ODA Committee Update
dated April 11, 2003
ONTARIANS WITH DISABILITIES ACT COMMITTEE UPDATE
ODA COMMITTEE REPRESENTATIVES MEET WITH CITIZENSHIP MINISTER DEFARIA AND SUMMARIZE THE MEETING IN A FOLLOW-UP LETTER TO THE MINISTER
On Monday, March 31, 2003, with an election looming in the near future, an ODA Committee delegation met with Citizenship Minister Carl DeFaria to discuss progress and priorities on the implementation of the Ontarians with Disabilities Act 2001. Below is a follow-up letter from the ODA Committee to the Minister, which details the major items discussed at the meeting.
At the Minister's invitation, a small delegation from the ODA Committee held its first meeting with Carl DeFaria, the current Citizenship Minister. He is the fifth individual to hold that office since the Conservatives took power in 1995.
The ODA Committee delegation included:
David Lepofsky, the ODA Committee chair, Bette Jones, ODA activist in Woodstock Ontario, and a member of Woodstock's municipal accessibility advisory committee Orville Endicott, lawyer with Community Living Ontario (formerly called the Ontario Association for Community Living), with decades of experience with the rights of persons with developmental disabilities.
We often vary the members of our delegations at such meetings, to try to promote diversity and to involve a range of different voices.
The matters discussed at the meeting, which are spelled out in detail in the ODA Committee's follow-up letter to the Minister, set out below,
* ODA COMMITTEE EFFORTS AT ASSISTING IMPLEMENTATION OF THE ODA 2001
* ODA IMPLEMENTATION AT THE MUNICIPAL LEVEL
* THE NEED FOR THE ONTARIO GOVERNMENT TO POST ALL FORTHCOMING ODA ACCESSIBILITY PLANS ON ONTARIO GOVERNMENT WEBSITE
* THE NEED TO IMMEDIATELY PROCLAIM IN FORCE SECTION 21 OF THE ODA 2001
* THE NEED FOR THE GOVERNMENT TO DEVELOP AND PASS REGULATIONS TO CREATE STANDARDS FOR REMOVING BARRIERS AND FOR OTHER ENFORCEMENT MECHANISMS
* THE NEED FOR PUBLIC CONSULTATIONS ON REGULATIONS UNDER THE ODA 2001
* THE NEED FOR THE GOVERNMENT TO EXTEND THE ODA 2001 TO THE PRIVATE SECTOR
* THE NEED FOR REGULATIONS TO DEFINE THE TERM "AGENCY" IN THE ODA 2001
ONTARIANS WITH DISABILITIES ACT COMMITTEE
c/o Marg Thomas
1929 Bayview Avenue, Toronto ON M4G 3E8
Tel: (Voice direct) 416-480-7686
Voice mail: 416-480-7012
TTY: c/o Susan Main 416 964-0023 ex. 343
Web site: www.odacommittee.net
April 3, 2003
The Honourable Carl DeFaria
Minister of Citizenship
400 University Avenue,
RE: ONTARIANS WITH DISABILITIES ACT
Thank you for taking the time to meet with a delegation from the Ontarians with Disabilities Act Committee on Monday March 31, 2003. We appreciated the chance to address the issues that we raised in our March 18, 2003 letter to you, focusing on priorities for action to implement the Ontarians with Disabilities Act 2001. By this letter we would like to follow up on and elaborate on the discussion at our meeting.
ODA COMMITTEE ASSISTING IMPLEMENTATION OF THE ODA 2001
You asked the ODA Committee to support the Government's efforts at implementing this legislation. We were pleased to repeat our offer to help in any way we can. We have made this offer in writing to you, the Premier and to the Government-appointed provincial accessibility advisory council on several occasions. Our efforts to constructively assist over the 15 months since this legislation was passed include:
* taking it on ourselves to develop for you a proposed workplan which details priorities for implementing the ODA 2001;
* widely encouraging ODA supporters to apply to be appointed to your Government-appointed provincial Accessibility Advisory Council and local municipal accessibility advisory committees;
* developing and widely circulating our "Municipal Barrier Busters Action Kit" to assist municipal accessibility advisory committees and others with strategies on how to get what we can from this legislation;
* hosting and participating in Barrier Busters forums and other public events to raise these issues;
* urging the Government to proclaim in force all the ODA 2001's provisions as soon as possible to enable implementation to proceed;
* identifying for the Chief Election Officer and the three party leaders serious barriers in Ontario's election process, and offering our help to ensure that the forthcoming provincial election is barrier-free. This will enable voters with disabilities to fully participate in the selection of Ontario's next government;
* offering our help to the Government-appointed provincial Accessibility Advisory Council, including suggesting priorities for their work and providing them important background material.
Thus, while many were very disappointed that the ODA 2001 did not go further, and have been concerned about the pace of its implementation, we have been working very hard to contribute to its implementation.
ODA IMPLEMENTATION AT THE MUNICIPAL LEVEL
You told us that from the feedback you are receiving particularly from the municipal sector, that there has been a great deal of enthusiasm and "buy-in" from those involved in implementing the ODA 2001. In contrast, the feedback we have received, particularly from the municipal sector, has varied widely from municipalities taking action on the one hand, to municipalities delaying the establishment of their accessibility advisory committees and not being receptive to input from them on the other.
A recurring question that we are hearing from the front lines of municipal accessibility advisory committees is this: How can the accessibility advisory committee get their municipality to listen to them and act on their advice? The ODA 2001 does not require the municipality to take any action in response to a recommendation from the accessibility advisory committee or even to give an explanation for opting not to accept the committee's recommendation.
As an example of feedback we have received, a member of our delegation, Ms. Bette Jones, a member of the Woodstock Accessibility Advisory Committee, highlighted for you at our meeting how her municipality's committee was not started up until months after the September 30, 2002 deadline which your Government had fixed for these committees to be established. She also discussed serious difficulties in getting meaningful attention from their city council. As a further example, Mr. Orville Endicott of our delegation, who works with Community Living Ontario, gave you feedback on difficulties some persons with developmental disabilities have faced in trying to get appointed to municipal accessibility advisory committees and in getting the support they need to be able to effectively participate.
These samples of feedback illustrate that implementation of the ODA 2001, at least at the municipal level (where the Ontario Government has placed so much emphasis) is at the least, not consistent. As a follow-up to this discussion it would be helpful to learn what steps your Ministry has taken to see whether all municipalities with a population over 10,000 have established a municipal accessibility advisory committee, and if so, whether they did so by last September 30, as the ODA 2001 required. We would like to know what level of verified compliance there has been, according to your information.
In response to our feedback, you offered the assistance of the Citizenship Ministry including the Accessibility Directorate if people encounter such difficulties as were reported to you by Ms. Jones and Mr. Endicott. We will let ODA supporters know that this is available to them. We also recommend that your Ministry widely publicize that if people are having difficulties getting onto municipal accessibility advisory committees, or in getting their municipality to listen to and act upon the recommendations of their accessibility advisory committee, they can seek the help of your Ministry in getting action.
POSTING FORTHCOMING ODA ACCESSIBILITY PLANS ON ONTARIO GOVERNMENT WEBSITE
We suggested to you that your Ministry should obtain a copy of each accessibility plan that is made by a provincial ministry, municipality, college, university, school board, hospital, public transit provider or other body required under the ODA 2001. These are required to be made by September 30 of this year. We also recommended that you post all these accessibility plans on your web site. This would make it far easier for the public to get ready access to all of them. It would also have the benefit of letting members of the public compare different accessibility plans.
The ODA 2001 merely says that organizations which make accessibility plans or policies must make their plans "public." The ODA 2001 does not spell out what specifically this requires. Some organizations might think that it is sufficient for them merely to have their accessibility plan available for public inspection in their offices during office hours. That would not ensure that these plans will be easily and readily available to people all over Ontario. Indeed, the office where they might make their plans "public" might itself not be accessible.
You indicated that you had not considered our idea. You said you would look into it. We look forward to hearing from you on this suggestion.
THE NEED TO IMMEDIATELY PROCLAIM IN FORCE SECTION 21 OF THE ODA 2001
You gave no date for proclaiming in force section 21 of the ODA 2001, the only provision that is still not in force. That provision would impose a fine if public sector organizations do not make an annual accessibility plan, or if municipalities with a population over 10,000 do not establish a local disability accessibility advisory committee. This means that persons with disabilities do not know when they will have the benefit of the only enforcement power, albeit a limited one, in the Act.
From your comments it was evident that the Government may well never proclaim it in force. It certainly may not proclaim it in force until after September 30, 2003. That is the key date when all the first accessibility plans are supposed to be made public.
You said it was your approach under the ODA 2001 to get compliance through "buy in" and cooperation. You felt that proclaiming section 21 in force conflicted with this.
We see no conflict. The Government can continue to work with organizations to get them to cooperatively and voluntarily comply with the ODA 2001. Yet in addition to these efforts, if you now proclaim section 21 in force, then those public sector organizations who do not make an accessibility plan when required or who do not establish a municipal accessibility advisory committee would still be subject to the fine in section 21.
If the fine turns out not to be needed, there is no harm in having it available. If it turns out that the fine is needed, there is harm if it is not in force. Nothing is lost by proclaiming in force section 21. Something can be lost if it is not proclaimed in force now.
We compared this to our laws against drinking and driving. We now have laws on the books imposing a penalty for drinking and driving. We also have governments running public education campaigns against drinking and driving to convince drivers to voluntarily obey the law. We need both. No one would argue that we should get rid of the penalties against drinking and driving. No one would claim that those penalties undermine the effectiveness of the public education campaign against drinking and driving.
We therefore ask you to reconsider your Government's position and to now proclaim section 21 in force.
THE NEED FOR REGULATIONS TO CREATE STANDARDS FOR REMOVING BARRIERS AND FOR OTHER ENFORCEMENT MECHANISMS
We asked your Government to keep its commitment to develop, in close consultation with the broad disability community, regulations to set accessibility standards. Regulations are also needed and had been promised to create additional enforcement mechanisms under the ODA 2001 to supplement the unproclaimed section 21.
At present, each municipality, college, school board, hospital, provincial ministry and public transit provider has no uniform accessibility standards to meet. They do not know what they need to do or when they need to do it to become barrier-free. To create provincial accessibility standards would make it easier for individual organizations to achieve accessibility and would reduce the cost to them of doing this.
As we discussed, your Government emphasized the need for new standards to be created when it brought forward the ODA 2001 in the fall of 2001. As we explained during our meeting, we have received feedback that difficulties in taking action have been encountered due to the lack of comprehensive provincial accessibility standards. Each organization covered by the ODA 2001 should not be left to have to invent their own accessibility standards.
You suggested to us that the Ontario Building Code fulfils this need. This is not so. We explained that the Building Code's physical accessibility standards are widely recognized to be inadequate, even at addressing physical barriers to access facing persons with disabilities. Your Government promised to address this fully five years ago, in 1998. Yet changes to the Building Code's accessibility provisions have still not been made. According to the latest word from your Government, these are not expected until at least next year.
We also explained that the Building Code, even if improved, cannot address the full need for accessibility standards. The Building Code only addresses physical accessibility barriers to certain buildings. It does not address many other barriers which persons with physical, mental and sensory disabilities face.
As but one example, the Building Code does not set accessibility standards for websites. All would benefit if a regulation were created setting provincial accessibility standards for websites. This would help every municipality, college, university and other public sector organization covered by the ODA so each does not have to re-invent the wheel for website accessibility. May we add that in your August 20, 2002 letter to us, you stated that public input would be sought into regulations addressing, for example, internet accessibility for Government websites. There have been no such regulations passed since then, and no public consultation on this. We could add many other examples of areas where provincial accessibility standards are needed, beyond the narrow example of websites.
THE NEED FOR PUBLIC CONSULTATIONS ON REGULATIONS UNDER THE ODA 2001
We were pleased that you agreed with us that it is valuable for there to be public consultations, and that you learned so much from your participation in the 2001 public hearings on the Government's ODA bill. We regret that we came away from our meeting with you with no indication of when your Government would undertake any public consultations on regulations to be enacted under the ODA 2001.
We are open to public consultations on new regulations under the ODA 2001 being conducted either by the Government-appointed Accessibility Advisory Council, or the Ministry's Accessibility Directorate, or, of course, by MPPs such as yourself. We see nothing which prevents the Government-appointed Accessibility Council from holding public consultations. A similar provincially-appointed Disability Advisory Council existed in Ontario from the 1970s until 1995. Your Government abolished it shortly after taking office. Your Government used the ODA 2001 to re-create a similar body over half a decade later.
We pointed out to you at our meeting that the previous disability advisory council held annual public consultations. Contrary to the view which your Government-appointed Council Chair, Jeff Adams stated in his January 30, 2003 letter to us, we see nothing that prevents your current Council from doing the same thing. During our meeting you gave no reason why your current Council cannot or should not do so. You agreed with us that there is no reason to fear that such events would become a fiasco.
We also emphasized the great benefits if, during such public consultations, your Government brought to the same table at the same time, representatives of the disability community as well as other stake-holders such as the municipalities and the private sector. In that way we can all work together far more effectively. We regret that your predecessor ministers had not taken up this suggestion of ours, and asked you to do so now.
You said during our meeting that your Ministry's Accessibility Directorate is now working on developing standards. As a follow-up to our meeting with you, we are eager to know what standards they are developing, and urge that public consultations be undertaken in conjunction with that activity.
We were very interested to learn from you at our meeting that your Government-appointed Accessibility Advisory Council has been conducting some sort of consultations with various sectors including the municipal sector. You said that your Accessibility Advisory Council is doing this by groups of its members going out and giving speeches and attending public meetings or events.
We have reviewed our records since our meeting with you. It appears that the Government has not made any general public announcement that the Government-appointed Accessibility Advisory Council is holding a public consultation on the ODA's implementation in general, or on the development of regulations in particular. It has not invited input from the public including the disability community. It has not circulated questions or issues on which we and other stakeholders should focus our input. If the Government wishes to use its Accessibility Advisory Council for consultations, it is important that we and the public be told that the Council is doing so, that there be a public invitation to give the Council input, and that the Government identify specific questions on which input is requested.
During our meeting we reminded you of significant difficulties in the past, particularly with certain of your predecessor citizenship ministers, when they said that ongoing consultations were being held on the ODA but when they did not make any public announcements or solicitations for input. We would therefore appreciate learning from you what the focus is of the Council's consultations, and what input the Council has received.
For our part, we would be pleased to widely circulate any Government announcement on public consultations through our extensive network within the disability community. We would also be pleased to encourage others to participate in any such consultation process, and to help with the organizing of public forums for this consultation, so that any consultation the Council does is a public consultation.
We also explained that we would benefit from having a chance to give input into any regulations in any aspect of the ODA 2001 well before draft regulations are formulated and posted in the Gazette for public comment. This would enable us and other stake-holders to have meaningful input earlier in the process, so that it will be easier to make improvements.
EXTENDING THE ODA 2001 TO THE PRIVATE SECTOR
We explained that at present, the ODA does not require any actions by the broad private sector towards removing and preventing barriers. The only limited range of private sector organizations that the ODA now addresses at all are those which provide public transit services. The Government has the power to make regulations to extend the ODA 2001 to the private sector.
We asked when your Government plans to use its power to extend the ODA to the private sector. You did not provide any time lines for doing this. You said the Government would not extend the ODA to an industry until you saw that there is significant or majority compliance in that industry.
It is not clear from the information you provided at our meeting what "compliance" you feel you must see in an industry before you will extend the ODA to that industry. What must a majority or substantial part of that industry actually be doing? Also, if a majority or substantial part of an industry is not complying, does that not show that it is important to extend the ODA 2001's provisions to them? We urge that the ODA now be extended to the entire private sector.
DEFINING THE TERM "AGENCY" IN THE ODA 2001
Since February 2002, your Government has said that it is working on regulations to define the term "agency" in the ODA 2001. Section 16 of the Act requires that any organization which the regulations define as an "agency" must make an accessibility policy. This presumably was meant to include some organizations which the ODA 2001 does not now require to make an annual accessibility plan. Until an organization is defined as an "agency," it need not develop an accessibility policy.
No regulation has been passed defining any organization as an agency. As such, no organization is required by section 16 of the ODA 2001 to make an accessibility policy.
We explained that it was important for a regulation to be passed which defines who is an "agency" for these purposes. We appreciate your inviting us at this meeting to give you input into this. It would be helpful to have some indication on what you are now considering to include as an "agency."
We also explained that now that your Ministry has had over a year to focus on this as a priority area, if you are now satisfied that certain organizations should be defined as an "agency" but are still uncertain about others, it would be worthwhile to pass a regulation now that at least includes those you know you want to include. This would then require those organizations to get to work now on developing their accessibility policy. There is no need for any further delay in this regard.
Again, may we thank you for this opportunity to meet. We are sending a copy of this letter to your Government-appointed Accessibility Advisory Council. We hope that that Council will endorse the positions and recommendations that we set out in this letter. We look forward to hearing back from you on the various issues addressed in this letter.
David Lepofsky, C.M.
Ontarians with Disabilities Act Committee
cc: The Hon. Ernie Eves 325-7578
Chris Stockwell 325-7755
Dalton McGuinty 325-9895
Dwight Duncan 325-2201
Steve Peters 325-7262
Ernie Parsons 325-4757
Howard Hampton 325-8222
Peter Kormos 325-7067
Marilyn Churley 325-3252
Tony Martin 325-3720
Jeff Adams, Chair, Ontario Accessibility Advisory Council
Nadia Temple, Director, Ontario Accessibility Directorate
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Last updated April 15, 2003