ONTARIANS WITH DISABILITIES ACT COMMITTEE
INITIAL ANALYSIS OF BILL 125

November 7, 2001

Summary

This is the ODA Committee's initial analysis of Bill 125, the proposed Ontarians with Disabilities Act that the Ontario government introduced for first reading on Monday November 5, 2001. The main conclusions from this analysis are that the bill, in its present form:

- is not consistent with the 11 principles enunciated by the Ontarians with Disabilities Act Committee and unanimously adopted by a resolution in the Ontario Legislature on October 29, 1998.

- does not achieve the barrier-free society for Ontario's 1.5 million people with disabilities, as proclaimed in the government's own vision statement released on Nov. 1, 2001; and

- is not a "strong and effective" law, as required by the Ontario Legislature's unanimous resolution adopted on November 23, 1999.

The bill is vaguely drafted and confusing. This makes it difficult to understand how many of its provisions will work, and raises a number of key questions. If you find some of this analysis to be complicated or difficult to follow, it is because the bill is difficult to follow.

The bill will require substantial amendments to achieve the government's vision and goals. The Ontarians with Disabilities Act Committee will be preparing recommendations for amendments to meet its and the Ontario government's stated goals.

This analysis assesses Bill 125 from the standpoint of 11 principles for the ODA. These principles are central to the ODA Committee. Those principles are posted at this pinpoint URL:

http://www.odacommittee.net/brief98c.html#principles

or can be requested via email by writing: oda@odacommittee.net

Please send your feedback on the bill, and on this analysis of it, to the email address above.

OUR FIRST ANALYSIS

Prior to the release of the legislation, the Ontarians with Disabilities Act Committee released a series of six questions to be used to measure the proposed legislation. This analysis is based on those questions.

1. Does the proposed ODA include protection for all disabilities, physical, mental and sensory, be the disability visible or invisible?

The bill uses a definition of disability similar to that in the Ontario Human Rights Code, with more updated, contemporary terminology. On a first read of the bill, it appears to include all physical, mental and sensory disabilities including invisible as well as visible disabilities. However, a main thrust of the bill's provisions appears to focus on barriers faced by persons with mobility disabilities.

For example, the only guidelines that are required to be developed under this legislation relate to the design of newly- acquired or newly-leased government buildings, and government buildings which are significantly renovated in the future. The minimum standard is at least the existing standards in the Ontario Building Code. There is no requirement that those design guidelines meet the needs of persons with all types of disabilities that are not dealt with in the Building Code. There is no assurance, in any of the bill's consultation mechanisms, that the views and needs of persons with all types of disabilities will be taken into account.

2. Does the proposed ODA cover the removal and prevention of barriers in all aspects of life in Ontario whether in the public or private sector, such as: in employment and the enjoyment of goods, services and facilities e.g. transportation, health care, education and training, communication and access to information?

No. The bill only requires the creation of plans for barrier identification, removal and prevention in the public sector, including the Ontario government itself, the broader public sector (including public transportation providers) and municipalities.

The bill permits the creation of guidelines, standards, protocols and regulations that may apply to the private sector if the minister and Ontario government later choose to do so. The government may also choose to turn these guidelines and standards into regulations that would cover specific organizations or sectors. However, there is no obligation on the Ontario government ever to create these guidelines or to turn them into regulations, nor to cover every area of the private sector, or even every area of the public sector (since the bill permits the government to unilaterally grant exemptions).

For the past twenty years, the Ontario Cabinet has had an authority under the Ontario Human Rights Code to create regulations on standards in this area. Even though the Commission has had detailed policy guidelines on accommodating the needs of persons with disabilities for over a decade, the government has not chosen to make those guidelines into regulations.

3. Will the proposed ODA require that detailed standards be set for the removal and prevention of barriers through a consultative process with key stakeholders including people with disabilities, business, and others in the specific sectors affected?

No. The bill permits a confusing and complicated range of different types of standards, guidelines and protocols to be developed and possibly (though not mandatorily) turned into regulations. There is no clear definition as to what a guideline, standard, code or protocol is, nor what the difference is between these types of documents.

The only guidelines that the government is required to make are design guidelines for government buildings that will apply only to newly-purchased or newly-leased government buildings, or to government buildings that are significantly renovated after this bill comes into effect. The guidelines would not apply to buildings currently used by the government unless the government plans to significantly renovate them.

The government must make guidelines regarding the preparation of accessibility plans and policies. There is also the optional power to make regulations governing the preparation and content of accessibility plans and policies. This suggests that the guidelines (which must be made) refer only to the process, not the content of the accessibility plans and policies. There is no requirement that any regulations ever be made regarding the preparation or content of these accessibility plans and policies. In the narrow category of guidelines which the Ontario government must make, the bill imposes no time frame within which the government must develop them.

For the most part, in the case of government acquiring new property or goods, e.g. for capital expenditures, the only obligations which the bill imposes on the provincial or municipal governments are merely to "have regard" to the issue of accessibility. To "have regard" can be seen as a loose, minimal obligation. There appear to be no standards or guidelines set in the bill against which the assessment can be made. There is no requirement for the government in question to document the process. There is no right for persons with disabilities to appeal from a decision. There is no public reporting on these decisions or any consequence if the government chooses to go ahead and make a major capital expenditure which creates new barriers, using taxpayers' dollars.

In terms of consulting with the disability community, the legislation is vague. It imposes very limited requirements on the Ontario government to consult with persons with disabilities, or even with its own new provincial Advisory Council.

The only mandatory consultations prior to any kind of standard- setting in this bill appears to be in the case of the guidelines regarding new government building accessibility, and limited consultation at the municipal level. The design guidelines must be created by the government of Ontario in consultation with "persons with disabilities and others." It does not specify what ministry is responsible for developing these guidelines, nor what type of consultation is required.

At the municipal government level, the municipal council must consult with the municipal accessibility advisory committee with respect to access to buildings owned or leased by the municipality (apparently again, only new building acquisitions or renovations). That advisory committee must include persons with disabilities (although not necessarily a majority). There is no requirement of broad consultation with persons with disabilities in the community.

In terms of other consultation, the bill permits the designated minister to direct the new Ontario government office, the Accessibility Directorate, to consult with stakeholders chosen by the minister to develop the codes, codes of conduct, formulae, standards, guidelines, protocols and procedures related to the subject-matter of the bill. After these are developed, the Cabinet has the option of making these into regulations if it wants, and it can change them as it wishes, without any consultation. There is nothing in the section relating to the consultation by the Accessibility Directorate that requires the minister to direct the directorate to consult with persons with disabilities.

Similarly, the new provincial Accessibility Advisory Council, which is required to have a majority of persons with disabilities, is not required to consult with persons with disabilities in carrying out its mandate. The new provincial Advisory Council has a very limited role with no authority to initiate its own research or investigation except within the narrow confines of its mandate, unless directed to do so by the minister. It has only the power to advise. its advice is not binding on anyone. The minister is not required to explain to the Council or the public why the minister does not follow the provincial council's advice. The Council is required to report on its activities to the minister. There is no requirement that the report or the advice provided by the Council be made public.

The minister's announcement of this bill and publicity about it speaks to putting persons with disabilities "in the driver's seat." It is difficult to reconcile that statement with the bill itself. The Advisory Council at the provincial level and the accessibility advisory committees at the municipal level, are put forward by the Ontario government as the key mechanism for achieving that goal. As discussed above, their own participation in the consultation process is very limited. Most of the consultation, where it exists, is done not through these advisory bodies but through the Accessibility Directorate, which is a part of the Ministry of Citizenship, and responsible and accountable solely to the minister. There is no requirement that the staff of that directorate include persons with disabilities.

Like the provincial Advisory Council, the bill's provisions regarding the municipal advisory committees have many serious weaknesses. They, too, can only "advise." The municipalities never have to listen to them, accept their advice, or even meet with them or answer them. These advisory bodies have no power to require disclosure of information from the government they advise, in order to know what is going on. If that government ignores or rejects their advice, it need give no explanation or reasons.

Moreover, under this bill's provisions, these advisory bodies are not selected by the disability community. The disability community, in fact, has no say in who sits on them. The provincial Advisory Council is appointed by Cabinet. The bill does not specify how the municipal advisory councils are to be appointed.

There is no requirement that different disability groups be represented on these advisory bodies.

4. Does the proposed ODA provide a process for ensuring that barriers are removed and prevented in a timely manner?

No. The bill does permit regulations to be passed setting time frames for meeting any obligations set out in the Act. However, there is no requirement to make any such regulations or to set a time limit.

There is nothing in the bill that actually requires barriers identified in the plan to be removed or prevented. It only requires the making of an annual plan by a range of public sector organizations. The bill also adopts or reaffirms certain existing obligations i.e. those under the Ontario Human Rights Code. A new bill is not needed to say that persons with disabilities have those existing rights.

The bill gives considerable authority to the government to unilaterally exempt government ministries, the broader public sector, agencies and the private sector from obligations under this bill. The bill imposes no limits or criteria on this broad exemption power, nor any accountability for the government when it is exercised. There is no right of persons with disabilities to appeal from the government's granting an exemption. The government is not required to give any reasons or any rationale for granting an exemption. For example, the government could exempt all hospitals from complying with the bill without having to have a good reason or to justify its decision.

5. Does the proposed ODA establish an effective mechanism beyond individual complaints to enforce these new standards?

No. The bill does not impose an enforcement mechanism. The language of some of the provisions sound as though there are mandatory requirements by stating that the government "shall," or the "municipality shall." However, there is no form of penalty or other consequence for failing to comply. There is no independent and impartial review of these actions. No independent body or agency is required to review or investigate the actions of organizations covered by the bill. There is no provision that states that failure to comply with the provisions of this bill is a violation of the Ontario Human Rights Code.

The only "enforcement" which the bill imposes is the requirement that plans be made public. However, the public is not granted ready access to information about the actual circumstances of governments, agencies or organizations that are supposed to be removing and preventing barriers. There are no clear guidelines, or requirements for government bodies to publicly justify their decisions for failing to remove and prevent barriers. As such, public review of these plans seems toothless.

The bill provides no avenue for a member of the public to make a complaint about non-compliance. An individual with a disability who faces a barrier must still resort to battling one barrier at a time, by filing a complaint under the Ontario Human Rights Code.

The provincial Advisory Council, which may advise the minister generally on the implementation of the Act, has no authority to take any proceedings, compel access to any information, or obtain any remedy for anyone.

6. Does the proposed ODA reduce existing rights of people with disabilities?

This question requires additional review. The legislation specifically states that the legislation does not limit the Ontario Human Rights Code. However, we have not yet had time to review carefully how this legislation will interact with the other legislation being amended or affected.

Final note: The legislation also amends a number of other pieces of legislation. We have not completed a detailed review of those amendments. It will be forwarded in the near future.

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