ODA Committee
New ODA Discussion Paper
dated June 28, 2004
posted August 3, 2004

Putting Teeth Into The Ontarians With Disabilities Act: A Discussion Paper On Options For Creating An Effective Compliance / Enforcement Process For The ODA June 28, 2004 INTRODUCTION The new Ontario Government has been holding public consultations on how to strengthen the Ontarians with Disabilities Act, 2001 (a law originally passed by the previous Conservative Government). It has committed to introduce amendments to this legislation into the Legislature this fall. One widely-recognized way that the ODA 2001 needs to be strengthened is to create an effective compliance/enforcement process. In the 2003 provincial election, the Ontario Liberal Party promised to amend the current weak ODA 2001 to make it strong and effective, including adding to it an effective enforcement mechanism. (See details of Dalton McGuinty's April 7, 2003 election commitment in Appendix B to this Discussion Paper). This Discussion Paper explains this issue and offers options for compliance/enforcement. People reading this Discussion Paper are encouraged to let the ODA Committee and the Ontario Government know what they think of the options in this Discussion Paper, what additional ideas they come up with, and which combination of options they prefer. Contact information for the ODA Committee is provided at the end of this Discussion Paper in Appendix C. To give feedback to the Ontario Government, contact the Accessibility Directorate at the Ministry of Citizenship's website at: http://www.gov.on.ca/citizenship/accessibility/index.html This Discussion Paper embodies ideas we have gathered over several years from ODA supporters, as well as research into legislation and programs in Canada and elsewhere around the world. We want Ontario to develop new ODA legislation that will learn from past successes, here and elsewhere, and that will also learn from past mistakes, here and elsewhere. Ontario's new ODA should be flagship legislation from which others across Canada and around the world can learn and benefit. We recognize that this Discussion Paper is somewhat long. It includes a wide range of information that at times can get somewhat technical. Unfortunately, this can't be avoided. The topic focuses on important but at times technical matters. We have tried to give explanations of technical matters wherever possible. The ODA Committee wishes to thank all those who have shared their ideas and suggestions with us over the past several years. We have tried to reflect as wide a range of those ideas as possible in this Discussion Paper. OVERVIEW This Discussion Paper includes: * GENERAL RECOMMENDATIONS FOR YOU TO CONSIDER * BACKGROUND - THE GOALS OF THE ONTARIANS WITH DISABILITIES ACT * WHAT COMPLIANCE/ENFORCEMENT MECHANISMS EXIST UNDER THE CURRENT ODA 2001 * WHAT COMPLIANCE/ENFORCEMENT MECHANISMS EXIST UNDER RELATED LAWS * WHY THE ODA NEEDS AN EFFECTIVE COMPLIANCE/ENFORCEMENT MECHANISM * WHAT ARE THE CRITERIA FOR AN EFFECTIVE COMPLIANCE/ ENFORCEMENT PROCESS * KEY ISSUES IN COMPLIANCE/ENFORCEMENT * OPTIONS FOR COMPLIANCE/ENFORCEMENT APPROACHES * MEASURES TO DEAL WITH EDUCATING THE PUBLIC AND SPECIFIC SECTORS ON DISABILITY BARRIERS * OPTIONS FOR CHOICE OF ODA COMPLIANCE/ENFORCEMENT AGENCY * WHAT BODY SHOULD RESOLVE DISPUTES UNDER THE ODA Appendix A: What the ODA Committee has Proposed in the Past Regarding Enforcement of the ODA Appendix B: What the Liberal Government has Promised Appendix C: How to Contact the ODA Committee     GENERAL RECOMMENDATIONS FOR YOU TO CONSIDER To help stimulate your own thinking, consider the following recommendations: * All of the compliance/enforcement techniques under "Options for Compliance/ Enforcement Approaches" below should be adopted in some form except for prosecutions and the granting of accessibility seals. * The ODA's compliance/enforcement function should either be assigned to a new ODA agency, to be created for the purpose, or to a new, self-contained branch within the Ontario Human Rights Commission. * ODA disputes should be decided by a new tribunal, established for this purpose. * In addition, ODA responsibilities should be "mainstreamed" where appropriate into the mandates of existing regulatory agencies, tribunals and inspectors. BACKGROUND - THE GOALS OF THE ONTARIANS WITH DISABILITIES ACT Since late 1994, the ODA Committee, a grassroots province-wide non-partisan movement of persons with disabilities, has advocated for the passage in Ontario of a strong and effective new law, to be called the Ontarians with Disabilities Act. This law has been needed to achieve a barrier-free Ontario for the over 1.5 million Ontarians who have a physical, mental or sensory disability. People with disabilities face many unfair and unnecessary barriers when they try to enjoy services, goods and facilities offered to the public, or try for competitive employment. We all should be able to ride public transit, shop in stores, get an education, use our health-care system, and get a job based on our abilities, without facing barriers. It is imperative that the ODA address physical and non-physical barriers faced by people with disabilities, and that all compliance/enforcement efforts keep all types of barriers in focus. Barriers, like disabilities, can come in visible or invisible forms. Consider the following examples: new buses are too often made with steps, creating physical barriers, when accessible buses can be bought. Most websites lack simple features that would make them accessible to computers adapted for blind or dyslexic people. Health care facilities may not have sign language interpretation available for deaf people. Workplaces may not allow for reasonably flexible work arrangements to accommodate those who can't work full time due to a physical or mental disability. Removing these barriers would help everyone. Everyone has a disability or gets one later in life. These barriers hurt us all and benefit no one. Not only do people with disabilities, their friends and families, suffer from them; businesses lose the sales they could make to customers with disabilities, and the profit they could generate from employing the skills of more workers with disabilities. New legislation has been needed to achieve this goal because previous efforts have not succeeded. For years, governments, community organizations and others have tried raising awareness through public education campaigns. Other laws have been passed and implemented, such as the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Ontario Building Code. Yet old barriers too often remain. New barriers continue to be created. WHAT COMPLIANCE/ENFORCEMENT MECHANISMS EXIST UNDER THE CURRENT ODA 2001 The ODA 2001 now lacks meaningful compliance/enforcement provisions. In terms of compliance/enforcement, it provides: * Public sector organizations must make annual accessibility plans and must make these accessibility plans public. * According to Section 21, public sector organizations can be fined if they don't make an annual accessibility plan, or if municipal governments with a population over 10,000 don't establish a municipal accessibility advisory committee. Although this is in the legislation, it can't be used against an organization that violates the law. This is because the Ontario Government hasn't proclaimed this provision in force since it was enacted in December, 2001. * Each municipality may require as a condition of obtaining a municipal business licence that the business must have physically accessible premises. Municipalities don't have to use this provision when they issue a business licence. The ODA Committee knows of no municipalities that have used this provision. * The Provincial government can make accessibility standards, after consulting the disability community. It need not do so if it doesn't choose to use this power. Apart from the limited area of physical accessibility to new Ontario Government buildings, no accessibility standards have been made under the ODA 2001 since it was passed in December 2001. WHAT COMPLIANCE/ENFORCEMENT MECHANISMS EXIST UNDER RELATED LAWS IMPACTING ON DISABILITY The three major compliance/enforcement mechanisms that now exist under other existing legislation are as follows: (1) The Ontario Human Rights Code: This legislation prohibits discrimination in the private and public sectors because of disability in access to jobs, housing, and goods, facilities and services. It requires employers, and providers of goods, services and facilities to take reasonable steps to accommodate the needs of persons with disabilities up to the point of undue hardship to the organization. This law is enforced by an individual filing a complaint about a specific barrier with the Ontario Human Rights Commission. That Commission can investigate the complaint and try to effect a settlement. If the complaint remains unresolved, the Commission can, if it wishes, take the complaint to a full hearing before the Ontario Human Rights Tribunal. This full process usually takes years. Few complaints get to a hearing. Remedies can be ineffective. For example, when Famous Players Theatres was ordered to make certain movie theatres physically accessible over a period of time, the company chose to close the theatres rather than make them accessible. (2) The Canadian Charter of Rights and Freedoms: The Charter, part of Canada's Constitution, includes section 15. That section forbids any level of government from denying any individual equality before and under the law, and the equal protection and equal benefit of the law, without discrimination, including discrimination based on mental or physical disability. To enforce this right, an individual has to bring a claim in court against the relevant level of government about a specific barrier. This can take years and can be very costly. (3) The Ontario Building Code: The Code requires certain public buildings to meet certain disability accessibility requirements. These requirements are generally recognized not to be comprehensive and up-to-date. Before new construction or major renovation of a public building, a building permit must be obtained from the municipal government. To qualify for a permit, the building design must comply with the Building Code. If a new construction doesn't comply with that permit, or if the permit is not itself proper, work orders may be issued in some cases, or court proceedings can be launched locally. The extent of the enforcement of the Building Code's disability access provisions depends on the local officials in the municipality. It could vary from municipality to municipality. WHY THE ODA NEEDS AN EFFECTIVE COMPLIANCE/ENFORCEMENT MECHANISM The goal of an effective new ODA compliance/enforcement mechanism is to motivate organizations to remove existing barriers and to prevent the creation of new ones, by providing help and support to these organizations when they act to remove and prevent barriers, by providing a means for monitoring progress, and by providing effective and fair recourse and consequences if an organization doesn't comply with the legislation without a reasonable justification for its inaction. Without this, the ODA would in reality be a voluntary law, one that no one needs to comply with. People with disabilities have learned from decades of experience that if barrier removal and prevention isn't mandatory, it generally doesn't happen voluntarily. For every good example of an organization that should be applauded for voluntarily removing barriers against persons with disabilities, there are many more organizations that haven't acted. We have also learned from extensive experience that even when the law requires barriers against persons with disabilities to be removed and prevented, this doesn't lead most to act unless there is an effective compliance/enforcement process. This is what we learned from our experience with the Ontario Human Rights Code and the Charter of Rights. Without an effective compliance/enforcement process, public education campaigns to raise awareness about the barriers facing persons with disabilities won't solve this problem. Community organizations, governments and individuals with disabilities have tried extensive public education campaigns of every sort for decades. From this they have learned that much more than more "awareness-raising" is needed. As discussed later in this Discussion Paper, there is a special role for focussed public education activities in this area, but these only make a difference when they are combined with a mandatory law and an effective new compliance/enforcement process. As well, we have learned that government encouragement, such as showcasing best practices, is not enough to achieve the progress that Ontarians with disabilities need. From 1995 to 2003, the previous Ontario Government said it was carrying out such a policy. It didn't bring about significant progress. A compliance/enforcement mechanism doesn't have to be preoccupied with hostile, adversarial, bureaucratic, prosecutorial processes, and fines and penalties. As this discussion paper shows, there are many options for a compliance/enforcement process which can give the ODA teeth, while also putting more focus on achieving progress and success. Some might suggest that barrier removal and prevention shouldn't be made mandatory unless the Government is prepared to provide new funding to cover organizations' costs of undertaking this activity. It would of course be good if the Government could provide new funding to help. However, if the Government doesn't provide organizations with any new funding, this is no reason to have no effective compliance/enforcement process. Many barriers can be removed and all new ones can be prevented at little cost. Where it costs more to remove barriers, the ODA should give organizations reasonable time to remove them, so that the cost of doing this can be spread out over time. Where an organization has fewer resources for this activity, it should be given more time to carry it out. Moreover, for over 20 years, the Ontario Human Rights Code has required organizations to allocate their resources, up to the point of undue hardship, to removing and preventing barriers against persons with disabilities. This is not a new mandate that is arising for organizations for the first time. As well, when these barriers are removed and prevented, this will increase the profits of private sector businesses. Additionally, barrier-removal and prevention expenses are generally tax-deductible for businesses. Some might suggest that instead of an effective compliance/enforcement process, the Government should provide a program of incentives for organizations to remove and prevent barriers against persons with disabilities. As with the idea of the Government providing subsidies for organizations to undertake this activity, a Government incentives program would be good. Indeed, the previous Conservative Ontario Government committed to establish such a programme on November 5, 2001. Unfortunately, it never fulfilled this commitment over the next two years that it was in power. However even if the Government provides an incentive programme, an effective ODA compliance/enforcement mechanism is still needed. Organizations that haven't yet acted to remove and prevent barriers have already had the positive incentive of tax deductions, in some cases of existing government subsidy programs, and the mandatory requirements of the Ontario Human Rights Code. WHAT ARE THE CRITERIA FOR AN EFFECTIVE COMPLIANCE/ENFORCEMENT PROCESS An effective compliance/enforcement process should fulfil these goals: First and foremost, it should effectively ensure that organizations that are required to remove and prevent barriers in fact do so. What will make an ODA truly mandatory, not voluntary, is the effectiveness of its compliance/enforcement mechanism. The current compliance/enforcement mechanisms under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms are examples of ineffective enforcement mechanisms. Under these laws, individuals must battle barriers one at a time. Organizations with barriers face litigation one barrier at a time. The process takes years. The results in a case rarely help the individual with a disability who came forward to point out the barrier in the first place. The Ontario Legislature recognized this when it unanimously adopted a series of principles for the ODA by resolution on October 29, 1998. (See Appendix A to this Discussion Paper.) The ODA's compliance/enforcement mechanism must be fair. This includes being scrupulously fair to organizations that are responsible for removing and preventing barriers. It also includes being fair to persons with disabilities. Fairness includes letting organizations know what they have to do, and by when they need to do it. It involves letting persons with disabilities know what progress to expect. Fairness includes giving organizations a fair opportunity to rectify barriers before they have to face any enforcement proceedings. A fair compliance/enforcement mechanism gives all a fair chance to present their side on important issues. It will try to resolve difficulties as quickly and at as low a cost as possible. However, a fair compliance/enforcement process need not and indeed should not be weak, toothless or ineffective. This should not simply be "enforcement" in the compulsory sense. It should be a combined compliance/enforcement process. This means that the Government should co-operatively work with organizations towards achieving compliance where possible. It should resort to compulsory enforcement only when this has not succeeded. The compliance/enforcement mechanism should be simple, straightforward and uncomplicated. It should as much as possible involve "one stop shopping" where persons with disabilities and organizations who need to comply with the ODA can go to one place in the Ontario Government to address ODA concerns. The compliance/enforcement mechanism should operate in a cost-effective way. The Ontario Government inherited a budget deficit. Yet new resources are needed to fund the compliance/enforcement mechanism. With a current deficit, it cannot be expected that massive government funds will be poured into a new ODA compliance/enforcement mechanism. Whatever new resources are devoted to the ODA's new compliance/enforcement process should be carefully targeted to ensure that society gets the most bang for its limited tax bucks. Because of the Government's current budget deficit, the new compliance/enforcement mechanism can be phased in. It needn't all come into effect on the first day that new ODA legislation comes into effect. After this process is initially funded, additional public expenditures to fund it can be gradually phased in, as the provincial deficit is brought under control. This can be co-ordinated with the gradual phasing in of ODA obligations, which themselves are expected to be phased in over time. The gradual implementation of a compliance/enforcement process lets all get used to this new regime over time. It also lets our society work out any bugs that crop up during its gradual implementation. To be cost-effective, the new compliance/enforcement process should concentrate efforts on activities that will open the greatest number of doors for persons with disabilities, and that will focus its efforts on the most important doors that need to open first. The ODA's compliance/enforcement mechanism doesn't need to be a "one size fits all" design. It could be designed to operate differently as it applies to some sectors or organizations. For example, the compliance/enforcement processes that will apply to the Ontario Government or to municipal governments may take a form different from those which initially apply to the private sector. The compliance/enforcement mechanism that applies to small businesses could be different from that applicable to big business, to be sensitive to small businesses' particular needs. The ODA's compliance/enforcement process should be flexible, not unduly rigid. It should focus on achieving real results on the ground, and not be distracted by unduly technical or procedural matters. The new compliance/enforcement mechanism should include a prompt process for resolving disputes that does not unduly divert resources into protracted litigation. It should include an effective, expeditious mediation process. The compliance/enforcement mechanism should be arms-length from and totally independent of the Ontario Government's political and administrative control. This is because it will have to oversee the implementation of the ODA by, among others, the Ontario Government itself. A Government can use non-arms-length bodies to serve the sitting government's partisan political agenda. The enforcement mechanism should be balanced. It should try to work in a co-operative way with organizations and sectors of the economy that are expected to remove and prevent barriers. It should try to bring these organizations together with voices from the disability community wherever possible, while avoiding being unduly punitive or confrontational. On the other hand, if an organization is unwilling to take reasonable steps along reasonable time lines to remove and prevent barriers, and where attempts at co-operative effort have not shown real progress, there must be effective measures to bring that organization into compliance. The enforcement mechanism should be pro-active, i.e. self-starting. It shouldn't simply wait for complaints about individual barriers, and then react to them. Ontario already has an agency which can receive and investigate complaints about individual barriers against persons with disabilities - the Ontario Human Rights Commission. The new ODA compliance/enforcement mechanism must go beyond that process. The enforcement mechanism shouldn't weaken any current rights enjoyed by persons with disabilities under such laws as the Human Rights Code or the Charter of Rights. For example, the ODA should not create any further barriers to the already barrier-filled processes under the Charter and Human Rights legislation. The ODA's new compliance/enforcement process should borrow from what has been successfully tried elsewhere. This can include things tried in other jurisdictions to address disability barriers. It can also borrow from compliance/enforcement procedures that have been successfully used in other areas of government. For example, we might draw upon experience in environmental protection, and workplace occupational health and safety. Both involve efforts at trying to influence how business is done, to protect important social interests while respecting the goal of business profitability. The compliance/enforcement process should readily draw upon expertise in the area of disability barrier removal and prevention. The ODA's compliance/enforcement process should wherever possible be constructive. It should celebrate successes. However, this doesn't mean that that is all it should do. It should also be able to focus on significant examples of non-compliance lest the message simply be congratulatory proclamations of how good things are, at a time when the news isn't necessarily all good. KEY ISSUES IN COMPLIANCE/ENFORCEMENT When developing an effective new ODA compliance/enforcement mechanism that meets the preceding criteria, these issues arise: - What body will be responsible for ODA compliance/enforcement? - What compliance/enforcement measures and procedures will be available under the ODA? - What powers/mandate would the compliance/enforcement body have? - What remedies will be available in the case of organizations that persistently do not comply with the ODA? - What body will resolve disputes concerning the ODA's implementation/enforcement? - What measures will be in place for oversight of and monitoring of the effectiveness of the ODA's compliance/enforcement? OPTIONS FOR COMPLIANCE/ENFORCEMENT APPROACHES There are a great many different options for compliance/ enforcement. These can be used in any number of combinations. They can also be phased in over time. The options for compliance/enforcement can include, for example: * publication of accessibility plans * strengthening accessibility plans * promulgation of effective accessibility standards * provision of technical advice/support to organizations implementing the ODA * independent monitoring of organizations expected to comply with the ODA * issuance of compliance orders in cases of protracted non-compliance * proceedings for civil remedies in cases of protracted non-compliance * prosecution for non-compliance * negotiating binding Compliance Agreements * providing government seals of approval for organizations meeting ODA requirements * strengthening and expanding the role of Accessibility Advisory Committees * strengthening the ODA's provisions on government procurement * specified organizations to establish a position of "Disability Accessibility and Accommodation Co-ordinator" Here are some of the advantages and disadvantages of these options: Publication of Accessibility Plans This is one of the current ODA's only limited compliance measures. Public sector organizations that must make these plans public are free to include as much or as little in the plans as they wish. Advantages - provides a quick means of making organizations somewhat publicly accountable for their plans - costs very little to implement - easy to monitor - can motivate some organizations to take constructive action against barriers Disadvantages - virtually a voluntary arrangement, since no consequences beyond public embarrassment if an organization's plan is ineffective - impractical for the disability community to comprehensively monitor especially if these plans are not all posted in an accessible format on one centralized website - leaves it to the public to patrol these plans, find out deficiencies, and then go to the media. No assurance that this will yield significant public accountability in practice Strengthening Accessibility Planning Requirements The ODA 2001 requires certain public sector organizations to develop annual accessibility plans, and to make them public. Yet it sets no minimum requirements for these plans' contents, and doesn't require any organization to implement its accessibility plan. By this option, the ODA 2001's accessibility plan provisions would be strengthened to extend them gradually to the private sector, applying first to big business and over time, to smaller businesses. The requirements of these plans could depend on the size, resources and complexity of the organization. As well, standards could be set for the plan's contents. The ODA could also provide that after a specified period of time, the organization must take reasonable steps to implement its accessibility plan, once established. Advantages - puts teeth into the accessibility planning process - allows time for organizations to become familiar with the planning process - takes into account the different needs of small municipalities and small businesses as contrasted with large municipalities and big business Disadvantages - risk that if an organization knows their plan may be enforceable, it will be more reluctant to include concrete measures in the plan The Promulgation of Effective Provincial Accessibility Standards By this option, the provincial government or an agency it designates could be required along specified time lines to establish provincial accessibility standards. An effective accessibility standard could address what barriers need to be removed, what results need to be achieved, and depending on an organization's size and circumstances, the time lines for when results need to be reached. Standards could be set on a sector-by-sector basis. They need not be "one size fits all," and should be sensitive to an organization's size and resources. It has been a longstanding position of the ODA Committee that standards should be developed with input both from the organizations that will be addressed by the standards, and from the disability community. The ODA Committee has recommended that a strengthened ODA specify time lines along which the Ontario Government must enact certain basic accessibility standards. The Liberal Government's 2003 election platform included commitments to this effect. Advantages - helps organizations know in detail what they need to do, and by when they need to do it - avoids uncertainty - gives a clear measure to assess when organizations are in compliance - reduces the cost to organizations of complying, by clearly letting them know what needs to be done - can reduce the cost of enforcing the ODA in the long term - avoids each organization having to re-invent the wheel when addressing accessibility concerns that are common to all organizations in their sector of the economy Disadvantages - can take a significant amount of time to develop - if the standard adopted itself has problems, then organizations may be led in the wrong direction e.g. if standard inadvertently perpetuates some barriers - some organizations may simply try to meet the standard and go no further - standards can become out-dated if not updated The Provision of Technical Advice/Support to Organizations Implementing the ODA By this option, the Government could establish/expand upon a service to provide organizations with detailed technical advice on how to go about identifying, removing and preventing barriers. It would be up to organizations to come forward to seek this advice/help. Advantages - reduces the cost to organizations of complying - supports and encourages those who voluntarily wish to remove and prevent barriers - lets the Government keep informed on the front-line experience and concerns of organizations that are seeking to address barriers - helps avoid each organization having to reinvent the wheel, and having to retain the same private consultants over and over again Disadvantages - doesn't cause organizations to remove and prevent barriers if they are not willing to do so voluntarily - if many organizations want to take advantage of this service, it will require potentially significant resources/funding Independent Monitoring of Organizations Expected to Comply With the ODA By this option, designated public officials could monitor organizations to see what barriers they have, what steps they have taken to address these, and to remove new ones. This option might be combined with the next option i.e. the issuance of enforcement orders where there has been substantial or protracted non-compliance. Advantages - provides independent check on progress - provides motivation for organizations to act proactively to remove and prevent barriers - need not monitor all organizations to have the benefit of providing broad motivation to all organizations to comply - monitoring can include power to specify corrective actions - can constructively incorporate any technical advice service that the Government provides in this area Disadvantages - because Government won't have enough staff, may only be able to monitor a small percentage of organizations - effectively monitoring an organization can require a significant concentration of effort Issuance of Compliance Orders in Cases of Protracted Non-Compliance By this option, a public official could issue a compliance order, perhaps akin to those used under environmental legislation, specifically directing an organization to take specified steps to address barriers in their organization. The ODA could provide a fair procedure for the organization to appeal this order if they objected to it on specified grounds that would be set out in the ODA. This option could be used in combination with the preceding option. By this, such orders could be issued after an organization's ODA compliance has been monitored. The organization might first be given some proposals after the monitoring and given time to take action on them. Then, only if reasonable progress isn't shown might the option of compliance orders be considered. The ODA could make the compliance orders mandatory. A somewhat similar regime has been used in the environmental area. Advantages - focuses compliance/enforcement on specific focussed issues that an organization needs to address, and only after an organization has had a chance to address the issue on its own - doesn't require a full, protracted litigation process before identifying the problem that needs to be addressed Disadvantages - requires public funding to hire staff to issue these orders - impossible to hire sufficient public officials to focus on more than a limited number of organizations Proceedings for Civil Remedies in Cases of Protracted Non-Compliance By this option, a process could be created for an enforcement agency to take proceedings against an organization for civil remedies in the case of substantial or protracted non-compliance. Civil remedies could include requirements, enforceable in court, for specific actions to be taken to achieve compliance and to prevent future non-compliance. Civil remedies could also include removal of an organization's business licence, and orders prohibiting the organization from receiving provincial or municipal government grants or contracts for specified periods of time. Advantages - civil proceedings for civil remedies are easier to present than are criminal prosecutions - civil proceedings can be subjected to mediation to resolve the litigation without having to go to a full hearing - civil remedies may be the most effective in the case of an organization that chronically will not otherwise comply Disadvantages - litigation process can be expensive, time-consuming and slow - may not be possible to bring litigation claims against all organizations that are substantially and persistently not complying Prosecution for Non-Compliance By this option, an organization that does not comply can be subjected to quasi-criminal prosecution in court. The result of a conviction would be traditional penalties, such as a fine, or in more extreme cases, custody. Under the ODA 2001, the only real enforcement process is provided in s. 21, which has never been proclaimed in force. It provides that a public sector organization can be prosecuted and fined if it fails to make an annual accessibility plan, or if a municipality with a population over 10,000 fails to establish a municipal accessibility advisory committee. Advantages - most powerful penalties available under provincial law Disadvantages - quasi-criminal prosecutions are the most adversarial in our legal system - hardest cases to succeed, since the prosecution must prove guilt beyond a reasonable doubt - focuses attention on punishing wrong-doers rather than on getting them to remove barriers - doesn't allow for ongoing monitoring, as might be possible under other compliance/enforcement options in this Discussion Paper - Canadian law has for decades deliberately steered away from using this route in the human rights/discrimination field, having found the courts ineffective at dealing with this social issue via prosecutions - in the case of fines against public sector organizations, this just makes one public sector organization pay taxpayers' money to another public sector organization, the provincial treasury, after both organizations have used taxpayers' money to pay their lawyers. This may not make a big difference in advancing the ODA's goals. - courts are likely unwilling to impose the most serious penalties, even if the ODA allowed for substantial results Negotiating Binding Compliance Agreements By this option, the ODA enforcement agency would have the power to negotiate binding agreements with specific organizations or groups of organizations in the same sector of the economy to specify the barriers to be removed and prevented and the time lines to apply. These organizations would then be immune from proceedings under the ODA so long as they comply with the compliance agreement, at least in relation to the matters covered by the agreement. A system could be established to enable the disability community to have input into this negotiating process. One creative use of this kind of arrangement would be where a group of companies, perhaps those in the same line of work, develop a sectoral plan on achieving accessibility. Another creative use of it would be where a group of businesses in the same geographic area, such as the same city block, develop a coordinated plan for addressing accessibility on the entire block. Advantages - provides method for getting "buy-in" from groups of organizations - can save on the time and costs of litigation - can yield "win/win" results - can provide flexibility - can benefit from the expertise of the organizations involved Disadvantages - requires sufficient public sector staff to be able to effectively undertake the negotiations process - negotiations may take considerable time, unless the ODA imposes specific time constraints - disability community may lack resources to participate in the negotiations of all the different organizations Providing Government Seals of Approval for Organizations Meeting ODA Accessibility Requirements By this option, an organization that believes it meets all ODA accessibility requirements can apply to an appropriate government agency for a seal that documents that it is ODA compliant. Advantages - gives an incentive for an organization to meet ODA requirements - allows the organization to publicly display its ODA seal of approval, showing its achievement Disadvantages - requires very significant government staffing to be able to carefully examine an organization to ensure that it deserves a seal of approval - depends on appropriate standards being developed with regard to barrier removal - because accessibility needs can evolve over time, may not lend themselves to a "seal of approval" which implies that the organization has nothing further to do to address barriers - creates practical difficulty if the organization secures a seal of approval, and later creates new barriers, requiring a process for potentially withdrawing the seal Strengthening and Expanding the Role of Accessibility Advisory Committees Under the ODA 2001, municipalities with populations over 10,000 are required to establish a municipal accessibility advisory committee. However, the ODA doesn't require any other organizations such as universities or public transit authorities to establish such bodies. It doesn't require any municipalities that have such a committee to heed their advice, or to give reasons why their advice has been rejected. By this option, major public sector organizations such as public transit providers, colleges and universities, would be required to establish accessibility advisory committees. Measures should be adopted to ensure that these advisory committees are taken seriously. For example, any public sector organization that has an accessibility advisory committee would be required to fulfill any reasonable requests for information on accessibility issues from its accessibility advisory committee. When its accessibility advisory committee makes a recommendation on an accessibility issue, the public sector organization would be required to either take the recommended action within specified time lines or give written reasons why it has declined to do so. Advantages - involves more persons with disabilities in the accessibility planning process - learns from proven weaknesses in the current ODA - doesn't unduly burden public sector organizations, while ensuring more accountability Disadvantages - will take up more time and hence more resources from public sector organizations that have such committees Strengthening the ODA's Provisions on Government Procurement The ODA 2001 now requires the Ontario Government and municipal governments to consider accessibility when procuring goods and services for their use. It doesn't require any other public sector bodies to do this. It doesn't require any public sector organization to purchase accessible goods or services, or even to give them priority in the procurement process. It merely requires that these governments think about accessibility. By this option, the ODA's government procurement provisions could be strengthened. They could be extended to other major public sector organizations, such as universities, colleges, school boards and public transit providers. These provisions could require that accessible goods and services be purchased wherever possible, absent demonstrating why they should not be preferred. Advantages - little cost to government - creates market pressure on the private sector to provide accessible goods and services - makes governments themselves more accessible Disadvantages - additional administrative costs in the government procurement process - will take time for the private sector to gear up to produce accessible goods and services - may not succeed in convincing the private sector to produce accessible goods and services in areas where governments are not major customers Specified Organizations to Establish a Position of "Disability Accessibility and Accommodation Co-ordinator" By this option, the ODA could state that specified organizations should designate an employee to serve as the organization's Disability Accessibility and Accommodation Coordinator. Reporting to a senior person in the organization such as its C.E.O., this person would have lead responsibility and accountability for the organization's efforts at addressing barriers facing persons with disabilities within that organization,including employment barriers as well as barriers to goods, services or facilities that that organization provides to the public. The purpose for this position is to streamline the organization's efforts at becoming barrier-free. This could be a person on the existing payroll if the organization wishes, who would have this function added to their existing duties. It need not be a full-time position and need not rquire the organization to hire a new employee to do this job. Several public sector organizations already have some such position, though they are not now necessarily given a direct reporting relationship to the organization's C.E.O. The ODA could require this step for public sector organizations. It could also extend such a requirement to big businesses. Medium and small businesses could also be encouraged to adopt a measure such as this. Advantages - helps organizations more effectively and efficiently address barriers in a systematic, cost- effective way - provides for clear accountability for barrier removal and prevention - provides a center for an organization's experience and expertise in this area to accumulate - provides "one stop shopping" for persons with disabilities experiencing barriers in an organization - need not add significantly to organization's costs Disadvantages - if person in this position is ineffective, may slow down the organization's efforts at becoming barrier-free - may be perceived as adding costs to the organization MEASURES TO DEAL WITH EDUCATING THE PUBLIC AND SPECIFIC SECTORS ON DISABILITY BARRIERS Partnered with a comprehensive compliance/enforcement program should be a programme to educate individuals and organizations on the ODA's requirements and the benefits of barrier-free design. In November 2001, the previous Conservative Government had announced that it would launch a public education campaign on the benefits of disability accessibility. That programme was never launched. It is important to note that a public education initiative is no substitute for a full, effective compliance/enforcement mechanism as discussed above. To be effective, such a public education program needs to be much more than a "feel good" series of advertisements telling the public that disability accessibility is a good thing to do. The following measures might be considered. These could be incorporated into the ODA's provisions: - a requirement that school boards develop and implement school curriculum components on the importance of a barrier-free society. This would help ensure that the next generations are more alive to this issue than has been the case in the past. - a requirement that to qualify 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 ought to be a reasonable minimum requirement that a person know how to undertake barrier-free design. - a requirement that certain other professional training, such as for lawyers, doctors, other health care providers, teachers and other relevant professions, must include a specified amount of training on barrier-free provision of services to persons with disabilities. Note: Time lines can be set 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 for this training and to monitor its sufficiency. OPTIONS FOR CHOICE OF ODA COMPLIANCE/ENFORCEMENT AGENCY If the ODA is to have a compliance/enforcement mechanism, a provincial government agency will have to be assigned this responsibility. Which agency will it be? Options include: * establishing a new independent ODA compliance/enforcement agency * assigning ODA compliance/enforcement to the Ontario Human Rights Commission (OHRC) * creating an autonomous ODA compliance/enforcement operation within the OHRC * assigning ODA compliance/enforcement to the Ontario Citizenship Ministry's Accessibility Directorate * dividing ODA compliance/enforcement among several Ontario ministries based on their mandates e.g. the Ministry of Education to deal with school boards, the Ministry of Transportation would deal with public transit * assigning ODA compliance/enforcement to the Ontario Ombudsman * incorporating ODA non-compliance into OHRC proceedings * assigning ODA compliance/enforcement to the municipalities * assigning ODA monitoring functions in part to existing investigation/inspection officials under other legislation The advantages and disadvantages of each option include: Establishing New Independent ODA Compliance/Enforcement Agency Advantages - can build this new agency from the ground up without inheriting any prior organizational problems - can appoint appropriate agency head and staff with expertise in disability accessibility Disadvantages - may cost more than using existing agency - may take longer to get started Assigning ODA Enforcement to the OHRC By this option, the ODA compliance/enforcement role could be assigned in whole or in part to the Ontario Human Rights Commission. That provincial agency's current role is to receive, investigate and, in a small percentage of cases, litigate discrimination complaints. These include not only disability discrimination claims, but claims on a wide range of other grounds, such as discrimination because of sex, race, religion, age, sexual orientation etc. Advantages - may cost less, since this agency is already up and running - may need less start-up time - already publicly recognized - has already been involved in handling some accessibility claims by persons with disabilities under the Ontario Human Rights Code Disadvantages - lacks specialized expertise on disability issues - lacks confidence among many in disability community - slow/backlogged and bureaucratic - must divide its scarce resources among all kinds of discrimination issues e.g. sex, race, religion etc. - chronically under-funded - not fully arms- length from the Ontario Government, even though it investigates complaints against the Ontario Government - although responsible for disability discrimination mandate since 1982, only recently gave some priority attention to proactively challenging disability barriers Creating Autonomous ODA Compliance/Enforcement Office Within OHRC By this option, a separate, autonomous branch could be established within the OHRC solely to enforce the ODA. It could share administrative resources with the rest of the OHRC. A separate group of ODA Commissioners could be appointed to have the role of oversight of the ODA mandate, including a lead Commissioner. Advantages - may be more cost-effective, since can share administrative costs of its work with the OHRC - doesn't require building a whole new agency from scratch - can build its own specialized expertise in disability accessibility issues - can co-ordinate its work with OHRC to seek consistent enforcement across the ODA and the Ontario Human Rights Code Disadvantages - may lack confidence of some including within the disability community due to its affiliation with the OHRC - lacks independence from the Ontario Government, since the OHRC is not fully arms-length from the Ontario Government Assigning ODA Enforcement to Citizenship Ministry's Accessibility Directorate By this option, the ODA compliance/enforcement function could be assigned to the office within Ontario's Citizenship Ministry, the Accessibility Directorate, which was established in 2002 under the ODA 2001. Its current role is to advise the Ontario Government on the implementation of the current ODA 2001, and to give policy advice to the Ontario Government on strengthening that legislation. Advantages - draws upon current expertise within the Ontario Public Service in implementing the current ODA - already up and running Disadvantages - not independent of the Ontario Government, as it reports to the Citizenship Minister - no current functions or expertise in the enforcement area, since only established two years ago to implement current ODA's voluntary provisions - would require new funding for substantial expansion in its staff Dividing ODA Enforcement Among Several Ministries Based on Existing Mandates By this option, there would not be one body with full responsibility for ODA compliance/enforcement. For example, the Ministry of Education would enforce the ODA vis à vis school boards, the Ministry of Transportation would enforce the ODA vis à vis public transit. This is somewhat similar to the U.S. approach under the Americans with Disabilities Act. Advantages - builds upon each existing ministry's experience and relationship with the organizations it already regulates - doesn't require entire new agency to be set up - each ministry may have a working relations with the sector it regulates, on which it could draw to effectively regulate in this area Disadvantages - doesn't allow for "one stop shopping" - requires duplication of effort and expertise in several ministries, therefore costing more - not arms-length from the Ontario Government - can create confusion for an organization that has to deal with more than one ministry - could lead to conflicting and/or uncoordinated efforts by different ministries - the Ministry involved may have too close a relationship with the organizations it now regulates, and may not be willing to be fully effective in enforcing the ODA - Ontario Government ministries need themselves to be subject to an outside agency to ensure that the ministries themselves comply with their ODA obligations Assigning ODA Enforcement to the Ontario Ombudsman The Ontario Ombudsman is an independent office that investigates complaints of all kinds from members of the public against the Ontario Government. It currently doesn't take any legal action against the Government. It can only make recommendations about how complaints should be resolved. The Government doesn't have to implement any of its recommendations. Advantages - already in operation so need not set up new agency - already fully independent of the Ontario Government Disadvantages - has no specific expertise in disability barriers issues, though it has received complaints over the years that include disability barriers - only has power now to make non-binding recommendations on individual complaints. No experience/expertise in enforcing comprehensive legislation. Incorporating ODA Non-Compliance Into OHRC Proceedings By this option, in addition to any of the previous options, the Ontario Human Rights Commission and the Ontario Human Rights Tribunal could be authorized to explore an organization's compliance or non-compliance with the ODA as part of any investigation of any disability discrimination complaint that the OHRC receives under the Ontario Human Rights Code. If, for example, an organization has a complaint against it of failing to accommodate the disability-related needs of an employee in the workplace, the Commission and Tribunal could consider whether the organization is in compliance with the ODA. If it is not, then any remedy could include some kind of ODA enforcement orders. Advantages - takes advantage of the existing OHRC regime - makes any Human Rights hearing on disability issues as comprehensive as possible Disadvantages - if not combined with one of the other options above, this would relegate ODA enforcement to the ad hoc process of Human Rights Code proceedings, whose inherent deficiencies were a major cause for the movement to create the ODA Assigning ODA Compliance/Enforcement to the Municipalities By this option, each municipal government in Ontario would have the responsibility to undertake ODA compliance/enforcement activities within their territory. Advantages - no added burden on the provincial government Disadvantages - requires massive duplication of effort and expertise as each municipality would be required to develop their own ODA compliance/enforcement staff - no "one stop shopping" - no way to maintain consistency in ODA's implementation across Ontario - no capacity to make provincial accessibility standards - no body would be available to enforce the ODA against the municipalities themselves, or against the Ontario Government Assigning ODA Monitoring Functions in Part to Existing Investigation/Inspection Officials Under Other Legislation By this option, in addition to any other choices above, an "ODA mandate" could be added to investigators and inspectors operating under other Ontario legislation. For example, inspectors under Ontario workplace safety laws and environmental laws, when conducting an inspection under those laws, could be authorized to also keep an eye out for disability barriers. They could be equipped with a short list of things to look for. If a problem is identified, they could either deal directly with the organization they are inspecting or, if the matter is not easily resolved, could refer the matter to the agency authorized to deal with general ODA compliance/ enforcement. We might look to experience and expertise accumulated by the Ontario Government's Inspections, Investigations and Enforcement Secretariat on how to do this. Advantages - doesn't require any additional government staff to implement. Builds on existing staff. - since it wouldn't be possible to hire sufficient ODA staff to address all possible monitoring, this could effectively widen the reach of any ODA monitoring function - helps "mainstream" disability accessibility issues Disadvantages - requires training for existing inspection/investigation staff to handle this new mandate - no existing expertise in disability accessibility WHAT BODY SHOULD RESOLVE DISPUTES UNDER THE ODA? It will be necessary to give a body authority to make binding decisions when there are disputes under the ODA. Such a body should have the required expertise. It should also be arms-length from all the parties. The options for this body could include: * the courts * a new ODA Tribunal * the Ontario Human Rights Tribunal * a separate division within the Ontario Human Rights Tribunal * adding ODA to mandate of other existing regulatory bodies where appropriate. The advantages and disadvantages of these options include: The Courts Advantages - the court system is already established and thus involves no "start up" costs - courts have expertise in dispute resolution Disadvantages - the courts have no experience and expertise in disability barriers and accessibility - court litigation takes years, is very expensive, and requires costly lawyers - the modern trend has been against using courts for dealing with major social policy issues such as this New ODA Tribunal This would involve starting a new tribunal from scratch, dedicated solely to deciding cases arising under the ODA. Advantages - can appoint persons to this tribunal with expertise in the disability accessibility field - can develop procedures tailored to the ODA context - to save costs, can defer establishing this tribunal until the newly amended ODA has been in place for a year or more, since there will be no cases to decide for at least that long or longer Disadvantages - involves more start-up cost - will take more time to get started (though this may not be a problem since it will likely not be needed to be up and running until some time after the ODA is reformed) - may not have sufficient workload to warrant a full time tribunal The Ontario Human Rights Tribunal This tribunal is established under the Ontario Human Rights Code to decide human rights complaints in cases where the Ontario Human Rights Commission has investigated a complaint and decided that it should proceed to a hearing. This tribunal is independent of the Ontario Human Rights Commission and the Ontario Government. Advantages - this tribunal is already up and running and requires no start-up costs - has experience and expertise in the related field of human rights/discrimination - it already has a detailed code of procedural rules to govern hearings Disadvantages - slow/backlogged process - although experienced in human rights generally, very limited experience in disability equality and no experience in setting standards/time lines for barrier removal and prevention across sectors of the economy - Supreme Court of Canada has held that this tribunal is not expert in anti-discrimination law Separate Division Within the Ontario Human Rights Tribunal By this option, a special division would be set up within the existing Ontario Human Rights Tribunal, solely to hold hearings on ODA cases. It could use the existing facilities, resources and procedural rules of the Ontario Human Rights Tribunal where beneficial. Advantages - can develop specialized expertise in disability accessibility within a smaller part of this tribunal, which will help its work both under the ODA and the Ontario Human Rights Code - less start- up time and costs involved than when starting a whole new tribunal - can developed specialized procedures to deal with ODA matters where needed Disadvantages - may have same problems of delay and backlog as the existing Ontario Human Rights Tribunal now has Adding ODA to Mandate of Other Regulatory Bodies Where Appropriate In addition to any of the foregoing, the ODA issues could also be piggy-backed on existing administrative agency and tribunal mandates, where appropriate. For example, the Ontario Labour Relations Board could be required to ensure that labour relations rulings are designed to remove and prevent workplace barriers where appropriate. Organizations that have a joint worker health and safety committee could have that committee's mandate expanded to address barrier-removal and prevention in the workplace. Advantages - helps ensure that the ODA is integrated into a wide range of activities in the government and the economy - minimal added costs, since these agencies and tribunals already exist Disadvantages - may not be fully consistent with the goal of "one-stop shopping" for ODA implementation Appendix A What the ODA Committee Has Proposed in the Past Regarding Enforcement of the ODA In explaining why Ontario needs a strong, effective ODA, the ODA Committee's 1998 Brief to the Ontario Legislature said this about the need for an effective enforcement mechanism: (a) In enumerating examples of barriers now facing Ontarians with disabilities, the Brief stated: "Attitudinal barriers and workplace harassment also create impediments that may inhibit people with disabilities from trying to enforce their existing rights." (b) Under the heading "Existing Laws and Programs Not Enough," the Brief stated: "Over the last 20 years there have been some steps taken to create laws and other programs to prevent discrimination against and barriers confronting people with disabilities. While these have had some positive impact, neither the legislation, the means of enforcement, nor the current resources are sufficient to remove existing barriers or to prevent new ones. In addition, there can be confusion about what standard applies. Existing laws and other programs also leave significant gaps in the coverage. Despite this legislation and these programs, exclusion of persons with disabilities, and barriers impeding them, remain widespread. This is reflected in the high rates of unemployment and poverty facing people with disabilities. This section briefly reviews the existing legislative framework to identify limitations of these laws and programs. This in turn reveals why there is a pressing need for a strong and effective Ontarians with Disabilities Act. (i) The Canadian Charter of Rights and Freedoms Section 15 of the Charter includes a guarantee of equality for persons with disabilities. The Charter applies only to the actions of governments and the legislation they enact. As a rule it does not apply to the private sector. Under the Charter even public institutions such as universities may not be subject to the Charter. The Supreme Court of Canada recently extended the Charter's application to the actions of the private sector where they are carrying out governmental-type actions, but this is not an all-inclusive exception. For example, while a hospital has a Charter obligation to provide sign language interpreter services to patients who are Deaf, the Charter might not apply to the needs for a sign language interpreter of Deaf hospital employees. Thus, there are many areas of society with barriers which the Charter will never reach. In addition to the limited scope of the Charter, there are two other difficulties with relying solely on the Charter to achieve a barrier free society. Enforcing the Charter requires very expensive court proceedings. Even in situations where the Charter does apply, an individual with a disability may not be able to afford the long litigation. The expenses include the cost of lawyers, as well as the expert witnesses who must be hired to provide evidence, sometimes at a cost of several thousand dollars. Charter litigation pits the ample resources of the government, who is defending their legislation or action, against the far smaller resources of the people suffering from the barriers. Access to effective legal services for people with disabilities is also very limited. Once a case is brought, it may take a long time for it to be fully resolved, particularly if there are appeals to the Supreme Court of Canada. For example, in the landmark Charter case of Eldridge v. British Columbia (Attorney General). (1997), 151 D.L.R. (4th) 577, a Deaf woman eventually won the right to have a sign language interpreter provided to her by the provincial government when she goes to the hospital to give birth to twins. Unfortunately, however, the children were fully six years old before the Court ruled that their mother had a fundamental right to a sign language interpreter during their birth. The British Columbia government was given another six months to implement the decision. There are signs that the other provinces have yet to take any steps to apply the decision to their own services, even though all provinces are legally required to comply with the Supreme Court's ruling. The Charter does play an important role by ensuring that governments cannot pass legislation or take action that is discriminatory, including action which creates or perpetuates barriers. It provides an important avenue to deal with the most serious violations, at least for those with the time, resources and energy to take on the ordeal of a full-fledged constitutional fight with government. A strong and effective Ontarians with Disabilities Act would not replace the Charter. It would provide an alternative, proactive, cost- effective way to deal with and prevent the full range of barriers, including, among other things, those barriers which the Charter does not even address. It would also provide a more effective means for the Ontario Government to meet its obligations to people with disabilities under the Charter. (ii) The Ontario Human Rights Code The Ontario Human Rights Code includes a broad protection against discrimination based on disability. Unlike the Charter, the Human Rights Code does apply to private companies and individuals including situations where they employ people, deliver goods and services to the public, provide housing or other facilities, or are responsible for buildings to which the public has access. There are a number of difficulties, however, with relying on the Human Rights Code as the primary means of removing and preventing barriers. As with the Charter, it is up to each individual who encounters a barrier to enforce their own rights. They must file a human rights complaint each time their rights are violated. While lawyers are not technically required to file a complaint, in recent years legal advocacy has been needed just to get the Human Rights Commission to accept and investigate a complaint. In addition, because the process often pits an individual against someone with whom they have an ongoing relationship - an employer or a landlord or school - many people who face real and serious barriers are reluctant to file complaints. This means that someone facing a barrier will often wait until they have already suffered substantial harm before trying to deal with it through the Human Rights Commission. For example, someone may wait until they are fired before filing a complaint, rather than dealing with a workplace barrier that impeded their work on the job. When a human rights complaint is filed, the complainant must often wait for lengthy periods of time before an investigation is even started. Once the investigation is started it may be years before a decision is made on whether the complainant will receive the most basic procedural entitlement - a hearing before an independent and impartial Board of Inquiry (now called a Tribunal) to determine if their human rights were violated. If the Commission decides not to refer the case to a Tribunal, the individual has to retain a lawyer to contest that decision - a decision which is not easy to get overturned. Human rights complaints often take so many years to litigate that the case can often become irrelevant to the complainant by the time a decision is reached, even if they win. Where a complainant is prepared to shoulder the strain and delay of the human rights process, and proves before a Board of Inquiry that they had been the victim of discrimination, Boards of Inquiry too often order only inadequate if not inconsequential sums as monetary compensation. Some decisions may have broad, systemic implications, such as the landmark decision of the Ontario Court of Appeal in the Roberts case (Ontario Human Rights Commission v. Ontario (1994), 19 O.R. (3d) 387). Eliminating provincial age restrictions on the right to get Ontario Government funding to help purchase expensive assistive devices to accommodate a disability. However many, if not most, Human Rights rulings deal only with individual issues and situations. Even when a case raises systemic issues, there is often little opportunity for many of those people who may be affected by the outcome to intervene in the process. Part of the problem lies with the human rights process itself as set out in the Human Rights Code. Studies have recommended fundamental improvements to the process, to increase the real protection for human rights. Yet the only changes to occur as of late have deprived victims of procedural rights. The problem is made worse by the cuts in funding to the Human Rights Commission announced by the current government despite election promises to increase its funding. Finally, the Human Rights Code provides little in the way of meaningful, specific guidance to employers, landlords, educators, and the providers of goods, services and facilities who wish to bring their conduct in line with the law. It merely tells them in grand but unspecific terms not to discriminate, and to accommodate the needs of persons with disabilities up to the point of undue hardship. This creates uncertainty for those companies, service providers and others who want to comply with the Code but are unclear about their obligations. There is no incentive for employers, landlords and others to stop discriminating by removing existing barriers and by preventing new ones from being created, until they are actually faced with a human rights complaint. As with the Charter, a strong and effective Ontarians with Disabilities Act would enhance rather than replace the Human Rights Code. (iii) Employment Equity Legislation Ontario enacted employment equity legislation in the mid-1990s. However, that legislation was subsequently repealed before it took practical effect. It was also limited in scope. It dealt only with employment, not with the barriers confronting a person in other areas which may have an impact on their ability to work. For example, if a person requires accessible transit to get to work on a daily basis the employment equity legislation provided no remedy. Similarly, it did not deal with the barriers faced by people with disabilities seeking training or education to prepare them for the work force. (iv) Voluntary Measures To address the needs set out in this brief, the current Ontario Government and several previous governments also tried non-legislated solutions for many years. These included, among other things, public education campaigns, provision of supports and information to employers and others, and the like. The most recent example of this is the Equal Opportunity Plan introduced by the current Ontario government. This plan depends solely on voluntary activities such as public education on the need to extend equality of opportunity to persons with disabilities in all aspects of Ontario life. It also includes voluntary equal opportunity programs within governments and private organizations. Along similar lines, many members of the ODA Committee have been involved for years in efforts at public education in this area, and have a great deal of experience with them. These voluntary programs have been proven over and over again to be dramatically insufficient to deal with the barriers facing people with disabilities. There is no evidence that normal market forces nor gradual increases in the public's understanding of the situation confronting persons with disabilities have been or will be sufficient to eliminate the barriers which persons with disabilities face. To the contrary, even with such voluntary measures in place, the old barriers for the most part remain in place, while new ones continue to be created. For example, public education on disability barriers will not resolve the problem of disability barriers, unless those being educated are under a clear, effective, strong and enforceable legal duty to remove existing barriers, and to prevent new ones." (c) The Brief then summarized what we seek in the ODA generally as follows: "The key to the achievement of these important goals is the enactment of new provincial legislation which would provide a means for giving specific directions to employers, landlords, school boards, service providers, manufacturers and sellers of goods, and the like on what existing barriers must be removed and what new barriers must be avoided, as well as how this should be done. This new law should also establish realistic and workable timetables for the removal of barriers and the prevention of new ones. The process by which these rules are made should not leave it to individual victims of discrimination to be forced to come forward and complain against individual, offending employers, school boards, landlords and the like in adversarial law suits as the sole or main method for enforcement. Rather, the process should include a co-operative effort involving persons with disabilities on the one hand, and the affected industries on the other, with an objective, impartial and informed public authority acting as the ultimate facilitator and decision-maker. Rules should be enacted into law which address the major sectors of Ontario society, such as employment, education, services, goods, facilities, housing, and transportation." (d) The ODA Committee's 1998 brief then set out a detailed blue print for the Ontarians with Disabilities Act, which proposed the following regarding the issue of effective enforcement: "How Should the Ontarians with Disabilities Act be Enforced? The Ontarians with Disabilities Act should provide prompt and effective ways to enforce the rights it guarantees. Although people should still be able to file individual complaints when they run into a barrier, there should be other ways of enforcing the ODA that do not depend on individuals filing complaints each time they face a barrier. Self-enforcement by governments, businesses and other organizations covered by the Ontarians with Disabilities Act will be an important part of the enforcement process, by developing and implementing barrier free plans described above. Funding must also be made available to organizations of people with disabilities that are involved in promoting a barrier free society and providing education, information and support for people with disabilities as well as business. The Ontarians with Disabilities Act should establish an accountable and effective public agency responsible for enforcement of this law. Adequate funding must be available for this new responsibility. The ODA Committee cannot now take a position on whether the Ontario Human Rights Commission should be that agency. In 1995 the Premier made an election promise that his Government would increase funding for the Human Rights Commission. That promise was made in connection with the Commission's current responsibility of enforcing the Ontario Human Rights Code. Instead of keeping that election promise, the Government announced cuts to the Ontario Human Rights Commission's budget. Until the government restores the funding it said it would cut and keeps its election promise to increase the Commission's funding, the ODA Committee cannot consider the option of giving the Human Rights Commission even more responsibilities than it has today. The enforcement agency should: * report annually to the legislature on the progress made towards the goal of achieving a barrier free society. It should also identify where additional work is still needed; * have expertise in the area of disability; * receive complaints from both individuals and groups, and have power to bring a claim to enforce the ODA; * have authority to look at systemic problems and come up with systemic remedies; * have the power and obligation to make regulations to help enforce the Ontarians with Disabilities Act, including regulations setting standards in specific areas. In some areas, steps required to remove all barriers and prevent the creation of new ones may be clearly identified in the Ontarians with Disabilities Act. In some cases, change can happen quickly. For example, there is no cost or significant change needed for public transit services to require that operators announce each stop. In other areas, change may take somewhat longer. The Ontarians with Disabilities Act should require that regulations be passed by a specific date in specific areas of activity to set out these reasonable time lines; * be required to consult with people with disabilities, business and other stakeholders before regulations are finalized. * all activities of the enforcement agency, including the regulation making power, must take into account the diversity of the province, including regional concerns; * be required to consider requests from persons with disabilities that specific regulations be developed to cover an area or sector. The agency would also be required to consult with all stakeholders (people with disabilities, businesses, etc.) before deciding whether to enact proposed regulations; * receive barrier free plans governments and other organizations will prepare and file with the agency (which should be available to the public), and take steps to enforce the Ontarians with Disabilities Act's requirements regarding these plans. A Minister of the Ontario Government should be designated who will be responsible for achieving a barrier free society for persons with disabilities. The Minister should be responsible for: * monitoring Ontario Government programs and laws to ensure that they are designed and operated in a barrier free manner; * reviewing proposals brought to cabinet to ensure that they are barrier free and that they take into account the needs of persons with disabilities. Municipal councils, school boards, government committees and commissions and other public agencies should adopt similar procedures for their activities. All Ontario regulatory agencies, boards and tribunals must be required to consider the impact of any decision they make on barrier removal or prevention, and the achievement of a barrier free society for persons with disabilities. For example, the Health Services Restructuring Commission should be required to ensure that any restructuring of Ontario's health system is done in a way which both removes existing barriers, and which prevents new ones from being created as a result of the restructuring. What Remedies Should be Available for Breaches of the Ontarians with Disabilities Act? Remedies should be meaningful and effective. They must ensure that existing barriers are removed and new ones prevented. Remedies should include such things as systemic remedies, injunctions and damages. Class actions which could be brought by groups of people with disabilities should also be available. The enforcement agency must have the power to enforce the Ontarians with Disabilities Act without waiting for a complaint from an individual. What Support Services Should be Available to Assist Organizations to Comply with the Ontarians with Disabilities Act? The Ontarians with Disabilities Act should require the Government of Ontario to provide education and other information resources to companies, individuals and groups to assist them in complying with the requirements of the Ontarians with Disabilities Act. People with disabilities must be involved in developing the education and providing technical assistance. Organizations of people with disabilities should play a key role in assisting business, government and others with the implementation of barrier free plans. What Resources Should be Available to Help Finance the Cost of Achieving a Barrier Free Society? The Ontarians with Disabilities Act should provide, where feasible, financial resources to assist organizations, including businesses, to achieve a barrier free society. These could include subsidy programs and/or accelerated tax credits or deductions for expenditures specifically tied to compliance with the Ontarians with Disabilities Act. People with disabilities and their organizations should be provided the necessary technical expertise and funding so they can participate effectively in the processes created by the Ontarians with Disabilities Act, such as the regulation-making process. This includes funding for travel and communications so that people living in all areas of the province have a full opportunity to participate. How Will the Ontarians with Disabilities Act Operate Together With other Important Legal Protections for People with Disabilities Including the Ontario Human Rights Code, the Ontario Building Code and the Canadian Charter of Rights and Freedoms? The Ontarians with Disabilities Act must strengthen and complement the protections that now exist for people with disabilities under the Ontario Human Rights Code, the Charter of Rights and Freedoms, and the Ontario Building Code. Nothing in the Ontarians with Disabilities Act should reduce the protections for persons with disabilities in those laws. As well, the fact that an organization complies with another law does not mean that they do not have to follow the Ontarians with Disabilities Act. Appendix B What the Liberal Government has Promised In the October 2003 Ontario election, Dalton McGuinty promised that a Liberal Government would introduce a strong and effective ODA with the intent of passing it within their first year in office. His April 7, 2003 letter to the ODA Committee pledged that this new ODA "...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." The "11 principles" which the Liberals have promised to fulfil, are all set out in a resolution which Liberal MPP (now Energy Minister) Dwight Duncan introduced into the Legislature back on October 29, 1998, and which the Legislature, including the then-opposition Liberals, unanimously supported. The sixth of these principles states: "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; The seventh principle states: "7. As part of its enforcement process, the Ontarians with Disabilities Act should provide for a process of regulation-making to define with clarity the steps required for compliance with the Ontarians with Disabilities Act. It should be open for such regulations to be made on an industry-by-industry basis, or sector- by-sector basis. This should include a requirement that input be obtained from affected groups such as persons with disabilities before such regulations are enacted. It should also provide persons with disabilities with the opportunity to apply to have regulations made in specific sectors of the economy.." Appendix C How to Contact the ODA Committee To learn more about the ODA Committee, visit: http://www.odacommittee.net The ODA Committee can be contacted at the following address: ONTARIANS WITH DISABILITIES ACT COMMITTEE c/o Marg Thomas 1929 Bayview Avenue, Toronto ON M4G 3E8 Tel: (Voice direct) 416-480-7686 Fax: 416-480-7014 Voice mail: 416-480-7012 email: oda@odacommittee.net TTY: c/o Susan Main 416 964-0023 ex. 343

 

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