Letter to Citizenship Minister DeFaria
In the following ODA Committee letter to Citizenship Minister DeFaria, the ODA Committee emphasizes three priorities for immediate action for the implementation of the Ontarians with Disabilities Act 2001, which was passed into law over 15 months ago. We recommend that the Government:
Our letter to the Minister sets out reasons why these immediate steps are important.
March 18, 2003
The Honourable Carl
Re: Ontarians with Disabilities Act
Fifteen months ago, your Government passed the Ontarians with Disabilities Act 2001 and made 13 important commitments on what this legislation would achieve for 1.9 million persons with disabilities. We write about three important priorities for implementing this legislation.
1. Proclamation of Section 21 of the Act
We ask your Government to proclaim in force immediately section 21 of the Ontarians with Disabilities Act 2001. That unproclaimed provision would impose a fine if public sector organizations do not make an annual accessibility plan, or if municipalities with a population over 10,000 do not establish a local disability accessibility advisory committee.
In your May 9, 2002 letter to us, you said you were then working on a timetable for proclaiming in force the rest of the Act. Most of the Act was unproclaimed at that time. You told us that you anticipated "proclaiming the balance of the act in the fall."
We acknowledge that you have fulfilled your commitment regarding most of the Act. However, three months have now passed since the end of fall, 2002, and no date for the proclamation of section 21 has been announced.
Section 21 is very important to this Act. That section would establish the only limited enforcement mechanism in the Ontarians with Disabilities Act 2001.
On October 2, 2002 and then again on November 25, 2002, we wrote to your Government-appointed Accessibility Advisory Council, asking them, among other things, to recommend that the Government immediately proclaim in force section 21. The chair of that Council, Mr. Jeff Adams, wrote to us on January 30, 2003 responding as follows:
"Regarding Section 21, the spirit and intent of the Act is to allow compliance. The council wants to ensure that there is an educational process in place to make certain the obligations outlined in the Act are met. When there is clear evidence or data to indicate that compliance with ODA obligations are not met, the council will then be supportive of the government proclaiming Section 21."
During the past 15 months, the Ontario Government has developed and published various helpful educational materials to assist organizations implement the ODA. You described these in your August 20, 2002 letter to us. We need not wait any further on that account for section 21 to be proclaimed.
As well, the Government proclaimed in force all the other provisions of the Act, because it felt that organizations had had enough time to gear up to comply. This followed more than seven years of waiting for the ODA to be enacted. During that period, the Government said it was actively working with various sectors on tools to help them remove and prevent barriers.
There is also no need to delay further proclaiming section 21, until it is clear whether organizations are complying with the Act. The purpose of section 21 is to make sure that all organizations comply with the legislation. The disability community should no longer be denied the full benefit of that provision.
People with disabilities should not face the risk that an organization, obliged to prepare an accessibility plan by September 30, 2002, might fail to meet that deadline, and yet face no consequences for their conduct, because your Government further delayed proclaiming section 21 in force. By not proclaiming this provision in force now, the Government is sending a clear message to organizations that disregarding this law will cause them no adverse consequences. This contradicts the 13 commitments which the Government made to the disability community in the fall of 2001 concerning this legislation.
The ODA bill which your government brought before the Ontario Legislature in November 2001 did not originally contain section 21. It originally included no enforcement mechanism at all. During the rushed public hearings into that bill in the fall of 2001, the Government received overwhelming input from all corners of the disability community, calling for amendment to create a strong and effective enforcement mechanism. The then Citizenship Minister Cam Jackson said he brought forward section 21 in response to that input. Speaking in support of this amendment during Third Reading Debate on the bill in the Ontario Legislature on December 13, 2001, Minister Cam Jackson stated:
"I think it's almost an unprecedented number of amendments, almost 30 amendments, to this legislation that came from the public hearings. I've read each of the briefs that were presented. I had the opportunity to read them, to receive the reports back from the members of the committee in our caucus, ... They did a tremendous amount of work, keeping me abreast and informed. They came forward with the recommendations we received from the disabilities community, and these are some of the amendments that have been added to this landmark legislation. For example, we brought in a series of penalties that now will apply to the legislation -- a $50,000 fine for non-compliance. That fine in the act covers ministries, hospitals, universities and municipalities. That's what the disability community wanted to have. We didn't get a lot of advice as to what the penalty should be, but we did put this into the legislation based on the recommendations of groups like the March of Dimes."
By not proclaiming in force section 21, the Government makes the ODA 2001 a voluntary law, and nullifies that amendment. This disregards the very input from the disability community which Minister Jackson had said your Government was honouring and acting upon. Ontarians with disabilities deserve better.
2. Enacting Regulations
It is clear from the Ontarians with Disabilities Act 2001, and from your Government's public statements in the fall of 2001, that a centrepiece of this legislation will be the regulations enacted under it. These regulations will provide the flesh on the bones, e.g. the detailed standards for removing and preventing barriers.
In the first half of last year, we recommended that your Government make it a priority to get strong and effective regulations developed in consultation with the disability community. As of now, no regulations have been passed. No draft regulations have been posted for public input. No public consultations have been held or announced leading to the development of regulations.
Your letter to us dated August 20, 2002, and your predecessor Mr. Jackson's letter to us dated February 21, 2002 state that as a priority, for the past 13 months your Ministry has planned to focus on developing regulations on matters such as the definition of the term "agency." This was one of the measures needed to bring the ODA 2001 into full effect. Until those regulations are enacted, no organization is required to comply with the requirement to develop an accessibility policy under section 16 of the ODA 2001. No draft regulation or discussion paper has been circulated on this subject for input from the public, including the disability community.
It is especially important that regulations be developed as soon as possible, in order to set detailed standards and time lines for barrier-removal and prevention. The ODA 2001 gives the Government power to do this. The Government promised in the fall of 2001 that standards would be set and that the disability community would have a central role in the process. Province-wide standards and enforcement have not been set.
The Government has thus left it to each individual municipality, Ontario Government ministry, public transit provider, hospital, school board, university and other such organizations to re-invent the wheel. Each may have to develop its own local barrier-removal code.
This duplication of effort is neither cost-effective nor productive. Ontario would benefit far more from one province-wide, consistent, comprehensive set of standards. This would avoid the red tape and confusion of having different standards in effect all over Ontario.
In the fall of 2001, Citizenship Minister Cam Jackson emphasized the need for standards to be set for barrier removal. Yet 15 months later we have none in place, and none is publicly scheduled for promulgation.
3. Public Consultations on How to Implement the ODA
There is a pressing need for the Government to now launch an open, comprehensive and accessible public consultation process on the steps for implementing the ODA 2001, including the development of the regulations we refer to above.
On October 2, 2002, we wrote to the Government-appointed Accessibility Advisory Council, reiterating our recommendation that the Council hold public consultations on the ODA's implementation with a focus on developing regulations. We also offered our help and expertise in the organizing of such consultations. The Council chair, Mr. Jeff Adams, wrote to us on January 30, 2003, stating that the Council has no authority to hold public consultations on the development of regulations. It was very surprising to learn this. The approach set out in that letter reflects a needlessly narrow view of the Council's mandate under the ODA 2001. We cannot imagine anyone objecting to the Council holding public consultations.
We urge the Government to reconsider this position, and to acknowledge that the Council can and should hold such consultations. The position taken in Mr. Adams' letter will substantially undermine the Council's ability to fulfil its role. We were shown nothing in the Ontarians with Disabilities Act 2001 which prevents the Council from conducting public consultations on the implementation of the Ontarians with Disabilities Act 2001, including the fundamentally important topic of developing strong and effective regulations.
The Government emphasized the central role that the Accessibility Advisory Council would play. The Council's mandate to advise the Government includes, among other things, giving the Government advice on developing regulations. To do this, the Council must regularly and thoroughly consult directly with, and gather input from, the wide range of people who comprise the disability community.
As citizenship Minister
Cam Jackson said during the first day of Second Reading debate on this
legislation on November 8, 2001: "The disabilities community has
many members who deserve a voice on these issues." He also
In a published article, Minister Jackson said: "The disability community would have access to the Accessibility Advisory Council and local accessibility advisory committees. We will be harnessing their good ideas and their legitimate needs, and channelling those with future legislation or regulations." (Interview in Abilities Magazine, November 2001)
The only meaningful and effective way for the Council to fulfil this role is by holding public consultations. While it is always good for Council members to individually attend and give speeches at public events, this does not provide the kind of comprehensive, open avenue for input that occurs if the Council organizes a public consultation forum.
As well, the internet, while helpful, is no substitute for public consultations. The internet leaves out too many who cannot use it or afford a computer.
We ask that you direct the Council to hold these open, accessible public consultations as soon as possible. In our proposed Ontario Government Workplan for the ODA's implementation that we took upon ourselves to develop and submit to you and the Council last year, we suggested details on priority areas and time lines for such consultations. By a separate letter to the Council of today's date, we also ask its members to reconsider the stated view of its mandate.
We repeat our offer to help the Government and the Council undertake public consultations. If the Council is not going to undertake these consultations, then we ask you to do so yourself.
We know that the Ontario Realty Corporation has recently conducted limited consultations in the narrow area of developing guidelines for accessibility of newly-acquired Ontario Government buildings. That limited exercise, on a very narrow topic, is no substitute for the much-needed broader consultation required to develop comprehensive, effective ODA regulations.
We remain eager to do what we can to help your Government fulfil its fall 2001 commitments to Ontarians with disabilities. We look forward to hearing from you on these important issues at your earliest convenience.
David Lepofsky, C.M.
cc: The Hon. Ernie