ODA Committee Update
dated Nov. 25, 2004
posted Nov. 29, 2004

ONTARIANS WITH DISABILITIES ACT COMMITTEE UPDATE ODA Committee Releases Fact Check on Second Reading Debates on Bill 118 - the First Two Days November 25, 2004 SUMMARY Below we provide a "Fact Check" on MPPs' speeches on Bill 118, the proposed Accessibility for Ontarians with Disabilities Act. This covers the first two days of Second Reading debates on this bill. All the points below pertain to the second day of that debate, held on Monday November 22, 2004. We do not here comment on the pros and cons of Bill 118, as argued by the various MPPs. Rather, we only try here to provide you with needed factual context, historical background and accuracy checks. This will hopefully help you draw your own conclusions. We note that the only speaker from any political party who made points that required our comments in this Fact Check was Mr. Cam Jackson, the Conservative Party's disability critic, and the former Citizenship Minister under the previous Conservative Government who brought in the Ontarians with Disabilities Act 2001. We emphasize that the ODA Committee is non-partisan. We checked speeches from all three parties to see where comment was required. We have not singled out any one party. Rather, we have provided comments where they happen to be required. Send us your feedback at: oda@odacommittee.net   SECOND READING DEBATES FACT CHECK FOR FIRST AND SECOND DAYS OF SECOND READING DEBATES ON BILL 118 * Referring to his efforts at developing Bill 125, his Ontarians with Disabilities Act 2001, Conservative MPP and former Conservative Citizenship Minister Cam Jackson stated: "although I must confess that I didn't take much time at all to speak with the private sector, or even with municipalities for that matter, by virtue of their adamance at the time that they could neither afford nor cope with the costs associated with bringing full accessibility to our province. That's an issue that I think merits being returned to, because the cost of accessibility is something this new bill doesn't address and we need to provide some assurances to the disability community about how we are going to achieve the lofty goals contained in Bill 118. The short answer, of course, is that if it wasn't going to cost anybody anything, we'd already be doing it. The fact that we're not doing it is not because there is a certain mean-spiritedness or closed-mindedness in this province, but that there are very real costs associated with making this great province of ours fully accessible." FACT CHECK: In fact, back in 2001 and beforehand, the ODA Committee repeatedly urged Mr. Jackson to bring the disability community, the municipalities and other stakeholders to the table to discuss what the ODA should contain. Mr. Jackson's Government's spring 2001 Throne Speech had pledged to seek common ground from the stakeholders in developing an ODA. Mr. Jackson then refused to bring us together with these other stakeholders. He now gives his explanation why. The reason he now gives was never given to us. Moreover, when the current Liberal government took up our suggestion, and brought these stakeholders to the table earlier in 2004, a significant degree of common ground was found. Mr. Jackson's suggestion that cost is the real, and by implication, the only reason why there are still barriers is not accurate. Over the past decade, new barriers have been created which could have been prevented at little or no cost. Moreover, many existing barriers could have been removed at little or no cost. It is the absence of strong and effective legislation that has left these barriers in place.   * Mr. Jackson, referring to his work in 2001 to develop his ODA bill, stated: "As I indicated, the challenge that was facing me at the outset, when I began work in this area, was that the private sector simply said, "Unless the government is going to pay for it, we're not prepared to respond." Frankly, I have letters and other indications from the Association of Municipalities of Ontario that, "Under no circumstances should you impose a model in this province unless you're prepared to give the money to the municipalities to make them compliant." Elsewhere in his speech on the second day of Second Reading debate, Mr. Jackson repeated the theme that unless the Ontario Government pays for it, it shouldn't require other sectors to remove barriers against persons with disabilities. FACT CHECK: In fact, since 1982 the Ontario Human Rights Code has required persons with disabilities to be accommodated up to the point of "undue hardship" in access to jobs, housing, goods, services, facilities and accommodation. This duty involves spending the organization's funds up to the point of "undue hardship" to that organization. Therefore, business and government bodies already are obliged to address these costs up to the point of undue hardship. They can't refuse to take any action unless the Ontario taxpayer finances it. As well, an organization that pays to remove barriers gets the financial benefits of doing so .e.g more customers with disabilities, more employees with disabilities, and thus, a better profit margin. The ODA Committee's position has been that while it would be helpful if the Government could help to cover these expenses, it is no excuse to fail to address barriers that the taxpayer won't foot the bill. By comparison, no one would argue that businesses should be free to pollute the environment as much as they wish, and that they should only be required to take corrective action if the Ontario taxpayer foots the bill. Moreover, the ODA Committee's position has been that the accessibility standards and time lines should take into account the costs involved in making change. If action is more costly, organizations should be given more time to take that action under the standards that will be set under new disability accessibility legislation. Bill 118 is designed to reflect this approach. * Mr. Jackson stated: "However, it taught me the first principle of working on these reforms: You must begin with the disability community. You must begin with a model that empowers them, because if we ever attempt to put the disabled community on the same footing as those in positions of authority, they will never be able to move the benchmarks, and negotiated outcomes have never worked anywhere on our continent. " FACT CHECK: There is no evidence that "negotiated outcomes" where the disability community is at the table, negotiating with other stakeholders such as business and government, has never worked. This is the very model which the ODA movement has campaigned for.   * Mr. Jackson stated regarding his 2001 ODA bill: "One of the first dichotomies between the new government's Bill 118 and the existing law in the province, Bill 125, is that there are very rigid, prescriptive outcomes required for the province of Ontario, as a government, to make all its publicly owned buildings and programs fully accessible. It goes on, in its regulatory framework, to say they have 10 years in which to make this fully compliant." FACT CHECK: In fact, the ODA 2001 set no 10-year deadline. The previous Conservative Government, under Mr. Jackson's direction, rejected any deadlines or time lines that the ODA Committee proposed be added to his 2001 bill. The Liberals and NDP proposed such amendments to his bill in Standing Committee on December 11, 2001. Mr. Jackson's 2001 Bill 125, which became the Ontarians with Disabilities Act 2001, was not in truth "proscriptive". We had no remedy if the Ontario Government ignored that bill's words. Moreover, Bill 125 was certainly not "proscriptive" regarding accessibility of Ontario Government programs. It left it to the Ontario Government to decide what steps if any to take, and when if ever to take them. Indeed, the previous Conservative Government itself opted to ignore its own Ontarians with Disabilities Act 2001's requirement to make its first annual accessibility plans public by September 30, 2003. It used the ongoing 2003 election campaign as its reason for withholding them, thereby disregarding its own law. * Regarding his 2001 bill, Mr. Jackson stated: "It was built on one basic principle: The government of Ontario was in no position to go lecturing the private sector, the extended public sector or the municipalities on how they should become more accessible when we as a government were not leading by example." He later stated: "The big issue in the previous legislation, and one that isn't clear in this new legislation, Bill 118, is the fact that the province of Ontario has to become fully accessible first." FACT CHECK: In fact the previous Conservative Government said that it was "leading by example" all throughout its eight years in office. Its "example" included its disregard of its own legislation, described above. The ODA Committee has argued that while such legislation should of course be phased in, persons with disabilities shouldn't have to wait for all Ontario Government programs to be accessible before efforts at accessibility even begins in the private sector. People with disabilities need to buy food, clothing and medications, to see a doctor, etc., now, not only after the Ontario Government leads by example. * Mr. Jackson stated: "I'm going share with you one little example of why, in my view, this became so important. The day I was given the assignment, the first question I asked of my ministry -- the same ministry that my colleague from Hamilton Mountain now has the privilege of serving -- was, "How many people in our ministry have a disability?" In other words, I wanted to put a disability lens on the very ministry I had inherited. " FACT CHECK: It is, of course, positive that Mr. Jackson sought the experience of persons with disabilities in his efforts. In fact, before the Conservatives took power in Ontario in 1995, the previous NDP Government had passed legislation requiring the Government and others to collect such data on representation of persons with disabilities in the workplace. The NDP Government had collected such data on the Ontario Public Service. Making Mr. Jackson's efforts as described above more difficult, the Conservatives, on taking power in 1995, promptly repealed that legislation, the former Ontario Employment Equity Act. The Conservatives' law, repealing the NDP's Employment Equity Act, , required that any such data on representation of groups like persons with disabilities in the Ontario Public Service and other workplaces be destroyed. * Mr. Jackson stated: "What is of concern to me in this legislation is that we are now putting everybody on the same time frame, and we're putting everyone on the same mutual goal of achieving negotiated standards for accessibility." FACT CHECK: In fact, this new bill, Bill 118, doesn't require the same "time frame" for everyone. It permits different time frames for the Ontario Government, municipal governments, bigger businesses and smaller businesses. During the consultations this spring, business and the municipal sector wanted that kind of flexibility. We were entirely agreeable with it.   * Mr. Jackson stated: "If I were a member of the disability community, I don't think I'd want to sit down and negotiate it. I think I'd want to be put in an empowered position to say, "Here's the standard which we need to apply" -- non-negotiable; this is the standard." FACT CHECK: Back in 2001, Mr. Jackson, while he was Citizenship Minister, bemoaned the lack of accessibility standards. He then promised that under his bill, the disability community would be put in the "driver's seat," driving change, and setting those standards and deadlines. None were created under his Government thereafter. His own successor, Conservative Citizenship Minister DeFaria, supported his Accessibility Advisory Council's refusal of our request that they hold public consultations on accessibility standards.   * Mr. Jackson stated: "I'm going to use a reference which may be offensive to some, but it is a valid point. That is that we should ask no less of the government to set a standard for accessibility for disabled persons, in a model not too dissimilar from the way in which we provided language rights in this province for francophones. Yes, it was controversial; yes, it was expensive, but it was right. It was right because it was improper for a unilingual francophone to be struggling in a hospital, unable to communicate with anyone in that hospital. This is fundamentally wrong and shouldn't occur in this province. Yet we're not applying that same principle to the empowerment of the disabled community, who need to communicate for their own medical health and well-being, for emergency services and for access to government programs." FACT CHECK: In fact, Mr. Jackson's hospital example is significant about the need for new, strong legislation. His raising this example may signal a shift in the Conservative Party's approach. In the fall of 1997, the Supreme Court of Canada held under the Canadian Charter of Rights that provinces must fund the cost of sign language interpreters in hospitals to enable deaf persons to get full access to such things as emergency room services. The Conservative Ontario Government had intervened in the Supreme Court of Canada to oppose that argument, but lost. The ODA Committee repeatedly wrote the previous Conservative Government to urge it to comply with that Supreme Court of Canada ruling. The Government often refused to even answer our letters. It took that Government some four long years to come up with funding.   * Mr. Jackson criticized the new bill, Bill 118, and specifically its approach to negotiating standards, by reference to what he called the stronger model of provincial Employment Equity legislation. He stated: "With a little bit of history -- I know my colleague Mr. Marchese spoke at length on this bill and talked about employment equity, and he made some very important points and some significant insights into the mind of the governments, past and current, about our level of commitment. But if we look back at those days -- and I recognize a couple of ministers from the government in the House tonight who were around when the NDP, as part of the accord, insisted the government of the day of David Peterson, a minority government, bring in employment equity. Employment equity treated five identified groups equally: the disability community was identified, aboriginals, francophones, and so on. Interjection. Mr. Jackson: And women and multicultural. So we've used the policy framework many times in this province with empowerment and prescriptive outcomes as to what must change. In those days, for example, David Peterson didn't ask women, "Well, look, why don't you just go out and negotiate with your employers? We'll give you 20 years to reach a happy medium and then we'll create some group that will ultimately arbitrate between you, the person who wants this dignity, and the employer, who has the upper hand." That's the model, which, in my view, may not get this government to the point it wants to be when they say they would like Ontario to be fully accessible in 20 years." Later Mr. Jackson added: "I am reminded of my colleague Mr. Marchese's eloquent and passionate discussion about employment equity. We still don't have employment equity. I'm not here to discuss my party's past with it. He put on the record that the NDP was very committed to that. For them, that is a really important measure of whether the disabled community is going to be able to get full access to employment and not be discriminated against. That is one mechanism. That's a prescriptive way in which governments can address that challenge. There is none of that in this legislation, in terms of achieving certain goals or benchmarks for persons with disabilities in our province." FACT CHECK: Mr. Jackson's evident support of employment equity also appears to signal a possible shift in Conservative Party policy. As noted above, Mr. Jackson and the previous Conservative Government campaigned against employment equity legislation in 1995 and promptly repealed it after they took office. In the 1995 election, the Liberal Party also campaigned against the employment equity Act. That Act wasn't brought in during the period of the Liberal Government under David Peterson. It was brought in under the NDP Government 1990-1995.   * Mr. Jackson stated regarding his ODA 2001: "However, if you look at the current legislation, Bill 125, it already has some very specific language that is prescriptive for transportation systems in this province. It puts an onus on the government of the day to fund those programs. It says you cannot fund new transportation systems that aren't accessible. It puts those conditions on that. We don't need to negotiate that with the municipality; we merely have to say, "If you're going to get one cent on the dollar for gasoline, and we're going to pump another $180 million into transit systems, they must be accessible." We don't need to sit down with Toronto's transit. We don't need to sit down with AMO to say, "You know, we could buy two buses that, because they're discounted because they don't buy them in the United States anymore, we could get a real bargain. Let's just get those kind of buses." We already have on the statutes their inability to do that." FACT CHECK: In fact, Bill 125, the Conservative Government's Ontarians with Disabilities Act 2001, didn't impose those strict requirements on public transit providers. In 2001, the ODA Committee proposed amendments to Mr. Jackson's bill to impose such strict requirements. At Mr. Jackson's direction, the previous Conservative Government voted them down, when the opposition Liberals and NDP tabled amendments setting out our proposals. Moreover, before the Conservatives took power in 1995, the earlier NDP Government had implemented a funding policy requiring local public transit providers to only use provincial tax dollars to buy accessible new buses. The Conservative Government eliminated that policy after it took power in 1995.   * Regarding his 2001 ODA bill, Mr. Jackson stated: "They have been a part of the legislation and the law of this province, that every single minister and every single ministry must report to the Chair of Management Board how much it's going to cost them to modify their ministries to make them accessible to persons with disabilities. That's in the legislation. It's not going to be in the new legislation. " FACT CHECK: In fact his bill never required provincial ministries to prepare and submit those cost estimates.   * Mr. Jackson repeatedly referred to his bill, Bill 125, as "proscriptive". That term means that it was mandatory - it required barriers to be removed. In fact his bill generally didn't require barriers to be removed. Its only enforcement mechanism, a fine provision, was never proclaimed in force. That fine, in any event, wasn't available if a public sector body failed to remove or prevent a barrier. It only would have applied, had it been proclaimed in force, had a municipality with a population over 10,000 failed to create an accessibility advisory committee, or if a public sector organization failed to make an annual accessibility plan. As explained above, Mr. Jackson's bill was not "proscriptive" enough to make his own Government obey its own law, when that Government decided not to bring forward annual ministry accessibility plans on September 30, 2003. * Describing his 2001 ODA bill, Mr. Jackson stated: "These are the individuals who are part of the history of this province in terms of their commitment to developing an Ontarians with Disabilities Act that was far more prescriptive and kept more of the control in the hands of the actual access advisory committees." In fact, under the ODA 2001, municipal accessibility advisory committees had no "control". They could make recommendations. Municipalities neither had to implement them nor give any reasons for not doing so. Under Mr. Jackson's directions, the previous Conservative Government defeated our proposed amendments, put forward by the opposition Liberals and NDP, which would have given those accessibility advisory committees more "control" by requiring municipalities to at least respond to recommendations that the accessibility advisory committees make. * Mr. Jackson said regarding the Liberals' new bill: "Again, I want to publicly state how much I appreciate that the minister has retained about 80% of the model and the framework and the foundation upon which decisions were being made by the disabled community. If there's any criticism, it's that their composition is now being somewhat watered down in the name of the ability to come in and negotiate outcomes with the private sector and these committees." FACT CHECK: In fact, nothing in the Liberal Government's new bill, Bill 118, regarding the participation of persons with disabilities in setting mandatory accessibility standards "waters down" anything in the earlier Ontarians with Disabilities Act 2001.   * Mr. Jackson states: "In my view, the second level of government which doesn't have the right to say, "We can't afford it," is a municipal government, and they too should be prescriptive in terms of the reforms they create. They have to, in fact, respond to the needs of the disabled community. " FACT CHECK: In fact, earlier in the same speech, as noted above, Mr. Jackson said that the municipalities told him they opposed new mandatory legislation back in 2001 unless the province would pay for barrier removal. He also said earlier that this was what stopped him from going further in his Ontarians with Disabilities Act 2001.   * Regarding the impact of his earlier ODA bill on municipalities, Mr. Jackson stated: "They have to, in fact, respond to the needs of the disabled community. It's why, in the legislation, we insisted that if you're building a brand new building or substantively retrofitting one, the access advisory committee has to have a sign-off authority to ensure that their access standards are met." FACT CHECK: In fact, the ODA 2001 didn't give this "sign off" power to municipal accessibility advisory committees. Section 12 of the ODA 2001 lets those committees give the municipality non-binding advice on the accessibility of new municipal buildings. It doesn't require the municipality to follow that advice or explain why if it doesn't.   * Mr. Jackson stated: "I have some concern with legislation which continues to support the notion that there is still the opportunity to file appeals of any decisions that are made and file charges with the Human Rights Commission. Under no circumstances would we ever support anything that denied that to someone in our province. On the other hand, you can look at that as saying, "How good can the legislation be if it still envisages a significant amount of activity with the Human Rights Commission?" FACT CHECK: In fact, the firm position of the previous Conservative Government was that the only enforcement mechanism persons with disabilities need was to file complaints with the Ontario Human Rights Commission against barriers, one at a time.   * Mr. Jackson stated: "In the brief time I have to wrap up, I just want to remind members of this House that, in 1995, all three leaders vying for voters in this province were asked if they would bring in an Ontarians with Disabilities Act. The NDP said they would. The Conservatives, with Mike Harris's signature attached, said he would and he was held to that. At the time, Lyn McLeod did not sign that. That's a matter of historical record." FACT CHECK: In fact, the Liberal party under Lyn McLeod was the first party in the 1995 election to promise an Ontarians with Disabilities Act. The Conservatives made the second promise. The NDP didn't make any election commitment to pass an ODA in the 1995 election campaign. Five years earlier, the first party leader to ever promise an Ontarians with Disabilities Act in any provincial election was the NDP's Bob Rae, in the 1990 election. The NDP was elected in 1990, but that Government never brought forward an Ontarians with Disabilities Act. Despite that, NDP private member Gary Malkowski did bring forward his own Private member's ODA bill in 1994. It made it through second reading, but the 1995 provincial election prevented that bill from reaching third reading in the Legislature, needed to pass into law.

 

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