CHAPTER 2

THE CONTENTS OF THE ONTARIANS WITH DISABILITIES ACT

This chapter sets out the specific principles that should be reflected in the Ontarians with Disabilities Act. It is based on the general principles and needs set out in Chapter 1 of this Brief. This is not intended to provide exhaustive, technical legal details of how the Ontarians with Disabilities Act should be written. Instead, it describes basic concepts and ingredients the Ontarians with Disabilities Act should include in order to be strong, meaningful and effective. The ODA Committee remains flexible and open to creative ideas, from our members and others interested in this area, on how to design an effective and meaningful Ontarians with Disabilities Act that is also practical and realistic.

What is the Aim of the Ontarians with Disabilities Act?

The Ontarians with Disabilities Act's objective is to achieve a barrier free society in Ontario for people with disabilities, a society whose workplaces, goods, services, and facilities will be designed and operated for all its citizens, including those with disabilities. Ontario will be a society in which people with disabilities can fully participate - a society where existing barriers have been identified and removed, and where new barriers are prevented before they arise.

Who Should be Expected to Comply with the Ontarians with Disabilities Act?

To achieve a barrier free society the Ontarians with Disabilities Act must apply to all provincial and municipal governments, as well as private and public sector organizations subject to the laws of Ontario. These organizations created the barriers that obstruct people with disabilities, often unintentionally. They must share responsibility for removing them. Most importantly, everyone must be involved in preventing the creation of new barriers. This means the law should apply to the Ontario Legislature and Government, the Ontario Public Service, all municipal, regional and local governments including all their committees and commissions, the broader public sector such as schools, school boards and hospitals, as well as all businesses and other organizations operating in Ontario.

Governments have special obligations to ensure all citizens have a full and equal chance to participate in society. The government cannot avoid its obligations under the Ontarians with Disabilities Act by downloading its responsibilities to other levels of government, or to the private sector by privatization. Even though the Government may decide not to deliver a program itself, where the government is providing the funding and setting the standards, it is obliged to ensure that barriers are removed and no new barriers are created.

It is also important that institutions which symbolize the government and people should be accessible. This includes the Ontario Legislature, as well as MPPs' offices. Everyone, including people with disabilities, must be able to watch and participate in government.

What Should the Ontarians with Disabilities Act Cover?

Since the goal of the Ontarians with Disabilities Act is to ensure full participation in society by people with disabilities, it must cover the full range of activities, products, facilities, services and other opportunities used or enjoyed by the citizens of Ontario. In some cases the Ontarians with Disabilities Act would refer to specific activities, products, facilities and services. It must also be flexible enough to include any new developments. For example, ten years ago the internet barely existed. Today it is an increasingly important tool for communication, research and learning. The Ontarians with Disabilities Act must apply to new developments, such as the internet, to ensure that when changes occur, new barriers are not created. In our Fall 1997 survey our members told us that some of the most important areas the Ontarians with Disabilities Act must cover are:

* employment

* public transportation

* education and training at all levels (e.g. public schools, high schools, post-secondary institutions and job training programs)

* health and social services including health promotion

* communications and telecommunications

* recreational programs and facilities

* information provided to the public

* housing

* consumer products

* police and law enforcement

* tourism and entertainment

What Kinds of Barriers Should the Ontarians with Disabilities Act Cover?

The Ontarians with Disabilities Act should cover all types of barriers keeping people with disabilities from participating fully in society. For example, it should include: physical barriers, such as high curbs without curb cuts; communication barriers, like those faced by people who are Deaf and require sign language interpretation to communicate effectively; barriers faced by people who cannot read printed material and who require Braille, large print, tape or other alternative formats.

Other barriers to be covered include: discrimination in employment faced by many people with disabilities, including mental illness, developmental disabilities and learning disabilities.

What Disabilities Would the Ontarians with Disabilities Act Cover?

The Ontarians with Disabilities Act must be inclusive so all people with disabilities of all ages will benefit from it. The definition of disability used in the Ontarians with Disabilities Act should include a broad range of disabilities including: communication disorders and speech impairments, learning disabilities, mobility disabilities, AIDS, kidney disease and other invisible disabilities, multiple sclerosis, Deafness and hearing loss, blindness and visual impairment, neurological disorders, traumatic brain injury, psychiatric and mental illness and diabetes. The definition of disability must be clear that the list of disabilities is not exhaustive, and that it can be expanded by regulation or by the courts in accordance with the principles set out in the Ontarians with Disabilities Act. No disability may be explicitly excluded from the Ontarians with Disabilities Act's definition of disability.

What Will the Ontarians with Disabilities Act Require?

The Ontarians with Disabilities Act must clearly guarantee persons with disabilities the right to participate fully in a barrier free society. This includes a right to have existing barriers identified and removed. It also includes a right to have new barriers prevented.

It must state that no statute or regulation of Ontario, nor any municipal bylaw, can be passed or implemented if it conflicts with the requirements of the Ontarians with Disabilities Act. The Ontarians with Disabilities Act will apply fully and equally in all areas of the province, including cities, towns and rural areas.

Organizations, including businesses, that must comply with the Ontarians with Disabilities Act will be required to:

* identify barriers now existing within their organizations, keeping persons with disabilities from participating fully in their workplace and from participating fully in and benefiting from the goods, services and facilities which they provide;

* develop a plan for removing the barriers. The plan should set out stages in which barriers will be removed, and set a final date when they will be completely eliminated. It should also include steps to ensure new barriers are not created in future;

* carry out their barrier free plans.

Governments will have the same obligations as other organizations. Governments will have additional responsibilities such as:

* Within a specified period of time, developing and carrying out a barrier free plan for each provincial ministry or department, applying to services that they deliver or have responsibility for delivering, and for the sector of society for which they are responsible. For example, some of the areas in which the government must act to remove existing barriers and prevent new barriers are:
- the education system (Minister of Education & Training)
- the Ontario system of colleges and universities (Minister of Education & Training)
- the health and long term care system (Minister of Health)
- the social services system (Minister of Community & Social Services)
- child care services (Minister of Community & Social Services)
- the justice system (Attorney General)
- policing services (Solicitor General)
- provincial and municipal public transportation (Minister of Transportation)
- the Ontario housing system (Minister of Municipal Affairs & Housing)
- Building Codes at the provincial and local levels (Minister of Municipal Affairs & Housing)
- labour issues including occupational health and safety (Minister of Labour)
- recreation and tourism (Minister of Citizenship, Culture & Recreation)
- making the Ontario Public Service a barrier free Workplace (Chair of Management Board)
- making the Legislature and the electoral process accessible (Speaker of the House/Attorney General)
- taking steps to ensure that wherever possible government would purchase or rent only barrier free products, facilities and services. This would provide an incentive for companies providing services, facilities or products to remove existing barriers and prevent new ones from arising; - reviewing existing legislation, regulations and policies, and new ones to be proposed in future, to ensure they are barrier free and, if necessary, making changes to eliminate barriers; - making sure when a government program is delivered, whether by government, an agency or any other organization chosen by government, it is done in a way that is barrier free; - working with people with disabilities to develop expertise in designing barrier free programs, goods and services, and using this expertise to help the private sector comply with the Ontarians with Disabilities Act.

The Ontarians with Disabilities Act must also give the provincial government authority and duty to develop, implement and enforce barrier free standards to apply across the entire province. Barriers are created in part because municipalities may each have a set of different standards, creating confusion and inconsistency. These new province-wide standards would apply to areas like transportation, zoning, or parking rules for people with disabilities.

Barriers must be removed and prevented in every area and region of the province. People with disabilities should have the ability to travel and live in any area of the province without having to face new barriers in each location.

The Ontarians with Disabilities Act must also do nothing to diminish rights that people with disabilities have under the Human Rights Code and the Building Code.

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.

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