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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 30, 2014
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 8
1. Overview 8
2. Summary of this Brief 11
3. Who Are We? 17
4. The AODA - How It Works 17
5. What This Independent Review Should Ask 17
6. Ontario is Not on Schedule for Full Accessibility by 2025 18
7. Picking up Where the Beer AODA Independent Review Left Off 20
8. Summary of our December 11, 2009 Brief to the Beer AODA Independent
Review 24
9. Spoiler Alert -- Reflections on the Story that This Brief Reveals 27
Part II. The Government's Deliberate Failure to Keep Its Promise to Effectively Enforce
the AODA 38
1. Introduction 38
2. The Government's Promise of Effective Enforcement of the AODA 39
3. Our Long, Arduous and Frustrating Efforts to get the AODA Effectively
Enforced 42
4. The Government's Ten-Month Cover-Up of Its Failure to Effectively Enforce
the AODA 46
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 56
a) The News Becomes Public 56
b) The Immediate Aftermath 62
c) Exploring the Government's Initial Excuses 64
d) The Fallout Continued for the Next Six Months 73
6. Bill 107's Privatization of Human Rights Enforcement in 2006 Made
Effective AODA Enforcement Even More Pressing 75
a) Overview 75
b) Our Concerns in 2006 with Bill 107's Proposed Privatization of
Human Rights Enforcement 76
c) Four Years of Experience under Bill 107 from 2008 to 2012
Demonstrated that Our Concerns with It Were Well-Founded 81
7. Commitments in the 2014 Ontario Election Campaign on AODA
Enforcement 92
8. Reflections 96
a) The Failure to Effectively Enforce the AODA Sends a Very Bad
Signal to Obligated Organizations 96
b) The Government's Few Enforcement Efforts are Too Narrowly
Focused 101
c) The Government Has No Good Reason for Failing to Effectively
Enforce the AODA 102
d) The Government's Failure to Effectively Enforce the AODA Dilutes
Effective Monetary Penalties 103
e) Final Thoughts 105
9. Recommendations on the AODA's Enforcement 107
Part III. Accessibility Standards Enacted to Date Inadequately Address Barriers in
Areas they Regulate 110
1. Introduction 110
2. The Customer Service Accessibility Standard 110
3. The Integrated Accessibility Standard Regulation IASR 121
a) Overview 121
b) All Known Recurring Barriers are Not Addressed 121
c) The IASR Mainly Addresses Preventing New Barriers,
Not Removing Existing Barriers 123
d) Too Often, IASR Accessibility Requirements Are Too Weak 125
e) IASR Exemptions from Accessibility Requirements Are Often
Too Broad 132
(i) Unjustified Blanket Exemptions for Small Private Sector
Organizations 132
(ii) Inappropriate Total Exemption for Entire Private Sector 135
(iii) Exemptions from Accessibility Requirements That Are
Unjustifiably Less Exacting than the Human Rights Code's
Undue Hardship Requirement 135
(iv) Exemptions Permitting Barrier-Creation Even After the IASR
Was Enacted in June 2011 141
(v) Other Sundry Problematic Exemptions from IASR
Accessibility Requirements 142
f) IASR Time Lines for Action on Accessibility Too Often Are
Too Long 143
4. 2013 Built Environment Amendments to the Ontario Building Code 147
5. Reflections 148
6. Recommendations on Deficiencies in Current AODA Accessibility
Standards 150
Part IV. The Government's Multi-Year Delay Deciding Which New Accessibility
Standards to Next Make and Delivering the Promised Built Environment Accessibility
Standard 151
1. Introduction 151
2. Our Exhausting Effort to Get the Government to Decide Which Accessibility Standards to Next Make -- Another Saga of Counterproductive Government
Delay and Inaction 152
3. Reflections on the Government's Delay in Deciding which Accessibility
Standards to Next Make 165
4. The Long, Sad and Unfinished Saga of the Promised Built Environment
Accessibility Standard 168
a) Overview 168
b) Hurry Up and Wait 168
c) Reflections on the Promised Built Environment Accessibility
Standard 178
5. Recommendations on Next Accessibility Standards to be Developed 181
Part V. Reforming the Standards Development Process Has Not Fully Fixed Earlier
Problems 182
1. Introduction 182
2. The Government's Failing to Comply with the Statutory Deadline for Making
an Accessibility Standard after One is Recommended 182
3. Transferring Responsibility for Developing New Accessibility Standards to
the Accessibility Standards Advisory Council 183
4. Other Sundry Issues 187
5. Recommendations on Improving the Process for Developing New
Accessibility Standards and Revising Existing Standards 188
Part VI. Public Education on Accessibility Remains Insufficient 190
1. Introduction 190
2. Public Education Targeted at Obligated Organizations 191
3. Public Education Targeted at School Children and Key Professions 201
4. Public Education Aimed at the General Public 210
5. Government Action that Undermines Effective Public Education on
Disability Accessibility 210
6. Reflections 212
7. Recommendations on Public Education on the AODA 213
Part VII. The Government's Failure to Effectively Ensure that Public Money Is Never
Used to Create, Perpetuate or Exacerbate Disability Barriers 215
1. Introduction 215
2. The Idea - No Barriers Funded with the Public's Money 215
3. Yet Another Long Story of Our Repeated Efforts 217
a) The Early Years - 1998 to 2005 217
b) 2009 - We Ramp Up Our Advocacy Efforts 219
c) Actual Progress in June 2011 224
d) Stretches of Inaction and a More Recent Glimmer of Progress -
2011 to the Present 228
4. Barrier-Creation Using Public Money Continues 231
a) Overview 231
b) Barriers in the Ontario Government's New "Presto" Smart Card 231
c) Barriers in New Courthouses 240
d) The Need for the Government to Plan Well in Advance for a
Lasting Accessibility Legacy for The 2015 Toronto Pan/ParaPan
American Games 241
5. Trying to Make Progress During the 2014 Election 243
6. Recommendations on Ensuring Public Money Is Not Used to Create,
Perpetuate or Exacerbate Barriers 246
Part VIII. Meeting the Unmet Need to Ensure that All Ontario Laws Do Not Authorize
or Require Disability Barriers 249
1. Introduction 249
2. The Promise Made to Us 249
3. Progress Far Too Slow 250
4. Reflections 259
5. Recommendations on the Government's Review of Ontario Statutes
and Regulations for Accessibility Barriers 260
Part IX. Our 15-Year Campaign to Make Municipal and Provincial Elections in Ontario
Fully Accessible to Voters and Candidates with Disabilities 262
1. Introduction 262
2. Progress on Elections Accessibility Since 2005 264
a) Overview 264
b) Bill 212 and the Accessibility of Municipal Elections 265
c) Bill 231 - An Unsuccessful Solution to Barriers in Ontario Elections 269
(i) The Lead-up to Bill 231 -The Select Committee of the
Legislature on Elections 269
(ii) The Weak and Ineffective Bill 231 is Introduced
In the Legislature 269
(iii) Our 2010 Submissions to the Legislature's Standing
Committee on How to Improve Bill 231 270
(iv) Clause-by-Clause Debate and Accessibility Amendments to
Bill 231 280
(v) Bill 231 in Operation Since May 2010 - Elections
Accessibility Barriers Remain 290
3. The Parties' 2014 Platforms on Elections Accessibility in the 2014 Ontario
Election 299
4. Reflections 300
5. Recommendations on Ensuring Municipal and Provincial Elections are
Barrier-free for People with Disabilities 301
Part X. Ontario Government - Leading by Example, But by What Example is it Leading? 303
1. Introduction 303
2. Failure to Put in Place An Effective Front-line Internal System within the
Government for Embedding Accessibility Across the Ontario Public Service 305
3. Examples of the Ontario Government Violating or Attempting to Violate
Its Own Disability Accessibility Laws 310
a) Overview 310
b) Failure to Appoint this Independent Review by the Mandatory
Deadline 311
c) Illegally Abolishing the Government's Statutory Employment
Accommodation Fund 314
d) Attempting to Amend the IASR without Following Mandatory
AODA Provisions on Revising an Existing Accessibility Standard 316
e) Violating the Statutory Deadline for Making an Accessibility Standard
after One is Recommended 325
4. Recent Government Initiatives to Improve its Implementation of the AODA
Have Not Made a Significant Difference 326
a) Overview - Impact of Moving the Lead Responsibility for the
AODA's Implementation and Enforcement to the Ministry of
Economic Development, Trade and Employment 326
b) Incorporating Accessibility into the Economic Development, Trade
and Employment Ministry's Programs 328
c) New Initiatives for Increasing Private Sector Employment of People
with Disabilities 331
d) Encouraging Ontario Businesses to Produce Goods and Services that
are Disability-Accessible 336
e) Assigning Responsibility for Developing New Accessibility Standards
to the Accessibility Standards Advisory Council 337
5. Failing to Consistently Provide a Simple, Cost-Free Accommodation -
the Case Study of Government Documents in PDF Format 337
6. Reflections 341
7. Recommendations on the Ontario Government Leading By Example on
Accessibility 343
Part XI. Concluding Reflections and Recommendations 346
1. Ontario Needs a Plan to Get to Full Accessibility by 2025 346
2. The Government Should Not Use the Government's "Open For Business"
Strategy to Water Down Efforts on Disability Accessibility 346
3. Sundry Recommendations 347
APPENDIX 1. RECOMMENDATIONS 348
APPENDIX 2. LIST OF RECOMMENDATIONS SUBMITTED TO THE
CHARLES BEER AODA INDEPENDENT REVIEW IN OUR
DECEMBER 11, 2009 BRIEF 360
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 30, 2014
Part I. Introduction and Summary
1. Overview
The Accessibility for Ontarians with Disabilities Act Alliance submits this 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 All Candidates Debate planned to be held in an inaccessible school. It was moved 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 reachable by an elevator with only a 33 inch-wide 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.
As another example, 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 AODA. 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, had there been any information in them which the Government considered inaccurate, to enable us to correct them.
On June 19, 2014, we made a draft of this brief public for input from the community. We sent it to the Ontario Government, with a request to be alerted to any possible factual inaccuracies in that draft. We are indebted to the Government for reviewing that draft, and sending us feedback on that request. We have addressed that feedback to the extent appropriate, in this final version of our brief.
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. First, 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 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 has consolidated responsibility for developing proposals for the content of all new accessibility standards in the Accessibility Standards Advisory Council (ASAC), acting as a Standards Development committee, with the possibility of other members being added. This has not yet yielded any of the 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 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 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 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 day-to-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 ordeals 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 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: .
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: .
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?
It is vital that this Independent Review not be misdirected into asking the wrong question. The Ontario Government, in a subtle way, tried to water down the AODA Independent Review process when reporting to the public on the first AODA Independent Review, conducted by Charles Beer. The Government then proposed that an AODA Independent Review existed to simply ask whether Ontario is heading in the right direction.
The minister's 2010 AODA s. 40 2010 Annual Report stated:
"When making a journey of any kind, it’s always a good idea to check in with a roadmap from time to time, just to make sure you’re still headed in the right direction. In essence, that’s what the review provision contained in Section 41 of the AODA ensures by requiring an independent review of the act four years after it came into force and every three years after that.
In keeping with this provision, in June 2009, the government appointed former Ontario Minister of Community and Social Services, Charles Beer, to conduct the first independent review of the AODA. The goal of the review was to determine whether the objective of an accessible province is being met in an effective, efficient, flexible and fair manner. Or, put simply, are we still heading in the right direction?"
That Annual minister's AODA s. 40 Report wrongly gave short shrift to the goal of full accessibility by 2025. Ontario could be "heading in the right direction" by simply removing one barrier per year. Yet at that rate, Ontario would not reach full accessibility by 2025, or indeed, even by 3025. That is why it is critical for this AODA Independent Review to focus in a laser-like fashion on the undiluted question whether, at our present course and speed, Ontario will reach full accessibility by 2025.
6. Ontario is Not 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 has only committed to implement some of the Beer Report's recommendations. First, it agreed to harmonize AODA standards. That was a very modest step. It doesn't correct the major problems Charles Beer identified.
When the Government made public the Beer AODA Independent Review final report on May 31, 2010, it made it sound like it was taking the step of harmonizing AODA standards as a result of, and in response to, the Beer Report. This was no doubt to make it sound like the Government was truly listening to the Beer Independent Review and taking it seriously. Yet it turns out that the Government had already decided to harmonize those accessibility standards before Charles Beer delivered his final report to the Government. The minister's 2009 AODA s. 40 Annual Report stated:
"The government has recently approved an integrated approach to regulating the standards under the AODA. As a result, the requirements for the Transportation, Information and Communication, and Employment standards will all be aligned into one, single regulation in order to simplify compliance for obligated organizations, increase flexibility and reduce regulatory burden."
As a result of the Beer final report, the Government also agreed to reform the process for developing new accessibility standards by consolidating this within one permanent body, the Accessibility Standards Advisory Council, (ASAC), with the possibility of adding new members on an ad hoc basis. In contrast, in the past, the Government appointed an ad hoc Standards Development committee to develop proposals for a single new accessibility standard that the Government wanted to enact.
Even then, the Government acted very slowly on this Beer report 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 ASAC 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 entire AODA from scratch, and to get it passed and proclaimed in force. This brief demonstrates that this change in the standards development process has not made a practical difference, four years after delivery of the Beer Independent Review's report.
The Government did not make any of the important 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 long-overdue strengthened initiative for educating the obligated sectors on their duties under the AODA.
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. 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 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 Part IV of 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
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 Liberal Government that enacted the AODA in 2005 with another four-year majority government. The Government is well positioned, if it wishes, to take the decisive but practical and affordable actions that this brief recommends.
As demonstrated throughout this brief, the Government's progress on implementing the AODA slowed to a virtual snail's pace by the 2011 summer, within a mere year after the Beer Report was made public. This was the opposite of what the Beer Report said we need.
Moreover, the Beer Report was written at a time when the Government was not yet obliged to enforce any AODA accessibility standards. It did not assess the sufficiency of the AODA's enforcement. It was written 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 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 and enforcement of the AODA reveals a sad state of affairs that the Government could easily have avoided. When Ontario's Government embarked on developing comprehensive new 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 promptly and commendably took very seriously the input it solicited and received from the disability community and other sectors of society, when it was developing the bill, and after that, when the bill was debated in the Legislature.
On May 10, 2005, 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. They did this both by unanimously 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 trying 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 sadly went back to "business as usual." Its leadership focused on other issues. The AODA did not secure the strong ongoing 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 this. 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 documented 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 encounter their well-intentioned replacements who too often 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. We will smile with contentment and just go away. 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. It has done this at times by violating the AODA or trying to do so, and by 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's 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 to asking opposition parties to grill the Government in the Legislature during Question Period, to try to get action and answers. 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 in Part II of this brief).
We are appreciative that the Government has often been genuinely open to meeting at all levels, including with 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. It cannot be rooted in concern over the provincial deficit, since, as the Government itself often says, accessibility is a cost-saver for society, while inaccessibility costs us more.
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 conveniently forgotten or deliberately 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 ignored 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 from the Premier's Office 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 responsible 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
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 (with a fourth now taking it on), 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 last two 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 provisions. 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, had opposition been voiced.
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. Yet that growing budget was never fully spent in any year.
It is not a question of the Government not knowing what needed to be done. The 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 no declared good intentions. If we had a dollar for every time a public official, elected or unelected, high or low in the hierarchy, passionately 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, effective and monitored 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 all its various powers and opportunities to ensure that Ontario reaches that goal, beyond enacting and enforcing accessibility standards.
As this brief documents, the Government has many such levers. These 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 as the Government professed its commitment to accessibility, we at times had public officials tell us that working 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.
We have also found within the Government (and a number of other organizations in our society), a deep-rooted institutional resistance to openly considering new ideas on accessibility. When we or others offer the Government a good idea for tackling a recurring accessibility problem, it is unfortunately easier for the minister's staff to draft a responding boilerplate letter for a minister to sign, that recites the Government's great accomplishments. Those letters usually duck our recommendations or divert attention from them. It is harder for a public official, high or low, to take our new idea, explore it seriously within the Ontario Public Service, brief the minister, and get a thoughtful decision on its merits. To do so is to try swimming upstream.
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.
This brief shows that the Government now needs strong medicine. The gentle and modest findings and recommendations in the laudable Beer AODA Independent Review's final report did not trigger the transformative change and new leadership for which that report called, and which Ontario needs now more than ever.
This Independent Review comes at a decisive time in the twenty years that the AODA allocates for Ontario to become fully accessible. The re-elected Ontario Government must now get Ontario back on schedule for full accessibility. It must now 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 later correct this.
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 amendments to the AODA.
Our only recommendations needing legislative reform concern 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.
While this brief's analysis is extensive, our effort to make it fully comprehensive was frustrated by the Government in three ways. First, on May 2, 2014, we wrote Economic Development, Trade and Employment Minister Dr. Eric Hoskins. To help us prepare this brief, we asked the Minister for specific information that he has readily available to him on:
a) the Government's overdue choice of which accessibility standards to develop next under the AODA.
b) the Government's promised effective enforcement of the AODA.
c) how much money the Government gave the Accessibility Directorate of Ontario for the past year, and how much it spent.
d) what the Government has done to integrate disability accessibility into all programs at the Economic Development, Trade and Employment Ministry.
e) what the Government has done to encourage the private sector to produce goods and services that are disability-accessible.
f) what the Government has done to increase employment of persons with disabilities.
g) what the Government will do to ensure a lasting and strong disability accessibility legacy for the 2015 Toronto Pan/ParaPan American Games.
This was all information that the Government had readily at hand. Later that day, the Government announced that it was going to call an Ontario general election. We understand that the election writ was not issued until some time during the next week. However the Government took the position that Dr. Hoskins could not answer our letter during the election campaign. He left it to the ministry to respond. The ministry took the position that it would not answer during the campaign period.
The Government did not provide any of the information sought in that letter, even after the election was completed and a new Cabinet had been sworn in. the Government knew of this Independent Review's June 30, 2014 deadline for written submissions. The AODA Alliance's May 2, 2014 letter to the Economic Development, Trade and Employment Minister is available at
Second, as one source for our brief's analysis, our brief draws upon the Annual Reports which the minister responsible for the AODA's implementation and enforcement is required to submit each year. The Government provided us copies of those reports for 2005 to 2012. However, we have not been provided with a minister's AODA s. 40 Annual Report for 2013. It is our understanding that the Government has not made a 2013 Annual Report public.
This is especially troubling since the Government knew that its implementation and enforcement of the AODA was the subject of this Independent Review. The Government had five full months in 2014 to submit its 2013 Annual Report to the Legislature. Its conduct during 2013 is especially important. It addresses the Government's most current activity. It was during 2013 that the Government was in greatest paralysis in the dual areas of enforcing the AODA's existing accessibility standards and developing new accessibility standards.
Third, the Government's AODA s. 40 Annual Reports provide a way for Ontarians, including persons with disabilities, to monitor the Government's actions and hold it accountable. Those Annual Reports include helpful information. However, the Government consistently failed to meet its full reporting obligations in each Annual Report.
The minister responsible for the AODA's implementation and enforcement is required to provide "…an analysis of how effective the standards development committees, the accessibility standards and the enforcement mechanisms provided for under this Act are in furthering the purpose of this Act." The AODA's purpose is full accessibility by 2025. Section 40 of the AODA provides:
" 40. (1) The Minister shall prepare an annual report on the implementation and effectiveness of this Act.
Content of report
(2) The report shall include an analysis of how effective the standards development committees, the accessibility standards and the enforcement mechanisms provided for under this Act are in furthering the purpose of this Act.
Tabling of report
(3) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session."
In these minister's Annual Reports from 2005 to 2012, the Government did not clearly specify whether Ontario is on schedule for full accessibility by 2025. They did not indicate whether the accessibility standards, the Standards Development Committees and AODA enforcement, are now sufficient to ensure that Ontario reaches that goal on time.
Rather, these reports follow a typical and unfortunate pattern we have seen with government after government. That is, a pattern of congratulating itself on the great job it is doing. When speaking with the Government between 2003 and 2005, while the AODA was being developed and finalized, we warned that this would be the tendency of future governments and ministers preparing these Annual Reports. The Government's effort to draft s. 40 to avert that from happening, and to ensure that the minister's Annual Reports are an effective check and balance on the road to full accessibility by 2025, has regrettably failed.
In the grander scheme of things, persons with disabilities care far more about having barriers removed and prevented than with the sufficiency of a minister's statutory Annual Report on the AODA. However, the serious deficiency with these ministerial Annual Reports is symptomatic of a much larger problem with the Government's implementation of the AODA.
These self-congratulatory Annual Reports don't seriously look at what is happening on the ground for persons with disabilities across Ontario. They talk virtually exclusively about what the Government is doing. Their hyperbolic claims are a stark contrast to the lived experience of Ontarians with disabilities, such as when the minister's 2012 report declared that "Ontario is a world leader in accessibility." For the Government to aspire to be a world leader on accessibility is immensely commendable. For the Government to proclaim that it is a world leader on accessibility is immensely exaggerated.
In these reports, the Government doesn't seek to measure what practical impact the accessibility standards are having when persons with disabilities try to get a job, to get an education, to go to the store, to ride a bus, to find a place to live, to see a doctor, or to enjoy a public playground. To a blind person, whom a Government employee asked to watch a TV monitor to see when his number comes up, or to a woman who fears tumbling out of her wheelchair if she tries to exit a new inaccessible subway car purchased with public money, it will ring hollow to read the claim in the minister's 2012 AODA s. 40 Annual Report, that:
"All organizations with one or more employees in Ontario should now be providing accessible customer service to people with disabilities."
It may be in this stunning disconnect between the Ontario that is still full of barriers on the one hand, with the Government's ongoing praise of itself on the other, that this Independent Review will find the genesis of the prescription for the strong medicine that Ontario needs.
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 and its being prepared for deployment of its enforcement powers. 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 toothless 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 for all AODA enforcement/compliance provisions by April 2012.
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 election, 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. In 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 statements emphasized that 99 or 100% of public sector organizations had reported to the Government that they had complied with the Customer Service Accessibility Standard. For example, the minister's 2010 AODA s.40 Annual Report stated:
"By the end of the year, 100 per cent of the broader public sector had filed compliance reports. That’s an extraordinary achievement. It shows Ontarians that change is happening and sets an example for the private and non-profit sectors that must make their customer service accessible in 2012."
Later that Report stated:
"The first accessibility standard – addressing the area of customer service – became law in January 2008 and imposed compliance deadlines of January 1, 2010, for public sector organizations, and January 1, 2012, for organizations in the private and non-profit sectors. Impressive results have been achieved in reaching each of those deadlines."
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 self-reports, 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
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
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
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
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 hard-won 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
a) The News Becomes Public
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 Actuals = $ 4,465,060.00 Difference = $ 2,819,740.00
2006-07 Budget = $10,284,800.00 Actuals = $ 7,776,128.00 Difference = $ 2,508,672.00
2007-08 Budget = $10,284,800.00 Actuals = $ 9,405,472.00 Difference = $ 879,328.00
2008-09 Budget = $14,784,800.00 Actuals = $12,434,436.00 Difference = $ 2,350,364.00
2009-10 Budget = $17,617,000.00 Actuals = $12,799,778.00 Difference = $ 4,817,222.00
2010-11 Budget = $16,468,100.00 Actuals = $12,244,031.00 Difference = $ 4,224,069.00
2011-12 Budget = $17,600,300.00 Actuals = $14,483,762.00 Difference = $ 3,116,538.00
2012-13 Budget = $16,446,500.00 Actuals = $12,897,600.00 Difference = $ 3,548,900.00
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 Inspections = 0
2011 Audits = 41 Inspections = 0
2012 Audits = 200 Inspections = 0
2013 Audits = 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.
b) The Immediate Aftermath
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:
“[t]he 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.”
c) Exploring the Government's Initial Excuses
Minister Hoskins made questionable claims on November 19, 2013 that deserve careful 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 started to use those same powers as of the start of 2012 with respect to the entire private sector's compliance with the Customer Service Accessibility Standard. As the minister's various AODA s. 40 Annual Reports forewarned, that standard kicked into gear for the private sector as of January 1, 2012.
Contradicting Dr. Hoskins' blaming the Government's own legislation were statements the Government had made in several earlier ministers' AODA s. 40 Annual Reports. These proudly described the Government's earlier efforts to be ready to track and enforce regarding the private sector. They claimed that the Government it had developed and fine-tuned its ability to track organizations that deal with various Government ministries.
We here review what the Government had reported on this issue to the public in its AODA s. 40 Annual Reports from 2008 to 2012. To the extent that these are in part repetitive, this emphasizes that the Government felt it was taking the right course of action. As far back as 2008, The Government claimed that it was readying itself to deploy effective enforcement well before the Customer Service Accessibility Standard went into effect for the public sector in 2010.
The minister's 2008 AODA s. 40 Annual Report stated:
"A Modern Compliance Framework
The goal of an accessible Ontario is not achieved by the development of accessibility standards alone, but by ensuring that these standards are successfully implemented. In order to ensure that all organizations fulfil the requirements of the new customer service standard, the government has developed a compliance assurance framework for the AODA.
Components of the compliance assurance framework include:
• Education, awareness and compliance assistance activities are the first steps towards creating understanding among Ontarians about the new accessibility legislation
• Self-certification accessibility reporting
• Reports to be filed online, in a simple checklist format
• Links to compliance material to be included in the online report
• Automated assessment of reports by the Ontario government
• Obligated organizations make their accessibility reports available to the public as required by the AODA
• Compliance improvement will help obligated organizations meet their requirements of the AODA over time
• Inspection and enforcement will focus on organizations demonstrating the highest risk of non-compliance and the highest impact on people with disabilities."
The minister's 2009 AODA s. 40 Annual Report stated:
"Making Compliance Easier
In 2008 the government developed a compliance assurance framework for the AODA to help organizations ensure that they are fulfilling all of the relevant requirements of each of the standards as they come into effect.
The framework included:
• Education, awareness building and compliance assistance activities;
• A self-certification reporting model which would be accessible, available online with links to compliance assistance materials, and allow for automated assessment of the reports by the Ontario government;
• An implementation strategy for inspections and enforcement that includes progressive and appropriate sanctions, as well as a continuous improvement process to evaluate, monitor and modify the compliance approach to achieve better results.
In 2009, the Accessibility Directorate built on that compliance assurance framework by:
• Incorporating a new risk assessment tool into the reporting system to help the ADO focus compliance activities in the areas that will have the greatest impact on accessibility;
• Developing a Knowledge Information Tool to assist AODA Help Desk and compliance staff better support businesses and organizations as they work towards compliance;
• Drafting preliminary policy options for a proposed incentives strategy."
As well, the minister's 2009 AODA s. 40 Annual Report identified the following action on enforcement for 2010:
"Supporting Compliance
• Continue to work with other key government ministries to expand the inspection and enforcement model for 2012 and beyond.
• Move forward with a recommendation for the designation of an existing tribunal to hear appeals under the AODA. This tribunal will be established for the purposes of hearing appeals of director’s order to comply with a standard or pay administrative monetary penalties. The tribunal will not have authority to hear claims by individuals related to contraventions of the standards by obligated organizations.
• The ADO will continue to develop an Administrative Monetary Penalty program to support enforcement activities and to act as a disincentive to wilful non-compliance.
• Include flexibility into the design of Accessibility Compliance Reporting program to allow for the incorporation of new standards as well as additional functionality.
• Further develop an information management system that ensures efficient information sharing and updating."
The Government announced that further preparatory action on enforcement was completed the next year. The minister's 2010 AODA s. 40 Annual Report stated:
"In 2010, two major projects played pivotal roles in implementing this framework — both designed to simplify the compliance and enforcement processes.
Accessibility Compliance Reporting (ACR) Project
The ACR project is an innovative initiative that allows organizations to certify and file accessibility reports online.
The ACR is an electronic program that enables the Accessibility Directorate to
• access and track reporting details
• gauge accessibility compliance levels
• communicate with obligated organizations, and
• target inspection and enforcement for easier identification of serious repeat violators
The ACR project consists of two phases. In Phase One, organizations in the Broader Public Sector (BPS) obligated to comply with the customer service standard by 2010 were required to report their compliance. They did so by enrolling online using the ACR program, accessed through the ServiceOntario website, which is a single entry point for interaction with the provincial government.
To ensure accessibility, the ACR program complies with international Web Content Accessibility Guidelines (WCAG) 2.0 Level AA.
Highlights from 2010 for Phase One:
• The ACR was launched and Phase One successfully completed.
• The ACR performed as expected, allowing BPS organizations to report their compliance with the customer service standard commencing January 1, 2010.
• 100% of BPS organizations reported their compliance.
Phase Two of the ACR project involves preparing the service for the private and non-profit sector organizations that will be required to comply with the customer service standard. Those organizations with 20 or more employees will also be required to file an accessibility report with the government starting in January 2012.
Highlights from 2010 for Phase Two:
• The ACR team forged a number of key partnerships, including actively working with other ministries to enable data sharing in preparation for reporting by private and non-profit sector organizations.
• The AODA Contact Centre (ServiceOntario) continued as the first point of contact for all enquiries from obligated organizations and the public, while the Accessibility Directorate’s Help Desk addressed more complex enquiries.
• An online e-Binder Knowledge Information Tool was developed and is now fully operational to ensure that the most up-to-date information about the AODA and the accessibility standards is available to Accessibility Directorate staff, members of the Ontario Public Service and AODA Contact Centre agents for accurately answering enquiries from organizations and the public.
Going forward, the Accessibility Directorate will continue preparing the ACR for compliance reporting for private and non-profit sector organizations that will begin in 2012. To that end, we will continue fostering partnerships with other ministries to allow for additional data sharing, such as gathering of contact information for organizations, and will develop a self-serve online compliance wizard tool that will help organizations better understand their compliance requirements. We will also finalize elements of the compliance assurance framework to prepare for full inspections and enforcement of the AODA.
Recognition and Awards
The ACR is a truly ground-breaking project. The efforts of the ACR project team in developing this flexible, scalable and effective government technology have been recognized in the following ways:
• Showcase Ontario Merit Award winner and Diamond Award nominee
• Canada’s Government Technology Exhibition and Conference (GTEC) 2010 national Distinction Awards Medalist
Compliance Enforcement Strategy
In May 2010, the government approved:
• A proposed model for administrative penalties, and
• The designation of the Licence Appeal Tribunal to hear appeals of director’s orders under the AODA.
The model for administrative penalties was developed to support enforcement activities and to act as a disincentive to non-compliance. Under this model, administrative monetary penalties will be used to encourage compliance and will be considered in cases where efforts to assist a non-compliant organization have been unsuccessful. The amount of the penalty will depend on the size and type of organization, its compliance history and the impact of the violation on people with disabilities. The penalty is issued using a director’s order and can be appealed.
The Licence Appeal Tribunal (LAT) has been designated as the tribunal to hear appeals of director’s orders, such as orders for administrative penalties issued against organizations. The LAT was deemed to be a suitable choice as it has experience with similar types of appeals and is well known by the regulated community through its involvement with a variety of other regulations."
The minister's 2010 AODA s. 40 Annual Report forecast the following about work on enforcement to be upcoming in 2011:
"• The inspection and enforcement strategy will continue to be developed and integrated to include an inspection framework and curricula and training for inspections staff."
The minister's 2011 Annual AODA s. 40 Report stated:
"2011 Highlights
Audits & Risk Assessment
Our staff conducted audits throughout 2011 on a number of broader public sector organizations that reported full compliance. New tools allowed staff to regularly and transparently carry these out.
We also developed a method to help us identify organizations that are at a high risk for non-compliance. This will help target future compliance enforcement activities.
Government-Wide Approach to Compliance and Enforcement
In addition to our own inspection and enforcement staff, we explored establishing partnerships with ministries that already inspect organizations and enforce regulations. These partner ministries will also be able to carry out compliance activities on behalf of the Accessibility Directorate of Ontario. This will expand our capacity to reach out across the province."
The ministers 2011 s. 40 AODA Annual Report also stated:
"Our experience monitoring compliance reports and providing additional support to the broader public sector, helped us to improve our processes as we prepared for the January 1, 2012 compliance deadline for 360,000 private sector organizations. With such a large increase in the number of organizations who have to comply, we had to make sure we were ready to handle the reports and questions quickly and efficiently. Our Compliance Assurance Framework will help us oversee the number of organizations that have to report as well as those who are exempted from reporting."
The minister's 2011 AODA s. 40 Annual Report forecast the following for 2012:
"360,000 organizations in the private and non-profit sectors will be required to comply with the Accessibility Standard for Customer Service.
Of these, about 60,000 organizations will begin submitting their accessibility reports online. They will have until December 31, 2012 to file their reports.
The E-Wizard tool will be available to the public, providing accurate and timely information to organizations about what they need to do and when they need to do it.
We will begin exploring pilot programs with other ministries to support a government-wide approach to carrying out inspection and enforcement activities.
We will begin analyzing data to further improve our audits and inspections."
The minister's 2012 AODA s. 40 annual report said the following about the AODA's enforcement:
"Streamlined Compliance Enforcement
Using our experience with compliance in the public sector, we streamlined and strengthened our processes so that we are ready to audit, inspect and enforce compliance with the Accessibility Standard for Customer Service in the private and not-for-profit sectors.
Throughout 2012 we moved ahead with many initiatives so we would be ready for overseeing compliance in 2013. We have a process established to collect monetary penalties if needed, and we have a body in place to hear appeals.
2012 Highlights
Administrative Monetary Penalties
The AODA gives government the authority to set monetary penalties to enforce compliance with accessibility standards. In 2012, Treasury Board gave approval to begin putting penalties into practice. Penalties will only be issued after all efforts to help an organization comply have been exhausted. Amounts range from $200 to $15,000, depending on the size and type of organization, its compliance history and the impact of the violation. In the most serious of cases, daily amounts can also apply.
A Director’s Order to pay an administrative penalty that is not paid and not appealed within the specified timeframes, may be filed with the Superior Court of Justice and may be enforced as if it were an order of the court.
Licence Appeal Tribunal
In 2012, we finalized arrangements with the Licence Appeal Tribunal so it will be ready to hear appeals from organizations that wish to dispute any enforcement action. We determined that the Tribunal has the most experience with similar types of appeals and it is well known by the business community.
Compliance Assurance Framework
Our framework is designed to help organizations meet their accessibility requirements. It includes:
• Education and awareness building to help organizations understand and comply with accessibility standards.
• A self-certification program for organizations to register and file reports online.
• A strategy to help organizations meet accessibility requirements when they are having problems.
• Inspections and enforcement actions to address contraventions of the act and accessibility standards.
By the Numbers
December 31, 2012 was the deadline for private and not-for-profit organizations to file their report on accessible customer service.
Audits and Inspections
In 2012 we began exploring partnership agreements with other ministries who regulate legislation in Ontario. Working with them will allow us to implement a streamlined, government-wide approach to overseeing compliance with the AODA and its accessibility standards.
To ensure integrity in AODA reporting, we audit a range of obligated organizations each year. In 2012, we strengthened and improved business practices when it comes to audits. We analyzed data and applied lessons that we learned in 2011. As a result, we increased our capacity to carry out audits through improved procedures and protocols.
In 2012, we audited 200 randomly-selected public sector organizations including municipalities, hospitals, colleges, universities, and school boards. We asked these organizations to send us documents related to accessibility requirements they reported on in 2010. Nearly all of the organizations provided documents that met the requirements. For those who needed additional guidance, we worked one-on-one with them to bring their organizations into compliance.
Our audits and inspections team developed tools to better support our work. Putting them into practice is helping us ensure that we apply our inspections and enforcement strategy in a consistent and fair way. The lessons we learned from the public sector audits we conducted in 2012 will help us in 2013 when we audit the private and not-for-profit sectors.
By the Numbers – Public Sector Audits
200 public sector audits in 2012.
Business Directory
Working with ServiceOntario, we fully integrated our Accessibility Compliance Reporting system with the Ontario Government Business Directory. The directory holds information about Ontario businesses that already have relationships with government. This database will be updated regularly with current and reliable information."
The minister's 2012 AODA s. 40 Annual Report forecast the following on enforcement for 2013, the year when we would reveal the Government's inaction on enforcement:
"Compliance
To ensure that the Accessibility Standard for Customer Service is being implemented, we will follow up with private and not-for-profit organizations that missed the reporting deadline of December 31, 2012.
We will begin pilot programs with partner ministries who have agreed to assess compliance on our behalf."
We cannot here convey what is contained in the minister's 2013 AODA s. 40 Annual Report, which was due at the end of 2013. This is because the Government has still not made it public.
It was therefore transparently inaccurate and 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.
d) The Fallout Continued for the Next Six Months
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:
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:
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:
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:
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 (which give a comprehensive history of this issue and constructive recommendations on how to fix Ontario's human rights enforcement system) are available at
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 non-lawyer, 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 .
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
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
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, one-sided 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 this pledge 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." The Government has said that it has already been investigating this, for some years. We raised this proposal with the Government at least as far back as the 2011 election campaign, if not earlier. How much investigating can this simple cost-effective idea require?
As referenced earlier in this Part of this brief, the Government announced that it was working on this strategy as far back as 2011. As such, the Premier's promise of more investigation seems rather impoverished.
As excerpted earlier in this part of this brief, the minister's 2011 AODA s. 40 Annual Report stated:
"Government-Wide Approach to Compliance and Enforcement
In addition to our own inspection and enforcement staff, we explored establishing partnerships with ministries that already inspect organizations and enforce regulations. These partner ministries will also be able to carry out compliance activities on behalf of the Accessibility Directorate of Ontario. This will expand our capacity to reach out across the province."
One year later, the minister's 2012 AODA s. 40 Annual Report stated:
"In 2012 we began exploring partnership agreements with other ministries who regulate legislation in Ontario. Working with them will allow us to implement a streamlined, government-wide approach to overseeing compliance with the AODA and its accessibility standards."
The minister's 2012 AODA s. 40 Annual Report also forecast the following on enforcement for 2013, the year when we would reveal the Government's inaction on enforcement:
"We will begin pilot programs with partner ministries who have agreed to assess compliance on our behalf."
The Premier's claim that the Government could not 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, the only conclusion that makes sense is that someone high up in the Government, in the Premier's office or elsewhere, decided that the AODA will not be effectively enforced, and that references to AODA enforcement in public Government statements, websites, and the like, were 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.
As but one illustration, the minister's 2012 AODA s. 40 Annual Report was stunningly soft-spoken on any effort to use the AODA's enforcement powers in 2013, in the case of private sector organizations that do not comply, e.g. by not filing their mandatory accessibility self-report, in the case of private sector organizations with at least 20 employees. This was a strong tacit indication that the Government had not green-lighted any effective AODA enforcement for that sector. As quoted at greater length earlier in this Part of this brief, the report only spoke of following up with non-complying private sector organizations. The 2012 Annual Report stated:
"To ensure that the Accessibility Standard for Customer Service is being implemented, we will follow up with private and not-for-profit organizations that missed the reporting deadline of December 31, 2012.
We will begin pilot programs with partner ministries who have agreed to assess compliance on our behalf."
Even after the media made 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
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 2011. 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 Government's implicit message to London Transit, to their fellow public transit providers (who have worked closely together on these issues), and to all obligated organizations is clear: They can safely disregard other AODA deadlines with 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 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
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
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
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.
The Government's 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 earlier in this Part of this brief, 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 inter-city 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 woman 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 valuable. However, they are not "enforcement." Enforcement involves the 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 Effectively 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 self-report at the end of 2013. After that, the Government must again file annually.
However other public sector organizations must file only 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 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, 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 the 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 "ice-breaker" 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
"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
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…
…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 non-compliance 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
"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:
...
…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 constitute 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 para-transit 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 para-transit 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 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 each municipality's whim, 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. According to sections 78 and 79 of the IASR, each municipality must consult with the public, with persons with disabilities, and with its municipal accessibility advisory committee, on accessible design of bus stops and on needed numbers of accessible taxis. Municipalities need not take the advice offered, or give reasons for refusing to do so.
This all forces each municipality to reinvent the same 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 features 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 off-street 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 owner-operated, 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 self-report. 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 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 push-back 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 to be 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 print-based 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 para-transit 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:
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:
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:
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
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 commitment 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 multi-year 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 by-election 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
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 by-elections. 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 any one time. It achieved this when the Accessibility Directorate of Ontario had fewer staff than at present,and a lower budget than it now has, and even then, 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 largely-inaccessible 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 . 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
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 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 the 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, whom the Ontario Government does not hire. We have no way to track how well they are trained, nor how seriously they take these accessibility requirements, nor how effectively they enforce them, without having to shoulder the enormous task of tracking each municipality across Ontario.
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 five-year 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
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 pre-school, 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 this 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 in whole or in part. 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 9(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 IASR 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.
By this reform, the Government could add additional members when ASAC acts as a Standards Development committee. Moreover, ASAC members can change over time, as they have fixed-term appointments. However ASAC, as an organization, would be the permanent centre of gravity for standards development.
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 the most rudimentary institutional memory within 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
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 standard 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, including especially its Enabling Change program, have included good projects. The minister's AODA s. 40 Annual Reports from 2005 to 2012 include detailed lists of positive presentations, projects and other activities aimed at educating audiences, and at creating educational resources on accessibility for obligated organizations.
Despite this, 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 be immediately and substantially 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 Charles Beer AODA Independent Review. 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 Review recommended that:
"[t]he 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."
The Beer Report's findings demonstrate that the detailed list of the Government's public education initiatives up to the end of 2009, as outlined in the minister's various AODA s. 40 Annual Reports, while commendable, were simply not enough to meet the need. 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 exception, in December 2012, Community and Social Services Minister Milloy gave media interviews about the fact that the Customer Service Accessibility Standard's reporting requirement 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 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.
For example, 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
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."
The Accessibility Directorate of Ontario was commendably trying to reach out to obligated organizations. The minister's 2012 AODA s. 40 Annual Report said this about the Government's efforts to date on public education of obligated organizations:
",,One of our main priorities throughout 2012 was making sure that private and not-for-profit businesses were ready to submit their compliance reports by the end of the year."
The failure of 70% of private sector organizations with at least 20 employees to file an accessibility self-report as late as ten months after the January 1, 2013 deadline demonstrates that those public education efforts on this self-described main priority for the Government, while well-intended, substantially failed to achieve their objective.
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 is 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:
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:
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 self-governing 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 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:
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:
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 self-governing 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 self-governing 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 .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
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 e-learning 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 web-authoring 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 in-person 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.
In Part X of this brief, we acknowledge that the Government's decision after the June 12, 2014 election, to merge the Infrastructure Ministry with the ministry that is now responsible for leading the AODA's implementation and enforcement, presents a great chance to kick-start improved action in the area that this Part of this brief addresses. However, this will require the Government to do much better at tearing down the silos within which accessibility efforts have too often been quarantined within the Ontario Public Service.
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 to arrange a face-to-face meeting, on June 11, 2009, with representatives from several Government ministries, to 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 government-funded 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:
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: 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 Ten-Year 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 Government-funded 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 card-reading 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 asked 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 voice-activated 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 readily-available 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
To learn about the legacy for people with disabilities of the 2012 London Olympics, visit
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."
This striking gap in the 2015 Games' announced legacy plans is all the more troubling, since the Accessibility Directorate of Ontario was commendably trying to get the Government to adopt an effective accessibility legacy. The minister's 2012 AODA s.40 annual report stated:
"This past year we began working closely with the Pan/Parapan Am Games Secretariat and Toronto 2015 to make sure the Games meet all accessibility standards that will be in place by 2015 and to make sure accessibility is a key legacy of this world event."
Despite those efforts within the Government, and our independent ongoing months of external 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
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
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 little active response or engagement.
One of the few things the Government publicly said about this over a period of years came in 2008. The minister's 2008 AODA s. 40 Annual Report stated:
"• A tool is being developed, as part of a broader Diversity Lens, to identify and eliminate accessibility barriers found in Government of Ontario legislation and regulations"
In the face of 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. The minister's 2010 AODA s. 40 Annual Report stated:
"The Accessibility Lens
The Accessibility Lens was an initiative undertaken in support of Premier Dalton McGuinty’s 2007 pre-election commitment to review all Ontario laws to find any accessibility barriers that need to be removed. Under this initiative, the Accessibility Directorate of Ontario worked in collaboration with the Ministry of Government Services, Cabinet Office and the Ministry of the Attorney General to develop a tool that would support drafting legislation and regulations that remove and prevent barriers to accessibility.
In April 2010, the Accessibility Lens tool was finalized and was integrated with the government’s Inclusion Lens. The Inclusion Lens tool is a step by step guide through the critical factors in developing, implementing and evaluating a policy, program or service, and helps broaden thinking, identify potential or existing barriers, and spark insights about how an initiative can be made more inclusive with respect to diversity, equity and accessibility.
On January 13, 2011, the government launched this streamlined tool for identifying and removing unintended barriers to accessibility and inclusion in all areas of legislation, regulation and policy. This will result in policies, programs and services that better respond to the needs of all Ontarians."
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
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 appeared 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 33-inch-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. This is so even though the minister's 2008 AODA s. 40 Annual Report said that one was already then under development. The minister's 2008 AODA s. 40 Annual Report stated:
"• An accessible elections action plan is under development to make elections fully accessible to voters with disabilities."
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:
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 by-election 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 by-election 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 by-election 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:
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:
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 network-connected 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 un-kept. 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
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 by-election 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 by-elections 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, the minister's 2006 AODA s. 40 Annual Report stated:
"We also recognize that the Ontario Public Service (OPS), as one of the largest employers in the province, can have a real impact. The government is taking a leadership role by developing an OPS Accessibility Leadership Strategy, which will support the goal of making the OPS a model employer with a diverse workforce where employees of all abilities have a chance to fully contribute and achieve their potential. By becoming a leader in adopting accessibility best practices and standards consistently across the OPS, we can be a role model for other businesses and organizations as they work to implement accessibility standards."
Similarly, the minister's 2008 AODA s. 40 Annual Report stated:
"Ontario Public Service Leading the Way
The Ontario Public Service is committed to creating an accessible Ontario by 2025. As a leader in accessibility, we have made a strong start. For the past six years, the Ontario Public Service has been required to prepare accessibility plans. These plans show how government ministries improve opportunities for people with disabilities by identifying, removing and preventing barriers to accessibility. This year, ministry accessibility planning involved concrete steps to move towards compliance with the new customer service standard. Here are some highlights:
• A customer service e-learning module has been developed specifically for Government of Ontario staff: “May I Help You? – Welcoming Customers with Disabilities”
• Ministries are reviewing their customer service policies, practices and procedures to ensure that they will meet the requirements of the customer service standard
• Ministries will continue to build on resources already in place to communicate with people who have a disability, including the increased use of TTY lines, Braille and sign language interpretation
• Ministries are creating processes to receive feedback on their customer service to people with disabilities, including public websites, blogs, mail and telephone.
Given the number of ministries that make up the OPS, the OPS Diversity Office, Ministry of Government Services, established the OPS Accessibility Leadership Strategy to ensure that the Ontario Public Service is achieving Ontario’s accessibility vision. This strategy outlines a government wide, multi-year, phased plan to implement accessibility standards and good practices, moving from separate ministry accessibility plans to one comprehensive OPS plan.
Examples of Ontario Public Service initiatives to support ministries in their accessibility journey to create a barrier-free OPS include:
• Establishment of the OPS Accessibility Leadership Committee, made up of Deputy Ministers and Assistant Deputy Ministers to steer accessibility in all government ministries
• Launch of an internal government website that provides key information and resources to support staff in their accessibility compliance and leadership efforts.
These initiatives demonstrate Ontario’s commitment and leadership in implementing and planning for new standards under the AODA. Collectively and individually, government ministries are leading the way to a barrier-free Ontario."
More recently, the Government told us in writing that 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 award-winning 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 undertaken 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 whether 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 full-time 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:
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:
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 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 obey 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.
The minister's 2012 AODA s. 40 Annual Report did not identify the appointment of the next mandatory AODA Independent Review as one of its planned major activities for 2013. In hindsight, this omission is quite striking and telling.
Well in advance of the May 31, 2013 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 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 all-party 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 the Government's Statutory Employment Accommodation Fund
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 the Fund, 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 wrong-headed 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-by-clause 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
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
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:
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. 9(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. 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
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
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
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 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
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
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 "
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 disability-friendly 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.
The Premier's decision after the 2014 election to make the same minister responsible for infrastructure, as well as for economic development, employment and the AODA, is a potentially promising move from the disability perspective. As Part VII of this brief shows, the Government has not done an effective job at keeping its commitments on ensuring that new infrastructure in Ontario is disability-accessible.
However, to make this change effective, the new minister has to take the accessibility portfolio more seriously than did his last two predecessors who were responsible for the AODA. As well, the minister's office and the ministry must effectively integrate accessibility into its infrastructure work. To that end, the Accessibility Directorate of Ontario should be given a dual reporting assignment, both to the ministry's economic development side and its infrastructure side.
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.
#79. The Accessibility Directorate of Ontario should be given a dual reporting responsibility within the new Ministry of Economic Development, Employment and Infrastructure, to ensure that it can effectively influence the ministry's infrastructure work.
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:
#80. 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.
#81. 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.
#82. 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 pre-school, 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 standard 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 web-authoring 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 in-person 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 Accessibility Directorate of Ontario should be given a dual reporting responsibility within the new Ministry of Economic Development, Employment and Infrastructure, to ensure that it can effectively influence the ministry's infrastructure work.
#80. 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.
#81. 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.
#82. 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 currently-uncoordinated 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 sub-committees 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.
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