ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
The AODA Alliance’s Detailed Analysis of the Final Report of the Mayo Moran Independent Review of the Implementation and Enforcement of the Accessibility for Ontarians with Disabilities Act
April 29, 2015
Part 1: Major Findings and Recommendations in the Moran Report that We Support
OVERVIEW AND SUMMARY
In September, 2013, the Ontario Government appointed Professor Mayo Moran to conduct an Independent Review of its implementation and enforcement of the Accessibility for Ontarians with Disabilities Act (AODA). Her task, required under section 41 of the AODA, was to see if Ontario is on schedule to reach full accessibility for people with disabilities by 2025, as the AODA requires. If it is not, her job was to recommend actions needed to get Ontario back on schedule.
In November, 2014, Mayo Moran gave the Government of Ontario her final report. The Government studied it for some three months before it made that report public on February 13, 2015.
To date, the Government has not announced which of its findings and recommendations the Government accepts. It has not announced any action plan for implementing that Report. On February 13, 2015, the day the Government made this Report public, the Government announced that “…we are already moving forward on a number of Provost Moran's recommendations.” In a February 25, 2015 news story on CITY TV News, Economic Development Minister Brad Duguid is quoted saying: “…we're looking forward to embracing many, if not all, the recommendations in Mayo Moran's report.”
The AODA Alliance is making public in two parts our analysis of the Moran Report. Today, we release a detailed analysis of the many findings, conclusions and recommendations in the Moran Report that we endorse. In the next days, we will make public Part 2 of our analysis. It will look into the few recommendations in the Moran Report with which we do not agree.
The Moran Report’s many findings and recommendations that we here support are the same as, or very similar to, key points that we have made to the Government for years, and that we submitted to the Moran Independent Review. This report is therefore in important ways a huge vindication of the efforts of the AODA Alliance, and of people with disabilities and their supporters around Ontario. We are delighted with the findings in this report that we describe here. The Moran Report shows that we and the many who support us were right in raising these serious concerns with the Government’s implementation and enforcement of the AODA.
The time for the Government to act is now. The findings that we discuss in this Part of our analysis of the Moran Report contradict the Government’s claim that it is a global leader on accessibility.
We summarize the findings and recommendations that we support, described further below, as follows:
- It is important to now assess whether Ontario is on schedule for full accessibility by 2025.
- Ontario is not now on schedule for full accessibility by 2025.
- It is not too late for the premier and the government to show renewed leadership needed to get Ontario on schedule for full accessibility by 2025.
- Accessibility is good for everyone while barriers hurt everyone.
- There is strong public support for the AODA’s goals.
- Current AODA accessibility standards are insufficient to ensure that Ontario reaches full accessibility by 2025.
- There is a pressing need for the government to at last effectively enforce the AODA.
- There is a strong need for the government to give better support for obligated organizations that seek to comply with the AODA.
- There is an immediate need for an effective public education campaign on the AODA.
- Ontario needs new accessibility standards.
- There is a need for more government action to address ongoing barriers in the built environment.
- The government’s slow pace for reviewing accessibility barriers in ontario laws contributes to delay in reaching full accessibility.
- The Ontario government is not effectively leading by example.
- The government needs to encourage obligated organizations to go beyond the specific requirements in AODA standards.
- Municipal accessibility advisory committees need to be strengthened.
- There is an immediate need to harness the 2015 Toronto Pan/Parapan American games to achieve progress on accessibility of tourism and hospitality services.
The Final Report of the Mayo Moran AODA Independent Review can be downloaded in MS Word format.
A Closer Look at the Mayo Moran Report’s Recommendations We Support
1. It is Important to now Assess Whether Ontario is on Schedule for Full Accessibility by 2025
The Moran Report found that it is “imperative” to now ask hard questions about how much progress Ontario has made towards full accessibility, so that any course corrections can quickly be made. Ten of the twenty years have already passed during which Ontario must become fully accessible. The Report states:
“At this midpoint, however, it is imperative to ask ourselves hard questions about our progress. If course adjustments are necessary, they must be undertaken quickly or we will fall short of our commitment to achieve accessibility by 2025.”
2. Ontario is not now on Schedule for Full Accessibility by 2025
Over ten years of implementing the AODA, the Report found that “much good work has been done and considerable learning has taken place.” It said there has been “considerable progress.”
However it found that “the pace of change has been slower than many hoped.” It concluded that people with disabilities see the pace of change under the AODA as “agonizingly slow.” Momentum on accessibility “seems to have stalled.” The Report concluded: “The overall perception is that the pace of change is extremely slow and much remains to be done to achieve the goals under the AODA.”
The Report recognized: “The overall impression from the consultations with persons with disabilities is one of continued support for the AODA, mingled with frustration that its slow implementation has resulted in rather modest change on the ground.” It concluded that “the rate of progress is a widespread source of concern.”
It described the experience of people with disabilities by acknowledging that there has been some improvement, but:
“According to many people with disabilities, their day-to-day experience proves we are not on schedule. For example, a presenter in Toronto called the AODA the “Great Disappointment Act” while a speaker in London said we could be facing a lost generation because of the slow rate of change. One called 2025 “a joke” because of continued discrimination; another felt it was a pipe dream. Other participants said they felt frustrated, angry or let down. One asked, “How much longer do we have to wait?” – while another observed that “change is not trickling down – things have not changed for persons with disabilities.””
As one illustration, the Report described: “The Review was told by some participants that they do not believe that the AODA has been effective in addressing non-visible disabilities, such as mental illness, autism, learning disabilities, traumatic brain injuries and others.”
The Report concluded: “Most of these concerns were not so much with the AODA itself, as with “the very slow pace that has characterized its implementation.”
The Report recognized that the AODA has not lived up to the early promise for it, in Premier Dalton McGuinty’s speech on October 12, 2004 when the AODA was first introduced into the Ontario Legislature for First Reading. Premier McGuinty then stated: “Every person deserves the opportunity to learn, work and play to his or her full potential. “
The Report described many recurring barriers against people with disabilities that remain in place so long after the AODA was enacted. These included barriers that would cost little or nothing to remove or prevent, observing: “All in all, businesses may be doing more paperwork and filing more forms under the Customer Service standard, said one participant, but little change is happening at the storefront level.”
Up to now, the Government has placed much emphasis on saying that if people with disabilities face problems getting accessible Customer Service, they should use the feedback mechanism that obligated organizations must have in place to hear back about problems with accessible Customer Service. Yet the Report in effect shows that the commendable requirement in the Customer Service Accessibility Standard, that obligated organizations establish customer feedback mechanisms, is not a meaningful solution. This is because the Report found:
“The Review also heard that although the Customer Service standard requires organizations to make information about their customer service feedback process readily available, many are not doing so effectively. The result is that few people know that there is an avenue that could help to correct problems and organizations do not receive the feedback that could enable them to remedy problems and improve their customer experience. Moreover, some participants suggested that people may be reluctant to use feedback mechanisms for fear of being seen as troublemakers.”
The Report made especially damning observations about the minimal impact of the AODA on the employment of people with disabilities. It found “The Review heard that the AODA has made little difference on the employment front.”
This is especially important, for two reasons: First, in 2011, the Government enacted employment accessibility requirements in the Integrated Accessibility Standards Regulation. Over three years later, these provisions were therefore having little practical impact. Second, in Premier Wynne’s first Throne Speech on February 19, 2013, the Government set as a priority, expanding job opportunities for people with disabilities particularly in the private sector. More than two years later, the Government has done nothing more than appoint an advisory council to give it ideas on what to do to live up to that commitment.
Similarly the Report stated: “The Review was told that the AODA has not been effective in addressing non-visible disabilities.”
The Report spoke at length about the many barriers that people with disabilities continue to face in Ontario, even ten years after the AODA was passed. For example, illustrating ongoing barriers in public transit, the Report noted: “Indeed, the Review was told of the difficulty that people with disabilities had in arranging to attend some of the AODA public consultations because of transportation challenges.”
Elsewhere the Report states: “In smaller towns, for example, taxis are often the only viable form of public transit, but more often than not are inaccessible or in short supply." We note that these observations come over three years after the Government enacted transportation accessibility requirements in the Integrated Accessibility Standards Regulation.
Among the many other areas of barriers that the Report responded to, it acknowledged the central importance of accessibility of buildings, concluding:
“Perhaps the most overwhelming number of concerns with barriers were those raised about the built environment, specifically access to buildings and public spaces. Again, many examples were cited to the Review – including provincial government offices located in inaccessible premises, or even relocating to inaccessible buildings. Participants told of brand new private sector buildings with no power doors, a new city park that was inaccessible to people with mobility devices, and hospital renovations completed without way-finding for people who are blind. A new playground banned children in wheelchairs from using a splash pad because it was felt the wheels could damage the surface.”
The Report also noted the fundamental importance of information and communication. It stated: “The Review heard that obtaining information in usable formats remains a major problem.”
3. It is not too Late for the Premier and the Government to Show Renewed Leadership Needed to Get Ontario on Schedule for Full Accessibility by 2025
The Report made the important finding that it is not too late for the AODA to live up to the great potential that the Government articulated for this law when it first introduced it into the Legislature over a decade ago. The Report concluded:
“Indeed, this is a very good time for the Province to show the kind of leadership that will breathe new life into the AODA. This is important not only because it will enable us to keep our 2025 commitment, but also because accessibility affects a large and growing segment of the population. An inclusive society of the kind that the AODA aims at will be healthier and more robust along many dimensions.”
The Report concluded that the new Government elected in Ontario in June 2014 “holds the promise of creating renewed momentum for accessibility in Ontario.” The Report pointed specifically to the potential for Premier Wynne to make a decisive difference. It found: “The commitment of the Premier and through her the Government of Ontario can make a critical difference at this time.”
We strongly endorse the Report’s call for renewed leadership by the Ontario Government, including Premier Wynne, on disability accessibility. Five years ago, we agreed with the final report of the 2010 Charles Beer AODA Independent Review that Ontario then needed renewed Ontario Government leadership on the AODA. We applauded the call in the Charles Beer AODA Report for the Government to revitalize and breathe new life into the AODA with transformative change to its work in this area.
We were profoundly disappointed that the Government has not acted on that earlier recommendation. We were saddened and frustrated when instead, the Government responded five years ago to that recommendation by simply declaring that it has already shown substantial leadership on accessibility. In her August 11, 2010 response to the Charles Beer AODA Independent Review final report, the minister then responsible for the AODA’s implementation, Madeleine Meilleur, stated: “I believe, as the Minister responsible for accessibility, that this government has shown substantial leadership when it comes to improving accessibility.”
The findings in the Beer and Moran Reports show in effect that that self-congratulatory claim is not correct. The Ontario Government’s August 11, 2010 response to the final report of the Charles Beer AODA Independent Review, and our analysis of it.
The Moran Report emphasized the fundamental importance of Ontario Government leadership on accessibility. “The philosophy of the AODA is that the Government of Ontario leads the way.” The Moran Report concluded that Government leadership in this area also has “a moral dimension.”
We endorse each of the specific actions that the Report urged to make the Government an effective leader on accessibility, as follows:
“I must repeat, as Charles Beer said, that re-establishing the leadership and the commitment of the Government of Ontario to accessibility is critical to the momentum of the AODA. Ontario has the potential to be a leader in this regard but, in order to do so, it must firmly establish accessibility as a government-wide priority. With a new government in place, an extraordinary opportunity exists to renew the momentum behind the AODA.
Strong central leadership is critical for a variety of reasons. It would drive accessibility across the range of government programs, services, facilities and workplaces. It would sustain and facilitate initiatives involving different ministries like joint inspections and joint analysis of where new standards are necessary. Similarly, a central commitment and focus on accessibility should also lead to greater linkages to capital and other spending decisions to ensure accessibility objectives are addressed, as well as to the review of proposed policies and legislation through an accessibility lens.
It is up to the Premier to ensure that the administrative structure is put in place to make all of this happen. One does not have to be an organizational design expert to see that nothing gets done in government unless someone is held accountable for results. I therefore recommend that the Premier formally charge the Minister of Government and Consumer Services with responsibility for ensuring that the Ontario Public Service becomes a fully accessible employer and service provider. An associate deputy minister position could be created to support the Minister in this role.
Of course, the Minister of Economic Development, Employment and Infrastructure would remain responsible for the administration of the AODA, including the development and enforcement of standards. Following another of Charles Beer’s recommendations, I believe the Minister of Economic Development, Employment and Infrastructure should be given the additional title of Minister Responsible for Accessibility and use it when performing his accessibility-related duties. This would help to raise the public profile of the AODA.
The Government recently took a major step to enhance its leadership on accessibility when it appointed David C. Onley, Ontario’s 28th Lieutenant Governor – who made accessibility the theme of his term – as a Special Advisor to champion accessibility in Ontario. To support this appointment and the efforts to make the Government itself a leader in accessibility, the Premier should explicitly and prominently direct all ministries to treat accessibility as a key government-wide priority. With strong government leadership by example and a renewed commitment to progress, Ontario can lead the way in creating an inclusive society.”
4. Accessibility is Good for Everyone While Barriers Hurt Everyone
The Report found, as both we and the Government have repeatedly said, that accessibility is not only the right thing to do, but makes “good economic sense.” It will significantly increase Ontario’s wealth, reduce demands on the public purse and enable us to better address our aging population.
It also found that “…increased access by people with disabilities to retail and tourism opportunities would accelerate growth in these sectors, while clusters of accessibility-focused businesses could open up new global markets for the province.”
Similarly the Report reaffirmed what we and the Government have said for years, namely that inaccessibility is deeply harmful to our society. For example, regarding barriers in the workplace, the Report concluded: “the unemployment of people with disabilities is harmful, not only because it causes poverty, but also because it means decisions in government, education, health care, business and other fields are made without their input.”
5. There is Strong Public Support for the AODA’s Goals
The Report found “overwhelming support” for the AODA’s goal of full accessibility. It stated: “The full range of obligated organizations – from municipalities, hospitals, school boards, universities and colleges, to businesses large and small – voiced their commitment to an accessible Ontario and to steady improvements in accessibility.”
From this we conclude that the public would welcome bold, well-designed new Government action to strengthen the AODA’s implementation. The Government need not persist with the ongoing timidity it has exhibited on this issue in recent years.
6. Current AODA Accessibility Standards are Insufficient to Ensure that Ontario Reaches Full Accessibility by 2025
The Report documented in excellent detail a wide range of serious problems with AODA accessibility standards enacted to date. It echoes the critique of these standards that we submitted to the Moran Review, and that we have raised time and again with the Government. We have shown that these accessibility standards, even if fully obeyed, won’t ensure full accessibility by 2025. For them, existing accessibility standards need to be strengthened to meet our accessibility needs.
The Report summarized: “More generally, many participants believed that timelines in the standards are too long, several requirements are weak, little is being done to remove existing barriers, and exemptions and exceptions are too broad.” The Report gave diverse examples from different corners of the disability community. For example, sweeping exemptions from a wide range of AODA duties are granted based on an obligated organization’s number of employees. The Report stated: “It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.”
The Report also documents that the accessibility standards enacted to date were widely criticized for failing to deal much, if at all, with retrofits to address existing barriers, in buildings not then under renovation. The Report also commendably identified that there is a pressing need to fill the gap caused because existing accessibility standards not requiring accessibility in extra-nets, the point beyond a log in on an organization’s website.
As yet another example, the Report said that obligated organizations voice strong concern that AODA accessibility standards were not harmonized with the Ontario Human Rights Code, to let obligated organizations be comfortable that complying with an AODA accessibility standard fulfilled their duties under the Human Rights Code. We have pressed the Government for years without success to ensure that accessibility standards meet the accessibility required by the Human Rights Code. The Government has to date not listened to us on that issue. The Report shows the harm that has resulted from the Government’s failure to listen to us, when it noted:
“Municipal stakeholders urged the Government to search for ways to harmonize AODA standards with the Code. Otherwise obligated organizations in compliance with the AODA remain vulnerable to legal challenges under the Code. The Review heard of confusion and anger on the part of businesses that find that complying with one law does not protect them against complaints under another. In particular, there seems to be an expectation that complying with the AODA satisfies one’s accessibility obligations under the Human Rights Code when in fact it does not. The resulting confusion was frequently commented upon as a matter that should be addressed in order to reduce complexity for obligated organizations.”
Neither we, nor as we read it, the Moran Report suggest that an obligated organization should get a free pass under the Human Rights Code just because it complies with an AODA accessibility standard.
The Report voiced serious concerns that accessibility standards enacted to date are too vague, confusing and unclear. For example, it observed:
“One of the most common pieces of feedback received by the Review focussed on the difficulty of interpreting the meaning of the standards under the AODA. Both the public and private sectors said they had problems understanding their obligations because the standards are often not clear enough or specific enough about what is required. Public sector organizations, while doing their best to comply, are often uncertain about what exactly compliance with the standards requires. The fact that the standards have been framed very generally means that it is hard to know when they have been met. For example, the standards do not offer reference points for several general obligations, such as what it means to provide accessible formats or incorporate accessibility features into procurement. This leaves organizations to depend on guesswork or expensive consultants and lawyers to determine what compliance entails.”
7. There is a Pressing Need for the Government to at Last Effectively Enforce the AODA
A central theme from all the Moran Independent Review’s consultations was “the vital importance of robust, effective and visible enforcement to the integrity of the AODA regime.”
The Report summarized:
“A wide range of stakeholders reported that the lack of visible enforcement is a critical impediment that is holding Ontario back from achieving the 2025 goal for an accessible province. Just as the Ontarians with Disabilities Act was criticized by the disability community as “toothless,” some now feel the same way about the AODA. This concern, it should be noted, is by no means limited to disability advocates. Others including business groups observed that the Government has shown little appetite to wield the substantial enforcement mechanisms contained in the legislation. The result as reported to the Review is a very mixed message about the importance of the AODA.”
The Report described the government’s own statistics on rampant violations of the AODA in the private sector which the AODA Alliance unearthed and made public in the 2013 fall. The Report added: “These statistics were said to bear out the anecdotal impression that businesses are not complying well.”
The Report confirmed our oft-repeated concern that the Government’s failure to effectively enforce the AODA leads too many obligated organizations to fail to comply with it, stating:
- “Disability stakeholders described the tolerance of such non-compliance as a “stunning contrast” with the way government enforces other laws, such as environmental protection measures. A number of consultants and disability groups that work with the private sector feel some businesses are waiting to see who gets fined and will not move until they see enforcement happening.”
- “The Review was frequently told that a few high-profile fines could make a big impact. Despite weak public education efforts by Government, some disability stakeholders felt that the private sector has still had ample notice of the AODA’s requirements. Hence they did not believe that enforcement should be delayed while publicity campaigns are ramped up.”
- “A wide range of stakeholders reported that the lack of visible enforcement is holding Ontario back from achieving the 2025 goal for an accessible province. One asked, “How effective would speed limits be without speeding tickets?”
- “Disability groups, business and the public sector all urged the Government to be more transparent about its enforcement activities. Data on compliance levels and enforcement actions overall and by sector and class of organization should be compiled in periodic reports. Government should also make its enforcement intentions known, to counter the perception that non-compliance with the AODA has no consequences.”
The Report concluded that “…reliable information regarding enforcement of the AODA is difficult to locate.” This is especially striking since, as a result of the AODA Alliance’s advocacy efforts, Premier Wynne had promised back on May 16, 2014 to make public comprehensive information about the AODA’s enforcement. That promise still remains unkept to this day, almost one year after it was made. In her May 16, 2014 letter to the AODA Alliance, Premier Wynne pledged: “To ensure increased transparency going forward, we will make an annual report publicly available on levels of compliance including the effectiveness of our enforcement measures.”
The Report reviewed a range of good options for strengthening the AODA’s enforcement. It reached powerful conclusions that we endorse about the importance of the Government swiftly making public a comprehensive and detailed enforcement plan for the AODA. It concluded:
“I emphasize that the credibility of the AODA regime at this juncture depends to a significant extent on confidence in the enforcement plan. Timeliness and public release of this plan are key factors in building the credibility that the AODA requires to achieve its crucial goals.”
Regrettably, the Government has still not done this. Instead, the Government has repeated an inaccurate claim that it already has made public such a plan. On November 14, 2014, the Government posted a short 7-page document on its website. It included little new and little detail on AODA enforcement plans. The Government has since claimed this document to be its comprehensive AODA enforcement plan.
We support the Report’s call for the Government to make public timely and detailed information about the results of its enforcement activity, akin to that which the Government does under other enforceable legislation.
In this context, the Report offered excellent specifics which the Government could implement virtually immediately, if it wished. The Government’s failure to do so five months after receiving the Report is a cause for concern. The Report recommended:
“I emphasize that timeliness is a key aspect of transparency. While time frames vary widely across government, some regulators post enforcement information on a quarterly basis or even more frequently. Given that enforcement was a top issue raised during the consultations for this Review, I recommend that the ADO release information on AODA enforcement actions at least every three months. This information should be posted promptly and should reflect quarterly results as well as year-to-date totals, broken down by sector and size of organization. At a minimum, it should include such measures as:
- Number of notices of proposed order issued
- Total amount of proposed penalties
- Number of orders issued and total amount of penalties imposed
- Number of appeals from orders and the outcome
- Total amount of penalties including changes ordered by the appeal tribunal
- Orders categorized by subject matter.”
We also endorse the Report’s call for the Government to effectively incorporate public feedback into compliance and enforcement efforts. The Report documented what we have heard for years anecdotally, that when a member of the public reports an AODA violation to the Government, the Government has deflected the call. The Report stated: “The ADO redirects complaints by encouraging individuals to contact obligated organizations directly to provide feedback on accessibility barriers (through the process required under the Customer Service standard). As well, individuals who believe they have been discriminated against are advised of their option to file a complaint with the Human Rights Tribunal of Ontario.”
For the Government to refer the public to an obligated organization’s feedback mechanism is hardly productive, when the Government knows that even now, fully 60% of private sector organizations with at least 20 employees are violating the AODA. Those obligated organizations likely don’t have the required feedback mechanism. Moreover, encouraging people to file individual human rights complaints under the Human Rights Code flies in the face of the very reason why the Government enacted the AODA and promised that it would be effectively enforced i.e. to reduce the need for individuals to have to privately battle barriers, one at a time, through the hardships of fighting individual human rights complaints at the Human Rights Tribunal.
We have led the charge to get the Government to establish a toll-free phone line for the public to report AODA violations. The Report calls on the Premier to keep her promise to establish a toll-free number for reporting AODA violations. As a result of our advocacy efforts, the Government has now established this number, but has not kept its election promise to publicize it. As well, the Government has couched the toll-free number’s audio announcement in equivocal and evasive language, making it far from clear to callers that it is the place to report AODA violations to the Government.
We also agree with the Report’s recommendation that “the enforcement plan should explain clearly what will be done with this feedback,” and that “it is essential to communicate that the feedback will be used in a meaningful way, such as focusing enforcement activities as well as informing educational and outreach activities.” We do not share the Report’s view that because the AODA does not specify a complaints system for enforcement, the use of AODA violation reports will be general and not specific. If the police took that approach to reports of crime that the public phone to a police station, the public would find our criminal law much less useful.
8. There is a Strong Need for the Government to Give Better Support for Obligated Organizations that Seek to Comply with the AODA
We support the Report’s finding deficient the Government’s support for obligated organizations that seek to comply with the AODA. The Report affirmed the need for the Government to provide obligated organizations with “more in-depth policy guidelines as well as guidance on the interpretation of various provisions.” It revealed the damning fact that fully a decade after the AODA was passed, obligated organizations that want to comply with the AODA, found the Government less helpful than it should be. It reported:
“Both public and private sector stakeholders reported that the ADO appeared to be reluctant to give guidance on the meaning of the standards when asked. When callers sought details beyond prepared answers, the Review was told that they were advised to contact their own lawyers or consultants. However, members of the obligated sectors all stressed that the interpretation of standards should not be so complex as to require legal counsel – a heavy expense for smaller organizations in particular.”
The Report voiced a concern from the business community, which we have ourselves raised with the Government in the past, that recent accessibility amendments to the Ontario building code are “extraordinarily complex.” Yet well after they were enacted, and on the eve of their coming into force, the Government had not yet published guidelines to assist obligated organizations. The Report found that obligated organizations also need guidelines for such things as accessible bus shelters, buses, websites, playgrounds, and on required accessibility plans and accessible procurement procedures.
We endorse the Report’s clear call for the Government to:”Resource and empower the ADO (i.e. the Accessibility Directorate of Ontario) to provide robust compliance support.”
The Moran Review heard feedback from obligated organizations which we had forecast years before as the Government was finalizing the wording of the accessibility standards that are now on the books. We had warned the Government that too many of the provisions in the AODA accessibility standards were too vague and non-specific. We cautioned that this would frustrate obligated organizations. It would make each obligated organization have to re-invent the wheel as they try to figure out what they must do to obey the law.
Regrettably, the Government far too often declined to accept our feedback. The Report’s findings show that the Government was wrong not to listen to us. The Report found:
“This Review repeatedly heard that obligated organizations need more guidance and more support. In the absence of such guidance, they are spending far too much time and money trying to determine how to satisfy even the most basic elements of the regime. Moreover, tremendous duplication is currently happening as organizations all attempt to resolve the same or very similar questions. Those resources would be far better spent on more ambitious accessibility goals, rather than trying to ascertain the meaning of basic elements of the AODA. More importantly, the fact that it is so complex to navigate the regime saps enthusiasm for going beyond the strict letter of the AODA and engaging in more ambitious accessibility planning.”
We agree with much of what the Report recommends to fix this. For example, it wisely proposes:
“Looking at the big picture, the most effective compliance support would be to simplify the standards themselves so that expectations are clear up front and elaborate explanations are unnecessary.”
The Report emphasized:
“The critical importance of enabling the ADO to play a more central role in compliance support. Some of this would be quite simple, such as improving the publicity for the resources that currently exist.
However, in a few key areas, it is crucial for the ADO to take on new levels of compliance support. One of the most significant identified by many participants in the Review was the need to provide more detailed authoritative guidance for compliance. The Review was told that frequently it is very hard to know what needs to be done in order to comply, and the ADO has not felt empowered to take on a more directive role in guiding compliance efforts. Particularly as enforcement efforts step up, it is vital that the ADO become more proactive. This includes developing materials such as interpretive bulletins to guide planning, especially in the areas where the standards are proving difficult to implement, as well as active solicitation and sharing of best practices and models as is common under the Americans with Disabilities Act in the United States. As well, a resource centre to provide quick answers to questions about compliance could be extremely helpful, especially for small business, as some stakeholders pointed out.”
It is worthwhile to consider the Report’s recommendations that the Government make AODA training portable. However, with the rampant violations now amply documented under the AODA, we believe that it is a far greater priority to get non-compliant organizations to start to do the training they have not done at all. As well, if the Government’s on-line training resources (which the Report commended) are directly available to obligated organizations, then the costs of doing training should be substantially reduced for each obligated organization.
9. There is an Immediate Need for an Effective Public Education Campaign on the AODA
The Report saw the efforts to date on educating the public on the AODA to have been insufficient. It observed:
“In the context of the AODA, awareness has three dimensions. It refers to awareness among the general public of the AODA’s existence and what it stands for; awareness among people with disabilities as to what the AODA does for them; and awareness of obligated organizations that the AODA requires them to do something (as opposed to details on exactly what, which must be conveyed through targeted communications initiatives). The strong message given by participants in the consultations was that efforts to raise awareness have fallen seriously short in all three areas.”
The Report also assessed as follows from feedback it received:
“The AODA is getting lost among the array of government regulations and activities that command the attention of business, especially smaller firms.”
The Report found a “troubling lack of awareness of the AODA nearly 10 years after its enactment.” It recommended that the Government launch “a comprehensive public awareness campaign.” It concluded that this should be “designed to promote understanding of the value of accessibility generally and the demands of the AODA specifically.” Charles Beer’s 2010 Independent Review on the AODA had said the same thing over five years ago.
The Report agreed that “building awareness will take a sustained, long-term commitment to education and promotion programs by both Government and partners in the obligated sectors and the disability community.” From this finding and recommendation it is clear that commendable efforts, like the Government’s radio advertising campaign in the last weeks of 2014, while helpful, are too short to meet the Report’s call for public education efforts that are comprehensive and sustained.
We especially endorse the Report’s conclusion that it is “crucial” for the Government to address significant confusion among obligated organizations about the relationship between the AODA and the Ontario Human Rights Code. In our experience, too many obligated organizations, including many within the Ontario Government itself, think that all they must do is obey the AODA, to meet all their accessibility obligations. In fact the Human Rights Code imposes stronger accessibility obligations than existing AODA accessibility standards. The Human Rights Code prevails over the AODA. Complying with the AODA does not excuse an obligated organization from the duty to obey the Human Rights Code.
The Report found the following, ten years after the AODA was passed: “The relationship between the Human Rights Code and the AODA remains an area of significant confusion.”
We endorse the Report’s findings and recommendations as follows:
“Accordingly, it is important for the Government to clarify the relationship between the Code and the AODA. This is a crucial issue that should be addressed in all relevant communications and public awareness materials. Creating better linkages between the Code and the AODA could also be advanced by having the Ontario Human Rights Commission play a role in the AODA standards development process, for example, and by co-developing communications materials.”
The Report made a specific and important observation about the need to educate professionals like architects on accessibility issues. We have pressed this issue with the Government for a decade. We have been unable to date to get the Government to keep its September 14, 2007 election pledge to reach out to self-governing professions to take action on this issue. The Report stated:
“In the longer term, professional education is seen as a key to building an accessible Ontario. People with disabilities and others emphasized that an understanding of accessibility should be incorporated into training for such professions as architecture, engineering, medicine and law.”
10. Ontario Needs New Accessibility Standards
The Report confirmed a position we have pressed for over four years regarding the need for new accessibility standards under the AODA. It stated: “People with disabilities felt strongly that it was critical to enact new standards if we are to meet the 2025 goal.” Some obligated organizations raised concerns about creating new accessibility standards, but there is no indication that any argued that the existing standards will ensure full accessibility by 2025.
Of great significance, the Report documented support for sector-specific standards in the areas of health care and of education, stating: “There was some support for sector-specific standards among health care and education stakeholders.” In the health context, it found: “In terms of health care, the hospital sector proposed developing a hospital or health-specific standard that would encompass the requirements of the existing AODA standards and adapt them to a health-care setting.”
We agree with the Report’s conclusion that it is not tenable to wait for all the current accessibility standards to be fully implemented before deciding what new accessibility standards are needed. Indeed, the Government has implicitly agreed with us, by deciding that it will develop a new Health Care Accessibility Standard. Indeed, the Government recognized four years ago that new accessibility standards were needed, and promised in the 2011 election to consult on what sectors they would address.
The Report pointed out the importance of the three areas where we have urged a need for the next accessibility standards, namely education, health care and residential housing. It offered excellent ideas for some of the areas that such new accessibility standards could address. The Report neither concluded that these sectors are now fully accessible, or that existing accessibility standards will ensure that they become fully accessible by 2025. It found that the AODA, for example, barely touches on the important unmet need for accessible residential housing.
The Report also noted the identified need for legislative reform to ensure accessibility of voting in elections in Ontario. It noted that a dominant view was that this should be done by reform to Ontario’s elections legislation, not through an AODA accessibility standard.
The Report’s identification of serious barriers in the areas of education, health care and residential housing demonstrates beyond any dispute that there are serious gaps which need to be addressed in those sectors. The Report commendably said the Government’s goal in terms of education and health care should be “to make significant progress in enhancing accessibility in these two vital areas as quickly as possible.”
We don’t see any need for the Government to now delay work on the first three new accessibility standards that we have identified, while it conducts a “gap analysis” to which the Report referred. It is the job of a Standards Development Committee appointed under the AODA to undertake that task for the sector of our economy assigned to that Standards Development Committee. Had the Government interposed this delay back in 2005, it would have counterproductively taken much longer just to get started on developing its first accessibility standards. The Government wisely chose the areas of customer service, transportation, employment, information and communication and the built environment for the first accessibility standards, without having to do a gaps analysis in any of these areas.
A“gaps analysis” should focus on identifying the other new accessibility standards that the Government should create after the Government gets Standards Development Committees underway to address health, education and residential housing. It should be done swiftly, i.e. within a month or two. With ten years’ experience with the AODA under the Government’s belt, this is neither new nor rocket science.
11. There is a Need for More Government Action to Address Ongoing Barriers in the Built Environment
The Report identified the need for retrofits of accessibility barriers in the built environment. AODA standards and the Ontario Building Code don’t now cover these. They only cover new construction or major renovations.
The Report concluded:
“The Review repeatedly heard that in the absence of an obligation to ensure that the built environment eventually incorporates at least some accessibility features, it will be very difficult to celebrate the Ontario of 2025 as a leader in accessibility. At the same time, it is also very clear that retrofit obligations (which many assume are already part of the AODA standards) can be costly undertakings and imposing any new obligations in this regard requires sensitivity.
Ontario could begin to address this issue by considering standards resembling the U.S. Americans with Disabilities Act (ADA) regulations which require private facilities that provide goods or services to remove existing architectural barriers where this is “readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.” (ADA Title III Regulations, section 36.304). This approach would lend itself to setting some priorities for accessibility enhancements, such as entry ways and washrooms (the two areas most frequently referred to in the consultations). Although by no means a full solution, beginning to address the built environment through a relatively modest option would significantly improve access for people with disabilities without generating major worries about cost.
As is the case with all AODA standards, compliance with such a requirement would not relieve organizations of their obligation under the Human Rights Code to accommodate people with disabilities to the point of undue hardship.”
We agree as well with the Report’s conclusion that there is a need to better tie Government regulatory action on the built environment to the AODA, and not to leave it to the Building Code in isolation. However, we do not agree that the idea of replicating Building Code accessibility requirements in an AODA standard is legally dubious and confusing. It would make these requirements more effective. It opens the door to AODA enforcement on the built environment. There can be no confusion if, as we propose, both regulations impose identical requirements. Right now it is simply bizarre that the Government has unilaterally cut the built environment entirely out of the AODA via the back door.
The Report’s proposal that there be a mechanism for obligated organizations to get pre-construction approval for complying with the public spaces accessibility standards requirements in the Integrated Accessibility Standards Regulation makes a great deal of sense.
12. The Government’s Slow Pace for Reviewing Accessibility Barriers in Ontario Laws Contributes to Delay in Reaching Full Accessibility
The Report confirmed that the slow pace of the Government’s promised review of all statutes and regulations for accessibility barriers was a real concern voiced by the disability community. This Government review of all legislation and regulations was promised back in the 2007 election.
13. The Ontario Government is not Effectively Leading by Example
The Report’s conclusions support our concern that the Government is not fulfilling its pledge to lead by example on accessibility. The Report stated: “The disability community believes that the Government of Ontario has not succeeded in embedding accessibility into its internal operations.” As but one example, it noted: “…the Review was told that all too often even the Ontario Government publishes documents only as inaccessible PDF files when it would be easy to also post them in accessible Word or HTML formats.”
To explain why progress on the AODA has been too slow, the Report listed, among other things, feedback on the Government’s failure to provide the renewed leadership that the first AODA Independent Review, conducted by Charles Beer, called for in its 2010 Report. The Moran second Independent Review’s Report summarized:
"The Government was also said to be neglecting its responsibilities to get its own house in order and to develop all standards necessary to reach an accessible Ontario. To reassert provincial leadership, disability stakeholders called on the Government to establish a three-year action plan describing the steps it will take, with timelines, to ensure Ontario becomes fully accessible by 2025.”
14. The Government Needs to Encourage Obligated Organizations to go Beyond the Specific Requirements in AODA Standards
It is commendable that the Report urged the Government to encourage obligated organizations to go beyond the specific detailed accessibility requirements in AODA standards. To date, the Government has at times done the opposite, e.g. when its website wrongly told obligated organizations that providing accessible Customer Service does not include ramps or automatic door openers.
We signal a note of caution about the Government acting on the Report’s proposal that it equip itself to certify those obligated organizations that have gone beyond the minimum required by AODA accessibility standards. For the Government to simply certify that an obligated organization has gone beyond AODA requirements could undermine the Report’s emphasis on the need to ensure that obligated organizations know they have to do more under the Human Rights Code. Moreover, currently, the AODA accessibility standards don’t require any built environment accessibility. It would be perverse for the Government to give a congratulatory AODA certification to an obligated organization which conducts its business in an inaccessible building or office.
The best incentive to go beyond the AODA’s requirements would be provided if the Government would at last offer actual incentives to go beyond the AODA’s requirements. The AODA provides for this. The Report’s proposal of tax incentives could be wedded to this power under the AODA. To our knowledge, the Government has never used the power set out in s. 33 of the AODA. It provides in part:
- “33. (1) If the Minister believes it is in the public interest to do so, the Minister may enter into agreements under this section with any person or organization required under this Act to comply with an accessibility standard, in order to encourage and provide incentives for such persons or organizations to exceed one or more of the requirements of the accessibility standards.
Content of agreements
- A person or organization who enters into an agreement with the Minister under this section shall undertake to exceed one or more of the requirements of an accessibility standard applicable to that person or organization and to meet such additional requirements as may be specified in the agreement, within the time period specified in the agreement, in relation to accessibility with respect to,
- goods, services and facilities provided by the person or organization;
- accommodation provided by the person or organization;
- employment provided by the person or organization; and
- buildings, structures or premises owned or occupied by the person or organization.
Exemptions and other benefits
- In consideration for the undertaking referred to in subsection (2), the Minister may, in an agreement under this section, grant such benefits as may be specified in the agreement to the person or organization who gave the undertaking and may exempt the person or organization from,
- the requirement of filing an accessibility report under section 14 or such part of the report as may be specified in the agreement; and
- any obligation to file or submit information, documents or reports to a director or to the Minister that is required by regulation and referred to in the agreement.
- An exemption under subsection (3) may be granted for the period of time specified in the agreement.
Other reporting requirements
- An agreement made under this section may specify such reporting requirements as may be agreed to by the parties instead of those required by this Act or the regulations….”
15. Municipal Accessibility Advisory Committees Need to be Strengthened
We share the Report’s call for the Government to strengthen the work of municipal accessibility advisory committees.
16. There is an Immediate Need to Harness the 2015 Toronto Pan/ParaPan American Games to Achieve Progress on Accessibility of Tourism and Hospitality Services
On an issue where we have advocated for over a year and a half, the Report declared several times that the Government should use the rare opportunity of the 2015 Toronto Pan/ParaPan American Games to create a new legacy of improved accessibility.
The Report stated:
“In addition, with Ontario hosting the Pan Am/ParaPan Am Games next year, we have a key opportunity to showcase an accessible Ontario and to build a strong and lasting legacy that advances our shared goals. The eyes of the world will be on Ontario and, as a province that has championed accessibility and implemented an innovative regime to achieve that goal, this is a rare chance for us to shine.”
The Report also confirmed feedback that Ontario is not making needed progress as an accessible tourism destination, noting: “Travellers have the strong impression that Ontario is far behind the United States as far as accessibility goes.”
In the context of its recommendations on the need for far more public education on the AODA, the Report concluded:
“As one illustration of the kind of initiative that could be undertaken, participants in the Review frequently referred to the upcoming Pan Am/ParaPan Am Games as an opportunity not to be missed. The Games provide a rare chance to highlight athletes with disabilities to help change attitudes, to encourage businesses to get ready by improving accessibility and to promote accessible facilities and services.”
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