APPENDIX 1 - ANALYSIS OF BILL 125

A. GENERAL

This appendix provides a detailed analysis of Bill 125 to see how
it meets the needs of persons with disabilities. Our analysis of
Bill 125 leads to the main conclusions that the bill, in its
present form:

(a) is not consistent with 10 of the 11 principles enunciated by
the ODA Committee

(b) does not achieve the barrier-free society for Ontario's 1.6
million people with disabilities, as proclaimed in the
government's vision statement dated Nov. 1, 2001; and

(c) is not a "strong and effective" law, as required by the
Ontario Legislature's unanimous resolution adopted on November
23, 1999.

(d) is vaguely drafted and confusing.

The bill will require substantial amendments to achieve the
government's vision and goals, as well as the Government's
statements on what it contains. This analysis provides the basis
on which our proposed amendments are based.

This analysis assesses Bill 125 from five perspectives. First, it
examines the bill from the perspective of the checklist for the
ODA which we released several weeks before the bill was
introduced. Second, it assesses the bill from the perspective of
the eleven principles, one principle at a time. Third, it
assesses the bill from the perspective of ascertaining what is
new in the bill. Fourth, it assesses the bill from the
perspective of what the bill contains that would not require
legislation for the Government to have acted over the past six
and a half years. Finally, it assesses the bill from the
perspective of statements which the Government has made on what
the bill contains. There is some inevitable overlap among these
different approaches to the analysis of this bill.

B. ANALYSIS OF THE BILL FROM THE PERSPECTIVE OF THE ODA
COMMITTEE'S CHECKLIST

Prior to Bill 125's introduction, the Ontarians with Disabilities
Act Committee released six questions to be used to measure the
proposed legislation. This analysis is based on those questions.

1. Does the proposed ODA include protection for all
disabilities, physical, mental and sensory, be the disability
visible or invisible?

The bill uses a definition of disability similar to that in the
Ontario Human Rights Code, with more appropriate, contemporary
terminology. It appears to include all physical, mental and
sensory disabilities including invisible as well as visible
disabilities. However, a main thrust of the bill's provisions
focuses on barriers faced by persons with mobility disabilities.

For example, the only guidelines that are required to be
developed under this bill relate to the design of newly-acquired
or newly-leased government buildings, and government buildings
which are significantly renovated in the future. The minimum
standard is at least the existing standards in the Ontario
Building Code. There is no requirement that those design
guidelines meet the needs of persons with all types of
disabilities that are not dealt with in the Building Code. There
is no assurance, in any of the bill's consultation mechanisms,
that the views and needs of persons with all types of
disabilities will be taken into account.

2. Does the proposed ODA cover the removal and prevention of
barriers in all aspects of life in Ontario whether in the public
or private sector, such as in employment and the enjoyment of
goods, services and facilities e.g. transportation, health care,
education and training, communication and access to information?

No. The bill requires only the creation of annual plans for
barrier identification, removal and prevention in the public
sector, including the Ontario government itself, the broader
public sector (including public transportation providers) and
municipalities.

The bill permits the creation of guidelines, standards, protocols
and regulations that may apply to the private sector if the
minister and Ontario government later choose to do so. The
government may also choose to turn these guidelines and standards
into regulations that would cover specific organizations or
sectors. However, there is no obligation on the Ontario
government ever to create these guidelines or to turn them into
regulations, nor to cover every area of the private sector, or
even every area of the public sector (since the bill permits the
government to unilaterally grant exemptions).

For the past twenty years, the Ontario Cabinet has had an
authority under the Ontario Human Rights Code to create
regulations on standards in this area. Even though the Commission
has had detailed policy guidelines on accommodating the needs of
persons with disabilities for over a decade, and recently revised
them after extensive public consultations, the government has not
chosen to make those guidelines into regulations. This is so
despite the fact that the current Citizenship Minister Cam
Jackson congratulated the Ontario Human Rights Commission for
producing its new guidelines, and despite the fact that the
Government has had several months since the new guidelines were
released to enact them into
regulations.

3. Will the proposed ODA require that detailed standards be set
for the removal and prevention of barriers through a consultative
process with key stakeholders including people with disabilities,
business, and others in the sectors affected?

No. The bill permits a confusing and complicated range of
different types of standards, guidelines and protocols to be
developed and possibly (though not mandatorily) turned into
regulations. There is no clear definition as to what a guideline,
standard, code or protocol is, nor what the difference is between
these types of documents.

The only guidelines that the government is required to make are
design guidelines for government buildings. These will apply only
to newly-purchased or newly-leased government buildings, and to
government buildings that are significantly renovated after this
bill comes into effect. The guidelines would not apply to
buildings currently used by the government unless the government
plans to significantly renovate them.

The government must make guidelines regarding the preparation of
accessibility plans and policies. There is also the optional
power to make regulations governing the preparation and content
of accessibility plans and policies. This suggests that the
guidelines (which must be made) refer only to the process, not
the content of the accessibility plans and policies. There is no
requirement that any regulations ever be made regarding the
preparation or content of these accessibility plans and policies.
As for the narrow category of guidelines which the Ontario
government must make, the bill imposes no time frame within which
the government must make them.

For the most part, in the case of government acquiring new
property or goods, e.g. for capital expenditures, the only
obligations which the bill imposes on the provincial or municipal
governments are merely to "have regard" to the issue of
accessibility. To "have regard" can be seen as a loose, minimal
obligation. There appear to be no standards or guidelines set in
the bill against which the assessment can be made. There is no
requirement for the government in question to document the
process. There is no right for persons with disabilities to
appeal from a decision. There is no public reporting on these
decisions or any consequence if the government chooses to go
ahead and make a major capital expenditure which creates new
barriers, using taxpayers' dollars.

In terms of consulting with the disability community, the
legislation is vague. It imposes very limited requirements on the
Ontario government to consult with persons with disabilities, or
even with its own new provincial Advisory Council.

The only mandatory consultations prior to any kind of standard-
setting in this bill appears to be in the case of the guidelines
regarding new government building accessibility, and limited
consultation at the municipal level. The design guidelines must
be created by the government of Ontario in consultation with
"persons with disabilities and others." It does not specify what
ministry is responsible for developing these guidelines, nor what
type of consultation is required.

At the municipal government level, the municipal council must
consult with the municipal accessibility advisory committee with
respect to access to buildings owned or leased by the
municipality (apparently again, only new building acquisitions or
renovations). That advisory committee must include persons with
disabilities (although not necessarily a majority). There is no
requirement of broad consultation with persons with disabilities
in the community.

In terms of other consultations, the bill permits the designated
minister to direct the new Ontario government office, the
Accessibility Directorate, to consult with stakeholders chosen by
the minister to develop the codes, codes of conduct, formulae,
standards, guidelines, protocols and procedures related to the
subject-matter of the bill. After these are developed, the
Cabinet has the option of making these into regulations if it
wants. It can change them as it wishes, without any consultation.
There is nothing in the section relating to the consultation by
the
Accessibility Directorate that requires the minister to direct
the directorate to consult with persons with disabilities.

Similarly, the new provincial Accessibility Advisory Council,
which is required to have a majority of persons with
disabilities, is not required to consult with persons with
disabilities in carrying out its mandate. The new provincial
Advisory Council has a very limited role with no authority to
initiate its own research or
investigation except within the narrow confines of its mandate,
unless directed to do so by the minister. It has only the power
to advise. its advice is not binding on anyone. The minister is
not required to explain to the Council or the public why the
minister or the Government does not follow the provincial
council's advice. The Council is required to report on its
activities to the
minister. There is no requirement that the report or the advice
provided by the Council be made public.

The minister's announcement of this bill and the Government's
publicity about it speaks about putting persons with disabilities
"in the driver's seat" to drive the changes In Ontario under this
bill. It is difficult to reconcile that statement with the bill
itself. The Advisory Council at the provincial level and the
accessibility advisory committees at the municipal level, are put
forward by the Ontario government as the key mechanism for
achieving that goal. As discussed above, their own participation
in the consultation process is very limited. Most of the
consultation, where it exists, is done not through these advisory
bodies but through the Accessibility Directorate. That
directorate is a government office, apart of the Ministry of
Citizenship. It is responsible and accountable solely to the
minister. There is no requirement that the staff of that
directorate include persons with disabilities.

Like the provincial Advisory Council, the bill's provisions
regarding the municipal advisory committees have many serious
limitations. They, too, can only "advise." The municipalities
never have to listen to them, accept their advice, or even meet
with them or answer them. These advisory bodies have no power to
require disclosure of information from the government they
advise, in order to know what is going on. If that government
ignores or rejects their advice, it need give no explanation or
reasons.

These advisory bodies are not selected by the disability
community. The disability community has no say in who sits on
them. The provincial Advisory Council is appointed by Cabinet.
The bill does not specify how the municipal advisory councils are
to be
appointed. There is no requirement that different disability
groups be represented on these advisory bodies.

4. Does the proposed ODA provide a process for ensuring that
barriers are removed and prevented in a timely manner?

No. The bill does permit regulations to be passed setting time
frames for meeting any obligations set out in the Act. However,
there is no requirement to make any such regulations or to set a
time limit.

There is nothing in the bill that actually requires barriers
identified in the plan to be removed or prevented. It only
requires the making of an annual plan by a range of public sector
organizations. The bill also adopts or reaffirms certain existing
obligations i.e. those under the Ontario Human Rights Code. A new
bill is not needed to say that persons with disabilities have
those existing rights.

The bill gives considerable authority to the government to
unilaterally exempt government ministries, the broader public
sector, agencies and the private sector from obligations under
this bill. The bill imposes no limits or criteria on this broad
exemption power, nor any accountability for the government when
it is exercised. There is no right of persons with disabilities
to appeal from the government's granting an exemption. The
government is not required to give any reasons or any rationale
for granting an exemption. For example, the government could
exempt all
hospitals from complying with the bill without having to have a
good reason or having to justify its decision.

5. Does the proposed ODA establish an effective mechanism
beyond individual complaints to enforce these new standards?

No. The bill does not impose an enforcement mechanism. The
language of some of the provisions sound as though there are
mandatory requirements by stating that the government "shall," or
the "municipality shall." However, there is no form of penalty or
other consequence for failing to comply. There is no independent
and impartial review of these actions. No independent body or
agency is required to review or investigate the actions of
organizations covered by the bill. There is no provision that
states that failure to comply with the provisions of this bill is
a violation of the Ontario Human Rights Code.

The only "enforcement" which the bill imposes is the requirement
that plans be made public. However, the public is not granted
ready access to information about the actual circumstances of
governments, agencies or organizations that are supposed to be
removing and preventing barriers. There are no clear guidelines,
or requirements for government bodies to publicly justify their
decisions for failing to remove and prevent barriers. As such,
public review of these plans seems toothless.

The bill provides no avenue for a member of the public to make a
complaint about non-compliance. An individual with a disability
who faces a barrier must still resort to battling one barrier at
a time, by filing a complaint under the Ontario Human Rights
Code, and litigate against barriers one at a time.

The provincial Advisory Council, which may advise the minister
generally on the implementation of the Act, has no authority to
take any proceedings, compel access to any information, or obtain
any remedy for anyone.

6. Does the proposed ODA reduce existing rights of people with
disabilities?

Section 3(2) of the bill specifically states that the legislation
does not limit the "operation of" the Ontario Human Rights Code.
However, it does not provide that nothing in this Act reduces or
limits the rights enjoyed by persons with disabilities under the
Ontario Human Rights Code or under any other legislation or
regulations. Absent such a clear, unequivocal clause, there is
always the risk that some party might try to use this Act as a
justification for limiting the rights of persons with
disabilities enjoyed under the Code or other legislation. To
avoid having to fight to prevent this kind of result, a clearer
and more
comprehensive provision is needed than that provided in s. 3(2)
of the bill.

7. The Companion Amendments

These points supplement our responses to the six questions above.
Bill 125 makes amendments to a series of other statutes. Those
new provisions which amend other statutes to provide for other
organizations or persons to make accessibility plans have the
same limitations as described above concerning the bill's general
provisions on government and public sector accessibility plans.

For example s. 27 of the bill provides for the Speaker of the
Ontario Legislature to make an annual accessibility plan
regarding the operations of the Legislature. However, it does not
require that the Legislature ever become barrier-free, nor does
it set any deadlines for progress. For years, the ODA Committee
has pointed out that only a handful of persons using wheelchairs
can sit in the galleries of the Ontario Legislature, to watch
debates on topics such as the need for a strong ODA.

Sections 23 and 29 of the bill amend the provincial and municipal
elections laws. However, they do not impose the most basic,
rudimentary requirements for a barrier-free democratic electoral
process, such as an assurance of barrier-free ballots for vision
impaired and dyslexic voters, assured provision of American sign
language interpreters for deaf voters, and assured physically
accessible polling stations for voters with mobility
disabilities. The ODA Committee highlighted the continued
presence of these kinds of barriers before, during and after the
last provincial election. Despite this, barriers were again
confronted during the by-
elections held in Ontario since the 1999 election.

Section 28(1) of the bill creates a new power which allows a
municipality that requires a business to get a license to operate
in that municipality to include in the license a condition
"requiring the premises of the business, or a part of the
premises, to be accessible to persons with disabilities." This
appears to be a new power.

However, this provision has three significant limitations. First,
it appears to deal only with barriers to physical access, and not
other kinds of barriers in the business. Second, nothing in the
bill requires any municipality to ever use this power. If a
municipality does not, the bill provides persons with
disabilities with no recourse. Third, this provision does not
establish a province-wide standard or a province-wide enforcement
process. Persons with disabilities will have to go through a
lengthy process of lobbying hundreds of municipalities to
achieve, one municipality at a time, what the bill could have
directly and single-handedly implemented across Ontario.

C. BILL 125 COMPARED WITH THE 11 PRINCIPLES

(i) THE GOVERNMENT'S COMMITMENT THAT BILL 125 CONTAINS THE 11
PRINCIPLES

Citizenship Minister Cam Jackson has stated that the 11
principles for the ODA were considered and followed very
carefully in drafting Bill 125, that Bill 125 addresses those
principles and, indeed, that it contains them. He said the
following in the Legislature:

(a) "I want to reassure the House that the 11 principles were
followed very carefully in the drafting of this legislation."
(Hansard Question Period November 7, 2001)

(b) "We firmly believe these 11 principles have been addressed in
this bill." (Hansard Second Reading Debate, November 8, 2001)

(c) "In fairness, I will be here the balance of the afternoon to
hear the debate and the discussions from the Liberal Party as to
what they are offering the disabilities community and what
promises they are prepared to make, but we have not heard any.
We've not heard any commitment, other than the 11 principles that
we know are contained in this bill." (Hansard Second Reading
Debate November 8, 2001)

In contrast, in the days leading up to Bill 125's introduction,
the Citizenship Minister had only said that the Government had
"looked at" the 11 principles. In answer to a question in
Question Period on whether the bill would comply with these
principles, the Citizenship Minister signalled some potential
reluctance regarding one of those principles as follows: "We have
looked at these principles, and that's exactly what they are. One
of the principles makes reference to an Ontarians with
Disabilities Act having primacy over all other acts in the
province of Ontario. There has been some concern expressed from
municipal leaders all across Ontario that they did not envisage
the fact that legislation would have primacy over, for example,
the Municipal Act, the Planning Act or the building code, which
deals with a broad range of issues. So, although municipalities,
well intended, have publicly stated they support persons with
disabilities in our province, they have expressed concern to this
government that legislation does not usurp or undermine the
authority and the time-honoured role that municipalities have in
Ontario. That was also part of my
discussions with Mayor Mike Hurst, whom I met with in Windsor on
Friday, and it is the official position that AMO has taken as
well." (Hansard Question Period October 25, 2001)

(ii) ANALYZING BILL 125 PRINCIPLE BY PRINCIPLE

Bill 125 falls substantially short on 10 of the 11 principles for
the ODA. Here is a principle-by-principle analysis of the bill.
To some extent this analysis overlaps with the analysis of the
bill provided in the previous section.

PRINCIPLE 1

Principle 1 states: "The purpose of the Ontarians with
Disabilities Act should be to effectively ensure to persons with
disabilities in Ontario the equal opportunity to fully and
meaningfully participate in all aspects of life in Ontario based
on their individual merit, by removing existing barriers
confronting them and by preventing the creation of new barriers.
It should seek to achieve a barrier-free Ontario for persons with
disabilities within as short a time as is reasonably possible,
with implementation to begin immediately upon proclamation."

Bill 125 does not comply with Principle 1. Bill 125's stated
purpose is far narrower than is required by Principle 1. Section
1 of the bill sets its purpose as follows:

"The purpose of this Act is to improve opportunities for persons
with disabilities and to provide for their involvement in the
identification, removal and prevention of barriers to their full
participation in the life of the province."

Merely to set out to "improve opportunities for persons with
disabilities is far less than to seek to achieve a barrier-free
province in which persons with disabilities are fully included
and can fully participate. If only two buildings in Ontario
install ramps, it could be said that the opportunities for
persons with disabilities have been improved. Yet we would still
have a long way to go to achieve a barrier-free Ontario.

PRINCIPLE 2

Principle 2 states:

"The Ontarians with Disabilities Act's requirements should
supersede all other legislation, regulations or policies which
either conflict with it, or which provide lesser protections and
entitlements to persons with disabilities."

Bill 125 does not fulfil Principle 2, because:

(a) Nothing in Bill 125 states that it supersedes or prevails
over other legislation, regulations or policies that conflict
with the ODA or that provide lesser protection for the rights of
persons with disabilities.

(b) At most, all Bill 125 provides in s. 3(2) is as follows:
"Nothing in this Act limits the operation of the Human Rights
Code." It does not clearly and explicitly ensure that nothing in
this bill reduces rights which persons with disabilities enjoy
under the Code.

PRINCIPLE 3

Principle 3 states:

"The Ontarians with Disabilities Act should require government
entities, public premises, companies and organizations to be made
fully accessible to all persons with disabilities through the
removal of existing barriers and the prevention of the creation
of new barriers, within strict time frames to be prescribed in
the legislation or regulations."

Bill 125 does not comply with this principle because:

(a) The bill itself imposes no obligations regarding barrier-
removal and prevention on the private sector. It appears to
permit the making of regulations regarding the private sector,
and requires certain transit-providers to make accessibility
plans. Yet there is no assurance that any regulations over the
private sector will ever be made, and if made, that they will
meet the requirements of Principle 3 and will be enforceable.

(b) Bill 125 does not require the removal of any existing
barriers in any non-renovated public sector buildings, no matter
how easy it may be to do.

(c) Bill 125 requires the Ontario Government to make "guidelines"
regarding accessibility of newly acquired and newly renovated
government buildings. These guidelines' standards may but need
not exceed current Building Code standards. The legal force, if
any, of these guidelines is not specified, except that they are
not regulations. The name "guidelines" may imply that they are
not mandatory and binding.

(d) Bill 125 permits municipalities to impose licensing
conditions on businesses receiving a municipal license addressing
physical accessibility. However, there is no duty on any
municipality to ever exercise this power. If a municipality
exercises this power, there is no duty to use it to ensure that
all such barriers are eventually rectified.

(e) Section 12(2) of the bill requires municipal councils in
municipalities having a population of over 10,000 to get advice
from their municipal disability accessibility advisory committee
regarding barriers in newly acquired or newly renovated municipal
government buildings. It does not require the municipality to
implement that advice, or to give reasons if it declines to do
so. This part of the bill does not provide for getting advice
from the advisory committee concerning existing municipal
buildings which are not being renovated.

(f) Bill 125 gives the Ontario Government sweeping, unaccountable
power to grant exemptions from its minimal provisions, without
having to justify or explain why it granted such exemptions.

PRINCIPLE 4

Principle 4 states:

"The Ontarians with Disabilities Act should require the providers
of goods, services and facilities to the public to ensure that
their goods, services and facilities are fully usable by persons
with disabilities, and that they are designed to reasonably
accommodate the needs of persons with disabilities. Included
among services, goods and facilities, among other things, are all
aspects of education including primary, secondary and post-
secondary education, as well as providers of transportation and
communication facilities (to the extent that Ontario can regulate
these) and public sector providers of information to the public
e.g.
governments. Providers of these goods, services and facilities
should be required to devise and implement detailed plans to
remove existing barriers within legislated timetables."

Bill 125 does not comply with Principle 4 because:

(a) The bill imposes no specific requirements on private sector
providers of goods, services facilities to remove and prevent
barriers. Many if not most of the goods, services and facilities
needed by members of the public (including persons with
disabilities) are provided by the private sector. We don't buy
our food, clothing, school books or medicine at City Hall or in
provincial government offices. As stated above, the bill requires
transit providers to make(but not to implement) accessibility
plans and permits Cabinet to make regulations setting standards
for the private sector, but it does not require that these
regulations ever be made.

(b) Bill 125 does not impose an obligation on public sector
providers of goods, services and facilities to ensure that they
are barrier-free. Beyond the provisions regarding new government
building design, referred to under Principle 3 above, Bill 125
requires only certain public sector organizations and private
sector transit providers to make annual plans. These plans need
not be comprehensive or effective. They need never be
implemented.

PRINCIPLE 5

Principle 5 provides:

"The Ontarians with Disabilities Act should require public and
private sector employers to take proactive steps to achieve
barrier-free workplaces within prescribed time limits. Among
other things, employers should be required to identify existing
barriers which impede persons with disabilities, and then to
devise and implement plans for the removal of these barriers, and
for the prevention of new barriers in the workplace;"

Bill 125 does not comply with Principle 5 because:

(a) The bill itself imposes no clear requirement to remove and
prevent workplace barriers.

(b) There appears to be a power to make regulations which might
apply to employment barriers, though this is not clear. There is
no requirement that any regulations ever be made under the bill
regarding public or private sector employers.

(c) Primarily, Bill 125 merely re-affirms the Government's
existing obligations to Ontario public servants as employees
under the Ontario Human Rights Code. Its main provision on point,
s. 8(1), states: 8(1) The Government of Ontario shall accommodate
the accessibility needs of its employees in accordance with the
Human Rights Code to the extent that the needs relate to their
employment." It similarly provides for accommodation of
applicants for Ontario Government jobs.

(d) In addition to the limitations on the effectiveness of the
public sector organizations' accessibility plans referred to
above, the bill does not specifically and clearly require that
those plans identify and plan for the removal and prevention of
barriers to employment in the workplaces of those organizations.

(e) The bill provides for educating managers in the Ontario
public service on job accommodation of employees with
disabilities and operation of a provincial fund to cover Ministry
accommodation costs of Ontario public servants with disabilities.
No standards or time lines are set to ensure that these are
effectively operated. The bill provides for no internal appeal
for those who are
improperly refused job accommodation funding under this
provision.

(f) As above, the bill gives the Government sweeping power to
exempt itself or others from any of the provisions in the bill.

PRINCIPLE 6

Principle 6 provides:

"The Ontarians with Disabilities Act should provide for a prompt
and effective process for enforcement. It should not simply
incorporate the existing procedures for filing discrimination
complaints with the Ontario Human Rights Commission, as these are
too slow and cumbersome, and yield inadequate remedies."

Bill 125 does not comply with Principle 6 because:

(a) It provides no new provincial enforcement mechanism and no
remedies, with only one exception. That is for only one barrier,
namely the widely publicized raising of the fine for misuse by
persons without disabilities of designated disability parking
spots. The Ontario Government has agreed that Bill 125 includes
no new enforcement mechanism. Its "Framework for Change" document
states: "That is why the Framework for Change calls for existing
enforcement mechanisms to be strengthened, rather than new ones
to be created."

(b) None of the new bodies created under the bill, such as the
provincial advisory council, the municipal advisory committees or
the provincial directorate, have power to take any proceedings to
enforce any provisions of the Act. They can only research,
consult, and advise.

(c) Under this bill, if a person with a disability encounters a
barrier in Ontario, they can only do what they had to do before
this bill. They must file a human rights complaint, one barrier
at a time, and possibly litigate for years.

(d) Citizenship Minister Jackson disagreed with the essence of
Principle 6 when he held out individual barrier-by-barrier human
rights complaint litigation as an effective means of enforcement.
He stated in the Legislature: "I have said all along that the
Ontario Human Rights Commission provides an effective means of
enforcing the rights of persons with disabilities, which is
principle number 6." (Hansard Second Reading Debates, November 8,
2001).

PRINCIPLE 7

Principle 7 provides:

"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."

Bill 125 complies with part of this principle. This is because it
purports to provide a power to make regulations setting
standards, which may be available on a sector-by-sector basis.
However, Bill 125 nevertheless falls substantially short of
Principle 7 because:

(a) The wording of the regulation-making power in s. 22 of the
bill is vague and possibly deficient. As now worded, there is a
risk that if it is used to set such a standard, and to make the
standard enforceable, a party objecting to enforcement of the
standard might attack the legality of the regulation on the
grounds that the bill did not give Cabinet clear authority to
make such regulations enforceable.

(b) The bill itself does not establish any process for enforcing
standards that are set by regulations, nor does the bill
establish any penalty or other remedy for breach of standards
which are set by regulations.

(c) The bill provides the disability community at large, as well
as the new provincial advisory council, with no right to have
input into proposed regulations to be made under the bill,
including regulations which set standards.

(d) The bill does not give the disability community at large, or
the provincial advisory council, any right to propose
regulations, nor does it impose on the Government a duty to
consider regulations that the disability community might propose.

PRINCIPLE 8

Principle 8 provides:

"The Ontarians with Disabilities Act should also mandate the
Government of Ontario to provide education and other information
resources to companies, individuals and groups who seek to comply
with the requirements of the Ontarians with Disabilities Act."

This is the only one of the 11 principles with which Bill 125
complies. Educating the public is of course helpful. However
Principle 8 is ancillary, and only has real and substantial value
if it is accompanied by legislation which is strong, effective
and mandatory, and which incorporates the other 10 principles.

PRINCIPLE 9

Principle 9 provides:

"The Ontarians with Disabilities Act should also require the
Government of Ontario to take affirmative steps to promote the
development and distribution in Ontario of new adaptive
technologies and services for persons with disabilities."

Bill 125 falls substantially short on Principle 9 because:

(a) Nothing in Bill 125 requires the Ontario Government to take
on this task, or assigns any specific department with
responsibility for planning or carrying out activities regarding
it.

(b) During second reading debate, Minister Jackson stated that
this principle is covered in the bill for the following reason:
"The legislation also addresses accessibility compliance as a
condition of funding and purchasing goods and services. It's
specifically a principle. It's specifically in the bill."
(Hansard November 8, 2001)

The bill in fact provides that disability accessibility is to be
considered when certain provincial and municipal government
purchasing decisions are made. This limited "duty to consider
accessibility" does not require that any accessible products ever
be purchased.

PRINCIPLE 10

Principle 10 provides:

"The Ontarians with Disabilities Act should require the
provincial and municipal governments to make it a strict
condition of funding any program, or of purchasing any services,
goods or facilities, that they be designed to be fully accessible
to and usable by persons with disabilities. Any grant or contract
which does not so provide is void and unenforceable by the grant-
recipient or contractor with the government in question."

Bill 125 falls substantially short on Principle 10 because:

(a) It does not make full accessibility a "strict condition" of
any government purchases or grants.

(b) As stated under Principle 9, the bill makes certain
government purchases or grants subject to an unenforceable
provision that disability accessibility merely be considered or
taken into account. A government purchaser need do nothing more
than think about it. They need not act on it.

(c) Nothing in the bill makes a purchase or grant invalid or void
for non-compliance with full accessibility.

PRINCIPLE 11

Principle 11 states:

"The Ontarians with Disabilities Act must be more than mere
window dressing. It should contribute meaningfully to the
improvement of the position of persons with disabilities in
Ontario. It must have real force and effect."

Bill 125 does not comply with this principle for all the reasons
set out above.

D. WHAT IS NEW IN BILL 125?

The Ontario Government has described Bill 125 as leading-edge
legislation, unprecedented in Canada or in North America with
important new elements to make it effective. It is therefore
worthwhile to examine Bill 125 to ascertain the extent to which
its contents are new. Our analysis of this bill indicates that
significant parts of the bill are not new. For example:

1. The bill merely "reaffirms" existing duties of the Ontario
Government to persons with disabilities under the Ontario Human
Rights Code. This adds nothing new.

2. The proposed provincial accessibility advisory council is
not a new innovation. Ontario had a provincial advisory council
on disability issues from 1975 to 1995. The current Ontario
Government eliminated it in September, 1995, weeks after taking
office. This was four months after Premier Harris made his May
24, 1995 election promise to enact the Ontarians with
Disabilities Act in his first term. Therefore, the Premier must
have intended by his May 24, 1995 election promise to give us
something more effective than a provincial advisory council.
There is nothing substantially different about the mandate of the
proposed new advisory council, as compared to the one which this
Government eliminated six years ago. (See the draft strategic
plan for the since abolished Ontario Advisory Council on
Disability Issues in Appendix 3)

Five other provinces now have such councils, namely Alberta,
Saskatchewan, New Brunswick, Manitoba and Nova Scotia. Some of
these are enshrined in legislation.

3. The bill's new Ontario Government disability access
directorate is in substance nothing new. The Ontario Government
has since the 1980s had one or more offices or branches with
comparable responsibilities. In the 1980's this included a
separate secretariat for Disabled Persons, which reported to its own
minister. In the 1990's, these various offices have been
downsized, merged or eliminated.

4. The idea of a minister responsible for disability issues is
also not new. In the 1980s, a cabinet minister was separately
designated with responsibility for persons with disabilities.
Under this bill that responsibility will rest with the
Citizenship Minister, along with his or her several other duties.
The current Government is the first government since the 1980s
not to have had until now a minister with a designation of
responsibility for persons with disabilities, even along with
other assignments in his or her title.

5. The power to make regulations setting standards for
accommodating the needs of persons with disabilities is not new.
It has existed under the Ontario Human Rights Code since 1982.

6. According to the Ontario Government's own documents, what
the bill provides regarding access by persons with disabilities
to government information in an accessible format is, in
substance, not new. The Ontario Government's July 13, 1998
Discussion Paper on the Ontarians with Disabilities Act stated:
"Ontario encourages government offices to provide information and
publications in alternate formats -- for example, large print,
Braille, audio cassette, computer disk and TTY phone lines."

7. What the bill provides regarding the treatment of Ontario
public servants with disabilities is not new. Section 8(1) merely
reaffirms the existing rights of these employees under the
Ontario Human Rights Code. Section 6(5) provides for an
employment accommodation fund which has in fact existed in the Ontario
public service for years. Section 8((3) provides for training
Ontario public service managers on disability workplace
accommodation for employees with disabilities. This kind of
program existed in the Ontario public service under the previous
two Governments. The current Government eliminated that program
and largely laid off the expert professional staff who had been
implementing it.

E. MEASURES IN BILL 125 NOT REQUIRING LEGISLATION

The Government has stated that it needs to adopt its short
timetable for the Legislature to consider this bill, because it
needs to get this Bill passed before the end of this year, so it
can begin implementing its measures. Our analysis shows that
significant elements of Bill 125 concern measures which the
Ontario Government could now take, or could have taken throughout
its six and a half years in office. The Ontario Government need
not have awaited the enactment of this or any new legislation to
take those steps.

These include:

1. It has always been open to the Ontario Government to require
each of its ministries to develop annual barrier-free plans, to
consult with persons with disabilities on them, and to release
them to the public. The Government's failed three-page bill, Bill
83, tabled in the Legislature in 1998, provided for these. The
Ontario Government does not claim to have made any such plans in
its time in office, including in the three years since it
signalled a need for them in Bill 83.

2. The Ontario Government has always had the capacity to make
non-binding "guidelines" regarding accessibility for newly-
acquired and newly-renovated government buildings, and to consult
on them with persons with disabilities.

3. It was open to the Ontario Government at any time to re-
establish the provincial advisory council on disability issues
that it eliminated in 1995, and to seek its advice.

4. During its various cabinet shuffles and re-organizations of
the provincial government, the Government could have at any time
re-established a minister explicitly responsible for disability
issues, and could have expanded the offices that dealt with these
issues.

5. The Government could have directed itself to apply a
"disability lens" to all provincial legislation and programs, and
assigned a ministry responsibility for this task.

6. At any time the Government could have made it a condition of
any purchases of new goods or services, or of making the billions
of dollars of capital grants, that these funds be used to acquire
or create accessible goods, services, properties or facilities.
The previous NDP Government had a provincial funding policy
requiring new municipal buses bought with any provincial tax
dollars to be accessible. The current government eliminated that
policy.

7. At any time the Ontario Government could have directed its
various ministries and branches to make sure that all of its
websites are accessible to and usable by persons with
disabilities.

8. The Ontario Government at any time could have undertaken
consultations and developed guidelines on standards for
accessibility to be used in the Ontario Government itself.

9. The Ontario Government at any time could have brought
together persons with disabilities and business representatives
to develop voluntary guidelines or protocols or standards to be
available to the private sector.

10. The Government at any time could have required managers in
the Ontario Public Service to receive training on meeting the
workplace needs of employees with disabilities.

F. DOES THE BILL DO WHAT THE GOVERNMENT SAYS IT DOES?

It is important to see whether the provisions of the bill do what
the Government says they do. Our analysis shows that there are
some very large and important gaps between the Government's
statements, and the bill's actual contents. We seek amendments
which, among other things, will ensure that the bill does what
the Government statements say it will do.

Overarching all of the following examples is the important
matter, covered earlier in this appendix, regarding the bill and
the 11 principles for the ODA. Earlier in this brief we show that
the Government has stated that this bill contains the 11
principles, but that in fact it falls substantially short on 10
of them.

PURPOSE OF BILL

The Government has said that the bill's purpose is the
achievement of a barrier-free Ontario. This is clearly set out in
the Government's November 1, 2001 "Vision Statement." Also, during
Second Reading Debate, Citizenship Minister Jackson stated during
the Second Reading debate: "When I talked to these individuals
and listened to what they wanted to see happen in our province,
it occurred to me that we really share the same vision and the
same goals, and we know we can get to the same outcomes. Simply
put, they wanted legislation that would do two things: create no
new barriers in our province and have a plan whereby we would be
able to systematically go back and remove all the existing
barriers in our province. Those very simply were the two things
they said we needed to have in this legislation." (Hansard
November 8, 2001)

In fact, and as indicated earlier, the bill's actual purpose is
much narrower. Its purpose is merely to "improve opportunities"
for persons with disabilities, and to include them in the barrier
removal and prevention planning process.

DISABILITY COMMUNITY PUT IN THE "DRIVER'S SEAT" E.G. FOR
REGULATION AND STANDARD-SETTING

The Government has stated that the disability community and the
new provincial advisory council will have input into the
regulations made under this bill, including input into the
regulations and the standards that are set. The Government has
emphasized that by this bill, the Government has put the
disability community in the driver's seat to drive change.

Government statements on this point include:

"And more importantly, Andy, for the first time anywhere in North
America, the disability community will be working directly on
those regulations." (Citizenship Minister Jackson interview on
CBC Radio "Metro Morning" programme, November 6, 2001)

"We're creating a council with disabled persons who will drive
the work on the enforcement mechanisms whether it's the
regulations, setting the guidelines, monitoring compliance,
reporting publicly on who's compliant and who's not, and they
will develop with us the necessary enforcement mechanisms to
ensure compliance."
(Citizenship Minister Jackson interview on CBC Radio "Metro
Morning" programme, November 6, 2001)

"...and so we have said we will build a council of disabled
persons who will help us determine the exact time frames sector
by sector." (Citizenship Minister Jackson interview on CBC Radio
"Metro Morning" programme, November 6, 2001)

"It gives full force and effect, something never before done in
Canada, to the disabilities community so they have a voice and a
say as we develop the regulations on an access council for
Ontario." (Citizenship Minister Jackson, Hansard Question Period
November 7, 2001)

"The first thing that has to happen is those standards have to be
created. They will be created by the disabilities community of
this province because this government's made an unprecedented
commitment to them that they will help us make those
regulations."
(Citizenship Minister Jackson, Hansard Question Period November
7, 2001)

"The record of this government's consultation with the
disabilities community is well documented. They understand fully
that what previous governments have failed to do in this province
is to acknowledge that it's not the able-bodied people who should
be deciding and determining what the standards are; it should be
the disabled individuals themselves. For the first time in
Canadian history, this legislation empowers them to assist in
making the regulations and the guidelines, guidelines that didn't
exist in this province for the five years of the Liberals,
guidelines and standards that didn't exist in the five and a half
years that you were the government, but guidelines and standards
that will exist in Ontario thanks to the government of Mike
Harris." (Citizenship Minister Jackson, Hansard Question Period
November 7, 2001)

"We need the flexibility to set those standards. For the first
time, we need to entrench in law that the disability community
will be pivotal in creating those new standards and assisting in
developing the new regulations." (Citizenship Minister Jackson,
Hansard Second Reading Debate, November 8, 2001)

"...he said it doesn't include the private sector, and yet he
knows that it includes private sector transit operators. He knows
it gives the government regulatory authority through the access
council, something that will be predominated by persons with
disabilities, something that even the ADA doesn't do and no other
jurisdiction in North America does. This opportunity is rather
unique in Ontario, for the disabilities community to set the
regulations for the private sector." (Hansard Second Reading
Debate, November 20, 2001)

"We have indicated very clearly that this bill creates some
unprecedented opportunities in Ontario. Particularly, nowhere in
North America can we find any legislation which specifically
empowers the disabilities community to set regulations. The
member opposite alluded to that, and I appreciate his bringing
that to our attention. He has expressed legitimate concerns about
whether or not the legislation is clear enough about the
authority that the disabilities community has. I commend the
member for Glengarry-Prescott-Russell because he understands --
and he's been one of the first members to acknowledge that in
fact this legislation does empower them to do that. We will
welcome any friendly amendments that help clarify that point if
it gives additional comfort and satisfaction to those people. But
the fundamental principle is that this legislation contains the
opportunity for the disabilities community to make those
decisions." (Citizenship Minister Jackson, Hansard Second
Reading Debate, November 20, 2001)

"It is my firm belief that any policy or law will work much
better when the very people it affects are directly involved and
are working with it on a daily basis. Persons with disabilities
understand the barriers that they are struggling with and
confront on a daily basis. Their knowledge and their experience
is the single most important contribution to our understanding of
these necessary reforms. They become the province of Ontario's
disability lens and they become the agents for change, helping to
set the guidelines, the mandatory terms of reference and time
frames for completion of accessibility plans to be implemented in
a broad spectrum across our province." (Citizenship Minister
Jackson, Hansard, Debate on Time Allocation Motion, November 21,
2001)

"The bill gives persons with disabilities an unparalleled
opportunity to shape and mould change. For the first time in
Ontario's history, we're putting the disability community into
the framework of the legislation and asking them to be our
partner in driving it." (Conservative MPP Julia Munro, Hansard
Second Reading Debate, November 20, 2001)

According to our analysis of the bill, this is not the case.
There is no required consultation with persons with disabilities
or the Advisory Council except for consultation on the
accessibility of newly acquired or newly renovated government
buildings. Neither the disability community nor the advisory
council have any right to input into any regulations. At most,
the minister is given
discretion to ask for their input if he or she wishes. That has
always been the case and is nothing new.

BILL EMPOWERS DISABILITY ADVISORY COUNCIL TO DETERMINE REASONABLE
TIME LINES FOR PUBLIC AND PRIVATE SECTOR TO BECOME BARRIER-FREE

The Government has stated that under this bill, it will be
persons with disabilities, sitting on the provincial Advisory
Council, who decide when it is "reasonable" for organizations in
the public and private sectors to become barrier-free. Government
statements on point include:

"Our legislation will work toward a barrier-free Ontario as soon
as reasonably possible, which were the exact words in principle
number 1 -- as soon as reasonably possible. That's what this
legislation says. And do you know who is going to decide whether
it's reasonable? The disabilities community, who sit on the access
advisory council of Ontario working on the regulations and
meeting with the private sector to say, "You tell us how you're
going to become compliant with this legislation." If that isn't
reasonable, then what is reasonable in our province?"
(Citizenship Minister Jackson, Hansard Second Reading Debate,
November 8, 2001)

"Our legislation will work toward a barrier-free Ontario as soon
as reasonably possible. That's what this legislation says. Do you
know who is going to decide whether it's reasonable? The
disabilities community who would sit on the Accessibility
Advisory Council of Ontario working on the regulations and
meeting with the private sector to say, "You tell us how you're
going to become compliant with this legislation." That's power."
(Conservative MPP Julia Munro, Hansard Second Reading Debate,
November 20, 2001)

In fact, the bill does not provide that persons with
disabilities, sitting on the provincial advisory council will
decide on the time lines for achieving a barrier-free province,
either in the public or private sectors. As stated above, neither
the disability community nor the government-selected advisory
council is guaranteed any right under this bill to work on the regulations.

MUNICIPAL ADVISORY COMMITTEES ENTITLED TO ADVISE ON DEVELOPMENT
AND IMPLEMENTATION OF MUNICIPALITY'S ACCESSIBILITY PLAN

The Government has stated that municipal advisory committees in
communities over 10,000 would advise the municipality on the
development and implementation of the municipality's
accessibility plan. The Government has stated:

"It would also require municipalities of 10,000 or more residents
to establish accessibility advisory committees, which of course
would include representation from the disability community. These
committees would report to municipal councils, advising on the
development and implementation of accessibility plans."
(Conservative MPP Frank Mazzilli, Hansard Second Reading Debate,
November 19, 2001)

In fact, s. 12 of the bill does not entitle the advisory
committee to do this. Unless regulations are enacted extending
their mandate, these advisory committees' duties are limited to
advising the municipality on accessibility of newly acquired or
newly renovated municipal buildings.

REGULATIONS WILL IMPOSE MANDATORY REQUIREMENTS PER THE 11
PRINCIPLES

The Government has stated that: "Mandatory provisions will be
prescribed in regulations as set out in the 11 principles."
(Citizenship Minister Jackson, Hansard Question Period November
7, 2001)

In fact, as indicated above, Bill 125 does not require that any
regulations ever be made or set out any time lines within which
they must be made. There is nothing in the bill that requires or
assures that the regulations will live up to the 11 principles.

REGULATIONS WILL COVER THE PRIVATE SECTOR

The Government has suggested that regulations will be made under
this bill which will cover the private sector. The citizenship
Minister said in the Legislature: "Finally, I want to share with
the member opposite that the private sector is specifically named
in this legislation, and the regulations we will create together
will cover each and every sector of this province. That is a
promise made by the Mike Harris government, and we'll keep that
promise." (Citizenship Minister Jackson, Hansard Question Period
November 7, 2001)

Our analysis of the bill shows that nothing in it requires the
Government ever to make any regulations covering the private
sector.

BILL PRESCRIBES TIME FRAME FOR MAKING REGULATIONS REGARDING
BARRIER REMOVAL IN THE PRIVATE SECTOR IF PRIVATE SECTOR NOT
MOVING FAST ENOUGH

The Government has suggested that under this bill, there is a
time frame for the private sector to act, and that if not
achieved, regulations are to be made over the private sector. The
Citizenship Minister stated: "there is regulation-making
authority in this legislation to ensure that existing barriers
are identified and removed and that no new ones are created. That
is not a threat; it is a part of our action plan to remove
private sector barriers. These regulations will be developed and
implemented within the prescribed time frame if, in the opinion
of the government and the Accessibility Advisory Council,
compliance is not happening fast enough in our province."
(Citizenship Minister Jackson, Hansard Second Reading Debate,
November 8, 2001)

In fact, the bill includes no prescribed time frame for the
private sector either to act, or else face regulations. It does
not empower the advisory council to determine or have input into
a decision on this.

BILL REQUIRES CAPITAL GRANT PROJECTS TO BE ACCESSIBLE

The Government has suggested that this bill requires
accessibility standards to be met in the case of new capital
projects funded by the government.

Government statements about this include:

"This government, with taxpayers' dollars, has committed about
$1.8 billion in infrastructure, transit, new hospital
construction and new university and college construction. This
legislation says those projects must be accessible to the higher
standard in this province. We believe that's an important element
of this bill. We believe it fulfils our promise that we will not
create new barriers with taxpayers' money, something that the
disability community has said makes no sense -- using their own
tax dollars to create environments that create barriers for them.
We clearly can do a better job, and it should be the law that we
cannot create those barriers in public spaces." (Citizenship
Minister Jackson, Hansard Second Reading Debate November 8, 2001)

"Principle 10 imposes this requirement on the government and the
municipalities, and also mandates accessibility as a requirement
for all capital funding. It's mandated in the legislation."
(Citizenship Minister Jackson, Hansard Second Reading Debate,
November 8, 2001)

In fact, the bill generally requires at most that the government
have regard to accessibility when spending or making capital
grants. It does not make accessibility a strict condition of
funding, nor does it void agreements which fail to comply.

DUTY TO COMPLY WITH ACCESSIBILITY PLANS

The Government has said that at least in so far as transit
providers are concerned, they will be required not only to make
accessibility plans, but also to comply with them. The
Citizenship Minister said: "Private sector transit services and
all transit systems in this province will mandatorily have to
file and comply with their accessibility plans." (Citizenship
Minister Jackson, Hansard Second Reading Debate, November 19,
2001)

In fact, the bill imposes no duty on any organization to comply
with their accessibility plans.

GOVERNMENT WILL FORCE COMPLIANCE WITH GUIDELINES AND
ACCESSIBILITY PLANS

The Citizenship Minister, speaking for the Government, has
stated: "We are going to force compliance based on the guidelines
and the accessibility plans that will be made public for each and
every sector in Ontario." (Citizenship Minister Jackson
interview on CBC Radio's "Metro Morning" programme November 6,
2001)

In fact, the government has no power under this bill to force
this compliance. Moreover, accessibility plans are not required
by the bill for every sector. specifically they are not required
for the private sector, except for certain private sector transit
providers.

GOVERNMENT WILL ENFORCE TIME FRAMES

The Citizenship Minister stated: "This point was made by David
Lepofsky, Chair of the Ontarians with Disabilities Act Committee,
when he said this week on Studio 2 on TVO, "We would like to have
the barriers that we face identified and eliminated over time.
People need to have the time to do it." That's exactly what this
legislation does. It gives municipalities, universities, schools,
hospitals and the private sector time to identify these barriers
and to plan to remove them within the reasonable time frames that
will be set out in regulations and which will be enforced by the
government, but those time frames will involve the disabilities
community sitting down with each of their institutions and their
communities." (Citizenship Minister Jackson, Hansard Second
Reading Debate November 8, 2001)

In fact the bill does not give the provincial Government any
power to enforce any time lines for barrier-removal and
prevention that may be set out in future regulations.

BILL REQUIRES MUNICIPALITIES TO CONSIDER ACCESSIBILITY WHEN
ISSUING LICENSES

The Government has stated that under this bill, among other
things, municipalities would be required to take accessibility
into account when issuing licenses. The Citizenship Minister
stated:

"Municipalities would have to take accessibility into
consideration when approving, for example, subdivision plans and
upon issuing licences." (Citizenship Minister Jackson, Hansard
Second Reading Debate, November 8, 2001)

In fact the bill does not require municipalities to consider
accessibility when issuing licenses. It only permits them to do
so if they wish. However they never need do so. Moreover, the
only accessibility they are empowered by this bill to consider
relates to physical barriers, not all kinds of barriers.