ODA Committee Update
dated January 26, 2005
posted March 6, 2005

ONTARIANS WITH DISABILITIES ACT COMMITTEE UPDATE Brief To The Ontario Legislature's Standing Committee On Social Policy On Bill 118, The Proposed Accessibility For Ontarians With Disabilities Act JANUARY 26, 2005 Visit www.odacommittee.net INTRODUCTION The Ontarians with Disabilities Act Committee submits this brief to the Ontario Legislature's Standing Committee on Social Policy to comment on and recommend amendments to Bill 118, the proposed Accessibility for Ontarians with Disabilities Act. The ODA Committee is a grassroots, voluntary, non-partisan coalition of individuals both with and without disabilities, and of numerous community organizations organized across Ontario. Founded in late 1994, we united to achieve a barrier-free Ontario for all persons with disabilities through the prompt passage of a strong, effective provincial disability accessibility law. We have led the decade-long campaign for this legislation. (See Appendix 1 for a brief summary of who we are, and Appendix 2 for a brief history of this decade-long campaign) We dedicate this brief to the many wonderful individuals who donated their time and energy to our ten-year grassroots campaign for a barrier-free Ontario for persons with disabilities through strong, effective legislation. We especially dedicate it to those who, we regret, didn't live long enough to see their dream become a reality. This brief includes: Why Bill 118 is a Good Bill Key Rationales for Our Proposed Amendments to Bill 118 Priorities in Our Proposed Amendments Our Proposed Amendments in Detail A Review of Amendments that Shouldn't be Accepted. 11 Appendices including a list of our proposed amendments, and important background information and documents   WHY BILL 118 IS A GOOD BILL Bill 118 is a good bill. (See Appendix 8, the text of Bill 118) It includes substantial and important improvements upon the current Ontarians with Disabilities Act 2001 (ODA 2001). Among these, Bill 118 does the following: 1) Bill 118 legislatively commits Ontario to become fully accessible to persons with disabilities. The ODA 2001's more limited purpose was to improve opportunities for persons with disabilities and involve them in barrier identification, removal and prevention. 2) Bill 118 sets an end date for achieving a fully-accessible Ontario. The ODA 2001 set no such deadline. 3) Bill 118 applies to both the public and private sectors. The ODA 2001 only applied to the public sector as no regulations were ever enacted that extended its scope to the private sector. 4) Bill 118 will make barrier removal and prevention mandatory once accessibility standards are enacted. The ODA 2001 didn't make barrier-removal and preventionmandatory. 5) Bill 118 requires that accessibility standards be developed. The ODA 2001 permitted such standards to be developed, but didn't require it. 6) Bill 118 provides for an effective enforcement mechanism. The ODA 2001 had no effective enforcement mechanism. Its one provision including a weak, limited enforcement mechanism, was never proclaimed in force. We commend the Ontario Government for bringing forward Bill 118, after holding a thorough, open inclusive and accessible public consultation. We also are very appreciative that all three political parties unanimously voted in favour of this bill in principle on Second Reading. We are delighted that there is now all-party support for the ODA Committee's core message (which we spearheaded since the previous Government introduced Bill 125, its proposed ODA 2001) that the existing ODA 2001 needs to be strengthened. We note that the author of the ODA 2001, Conservative former citizenship Minister Cam Jackson, speaking on behalf of the Ontario Progressive Conservative Party as its Disability Critic, stated (second day of Second Reading debate on Bill 118, November 22, 2004): "I think it is important that disabled people have a strengthened Ontarians with Disabilities Act." KEY RATIONALES FOR ODA COMMITTEE'S PROPOSED AMENDMENTS Having now had three months to carefully study Bill 118's provisions and to further consult our membership, we welcome this opportunity to offer amendments to make Bill 118 even better. We commend Citizenship Minister Dr. Marie Bountrogianni for inviting proposals for amendments to ensure that this bill most effectively fulfils the Government's goals. In the Legislature she stated (first day of Second Reading Debate on Bill 118, November 18, 2004): "As I have indicated, I want to be as non-partisan as possible. If a member from any of our three parties has a workable suggestion for improving the bill, I am more than prepared to listen." We here take the Minister up on her welcome invitation. We propose these amendments in the spirit of our support for the bill. Our proposed amendments reflect input from our membership gathered since Bill 118 was introduced on October 12, 2004 for First Reading. They also reflect the accumulated thinking on the issue of disability accessibility that the ODA Committee amassed over the past decade through innumerable public forums around Ontario, through our constant solicitation of feedback from our membership, through policy and legal research, and through exchanges with others interested in this issue around the world. We express our gratitude to all who provided us with ideas, and who invested effort in our grassroots campaign. These amendments cannot reflect every last idea that may have been brought to our attention at some point. We thus have encouraged community organizations and individuals to bring to this Standing Committee their own ideas for amendments, to supplement ours. We hope our proposals are a catalyst for more good ideas that others will devise. It should not be inferred from the number of our proposed amendments that this isn't a good bill. Our amendments aim to make this good bill even better, so it will best achieve the Government's stated objectives. We recognize that this is a very different kind of bill - it is unlike any other bill that has come before this Legislature and unlike any other legislation in Canada. We want this bill to boldly go where no Canadian legislation has gone before. Because Ontario is embarking on a new enterprise, there is ample room for fine-tuning and improvement, without implying that the initial bill was wrong-headed. Our proposed amendments, which are described in detail below and then gathered together in one place in Appendix 3, have several rationales or themes. First, they aim to make sure that this bill most effectively implements the 11 principles for disability accessibility legislation which the ODA Committee formulated, which the Legislature unanimously adopted by resolution on October 29, 1998, and which Premier McGuinty promised to enshrine in this legislation. (See the Ontario Legislature's October 29, 1998 unanimous resolution, Appendix 4 and Dalton McGuinty's April 7, 2003 letter to the ODA Committee, Appendix 5.) Second, these amendments seek to the extent feasible to implement the substance of specific amendments which the Liberal party and the NDP each proposed on December 11, 2001, to the previous Conservative Government's Bill 125. (See Appendix 7, the text of Bill 125.) Bill 125 ultimately became the current ODA 2001. The Liberal Party's 2001 proposed amendments are set out in Appendix 6. The Liberals put those proposed amendments forward at the ODA Committee's request. As discussed below, the NDP similarly proposed comparable amendments at the ODA Committee's request. In his April 7, 2003 letter to the ODA Committee (Appendix 5), Premier McGuinty pledged that if elected, his Government would at a minimum implement the content of those amendments. He wrote: "...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." Because Bill 118 is structured differently from the current ODA 2001, not all those 2001 proposed Liberal amendments to the Conservatives' Bill 125 remain appropriate. We refer where appropriate to the 2001 Liberal amendments that we draw upon. We gratefully acknowledge that when the previous Government brought its Bill 125 before a Standing Committee in the fall of 2001, the New Democratic Party also proposed a package of amendments at the ODA Committee's request, which were virtually identical to those proposed by the Liberals. The NDP and Liberals supported each others proposed amendments. Where we refer below to the Liberals' proposed amendments to the previous Conservative Government's Bill 125, the text we refer to is that which the Liberal Party proposed in 2001. However in each case where we refer to the Liberals proposed 2001 amendments to Bill 125, it should be remembered that the NDP made very similar proposals. Third, our amendments try to work within the structure of the Government's bill. They fine-tune and improve it to make it as effective and practical as possible. For example, where there is a real risk that Bill 118's wording could be open to different interpretations, or where its wording is too vague or uncertain, we seek to have the wording clarified to avoid that risk. It is far better for the Legislature to make its meaning plain now, then to have to later wrangle over such issues in court. We don't want to have the bill's implementation stalled or thwarted due to legislative ambiguity, nor to run the risk that the bill may later need to be amended to fix problems that could be prevented now by clearer legislative language. Similarly, our amendments focus on refinements that should be made in the text of the bill itself. We recognize that there is much room to put flesh on the bill's bones via regulations that Cabinet can later pass. While some things can be left for regulations, it is important that key bedrock requirements are clearly set out in the bill itself. Once something is set out in the bill itself, it remains part of Ontario law until and unless the Legislature itself amends the bill. Regulations, on the other hand, can be amended by Cabinet alone, without any public debate. Also, persons with disabilities should not have to wait for regulations to be passed to achieve important things that can and should now be enshrined in the bill itself. Fourth, we recognize that financial resources available to the provincial government, and to the private and broader public sectors, are limited. They need to be spent carefully and wisely. Fifth, we recognize that the bill must give the Ontario Government and organizations in the public and private sectors that will implement this bill sufficient flexibility to deal with the myriad of different issues that will arise during its implementation. Nevertheless it is important that the bill set time lines for important steps that the Government must take, when implementing the bill. Some of these time lines should be fixed calendar dates. Others should be triggered by the happening of important events. Either way, it is important to ensure that persons with disabilities don't have to lobby successive governments to ensure they take the key steps needed to effectively implement and administer this bill. Sixth, we are keenly aware that there has been much debate over the bill's 20-year time line for achieving full accessibility in Ontario for persons with disabilities. Many won't live to see the end of that period. On the other hand, the task of making Ontario fully barrier-free for all persons with disabilities is a major undertaking. The ODA Committee has always recognized that this cannot be completely achieved overnight. Some measures can be implemented quickly. Others will take longer. It would undoubtedly be desirable if that 20-year period could be reduced. However, our proposed amendments don't focus on the choice of end date for achieving full and complete provincial accessibility. Rather, as a core theme, they focus on making sure that important progress is made in a timely fashion along the way, with special emphasis on ensuring real and substantial progress during the earliest years of this bill's implementation. This bill must be designed to ensure effective progress not only now, when the busy Legislature's attention is temporarily focused on this bill. It must also ensure effective, timely progress throughout the next two decades. It must be sufficiently durable to effectively cover each successive Ontario Government and each successive minister that will be responsible for its implementation. A major goal of these amendments is thus to ensure that while the Government has reasonable latitude and flexibility, the bill sets key benchmarks and time lines for Government action to ensure that this bill will be effectively implemented, regardless of who is in power, and regardless of who serves as Citizenship Minister. Our experience in Ontario and elsewhere around the world has left the indelible message with us that effective disability accessibility legislation must not just say what Government "may" do: it must make it clear what Government "must" do to implement and administer that law, and when it must do it, to effectively steer our province on the path toward full accessibility by the bill's ultimate deadline. Seventh, and certainly not least important, building on the foregoing, where the bill gives the government, the minister or other officials or appointees a discretionary statutory power, it is important that that discretion be appropriately structured. The bill shouldn't give open-ended and unlimited discretion to the Government, to the minister or to other officials or appointees with statutory powers to administer the bill's implementation. In addition to providing time lines for the exercise of such powers, the bill should also set the criteria for the exercise of discretionary powers concerning this bill's implementation. This will help make for the best, wisest decisions, and ensure that governmental discretion over the bill's implementation is exercised in an open, public and transparent way. Taken together this will help the government, the minister, and all others responsible for discharging statutory powers to implement and administer this bill, make the best decisions and be effectively accountable for their activities. PRIORITIES IN THIS AMENDMENTS PACKAGE This amendments package has 11 priorities. Bill 118 should be amended to: 1) Set specific time lines by which the Ontario Government must take each major step necessary to implement and administer this bill's major elements, and key benchmarks that must be achieved at key points during the bill's 20-year implementation period, all to ensure that progress is steady, serious and substantial. 2) Reinforce the process for developing proposed accessibility standards, and ensure that it is arms-length from the Ontario Government. The Government should take part in that process, and will have ultimate say over whether a proposed accessibility standard, once developed, is enacted into law, but shouldn't control the process of developing proposed accessibility standards. 3) Ensure that the process of implementing and administering the bill, including the development of accessibility standards, is open, publicly accountable and transparent. 4) Implement measures to ensure that persons with disabilities and disability community organizations can take full and meaningful part in the process of developing accessibility standards, and in other key aspects of implementation 5) Add to the bill additional measures that will effectively promote barrier removal and prevention in contexts which accessibility standards can't or don't address. 6) Establish an effective,independent public means formonitoring progress towards the goal of full provincial accessibility, and for proposing reforms to the bill and its implementation if needed. 7) Mandate a permanent program to ensure that students in the school system, and people training in key professions, such as architects, are educated in disability accessibility. 8) Structure and constructively focus the exercise of the statutory discretionary powers which the bill gives the Government, the minister, and other officials appointed to participate in this bill's administration and implementation. 9) Ensure that the bill applies to all major activities within provincial jurisdiction where barriers can arise against persons with disabilities. 10) Close unnecessary loopholes in the bill e.g. the Government's power to unilaterally exempt organizations from the bill's requirements, either by a regulation or private agreement. 11) Ensure an orderly transition from the current Ontarians with Disabilities Act 2001 to the full operation of this new bill. THE ODA COMMITTEE'S AMENDMENTS PACKAGE FOR BILL 118 The ODA Committee proposes the following amendments to Bill 118. These amendments are not listed in order of importance. PART I: SCOPE OF THE BILL 1. TO WHOM THIS BILL APPLIES The bill should apply to the Ontario Crown and to all public and private sector organizations within provincial jurisdiction. However, the wording of s. 4 doesn't achieve this. On the issue of who this bill covers, s. 4 of the bill states: "4. This Act applies to every person or organization in the public and private sectors of the Province of Ontario to which an accessibility standard applies." The words "to which an accessibility standard applies" are too narrow. They unnecessarily constrict this bill's reach. For example, s. 29 of the bill imposes obligations on municipalities regarding the operations of municipal accessibility advisory committees. These should apply regardless of whether any accessibility standards have been developed and adopted. Yet s. 4 of the bill suggests that the bill wouldn't apply to a municipality or its accessibility advisory committee until and unless an accessibility standard regarding municipalities has been developed and enacted as a regulation. See also our discussion about the bill's provisions regarding municipal accessibility advisory committees below. It is therefore recommended that: 1) Section 4 of the bill be amended to delete the words "to which an accessibility standard applies." Subsection 6(3) of the bill defines those to whom accessibility standards should apply. It states: "6(3) Despite subsection (2), an accessibility standard may apply only to a person or organization that (a) provides goods, services or facilities to the public; (b) employs persons in Ontario; (c) offers accommodation to the public; (d) owns or occupies a building, structure or premises that is open to the public; or (e) is engaged in a prescribed business, activity or undertaking or meets such other requirements as may be prescribed." We are pleased that the intent of this provision is to ensure that the bill covers the full range of activities where barriers against persons with disabilities can arise. We note however that the qualifying term "to the public" in this provision runs contrary to the comparable wording in the Ontario Human Rights Code. That Code was amended in 1981 to remove the requirement that goods, services accommodation, etc. be offered "to the public" to avoid the risk of an unduly narrow interpretation. To ensure that the Government's broad intent is most effectively reached, the term "to the public" should be removed from this provision. We therefore recommend: 2) Section 6(3) of the bill be amended to remove the qualification "to the public". Note: See also the recommendations below regarding extending the bill to apply to the Legislative Assembly of Ontario. PART II: ACCESSIBILITY STANDARDS 2. STREAMLINING THE PROCESS FOR ESTABLISHING STANDARDS DEVELOPMENT COMMITTEES Under this bill, the minister is required to establish Standards Development Committees. These committees are a centerpiece of this bill. These Standards Committees will each prepare proposed accessibility standards for a sector of the economy or for a subject area that cuts across all sectors. It appears that the Government contemplates that each Standards Committee will include representation from the government, from the sector of the economy to be regulated, from persons with disabilities, and from other possible stakeholders. We strongly endorse this new direction in the bill. This is a substantial improvement upon the current ODA 2001. The previous Government announced that under the ODA 2001, accessibility standards could and would be developed. The ODA Committee repeatedly pressed for accessibility standards to be developed under that legislation. Yet no mandatory accessibility standards were developed under the ODA 2001. Section 8 of Bill 118 creates the process for establishing Standards Development Committees. The basic framework is good. However, it is desirable that this process be further clarified, refined and streamlined, while still leaving the Government sufficient flexibility. There are several areas for refinement and improvement of s. 8. It now requires that the minister establish standards committees. However, it doesn't impose a time frame for this to happen. It is important that there be a reasonably prompt time frame for the first Standards Committees to be established. The minister should then be left with flexibility to add to and alter the initial set of standards committees that are established. Section 8 also doesn't identify a minimum range of Standards Committees to be established. This is an area where it is reasonable to leave the minister with a good measure of flexibility. We will undoubtedly all learn as we go along. However, on the face of s. 8 as now drafted, the minister could only establish one or two Standards Committees, whose terms of reference only cover a small fraction of the economy, without running afoul of the legislation. It is desirable that the bill make it clear that over a reasonable period of time, the minister must appoint sufficient standards committees to ensure that standards are developed covering the breadth of the economy. The bill shouldn't leave this entirely open-ended. It should instead identify certain Standards Committees that must be established within the initial time frame to be set. It could make it clear that these will not be the only Standards Committees that shall be established. It would be helpful if the bill also included criteria for establishment of additional Standards Committees. As well, the bill should provide a mechanism for members of the public to apply to the minister to exercise his or her discretion to appoint a further Standards Committee in a designated area. Once such an application is made, the minister should be required to consider that application, to decide on it within a specified period of time, and, if the application is refused, to give reasons for the decision. This would fulfil the last line of the 7th of the 11 principles, approved unanimously by the Ontario Legislature, which this legislation is intended to fulfil. That 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; For example, in 2001, after detailed study of the public transit sector, the Ontario Human Rights Commission found that there are too many barriers impeding access by persons with disabilities to public transit. The Ontario Human Rights Commission publicly recommended that to rectify this, provincial public transit accessibility standards need to be set. As of now, no such standards have been developed by the Ontario Government. A formal application process, suggested here, would provide an excellent avenue for that issue to be pursued." It is therefore recommended that: 3) Section 8 of the bill be amended to: (a) identify the minimum standards committees that must be established within six months of the bill coming into force, and identifying at least some of the key standards areas that should be covered. These could possibly cover , among others, transportation, education, health care, the built environment, employment, large retail stores, and customer service to persons with disabilities; (b) set out the criteria that the minister should apply when deciding what Standards Committees to establish, e.g. based on priority needs of persons with disabilities; (c) provide that interested parties can make an application to the minister to establish a Standards Committee. When such an application is received, the bill should provide a prompt, uncomplicated process for the minister to post the application, receive input on it, and make a decision, giving reasons for granting or refusing the application. Section 8 of the bill provides little if any detail on how members of the Standards Committees are to be selected by the minister. It indicates that they should come from among persons with disabilities, from the regulated economic sector and from government. It is undesirable for the process of selecting persons to sit on the Standards Committees to become too slow and cumbersome. These Standards Committees cannot and shouldn't become mini-parliaments. On the other hand, it is important that the bill include provisions to promote the selection of members for standards committees who have the requisite expertise and skills, and to avoid political considerations in their selection. The best approach is to ensure that the selection process is open and transparent. At a minimum, Bill 118 should set fixed terms for Standards Committee membership. A government should not be able to dismiss Standards Committee members at will. The bill should require the minister to publicly invite applications for persons to be appointed to these committees. It should require the minister to make public the names of persons who apply, the criteria to be used for their selection and the names of those ultimately appointed. The current Public Appointments process might be used, if it won't unduly delay the establishment of the standards committees. The bill should also set timelines for these actions. Under the ODA 2001, it took the Government a year to select 12 persons to sit on one body, the Accessibility Advisory Council of Ontario. It is desirable that such delays not be permissible under this bill, especially since several Standards Committees will need to be established. It is therefore recommended that: 4) Section 8 of the bill be amended to: (a) require the minister to publicly solicit applications and nominations for positions on Standards Committees; (b) set fixed terms for membership on Standards Committees; (c) require the minister to make public the criteria for appointing members to Standards Committees, the list of persons applying for membership on Standards Committees, and the persons appointed to Standards Committees; (d) Set reasonable time lines for these actions, and for appointments to Standards Committees to be made once applications have been solicited, to ensure that this process is expeditious,. (e) Make the Public Appointments process available to review such appointments, if this won't unduly delay the establishment of the standards committees. 3. CLARIFYING MANDATES OF STANDARDS COMMITTEES Section 8(6) of Bill 118 gives the minister power to set the mandate for each Standards Committee. It states: "8(6) The Minister shall fix terms of reference for each standards development committee and shall establish in the terms of reference the deadlines that each committee must meet throughout the various stages of the standards development process." We understand that the Government contemplates that some Standards Committees will address individual sectors of the economy e.g. the hotel sector or the restaurant sector. Other Standards Committees are expected to address a class of disability barriers that similarly cut across a range of different sectors of the economy e.g. barriers in the built environment, or barriers to employment. This is a good approach. Some barriers are sector-specific and may be better dealt with by a sectoral Standards Committee. Other barriers similarly arise in many sectors, such as barriers to accessibility of the built environment or barriers to accessibility of websites. It may be more efficient to have these cross-sectoral barriers addressed at a single Standards Committee that is dedicated to that area. Of course, any sectoral Standards Committee should have the flexibility to develop sector-specific solutions as "add-ons" where worthwhile. However, s. 8 of the bill is worded awkwardly. It doesn't make clear that a Standards Committee could be appointed to address a class of barriers that similarly cut across several sectors of the economy. It is desirable for the minister to be able to appoint such a Standards Committee, so that each sectoral Standards Committee doesn't have to re-invent the same wheel in the case of similar barriers arising in multiple sectors. To give the minister this flexibility, it is therefore recommended that: 5) Section 8 of the bill's wording be clarified to: (a) make it clear that the minister has the option to appoint a Standards Committee to address a class of barriers that can similarly arise in multiple sectors of the economy such as barriers in the built environment or website barriers; (b) let a sector-specific Standards Committee then add to the cross-sectoral Standards Committee's standard where circumstances in that specific sector warrant, and vice versa. The bill gives the minister unlimited discretion over the terms of reference of each Standards Committee, without giving him or her any guidance on how to exercise that discretion. Section 8(6) of the bill provides: "8(6) The Minister shall fix terms of reference for each standards development committee and shall establish in the terms of reference the deadlines that each committee must meet throughout the various stages of the standards development process." It isn't practical for the bill to exhaustively detail the mandates of all Standards Committees. It is desirable for the minister to have flexible discretion over the terms of reference of Standards Committees. However, it is also desirable for the bill to at least set some minimum bedrock requirements for the mandates of Standards Committees. It would also be helpful to ensure that the minister consults with the Standards Committee's members when developing its terms of reference, to benefit from their practical experience. It is therefore recommended that: 6) Section 8(6) of the bill be amended to include mandatory minimum terms of reference for Standards Committees, to give the minister discretion to add to these statutory minimum terms of reference, and to require the minister to consult with the Standards Committee before fixing its terms of reference. Section 8(6) of the bill requires the minister to set terms of reference for Standards Committees. However, it doesn't fix time lines for doing so. It is beneficial for there to be some outside limit on the time that the minister can take for doing this, at least for the initial Standards Committees that will be established. It is therefore recommended that: 7) Section 8(6) of the bill be amended to impose a time line for the minister to set the terms of reference for a Standards Committee and for these terms of reference to be made public. 4. PROCESS FOR DEVELOPING ACCESSIBILITY STANDARDS Attention now turns to what happens once the minister has created a Standards Committee, chosen its members, and set its terms of reference. The bill provides that once a Standards Committee is established, it shall develop accessibility standards in accordance with ss. 9 to 13 of the bill. The bill's overall framework is positive. Past experience with the existing Ontarians with Disabilities Act 2001 with related legislation such as the Building Code and the Ontario Human rights Code, as well as the experience in other parts of the world such as Australia with accessibility standard-setting, demonstrate the need for these new provisions. They also show the need for some important additional features to be added to the bill to ensure that they work effectively. The concerns in this regard which amendments are needed to address include the following: Making the Standards Development Process Arms-Length from the Government of the Day It is important that the accessibility standards development process be undertaken at an appropriate arms-length from the Ontario Government. This is not the case now under Bill 118. Under the bill, the entire accessibility standards development process is now carried on under the minister's open-ended discretion, direction, supervision and ultimate control. The Government should of course have a role to play in the standards development process. However, it too must obey the standards once set. This proposal will help ensure that the draft standards which Standards Committees develop and recommend are as good as possible. If the standards development recommendation process is made arms-length from the Ontario Government, it will help protect it from the back and forth pendulum of partisan politics. The ultimate decision of whether to adopt a proposed standard would, under the recommendations below, still ultimately rest with the Government of the day. It will thus be inevitably subject to that political process at that stage. However, each Standards Committee should be able to first develop standards recommendations based on their best expert opinions, without being controlled by the Government of the day. Once the Government has received the best expert recommendation available, it should remain up to the Government to decide whether to heed that advice, and to take the political heat for its action or inaction on that advice. One option for accomplishing this would be for a new public official to be created who would function at arms-length from the Government. This official could be called the Disability Accessibility Advisor, and could have a fixed term appointment. This official could oversee and support the work of the Standards Committees. He or she could be given a mandate to give independent advice to the minister and the government. It is not intended and certainly not necessary that the creation of this public official lead to the establishment of an entire new Commission and a large new government bureaucracy. This official will require appropriate staff support. However, the Standards Committees will require appropriate support and assistance in any event, whether the public servants who provide that service work for the minister or this new public official. It is also important that this official not serve as, and not be used as, a public speaker or public relations spokesperson to advertise for the government of the day. If the Accessibility Advisor position isn't created to oversee the standards development process, then other measures should be developed and implemented which would serve to make the standards development process arms-length from the Government. It is therefore recommended that: 8) The bill be amended to make the standards development process arms-length from the Ontario Government. One option for achieving this would be to amend the bill to establish an independent public officer, to be called the Disability Accessibility Standards Advisor. This official could operate at arms-length from the Government, and serve for a fixed term e.g. five years. The Accessibility Advisor could be assigned lead responsibility for developing standards, including supporting each Standards Committee. The Accessibility Advisor could be required to make recommendations on which Standards Committees should be established, beyond those which the amended bill would require be established. Setting Time Lines for Standards Committees' Work The work of Standards Committees will be challenging and potentially time-consuming. It is nevertheless important that the bill fix time lines within which Standards Committees must complete at least some stages of their work. Otherwise, there is the risk that the standards development process could drag on indefinitely. At present, s. 8(6) of the bill requires the minister to set time lines for a Standards Committee in its terms of reference. There is no magic "correct" time line in this regard. We understand that there needs to be reasonable flexibility in the legislation in this regard. It is therefore recommended that: 9) Section 9 of the bill be amended to: (a) fix reasonable time lines for Standards Committees to complete important stages of their work, including deadlines by which the first accessibility standards must be completed; (b) empower the minister to grant reasonable extensions of these time lines for an individual Standards Committee, when that Standards Committee requests such based on sufficient reasons. (c) require the minister to give reasons for any extension granted. Empowering Persons with Disabilities in the Standards Development Process It is critical to the success of each Standards Committee that there be sufficient and effective involvement of persons with disabilities. We have been cautioned from the experience in Australia that it is necessary to take proactive steps to ensure that each Standards Committee is balanced, and that persons with disabilities who are at the table can truly fully participate. We anticipate that from the disability perspective, there will be individuals with disabilities at these tables, as well as representatives of disability community organizations. It is important that both be present. We aren't concerned only about the raw numbers of persons with disabilities who are at the table, as compared to representatives of other stakeholder perspectives. As significantly, disability community organizations and individuals with disabilities who will participate in Standards Committees will need reasonable funding to take into account the time and effort they contribute to this process, and to ensure that they can undertake the needed research and preparation to be able to effectively contribute. Disability community organizations that will take part in this process are overwhelmingly non-profit charities with very tight budgets. Individuals with disabilities face staggering unemployment rates, multiples of the national average. The fortunate ones who have jobs will face difficulties volunteering the time needed to take part in a Standards Committee, especially if Standards Committees meet during business hours. There is some precedent for this kind of funding. The current ODA 2001 provides provincial funding for members of the Accessibility Council of Ontario. Section 31(3) similarly provides for members of the proposed new Accessibility Standards Advisory Council. Neither the ODA 2001 nor this bill requires municipalities to do the same for members of municipal accessibility advisory committees. The disability sector will need financial support to enable them to meaningfully participate. This certainly doesn't have to amount to a large allocation from the provincial budget. It is important that any grant or funding program ensure that poor persons with disabilities who are on Ontario Disability Support Plan (ODSP) can receive such funding without compromising their ODSP eligibility. Many persons with disabilities are poor and depend on social assistance. Their input in the standards development process is critical. Barriers to their full participation in this process should be prevented. It is therefore recommended that: 10) The bill provide that reasonable Ontario Government funding be provided for persons with disabilities and disability community organizations that take part in a Standards Committee. An option for achieving this would be to provincially compensate and cover reasonable expenses for all members of Standards Committees, and to provide a program of research grants for disability organizations that take part in a Standards Committee. Receipt of that funding should not compromise a person's eligibility for ODSP. The Accessibility Advisor could oversee that funding through a grants process to ensure that it operates at arms-length from the government. To further empower persons with disabilities in the process of developing accessibility standards, it is critical that the bill make it clear that both the new Standards Committees, and the new Ontario Accessibility Standards Advisory Council, are empowered to and should undertake public consultations as part of their work, including consultations with persons with disabilities. Under the current ODA 2001, the previous Government, and a previous chair of the Accessibility Advisory Council appointed under that legislation, took the position that that Council didn't have a mandate to undertake public consultations. (For the correspondence with the ODA Committee on this issue, visit: www.odacommittee.net/letters/Jan-30-2003.html, and www.odacommittee.net/letters/Mar-18-2003-b.html This ran contrary to the purpose for that Council's existence as a vehicle for the disability community to have input into the implementation of the ODA 2001 and the time lines and standards to be set for barrier removal and prevention. When Bill 125, the previous Government's proposed ODA 2001, was before Standing Committee, the Liberal Party, like the NDP, proposed an amendment to make it clear that the current Accessibility Advisory Council (now to be replaced under Bill 118 by a new Accessibility Standards Advisory Council) would have a mandate to hold public consultations. Building on the Liberals' and NDP's proposed amendments to the ODA 2001, it is therefore recommended that: 11) Sections 8 and 31 of the bill be amended to make it clear that Standards Committees and the new Accessibility Standards Advisory Council have the mandate to hold public consultations, including consultations with persons with disabilities, and can do so without requiring the minister's prior approval. Ensuring Openness, Transparency and Accountability of Standards Committees and of the Accessibility Standards Advisory Council It is vital that the workings of the Standards Committees, and of the new Accessibility Standards Advisory Council, be open, accountable and transparent. This will help ensure public confidence in their work. It will help inform and educate the public, including directly affected stake-holders, on the important issues that this bill addresses. It will help ensure that each Standards Committee and the Accessibility Standards Advisory Council aren't dominated or ostensibly run by the government of the day. The best, least intrusive, and most cost-effective way to achieve this is by ensuring that the work of each Standards Committee and of the new Accessibility Standards Advisory Council is conducted in public, not in secret. A Standards Committee should be able to conduct work in closed session only where circumstances require this, i.e. in accordance with the privacy obligations in Freedom of Information and Privacy legislation, e.g. in the rare event that confidential business information might be disclosed to the Standards Committee. It is therefore recommended that: 12) Section 9 of the bill be amended to require that the meetings and work product of each Standards Committee, and of the Accessibility Standards Advisory Council, including any interim reports to the minister, shall be public, and open and accessible to the public, and that a Standards Committee or the Accessibility Standards Advisory Council should have authority to hold a meeting or part of a meeting in private only where required to protect the privacy interests of individuals or organizations as are guaranteed in Freedom of Information and Privacy legislation. Further Ensuring Effective Operation of the New Accessibility Standards Advisory Council The bill creates a new provincially-appointed body, the Accessibility Standards Advisory Council, to advise the minister more generally on the bill's implementation and administration. The Standards Committees, not this Council, are charged with the key work under this bill. It is important that the minister's consultation with this Council not become a replacement for the minister effectively consulting with the public, including the disability community, on issues regarding the bill's implementation and administration. This Council isn't meant to be a mini-Parliament, elected to speak for all Ontarians with disabilities. Ontarians with disabilities need to be assured that they will retain meaningful opportunities to consult with the Government itself. It is also important that the new Accessibility Standards Advisory Council be structured in a way that ensures that it operates independently and at arms-length from the government of the day, and that the government doesn't use this Council as its public relations arm. It is therefore recommended that: 13) Section 31 of the bill be amended to (a) incorporate the same provisions for the appointment of members to the Accessibility Standards Advisory Council as are recommended above for members of the Standards Committees. (b) Ensure that the Accessibility Standards Advisory Council operates independently of and at arms-length from the Ontario Government, and that the government of the day cannot use the Council as its spokesperson. (c) remove the words "At the direction of the Minister" at the start of s. 31(4) to enable the Council to take action without first requiring a request from the Minister. Clarify Phases of Standards Committees' Work Section 9 of the bill is currently drafted to suggest or imply that a particular Standards Committee will work on producing only one single final product, being a comprehensive standard for the particular sector. If this read of the bill is correct, the Standards Committee couldn't report out a proposed standard on anything until everything is decided upon. This could hold things up for a long period. It is far preferable to clarify the bill's wording to ensure that each Standards Committee is able to report out individual proposed standards one at a time if the Standards Committee wishes. It shouldn't have to report out only one comprehensive final product. It may be that the Government contemplated that Standards Committees should be able to do so, and that s. 9's wording simply needs to be clarified. It is therefore recommended that: 14) Section 9 of the bill be amended to make clear that a Standards Committee can report out its recommendations in a series of individual recommendations over time, rather than having to report out only one comprehensive standard all at once at the end of the process. Similarly, currently s. 9 of the bill speaks in terms of fixing a single target date for compliance with a standard. It would be preferable for this to be clarified to ensure that in accessibility standards, each Standards Committee could set a series of target dates for completion of different barrier-removal activities. For example, short term measures can have shorter time lines set, rather than letting everything wait until everything is done. This is critical to making the bill's enforcement provisions effective. It is therefore recommended that: 15) Section 9 of the bill be amended to explicitly provide that a series of time frames can be set in an accessibility standard related to the removal of specific barriers, rather than only one time frame being set to apply to the removal of all barriers. It will be helpful if each Standards Committee divides its activities into stages. They should address short term results, mid-term goals, and long term goals. Section 9 now contemplates this in general. However it would benefit from further clarification. It is therefore recommended that: 16) Section 9 of the bill be clarified to provide that each Standards Committee identify short term goals, midterm goals, and long term goals. Among other things, each Standards Committee should be mandated to identify short term measures that are readily achievable and/or that are top priority , and that these be addressed by an accessibility standard that will be developed within a specified short time frame. Clarify Standards Committee's Decision-Making Process The bill says that each Standards Committee will develop a standard to be proposed to the minister. It doesn't specify how the Standards Committee is to make decisions. Need each recommendation be unanimous? Is a majority vote sufficient? What if there is disagreement on specific issues? It is quite possible that reasonable disagreements will arise among Standards Committee members, given the novel area to which this bill pertains. The bill can't and shouldn't micro-manage the Standards Committee's deliberations. Nevertheless it is desirable to include in the bill key features to address the very basics to streamline the process and accommodate the real possibility of divergent viewpoints. Where there are differences of opinion, it is important that a majority of the Standards Committee be able to report out its proposals, without being log-jammed by dissenting views. On the other hand, it is also important where there are disagreements that the minister have the benefit both of the majority's recommendations, as well as of the dissenting viewpoint or viewpoints. It is therefore recommended that: 17) Section 9 of the bill be amended to provide that: (a) a majority vote will be sufficient for the Standards Committee to report out a recommended standard. (b) A minority report can be issued in the case where there is real and substantial disagreement among the members of the Standards Committee. Appointing Effective Standards Committee Chairs Critical to the effectiveness of the Standards Committee will be the role of each Standards Committee chair. Absent an effective chair with an appropriate mandate, there is a risk in this uncharted area that a Standards Committee could encounter real difficulties in moving forward. On the other hand, the Standards Committee chair shouldn't be so domineering as to prevent full participation by all Standards Committee members in the committee's deliberations. It is therefore recommended that: 18) the bill provide for the appointment of a chair to each Standards Committee, and that there be some expeditious, non-bureaucratic mechanism for public oversight of this appointment process. Ensuring Appropriate Technical Support for Standards Committees To be effective, these Standards Committees will require appropriate technical support. Section 12 lets this happen. It gives the minister total, unfettered discretion over this. It provides: "12. The Minister may retain, appoint or request experts to provide advice to a standards development committee." As emphasised above, the work of each Standards Committee should be free of control by the government of the day. It is therefore recommended that: 19) Section 12 of the bill be amended to provide that the Accessibility Advisor provide the Standards Committee with technical support, and that the Accessibility Advisor and/or Standards Committee be empowered to retain the assistance of others when technical support is needed. In addition to funding for effective participation by persons with disabilities in the standards development process, as recommended above, Ontario Government funding priority should be given toward research and development on accessibility standards. That research will be critical to the work of all those involved in implementing this bill, and especially that of the Standards Committees. This doesn't require the creation of a large new public bureaucracy. To the contrary, new provincial funding could be judiciously used to tap into resources and expertise already available in Ontario. For example, far too little has been done in the past to tap into the extraordinary intellectual and creative resources available through Ontario's publicly-funded system of universities and colleges. Our post-secondary faculties that teach architecture, design, computer science, public policy, business administration, law, and other related topics, already have ample brain power to help. Modest funding could be carefully targeted to draw upon those untapped resources. It is therefore recommended that 20) The bill be amended to ensure reasonable Ontario Government funding for research and development in the area of disability accessibility standards. 5. MINIMUM REQUIREMENT FOR ACCESSIBILITY STANDARDS Section 3 of the bill properly provides that the bill shouldn't operate to reduce the obligations owed to persons with disabilities. It states: "3. Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed by law." We are pleased with this provision. It reaffirms that, for example, this bill cannot reduce the rights of persons with disabilities as guaranteed under the Ontario Human Rights Code. However, to effectively achieve the goal of that provision, the bill needs to make it as clear as possible to the Standards Committees and the Government that new accessibility standards cannot be lower than that which the Ontario Human Rights Code guarantees. To illustrate the need for this, there is ample unfortunate experience with architects and builders building new buildings which comply with Ontario's current Building Code's inadequate accessibility requirements. The Building Code's requirements don't measure up to the Ontario Human Rights Code. It is therefore recommended that: 21) Section 9 of the bill be amended to reaffirm and make it as clear as possible that accessibility standards developed under the bill shall ensure that the level of accessibility for persons with disabilities is equal to or exceeds the level of accessibility required by the Ontario Human Rights Code. 6. PROCESS FOR ENACTMENT OF PROPOSED ACCESSIBILITY STANDARD INTO LAW Under this bill, effective progress toward a barrier-free Ontario is entirely contingent on these accessibility standards not only being developed by Standards Committees, but thereafter being enacted into law in the form of regulations. As now drafted, sections 9 and 10 of the bill provides that once a Standards Committee has developed a proposed accessibility standard and submitted it to the Government, that standard doesn't become "law," and hence doesn't become mandatory and enforceable, until and unless the Government enacts it as a regulation. The decision whether to enact it as a regulation is left to the unfettered discretion of the Ontario Cabinet. Cabinet meets in private. Its discussions are confidential. Under the bill, once a Standards Committee submits a proposed accessibility standard to the minister, Cabinet doesn't have to render a decision on whether to enact it as a binding regulation a along any time lines. A recommended standard could be left on Cabinet's very busy desk indefinitely, without action being taken. Under the bill, the disability community would have no recourse. While it languishes on Cabinet's desk, the proposed standard remains voluntary and unenforceable. A government could study it indefinitely. This problem is easily remedied. It is recommended that the bill be amended to provide that: 22) When a Standards Committee submits a proposed accessibility standard to the Government, the Cabinet has a fixed period to review it and to enact the standard as a regulation, or to vary it. If Cabinet takes no action within that time line, the standard will automatically come into force as a regulation. If Cabinet varies it from the terms submitted by the Standards Committee or submits it back to the Standards Committee for further work, Cabinet shall give reasons for doing so. 7. STREAMLINING INITIAL ACTION TOWARD BARRIER REMOVAL AND PREVENTION This bill now contemplates the completion of an extensive process of accessibility standards development, before this bill will require organizations to take any steps toward removing or preventing barriers. In the meantime, the current ODA 2001 is expected to remain in operation. The ODA 2001 extends discretionary annual accessibility planning to public sector organizations such as provincial ministries, municipalities, colleges, universities, public transit providers, school boards and hospitals. If Ontario is to become fully accessible for persons with disabilities within the time lines that this bill contemplates, it is desirable, if not necessary, for organizations in the public and private sector to take some steps at the earliest stages of this bill's implementation, before the potentially time-consuming but important work of the Standards Committees can be completed. Such interim measures should be realistic, aimed at short-term successes, without need of the fulsome work of the Standards Committees to have been completed. Such initiatives should help organizations gear up for their eventual responsibilities once the work of Standards Committees has been completed. Such interim measures should also reinforce the work of public sector organizations as they continue in the interim period to make annual accessibility plans under the current ODA 2001. This is also important because the bill's core strategy, developing and then enforcing accessibility standards, may not reach all barriers. It isn't practical for the bill to exhaustively detail such interim measures. However, it is possible for the bill to provide a basic framework for initial action. This can be based on input that the Government received through its extensive 2004 consultation prior to drafting this bill, and from input that this Standing Committee receives during public hearings on this bill. As well ideas can be derived from a January 6, 2004 Discussion Paper which the ODA Committee published shortly after the current Government took office, entitled: "Discussion Paper on Options for Initial Short-term Low-cost Actions to Begin Strengthening of the Ontarians with Disabilities Act 2001." (See Appendix 10.) The Government could also be mandated to do further consultations on this, if needed. For example, there are some accessibility standards that could promptly be created, even on an interim basis, without the need to resort to the standards committee process, the Minister should be permitted to proceed directly to the establishment of those standards through a briefer Ministry public consultation process with affected stakeholders. Here are three possible examples of such initiatives. First, it would be worthwhile to promptly establish a standard on website accessibility. These could build on the internationally recognized W3C standards which the Ontario Government has itself opted to implement under the existing ODA 2001. Second, under the previous Government, the Ontario Government sponsored the creation of voluntary standards on customer service for customers with disabilities. These were developed by the Canadian Standards Association. The minister could work toward implementing those as an interim standard. Third, in 2001, after extensive consultations, the Ontario Human Rights Commission released revised policy guidelines on implementing the duty to accommodate persons with disabilities under the Ontario Human Rights Code. Those excellent policy guidelines mirror core principles underlying this bill. An interim standard on implementing the duty to accommodate could be readily developed based on those policy guidelines. Beyond the foregoing, the Citizenship Ministry's Accessibility directorate may have received input on accessibility standards that have been developed around Ontario and elsewhere in various contexts. There may be other examples where interim initiatives could be easily and promptly undertaken. It might be considered worthwhile to phase such interim measures in, first extending them to the public sector before extending them to the private sector. There might be a short list of readily-achievable measures that could also be developed for implementation in large private sector companies pending the development of accessibility standards by Standards Committees. This could include, for example, having larger private sector organizations adopt their own internal accessibility/accommodation policies, and having them designate an existing employee with responsibility for addressing disability accessibility issues. The development and promulgation of such readily achievable interim measures shouldn't be left to unfettered ministerial discretion, nor should the bill simply provide that the minister "consider" taking such steps. Rather, the bill should require the minister within a designated time frame to bring forward draft standards in designated areas, such as ones suggested above. It is therefore recommended that: 23) The bill be amended to require that (a) the minister make public within a designated time proposed short-term interim measures on accessibility, aimed at progress during the interim period before Standards Committees develop accessibility standards. (b) the minister thereafter undertake a time-limited public consultation on these proposed interim measures, and (c) Within a prescribed time, and without the need to submit same to a Standards Committee, the minister adopt such interim measures as he or she deems fit, with such measures to have the same force as an accessibility standard created under the bill. PART III: ACCESSIBILITY IN AREAS REQUIRING SPECIAL LEGISLATIVE MEASURES 8. REMOVING AND PREVENTING BARRIERS AGAINST PERSONS WITH DISABILITIES IN LEGISLATION A distinctive area requiring a thorough new approach is ensuring that no laws within Ontario's legislative authority create barriers against persons with disabilities' fully participating in Ontario life. By "laws," we refer to provincial legislation, provincial regulations and municipal bylaws. These are all the laws which are under the ultimate authority of the Ontario Legislature and the Ontario Government. The Charter of Rights and the Ontario Human Rights Code require that laws under Ontario's authority not discriminate because of physical or mental disability. However, the individual is forced to take government to court and litigate each of these legislative barriers, one barrier at a time, in order to get them removed. The same policy reasons which support the new regime in this bill for systematically identifying, removing and preventing barriers to employment, goods, services and facilities in the public and private sectors equally justify a proactive, systematic approach to barriers that are themselves imposed by laws. The bill's standards development process, even if strengthened through the recommendations in this brief, isn't suited to effectively fix the problems of barriers that are themselves created by provincial legislation, regulations or municipal bylaws. It isn't practical for this bill to itself list and individually amend every provincial statute or regulation, and every municipal bylaw that creates a barrier against persons with disabilities. The ODA 2001 only attempted to amend a mere handful of such laws. Under the current ODA 2001, provincial ministries and municipal governments make annual accessibility plans. In those plans they can choose if they wish to review laws within their mandate to identify barriers, and can make plans to amend those laws. However, the current ODA 2001's planning provisions don't require provincial ministries and municipalities to undertake a comprehensive review of all legislation within their mandate. The ODA 2001 doesn't require them to do anything about legislative barriers they discover, and doesn't require new legislative barriers to be prevented before they are created. The most practical, cost-effective solution is to create in this new bill a new permanent system for each level of government to monitor for and effectively address legislative barriers against persons with disabilities within their jurisdiction, perhaps as part of the requirement to make accessibility reports under s. 14 of the bill. This new system should require provincial and municipal governments to undertake a thorough review of laws within its mandate to identify barriers, to require them to act on these barriers when found, to put in place a mandatory system for screening new laws for barriers before new laws can be voted on, and to establish a procedure to make this whole process open, transparent, and hence publicly accountable. This approach is consistent with the amendments which the Liberal Party and the NDP each proposed to the previous Government's Bill 125 to strengthen the annual accessibility plan provisions of the previous Government's ODA 2001. This idea is not unprecedented. For example, governments routinely do cost impact studies on new legislation before it is passed. The reason why such barriers exist in old and new legislation is usually because no one took a systematic, hard look at that legislation, either before it was passed or afterwards, to see if it contain barriers against persons with disabilities, and to see if such barriers could be avoided. Based on the Liberal party's and NDP's proposed amendments to the previous Government's Bill 125, it is therefore recommended that: 24) Section 14 of the bill be amended to: (a) require provincial ministries and municipal governments to review all existing legislation within their mandates, within a time frame to be set by the bill, to identify any barriers against persons with disabilities created by or under that legislation. (b) require provincial ministries and municipal governments to develop plans within legislatively prescribed time lines for removing or reducing those barriers within their jurisdiction, and to provide reasons in the case of a decision not to take action on a legislative barrier. (c) require provincial ministries and municipal governments to put in place a permanent process for screening a proposed bill in future, regulation or bylaw as the case may be for barriers against persons with disabilities, prior to its being voted on. (d) to require that the foregoing will be open and transparent e.g. by requiring the results of any barrier-review under (a), (b) or (c) above to be made public without need of a Freedom of Information request. 9. ACHIEVING AN ACCESSIBLE BUILT ENVIRONMENT For this bill to achieve its goal of a fully accessible Ontario for persons with disabilities within 20 years, one important area that must be effectively addressed is the removal and prevention of barriers in the built environment. In so noting, we once again strongly emphasise that physical accessibility is only one of the many areas that needs to be effectively addressed. Unfortunately, a disproportionate amount of the discussion of this bill among some of the MPPs who spoke during Second Reading debate focused on physical accessibility. In addressing this topic here, we do not retreat from our core message that to be effective, the bill must effectively address all kinds of barriers, facing persons with all kinds of disabilities. To that end, this bill's definitions of "disability" and "barrier" appear sufficiently broad and inclusive. At present, there are serious problems with the way in which Ontario legislation deals with barriers to accessibility in Ontario's built environment. We addressed these in a submission which we submitted to the previous Government on reforming the Ontario Building Code, which is included as Appendix 9. In summary, there are too many separate, piecemeal laws that differently address accessibility of the built environment. None of them are adequate to meet the task. These include, for example: (I) The Ontario Building Code: (which some in the construction and development field think is the only law they need to obey.) It doesn't apply to pre-existing buildings that aren't renovated, and to residential construction even when undertaken by developers for later re-sale, e.g. residential homes. Its accessibility standards constantly lag behind the times. It doesn't require any retrofit of existing buildings, except where renovated. It tends to deal mainly with the inside of buildings, not all the surrounding built environment. That latter area appears to be left to the separately enforced Planning Act and related legislation. The previous Government initially contemplated eliminating rather than strengthening the Building Code's disability accessibility requirements. Pressure from the disability community led it to back down. Afterwards, there were promises that the Ontario Building Code would be improved to better address disability barriers. (See the speech to the Legislature by previous Citizenship Minister Isabel Bassett on First Reading of Bill 83 on November 23, 1998.) Disability accessibility reforms to the Building Code are still understood to be forthcoming. (ii) The Ontario Human Rights Code: which requires barriers to be removed and prevented, including physical barriers. However, it provides no statutory detail on who must do what and when. (iii) Condominium Legislation: This legislation governs the operation of condominiums, which are used by many as their places of residence. We have received reports of this legislation being read as operating to impede efforts by condominium owner/residents and property managers who wish to take action to make these properties accessible to persons with disabilities. (iv) The Planning Act and related legislation: These laws govern the environs of land development including the surrounding outside, and don't have sufficient specific mandatory accessibility standards for the built environment. Beyond the foregoing, professionals and others involved in the area of designing, building and regulating the built environment too often don't have the requisite training and knowledge about barrier-free design and legal requirements. That includes, for example, architects, municipal building inspectors, and the like. The resulting problems are exemplified in the December 23, 2004 letter which the ODA Committee recently received from Keith Norton, Chief Commissioner of the Ontario Human Rights commission, to the City of Toronto chief building official, included as Appendix 11. Under Bill 118, there is a real risk of continued duplication of effort. New accessibility standards for the built environment may be developed by Standards Committees under this bill, while another part of the Ontario Government simultaneously revises the Ontario Building Code. There is no assurance that the resulting rules will be compatible with each other. There is no assurance that those involved in the design and construction of new buildings will even know about the new standards, if not included in the Ontario Building code. This bill cannot be expected to itself set out in it all the details for the built environment to become accessible. However, it can put in place a system for harmonizing and strengthening the currently disparate, insufficient and uncoordinated provincial legislation that speak to varying degrees to accessibility of the built environment. It can also require that those working in this area have the requisite training, knowledge and expertise. It is important that reforms in this area attempt to address, among other things, accessibility where feasible in new home construction. Many if not most of Ontario's residential homes have few if any accessibility features. It is not being suggested here that existing homes where people now live be retrofitted if the owner doesn't want to do so. Our proposals are far more modest. We propose that when a developer develops properties for later resale as residential homes, reasonable accessibility features be included in the new home design to the extent practicable. In contrast, where a person already owns a property, and is going to have a new home built on it, the professionals who will design that home should be required to advise the owner of options for accessibility features. It will be up to the owner to decide whether to incorporate them or not. It is therefore recommended that: 25) The bill be amended to: (a) require as part of the new process for reviewing legislation for barriers against, persons with disabilities, that by a deadline to be set in the legislation, the Ontario Building Code, the Planning Act, and Ontario's condominium legislation be all harmonized vis à vis more effectively achieving accessibility of the built environment; (b) require that legislative accessibility standards for the built environment be progressively extended over time to apply to old public buildings, not just new buildings or new renovations; (c) ensure that accessibility standards apply to new residential construction by developers, particularly vis à vis properties developed for later resale, e.g. condominiums and houses built not under the direction of the person intending to reside in the property; (d) require that where a new residential home is designed under the direction of the person who will be living in it, those involved in designing the building advise the owner of options for accessibility features that could be incorporated in the new home. (e) require municipal building inspectors to receive appropriate training in disability accessibility legal requirements; (f) require professionals involved in designing the built environment, such as architects, to receive training in barrier-free design. (g) require periodic co-ordinated and comprehensive review of all legislation governing accessibility of the built environment e.g. every 5 years. Note: See also the recommendations below regarding mandating education on disability accessibility for people who train in future to design, among other things, the built environment. 10. ENSURING BARRIER-FREE PROVINCIAL AND MUNICIPAL ELECTIONS One area where persons with disabilities have encountered too many barriers to their full participation has been when they seek to take part in provincial and municipal elections. For example, they have encountered barriers to voting, to getting information about party platforms, to attending all-candidates' debates, and the like. To achieve fully accessible provincial and municipal elections advances both the Government's goals in this bill, and its 2003 election agenda for democratic renewal and reform. The ODA Committee has led the call during the last two provincial elections for a barrier-free election process. We commend Elections Ontario for taking up a number of our suggestions, during and after the 2003 election, to make progress in this area. Electoral reform is now inefficiently divided among different parts of the Ontario Government. It is desirable for a concerted, centralised strategy to be developed to achieve full accessibility for persons with disabilities in both provincial and municipal elections. We shouldn't have to mount separate lobbying efforts to achieve the same reforms vis à vis municipal elections and vis à vis provincial elections. It would be open to the minister under this bill as it now stands to establish a standards development committee to deal with the provincial and municipal elections process. However, such a "table" may not be able to fully and effectively address this subject. This is because it may well be necessary to amend provincial legislation, which would be beyond the authority of a Standards Committee. For example, ss. 24, 25 and 30 of the ODA 2001 made amendments to provincial and municipal elections legislation, to modestly improve election accessibility. The Liberal Party, as well as the NDP, proposed amendments to the previous Government's Bill 125 in 2001 in order to strengthen that bill. As explained below in this brief's discussion of the transition from the ODA 2001 to this bill, this bill now provides that the entirety of the ODA 2001 will eventually be repealed. This would include eventual repeal of the ODA 2001's modest reforms to provincial and municipal elections. It is preferable not only for those reforms to be retained, but for the Liberals' proposed amendments to provincial and municipal elections legislation to be passed. This would flow from the Liberals' election commitment to include, at a minimum, the reforms to the ODA 2001 that they proposed before the Standing Committee in 2001. In addition to the recommendations below regarding the transition from the current ODA 2001 to this bill, and drawing on the Liberal Party's and NDP's proposed amendments to the previous Government's Bill 125, with additional wording to ensure coverage for all disabilities, it is therefore recommended that: 26) The bill be amended to: (a) provide that section 55.1 of the Election Act be amended by adding the following subsections: Accessibility obligations (0.1) Despite anything in section 34, all ballots shall be in a form that enables electors with disabilities, wherever possible, to mark the ballots by themselves and in private. Polling places (0.2) Despite anything in section 13, the returning officer shall ensure that no polling place is located in a location that is not accessible to electors with disabilities, unless satisfied that it is impossible to locate the polling place in the polling division within eight kilometres of the location that the returning officer would have chosen, if it were not for this subsection. Same (0.3) Every returning officer for an electoral district shall ensure that all polling places in the electoral district provide American Sign Language interpretation or other similar accommodation where needed for electors who are deaf, deafened or hard of hearing, or such other reasonable accommodation that a voter with a disability requires to enable them to vote at no charge to the voter who requires such accommodation. (b) provide that subsection 45 (2) of the Municipal Elections Act, 1996, be struck out and the following substituted: Special needs (2) In choosing a location for a voting place, the clerk shall ensure that, (a) despite anything in section 41, all ballots shall be in a form that enables electors with disabilities, wherever possible, to mark the ballots by themselves and in private; (b) the voting place is accessible to electors with disabilities unless the clerk is satisfied that is impossible to locate the voting place within eight kilometres of the location that the clerk would have chosen, if it were not for this subsection; (c) the voting place provides American Sign Language interpretation or other similar accommodation where needed for electors who are deaf, deafened or hard of hearing, to enable them to vote at no charge to the voter requiring this accommodation; (d) require the Ontario Government to undertake a co-ordinated review of barriers in the provincial and municipal election process, including in current legislation and practices. Among the barriers persons with disabilities have encountered during election campaigns have been barriers for which elections officials have no responsibility e.g. barriers in getting access to all-candidates' debates, and barriers in access to campaign literature. To address this, provisions should be enacted explicitly extending election accessibility requirements to election activities of political parties. It is therefore recommended that: 27) The bill be amended to explicitly extend election accessibility requirements to election activities of political parties e.g. accessibility of campaign literature and campaign events such as all-candidates' debates. 11. ACCESSIBILITY OF THE ONTARIO LEGISLATIVE ASSEMBLY Section 4 of the bill provides that this bill binds the Crown and the public and private sectors. However, it doesn't state that it applies to the Legislative Assembly of Ontario. Given the centrality of the Legislature to our democracy, and given the ongoing accessibility problems at the legislature, it is important that the bill apply to the Ontario Legislative Assembly. It would also be very beneficial if the bill set the deadline by which the Legislature will become accessible. This would advance the Government's commitments on disability accessibility, and on democratic renewal. It is therefore recommended that: 28) Section 4 of the bill be amended to provide that the bill also applies to the Legislative Assembly of Ontario. 29) The bill be amended to set the deadline by which the Legislative Assembly will become fully accessible. PART IV: IMPLEMENTATION 12. COMPLIANCE/ENFORCEMENT A major improvement of this bill over the current Ontarians with Disabilities Act 2001 is that Bill 118 includes a serious compliance/enforcement regime. Once accessibility standards are developed and adopted into law by regulation, the Bill makes compliance with those standards mandatory (s. 13). The bill would then require organizations, covered by those accessibility standards to make accessibility reports, to file them with the Government and to make them public (ss. 14-15). The Government is empowered to appoint directors to oversee the bill's enforcement, and inspectors who can inspect an organization (ss. 15-20). Organizations which aren't in compliance can be subject to enforceable compliance orders and administrative monetary penalties (ss. 21 to 25). An organization subject to such orders can appeal them to a tribunal, which the Cabinet is mandated to appoint at an unspecified future date (ss. 25 to 28). There are straightforward ways in which this new compliance, enforcement regime could be fine-tuned, without engaging significant cost or other such concerns. Clarify What Accessibility Reports Shall Include The bill provides that once accessibility standards have been enacted, organizations covered by those standards will be expected to produce and file accessibility reports. These reports appear to take the place of the annual accessibility plans which public sector organizations now produce under the current Ontarians with Disabilities Act 2001. Section 14(3) of the bill now leaves it to the unconstrained discretion of the Minister to decide on what shall be included in an accessibility report. It doesn't indicate by when the minister shall decide what needs to be included in an accessibility report. The bill should not leave this open-ended, and shouldn't defer it potentially indefinitely. The whole idea of enshrining accessibility planning into this kind of legislation originated with the ODA Committee. (See the ODA Committee's April 1998 "Blueprint for a Strong and Effective Ontarians with Disabilities Act.") However the ODA Committee criticized the current ODA 2001's accessibility planning regime, because it was too weak and ineffective to achieve all that good accessibility planning has to offer. The shape of accessibility planning will undoubtedly change to some extent as this bill's new regime of detailed accessibility standards comes on line. However, even once comprehensive accessibility standards are developed and in force, there will remain an important role for accessibility planning. This will especially apply to large government and broader public sector organizations which have a major public policy and/or public service component in their mandates e.g. provincial ministries and municipal governments. Ongoing accessibility planning is also very important because accessibility standards, while important, can't address all the barriers which people with all kinds of disabilities face. Accessibility planning can cover that which accessibility standards don't or can't cover. Much effort and energy has been invested by a number of broader public sector organizations into accessibility planning. We commend those organizations for their efforts. We also commend the many persons with disabilities who volunteered their time to give input to those broader public sector organizations. We want this bill to build upon the work and the momentum that those efforts created. We also fear that some broader public sector organizations might otherwise now stop or slow down their efforts at accessibility planning under the ODA 2001, thinking in error that because this new bill is before the Legislature and because the ODA 2001 is unenforceable at present, they needn't comply with it. It is important through this bill to send the message to those organizations that they should build upon and expand their accessibility planning, not slow or stop it. When the previous Government's Bill 125 was before the Legislature, the Liberal Party and the NDP each proposed a comparable series of amendments to beef up its accessibility planning requirements. Building on those, it is therefore recommended that: 30) Section 14 of the bill be amended to set the minimum requirements that an accessibility report shall contain. This amendment should maintain and strengthen accessibility planning activities. At least for broader public sector organizations, this content should be drawn from the current requirements for an accessibility plan under the current ODA 2001, as enhanced by additional requirements drawn from the Liberal Party's and NDP's comparable proposed 2001 amendments to ss. 10, 11, 14, 15, and 27 of Bill 125, which were designed to strengthen that system for annual accessibility plans. These plans or reports should address all aspects of the public sector organization's activities, whether or not they are covered by an accessibility standard created under Bill 125. 31) Part IV or Part V of the bill should be amended to provide that by a deadline to be set in the bill, which in any event shall be no later than a legislatively specified time period after the first accessibility standards go into effect, the Accessibility Advisor (if established under the preceding recommendations) shall recommend to the Minister further specificity on what these reports shall include. The Minister then shall have a further legislatively specified time period to adopt or vary the Accessibility Advisor's recommendation. If the minister takes no action within that time, the Accessibility Advisor's report shall be deemed adopted as enforceable. If the Minister varies the Accessibility Advisor's recommendation, the minister shall give written reasons therefor. If no Accessibility Advisor position is created under these recommendations, then the bill should require the minister to consult with stakeholders along prescribed time lines and then to establish the additional requirements for accessibility reports, beyond those enshrined in the bill itself. Fix Time Lines and Criteria for Appointing Key Enforcement Officials The bill now gives the minister discretion to appoint key players, such as directors and inspectors, to have authority over Bill 118's enforcement. It doesn't require the minister to do so by any particular date. This should not be left to the indefinite future. It may not be practical to fix a calendar date to serve as the deadline for these steps to occur. What is critical is that these steps be completed on, or shortly after, the date when the first accessibility standards come into operation and become mandatory and enforceable. Otherwise those accessibility standards won't in reality be enforceable at all, since there will be no one to enforce them. We have learned through recent experience that we cannot expect that such steps would simply occur. During 2001 Standing Committee proceedings, the current ODA 2001 was amended to add to it a weak, minimal enforcement mechanism, i.e. s. 21 of the ODA 2001. It imposed a fine on public sector organizations that fail to make an annual accessibility plan, or municipalities with a population over 10,000 that fail to appoint a municipal accessibility advisory committee. That enforcement provision was never proclaimed in force, despite our repeated calls for its proclamation. Because the ODA 2001's fine provision wasn't proclaimed in force, no fines could be levied on those public sector organizations which didn't comply with the ODA 2001's requirement that the first accessibility plans be made public by September 30, 2003. The bill also doesn't name the tribunal that shall have jurisdiction over enforcement proceedings under this law. Section 26(1) of the bill requires the Cabinet to designate a tribunal or tribunals. It doesn't specify a deadline by which this must be done. It also doesn't set out criteria governing Cabinet's choice of tribunal. We recognize that it will be some time before this tribunal will be needed. It isn't strictly necessary for it to be chosen now. However, it is preferable that this not be left open-ended. It is also important that the tribunal have requisite expertise in disability accessibility issues. It is therefore recommended that: 32) Part IV or V of the bill be amended to require the minister or Cabinet, as the case may be, to appoint directors, inspectors and to designate a tribunal or tribunals to enforce this legislation to appoint these officials, and that it fix a deadline by which they be appointed that is no later than shortly after the first accessibility standards go into effect. 33) Part V of the bill be amended to provide that the tribunal that shall be selected will presumptively be a new tribunal, to be called the Ontario Disability Accessibility Tribunal. Cabinet may, instead, by the prescribed deadline, designate an existing tribunal to serve as this tribunal, if Cabinet is satisfied that the existing tribunal has sufficient expertise in disability accessibility. Clarify Scope of Incentive Agreements Section 33 of the bill includes a positive new power for the minister to enter into incentive agreements with organizations that are prepared to agree to exceed the requirements of accessibility standards established under this Act. Section 33(3), however, gives the minister an inappropriate open-ended discretion to exempt an organization from filing an accessibility report or other filing requirements. This loophole threatens to undermine the effectiveness of these agreements as a tool to promote the bill's goals. It enables these agreements to become a means for making it hard to enforce the Act in the case of organizations entering into these agreements. It is therefore recommended that: 34) Section 33 of the bill be amended to eliminate the minister's power to include in an incentive agreement a provision exempting an organization from the requirement to file an accessibility report, or alternatively that this power be substantially curtailed. If exemptions are to be available, the minister should be required to give public reasons for granting one. The bill should set out criteria to govern the discretion to grant such exemptions, which ensure that exemptions are only granted if they are necessary, unavoidable, and if they best advance this bill's goals. Clarify Scope of Compliance Orders Section 21(4) of the bill authorizes issuance of an order against a person or organization that isn't complying with an applicable accessibility standard. It permits the order to require the person or organization to comply with the standard in question. It doesn't make it clear that this order can specify specific actions that must be undertaken for an organization to come into compliance with the standard. It is therefore recommended that: 35) Section 21(f) of the bill be amended to make it clear that an order can specify specific actions that must be undertaken to come into compliance with the applicable accessibility standard. Providing for Effective Monitoring of the Bill's Implementation There is a pressing need for a means to be created under the bill for effective public ongoing monitoring of the bill's administration and implementation. This should be done by a public body or official who is independent of and arms-length from the government of the day. It should give the public, the government and all involved in the bill's implementation an objective periodic report card on progress, recommendations on gaps that need to be addressed, and helpful recommendations on how the bill and its implementation and administration could be improved. This will enhance the public accountability in the bill, will reward and acknowledge successes and accomplishments, while pointing out areas for improvement to keep Ontario on track towards its 20 year goal of full accessibility. There are several different options for achieving this. If the Accessibility Advisor position is establish as recommended above, this function could be assigned to that person. If an Accessibility Advisor is not appointed to manage the standards development process, an Accessibility Advisor position could be created for this more limited monitoring function. A third option would be to appoint one of the commissioners of the Ontario Human Rights Commission as a full time Disability Accessibility Commissioner. That person could spearhead this monitoring activity, using the existing facilities of the Ontario Human Rights Commission for support. There is no need for this position to be established immediately. It could easily be deferred for as much as three years into the bill's implementation. Until then such a monitoring function may largely be premature. It is therefore recommended that: 36) The bill be amended to designate the appointment three years after the bill's enactment of an independent public official who is arms-length from the Ontario Government with a mandate to monitor the bill's administration and implementation, and to periodically publicly report on progress made to date and areas for improvement. 13. POWER TO MAKE REGULATIONS Another important part of this legislation involves the wide range of regulations that Cabinet can enact under it, to put flesh on the bill's bones. It is fully understandable that the bill itself cannot spell out every last detail governing the bill's implementation. Detailed regulations passed by the provincial Cabinet, and having the force of law, have a role to play. There are a few focused ways in which the bill's regulation-making power, spelled out in s. 40 can be easily improved to make it more effective. Create Duty to Enact Regulations under the Bill First, s. 40 now sets out a wide range of regulations that can be passed to bring this legislation into operation. However, it doesn't require Cabinet to ever make any of these regulations. Some of the categories of regulations permitted under s. 41 are not pivotal to getting this bill's implementation off the ground. Yet other categories of regulations are more important, and will need to be passed. It is not unheard of for the Legislature to give the Ontario Government a power to make regulations, and yet for the Government to never use that power. For example, for over 22 years, the Ontario Government has had power under the Ontario Human rights Code to make regulations giving further specificity to the Ontario Human Rights Code's duty to accommodate persons with disabilities. No such regulations have ever been passed by any of the five governments that have been in power since the Legislature gave the Ontario Cabinet that power in 1982. More recent experience under the current ODA 2001 is similarly telling. The ODA 2001 gave the Ontario Cabinet wide power to make a broad range of regulations to implement that bill. Those who sponsored that legislation emphasized the central importance that regulations would play in its implementation. In the over three years since the ODA 2001 was passed, no regulations were ever passed or even circulated in draft form for public comment. For example, s. 16 of the ODA 2001 provided that organizations it called "agencies" must make an accessibility policy. However, those requirements didn't go into effect until the provincial Cabinet passed a regulation defining which organizations were an "agency" for purposes of s. 16 of the ODA 2001. Put simply, no organization was an "agency" that had to make an accessibility policy until and unless the Cabinet enacted a regulation defining it as an agency. In the over three years since the ODA 2001 was passed, no regulation was ever enacted defining "agency." Thus, s. 16 of the ODA 2001 never went into operation. The previous Government which brought in the ODA 2001 had said that it had the development of a regulation defining the term "agency" under study as far back as 2002, and that it would make the development of that regulation a priority. For correspondence from the previous Government indicating this, visit www.odacommittee.net/letters/Aug-20-2002.html In various amendments that the Liberal Party like the NDP, proposed to Bill 125, the previous Conservative Government's proposed ODA, it was proposed that time lines be imposed for the Ontario Government to pass certain core regulations, needed to expedite the implementation of the ODA 2001. Building on the Liberal Party's and similar NDP proposed amendments to the previous Government's Bill 125, it is therefore recommended that: 37) Section 40 of the bill be amended to set deadlines by which the Ontario Government would develop and pass the most important regulations needed to ensure Bill 118's effective implementation. For example, top priority should be given to ensuring timely enactment (i.e. within the first year, if not sooner) of regulations under s. 40(1)(a) i.e.: "governing the time-frames for the development of proposed accessibility standards by standards development committees established under section 8, for the implementation of accessibility standards and for the review of those standards and providing different time-frames for different accessibility standards relating to different industries, sectors of the economy or classes of persons or organizations." This would leave the Government latitude over what those regulations would include. Ensure Opportunity for Input into Proposed Regulations Second, there is a need to amend s. 40 of Bill 118 to ensure an opportunity for input from persons with disabilities and other interested parties and stakeholders into proposed regulations before Cabinet enacts them. The current ODA 2001 provides for an important opportunity for public input before a regulation under that law is passed. Section 23(2) of the ODA 2001 states: "(2) The Lieutenant Governor in Council shall not make a regulation under subsection (1) until it has published a draft of it in The Ontario Gazette and allowed interested persons a reasonable opportunity to make comments on the draft to the Accessibility Directorate of Ontario." The ODA Committee fought for such an opportunity to be included in such legislation. In 2001, the Liberal Party, as well as the NDP, proposed an amendment to the foregoing provision of the ODA 2001 at the ODA Committee's request, to strengthen that provision. In terms comparable to the NDP, the Liberal Party proposed that the foregoing provision be amended by adding the following subsections: Opportunity for comments (1.1) The Lieutenant Governor in Council shall not make a regulation under subsection (1) until it has, (a) published a draft of it in The Ontario Gazette at least 90 days before making the regulation; (b) allowed interested persons a reasonable opportunity to comment on the draft; (c) held a public hearing to allow interested persons an opportunity to comment on the draft, if the Barrier-Free Council so requests in writing; (d) made a report to the public, after the period for comments under clause (b) or (c), that summarizes the comments and indicates whether the Government of Ontario accepts or rejects the recommendations for changes made during the period for comments. Restrictions on regulations (1.2) The Lieutenant Governor in Council shall not make any regulation under subsection (1) that has the effect of creating a barrier to persons with disabilities, preventing or delaying the identification and removal of a barrier in any sector or that conflicts with the purposes of this Act. Drawing on the Liberal Party's and comparable NDP proposed amendments to the previous Government's Bill 125, it is therefore recommended that: 38) s. 40 of the bill be amended to provide that before Cabinet can enact a regulation under s. 40, it should make public in an accessible format a draft regulation, and provide a reasonable opportunity for public input, in general accordance with the proposed amendments to Bill 125 that the Liberal Party, like the NDP, proposed in December 2001. Remove or Substantially Constrain Cabinet's Power to Grant Exemptions from the Bill Third, the bill now includes a problematic, unnecessary power that lets Cabinet give "carte blanche" exceptions to the bill's requirements. This loophole, s. 40(1)(r) of Bill 118, empowers the provincial cabinet to pass regulations "exempting any person or organization or class thereof or any building, structure or premises or class thereof from the application of any provision of this Act or the regulations." This threatens to be a potentially massive loophole that could undermine the strength and effectiveness of Bill 118. A government could grant sweeping exceptions under this provision. It could do this in closed Cabinet meetings, without any public debate, without any prior notice to the public, and without having to give reasons for the exemptions it grants. For example, it could unilaterally grant a total exemption to the entire Ontario Government. There is no reason why Cabinet should have the power to exempt any organization or building from this Act. The process for developing standards is designed to ensure that these standards are balanced and sensitive to the needs of different organizations. If despite this, this exemption power is retained in some form in this bill, it should be limited to ensure that it is not misused. Under Bill 125, the previous Government's proposed Ontarians with Disabilities Act, Cabinet was given a similar unwarranted power to grant exemptions. Section 22(1)(i) of Bill 125 provided that Cabinet could make regulations: "(i) exempting a person, a ministry, a municipality, an organization specified by a regulation made under clause (g), a public transportation organization, a Scheduled organization, an agency, any other organization, a building, structure or premises or a class of any of them from the application of a specified provision of this Act or the regulations[.]" The Liberal party and the NDP each proposed a comparable amendment to that provision on December 11, 2001. This would have amended clause 22 (1) (i) of Bill 125 by adding at the beginning "upon approval of the Minister and after consulting with the Barrier-Free Council of Ontario and making written reasons available to the public[.]" Drawing on the Liberal Party's and NDP's comparable proposed amendments to the previous Government's Bill 125, it is therefore recommended that: 39) Section 40(1)(r) be removed from the bill. In the alternative, if there is to be any exemption power, it should be substantially circumscribed and constrained. Before an exemption can be granted, an organization should be required to apply for the exemption, with notice to the public, and to give good reasons for the exemption. Exemptions should be time limited. The Government should be required to give an opportunity for public input before deciding on an exemption request, should have to have a good reason for granting the exemption, and should have to give reasons for granting an exemption. The disability community should have a right to appeal an exemption to an independent and impartial body, such as the tribunal to be designated under this bill. 14. EMPOWERING MUNICIPAL ACCESSIBILITY ADVISORY COMMITTEES Section 29 of the bill continues the municipal accessibility advisory committees (AACs). These AACs have played a positive role. However, feedback from them to the ODA Committee has demonstrated that they have received a wide spectrum of responses from the municipalities which they advise. Some AACs find their municipalities and municipal councils receptive to their advice, and forthcoming when their AAC requests information. Other AACs have found their municipality and/or municipal council less receptive to their advice, and unforthcoming when asked to provide information. Under the current ODA 2001, municipalities with a population over 10,000 are required to set up an AAC. However, they aren't obliged to heed their advice, or to give reasons for rejecting their advice. Moreover, the current ODA 2001 doesn't require a municipality to provide any resources to its AAC. The ODA 2001 ostensibly contemplates that AAC members will be volunteers who may have to personally finance their expenses in participating in the AAC. When the previous Government proposed this AAC regime in Bill 125 back in 2001, the Liberal Party and NDP each proposed similar amendments at the ODA Committee's request. Those amendments would have better empowered the AACs, to make them more effective. Had those amendments been adopted, the difficulties which some AACs have reported would have been reduced or eliminated. Under this bill, once the ODA 2001 is repealed, AACs will advise on implementation of accessibility standards and on some built environment accessibility issues. It is desirable for AACs to be empowered to advise their municipalities on all aspects of barrier removal and prevention in the municipality. Drawing on the Liberal Party's and NDP's comparable proposed amendments to ss. 11 and 12 of Bill 125, it is therefore recommended that: 40) Section 29 of the bill be amended to provide that both before and after repeal of the ODA 2001, (a) Municipalities with a population under 10,000, which opt not to create a municipal accessibility advisory committee, be required to hold public consultations, including with persons with disabilities, on strategies for removing and preventing barriers facing persons with disabilities in the municipality; (b) The mandate of municipal accessibility advisory committees be extended to include advising not only on accessibility of buildings that the municipality owns, purchases, constructs or leases, but also buildings which the council occupies, whether as owner or lessee, and on barrier removal and prevention in the municipality whether or not it is then covered by an accessibility standard made under this bill; (c) If an Accessibility Advisory Committee makes recommendations to the council of a municipality, the council shall respond to the recommendations within 40 days and, if it rejects the recommendations, provide written reasons for doing so. The council shall make the committee's reports and recommendations and the council's response available to the public; (d) The council of a municipality shall pay reasonable compensation and reasonable reimbursement for expenses to the members of its Accessibility advisory committee. 15. MANDATING EDUCATION OF STUDENTS ON DISABILITY ACCESSIBILITY Much has been said during debates on Bill 118, throughout the decade-long campaign for this legislation, and for years before about the need to educate the public on the barriers impeding persons with disabilities, and about the benefits of removing and preventing these barriers. Citizenship Minister Bountrogianni, speaking about the need for Bill 118, has made the compelling point that there needs to be a substantial change in public attitudes. This needs to be akin to the change in public attitudes she has seen in her professional career, toward providing such rudimentary needs as washrooms in the workplace for women. Transitory publicity campaigns to temporarily raise public awareness about the barriers facing persons with disabilities won't single-handedly accomplish this. Community organizations, governments and individuals with disabilities have extensively tried such education campaigns of every sort for decades. From this they have learned that much more than more "awareness-raising" is needed. There is nevertheless a special role for new approaches to focussed efforts at educating the public, when combined with a strong, mandatory accessibility law. Partnered with Bill 118's new compliance/enforcement program should be a new ongoing program for educating the public on the benefits of a barrier-free society for persons with disabilities. What s sought here is not the announcement of a new, transitory initiative. To be effective, such a program needs to be something much different than a short term "feel good" series of advertisements that tell the public that disability accessibility is a good thing to do. What is needed instead is to create a clever new permanent, long term education initiative, to be mandated in legislation which targets the next generation. This would include students in school. It should also include those studying in key fields and professions whose work will have a dramatic impact on creating a barrier-free province. These measures would ensure that all future generations of Ontarians, all future professionals who could make a difference such as architects, doctors, lawyers, nurses, social workers and teachers, will know what previous generations have too often not known in this area. This would best fulfil the laudable and lofty aims of the Citizenship Minister, expressed when she kicked off Second Reading debate on Bill 118 on October 12, 2004, stating: "The next principle: public education. This area is my passion. I will use every tool available to help shape a change in attitude, a change in values. Over and over again, people with disabilities have told me that the biggest barrier of all is one of attitude. On this score, I look forward to working closely with every MPP to help foster a true culture of inclusion for people with disabilities." It is therefore recommended that: 41) The bill be amended to provide: (a) a requirement that within a specified time frame, school boards develop and implement school curriculum components on disability accessibility and the importance of a barrier-free society. It should authorize the Ontario Government to develop a sample curriculum which school boards could adopt if they wish in lieu of developing their own curriculum; (b) a requirement that (after an appropriate transition period) to qualify in future 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 should be a reasonable minimum requirement that a person know how to undertake barrier-free design; (c) a similar requirement that certain other professional training, such as to qualify to be a lawyer, doctor, other health care provider, teacher, social worker and other relevant professions, must include a specified amount of training on barrier-free provision of services to persons with disabilities; (d) time lines 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 or standards for this training and to monitor its sufficiency. 16. EXTENDING MANDATE TO PROMOTE ACCESSIBILITY TO ALL PROVINCIAL REGULATORY AGENCIES AND TRIBUNALS Bill 118 properly concentrates provincial government activity regarding the removal and prevention of barriers against persons with disabilities on those involved in development and enforcement of accessibility standards. However, it is also important for the duty to promote this accessibility agenda to be extended to all government bodies that can have an impact. Under Ontario legislation, there are a wide range of regulatory agencies and tribunals with power to make and implement public policies that can impact on accessibility. It is important to ensure that no provincial government agency adopts or implements policies that work against the goal of disability accessibility. Removing and preventing disability barriers is everyone's business. It is therefore recommended that: 42) The bill be amended to provide that when any administrative or regulatory agency or tribunal within the jurisdiction of the Government of Ontario exercises any statutory power, it shall have regard the impact of its decision on the creation or removal of barriers against persons with disabilities and to the need to achieve accessibility for persons with disabilities, including the need to remove existing barriers and to prevent new barriers within its jurisdiction or mandate. PART V: MOVING FROM THE ODA 2001 TO THE ODA 17. TRANSITION PROVISIONS ON REPEAL OF THE ODA 2001 There is a need for an orderly transition from the current Ontarians with Disabilities Act 2001 to the full implementation of Bill 118. According to s. 41 of Bill 118, the current ODA 2001 will ultimately be repealed in its entirety at some future unspecified date. The provincial Cabinet will decide on that date. Bill 118 lets Cabinet repeal the ODA 2001 in stages if it wishes. We understand from the Government that it intends to leave the existing ODA 2001 in place until the new Bill 118 is fully implemented, i.e. once accessibility standards have been developed and adopted. In the meantime, the current ODA 2001 is to be used as the transition regime. Thereafter, the entirety of the existing ODA 2001 is to be repealed. In Bill 118, a few provisions of the current ODA 2001 are re-enacted in some form, to keep them in force even after the ODA 2001 is fully repealed, particularly s. 29, governing the municipal accessibility advisory committees. It is desirable that ultimately all the provisions concerning disability accessibility be incorporated into one comprehensive statute. However, the way this bill carries out the transition from the old ODA 2001 to the new Bill 118 creates some problems. These are easily fixed. First, there are provisions in the current ODA 2001 which should be retained, not repealed. Specifically, sections 24 to 32 of the ODA 2001 amend a series of other Ontario statutes, i.e. the Election Act, the Election Finances Act, the Highway Traffic Act, the Human Rights Code, the Legislative Assembly Act, the Municipal Act, the Municipal Elections Act 1996, the Planning Act and the Social Housing Reform Act 2000. Those provisions should be retained. Otherwise, the result will be that the those other statutes will eventually revert back to their pre-ODA 2001 form. It is therefore recommended that: 43) Section 41 of Bill 118 be amended to preserve the ODA 2001's changes to the Election Act, the Election Finances Act, the Highway Traffic Act, the Human Rights Code, the Legislative Assembly Act, the Municipal Act, the Municipal Elections Act 1996, the Planning Act and the Social Housing Reform Act 2000. Second, while the ODA Committee found the existing ODA 2001 disappointing, because it didn't go far enough, it contains certain provisions that are worth strengthening, rather than repealing. Specifically, the ODA 2001 included specific provisions promoting accessibility of Ontario Government websites (ODA 2001 s. 6), documents and records (ODA 2001 s. 7), enshrining the existing Ontario Government employment accommodation fund for public servants with disabilities (ODA 2001 s. 8), and encouraging the provincial and municipal governments to invest in capital projects and procure accessible goods and services (ODA 2001 ss. 5, 9 and 13). Those ODA 2001 provisions drew upon ideas that the ODA Committee had put forward. However those ODA 2001 provisions were weakly worded and ultimately unenforceable. In 2001, the Liberal Party and NDP each proposed similar good amendments to strengthen those provisions. It is undesirable for persons with disabilities to have to campaign in future to get regulations passed that would restore the contents of ss. 5 to 9 and 13 of the ODA 2001, and to get them strengthened along the lines of the Liberal Party's and NDP's similar 2001 proposed amendments to them. It is preferable for those provisions to be incorporated now into Bill 118, complete with the strengthening measures that are found in both the Liberal party's and NDP's similar 2001 proposed amendments. Using the text of the Liberal Party's and similar NDP proposed amendments to the previous Government's Bill 125, It is therefore recommended that: 44) the bill be amended to provide that the Government of Ontario shall ensure that its internet sites and the content provided on those sites are barrier-free for users with disabilities. 45) the bill be amended to provide: (1) Ontario Government publications shall be barrier-free in format, and shall be available to the public in the formats specified by the regulations made under subsection (2). Regulations (2) Within six months after subsection (1) comes into force, the Lieutenant Governor in Council shall make regulations specifying the formats mentioned in that subsection. Other accessible formats (3) Upon receiving a request by or on behalf of a person with disabilities for an Ontario Government publication in a format required by subsection (1), the Government shall make the publication available to the person in that format within a reasonable time that is not later than three working days after the Government receives the request. Electronic form (4) Despite subsection (3), upon receiving a request by or on behalf of a person with a disability for an Ontario Government publication that exists in an electronic form, the Government shall make the publication available to the person forthwith in an electronic form that is accessible. 46) the bill be amended to provide: (1) The Government of Ontario shall create and maintain a barrier-free employment environment for its employees and persons who apply for a position as a government employee. Barrier-free employment environment (2) The barrier-free employment environment shall include all aspects of employment, including recruitment, hiring, training, promotion and employment-related interaction. Responsibility in ministries (3) The Minister and Deputy Minister of each ministry are responsible for ensuring the Government of Ontario meets the obligation described in subsection (1) within their ministry and for ensuring that all employees responsible for implementing the obligation in their ministry receive ongoing training in fulfilling these obligations. Time for training (4) The employees responsible for implementing the obligations provided for in this section in their ministry shall receive the initial training under subsection (3), (a) within one year after this section comes into force, if they are deputy ministers or assistant deputy ministers; (b) within two years after this section comes into force, if they are not deputy ministers or assistant deputy ministers. Information (5) The Government of Ontario shall inform its employees of, (a) the rights of persons with disabilities and the obligations of the Government under this section; (b) the steps that the Government is taking to meet its obligations under this section; and (c) the process for employees to obtain the accommodation in employment that the Government is required to provide under this section and under the Ontario Human Rights Code. Accommodation (6) The Government of Ontario shall accommodate the accessibility needs of its employees and applicants for positions of its employees in a timely manner and in accordance with the Human Rights Code and shall designate a person or persons in each ministry who is or are responsible for ensuring that the ministry provides the accommodation upon the request of an applicant. No disclosure (7) Each designated person shall not disclose to any person any information that he or she receives about a person's disability except with the consent of the persons with the disability or for audit purposes. Refusal to accommodate (8) If the Government of Ontario decides not to accommodate a request for accommodation, the Deputy Minister of the ministry involved shall approve the decision in writing and the designated person for the ministry shall advise the applicant in writing of the reasons for the decision. Appeal (9) The applicant may appeal the decision to the Accessibility Directorate of Ontario by filing a notice in writing with the Directorate within the time period specified in the regulations. Decision of directorate (10) The Directorate shall consider the appeal in accordance with the duty of fairness and shall render a decision with written reasons within 30 days of receiving the notice of appeal. Reimbursement of eligible expenses (11) The Management Board Secretariat shall, out of the money appropriated annually to it for this purpose, authorize prompt reimbursement to a ministry for eligible expenses that the ministry has incurred in fulfilling the ministry's obligations under this section. Amount of appropriation (12) The Government of Ontario shall take all steps within its control to ensure that the amount appropriated annually for the purpose of subsection (11) is not less than the amount appropriated for the purpose in the fiscal year in which this Act comes into force. Amount of reimbursement (13) The reimbursement shall be sufficient to meet the full range of the Government of Ontario's obligations to accommodate under this section, shall be in the amount that the Management Board Secretariat determines and be made in accordance with the standards established by the Management Board Secretariat, in consultation conducted through the Accessibility Directorate of Ontario with employees with disabilities of the Government. Same (14) The standards shall require reimbursement in an amount that is sufficient to cover the obligations of the Government of Ontario with respect to all persons with disabilities, whatever their type. Request for reimbursement (15) Within 14 days of receiving a request from a ministry for reimbursement under subsection (11), the Management Board Secretariat shall make a decision on the request and give notice in writing of the decision to the ministry, stating the detailed reasons for not granting the request in full, if that is the case. Appeal (16) The ministry whose request is refused in whole or in part may appeal the decision to the Director of the Accessibility Directorate of Ontario by filing a notice in writing with the Directorate within the time period specified in the regulations and the Director of the directorate shall hold a hearing on the appeal and render any decision that the Management Board Secretariat could have rendered, with reasons to be given in writing. 47) the bill be amended to provide: (1) Capital funding for projects under a government-funded capital program shall be made available only if there is an accessibility plan incorporated into the project that meets the standards specified in the regulations made under subsection (2). Regulations (2) Within six months after subsection (1) comes into force, the Lieutenant Governor in Council shall make regulations specifying the standards mentioned in that subsection, which shall include an accessibility plan for the benefit of all persons with disabilities. 48) the bill be amended to provide: (1) The Government of Ontario shall not purchase goods or services for the use of itself, its employees or the public that create or maintain barriers for persons with disabilities or that contravene the standards specified in the regulations made under subsection (3) unless it is not possible to do so because the goods or services are not available in a form that complies with this subsection and otherwise cannot reasonably be obtained in such form if so requested or ordered. If goods or services not available (2) If the goods or services cannot be obtained in a form that complies with subsection (1), the Government of Ontario shall ensure that the benefits of the goods and services are available to persons with disabilities at no extra cost or effort to persons with disabilities. Standards (3) In consultation with persons with disabilities and others including through the Accessibility Directorate of Ontario, the Lieutenant Governor may make regulations specifying the standards mentioned in subsection (1) for goods and services which promote the purposes of this Act. 49) the bill be amended to provide: (1) The council of every municipality shall not purchase goods or services for the use of itself, its employees or the public that create or maintain barriers for persons with disabilities or that contravene the standards specified in the regulations made under subsection (3) unless it is not possible to do so because the goods or services are not available in a form that complies with this subsection and otherwise cannot reasonably be obtained in such form if so requested or ordered. If goods or services not available (2) If the goods or services cannot be obtained in a form that complies with subsection (1), the municipality shall ensure that the benefits of the goods and services are available to persons with disabilities at no extra cost or effort to persons with disabilities. Standards (3) In consultation with persons with disabilities and others through the Accessibility Directorate of Ontario, the Lieutenant Governor may make regulations specifying the standards mentioned in subsection (1) for goods and services. Finally, the Government's open-ended discretion over when to repeal the ODA 2001 should be clarified and structured. The ODA 2001's accessibility planning provisions shouldn't be repealed until Bill 118 has led to accessibility standards being developed and adopted into regulations and until Bill 118's accessibility report provisions are fully operational. It is therefore recommended that: 50) section 41 of the bill be amended to provide that the ODA 2001's accessibility planning provisions will not be repealed until accessibility standards are developed and enacted in regulations under Bill 118, and until Bill 118's accessibility report provisions are fully in effect. 18. MANDATING PERIODIC REVIEWS OF THIS ACT This bill now includes no requirement that the Government or a designated public official periodically review the bill, once enacted, to assess its effectiveness. Because this bill will have to serve for a 20 year undertaking, it will be important for the Government to review the bill periodically to ensure that it is operating on track. It is not unusual to include in a piece of legislation a requirement that it be periodically reviewed. Section 22 of the current ODA 2001 provides: 22. (1) The Executive Council shall cause a review of this Act to be undertaken within five years after this section comes into force. Contents (2) The review may include recommendations to improve the effectiveness of this Act. In 2001, at the request of the ODA Committee, the Liberal party, as well as the NDP each proposed comparable amendments to strengthen that review requirement. At that time, the review requirement was set out in s. 21 of Bill 125. The proposed Liberal amendments provided: that subsection 21 (1) of Bill 125 be amended by striking out "five years" and substituting "three years." That section 21 of Bill 125 be amended by adding the following subsections: Purpose (1.1) The review shall determine whether, (a) this Act has been successful in achieving a barrier-free society; (b) changes are necessary to improve the effectiveness of this Act; and (c) persons with disabilities are able to participate fully and effectively in the implementation of this Act. Consultation (1.2) In conducting the review, the Executive Council shall consult with persons with disabilities and other interested persons stakeholders on the matters described in subsection (1.1). Building on the Liberals' and NDP's comparable proposed amendments to the ODA 2001, it is therefore recommended that: 51) the bill be amended to require that the Executive Council conduct a review of this Act's effectiveness every three years. The review shall determine whether: this Act has been successful in achieving a barrier-free society; changes are necessary to improve the effectiveness of this Act; and persons with disabilities are able to participate fully and effectively in the implementation of this Act. In conducting the review, the Executive Council shall consult with persons with disabilities and other interested persons stakeholders. Note: See also the recommendations above regarding ongoing independent monitoring of the bill's implementation. 19. PROCLAMATION OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT As much of this bill should come into force as soon as possible after it is passed by the Legislature. The bill now doesn't fix a date by which all its provisions should be proclaimed in force. To the contrary, s. 42 of the bill makes ss. 42 and 43 (proclamation power and bill's short title) come into force immediately. It then gives Cabinet discretion to proclaim the rest of the bill in force in stages when it chooses. There is no need for an extensive delay in proclaiming the bill in force. This is especially so since the bill itself, if amended as we propose in this brief, maps out a series of dates by which major milestones must be reached, which are themselves set into the future. Persons with disabilities should not have to lobby to ensure that this bill, once passed, is proclaimed in force. We learned through experience with s. 21 of the current ODA 2001 that a provision can be enacted by the Legislature in response to feedback from the public, including the disability community, only to find that the Government never proclaimed it in force. There is a need for proclamation of certain parts of the bill to be delayed, specifically, s. 41. That provision repeals the current ODA 2001. It is therefore recommended that: 52) Section 42 of the bill be amended to provide that the entire bill except for s. 41 comes into force upon Royal Assent. Alternatively, s. 42 should be amended to ensure that the bill, apart from s. 41, will come into force automatically six months after it receives royal assent, if Cabinet doesn't proclaim its provisions in force sooner. PART VI: SUNDRY 20. AMENDMENTS THAT SHOULD BE REJECTED We address certain possible amendments that others may bring forward, and which we would not support: Don't Make Barrier Removal and Prevention Contingent on Provincial Funding During Second Reading debate on Bill 118, some MPPs suggested that the Ontario Government should provide funding for organizations to remove barriers against persons with disabilities. Explicit or implicit in those remarks was an argument that unless the Ontario Government i.e. the provincial taxpayer foots the bill, those barriers shouldn't be removed. It would be desirable for there to be some new provincial funding to assist organizations in removing and preventing barriers. However, we are well aware that the Ontario Government is still dealing with a major deficit. Our expectations regarding new provincial funding must be realistic. It is incorrect to suggest that organizations, including private sector organizations, don't and shouldn't have to remove barriers against persons with disabilities, unless the provincial taxpayer foots the bill. Since 1982, the Ontario Human Rights Code has required public and private sector organizations to accommodate the needs of persons with disabilities up to the point of "undue hardship" in access to jobs, housing, goods, services, facilities and accommodation. This duty involves spending the organization's funds up to the point of "undue hardship" to that organization. This requires organizations to take serious and substantial efforts to ensure that persons with disabilities can fully participate in employment, and can fully enjoy the goods, services and facilities that the organization makes available to others. Therefore, business and government bodies already are obliged to address these costs up to the point of undue hardship. They can't refuse to take any action unless and until the Ontario taxpayer finances it. To amend the bill to require that barriers not be removed or prevented until or unless the provincial taxpayer pays for it would contradict and weaken protections which persons with disabilities have enjoyed for over two decades under the Ontario Human Rights Code, legislation which is almost constitutional in stature. An organization that removes barriers gets the financial benefits of doing so, e.g. more customers with disabilities to buy the organization's goods and services, more productive employees with disabilities, and thus, a better profit margin. The ODA Committee's position has been that, while it would be helpful if the Government could help to cover these expenses, an organization nevertheless cannot refuse to remove and prevent barriers, until and unless the taxpayer foots the bill. By comparison, no one would argue that businesses should be free to pollute the environment as much as they wish, and that they should only be required to take corrective action if the Ontario taxpayer foots the bill, or that no organization should have women's washrooms for employees and customers unless the Ontario Government finances them. The ODA Committee's position is, and always has been, that the accessibility standards and time lines should take into account the costs involved in making change. If action is more costly, organizations should be given more time to take that action, under the accessibility standards that will be set. Bill 118 is designed to reflect this approach. We endorse the policy enshrined in s. 33 of this bill where it would enable the Government to provide financial incentives for organizations that agree to exceed the accessibility standards established under this bill. Accordingly, it is recommended that: 53) The bill should not be amended to make compliance with its requirements conditional on receipt of provincial funding. Don't Make Private Sector Action Contingent on Prior Achievement of Full Ontario Government Accessibility on Accessibility During Second Reading debate on Bill 118, some argued that the private sector should not be required to take action on barriers against persons with disabilities until the provincial government first becomes accessible. This invoked notions of the provincial government "leading by example." We strongly advise against any amendments to Bill 118 that would operate to that effect. Persons with disabilities shouldn't have to wait to get access to their doctor's office, or to a store where they need to buy necessities such as food, clothing and medication, until every provincial ministry has rectified every last barrier within the Ontario Government. Persons with disabilities needn't be required to wait any longer, before action even starts in the private sector. As discussed earlier, the Ontario Human Rights Code now requires barriers against persons with disabilities in the private sector, as well as the public sector, to be removed and prevented. It would be a major step backwards for Bill 118 to be amended to impose an artificial delay on action in the private sector. In so submitting, we reiterate that different standards and time lines may be appropriate for different sectors of the economy. It is therefore recommended that: 54) The bill not be amended to require that the Ontario Government must become fully accessible before other sectors of the economy need take action to remove and prevent barriers against persons with disabilities.   Download Final ODA Committee Brief on Bill 118 (Word doc, size 553 kb) Download the Table of Contents of the Final ODA Committee Brief on Bill 118 (Word doc, size 37 kb)

 

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