Ontarians with Disabilities Act Committee

ODA Committee HomepageFactsheet; the Ontarians with Disabilities Act CommitteeWhat's New on the ODA Committee websiteCorrespondence between the ODA Committee and the Ontario GovernmentODA Committee Press ReleasesHansard from the Ontario Legislature re: ODAODA Committee Action Kits and TipsContact the ODA CommitteeOrganizational Members of the ODA
Who are we?Major ODA DocumentsODA News BriefsODA HandoutODA PamphletODA PostersRegional ODA EventsFree Membership form to Join the ODA Committee

Please Support a Strong & Effective ODA


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


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:


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.


This Discussion Paper includes:












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




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


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

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.


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.


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

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.


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

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

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

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.


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

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

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

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

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.


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?


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

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.


- 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


- 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.


- 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


- risk that if an organization knows their plan may be
enforceable, it will be more reluctant to include concrete measures in the

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.


- 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


- 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

- 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.


- 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


- 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.


- 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


- 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.


- 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


- 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.


- 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


- 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.


- most powerful penalties available under provincial law


- 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


- 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


- 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.


- gives an incentive for an organization to meet ODA requirements

- allows the organization to publicly display its ODA seal of approval, showing its achievement


- 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.


- 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


- 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.


- little cost to government

- creates market pressure on the private sector to provide accessible goods and services

- makes governments themselves more accessible


- 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

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.


- 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


- 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


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.


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

* 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

* 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


- 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


- 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.


- 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


- 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


- 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


- 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.


- draws upon current expertise within the Ontario Public Service
in implementing the current ODA

- already up and running


- 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.


- 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


- 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.


- already in operation so need not set up new agency

- already fully independent of the Ontario Government


- 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.


- takes advantage of the existing OHRC regime

- makes any Human Rights hearing on disability issues as comprehensive as possible


- 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.


- no added burden on the provincial government


- 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.


- 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


- requires training for existing inspection/investigation staff to handle this new mandate

- no existing expertise in disability accessibility


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

The advantages and disadvantages of these options include:

The Courts


- the court system is already established and thus involves no "start up" costs

- courts have expertise in dispute resolution


- 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.


- 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


- 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.


- 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


- 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.


- 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


- 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.


- 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


- 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

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

(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

(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

* 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

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:


The ODA Committee can be contacted at the following address:

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


Go to Top of Page Top of Page


Index Page   |  Action Kits & Tips  | 

Website maintained by Barbara Anello

Please email your feedback on the website.

Page last updated August 3, 2004