediment for voters who can’t get a
driver’s licence.
It is true that Ontario makes available a provincial identity card for people who
don’t drive. However, there is a fee. Also, one must trek to a provincial office to
apply. Other voters do not have to pay a fee and make a similar trek to qualify to
privately and independently vote in a provincial election in their home or local
polling station.
Elections Ontario did not need to take fully three years to produce this Report,
which only sets out a framework for possibly testing telephone and internet voting
at some future time. Its contents could easily have been produced with due
diligence within six months after May 2010. In May 2010 the Ontario Legislature
directed Elections Ontario to conduct this study. Elections Ontario’s criteria for
telephone and internet voting could have been devised in minutes, not years.
The Ontario Government under Dalton McGuinty has recognized that voters with
disabilities face too many barriers when trying to exercise the democratic right to
vote. In the 2007 election, Premier McGuinty promised to develop an accessible
elections action plan. In the 2011 Ontario election, Premier McGuinty promised
the following in connection with barriers to voting: “We recognize that there is
more to do, and we will continue to build on our progress when it comes to
making municipal and provincial elections more accessible.”
Over the full year since Elections Ontario made that report public, it has to our knowledge said
nothing about further progress towards accessible voting options for voters with disabilities. On
May 8, 2014, we wrote to Elections Ontario, to ask what progress it has made since rendering
that report on elections accessibility. Among other things, we wrote:
"In your June 2013 report to the Legislature, you recommended that telephone
and internet voting be studied further, in addition to the three years of study that
you had just completed. We would like to know what further specific study you
have conducted of these voting options over the year since you rendered that
report. What results have you obtained from this further study? What specific
plans and timetable do you have for completing any further study on this topic?
As you no doubt know, the City of Toronto is commendably aiming to offer
telephone and internet voting in the October 2014 municipal election for voters
with disabilities. We have urged Elections Ontario to monitor the use of telephone
and internet voting in other venues, such as in municipal elections, in the hope
that this will allay your deep-rooted trepidation about this accessible voting
option.
We would like to know what steps you are taking to monitor and study Toronto's
efforts in the 2014 municipal elections. We also would like to know what efforts
you are deploying to monitor and study the use of telephone and internet voting in
the many other Ontario municipalities that will use these in this fall's municipal
elections. The municipal experience could serve as a testing ground, while
Elections Ontario continues to refuse to use its authority to test telephone and
internet voting in a provincial by-election."
We also inquired:
"What additional accessible voting options will you deploy, or have you
investigated for voters with disabilities, especially since rendering your June 2013
report on telephone and internet voting, in light of your ongoing rejection of
telephone and internet voting?"
Elections Ontario's responses to our letter to date have not addressed these questions. Elections
Ontario has indicated that we can expect further responses. We understand fully that our latest
inquiry came when Elections Ontario was busy administering the June 12, 2014 Ontario election.
Fourth, on March 4, 2013, shortly after Premier Wynne took office as premier, we wrote her to
identify disability accessibility priorities for her. We wrote:
"9. Please designate a minister with lead responsibility to bring forward
legislation and an action plan for ensuring that Ontario and municipal elections
are fully accessible to voters and candidates with disabilities.
In Ontario, provincial and municipal voters and candidates with disabilities
continue to face too many barriers when they seek to take part in provincial and
municipal elections. In the 2007 election, former Premier McGuinty promised to
establish an accessible elections action plan. In the 2011 election, he promised to
continue to build on progress on making municipal and provincial elections more
accessible to voters with disabilities. These promises remain unkept.
Amendments to the Ontario Elections Act and municipal elections legislation in
2010 were insufficient. For example, the accessible option of telephone and
internet voting remains out of our reach, and the reach of voters without
disabilities, except in some Ontario municipalities that have shown real vision by
deploying these voting options in their municipal elections. As for their
deployment in provincial elections, this has been left to the discretion of the
unelected and unaccountable choice of Elections Ontario, which has been too
slow in investigating it.
A single minister in your cabinet should be assigned to comprehensively address
the entire issue of elections accessibility, and to promptly bring forward results in
the form of amendments to Ontario and municipal elections legislation, and an
accessible elections action plan . Ontario needs these election barriers removed
well enough in advance of the next round of Ontario municipal elections, and the
next Ontario general election.
Among other things, Ontario needs new, strong and effective legislation to cover
both provincial and municipal elections. We hope that a consensus could be
reached among the three parties, to enable disability accessibility election reforms
to be passed in the Legislature during this period of minority Government. We are
eager and willing to work with all political parties to achieve that goal."
Since that letter, and up until the recent Ontario election campaign, we heard nothing from the
Government under Premier Wynne on elections accessibility. No minister was appointed to have
lead responsibility for accessibility of municipal and provincial elections.
3. The Parties' 2014 Platforms on Elections Accessibility in the 2014 Ontario Election
In our March 3, 2014 letter to the party leaders, seeking disability accessibility commitments in
advance of a possible spring 2014 election, we sought elections commitments on provincial and
municipal elections. Our letter to the party leaders included:
"We ask your Party to commit to:
13. consult with voters with disabilities for three months immediately after a
spring 2014 election (or no later than by the end of June 2014, if no spring
election is called), and then introduce in the Legislature within 9 months, with a
view to passing a bill that comprehensively and effectively addresses accessibility
needs of voters and candidates with disabilities in provincial and municipal
elections. This bill should, among other things, ensure telephone and internet
voting in Ontario elections and by-elections."
In her May 14, 2014 letter to the AODA Alliance, Liberal leader Kathleen Wynne wrote:
"E. Ensure accessibility of provincial and municipal elections
13. Ensuring the proper accessibility of the provincial and municipal elections
falls in line is a top priority for us to safeguard the interests of Ontarians with
disabilities through ease of access to the provincial and municipal elections as
does every citizen of Ontario. We will ensure that the Ministry of the Attorney
General, Ministry of Municipal Affairs and Housing and Elections Ontario are
committed to providing the best possible services to ensure accessible elections."
NDP leader Andrea Horwath made this commitment in her May 12, 2014 letter to the AODA
Alliance:
"E. Ensure accessibility of provincial and municipal elections
The Ontario NDP brought forward numerous amendments to Bill 231, the Liberal
amendment to the Election Act, which would have strengthened its accessibility
provisions. We remain committed to the issues raised and to ensuring full
accessibility in elections for both voters and candidates. The NDP would
introduce legislation that implements the substantive issues addressed in our
amendments to Bill 231."
In his May 12, 2014 letter to the AODA Alliance on behalf of the Progressive Conservative
Party, Tim Hudak wrote:
"There’s no good reason why a person with a disability should not be able to cast
a vote in an election. It’s also completely unacceptable that someone should be
passed over for a job because of the myth that people with disabilities can’t do the
work. We have a moral and social responsibility to change this.
This is why we’re disappointed the current government has not kept its promise
with respect to accessibility standards. An Ontario PC government is committed
to working with the AODA Alliance to address implementation and enforcement
issues when it comes to these standards."
4. Reflections
Ontario still does not have the accessible elections action plan we were promised in the 2007
election. We have not seen the further progress towards accessible Ontario and municipal
elections that we were promised in the 2011 election.
More than ever, Ontario needs a single strategy to fix the recurring disability barriers in
provincial and municipal elections. Since 2007, we have experienced an ongoing run-around in
trying to find out who is responsible for this issue. No single minister has been appointed to
address this. No public official has approached us to act on this entire topic since the 2011
election, despite our repeated requests.
Municipalities are, in some respects, ahead of the Ontario Government on this issue. In addition
to the 44 municipalities that have already tried telephone and internet voting, more are doing so
in the upcoming 2014 municipal elections. For example, Toronto is working on deploying
telephone and internet voting for voters with disabilities, as a first cut at trying this technology.
It is wrong for Elections Ontario to be left with the final word on telephone and internet voting,
and for it to be left to police itself on accessibility. Elections Ontario has proven over and over
that despite some progress, and many salutary public statements, it cannot simply be trusted to
get it right.
As in other areas addressed in this brief, it is wasteful to require each municipality to reinvent the
same solutions. This unnecessarily multiplies the cost of achieving accessibility, while burdening
persons with disabilities with having to lobby hundreds of municipalities for the same
accommodation.
This slows progress, and costs the taxpayer more, to the benefit of no one.
In her December 3, 2012 letter to the AODA Alliance, Kathleen Wynne promised that if she
becomes Ontario’s premier, she would keep all of Dalton McGuinty’s commitments on
accessibility to people with disabilities. Some six years after it was first promised, Ontario needs
an effective accessible elections action plan more than ever.
With Elections Ontario’s Final Report on telephone and internet voting, the ball is back in the
Government's court. The Premier needs to now assign a cabinet minister with responsibility to
finally keep her Government’s promises on accessible voting for voters with disabilities. The
Government needs real action, and not more studies, to give to Ontarians with disabilities the
rights in the provincial and municipal electoral process that others take for granted.
5. Recommendations on Ensuring Municipal and Provincial Elections are Barrier-free
for People with Disabilities
We urge this Independent Review to make these recommendations:
*#61. The Government should immediately designate a single minister with lead responsibility
for ensuring that both provincial and municipal elections are fully accessible to voters and
candidates with disabilities.
*#62. Elections Ontario should test telephone and internet voting at the next Ontario by-election.
*#63. Elections Ontario should immediately make public:
a) any research on telephone and internet voting since its June 2013 report on telephone and
internet voting.
b) any other options for accessible voting that Elections Ontario has examined or considered
since the October 2011 election, and any conclusions it has reached regarding those options as
solutions to voting accessibility barriers. .
*#64. By October 2014, the Government should appoint an independent person to conduct a
three month independent review of barriers facing voters and candidates with disabilities in
provincial and municipal elections, including both the campaign process and the voting process.
This Review, should, among other things, gather information on the use of telephone and internet
voting in municipal elections in Ontario. This Review should hold an open, accessible and
province-wide public consultation, and report to the public within six months of its appointment.
Its report should be made public immediately on its being submitted to the Government.
*#65. Within six months after the report of the Disability Elections Accessibility Independent
Review, the Government should introduce into the Legislature omnibus elections accessibility
reforms for both municipal and provincial elections, to remove and prevent barriers impeding
voters and candidates with disabilities in the voting process, and in participating in election
campaigns, to ensure that:
a) all voters with disabilities can independently mark their own ballot in private and verify their
choice. This bill should, among other things, ensure telephone and internet voting in Ontario
elections and by-elections.
b) get full physical accessibility to all polling stations and all public areas in polling stations,
c) including sharing at the provincial and municipal levels information on accessible polling
station venues, so each does not have to reinvent the same accessibility wheel.
d) Ensure that election campaign information is immediately and readily available in accessible
formats, and that campaign websites are designed to be fully accessible.
e) ensure that all-candidates debates are accessible.
Part X. Ontario Government - Leading by Example, But By What
Example is it Leading?
1. Introduction
For Ontario to reach full accessibility by 2025, it is important for the Ontario Government to lead
on accessibility by example. The Ontario Public Service is by far Ontario's largest employer and
provider of services to the public.
Other obligated organizations will look to see how seriously the Government takes the AODA. If
the Government does not take its AODA duties seriously, obligated organizations will be
incentivized to think that they can and should do the same. Moreover, if the Government does
not hold itself to full and strict compliance with the AODA, obligated organization won't expect
the Government to expect any more of them.
Both the earlier Conservative Ontario Government under Mike Harris (1995 to 2003) and the
more recent Liberal Ontario Government (2003 to the present) repeatedly said that on
accessibility, they would lead by example. For example, under the Liberals the Government said
it would aim to exceed AODA accessibility requirements. On January 18, 2012, Government
Services Minister Takhar wrote us:
"The Ontario Public Service (OPS) is proud to be a leader in the area of
accessibility, both as an employer and as a service provider. We will be the first
organization in Ontario to meet all of the requirements of the Accessibility for
Ontarians with Disabilities Act, 2005 (AODA), well ahead of the 2025 target. As
such, we are setting a strong example and providing leadership to other
organizations.
The government established the OPS Diversity Office within my ministry. This
dedicated office plays a vital role in ensuring not only that the OPS is in
compliance with AODA standards, but that it goes above and beyond compliance.
The Chief Officer of Diversity and Accessibility reports directly to the Deputy
Minister of Government Services. My ministry is responsible for ensuring that the
OPS achieves its accessibility goals both as an employer and as a service
provider…"
As well, in his August 19, 2011 letter to us, setting out his 2011 election pledges, Premier
McGuinty wrote:
"We are integrating accessibility as a fundamental principle when it comes to
making vital decisions that affect the daily lives of Ontarians."
Over the past years, the Government has taken some commendable steps to achieve accessibility
within its own house. The Government has developed a series of policies on accessibility. For
example, it has established a Government-wide "accessibility at source" policy. This requires
accessibility to be built into all government initiatives, right from the start. In his January 18,
2012 letter to the AODA Alliance referred to above, Government Services Minister Takhar also
wrote:
"In partnership with our corporate services, the OPS Diversity Office has
embedded accessibility considerations at key stages in its decision-making
processes. As you know, the OPS Diversity Office has developed an awardwinning Inclusion Lens to support policy and program review and development,
as well as approval processes. I&IT decision frameworks have been updated to
include accessibility requirements, while key procurement mechanisms, including
vendor of record agreements, are incorporating accessibility requirements as they
are renewed."
Beyond this, the Government has undertaking e-training of the entire Ontario Public Service on
the AODA and accessibility. This training is still being expanded.
Yet there are a series of stunning examples of the Government leading by a very poor example. It
has thereby set back progress towards achieving the AODA's goals. We here give several
examples. Others are scattered throughout this brief, such as the Government's failure to
effectively enforce the AODA(Part II of this brief) and its failure to ensure that it never uses
public money to create, perpetuate or exacerbate disability barriers (Part VII of this brief). We
then offer recommendations for reform.
2. Failure to Put in Place An Effective Front-line Internal System within the
Government for Embedding Accessibility Across the Ontario Public Service
The Ontario Public Service is huge. There is a major risk that accessibility will be relegated to
disempowered and ineffective silos. This would work against the Government's commendable
commitment to embed accessibility in all vital government decisions.
A creative organizational strategy was needed to prevent this. Regrettably, in recent years the
Government had none. To the contrary, it has done three things that have the effect of making
things worse.
First, the deputy minister is the senior public servant within each Ontario Government ministry.
Yet there is now no deputy minister or associate deputy minister (the hierarchical equivalent to a
deputy minister) at the "deputy minister's table" charged with lead full time responsibility for
ensuring that the Ontario Public Service becomes a barrier-free employer and service provider.
A few years ago, the Chief Diversity Officer at the Government Services Ministry had the status
of an associate deputy minister. As such, that public official had a seat at the deputy ministers'
table. As a counterproductive move at some point in the past five years, that position was
downgraded to an assistant deputy minister position. It no longer holds the higher status of an
associate deputy minister. From a hierarchical perspective, that person is no longer on par with a
deputy minister.
In the Ontario Public Service, hierarchy and rank are both deeply substantive and symbolic.
When a position like that is downgraded, it sends a negative signal to all in the Ontario Public
Service. Most significantly, a deputy minister sees another deputy or associate deputy minister as
a peer. They see an assistant deputy minister as a subordinate position, down the ladder.
To explain the second counterproductive measure, we first note that in 2009, to its credit, the
McGuinty Government created the new full-time position of Assistant Deputy Minister of
Government Services for Accessibility. That person had lead responsibility for making the
Ontario Public Service fully accessible as an employer and provider of services to the public.
In the fall of 2010, the first person to occupy this important job announced that he was moving
on to another job, after having done a good job in this post. The Government, to our dismay, did
not fill this full-time vacancy. Instead, it took its second negative action. It piled these full-time
duties on the plate of another Assistant Deputy Minister who already had a full-time job.
We were then told that the Government had not decided if it would restore this full-time
accessibility position, or when a decision on that would be made. On November 24, 2010, the
AODA Alliance wrote to Deputy Minister of Government Services Ron McKerlie, to raise our
concerns about this backwards step on the road to full accessibility. We emphasized that
effective leadership on the accessibility issue within the Ontario Government is at least a fulltime job. We took the position that it was wrong for the Government to even consider
downgrading this vital position to a part-time duty, especially when Ontario was, by then,
already behind schedule for full accessibility by 2025. Our November 24, 2010 letter to Deputy
Minister McKerlie included:
"This development is a real setback in Ontario’s efforts toward becoming fully
accessible by 2025, a goal which the Accessibility for Ontarians with Disabilities
Act requires. We urge the Government to now restore the full time ADM for
Accessibility position, and to fill it as soon as possible.
The importance of the full time position of Assistant Deputy Minister for
Accessibility in your ministry was recently highlighted by an independent review
of the Government’s efforts at accessibility, appointed by this Government. In
2009, the Government appointed Mr. Charles Beer, a former Liberal cabinet
minister, to review the implementation of the Accessibility for Ontarians with
Disabilities Act. This review was mandated by that legislation, four years after it
went into effect.
It is telling that the Beer Report concluded that your ministry’s full-time position
of Assistant Deputy Minister for Accessibility is “vital” for promoting the
Government’s agenda of achieving full accessibility. His Report states:
“Let me add a point that relates to the Ontario government’s compliance
responsibilities as the largest obligated sector under the AODA. While this has
not been a specific focus of my review, it has struck me that as the ADO needs
renewed authority to deliver change, the government as a whole needs to send a
clear signal that it is doing all it can to get its own house in order. The recent
creation of the position of Assistant Deputy Minister — Accessible Public Service
in the Ministry of Government Services is vital for the government to meet its
obligations under the AODA. I have heard from stakeholders that this change is
already having a positive impact.”
His Report, which the Government received last February and made public last
May,
is
available
at:
http://www.aodaalliance.org/strong-effectiveaoda/05312010.asp
Mr. Beer’s report thoroughly documents the need which he identifies for the
Government to revitalize and breathe new life into its implementation of the
Accessibility for Ontarians with Disabilities Act, if Ontario is to reach its
mandatory goal of full accessibility by 2025. It detailed several new measures
needed to ensure that Ontario meets that requirement. Regrettably, the
Government has not announced an intention to implement many if not most of his
key recommendations. See: http://www.aodaalliance.org/strong-effectiveaoda/08112010.asp
We agree with the Beer Report that the full time Assistant Deputy Minister for
Accessibility position at your ministry is vital. Its elimination, even if only
temporarily, in favour of a part-time assignment, bundled with other duties such
as the Government’s broader diversity agenda, weakens Government efforts at
removing disability barriers within the Ontario Public Service.
The Government has repeatedly committed to lead by example in the area of
accessibility. The elimination of the full-time position at your ministry of
Assistant Deputy Minister for Accessibility would lead by the wrong example. It
would signal that achieving accessibility is becoming a lower priority within the
Government. To choose this under-serviced area for downsizing would not be
consistent with stated Government policy on the priority of promoting
accessibility.
The Beer Report concluded that there is a pressing need for the Government to
escalate its efforts on the accessibility agenda, e.g. by creating a Deputy Minister
for accessibility. We endorsed that recommendation. The Government has to date
not implemented it, has not committed to do so, and has given no reasons for this.
It would compound the Government’s failure to show the leadership that the Beer
Report recommended, were it also to eliminate the full time ADM position
responsible for accessibility within the Government that the Beer Report
described as “vital.”
It is our understanding that the only reason the Government is now reconsidering
whether to retain the fulltime position of Assistant Deputy Minister for
Accessibility is because the current occupant of that position has opted to move to
another job. Had he not chosen to do so, the Government hadn’t planned to
eliminate this position, as far as we can tell. It would be wrong for such a
significant backward step as the elimination of this full-time position to be caused
by an individual’s making a personal career choice of taking another job.
I very much appreciated your recently taking the time to speak with me by phone
about our concerns in this area. As the Government deliberates on whether it will
maintain or eliminate this position, we remain eager to provide whatever help and
input we can to assist. We look forward to hearing as soon as possible what plans
the Government has for the future of this position."
For months after this, we got no further response or action from the Government on this issue.
As a result, in the 2011 Ontario general election, we asked the major political parties to commit
to restore this full time position. It was, to us, telling that we had to resort to seeking election
commitments, just to get this position restored, after the Charles Beer Final Report had declared
the position "vital."
In the 2011 election, the governing Ontario Liberal Party pledged to restore this full time
Assistant Deputy Minister position, giving it a more positive gloss by stating that it would create
the position (as if it had not previously existed). In his August 19, 2011 letter to us, setting out
his party's 2011 election commitments, Premier McGuinty wrote:
"We will create a full-time Assistant Deputy Minister position in the Ministry of
Government Services responsible for accessibility, and we will continue to
consider options and advice on how to modernize our government structure to
promote accessibility. The ADM will pay particular attention to breaking down
the barriers and silos experienced across government when implementing
accessibility initiatives."
Four months after that pledge, we wrote Government Services Minister Takhar on December 2,
2011. Among other things, we asked about his plans to keep the Government's promise to restore
this full time assistant deputy minister position. He did not directly answer. Instead, he wrote:
"The Chief Officer of Diversity and Accessibility reports directly to the Deputy
Minister of Government Services."
That is the position into which his ministry had earlier merged with the previously full time
position of Assistant Deputy Minister of Government Services for Accessibility. In other words,
he simply repeated back to us his Government's ongoing breach of that promise, rather than
indicating any plans to keep that promise.
By then, over two and a half years since giving that commitment, and over three and a half years
since it was down-graded to a part time position, the Government had still not restored it to a
fulltime status. This limited the capacity of the person holding that post to tackle the many
barriers and silos in the Ontario Public Service. To this day, that full time position has not been
restored. It continues to be part of the broader duties of the Government's Chief Diversity
Officer, which continues to operate as an assistant deputy minister position.
Third, it was commendable that some time ago, the Government decided that in each ministry,
there should be a position called Accessibility Lead, mandated to lead that ministry's work on
accessibility.
Although this idea is great in principle, it has not been sufficiently effective in practice.
Depending on the ministry, the Accessibility Lead position may be full time or only part time.
Depending on the ministry, the Accessibility Lead may have extensive knowledge about
accessibility, or very little knowledge about it.
Depending on the ministry, the Accessibility Lead position may be buried several rungs down in
the Government hierarchy. When such a position is buried further down on the organizational
ladder, it commands far less influence. We are unaware of any Accessibility Lead who reports
directly to their ministry's deputy minister. Some, potentially many, do not even report to an
assistant deputy minister within their ministry. Where the Accessibility Lead is situated in a
ministry's hierarchy appears to be left to each ministry's discretion.
This sends the wrong signal to the public service. It conveys the message that accessibility is not
an operational priority, no matter what lofty words come from the Government in its policy
statements.
To illustrate this, we need only look to Ontario Public Service history. In the late 1980s, each
ministry had an Employment Equity Manager, buried down in the hierarchy. After 1990, these
positions were elevated to report directly to the deputy minister in each ministry. This had a
positive direct effect. It significantly increased their effectiveness. It conveyed the message
throughout the public service that the Government meant business.
We have been trying for some time to convince the Government to make each Accessibility Lead
a full time position, and to make that position directly report to the deputy minister in the
ministry where they are situated. To date, we have gotten no progress whatsoever. The
Government has not come back to us with a better way to better embed accessibility at the front
lines across the Government.
The fullest response (albeit an indirect one) we have gotten to this proposal, in effect rejecting or
ducking it, came from Government Services Deputy Minister Kevin Costante. In his March 21,
2013 letter to us, he wrote:
"4.
The Role of Chief Administrative Officers (CAOs) in Championing
Accessibility
CAOs are responsible for matters of stewardship, promotion of operational
effectiveness and leading organizational transformation in their organization.
CAO’s generally have a direct role in AODA annual planning, compliance and
training within their organizations. This entails an ongoing dialogue with ministry
divisions and executive offices about accessibility and the underlying importance
of viewing all aspects of ministry business through this lens.
The Diversity Office works closely with a sub-committee of CAOs to provide
advice on accessibility related issues. The Chief Officer, Diversity and
Accessibility, attends sub-committee meetings and provides status updates on
accessibility and AODA compliance requirements. We are exploring the
possibility of making accessibility a standing item on regular CAO meeting
agendas.
Ministry Accessibility Leads are important catalysts in their ministries for
ensuring compliance with the ODA and AODA regulations, providing expertise
and advice on accessibility and raising accessibility issues. The Diversity Office
works closely with the Leads to ensure that they have the information and training
to effectively perform this role. This includes meeting with Leads monthly to
provide support and guidance on IASR implementation, Multi-Year Accessibility
Plan deliverables and progress, and ODA accessibility planning, as well as to
provide updates on various accessibility initiatives and share best practices.
The Diversity Office will also be working with Accessibility Leads and HRO to
develop training modules to further build capacity. I understand that you have
offered to assist with the development of the training modules and welcome your
input."
3. Examples of the Ontario Government Violating or Attempting to Violate Its Own
Disability Accessibility Laws
a) Overview
The most troubling examples of the Government leading by a poor example, has been where the
Government has itself violated its own accessibility legislation, or attempted to do so. Here are
prime illustrations of this. In the instances identified below, where the Government attempted to
do so but did not carry this out, it was because we discovered it and intervened to publicize and
advocate against it. This led the Government to change its plans, and obeying the law.
b) Failure to Appoint this Independent Review by the Mandatory
Deadline
Section 41 of the AODA required that this Independent Review of the AODA be appointed no
later than May 31, 2013. That date was three years after the Government tabled the Charles Beer
AODA Independent Review's final report in the Legislature on May 31, 2011.
Yet Dean Mayo Moran was not appointed to conduct this review until September 10, 2013. That
was 102 days after the mandatory deadline.
The Government has never publicly explained its 102-day violation of its own accessibility
legislation, or the poor example it sets for other organizations.
Well in advance of that deadline, the AODA Alliance reminded the Ontario Government of its
obligation to meet the May 31, 2013 mandatory deadline for appointing this Independent
Review. Within days after Dr. Eric Hoskins took office as the minister responsible for the
AODA, we wrote him to alert him of several key accessibility priorities. This included his duty
to appoint the next AODA Independent Review. Our February 27, 2014 letter to Dr. Hoskins
stated:
"Under section 41 of the AODA, your Government must appoint an Independent
Review to conduct an arms-length consultation on how effectively the AODA has
been implemented. This Review must be appointed and commenced no later than
May 31, 2013, if not sooner. We would welcome the opportunity to consult with
you on the criteria that the Government should use in selecting the person who
will conduct this Independent Review. We have a great deal of experience to
offer. We worked closely with Charles Beer, who conducted the last Independent
Review in 2009-2010."
In our September 10, 2013 AODA Alliance Update, we commended the choice of Dean Mayo
Moran to conduct this Independent Review. However, we added:
"We regret that we have had to divert so much volunteer effort just to get the
Government to live up to its duty under the Disabilities Act to appoint this
Independent Review,' said Lepofsky. For over three months, the AODA Alliance
had to wage a tenacious campaign to get the Government to appoint this
Independent Review, through both the mainstream media and social media. On
Twitter and Facebook, the AODA Alliance has maintained a daily count of the
days elapsed since the Government began to violate the AODA."
On May 31, 2013, the Toronto Star on-line edition ran a guest column by AODA Alliance Chair
David Lepofsky. It bore the headline: "Ontario honours National Access Awareness Week by
breaching province’s disability accessibility law -- Government fails to fulfil its duty to appoint
independent review of the Disabilities Act by May 31." It read in part:
"We expect our government to strictly obey the law. That’s why, today, many
Ontarians with disabilities will feel the Kathleen Wynne Government let them
down.
Premier Wynne’s government recently said that making Ontario accessible for
people with disabilities is a top priority. Yet today her government is in breach of
its own Accessibility for Ontarians with Disabilities Act.
The government didn’t fulfil its duty to appoint a much-needed independent
review of the Disabilities Act by May 31, 2013. That review is required to assess
whether the Disabilities Act is working effectively to ensure that Ontario becomes
fully accessible to Ontarians with disabilities by 2025…
…To help ensure that Ontario doesn’t fall behind schedule for full accessibility,
the Disabilities Act requires the government to appoint periodic independent
reviews to investigate how well progress is proceeding, and to recommend
changes if we’re behind schedule. It’s inexcusable that the government hasn’t
appointed the latest review by May 31. It’s known of this deadline for years. We
reminded the government in writing three months ago. We’ve run a daily
countdown on Twitter.
We want this independent review appointed so it can hear that Ontario is behind
schedule for reaching full accessibility by 2025 and that, in the past two years,
government action has ground down to a snail’s pace. It is a cruel irony that the
government’s tardiness in appointing this independent review delays our efforts to
rectify the government’s tardiness in getting Ontario to the goal of full
accessibility. It’s another cruel irony that the government fails to meet this
deadline that falls during National Access Awareness Week — a week the
government celebrated in the Legislature.
The government’s disregard of its accessibility law’s deadline sends the wrong
message to all organizations around Ontario that must obey accessibility deadlines
set under this law. It flies in the face of the government’s pledge to lead by
example in making Ontario disability-accessible. When running for the Liberal
leadership, Kathleen Wynne promised in writing to ensure Ontario is on schedule
for full accessibility by 2025, to keep Dalton McGuinty’s earlier commitments to
us, and not to weaken anything the Accessibility Act gives us.
In the legislature this week, the NDP asked the government if it will appoint this
review by the May 31 deadline. The responsible minister, Eric Hoskins, said he’d
have an announcement very soon. Since then, the deadline passed.
The government might argue that it matters not if it appoints this independent
review days or weeks late. Yet it matters! The Disabilities Act requires the
government to set and strictly enforce mandatory time lines for all organizations
in Ontario to take effective action to remove and prevent disability barriers. If the
government ignores its own legal deadlines, it signals to others that they can do
the same.
Having missed the deadline, we don’t want the government to appoint just anyone
with a pulse to conduct this review. It must be a respected person, arms-length
from the government, who will impartially listen to all with an open mind, and
offer credible findings and workable solutions.
This is even more frustrating since the government promised to effectively
enforce this law. Yet the media reports about some restaurants and stores that
deny customer service to people with disabilities, despite government boasting
about its Customer Service Accessibility Standard.
Early on, this government commendably showed it can act promptly and boldly
on accessibility. When it took office in 2003, it developed a comprehensive
Disabilities Act within months, that won significant community support and allparty approval. It then promptly got to work on implementing the law. While we
weren’t fully satisfied with the initial results, we saw real potential.
Yet in the past two years, the government has largely slowed to a crawl on this
issue. It’s not because it only has a minority government. To speed up progress
toward accessibility, the government needs to win no votes in the Legislature.
Three years ago, the last independent review of the Disabilities Act was appointed
on time. It urged the government to show strengthened leadership and revitalize
this law’s implementation. Sadly, the government didn’t…
…Today’s failure to obey the law should be a wake-up call to the government to
take the entire accessibility issue off its back burner where it has languished for
two years. Let today’s bad news spur our new premier to act decisively, boldly
and broadly on accessibility. Let it cause her to restore the swiftness,
determination and vigour on this issue that the government commendably
demonstrated a decade ago, and to keep all her commitments on accessibility."
This violation of the AODA has had significant consequences for people with disabilities. Had
the Independent Review been appointed on time, a final report could have been rendered before
the 2014 spring Ontario election. That would have enabled voters with disabilities to ask the
parties for election commitments on implementing this Independent Review's recommendations.
c)
Illegally Abolishing
Accommodation Fund
the
Government's
Statutory
Employment
In 2011, the Government violated the statutory duty to maintain a fund for financing workplace
accommodations of Ontario public servants with disabilities. The only reason this unlawful and
extremely unwise decision got reversed was that we found out about it, confronted the deputy
minister who was ultimately responsible for it within the Government, and insisted on its being
reversed.
For over two decades the Ontario Government has commendably maintained a central internal
fund to pay for the cost of accommodating the workplace needs of Ontario Public Service
employees with disabilities. This "Employment Accommodation Fund" has made a real and
positive difference for persons with disabilities working in the Ontario Public Service.
We were shocked to receive informal word in June 2011 that the Ontario Government had
recently abolished this Fund. It had not widely publicized the Fund's cancellation. It had not
notified Ontario public servants with disabilities who had depended on it, that it was being
abolished. It had not consulted the disability community, or Ontario public servants with
disabilities, before taking this counterproductive step.
The Government's cancellation of this Fund directly violated Section 8 of the Ontarians with
Disabilities Act 2001. The Government Services Ministry operated that Fund. That same
ministry had lead responsibility for ensuring that the Ontario Public Service complies with the
Ontarians with Disabilities Act 2001 and the AODA.
Section 8 of the Ontarians with Disabilities Act 2001 requires the Government to maintain that
Fund. Section 8 2001 provides in part:
"8. (5) The Management Board Secretariat shall, out of the money appropriated
annually to it for this purpose, authorize reimbursement to a ministry for eligible
expenses that the ministry has incurred in fulfilling the ministry's obligations
under subsections (1) and (2).
Amount of reimbursement
(6) The reimbursement shall be in the amount that the Management Board
Secretariat determines and be made in accordance with the guidelines established
by the Management Board Secretariat."
Immediately upon learning of this development, the AODA Alliance wrote to Deputy Minister of
Government Services Ron McKerlie on Friday, June 24, 2011. We objected to the decision,
asked for the reasons for cancelling the Fund, and called for the Fund to be restored.
The Deputy Minister promptly contacted the AODA Alliance. In a telephone conversation on the
morning of June 28, 2011, he advised AODA Alliance chair David Lepofsky that the
Government would be restoring the Fund. The AODA Alliance then wrote to the Deputy
Minister, offering to use this troubling incident for the positive purpose of improving the Fund,
better informing Ontario Public Service employees about it, and finding out how such a wrongheaded decision ever came about in the first place. Our June 24, 2011 letter to the Deputy
Minister stated in part:
"It was a very serious error for your Ministry to have eliminated this Fund. It was
also a very serious error not to have properly consulted with persons with
disabilities before deciding to take such an action.
To the extent that your Ministry's officials may have thought that there is no
longer any need for this Fund, they would be quite misinformed. Ontario
Government offices, branches and divisions are given annual operating budges
that do not include allocations to meet workplace accommodation needs of
employees with disabilities. A manager in the Ontario Public Service who needs
to accommodate an employee with a disability, and who wants to do so, may not
have the needed funds allocated in his or her budget. The duty to accommodate
rests with the Ontario Government as a whole, not individual offices or branches.
The central Accommodation Fund enables individual managers to more
effectively meet their accommodation obligations. It also enables the Government
as a whole to overcome the barriers to effective workplace accommodation that
arise from the way individual offices' budgets are designed.
If your officials did not know this, and made a decision to eliminate the Fund, this
raises serious concerns for us. If they did know this, and decided to eliminate the
Fund despite it, that too would be very troubling. If they did not know this Fund is
required by law, that would make things worse.
If this decision had been motivated by any reduction in utilization of the Fund by
Ontario Government employees with disabilities, this could well be due to a
failure to adequately apprise those employees and their managers of the
availability of the Fund. When this Fund has been operating in the most robust
fashion, it has served as an important means to reduce impediments to
employment of persons with disabilities within the Ontario Public Service.
May we suggest that we together convert the very wrong-headed elimination of
the Fund into a positive opportunity. Now that you are moving to restore the
Fund, we would welcome the chance to work with you and your Ministry to see
how to strengthen it. Let us work together so the Fund, once restored, is
streamlined and operates as it did in the most robust days of the early 1990s. Let
us also collaborate on strategies to better inform employees with disabilities and
their managers about the availability of the Fund.
We ask you to also take positive actions to make sure your officials don't do this
again. It is important for your Ministry to investigate how such a wrong-headed
action was decided upon when it was contrary to Ontario legislation, contrary to
the Government's direction under the new Integrated Accessibility Regulation
enacted under the AODA, and contrary to good policy. Whoever proposed this
and carried it forward would benefit from learning about the needs of Ontario
Government employees with disabilities."
Our letter later continued:
"We would be pleased to assist you in following up on strategies to ensure that
such erroneous decisions are not made in the future, once you have done a post
mortem on these recent events. We also appreciated your invitation to let you
know directly if any further problems arise on the accessibility front."
The Government never publicly accounted for this fundamental violation of the Ontarians with
Disabilities Act 2001. It has not explained how it came about, or who was responsible for it. It
has not identified any steps for holding accountable the public officials who led this decision. It
has announced no steps to ensure that it does not happen again.
Such a major operational decision as the cancelling of this Fund does not quickly and magically
occur within a large government organization. It must go through several levels of policy and
budget approvals. The Government has in place public officials, such as its Chief Diversity
Officer, and its ministry legal branch, who are supposed to be "fail safe" protections against such
counter-productive actions. We have received no indication that the chief Diversity Officer was
even consulted in advance, or that the Government checked with its lawyers to see if this action
was legal, before it decided to cancel this legally-mandatory Fund. The only public record of this
event of which we are aware is our June 28, 2011 AODA Alliance Update, which made this
entire transaction public.
d) Attempting to Amend the IASR without Following Mandatory AODA
Provisions on Revising an Existing Accessibility Standard
In the 2012 fall, the Government tried to amend the IASR without obeying the AODA's
mandatory statutory procedure for revising an existing accessibility standard. On August 15,
2012 just fourteen months after the Government enacted the IASR, it posted for public comment
a package of amendments to the IASR to address built environment barriers in public spaces. We
didn't then and don't now object to its procedure for proposing those amendments. In Part III of
this brief, we address their substantive content.
However, we strenuously objected to the fact that tacked on to that proposal were a series of
amendments to parts of the IASR that had earlier been enacted in June 2011. On August 29,
2012, we wrote Community and Social Services Minister John Milloy to set out in detail our
objection. That letter stated in part:
"We were taken completely by surprise on August 15, 2012 to learn from your
web posting about your Government's proposed amendments to the 2011 IAR that
have nothing to do with barriers against persons with disabilities in the built
environment. Before this, in the many formal and informal dealings we have had
with your Government at all levels since June 2011 (when the IAR was enacted),
no one told us that your Government was considering any amendments to the
IAR. We have spoken to your Government at all levels many times over that
period about future plans for accessibility standards to be proposed under the
AODA. There were innumerable opportunities to specifically raise your
Government's plans about possibly amending the IAR with us. We would have
had lots to say.
1.
The Government is Wrongly Skipping over Important Requirements in the
AODA for Revising an Accessibility Standard Regulation
We are deeply concerned because your Government has failed to take all the
important steps it is required to take under the Accessibility for Ontarians with
Disabilities Act (AODA) before it can post a draft regulation to amend the 2011
IAR. The Government cannot amend the 2011 IAR simply by posting a draft
regulation, receiving public comments on it, and then passing these changes either
as is, or with more modifications. Such an inadequate process is what your
Government is here inappropriately proposing to do.
Sections 6 to 10 of the AODA require that before the government may enact a
new accessibility standard, or may revise an existing one, it must take a series of
mandatory steps. These steps are intended to ensure that the process for
developing a new accessibility standard, or for revising an existing accessibility
standard, is fair, open and fully consultative. They aim to ensure that at all stages
when a new accessibility standard is being developed, or when revisions to an
existing accessibility standard are being considered, persons with disabilities and
others have a full opportunity for input, including a full opportunity for dialogue
across the table with other stakeholders, such as the private sector and the broader
public sector.
Before the Government can revise an existing accessibility standard regulation, it
must reconstitute the Standards Development Committee under the AODA that
initially recommended that accessibility standard's enactment. That Standards
Development Committee must follow all the procedures set out in the AODA to
get input from the public, including the disability community.
The Standards Development Committee must then submit an initial proposal to
the Government for changes to the existing accessibility standard regulation. The
public must then be given a chance to comment on this proposal. After that, the
Standards Development Committee must develop a final proposal, taking into
account the public's input on its initial proposal.
The government can then review the Standards Development Committee's final
proposal and decide what changes, if any, it wants to make to the existing
accessibility standard regulation. Only after that can the Government post a draft
regulation on the internet for public comment, in order to amend an existing
accessibility standard regulation. After that, the government must assess the
public feedback it receives on its posted regulation. Once all of that is done, the
government can pass a regulation that amends an existing accessibility standard
regulation.
It is open to the Government at any time after an accessibility standard regulation
has been enacted to assign the Standards Development Committee to review it
and make recommendations to revise it. In any event, the AODA requires the
Government to assign the Standards Development Committee to review that
existing accessibility standard regulation and to recommend any needed changes
no later than five years after the existing accessibility standard regulation was
enacted.
Section 9(9) of the AODA provides in material part:
"9 (9) Within five years after an accessibility standard is adopted by regulation or
at such earlier time as the Minister may specify, the standards development
committee responsible for the industry, sector of the economy or class of persons
or organizations to which the standard applies shall,
(a) re-examine the long-term accessibility objectives determined under
subsection (2);
(b) if required, revise the measures, policies, practices and requirements to be
implemented on or before January 1, 2025 and the time-frame for their
implementation;
(c) develop another proposed accessibility standard containing such additions or
modifications to the existing accessibility standard as the standards development
committee deems advisable and submit it to the Minister for the purposes of
making the proposed standard public and receiving comments in accordance with
section 10; and
(d) make such changes it considers advisable to the proposed accessibility
standard developed under clause (c) based on the comments received under
section 10 and provide the Minister with the subsequent proposed accessibility
standard."
Several years ago, your government commendably appointed Standards
Development Committees to develop recommendations for accessibility standards
in the areas of transportation, of information and communication, and of
employment. In June 2011, as a result of the extensive work of those Standards
Development Committees, and after very extensive direct Government
discussions with us, with the broader disability community and with other
stakeholders, your government ultimately enacted the 2011 IAR.
Your government will be obliged to reconstitute these Standards Development
Committees, or an amalgamation of those Committees, to review that regulation
within five years of its 2011 enactment. Those Standards Development
Committees will be able to recommend any additions, changes or revisions to the
2011 IAR. To date, your government has not reconstituted those Committees, or
an amalgamation of those Committees, to undertake a review of the 2011 IAR.
Put simply, your government cannot unilaterally post a draft regulation with
proposed amendments to the 2011 IAR, now, without first subjecting it to a
Standards Development Committee process. Your Government cannot pick and
choose when it will follow the AODA's mandatory requirements.
This is not some tedious technicality. The AODA provisions governing the
development, review, and revision of accessibility standards were the product of
very extensive discussions, consultations and negotiations between 2003 and 2005
with all stakeholders, including the disability community.
Many Ontarians with disabilities fought long and hard for this legislation. Many
Ontarians with disabilities campaigned vigorously to ensure that the legislation
included important safeguards like the ones just described, to protect the
accessibility standards that are developed and enacted under it.
Even then, since the 2005 enactment of the AODA, we have also had to campaign
vigorously to try to get added protections for the Standards Development
Committee process. For example, after 2005, when your government initially
established its first Standards Development Committees, it did not ensure that
people with disabilities had equal representation on those committees. Our
community, and its concerns, were outnumbered, under-represented and
overpowered.
As a result of that unfairness, on September 14, 2007, Premier McGuinty made a
series of election commitments at our request. He promised to ensure that persons
with disabilities would have 50% representation on all Standards Development
Committees. He pledged that every recommendation that a Standards
Development Committee considered could be separately voted on clause-byclause to ensure that our voices could be fairly heard. He committed that
Standards Development Committees could consult with the public including the
disability community. He promised that disability sector representation on each
Standards Development Committee would have new Ministry staff support to
assist them. Premier McGuinty's September 14, 2007 letter to us, setting out his
election commitments, is available at http://www.aodaalliance.org/strongeffective-aoda/09142007.asp
Your Government here in effect proposes to end-run both important protections
for persons with disabilities in the legislation itself and the added guarantees set
out in the Premier's important 2007 election commitments.
This is not fair. It also sends very bad signals to the public. If the Government is
not going to strictly obey the AODA, how can it expect others to do so? For the
Government to do this now implies that anyone, unhappy with an existing
accessibility standard regulation, can try to end-run the legislation by simply
asking you and your Ministry to amend that existing accessibility standard
regulation without first submitting the issue to the mandatory Standards
Development Committee deliberative process.
2. The AODA Creates No Exception or Exemption for Minor or Technical
Amendments to an Accessibility Regulation
It is no answer to our concerns that your government's August 15, 2012 web
posting calls these proposed amendments to the 2011 IAR minor and technical
changes, said to be aimed at clarifying the IAR and making it easier for
organizations to comply. The Ministry's website's August 15, 2012 posting on
these amendments states:
"The draft standards also propose minor technical amendments to the Integrated
Accessibility Standards Regulation to:
•
•
clarify some of the requirements
make it easier for organizations to implement them."
Nothing we have found in the AODA creates such an exception or exemption
from the mandatory standards development process that we described earlier in
this letter. Your government's new approach to amending an existing accessibility
standard regulation creates a dangerous loophole through which a truck might
later be driven.
By your government's new approach, it can at any time amend any accessibility
standard to make it "easier" for an organization to comply with that accessibility
standard, without first submitting the issue to a Standards Development
Committee. Your government could presumably unilaterally repeal any
requirement in a standard, or lengthen any time line in a standard, that you've
already passed into law. To repeal barrier removal and barrier prevention
requirements would make it easier for an organization to comply. To lengthen
time lines for removing and preventing barriers would also make it easier for an
organization to comply. That could gut a standard without any of the safeguards
in the legislation for which we fought so long and hard.
Such a lopsided view of the process for developing or amending accessibility
standards is unfair to people with disabilities. It undermines the goal of achieving
full accessibility for all Ontarians with disabilities by 2025.
3. The Government's Proposed Amendments to the IAR Are Not All Merely
Minor or Technical
We have not had a full opportunity to study all the ramifications of your proposed
amendments to the Integrated Accessibility Regulation. We would raise the
serious concerns set out in this letter, even if we concluded that all your proposed
amendments were great – even if they all had strengthened the IAR.
In any event, from our first review of them, it is clear that at least some of the
Government's proposed amendments to the 2011 IAR are not all "minor" and
"technical."
Your government proposes to amend the IAR's requirements for an educational
institution to ensure the accessibility of its library collection. That amendment
appears to reduce the right of accessibility to an educational institution's library
materials. Your amendment would only allow a student in that educational
institution to assert a need for accessibility of those library materials.
That leaves out in the cold any faculty and other staff members with disabilities at
the educational institution who equally might need those educational materials in
an accessible format. As well, your amendment leaves unprotected visiting
scholars and other members of the public with disabilities who are entitled to go
to that educational institution's library and make use of those library materials.
The IAR s. 18 now provides in material part:
"Libraries of educational and training institutions
18. (1) Subject to subsection (2)and where available, the libraries of educational
and training institutions that are obligated organizations shall provide, procure or
acquire by other means an accessible or conversion ready format of print, digital
or multimedia resources or materials for a person with a disability, upon
request…"
In contrast, section 4 of the new proposed regulation states:
"4. Subsection 18 (1) of the Regulation is revoked and the following is
substituted:
Libraries of educational and training institutions
(1)
Subject to subsection (2) and where available, the libraries of educational
or training institutions that are obligated organizations shall provide, procure or
acquire by other means an accessible or conversion ready format of print, digital
or multimedia resources or materials for a person with a disability who is a
student of the educational or training institute, upon request."
We should not have to now fight a rear-guard battle to preserve what we gained
last year in the IAR. Your Government should not incorrectly claim to the public
that these amendments are all merely "minor and technical."
4. The Government is Breaching Its 2011 Election Promise Not to Reduce
Protections for People with Disabilities
To the extent that your proposed amendments to the IAR can reduce protections
for persons with disabilities, this directly breaches your government's 2011
election commitments to us. In his August 19, 2011 letter to us, setting out your
Government's 2011 election accessibility commitments, Premier McGuinty
pledged: "We will ensure that we maintain and/or strengthen the current
provisions and protections in the AODA or any regulations enacted under the
legislation." Premier McGuinty's August 19, 2011 letter to the AODA Alliance
can be found at http://www.aodaalliance.org/strong-effective-aoda/090220111.asp
Moreover, your failure to obey the AODA's requirements for revising an existing
accessibility standard regulation itself breaches the Premier's 2011 pledge not to
cut back on gains we had made to date. One important gain we had made, up until
now, is a clear requirement on how an existing accessibility standard regulation
could be amended, i.e. through strict compliance with section 9 of the AODA.
5. The Government has Not Given the Public a Clear Explanation of Its Proposed
Amendments to the Integrated Accessibility Regulation
Making this situation worse, your government has not posted along with these
proposed amendments to the 2011 IAR a proper, clear and detailed explanation of
what each amendment proposes to do. Its terse posting does not enable a reader to
know exactly what the Government is changing and why it is doing so. Your
website only includes a very vague posting on topic. It states:
"The draft standards also propose minor technical amendments to the Integrated
Accessibility Standards Regulation to:
• clarify some of the requirements
• make it easier for organizations to implement them
The proposed technical amendments cover:
• Accessibility plans: allowing public sector organizations to create joint plans
• Libraries of educational and training institutions: specifying that accessible
resources or materials be provided to students of these institutions
• Accessible formats and communications support for employees: removing
duplicative requirement for employers to consult with employees when
determining formats and supports
• Courtesy seating: amending ‘courtesy’ seating references to ‘priority’ seating
• Pre-boarding announcements: clarifying requirements and reducing duplication
• Requirements re grab bars, etc.: clarifying requirements for placement of grab
bars, handholds etc. on conventional transportation vehicles
• Duties of municipalities: clarifying that contracted third parties must be involved
in consultations as appropriate
• Accessibility reports: clarifying dates for organizations to submit their
accessibility reports."
The Government's terse summary of its proposed amendments to the 2011
Integrated
Accessibility
Regulation
is
currently
available
at:
http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/built_environment/reg
ulation_summary.aspx
For example, the Government's posted explanation of its libraries amendment,
addressed earlier in this letter, is entirely incomplete and uninformative. It says:
"Libraries of educational and training institutions: specifying that accessible
resources or materials be provided to students of these institutions." The
Government does not thereby alert the public that this proposed amendment to the
IAR reduces protections that the IAR now extends to employees and visitor's to
that educational institution.
In sharp contrast, in the past, when your government earlier posted other proposed
accessibility regulations and standards, it commendably often had accompanied
them with detailed, plain-language summaries. Those let members of the public,
whether from the disability community or not, understand them and comment on
them, without needing a lawyer.
Here, an interested member of the public may well need to hire a lawyer to try to
wade through the technical language of the 2011 IAR, and compare it to your
proposed amendments, to figure out what these proposed amendments mean. By
just reading the Government's terse web posting's summary set out above,
members of the public, including the disability community, might be unfairly led
to conclude that these proposed amendments are all are inconsequential and are
not worth exploring any further.
In his September 2007 election promises to us, Premier McGuinty committed that
"Our process for developing standards is one that is open and consultative." Yet
consulting on a document that many if not most won't be able to readily read and
digest is not open and truly consultative.
The government is allowing forty-five days for people to learn about these
proposed amendments and to give feedback. One third of this period is taking
place during the second half of August, when many are unavailable due to
holidays and other commitments.
6. The Government Will Leave a Cloud of Uncertainty over the Validity of any
Amendments to the IAR Enacted in This Incorrect Way
To enact amendments to the 2011 IAR without complying strictly with the
requirements of the AODA, will leave a cloud over those amendments.
Organizations in the public and private sectors will not be certain if they were
lawfully enacted. They will not know whether they should comply with the
amendment, or with the original regulation before it was amended.
This too does a major disservice to people with disabilities and to organizations in
the public and private sectors who are obliged to comply with AODA
accessibility standards. They should be able to have confidence that the
Government has strictly followed the AODA in developing them.
7. Conclusion – An Avoidable Problem and a Simple Solution
We are not saying that the Government may never make the changes to the 2011
IAR that it is here contemplating. Rather, there is a simple and expeditious
solution to our concerns.
We recommend that the government now announce that it will for the time being
stop its 45-day consultation on these proposed amendments to the 2011 IAR that
have nothing to do with the built environment. Of course, the 45 day consultation
period on the Government's proposed new standards for public spaces in the built
environment can continue on schedule.
It would remain open to your government to submit its proposed IAR
amendments to a Standards Development Committee process. There they can be
properly explored in an environment where people with disabilities will have their
promised supports and equal representation at the table.
This would, for example, enable people with disabilities and others to properly
and openly identify and discuss whether there are other "minor" and "technical"
amendments that they might wish made to the 2011 IAR. It would be very helpful
and appropriate through that process for the Government to make public an
informative summary that explains exactly what its proposed amendments would
do and why they are needed.
This does not need to be a long process. On May 24, 2012 in Toronto, Ellen
Waxman, the assistant deputy minister of Community and Social Services for the
Accessibility Directorate, publicly announced that your government is aiming to
have a new, streamlined Standards Development Committee process in place
under the AODA by the start of 2013. It would be open to your government to
submit these proposed 2011 IAR amendments to that new process in early 2013,
if it did not want to establish some earlier process to do so now.
We regret that your Government has chosen to proceed as it has. For us to now
have to address this issue will distract us and others from the important tasks of
providing input on the public spaces built environment proposals, and on the next
major accessibility standards to be developed. Those issues are the ones which
should be your and our core focus.
Had your Government discussed its contemplated course of action with us well in
advance, and certainly well before it posted its draft amendments to the IAR on
August 15, 2012, we would have alerted you to these concerns. Your Government
could have avoided this issue. As you know from our extensive dealings with
your Government, we always try to provide constructive non-partisan input and
advice, including alerting the Government to possible risks.
Please keep Premier McGuinty's election commitments to us. Please respect the
letter and the spirit of the legislation for which your government was so widely
congratulated.
Please do not simply dig in, and decline to change direction now. Please do what
is best for ensuring public confidence in the AODA and in any accessibility
standards enacted under it.
If you opt to disregard the concerns raised in this letter, and to forge ahead with
the proposed amendments to the IAR that have nothing to do with the built
environment, please now publicly explain to us and to the public why you believe
your Government can do so, when the provisions of the AODA do not provide
any such exceptions or exemptions from the guarantees we won in that legislation
for amendments to accessibility standards regulation. Please tell us what
provisions of the AODA let you proceed in the way you have proposed. Please
explain to us and to the public why you have tabled any amendments that can cut
back on our previous gains, contrary to Premier McGuinty's 2011 election
promises to us.
As always, we would be pleased to do whatever we can to assist you in addressing
these concerns."
Eventually, the Government backed down. It did not pass those proposed amendments when it
enacted the Public Spaces provisions of the IASR. It gave no public explanation for this. It didn't
afterwards submit those proposed amendments to a Standards Development committee for
proper consideration in accordance with the AODA's provisions for revising an existing
accessibility standard.
e) Violating the Statutory Deadline for Making an Accessibility Standard
after One is Recommended
As is described in Part V of this brief, the Government appears to have repeatedly contravened
the AODA's mandatory 90-day time line for the minister, responsible for the AODA, to
recommend to Cabinet what to enact in an accessibility standard, after a Standards Development
committee made a final recommendation for that standard, as is required by s. 8(7) and (8) of the
AODA.
4. Recent Government Initiatives to Improve its Implementation of the AODA Have Not
Made a Significant Difference
a) Overview - Impact of Moving the Lead Responsibility for the AODA's
Implementation and Enforcement to the Ministry of Economic Development,
Trade and Employment
To its credit, in the past two years, the Government took some action to improve the AODA's
implementation. Unfortunately, to date, these measures have not made a positive difference.
They have not lived up to the optimistic expectations. There has been enough time for them to
make a difference.
Shortly after Kathleen Wynne became premier in February 2013, her February 19, 2013 Throne
Speech announced that the Government was moving the Accessibility Directorate of Ontario
from the Community and Social Services Ministry (where it had resided since the AODA was
enacted in 2005) to the Economic Development and Trade Ministry. The Government also
expanded that Ministry's mandate to include employment. It was renamed the Ministry of
Economic Development, Trade and Employment.
We applauded this move. Our February 19, 2013 AODA Alliance Update said in part:
"This is a refreshing, positive and promising announcement, because:
* The Accessibility Directorate of Ontario, which oversees and leads Ontario’s
development and implementation of accessibility standards under the
Accessibility for Ontarians with Disabilities Act, is far more appropriately
situated at the Ministry of Economic Development, Trade and Employment.
Achieving accessibility for Ontarians with disabilities is not a social service. It is
far better seen as a pressing economic necessity. It must be a bedrock part of any
economic development strategy for Ontario…
…
* The Ministry of Economic Development, Trade and Employment works far
more extensively with Ontario’s private sector. It is in a better position to fully
and positively engage the private sector in the enterprise of making Ontario fully
accessible to persons with disabilities. Ontario’s economic development should
draw fully on the talents of Ontarians with disabilities who want to take full part
in the workforce. The products and services that Ontario creates and sells at home
and abroad should incorporate universal design principles so that customers with
disabilities here and around the world can use them.
* The Ministry of Community and Social Services is going to be swamped in the
coming months with the important task of leading social assistance reform. Its
minister would likely not have the time to devote to the accessibility agenda that
the accessibility issue deserves.
* The Wynne Government has commendably expanded the mandate of the
Ministry of Economic Development to include the important area of employment.
That is why the Ministry has just been renamed the “Ministry of Economic
Development, Trade and Employment.”
Ontarians with disabilities continue to face chronic unemployment rates that are
multiples of the national average facing all Canadians. As the 2012 report on
social assistance co-authored by Frances Lankin properly concluded, recent
accessibility standards enacted under the AODA addressing barriers in
employment are not sufficient to solve this problem. It is a promising step forward
that the new Ontario cabinet minister responsible for advancing the overall goal of
higher employment rates in Ontario will also have lead responsibility for
accessibility of employment for persons with disabilities.
We commend the Wynne Government for taking this promising step. It can help
revitalize and breathe new life into the implementation of the Accessibility for
Ontarians with Disabilities Act. We also echo the Government’s call for the
private sector to take concerted action to expand employment opportunities for
persons with disabilities."
Despite our initial optimism, we have received informal word from various corners indicating
that the Accessibility Directorate's move to the Economic Development, Trade and Employment
ministry was not smooth. We are concerned about the possibility that the Ministry did not
welcome the Accessibility Directorate, or feel that it was appropriate there. Even if some within
the Ministry perceived such, be this perception accurate or not, this is a matter of serious
concern.
It is the elected Government's responsibility to decide where to situate the Accessibility
Directorate of Ontario. It is the responsibility of the Ontario Public Service to implement such
policy directives. It is the responsibility of that ministry's senior management team to ensure that
the transfer is carried out in a smooth, positive and efficient manner. Whether or not the
information we have received is accurate, the very perception of such difficulties can only
contribute to further delay in ensuring full accessibility by 2025.
As this brief demonstrates time and again, the Government's implementation of the AODA has
substantially slowed since the 2011 summer and ground down to a virtual halt since early 2013.
During the period that the Economic Development, Trade and Employment Ministry had lead
responsibility for this issue, we have seen virtually no action. We cannot attribute this to the
Accessibility Directorate. That organization simply moved from one ministry to another.
We here more closely consider what impact that move had in these areas:
a) Incorporating accessibility as a criterion in all the Ministry's programs
b) Expanding employment opportunities for persons with disabilities
c) Getting Ontario businesses to produce goods and services that are accessible for persons with
disabilities, to help expand our international trade and generally ensuring that the Accessibility
Directorate of Ontario was quickly and smoothly integrated into the Ministry.
b) Incorporating Accessibility into the Economic Development, Trade
and Employment Ministry's Programs
We had hoped that the Government would move quickly to incorporate accessibility into the
various programs of that Ministry. We quickly wrote the new minister, Dr. Eric Hoskins, to
propose this, among priority accessibility actions for his Ministry. Our February 27, 2013 letter
to Dr. Hoskins stated:
"We encourage you to capitalize on and build upon the Premier’s decision to
move lead responsibility for the AODA to you and your Ministry. It is important
for your ministry to incorporate disability accessibility as a prominent part of all
of your Ministry’s strategies, programs and initiatives for promoting Ontario’s
economic development, trade and employment. Your ministry and its programs
should promote Ontario’s public and private sectors to produce world-leading
goods, services and facilities that incorporate principles of universal design so that
everyone can use and benefit from them, including persons with disabilities. This
would substantially expand Ontario’s market for its goods around the world. The
demand for accessible goods, services and facilities continues to grow. The
U.S.A., the European Union and other global markets are ramping up their
commitments to accessibility.
As well, while your Ministry fosters the expansion of employment in Ontario, it
must ensure that this includes substantially expanding employment opportunities
for persons with disabilities. They have historically faced unemployment rates
that are cruel multiples of the national average. The Ontario workplace of five
years from now will be fully accessible to employees with disabilities only if
effective efforts are deployed now to plan to achieve that goal. The employment
accessibility provisions of the 2011 Integrated Accessibility Regulation, while
helpful, are not sufficient to meet this goal.
The efforts we recommend to you are all good for Ontario’s economy. Your
Government commissioned a major study some years ago into the costs and
benefits of making Ontario fully accessible too persons with disabilities. The
Martin Prosperity Institute’s 2010 report concluded that making Ontario fully
accessible to persons with disabilities is economically beneficial for Ontario, and
that leaving barriers against persons with disabilities in place hurts Ontario's
economy.
…
We therefore ask your ministry to promptly develop and implement a concerted
and comprehensive strategy for incorporating accessibility of goods, services,
facilities and employment as an integral part of all your economic development,
trade and employment activities. It should be a clear, vocal and visible part of
your outreach to and collaboration with business in Ontario. It should be
incorporated as a condition of grants and subsidies for economic development,
trade or employment that your ministry provides to the broader public and the
private sectors. As part of your international trade missions, you should
incorporate as a key component, the marketing of goods, services and facilities
that are made in Ontario and that incorporate universal design principles. Persons
with disabilities are a huge market, numbering at least one billion people around
the world. In preparation or such trade missions, you should alert business leaders
of this new agenda, so they in turn can do their best to be ready to meet this new
and growing global demand for accessible goods, services and facilities.
We strongly urge you, your deputy minister and other leading Ministry officials to
mainstream the message of disability accessibility in speeches and presentations
to business and other audiences. This should not be limited to events that are
focused on accessibility. It should be embedded throughout the public messaging
that your Ministry delivers face-to-face here and abroad.
Our proposals here would help fulfill one of your Government’s important 2011
election commitments to Ontarians with disabilities. In the 2011 election, former
Premier McGuinty committed that your government is incorporating disability
accessibility considerations in all major government decisions. In his August 19,
2011 letter to us, he wrote: "We are integrating accessibility as a fundamental
principle when it comes to making vital decisions that affect the daily lives of
Ontarians."
This was our second attempt at urging this. Earlier, back on December 2, 2011, we had written to
the previous Economic Development and Trade Minister, Brad Duguid, to recommend that his
Ministry (then not responsible for implementing and enforcing the AODA) incorporate disability
accessibility into its economic development, trade and innovation strategies and efforts.
Minister Duguid's January 16, 2012 response to us did not answer this specific request. Rather, it
talked in very general terms about the Government's commitment to comply with accessibility
standards enacted under the AODA. After that, and up until the February 2013 Throne Speech,
we received no indication from Minister Duguid or from his Ministry that they were taking any
actions on our recommendation. We hoped in February 2013, that with the arrival at that
ministry of Dr. Hoskins, and with his ministry's assumption of lead responsibility for the AODA,
things would take a positive turn at that ministry.
The Government's initial signal to us after this exchange was promising. In Dr. Hoskins' May 28,
2013 speech in the Legislature to mark National Access Awareness Week, he said:
"In the speech from the throne, our government announced that we would move
the Accessibility Directorate to the Ministry of Economic Development, Trade
and Employment.
As the minister now leading our government’s efforts to make Ontario more
accessible and inclusive, I would like to take this opportunity to state clearly and
unequivocally that accessibility is a top priority for me, for my ministry and for
our government. We now have an opportunity to begin, in a serious and deliberate
way, to look at issues of greater accessibility and inclusion through an
employment lens. What does this mean? It means that the goal of greater
accessibility must be integrated into all that we do as a ministry, and I have
instructed my ministry to do just that. This is something our government is
strongly committed to.
In our efforts to work with business across the province to create jobs, we must
also work to improve the participation rate for people with disabilities in the
workforce. It’s the right thing to do, and it makes economic sense, because if our
economy is to be vibrant, if we are to thrive and if our society is to be truly fair,
all Ontarians must have the opportunity to contribute. Many businesses
understand this. There are numerous examples of employers who get the
economic case for hiring people with disabilities—an economic and business case
that has been demonstrated in study after study.
But as a ministry and as a society, we must do more to help employers understand
that business case and to improve access to employment. We must do that in our
conversations with business and through robust public education.
Talk is important, but it will only get us so far. We need action. So I have
instructed my ministry to develop a strategy for accessible and inclusive
employment so that we can all work together to improve the participation rate of
Ontarians with disabilities in the workforce."
Later in that speech, Dr. Hoskins said:
"There are also opportunities that we must seize in the area of business and
especially trade. Because of our province’s commitment to accessibility and
inclusion, we have a thriving business sector producing goods and services for
people with disabilities. I saw this yesterday at the Ontario Centres of Excellence
Discovery conference, where I presented awards to young innovators who have
come up with new goods and services that will make our communities more
inclusive and more accessible.
As we encourage companies to go global with their products, we must do the
same for companies producing goods and services focused on accessibility."
Over one year later, we have seen none of these commitments turned into visible action with any
practical and positive results. We understand that a new position was designated in the Economic
Development, Trade and Employment Ministry at least six months ago, to lead efforts to
incorporate accessibility into the Ministry's programs. We have received no concrete indication
that things have changed in a way that will make a difference for persons with disabilities.
c) New Initiatives for Increasing Private Sector Employment of People
with Disabilities
In the area of increasing employment for persons with disabilities, the Economic Development,
Trade and Employment Ministry has simply offered persons with disabilities more talk, and
more delays. The February 19, 2013 Throne Speech said this:
“Your government will ensure that all individuals can find their role in this
economy. And so it calls on the private sector to increase the number of people
with disabilities in the Ontario workforce. As a demonstration of its commitment
to this goal, your government will shift the Accessibility Directorate from the
Ministry of Community and Social Services to the Ministry of Economic
Development, Trade and Employment. Because men and women with disabilities
deserve a level playing field.”
Yet one and a third years after that Throne Speech, Ontario still has no disability employment
strategy or action plan. Six months after the Throne Speech, on December 3, 2013, speaking in
the Legislature Dr. Hoskins said:
“Recognizing that we still have a long way to go in making our workplaces more
accessible, together with the business community and accessibility advocates, I’ve
directed my ministry to develop and publish an employment strategy to remove
barriers for persons with disabilities in the workforce and create an inclusive
environment in the workforce for employment of persons with disabilities.”
Three months after that, on February 7, 2014, we announced that we had learned that to keep its
Throne Speech commitment on private sector employment for persons with disabilities, the
Government still had no concrete action in mind, just more delays.
It was then planning to set up a new advisory council to suggest ideas to the Government on how
to increase private sector employment of persons with disabilities. That council was to report by
the end of 2014. After that, the Government would no doubt have to study the council's advice,
and decide what action to take. It would take well over a year from then, or two years after the
Throne Speech itself, before the Government did anything that would actually help any persons
with disabilities get a private sector job. In the meantime, unemployed persons with disabilities
would have to continue languishing.
The Government was headed on a course of re-inventing the wheel. We protested that this was a
recipe for delay and protracted inaction. Our February 7, 2014 AODA Alliance Update
announced:
"The Government is setting up a new advisory council, to include representatives
from business and the disability community. This Council is expected to make
recommendations on how to increase the private sector employment of persons
with disabilities in Ontario.
At first blush, this sounds great. Anything that helps create more job opportunities
for persons with disabilities should be welcomed. Anything that directly engages
the private sector in this cause should be especially desirable.
Yet we have serious concerns:
* The Government has taken far too long to get moving on its commitment
regarding the chronic unemployment plight facing persons with disabilities. Fully
one year ago, on February 19, 2014, in Premier Kathleen Wynne's first Throne
Speech, the Government said that employment would be a new priority, with a
new minister responsible for employment. That minister is Dr. Eric Hoskins. He
is the same person responsible for leading the implementation and enforcement of
the Accessibility for Ontarians with Disabilities Act. That Throne Speech called
on the private sector to specifically address employment for persons with
disabilities.
It should not have taken a year to get this process started. The Government should
already have developed and launched an action plan to get more employment
opportunities for persons with disabilities. Last summer, Dr. Hoskins proclaimed
that accessibility for persons with disabilities is a "top priority" for him and the
Ontario Government.
* The Government is giving this new advisory council an excessive ten months to
come up with recommendations. The text of the Government's letter, set out
below, states "…it will be the objective of the council to submit its final report
before the end of 2014."
This shouldn't take as much as ten months. No doubt, the Government
contemplates yet more delay after receiving that report, to decide what to do with
the Council's recommendations. Unemployed and underemployed persons with
disabilities should not have to suffer yet more delay. The AODA requires a fully
accessible Ontario by 2025, 20 years after it was enacted. Nine of those 20 years
have already passed. Only eleven years remain.
* This feels like a bad case of déjà vu. The Government has already created,
staffed and operated a multi-year advisory committee drawn from the disability
community, the private sector and the broader public sector, to identify
impediments to employment for persons with disabilities, and to recommend
corrective action. Back in 2007, under the Accessibility for Ontarians with
Disabilities Act, the Ontario Government appointed the Employment Standards
Development Committee. It was required to consult the public and craft
recommendations for an Employment Accessibility Standard to be enacted under
the AODA.
That Committee worked hard. It presented its final recommendation to the
Government in September 2009. The Government invited and received public
input on those recommendations.
The Government studied that feedback for at least one year. After this, the
Government enacted the Integrated Accessibility Standard Regulation in June
2011 under the AODA. That regulation includes a series of provisions addressing
accessibility in the workplace for persons with disabilities.
Regrettably, when the Government passed that regulation, it did not incorporate
all our recommendations to make it strong and effective. The Government seems
now to be creating yet another committee to re-plough much of the same terrain.
We agree that the employment accessibility provisions passed under the AODA in
June 2011 don't go far enough, and have time lines that are too long. Reinforcing
this, the Honourable Frances Lankin et al rendered an important report in October
2012 at the Government's request entitled: "Brighter Prospects - Transforming
Social Assistance in Ontario." It reaffirmed that persons with disabilities need
more to gain proper access to employment. That report stated:
"Third, governments, employers, and indeed all of us, must do more to remove
the significant barriers that people with disabilities face. Discrimination, a lack of
workplace accommodation, and other barriers can discourage or undermine
individual efforts to engage in the labour force or community, despite high
personal motivation. While there has been progress in removing workplace
barriers for people with disabilities, it will take time to see the full impact. For
example, the Accessibility Standard for Employment under the Accessibility for
Ontarians with Disabilities Act (AODA) is being phased in over five years (from
2012 to 2017). As long as systemic, structural, and attitudinal barriers impede
employment and participation, these barriers must be recognized in the Pathway
to Employment Plans for people with disabilities."
That report made detailed recommendations for action.
* Since the AODA was enacted in 2005, the Government has also appointed and
maintained the Accessibility Standards Advisory Council (ASAC). It includes
representation from the disability community, the public sector and the private
sector. Giving advice on strategies for improving the employment of persons with
disabilities is well within that under-utilized Council's mandate.
* The Government stated as follows in a February 4, 2014 email to us:
"The Partnership Council will provide strategic advice and recommend best
practices to government as we develop our first-ever employment strategy for
people with disabilities. This council is different than the advisory panel that
helped develop our employment standard because it is focused on working with
the business community to raise awareness about the economic opportunities of
hiring people with disabilities to grow our economy and create jobs. We
anticipate the Partnership Council will make its final report before the end of the
year."
Yet it is our understanding that this very activity was part of the focus of the
Employment Accessibility Standards Development Committee from 2007 to
2009.
* Making this worse, the Government seems to be taking all this time to re-invent
a wheel that it has already invented. For example:
a) Years ago, the Ontario Government retained the Martin Prosperity Institute to
do a major study of the benefits of making Ontario disability-accessible. In the
2010 summer, an excellent and thorough report was produced as a result. For
more on the Martin Prosperity Institute's Report on the benefits of accessibility
for Ontario, visit http://www.aodaalliance.org/strong-effectiveaoda/06232010.asp
b) The Ontario Government's Ministry of Community and Social Services (which
had lead responsibility for the AODA until last year) has for several years
spearheaded the Government's "Don't Waste Talent" initiative to promote
employment for persons with disabilities. For more on the Ontario Government's
"Don't Waste Talent" program, visit
http://www.mcss.gov.on.ca/en/talent/employer/index.aspx
c) The Accessibility Directorate of Ontario, the branch of the Ontario Government
that is mandated to oversee the AODA's implementation and enforcement, has for
several years operated the Enabling Change Program. In this program, the
Government has partnered with several private sector organizations and funded
several projects to promote accessibility.
d) The Federal Government has already undertaken a project to gather input on a
similar topic. The Government of Canada's "Re-Thinking Disability in the Private
Sector – Report from the Panel on Labour Market Opportunities for Persons with
Disabilities" is available at
http://www.esdc.gc.ca/eng/disability/consultations/rethinking_disabilities.shtml
e) If the Government were to now simply do an internet search, it would instantly
find many other sources of good ideas for an employment strategy for persons
with disabilities in the private sector, such as:
The Harvard Law School's Project
http://www.hpod.org/involved/private-sector
on
disability,
available
at
The International Labour Organization I.L.O.’s new initiative to promote
employment of disabled people in the private sector, available at
http://www.dnis.org/features.php?issue_id=5&volume_id=8&features_id=183
The U.S. Government's "Job Accommodation Network" has operated for years,
providing information supports for employers in the area of employment for
persons with disabilities. To learn more about the U.S. Job Accommodation
Network, visit http://askjan.org/
Read Strategies to Support Employer-Driven Initiatives to Recruit and Retain
Employees with Disabilities: A joint publication from the John J. Heldrich Center
for Workforce Development and the Kessler Foundation, by visiting
http://nod.org/assets/downloads/Employer_Driven_Initiatives.pdf"
Our February 7, 2014 AODA Alliance Update proposed that the Government should take these
actions instead:
"1. First and foremost, the Ontario Government should immediately effectively
enforce and make full use of the employment accessibility requirements of the
Integrated Accessibility Standard Regulation that it enacted in June 2011.
For example, section 4 of that regulation directs that by January 1, 2014, private
organizations in Ontario with at least 50 employees are required to establish,
implement, maintain and document a multi-year accessibility plan. It must outline
the organization’s strategy to prevent and remove barriers and meet its
requirements under that Regulation. This includes reviewing and addressing
barriers to employment in the workplace.
2. The Ministry of Economic Development, Trade and Employment should
quickly assemble a list of options for a disability employment strategy, drawn
from the Government's own past and present programs, and from the programs
and ideas that others have accumulated. The internet makes this very quick and
easy to do. The Government should immediately make this list public.
3. If the Government wishes to informally bring together a group of disability
advocates and private sector leaders to discuss action options to expand disability
employment, it should hold that meeting within the next four weeks.
No fancy and formal "council" is needed, with all the attending bureaucracy and
cost. The attendees should be given in advance the list of action options from
Ontario and around the world that the Ministry has discovered.
4. That informal group should take one or two days to brainstorm its own ideas
and offer members' reactions to the list of action options that the Ministry has
accumulated. The group should not be bogged down with voting on any of the
options, but just offer individual feedback.
5. The Government should then review this feedback and announce and
implement its action plan within four weeks of that meeting.
With the prospect of a possible spring election in Ontario, persons with
disabilities should not have to wait months or years before action is taken."
d) Encouraging Ontario Businesses to Produce Goods and Services that
are Disability-Accessible
We have seen no progress at the Economic Development, Trade and Employment Ministry on
getting Ontario businesses to produce accessible goods and services, for use by persons with
disabilities here and abroad. In fact, we are aware of no effort by the Government on this front
since the AODA was enacted in 2005.
For Ontario businesses to produce accessible products and services would advance the goal of
accessibility at home. It would also expand our international markets. The U.S, the E.U. and a
number of other markets have growing demand for such markets.
The Ontario Government has, for example, tried to target the information technology sector as a
growth area, with great potential for better serving the international market. Yet we have seen no
effort to include in this effort the creation of accessible information technology for sale here and
abroad, or to develop greater expertise in Ontario in this area. Dr. Hoskins, as minister, has been
very busy, conducting foreign trade missions to various parts of the world, in his 16 months as
minister. We have seen no indication that he has done anything to use these missions as a lever
to get Ontario business to be more active in the creation and marketing of more disabilityfriendly goods and services, or that he has accomplished much, if anything, in this regard.
In our February 27, 2013 letter to Dr. Hoskins, we wrote:
"Your Ministry and its programs should promote Ontario’s public and private
sectors to produce world-leading goods, services and facilities that incorporate
principles of universal design so that everyone can use and benefit from them,
including persons with disabilities. This would substantially expand Ontario’s
market for its goods around the world. The demand for accessible goods, services
and facilities continues to grow. The U.S.A., the European Union and other global
markets are ramping up their commitments to accessibility."
In Dr. Hoskins' May 28, 2013 statement in the Legislature, referred to above, he focused on at
least one aspect of this. We have seen no tangible results from his statement. He said:
“There are also opportunities that we must seize in the area of business and
especially trade. Because of our province’s commitment to accessibility and
inclusion, we have a thriving business sector producing goods and services for
people with disabilities. I saw this yesterday at the Ontario Centres of Excellence
Discovery conference, where I presented awards to young innovators who have
come up with new goods and services that will make our communities more
inclusive and more accessible.
As we encourage companies to go global with their products, we must do the
same for companies producing goods and services focused on accessibility.”
e) Assigning Responsibility for Developing New Accessibility Standards
to the Accessibility Standards Advisory Council
Part V of this brief shows that to date, nothing has been improved by the Government's other
major new initiative since the start of 2013 to improve the AODA's implementation, its
transferring responsibility for developing new accessibility standards and for reviewing existing
ones to the Accessibility Standards Advisory Council (ASAC).
5. Failing to Consistently Provide a Simple, Cost-Free Accommodation - the Case Study
of Government Documents in PDF Format
The continued periodic elusiveness of one specific cost-free, easy-to-provide accommodation
provides a good illustration of the roadblocks we too often encounter, and of the Government's
failure to effectively lead by example. We have had a seemingly-endless battle in our
unsuccessful effort to get Government to consistently provide a simple, cost-free
accommodation, namely ensuring that whenever it posts a PDF document on its public websites
or internal intranet, it also posts that document in an accessible format such as an accessible MS
Word or HTML document.
To us, this illustrates a far deeper problem with the Ontario Public Service delivering
accessibility. This reveals that even where cost is not in issue, the grandest pronouncements and
policies on accessibility do not consistently translate into front line action. The result is that more
barriers continue to be unnecessarily created with public money. No one is held to account for
this conduct.
We highlighted this problem four and a half years ago, to the Charles Beer AODA Independent
Review. In our December 11, 2009 brief to the Beer AODA Independent Review, we wrote:
"As one illustration of how far short the Ontario Government remains almost
eight years after the ODA 2001 was passed, government electronic documents
continue to be circulated and posted to the internet far too often in PDF format,
without also simultaneously posting or providing them in an alternative accessible
format (e.g. MS Word or HTML). PDF format is documented to present
accessibility problems for people with vision loss using adaptive technology.
As but one startling example, on December 4, 2008, the day after the International
Day for Persons with Disabilities, the Ontario Government proudly unveiled its
long-awaited Anti-Poverty Strategy, to much fanfare. Yet on that day, this major
Government announcement and policy were posted on the Government’s website
only in PDF, and not also in an accessible format."
Over and over we have been told that someone within the Government has said
that PDFs are, or can be, accessible. We have repeatedly explained that PDF
documents, even using their so-called accessibility features (which many, if not
most, do not use) are not sufficient to meet all accessibility needs. We also have
not been able to track down who has been giving this deficient advice. This is not
for want of our trying to find them.
This should be easy to fix. Government documents are usually created in a word
processor format, such as MS Word. These are typically easy to make available as
accessible documents. It is when they are later converted into PDF format that
problems arise.
In the intervening four and a half years, this problem has persisted, even though we have raised it
with the Government at all levels. Two examples are illustrative:
First, on January 10, 2010, Ms. Shelley Jameson, then Secretary to Cabinet (the most senior
public servant in Ontario) circulated to all Ontario Public Service employees a progress report on
the Ontario Public Service's efforts on human resources issues. The report was only provided in
PDF format. This was especially ironic, since it congratulated the Government on its progress on
issues like inclusiveness within the Ontario Public Service. The message from the Secretary to
Cabinet with that report stated:
“Embedded throughout the OPS HR Plan is our commitment to inclusiveness and
diversity, as well as our OPS values of trust, fairness, excellence, creativity,
collaboration, efficiency and responsiveness.”
The Report stated:
“HROntario and the OPS Diversity Office are working to identify and remove
recruitment barriers and to develop strategies to increase the diversity of
candidate pools.”
Second, on November 8, 2012, when the Andrew Pinto Report on the Human Rights Code's
Enforcement was finally released to the public via the internet, the McGuinty Government only
posted the Pinto Report on its website in an inaccessible PDF format. The Government only
fixed this after the AODA Alliance brought the creation of this new and embarrassing barrier to
the Government's attention.
Failing to solve the PDF issue at lower levels within the Government, we raised this concern
with Government Services Deputy Minister Kevin Costante. He provided us with a response that
entirely ducked the question of PDF documents. He wrote us as follows on March 21, 2013:
"2.
Accessible Documents and the Use of Portable Document Formats (PDFs)
in the OPS
Regarding your concerns related to the accessibility of documents available to the
public and to OPS employees, the OPS is doing a number of things to promote
and enforce document accessibility.
We take our legal obligations in this matter very seriously and have put a number
of mechanisms in place to ensure that we are enforcing compliance with these
obligations. In 2012, the government reported its compliance with the information
and communication requirements of the Integrated Accessibility Standards
Regulation (IASR) with respect to:
(a) ensuring that when emergency procedures, plans and public safety information
are available to the public, they are also offered in a variety of alternative formats,
and
(b) achieving compliance with Web Content Accessibility Guidelines (WCAG)
requirements to ensure that new government websites and the content on those
sites are accessible.
For 2013, the government has added a proactive offer to provide accessible
formats in our public feedback process. As well, all ministries will be required
through the Certificate of Assurance process to attest that they have provided
accessible formats and communication supports to OPS staff. In addition, Cabinet
Office has been leading an initiative entitled One-Site that will create and enforce
new accessibility processes to ensure that content migrated onto Ontario.ca meets
IASR requirements.
As we look ahead to the IASR requirements in 2014, we are working towards
developing an OPS-wide approach on the provision of accessible formats and
communication supports to the public. We will also explore the need to develop
an OPS wide policy on creating and managing our internal documents to ensure
accessibility.
We recognize that ensuring our documents are accessible takes more than just
policies. A key component of our Accessibility at Source strategy is an
information campaign about the necessity of creating accessible documents.
Through the campaign, we are providing OPS staff and managers with the
knowledge and tools required to develop accessible e-mails, Word documents and
PowerPoint presentations. In the spring, we will also be launching an online
training course for staff on accessible information and communication."
As indicated in Part VI of this brief, the Government included in its 2014 training for Ontario
public servants on information and communication accessibility, an erroneous encouragement to
use PDFs to meet accessibility needs. We repeat that problematic training passage here:
"The easiest way to make an accessible document is to make it accessible in its source
document, then convert it to a PDF."
We have no indication that the Government has since stopped the use of that instruction, or taken
steps to rectify the false impression that it leaves.
We could not get this problem resolved at lower levels within the Government. Some parts of the
Government did a great job of posting documents in an alternative accessible format whenever
they posted one in PDF. Others persisted in the unacceptable practice of making important
documents available on their web site only in PDF.
To escalate the issue, on December 5, 2013, we met with, among others, Ms. Alana Guest, the
Assistant Deputy Minister in Cabinet Office with lead responsibility for Government websites.
We urged her to ensure that whenever a PDF is posted on a Government website, an alternate
accessible version of the document was also posted, e.g. in MS Word and/ HTML format.
It became evident at that meeting that even at this level of Government leadership, despite
espousing a commitment to ensuring accessibility of Government documents, there was a woeful
lack of understanding of how to achieve this, even in this very simple context.
On December 6, 2013, AODA Alliance chair David Lepofsky wrote Ms. Guest, stating in part:
"At our meeting, I asked that the Government immediately direct that if a
document is posted on a Government website in PDF format, whether or not the
Government thinks it contains accessibility features, the same document should
also always be posted in a fully accessible format, such as HTML, MS Word, or
both.
You indicated that the Government is studying other formats to use to ensure
accessibility. I emphasized that whatever be the long term plans, I am asking that
the directive I proposed be issued immediately. The Government has a duty to
accommodate and to provide accessibility now. Each time a PDF is posted, it is
creating a new barrier. This is unjustified and unjustifiable. It should stop
immediately, while the Government takes whatever time it wishes to explore long
term accessibility options.
Finally, it is important for you, as Director of Communications for the
Government, to take steps to disabuse the Ontario Public Service of the myth that
PDFs are or can be sufficient to ensure accessibility. As discussed, I have too
often encountered this misconception within the Ontario Public Service, though I
have been unable to track down which person or persons have been propagating
this counterproductive misunderstanding.
I look forward to hearing from you as soon as possible in specific response to this
request. As also discussed, I would be happy to publicize any request you provide
for people to test for accessibility from the disability community."
Ms. Guest's response to that email did not answer this specific request. On April 17, 2014, we
emailed Ms. Guest again, asking:
"I wish to repeat the request set out in my December 6, 2013 email to you, and
wish to ask what the Ontario Government has done and plans to do in response to
that specific request."
We have received no answer to this inquiry.
6. Reflections
There are many people in the Ontario Public Service who want to do a good job on accessibility,
including those working in the Accessibility Directorate of Ontario. However, if anything, we
have found, across the Government (with some exceptions) that those good people are being held
back from doing more, rather than being encouraged to do more on accessibility. The Ontario
Public Service is missing key measures to enable those good people to do more on accessibility.
Accessibility has not been sufficiently and effectively entrenched within the Ontario Public
Service on a day-to-day basis, at the operational level. It is largely seen as a superficial "add-on"
that pops up infrequently and is someone else's responsibility. As a practical matter, Premier
McGuinty's August 19, 2011 election commitment to us has not become a reality in the Ontario
Public Service for the most part, where he pledged: "We are integrating accessibility as a
fundamental principle when it comes to making vital decisions that affect the daily lives of
Ontarians."
The Ontario Public Service has great accessibility policies written down somewhere, though not
in all cases, such as the PDF instance referred to above. However, the government has no one
minister with lead responsibility for ensuring that all its powers are deployed effectively to
ensure accessibility.
The Government never implemented the recommendation in the Beer 2010 AODA Independent
Review report for a single minister to be assigned this job, whom the Premier can hold
accountable. It is important that such a minister not be the minister responsible for developing
and enforcing AODA accessibility standards. It would be a hopeless conflict of interest for the
same minister to be responsible for setting and enforcing strong accessibility standards on the
one hand, and for leading the Government's work on obeying them. We already face too much
internal push-back from within the Ontario Public Service, as we advocate for strong
accessibility standards. There are segments within the Ontario Public Service that have resisted
strong accessibility standards, because they don't want to have to obey them. We don't want to
further empower that kind of push-back.
The Government's main way for educating Ontario public servants on accessibility has been via
on-line training modules. This is helpful, but far too limited. A public servant can sit in his or her
office, click away, and not learn much if anything, without the Government knowing. Our
coalition and many disability organizations have extensive experience conducting public
education activities on disability issues. Face-to-face educational programs delivered live, with
live interaction with persons with disabilities, is far more effective. The Ontario Public Service
has an ample supply of persons with disabilities working within the Government who could
assist in making this educational programming more effective.
The Government has in place no system for auditing and monitoring its compliance with its own
accessibility policies and measures, implemented in furtherance of the AODA. There is no
reward for public servants doing a good job in this context. There is no adverse consequences or
accountability for doing a poor job.
Some parts of the Government are doing a better job on accessibility than others. Ironically, the
information technology side of the Ontario Public Service is one of the worst performers. It too
often rigidly treats all public servants as having identical needs, and requires them to use
identical machines. It sets excessive rigid rules on what information technology may be
purchased and used. This forces public servants with disabilities to have to fight uphill battles
against rigid bureaucratic rules to needed accommodations. This is ironic since it is in the area of
information technology, brimming with new breakthroughs for persons with disabilities every
year, that such accommodation should be easiest to achieve.
The AODA and accessibility standards enacted under it require and promote the idea of
obligated organizations consulting with persons with disabilities. On the one hand, the
Government has consulted with the disability community including the AODA Alliance, in a
quite constructive way. We have had many meetings with government officials at all levels.
On the other hand, the Government has in recent years set a poor example in maintaining its own
official consultative body, the Accessibility Standards Advisory Council. Section 31 of the
AODA requires the Government to maintain this body. From 2005 to 2011, we saw no indication
that the Government took seriously ASAC's advice.
From the 2011 summer until the end of 2012, it is our understanding that the minister responsible
for the AODA, John Milloy, never even met with ASAC. From the end of 2012 until June or
July 2013, despite s. 31 of the AODA, ASAC for practical purposes did not exist. Only its chair
was appointed. The Government delayed appointing the rest of its membership for about six
months, after having recruited for those positions in the 2012 fall. We had to resort to an
opposition question in the Legislature during Question Period to pump up pressure on this.
There are impressive examples within the Government of focused progress. For example, in
2005, the Chief Justice of Ontario Roy McMurtry appointed a joint committee of the judiciary,
the legal profession and the Ontario Government, chaired by Justice Karen Weiler, to craft a
roadmap for making Ontario's courts disability-accessible. The resulting report, entitled "Making
Ontario's Courts Fully Accessible to Persons with Disabilities" is an example that other parts of
the Government should follow. A permanent Ontario Courts Accessibility Committee, resulting
from that report, provides oversight on its implementation. This has yielded progress that, while
still too slow, is a substantial improvement on the rate of prior progress.
On the other hand, there have been troubling examples of deliberate government action that will
make this Independent Review's work more difficult. For example, after the Government posts a
document for public consultation on the AODA for a statutorily required period, such as a
Standards Development committee's proposal for an AODA accessibility standard, the
Government has an unjustifiable policy or practice of then removing that document from the
internet. Anyone interested in tracing how a new accessibility standard evolves through various
stages of drafts to the finished product is denied the chance to track these. As a result, the AODA
Alliance has adopted a practice of itself posting these documents on a permanent basis, to help
promote more government accountability. While this may seem to be a small point, it is shows
how Government promises of openness and transparency some times translate into practice.
7. Recommendations on the Ontario Government Leading By Example on Accessibility
We urge this Independent Review to recommend as follows:
*#66. The Government should designate a single minister to be responsible for ensuring that the
Ontario Public Service becomes a fully accessible employer and service provider, and to ensure
that the Government keeps all its accessibility commitments, other than those for which the
Economic Development, Trade and Employment Minister is responsible.
*#67. The Government should establish a full-time Deputy Minister or associate deputy minister
responsible for ensuring the accessibility of the Ontario Government's services, facilities and
workplaces.
*#68. The Premier should include in "the "mandate letter" that her office issues to each cabinet
minister, specific directions to keep the Government's commitments on disability accessibility
which fall in whole or in part in that ministry's purview.
*#69. The Premier's office should direct the Secretary of Cabinet to ensure that the Government's
disability accessibility commitments are to be kept, and directing the Secretary to Cabinet to take
all needed steps to implement them.
*#70. After promptly launching a consultation with people with disabilities within the Ontario
Public Service and in the general public for no more than two months, the Government should
announce and implement a plan to re-engineer how the Ontario Public Service discharges its
duty to ensure that its own services, facilities and workplaces are fully accessible.
*#71. The Government should ensure that the Accessibility Lead position in each ministry is a
full time position, which reports directly to the deputy minister of that minister, with an option
for a dual report as well to the ministry's Chief Administrative Officer.
*#72. The Government should restore the fulltime position of Assistant Deputy Minister of
Government Services for Accessibility.
*#73. The Government should promptly implement and widely publicize within the Ontario
Public Service a comprehensive permanent periodic program for auditing and monitoring its
workplaces and public services and facilities for disability accessibility and barriers. This
program should include, among other things, on-site audits and inspections, and not merely paper
trail audits. The results of this monitoring should annually be made public.
*#74. The Government should promptly implement a constructive program for ensuring
accountability of public servants in the Ontario Public Service for efforts on disability
accessibility. Among other things, the Ontario Public Service should require that every employee
include in his or her annual performance review, performance goals on disability accessibility
within the scope of their duties. Performance on this criterion should be assessed for
performance, pay and promotion decisions.
*#75. The Government should not solely or predominantly rely on on-line programs to train the
Ontario Public Service on accessibility. It should implement live, interactive programming where
possible that involves face-to-face interaction with persons with disabilities.
*#76. The Ministry of Economic Development, Trade and Employment should quickly assemble
and make public a list of options for a disability employment strategy, drawn from the
Government's own past and present programs, and from the programs and ideas that others have
accumulated, e.g. those readily discovered on the internet.
*#77. Within the next four weeks, the Government should convene its Disability Employment
Council to list ideas for expanding employment opportunities for persons with disabilities. The
attendees should be given the Ministry's list of action options from Ontario and around the
world, for comment. The Council should meet for no more than one day, and remit to the
Government its ideas, with no need for preparing a formal final report.
*#78. The Government should release a private sector jobs strategy within two months of
receiving its Employment Council's feedback.
Part XI. Concluding Reflections and Recommendations
1. Ontario Needs a Plan to Get to Full Accessibility by 2025
Ontario needs to strengthen its efforts on accessibility if we are to get back on schedule for full
accessibility by 2025. We reaffirm Charles Beer's conclusions in his 2010 AODA Independent
Review report: the Government needs to show strong new leadership on this issue, to revitalize
and breathe new life into the AODA's implementation, and to implement transformative change.
One conclusion that leaps from this report's detailed analysis is that the Government does not
now have a comprehensive plan for ensuring that it leads Ontario to full accessibility by 2025.
Despite a number of laudatory and praiseworthy efforts, and ample good intentions, there are too
many instances of the Government going off the rails, or lagging behind on its own
commitments.
The solution becomes clear. Ontario needs the Government to immediately assemble, release,
implement and publicly report on a comprehensive plan for leading Ontario to full accessibility
on time.
2. The Government Should Not Use the Government's "Open For Business" Strategy to
Water Down Efforts on Disability Accessibility
In some of our dealings with the Government in recent years, we have been given cause for
concern that in some quarters, without openly making this public, some within the Government
have treated the Government's "Open for Business" strategy as warranting a dilution of its efforts
on disability accessibility. This has appeared to be the case both when the Government was
deciding what to require in an accessibility standard, and what steps to take to enforce
accessibility standards, once enacted.
This must stop. The Government did not promise mandatory accessibility standards, backed by
effective enforcement, subject to a back-door watering down under the cover of an "Open for
Business" strategy. The Government promised mandatory accessibility standards, effective
enforcement, and full accessibility by 2025, full stop.
Moreover, to provide persons with disabilities with accessibility to goods, services, facilities and
employment reinforces the openness of Ontario businesses. It gets them more business. It gives
them access to a wider pool of potential employees.
Once an accessibility standard is enacted, an "Open for Business" strategy does not justify any
dilution of enforcement efforts. If an organization is violating the AODA, enforcement should
follow, after that organization is given a chance to bring itself into compliance. "Open for
Business" should not be subtly equated with "open to be unlawfully inaccessible to persons with
disabilities."
3. Sundry Recommendations
We urge this Independent Review to recommend as follows:
*#79. The Government should generally strengthen the implementation of the AODA 2005 and
the companion Ontarians with Disabilities Act 2001, and not weaken or reduce any provisions or
protections in that legislation, in regulations enacted under them, in any policies, practices,
strategies or initiatives of or within the Ontario Government that exist to implement them or
achieve their objectives, or any rights that persons with disabilities enjoy under the Ontario
Human Rights Code or in rules or regulations made under it.
*#80. The Government should establish and make public a comprehensive multi-year plan
detailing the steps it will take to ensure that it leads Ontario to become fully accessible by 2025.
*#81. The Government, including public servants in the Ontario Public Service, should not treat
the Government's "Open for Business" strategy as in any way diluting or watering down its
commitment to disability accessibility, or the need to and the Government's commitment to
implement measures that will effectively ensuring that Ontario becomes fully accessible by
2025. For example, it does not warrant and should not be used in a way that weakens any
accessibility standards to be set, or measures to be deployed for the AODA's effective
enforcement. The Government should issue a directive to public servants in the Ontario Public
Service to this effect and should ensure that they are effectively trained on this, to root out any
misconceptions within the Government and Ontario Public Service.
APPENDIX 1
RECOMMENDATIONS
*#1. The achievement of a fully accessible Ontario requires the AODA to be effectively
enforced.
*#2. The Government should now effectively enforce all requirements under accessibility
standards, as soon as the applicable time line for compliance with a requirement has been
reached. The Government should not wait for months or years after an accessibility requirement
has become enforceable to enforce it.
*#3. The Government should not just enforce the requirement of certain obligated organizations
to file an accessibility self-report.
*#4. The Government should effectively enforce AODA requirements vis à vis both the public
and private sectors, and vis à vis all classes of organizations within each sector.
*#5. Effective enforcement includes deployment of all enforcement powers as needed to ensure
full compliance with the AODA.
*#6. The Government should immediately give a wide range of Ontario Government inspectors
and investigators under other legislation a full mandate as AODA inspectors or directors. The
Government should give these officials training and instructions to include enforcement of the
AODA when they inspect or investigate an organization for any reason and under any other
legislation.
*#7. The Government should develop an effective strategy for ensuring that municipalities
effectively enforce the Ontario Building Code's accessibility requirements, including
a) providing effective training tools on the Ontario Building Code accessibility requirements that
can be used by municipal enforcement officials;
b) monitoring levels of enforcement and compliance at the municipal level across Ontario
regarding the Ontario Building Code accessibility requirements.
*#8. If it still has not done so by the time of this Independent Review's report, the Government
should immediately make public its promised comprehensive plan on how it will enforce all
requirements enacted in or under the AODA. This plan should substantially increase the level
and breadth of enforcement activities. "Enforcement" refers to deployment of enforcement
powers such as inspections, audits, compliance orders and monetary penalties. This is not meant
to include other voluntary compliance strategies such as public education and offering
compliance resources and supports to obligated organizations. This plan should, at a minimum:
a) have the goal of achieving full compliance with all AODA requirements.
b) apply to and ensure effective enforcement of all AODA requirements whose deadlines have
been reached, as they are reached, without delay;
c) apply to all organizations in all sectors, not merely those organizations with an obligation to
file an accessibility self-report.
d) not withhold enforcement of an AODA accessibility requirement once its compliance deadline
is reached for some arbitrary reason, e.g. until an organization has also reached a deadline for
having to file an accessibility self-report;
e) include the Government's efforts to ensure that the accessibility requirements in the Ontario
Building Code are effectively enforced, and levels of compliance with those requirements.
*#9. If it has not done so by the time of this Independent Review's report, the Government
should immediately establish and widely publicize an accessible toll-free phone number for
members to report violations of AODA requirements. The Government should make public
summaries of complaints received without disclosing names or identifying information about the
caller or obligated organization.
*#10. The Government should publicly report every six months in detail on the steps it has taken
to effectively enforce the AODA, the specific accessibility requirements to which these steps
pertained, the results achieved, the levels of compliance or non-compliance of which the
Government is aware, and any changes to its enforcement plans. This should include the amount
of funds appropriated for, and the funds spent by the Government on implementing the AODA,
including on enforcement.
*#11. To reverse the public perception that the Government is not and will not be effectively
enforcing the AODA, the Government should immediately and widely publicize its enforcement
plans and its intention to substantially increase its efforts at AODA enforcement. This should not
be limited to website postings.
*#12. The Government should within three months of its re-election, establish and make public
protocols to ensure that there is no political interference with or restraining of AODA
enforcement activities and procedures.
*#13. Any accessibility standards enacted under the AODA should, at least, measure up to the
accessibility standards and accommodation and undue hardship requirements of the Ontario
Human Rights Code. Where any existing standard falls below that standard, or provides defences
to obligated organizations that are broader than those under the Human Rights Code, the AODA
accessibility standard should be amended as part of any ASAC review of that accessibility
standard, to bring it in line with the Human Rights Code.
*#14. Because of the IASR's deficiencies, the Government should immediately accelerate the
start of the mandatory review of the IASR's provisions on accessibility of transportation,
employment and information and communication. This review is required to commence no later
than five years after they were enacted in 2011, but it should be started in 2015, not 2016.
*#15. If it has not done so by the time of this Independent Review's report, the Government
should immediately direct ASAC to develop proposals for the contents of new AODA
accessibility standards in the areas of education and of health care, with ASAC's work on these
to begin immediately. These should encompass the entire education system, including preschool, school, post-secondary institutions and job training programs. These should also
encompass the entire health care system.
*#16. The Government should not delay a decision on whether to have a new accessibility
standard developed while the Ontario Public Service decides what barriers it might include. That
is the job of ASAC, as it develops proposals for the content of an accessibility standard.
*#17. For three months commencing immediately, the Government should consult with the
public, including the disability community, to identify all the other accessibility standards that
need to be developed under the AODA to ensure that Ontario becomes fully accessible by 2025,
with a Government decision to be made, and to be announced to the public, on those standards
within three months after that consultation is completed.
*#18. Immediately after the Government announces the remaining standards that need to be
developed to ensure Ontario becomes fully accessible by 2025, the Government should assign
ASAC responsibility to develop proposals for the contents of all those other accessibility
standards to be created under the AODA. ASAC's work on developing proposals for the contents
of those accessibility standards should begin no later than 2016.
*#19. The Government should ensure that the accessibility of the Built environment is fully and
effectively addressed by requirements enacted under the AODA, e.g.
a) To keep the Government's promise to enact the Built Environment Accessibility Standard
under the AODA, and to ensure that full AODA enforcement can be deployed in relation to built
environment barriers against persons with disabilities, the Government should immediately enact
a Built Environment Accessibility Standard that incorporates the same terms and requirements as
were enacted in the accessibility provisions of the Ontario Building Code, including the
Government's 2013 accessibility amendments to the Building Code.
b) The Government should direct ASAC to immediately start developing the promised next
phase of the Built Environment Accessibility Standard, to address accessibility retrofits in
existing buildings, and barriers in residential housing. These should not be artificially
constrained by traditional protocols used in the Ontario Building Code if these impede effective
action on accessibility.
*#20. Accessibility standards should include, where appropriate, not only end-dates for
achieving results, but also interim benchmarks for major milestones towards full accessibility.
*#21. The Government should enable ASAC to effectively work on developing proposals for the
content of more than one accessibility standards at a time, as was contemplated when the
Government assigned ASAC to develop all new accessibility standards, e.g.
a) by appointing ASAC sub-committees to work on different accessibility standard proposals,
ensuring that each has at least 50% representation from the disability community, in accordance
with Premier McGuinty's September 14, 2007 election promise.
b) by ensuring that the Accessibility Directorate of Ontario provides effective staff support to the
disability sector representatives on ASAC, including on its sub-committees, in accordance with
Premier McGuinty's September 14, 2007 election commitments.
c) by ensuring that ASAC subcommittees vote on a clause-by-clause basis on proposals and
recommendations for new accessibility standards, in accordance with Premier McGuinty's
September 14, 2007 election promises.
*#22. The Government Should widely publicize the opportunity for community groups to
request a chance to present to ASAC, when it is developing proposals for an accessibility
standard.
*#23. When it is developing proposals for the contents of an accessibility standard, the
Government should encourage ASAC to invite stakeholders from the disability community and
regulated sectors to meet together with ASAC to informally discuss issues that ASAC have
found challenging to resolve.
*#24. When ASAC submits an initial proposal to the Government for the contents of a new
accessibility standard, or for revisions to an existing accessibility standard, the Government
should convene face-to-face stakeholder meetings as one avenue for gathering input, and should
not restrict input to written submissions from the public.
*#25. When ASAC submits to the Government a final proposal for the contents of a new
accessibility standard, the Government should obey s. 9(7) of the AODA by the minister,
responsible for the AODA, deciding within 90 days what to enact from that proposal. The
Government should immediately make that decision public.
*#26. The Municipal Affairs and Housing Ministry may be consulted, but should not be put in
charge of or have lead responsibility for the development or finalization of the Built
Environment Accessibility Standard.
*#27. When ASAC is developing an accessibility standard, the Accessibility Directorate should
provide to it, and post on the internet for public input, a review of measures adopted in other
jurisdictions to advance the goal of accessibility for persons with disabilities in the area that the
new accessibility standard is to address.
*#28. The Human Rights Commission should be far more extensively involved in the formal and
informal work of each Standards Development Committee, including during review of public
input and discussion and votes on clauses of proposed accessibility standards. This could include
having a representative of the Ontario Human Rights Commission sit on ASAC subcommittees
as they work on proposals for the contents of accessibility standards.
*#29. The Government should encourage ASAC, when developing proposals for the contents of
an accessibility standard, to identify where changes are needed to provincial or municipal
legislation, regulations or bylaws, to advance the goal of a fully accessible Ontario.
*#30. The Government should not conduct or make public costing studies on accessibility
standards, until it ensures that costing studies reliably document the net additional costs, if any,
of compliance with the proposed accessibility standard, over and above the pre-existing cost of
complying with the requirements of the Ontario Human Rights Code and the Charter of Rights,
as offset against the benefits produced by compliance with the proposed accessibility standard.
Any future costing studies should also identify the cost to Ontario of not providing accessibility
in the sector in issue for people with disabilities.
*#31. The Government should ensure that the minute-keeping of ASAC, when developing
proposals for the contents of an accessibility standard, or of any of its sub-committees should
make it clear when an option or proposal is discussed and rejected, and the reasons for this.
*#32. Minutes of meetings of ASAC should accurately and comprehensively record the detailed
issue-by-issue deliberations of that Council on accessibility standard proposals, , and should be
written in a fashion to make them fully understandable by members of the public who did not
attend those meetings.
*#33. When ASAC considers a document at a meeting where it is considering proposals for the
contents of an accessibility standard, such as a draft of an accessibility standard, that document
should be made public along with the minutes of the meeting which considered it.
*#34. The Government should leave initial and final proposed accessibility standards, submitted
by ASAC acting as a Standards Development Committee, on the Government’s website on a
permanent basis.
*#35. The Government should widely advertise on the mass media, and not just on the internet,
via email and on Twitter the availability of resources, training materials and guides it has already
developed for organizations to comply with accessibility standards enacted under the AODA.
*#36. The Government should immediately make available and widely publicize a free guide,
policy guideline and other like resource materials for obligated organizations to comply with the
accessibility requirements in the Ontario Building Code, as amended in December 2013.
*#37. Promptly after any new AODA accessibility standard is enacted or an existing accessibility
standard is revised in the future, the Government should make available and widely publicize a
free guide, policy guideline and other like resource materials for obligated organizations to
comply with that accessibility standard's accessibility requirements
*#38. Whenever a new accessibility standard is enacted or an existing one is revised, the
Government should promptly and widely publicize it. This should include much more than
posting it on the internet, and sending out tweets and emails about it.
*#39. The Government should promptly develop, make public and widely publicize a guide for
persons with disabilities and other members of the public (apart from obligated organizations), a
plain language guide to the accessibility obligations of obligated organizations under the AODA,
as well as under the Human Rights Code and Charter of Rights, including e.g. a list of the
information which obligated organizations are obliged to make available on request, and the
accessibility supports that the obligated organizations are required to provide. It should also
include information on what to do to enforce those standards in the case of non-compliance. As
new accessibility standards are enacted or existing ones or revised, these resource materials
should be promptly revised and re-publicized.
*#40. The Government should develop, make available and widely publicize a free webauthoring tool for creating accessible web pages, to comply with the IASR's information and
communication website accessibility requirements.
*#41. The Government should immediately launch an effective public education campaign
(including, but not limited to community speeches by ministers and other members of the
Legislature), on the benefits and importance of removing and preventing barriers against persons
with disabilities and the AODA obligation to become fully accessible by 2025, as well as
accessibility obligations under the Human Rights Code and Charter of Rights.
*#42. The Government should promptly implement a permanent program to ensure that students
in the school system are educated in disability accessibility. For example:
a) The Government should identify the Minister and public officials responsible for this
program's development and implementation.
b) School boards and teachers' representatives should be consulted on its development and
implementation.
c) The Government should develop a sample curriculum which school boards could adopt if they
wish, in lieu of developing their own curriculum.
d) The Government should report to the public on this program's implementation and
effectiveness. Among other things, the Government should promptly implement a permanent
program to advocate to self-governing professional bodies to educate people training in key
professions, such as architects, on disability accessibility. The Government should identify the
Minister and public officials responsible for this program's development and implementation.
The Government should report to the public on its implementation and effectiveness.
*#43. The Government should promptly implement a program to advocate to the self-governing
bodies for key professions (such as architects, lawyers, doctors and social workers) to adopt,
implement and require education on disability accessibility to qualify for those professions, and
to require continuing professional development on this topic for those already qualified in those
professions. Among other things, as part of this effort:
a) The Government should advocate to key professions such as architects and planners that to
qualify in future for a licence or other qualifications certificate as an architect or other designer
of the built environment, a specified amount of training in barrier free design must be completed,
that goes beyond the insufficient requirements of the Ontario Building Code.
b) A lead minister and public servants should be identified as responsible for this initiative.
c) The Government should make available to those self-governing body any readily-available
resource materials to help those self-governing professional bodies develop needed disability
accessibility curriculum on accessibility needs of persons with disabilities.
d) The Government should report to the public on this program's implementation and
effectiveness.
*#44. The Government should promptly consult with persons with disabilities, including the
AODA Alliance, on the content of these public education materials. This should involve inperson discussions, and not merely an invitation to provide on-line feedback to the Government.
*#45. The Government should immediately implement, widely publicize and report to the public
on a comprehensive strategy to ensure that public money is never used by anyone to create,
perpetuate or exacerbate barriers against people with disabilities. This should include recipients
of public money expended for example, through Ontario capital or infrastructure spending,
through procurement of goods, services or facilities, or through Government grants or loans of
any sort. As part of this activity, the Government should keep its August 19, 2011 promise to
extend its Ten Year Infrastructure Plan's accessibility requirements to information technology
and electronic kiosks.
*#46. The Government should make it a condition of research grants that it funds or to which it
contributes that people with disabilities should, where feasible and appropriate, be included in
research study as subjects.
*#47. In any Government strategy to ensure that public money is not used to create, perpetuate or
exacerbate accessibility barriers, it is not sufficient for the Government to make it a condition
that a recipient of public money merely obey the AODA and AODA accessibility standards. It
should require that recipients of public money comply with accessibility requirements in the
Ontario Human Rights Code, and where applicable the Charter of Rights. It should require,
among other things, that the recipient organization's specific capital project or goods, services or
facilities be fully disability accessible or require a commitment to remediate these to become
fully accessible by time lines to be set out in the grant, loan or other terms of payment of public
money.
*#48. The Government should immediately announce a comprehensive, effective plan to ensure
that the 2015 Toronto Pan/ParaPan American Games will have a strong disability accessibility
legacy. Among other things:
a) It should lead public and private sector organizations to significantly increase the accessibility
of the infrastructure, services, facilities and goods for serving the public, especially the tourism
market, in the regions that will host the 2015 Toronto Pan/ParaPan American Games. This
should include such things as public transportation, taxis, hotels, stores, restaurants, tourist sites
and other tourism facilities. Among other things, the Government should ensure that no venue is
used for any formal or informal activities related to the Games, including any celebrations, in a
venue that is not fully accessible, and should immediately announce that tit will urge all 2015
Games employees and volunteers not to patronize any establishemnts that are not fully accessible
to people with disabilities during the Games.
b) It should also leave a lasting accessibility legacy by investing in Ontario's parasports system to
ensure that children and young people with disabilities have equal opportunity for participation
in sports and recreation.
*#49. The Government should also make it a condition of transfer payments and capital or other
infrastructure funding to municipalities, hospitals, school boards, public transit providers,
colleges, universities, and transfer partners that these recipient organizations adopt comparable
initiatives to ensure that their procurement and infrastructure spending, and any loans or grant
programs, do not create, exacerbate or perpetuate barriers against people with disabilities. The
Government should make public a resource guide to assist those transfer partners to know how to
effectively implement this requirement.
*#50. The Government should promptly establish a process for monitoring and enforcing the
recommended comprehensive strategy to ensure that public money is not used to create,
perpetuate or exacerbate accessibility barriers. It should not be left to each ministry to do as little
or as much as it wishes to implement Government policy and procedures on this topic.
*#51. The Government should widely and prominently publicize as soon as possible to any
organization that seeks Ontario infrastructure or procurement funds, or any Government funded
or subsidies, loans or grants, that they must prove in their applications that they will ensure that
public money isn't used to create, perpetuate or exacerbate barriers against persons with
disabilities.
*#52. The Government should establish and widely publicize an avenue for the public to report
to the Government on situations where public money is used to create, perpetuate or exacerbate
disability accessibility barriers.
*#53. The Provincial Auditor should audit the Government to ensure compliance with
recommendations on ensuring that public money is not used to create, perpetuate or exacerbate
disability accessibility barriers.
*#54. The Government should complete a review of all legislation for accessibility barriers by
2015, and all regulations by 2016.
*#55. The Government should introduce into the Legislature a first omnibus bill to amend any
legislation as needed a result of this review, by the end of 2014 (to address barriers that the
Government's legislative review has already unearthed), with a further omnibus bill to be
introduced at the review's completion by July 1, 2016.
*#56. The Government should amend any regulations the Government deems necessary as a
result of the review by the end of 2016.
*#57. The Government should institute a formal process for ensuring that in future, no bill is
introduced into the Legislature until Legislative Counsel certifies that it has been reviewed for
disability accessibility barriers, and it will not mandate, permit or create, perpetuate or
exacerbate barriers against persons with disabilities. The same certification requirement should
apply for regulations that are presented to the Ontario Cabinet or other body authorized to enact
regulations under Ontario legislation.
*#58. The Government should report to the public by the end of 2014, the end of 2015 and the
end of 2016 on its progress toward meeting the deadlines for reviewing all legislation and
regulations for accessibility barriers. These reports should give specifics on what the
Government has done and plans to do, whether by legislative amendments or other actions, to
address accessibility barriers it has discovered in this review.
*#59. By September 1, 2014 the Government should make public a comprehensive plan for
ensuring that it completes its review of all legislation and regulations for disability accessibility
barriers in accordance with this Independent Review's recommendations.
*#60. By October 1, 2014, the Government should implement and announce a permanent
screening process to ensure that new bills introduced into the Legislature and new proposed
regulations brought to Cabinet or other body with regulation-making power, have been certified
that no new barriers are being created, and none are being perpetuated, in or under the proposed
enactment.
*#61. The Government should immediately designate a single minister with lead responsibility
for ensuring that both provincial and municipal elections are fully accessible to voters and
candidates with disabilities.
*#62. Elections Ontario should test telephone and internet voting at the next Ontario by-election.
*#63. Elections Ontario should immediately make public:
a) any research on telephone and internet voting since its June 2013 report on telephone and
internet voting.
b) any other options for accessible voting that Elections Ontario has examined or considered
since the October 2011 election, and any conclusions it has reached regarding those options as
solutions to voting accessibility barriers. .
*#64. By October 2014, the Government should appoint an independent person to conduct a
three month independent review of barriers facing voters and candidates with disabilities in
provincial and municipal elections, including both the campaign process and the voting process.
This Review, should, among other things, gather information on the use of telephone and internet
voting in municipal elections in Ontario. This Review should hold an open, accessible and
province-wide public consultation, and report to the public within six months of its appointment.
Its report should be made public immediately on its being submitted to the Government.
*#65. Within six months after the report of the Disability Elections Accessibility Independent
Review, the Government should introduce into the Legislature omnibus elections accessibility
reforms for both municipal and provincial elections, to remove and prevent barriers impeding
voters and candidates with disabilities in the voting process, and in participating in election
campaigns, to ensure that:
a) all voters with disabilities can independently mark their own ballot in private and verify their
choice. This bill should, among other things, ensure telephone and internet voting in Ontario
elections and by-elections.
b) get full physical accessibility to all polling stations and all public areas in polling stations,
c) including sharing at the provincial and municipal levels information on accessible polling
station venues, so each does not have to reinvent the same accessibility wheel.
d) Ensure that election campaign information is immediately and readily available in accessible
formats, and that campaign websites are designed to be fully accessible.
e) ensure that all-candidates debates are accessible.
*#66. The Government should designate a single minister to be responsible for ensuring that the
Ontario Public Service becomes a fully accessible employer and service provider, and to ensure
that the Government keeps all its accessibility commitments, other than those for which the
Economic Development, Trade and Employment Minister is responsible.
*#67. The Government should establish a full-time Deputy Minister or associate deputy minister
responsible for ensuring the accessibility of the Ontario Government's services, facilities and
workplaces.
*#68. The Premier should include in "the "mandate letter" that her office issues to each cabinet
minister, specific directions to keep the Government's commitments on disability accessibility
which fall in whole or in part in that ministry's purview.
*#69. The Premier's office should direct the Secretary of Cabinet to ensure that the Government's
disability accessibility commitments are to be kept, and directing the Secretary to Cabinet to take
all needed steps to implement them.
*#70. After promptly launching a consultation with people with disabilities within the Ontario
Public Service and in the general public for no more than two months, the Government should
announce and implement a plan to re-engineer how the Ontario Public Service discharges its
duty to ensure that its own services, facilities and workplaces are fully accessible.
*#71. The Government should ensure that the Accessibility Lead position in each ministry is a
full time position, which reports directly to the deputy minister of that minister, with an option
for a dual report as well to the ministry's Chief Administrative Officer.
*#72. The Government should restore the fulltime position of Assistant Deputy Minister of
Government Services for Accessibility.
*#73. The Government should promptly implement and widely publicize within the Ontario
Public Service a comprehensive permanent periodic program for auditing and monitoring its
workplaces and public services and facilities for disability accessibility and barriers. This
program should include, among other things, on-site audits and inspections, and not merely paper
trail audits. The results of this monitoring should annually be made public.
*#74. The Government should promptly implement a constructive program for ensuring
accountability of public servants in the Ontario Public Service for efforts on disability
accessibility. Among other things, the Ontario Public Service should require that every employee
include in his or her annual performance review, performance goals on disability accessibility
within the scope of their duties. Performance on this criterion should be assessed for
performance, pay and promotion decisions.
*#75. The Government should not solely or predominantly rely on on-line programs to train the
Ontario Public Service on accessibility. It should implement live, interactive programming where
possible that involves face-to-face interaction with persons with disabilities.
*#76. The Ministry of Economic Development, Trade and Employment should quickly assemble
and make public a list of options for a disability employment strategy, drawn from the
Government's own past and present programs, and from the programs and ideas that others have
accumulated, e.g. those readily discovered on the internet.
*#77. Within the next four weeks, the Government should convene its Disability Employment
Council to list ideas for expanding employment opportunities for persons with disabilities. The
attendees should be given the Ministry's list of action options from Ontario and around the
world, for comment. The Council should meet for no more than one day, and remit to the
Government its ideas, with no need for preparing a formal final report.
*#78. The Government should release a private sector jobs strategy within two months of
receiving its Employment Council's feedback.
*#79. The Government should generally strengthen the implementation of the AODA 2005 and
the companion Ontarians with Disabilities Act 2001, and not weaken or reduce any provisions or
protections in that legislation, in regulations enacted under them, in any policies, practices,
strategies or initiatives of or within the Ontario Government that exist to implement them or
achieve their objectives, or any rights that persons with disabilities enjoy under the Ontario
Human Rights Code or in rules or regulations made under it.
*#80. The Government should establish and make public a comprehensive multi-year plan
detailing the steps it will take to ensure that it leads Ontario to become fully accessible by 2025.
*#81. The Government, including public servants in the Ontario Public Service, should not treat
the Government's "Open for Business" strategy as in any way diluting or watering down its
commitment to disability accessibility, or the need to and the Government's commitment to
implement measures that will effectively ensuring that Ontario becomes fully accessible by
2025. For example, it does not warrant and should not be used in a way that weakens any
accessibility standards to be set, or measures to be deployed for the AODA's effective
enforcement. The Government should issue a directive to public servants in the Ontario Public
Service to this effect and should ensure that they are effectively trained on this, to root out any
misconceptions within the Government and Ontario Public Service.
APPENDIX 2
LIST OF RECOMMENDATIONS
SUBMITTED TO THE CHARLES BEER
AODA INDEPENDENT REVIEW
IN OUR DECEMBER 11, 2009 BRIEF
#1. The Ontario Government should revitalize the AODA’s implementation with new, focused
leadership and oversight from the top, building on the leadership, spirit of support and
enthusiasm that the Government spearheaded in 2005 when the AODA was enacted.
#2. A stand-alone Minister Responsible for Disability Accessibility be established, with lead
responsibility for overseeing the implementation of the AODA, and for the Government making
itself fully accessible. A stand-alone Ministry should report to this new minister, populated by
the positions now housed in other ministries, which are responsible for the currentlyuncoordinated efforts on this issue.
#3. In consultation with the public, including the disability community, the Ontario Government
should develop a comprehensive multi-year plan on how it will implement the AODA across all
sectors of Ontario society from now to 2025, to ensure that Ontario will achieve full accessibility
by 2025. This plan should include such things as which accessibility standards will be developed,
how the AODA will be enforced, and what steps, apart from developing accessibility standards,
the Government plans to take, to promote an support the achievement of full Ontario
accessibility by 2025.
#4. The Ontario Government should now commit publicly that any accessibility standard that it
will enact will, at a minimum meet the accessibility requirements in the Ontario Human Rights
Code.
#5. The AODA 2005 should be amended to require that accessibility standards enacted under it
should at a minimum meet the accessibility requirements in the Ontario Human Rights Code.
#6. The AODA be amended to require that the process for Standards Development Committees,
developing proposals for accessibility standards under the AODA, be managed as independently
as possible of the Ontario Government.
#7. Ontario public officials should not be appointed to serve as non-voting members of Standards
Development Committees. They should be available to each Standards Development Committee,
to give policy advice to the Standards Development Committee, when that Committee requests
their advice on specific topics.
#8. Ontario public officials who present advice to a Standards Development Committee on
policy issues, at the request of the Standards Development Committee, should be instructed that
it is not their role to advocate for or seek a reduction of the obligations to remove and prevent
barriers, for which the Ontario Government will be responsible.
#9. The step-by-step process by which Standards Development Committees develop each
accessibility standard should be revised in accordance with the strategy set out in this brief.
#10. The Independent Review should examine the role played by the Canadian Standards
Association in the standards development process to date.
#11. The Independent Review should obtain information from the United States, Australia, Israel
and any other jurisdiction that has developed accessibility standards for people with disabilities,
to identify ways in which the standards development process in Ontario can be improved.
#12. When a Standards Development Committee is developing an accessibility standard, the
Accessibility Directorate should provide to it, and post on the internet for public input, a review
of measures adopted in other jurisdictions to advance the goal of accessibility for persons with
disabilities in the area that the new accessibility standard is to address.
#13. The Ministry should provide extensive additional supports to disability sector
representatives on each Standards Development Committee, to privately and independently
advise them on law and accessibility policy, so they can more effectively present proposals and
respond to proposals that other sectors present in the standards development process.
#14. The AODA should be amended to require the Ministry to provide reasonable funding to
disability sector representatives who sit on Standards Development Committees, including for
time which disability sector representatives spend at Standards Development Committee
meetings and in preparation for them, including funding for their outreach to the broader
disability community when developing proposals to raise at the Standards Development
Committee.
#15. Ministry staff should ensure that materials are provided to Standards Development
Committee members sufficiently in advance of Standards Development Committee meetings, to
enable members to read and absorb them.
#16. The Ministry should give disability sector representatives further resources and assistance,
to help them get input from the broader disability community during the ongoing work of each
Standards Development Committee.
#17. Disability sector representatives on the Standards Development Committees should be
surveyed, to see whether they had any unmet accessibility needs of their own during their work
on the accessibility standards and, if so, to get ideas on how their accessibility needs might be
better addressed.
#18. The Ministry should arrange future opportunities for disability sector representatives from
all the different Standards Development Committees to meet together, to learn from each other.
#19. The Independent Review should examine the appropriateness of the sizes of Standards
Development Committees, and offer recommendations on how to make their deliberations more
inclusive of the full perspectives of the obligated sectors in the disability community, through
broader consultations.
#20. The Human Rights Commission should be far more extensively involved in the formal and
informal work of each Standards Development Committee, including during review of public
input and discussion and votes on clauses of proposed accessibility standards. This could include
having a representative of the Ontario Human Rights Commission sit on each Standards
Development Committee.
#21. The clause-by-clause voting process and process for recording the views of individual
members of a Standards Development Committee should be carefully reviewed and fine-tuned,
to best let Standards Development Committee members record their actual views on specific
issues, and to enable the Government and the public to know with clarity what the votes mean.
#22. The Independent Review should canvass Standards Development Committee members to
see whether the time allocated for final debates and voting on proposed accessibility standards
was sufficient.
#23. The Ministry should encourage Standards Development Committees to identify where
changes are needed to provincial or municipal legislation, regulations or bylaws, to advance the
goal of a fully accessible Ontario.
#24. The Ministry should not conduct or make public costing studies on accessibility standards,
until:
a) it has reviewed the problems with these studies detailed in this brief, and
b) it ensures that costing studies reliably document the net additional costs, if any, of compliance
with the proposed accessibility standard, over and above the pre-existing cost of complying with
the requirements of the Ontario Human Rights Code and the Charter of Rights, as offset against
the benefits produced by compliance with the proposed accessibility standard.
#25. Any future costing studies should also identify the cost to Ontario of not providing
accessibility in the sector in issue for people with disabilities.
#26. The Ministry should keep and make public detailed minutes of any meetings of subcommittees of each Standards Development Committee.
#27. The minute-keeping of any Standards Development Committee or its sub-committee should
make it clear when an option or proposal is discussed and rejected, and the reasons for this.
#28. Minutes of meetings of a Standards Development Committee should accurately and
comprehensively record the detailed issue-by-issue deliberations of that Committee, and should
be written in a fashion to make them fully understandable by members of the public who did not
attend those meetings.
#29. When a Standards Development Committee considers a document at a meeting, such as a
draft of an accessibility standard, that document should be made public along with the minutes of
the meeting which considered it.
#30. However a Standards Development Committee’s minutes or other work is documented, the
Government should make public, with any final proposed accessibility standard that a Standards
Development Committee develops, a summary of the public input received during consultations
on the initial proposed accessibility standard, and a listing of which proposals from the public
were accepted and which were rejected.
#31. The Government should make public a clear, accessible summary or synthesis of the
feedback which it has received from the public on final proposed accessibility standards, and
draft regulations developed under the AODA. These should be made available as quickly as
possible, and should not await the final enactment of a new accessibility standard.
#32. The Government should make available on request in an accessible format the actual input
received on a final proposed accessibility standard (not just a summary or synthesis of it), with
personal identifying information removed where requested. When the government circulates
invitations for public input on accessibility standard proposals, it should make it clear that the
input will be made public, and that a person or organization submitting input can request that
their identifying information be withheld from public disclosure.
#33. The Government should leave initial and final proposed accessibility standards, submitted
by a Standards Development Committee, on the Government’s website on a permanent basis.
#34. The Ontario Government Should widely publicize the opportunity for community groups to
request a chance to present to each Standards Development Committee.
#35. The AODA 2005 should be amended to reinforce the capacity of Standards Development
Committees to receive presentations from the public, including the disability community.
#36. Each Standards Development Committee should be encouraged to invite stakeholders from
the disability community and regulated sectors to meet together to discuss issues that the
Standards Development Committee have found challenging to resolve.
#37. When the Government holds public consultations on initial or final proposed accessibility
standards:
a) The Government should give at least three months for public input on any accessibility
standard, and preferably longer.
b) The Government should not include in any such consultation period any major holiday
period,.
c) The Government should coordinate the timing of each accessibility standard public
consultation to avoid making excessive demands on the public including the disability
community, and should try to avoid consulting the public on two accessibility standards at or
near the same time.
#38. Public consultations on proposed accessibility standards should involve much more open,
accessible, widely-publicized opportunities for face-to-face input, not invitation-only events,
where the disability community is substantially underrepresented.
#39. When the government seeks public input on a final proposed accessibility standard, as
recommended to it by a standards development committee:
a) The Government should widely advertise to the public, via different accessible media, the
opportunities for public input;
b) The government should hold publicized, open, accessible public forums on the final proposed
accessibility standard, to give the public, including the disability community, opportunities for
face-to-face input and feedback on the proposed accessibility standard.
c) The Government should build upon the informal process, used in the 2009 fall, for bringing
key stakeholders together to explore common ground on unresolved issues in the finalization of a
proposed accessibility standard.
#40. Accessibility standards should include, where appropriate, not only end-dates for achieving
results, but also interim benchmarks for major milestones towards full accessibility.
#41. The Ministry’s process for auditing the effectiveness of Standards Development
Committees be substantially reformed to make it more effective and relevant to the actual work
product of the Standards Development Committee, and the goals of the AODA.
#42. The Government should immediately
a) establish and make public an AODA enforcement mechanism so that it is available on January
1, 2010.
b) early in 2010, conduct public consultations on the plans for compliance/enforcement, and then
revise this compliance/enforcement mechanism, if needed, in accordance with the input received
from the public.
#43. The AODA should be amended to require the prompt establishment or designation of an
independent, arms length AODA enforcement agency, with a mandate and sufficient staff to
effectively receive complaints from individuals with disabilities across Ontario, and to
investigate, mediate, and where necessary, publicly prosecute where individuals with disabilities
face discriminatory barriers, contrary to the AODA 2005 or to the Human Rights Code.
#44. The AODA should be amended to require that a new Tribunal, with specialized expertise in
disability accessibility, be established promptly to hear AODA appeals.
#45. The Government should consult with the disability community on decisions regarding the
tribunal or tribunals to deal with cases under the AODA.
#46. The AODA should be amended to require the Ministry to implement interim and
preliminary measures, beyond educational activities, in areas which accessibility standards do
not now address, to promote barrier prevention and removal in those areas in advance of the
enactment of more accessibility standards.
#47. The Ministry should accordingly expand its efforts on preliminary and interim measures to
promote barrier removal and prevention in advance of the enactment or enforcement of
accessibility standards, and should be given sufficient resources to enable it to do this.
#48. The AODA should be amended to:
(a) require provincial ministries and municipal governments to review all existing legislation
within their mandates, within a time frame to be set by the bill, to identify any barriers against
persons with disabilities created, permitted or perpetuated by or under that legislation.
(b) require provincial ministries and municipal governments to develop plans within
legislatively prescribed time lines for removing or reducing those barriers within their
jurisdiction, and to provide reasons in the case of a decision not to take action on a legislative
barrier.
(c) require provincial ministries and municipal governments to put in place a permanent process
for screening a proposed bill in future, regulation or bylaw as the case may be for barriers against
persons with disabilities, prior to its being voted on.
(d) to require that the foregoing will be open and transparent e.g. by requiring the results of any
barrier-review under (a), (b) or (c) above to be made public without need of a Freedom of
Information request.”
#49. The AODA should be amended to substantially strengthen the requirement that no Ontario
tax dollars be used either through capital grants or procurement spending to create or perpetuate
any barriers against people with disabilities, to require that a centralized, monitored program be
established within the Ontario Government to make this happen, and to require periodic
reporting to the public on this.
#50. In the interim, the Ontario Government should immediately adopt a comprehensive,
monitored and accountable process for ensuring that capital spending, including infrastructure
spending, and procurement spending, is conditional on barriers against persons with disabilities
not being created or perpetuated, and that this be thoroughly publicized to potential applicants
for capital or procurement projects.
#51. The Ministry should be funded to substantially expand the technical supports, including
tools and resources that it provides to obligated organizations to assist them to understand what
to do to remove and prevent barriers.
#52. The Ministry should consult with the public, including obligated organizations and the
disability community, to devise cost-reduction strategies, such as bulk purchasing of accessibility
measures, to assist obligated organizations to reduce the costs of removing and preventing
barriers.
#53. The AODA should be amended to provide that:
(a) Municipalities with a population under 10,000, which opt not to create a municipal
accessibility advisory committee, be required to hold public consultations, at least annually,
including with persons with disabilities, on strategies for removing and preventing barriers
facing persons with disabilities in the municipality;
(b) If an Accessibility Advisory Committee makes recommendations to the council of a
municipality, the council shall respond to the recommendations within 40 days and, if it rejects
the recommendations, provide written reasons for doing so. The council shall make the
committee's reports and recommendations and the council's response available to the public;
(c) The council of a municipality shall pay reasonable compensation and reasonable
reimbursement for expenses to the members of its Accessibility advisory committee.
#54. The Ontario government should establish and maintain an Internet listserv for members of
municipal accessibility advisory committees to be able to exchange ideas and learn from each
other in their efforts to advocate for barrier removal and prevention at the municipal level.
#55. The AODA 2005 should be amended to implement the proposed amendments set out in
Recommendations 44 to 49 of the Ontarians with Disabilities Act Committee’s January 26, 2005
Brief to the Legislature’s Standing Committee on Social Policy, in accordance with Premier
McGuinty’s April 7, 2003 election promise to the disability community that, at a minimum, the
AODA and its regulations would incorporate the Liberal Party’s 2001 proposed amendments to
the Ontarians with Disabilities Act 2001.
#56. The AODA should be amended to require the Government of Ontario to develop and make
public within six months a comprehensive multi-year plan, setting out how it plans to become
fully accessible as an employer and provider of public services and facilities, by 2025, including
interim benchmarks.
#57. The Provincial Auditor should be asked to inquire and report on the extent to which the
Ontario Government is fully complying with the requirements of sections 5 to 9 of the Ontarians
with Disabilities Act 2001.
#58. The ODA 2001 or the AODA 2005 should be amended to implement specific enforcement
proceedings for sections 5 to 9 of the ODA 2001, including providing for an obligation on the
Ontario government to monitor its compliance with these provisions, and report publicly on its
compliance.
#59. The Ontario government should implement the measures identified in the AODA Alliance's
April 27, 2009 Brief to the Select Committee on Elections, including the appendices of that brief,
to ensure that the two 2010 municipal elections and 2011 provincial elections are all fully
accessible to voters and candidates with disabilities.
#60. The Ontario government should develop and introduce into the Legislature an omnibus bill
to amend provincial and municipal elections legislation, in order to ensure that barriers against
voters and candidates with disabilities are effectively removed and prevented.
#61. The Ontario government should designate a single Minister with lead responsibility for
municipal and provincial election reform, to ensure fully accessible actions for candidates and
voters with disabilities.
#62. No plans should be made for the repeal of the Ontarians with Disabilities Act 2001 before
2025.
#63. The AODA should be amended to
a) Require that within a specified time frame, school boards develop and implement school
curriculum components on disability accessibility and the importance of a barrier-free society.
b) Authorize the Ontario Government to develop a sample curriculum which school boards could
adopt if they wish, in lieu of developing their own curriculum;
c) Require that (after an appropriate transition period) to qualify in future for a licence or other
qualifications certificate as an architect or other designer of the built environment, a specified
amount of training in barrier free design must be completed, that goes beyond the insufficient
requirements of the Ontario Building Code.
d) Similarly require that certain other professional training, such as to qualify to be a lawyer,
doctor, other health care provider, teacher, social worker and other relevant professions, must
include a specified amount of training on barrier free provision of services to persons with
disabilities;
e) Establish time lines to allow for the development of new curricula. In the case of professional
training, authority can be assigned to self-governing professional bodies to set criteria or
standards for this training and to monitor its sufficiency.
#64. The AODA 2005 should be amended to provide that when any administrative or regulatory
agency, board, commission or tribunal within the jurisdiction of the Ontario Legislature exercises
any statutory power, it shall have regard to the impact of its decision on the creation,
perpetuation or removal of barriers against persons with disabilities and to the need to achieve
accessibility for persons with disabilities, including the need to remove existing barriers and to
prevent new barriers within its mandate.
#65. The Government should fully and strictly comply with the requirement that it make a
section 40 report every year in a timely fashion.
#66. The Government should comply with both the letter and the spirit of section 40, by
including in the report a fair, accurate assessment of how effective the AODA has been to date,
and on whether Ontario is on schedule for full accessibility by 2025.
#67. The Ontario Government should make its section 40 Annual Minister’s Report public
promptly, and not delay its release for months.
#68. The AODA should be amended to enact significant consequences for the Government if it
does not fully comply with the requirements of section 40.
#69. The minutes of meetings of the Accessibility Standards Advisory Council (ASAC) should
be made public, as well as any recommendations that ASAC makes to the Ontario Government.