ODA Action Tip
March 24, 2001

IMPLICATIONS OF THE ONTARIO HUMAN RIGHTS COMMISSION'S
NEW DISABILITY POLICY GUIDELINES FOR THE BATTLE FOR A
STRONG AND EFFECTIVE ONTARIANS WITH DISABILITIES ACT

With the new Human Rights Commission Policy Guidelines getting so
much attention, we must continue to focus public attention on the
ongoing need for a strong ODA. These guidelines, while positive,
are no substitute for the ODA we were promised.

This update gives you some ideas on how you might wish to address
this issue when you are in contact with MPPs, the media, colleagues,
friends, and the public:

1. THE POLICY GUIDELINES' CONTENTS ACTUALLY SHOW
THE NEED FOR A STRONG ODA

There is lots in the policy guidelines which constitute a
recognition and indeed an adoption of the very kinds of things that
the ODA Committee has been saying about the ODA. The salient
examples of excerpts from the new Policy Guidelines which reflect
our approach are set out below. You can see it all at a glance.

The key points in the Policy Guidelines which reflect the ODA
Committee's principles include eg.:

* Persons with disabilities need existing barriers removed and new
ones prevented eg. by inclusive or universal design.

* Removing and preventing barriers is good for business.

* Where it may be costly, it is reasonable to take a reasonable
amount of time to make the required changes. Cost generally does
not justify utter inaction.

* It is better for business, the public, public organizations and
persons with disabilities for those who have barriers to act pro-
actively to remove them and to prevent new ones. A very good way to
do this is to develop and implement plans on this.

Once these core principles are accepted, which are our very core
principles, then the obvious question is whether it is more
effective to implement this only in a piecemeal complaint-by-
complaint, barrier-by-barrier approach under the Human Rights Code,
or to also develop and enact the comprehensive ODA we seek.

2. AN ODA WOULD ADD A GREAT DEAL TO THESE GUIDELINES

An ODA would add a great deal to the Human Rights Code and to these
new policy guidelines to make a big difference in the lives of
Ontarians with disabilities. Here are just two examples:

(a) one piece that an ODA would add that is especially important is
a mechanism for developing sector-by-sector detailed standards for
barrier removal and prevention, in consultation with persons with
disabilities and with the affected sectors.

(b) the ODA would also provide for the making and implementing of
barrier-free plans. These new Human Rights policy guidelines
suggest that these plans are a good idea. An ODA would make it the
law.

3. THE HUMAN RIGHTS GUIDELINES ALONE WON'T BE ENOUGH

How much difference can the OHRC and these policy guidelines make,
when the OHRC does not have proper funding to do its job? Well,
this is another stunning example of a Mike Harris broken election
promise dating back to 1995.

On May 5, 1995, Premier Harris promised to increase funding to the
Commission to do its job. Back then it was widely recognized that
the Commission was overworked and underfunded. We cited this pledge
in our April 1998 brief on the ODA to the Ontario
Legislature. Chapter 1 of that brief states:

"During the 1995 election, Premier Harris promised to increase
funding to the Ontario Human Rights Commission. In a May 5, 1995
election release, Harris specifically committed as follows:

"Specifically a portion of the money saved by winding down the
(Employment Equity) Commission set up to enforce the quotas ($9.3
million) will be redirected to the Human Rights Commission.""

In direct breach of this pledge, the Government never gave the
promised increase in funding to the Ontario Human Rights
Commission. Instead it has cut Commission funding not once, but
twice. Below are the Canadian Press items on this, referring to
April 12, 1996 and November 18, 1999.

With its reduced budget, the Commission not only has to enforce
disability human rights. It also has to enforce human rights
involving discrimination on a wide range of other grounds e.g.
race, sex, religion, age, sexual orientation, etc. Put simply, if
the Ontario Human Rights Commission does not have the resources to
properly enforce the Code, then all the best policies and
guidelines in the world will not get us significantly closer to the
ODA's goal of a barrier-free Ontario.

Moreover, under the Human Rights Code, even with these new Policy
Guidelines, we are still in the setting where you must battle one
barrier at a time. Either persons with disabilities have to file
complaints about each and every barrier they face, or they have to
wait for the Commission to initiate its own complaints. Even if the
Commission chooses to initiate its own complaints on disability
barriers, it still must go one barrier at a time, against one party
or organization at a time. This is a slow, cumbersome way of doing
it.

The Globe and Mail on March 23, 2001 said this about the Human
rights Chief Commissioner: "About 40 per cent of the 1,800 people
who file complaints with the commission each year complain of
discrimination on the basis of a disability, he said." If the
Commission were now to suddenly double its disability complaint-
load, by launching 720 of its own complaints in one year to match
the 720 disability complaints they receive from individuals(a step
which is utterly impossible to imagine), would this compare to the
impact of a strong and effective ODA?

*****

EXCERPTS FROM HUMAN RIGHTS COMMISSION 2001 DISABILITY POLICY
GUIDELINES WHICH ADOPT ODA COMMITTEE CORE PRINCIPLES

The following are verbatim excerpts from the Ontario Human Rights
Commission's new Policy Guidelines on Disability which clearly
appear to adopt core principles which the Ontarians with
Disabilities Act Committee has advocated in relation to the
promised Ontarians with Disabilities Act:

1. Accommodation with dignity is part of a broader principle,
namely, that our society should be structured and designed for
inclusiveness. This principle, which is sometimes referred to as
integration, emphasizes barrier-free design and equal
participation of persons with varying levels of ability.
Integration is also much more cost effective than building
parallel service systems, although it is inevitable that there will
be times when parallel services are the only option.
Inclusive design and integration are also preferable to
"modification of rules" or "barrier removal", terms that,
although popular, assume that the status quo (usually designed by
able-bodied persons), simply needs an adjustment to render it
acceptable. In fact, inclusive design may involve an entirely
different approach. It is based on positive steps needed to ensure
equal participation for those who have experienced
historical disadvantage and exclusion from society's benefits.[4]
The right to equality can be breached by a failure to address needs
related to disadvantage. As the Supreme Court of Canada has
observed:

[T]he principle that discrimination can accrue from a failure to
take positive steps to ensure that disadvantaged groups benefit
equally from services offered to the general public is widely
accepted in the human rights field.[5]

This positive approach is more effective because it is accessible
and inclusive from the start. Employers and others who set
standards or requirements "owe an obligation to be aware of both
the differences between individuals, and differences that
characterize groups of individuals. They must build conceptions of
equality into workplace [or other] standards". [6] A proactive
approach to disability accommodation is therefore necessary.

2. With these principles in mind, achieving integration and full
participation for persons with disabilities requires
barrier-free and inclusive designs and removal of existing
barriers.

Preventing and removing barriers means persons with disabilities
should be able to access their environment and face the same duties
and requirements as everyone else with dignity and without
impediment. Where barriers continue to exist because it is
impossible to remove those barriers at a given point in time, then
accommodation should be provided to the extent possible, short of
undue hardship.

3. 3.1.3(a) Design by Inclusion

Integration requires up front barrier-free design and inclusion-by-
design in order to fully integrate persons with disabilities into
all aspects of society as much as possible.

This approach combats "social handicapping" and recognizes that
social attitudes and actions often contribute to "handicaps:" a
person may have few or even no limitations other than those created
by non-inclusive thinking. The Supreme Court has noted the need to
"fine-tune" society so that structures and
assumptions do not exclude persons with disabilities from
participation in society [24] and it has more recently affirmed
that standards should be designed to reflect all members of
society, insofar as this is reasonably possible.[25]

When constructing new buildings, undertaking renovations,
purchasing new computer systems, launching new Web sites, setting
up new policies and procedures, offering new services, or
implementing new public transit routes, design choices should be
made that do not create barriers for persons with disabilities.

Inclusive design is the approach that is most respectful of the
dignity of persons with disabilities.

3.1.3(b) Removing Barriers

Persons with disabilities are currently excluded by many kinds of
barriers, including physical, attitudinal and systemic ones.
Significant changes are required as part of the duty to
accommodate in order to provide equal access to employment
(including collective agreements), transportation systems,
buildings (except private residences), rental accommodation,
services, restaurants, shopping centres, stores and other places
and activities. These changes are necessary in order to give
meaning to the right to equality and freedom from discrimination
guaranteed to persons with disabilities under Part I of the Code.

A systemic barrier is not just a single rule or policy but a
combination of policies and/or guidelines that result in the
exclusion of people identified by a Code ground such as
disability. Organizations should understand and be aware of the
possibility that systemic barriers may exist within their
organization and actively seek to identify and remove them.

Barrier removal maximizes integration with one's environment so
ideally everyone is able to participate fully and with dignity.
Identifying and removing systemic barriers also makes good
business sense. It may reduce and prevent the filing of human
rights complaints and can make facilities and procedures more
comfortable for other groups such as seniors and for all people in
general.

3.1.3(c) Accommodating Remaining Needs

Even up-front barrier-free or inclusive design and systematic
removal of existing barriers may not result in full participation
for persons with disabilities. At this point, differential
treatment might be required in order to provide equal opportunity
to full participation.

Again, accommodating remaining needs through differential
treatment must be done in a manner that maximizes integration and
dignity.

4. Accommodating someone with a disability is seldom as
expensive or difficult as is sometimes imagined. Over two-thirds of
job accommodations cost under $500; many cost nothing at all.[52]

5. Governments have a positive duty to ensure that services
generally available to the public are also available to persons
with disabilities. Governments should not be allowed to evade their
human rights responsibilities by delegating implementation of their
policies and programs to private entities.[67] An
organization that assumes responsibility for a government program
must attend to the accommodation needs of its users.

6. There may be accommodations that require substantial
expenditure, which, if implemented immediately, would alter the
essential nature of government programs or substantially affect
their viability in whole or in part. In such instances, it may be
necessary to implement the required accommodation incrementally.

7. The person responsible for accommodation is expected to
consider whether accommodation of the needs of a person with a
disability may improve productivity, efficiency or effectiveness,
expand the business, or improve the value of the business or
property.

Example: An accommodation that affects a significant number of
people with disabilities, such as persons requiring wheelchair
access, could open up a new market for a storekeeper or a service
provider. By building a ramp, several more persons will be able to
access a store.

8. Some accommodations will be very important but will be
difficult to accomplish in a short period of time.

Example: A small municipality may be able to show that to make its
community centre or transportation system accessible in a single
year would cause undue hardship. Or, a small employer may find it
impossible to make its entrance and washroom facilities accessible
immediately without undue hardship.

In these situations, undue hardship should be avoided by phasing in
the accessible features gradually.

Some accommodations will benefit large numbers of persons with
disabilities, yet the cost may prevent them from being
accomplished. One approach, which may reduce the hardship, is to
spread the cost over several years by phasing in the
accommodation gradually.

Example: A commuter railroad might be required to make a certain
number of stations accessible per year.

In many cases, while accommodation is being phased in over an
extended period of time it may still be possible to provide interim
accommodation for the individual. If both short and long-term
accommodation can be accomplished without causing undue hardship,
then both should be considered simultaneously.

9. 5. Accommodation Planning and Implementation

The best defence against human rights complaints is to be fully
informed and aware of the responsibilities and protections
included in the Code. Organizations can achieve this by
developing disability accommodation policy and procedures as well
as by conducting an accessibility review.

10. Developing internal anti-discrimination policies and
procedures to resolve complaints as part of a broad program to
build a harassment-free and discrimination-free environment offers
many benefits. Dealing promptly with these issues saves time and
money. Letting people know the rules and defining
unacceptable forms of behaviour makes it possible to avoid costly
and upsetting hours in the courts or before specialized
tribunals. In that way, strong policies and programs that prevent
human rights complaints and help an organization effectively meet
its duty to accommodate make good business sense.

The following should be part of any complete strategy to resolve
human rights issues that arise in the workplace:

+ anti-harassment or anti-discrimination policy;
+ disability accommodation policy;
+ a complaint resolution procedure; and
+ ongoing education programs.

These elements should be developed in co-operation with the union
or other workplace or organizational partners.

A disability accommodation policy should:

+ outline rights and responsibilities
+ require barrier analysis and prevention
+ prepare and document accommodation plans
+ monitor and evaluate implementation.

5.2 Accessibility Review

Organizations should consider developing accessibility review
plans, undertaking reviews and implementing the necessary changes
to make facilities, procedures and services accessible to
employees, members, tenants, clients or customers with
disabilities.

Conducting the accessibility review will show to what extent an
organization is accessible to persons with disabilities and what
needs to be done.

An accessibility review plan should:

+ State the purpose of the review plan along with a rationale,
context and guidance for conducting a review;
+ Acknowledge an organization's obligations under the Code to
ensure accessibility for employees, clients or customers with
disabilities; + Identify internal and external resources that would
provide guidance for conducting the review;
+ Summarize current internal and external initiatives;
+ Identify quality service measures;
+ Outline the scope of the review and identify potential barriers
as they may relate to procedures and practices, facilities,
services and communications;
+ Outline timeframes and responsibilities around conducting an
accessibility review of the organization;
+ Outline a communications plan for the accessibility review so
that senior management, staff, members, clients, etc. are aware and
supportive of the initiative and its purpose. Results of the
accessibility review should be documented in a Summary of
Findings and Recommendations Report and submitted to senior
management. Senior management should make the results available to
all concerned along with a plan for undertaking barrier-
removal.

Accessibility review plans and barrier removal are up-front ways
that an organization can address the needs of persons with
disabilities. Developing and using a disability accommodation
policy will also help an organization meet its duty to
accommodate the individual needs of employees and customers with
disabilities in accordance with the Code. Such a policy will make
it clear to both employees with disabilities, others who require
accommodation, and managers responsible for providing
accommodation what company procedures are in place to assist
persons with disabilities effectively.

*****

CANADIAN PRESS STORIES ON TORY BUDGET CUTS TO THE OHRC

May 23, 1996 03.55 EST
Quebec-Ontario regional general news

Changes coming to human rights commission: report
TORONTO (CP)

Ontario's Human Rights Commission will be overhauled today, reports
the Toronto Sun.

The changes are aimed at reducing the number of complaints the
commission handles, restrict appeals and force the commission to
live within its budget, the Sun says, citing unnamed government
sources.

Missing from the announcement will be $9.3 million in new funding
the Conservatives promised during the election as balance for
scrapping the NDP's Employment Equity Commission.

Citizenship Minister Marilyn Mushinski now says giving more money
to the human rights commission won't improve it.

"We can deliver race relations more effectively," she said.

The government is also reviewing the province's Human Rights Code.
Eventually, the commission itself won't handle workplace and other
complaints that could be directed to other agencies.

*****

April 12, 1996 17.52 EST Quebec-Ontario regional general news

Human rights commission, racism grants to be cut
By Tom Blackwell

TORONTO (CP)
It was supposed to become speedier and more efficient -- the
centrepiece of the Ontario government's pared-down efforts to
combat discrimination.

But the heavily backlogged Ontario Human Rights Commission will
have its budget slashed by six per cent, government officials
revealed Friday.

The $700,000 cut, part of the sweeping restraint package detailed
by the province this week, comes despite the Conservatives'
repeated promise to improve the agency.

Meanwhile, the government also cancelled $3 million in anti-racism
grants that helped ethnic groups set up education programs and
improve relations with police.

The province had earlier ended funding to the "welcome houses" that
help new immigrants adjust, and disbanded the anti-racism
secretariat, absorbing its work and staff into the Citizenship
Ministry.

Last year, it did away with the controversial employment equity
program aimed at getting more visible minorities into the
workforce.

Giving less money to the human rights commission will make it more
difficult to tackle the agency's problems, critics say. "If they
made any cut to the human rights commission, which is
screaming for more resources rather than less, they're making a big
mistake," said Margaret Hageman of the Alliance for
Employment Equity.

"They had promised to beef up the commission. Well, where's the
beef."

Lawyers and groups that deal regularly with the organization say it
can take years to have complaints resolved and that many staff are
insensitive or poorly trained.

Tim Abray, a spokesman for Citizenship Minister Marilyn
Mushinski, acknowledged the commission still has problems, but said
a drive to streamline the organization made the funding cut
possible.

The province is still spending close to $11 million on the
agency, he noted.

"We thought it was very important to focus our resources and energy
on ensuring it is as efficient and effective as
necessary." Abray also said commission figures show the average
time to process complaints has decreased to 15 months from a high
of 22. The anti-racism grants were small amounts provided to groups
for education programs in schools and the community. The government
is committed to fighting discrimination, but wants to concentrate
on the rights commission, Abray said.

The province repealed the Employment Equity Act, a cornerstone of
the previous NDP government, because it said the plan promoted
quotas for visible minorities.

*****

November 18, 1999 16.39 EST
National general news

Spending-Cuts-Highlights
By The Canadian Press

Examples of 61 spending cuts and savings spanning 20 ministries
worth $309 million announced Thursday by Ontario's Conservative
government:

-- $5.4 million to be saved by using common providers for
programs at colleges and universities.

-- $25 million to be saved by streamlining welfare system.

-- $100,000 to be earned by more aggressively collecting criminal
code fines issued in court.

-- $3 million to be saved in administrative cuts to legal aid
clinics.

-- $500,000 to be saved in cuts to staff at Ontario Human Rights
Commission.

-- $12.2 million in cuts to space used by government staff.

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Last updated April 16, 2001