ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE
AODA ALLIANCE RELEASES ITS DETAILED ANALYSIS OF THE CHARLES BEER INDEPENDENT REVIEW REPORT ON THE EFFECTIVENESS OF THE GOVERNMENT’S IMPLEMENTATION OF THE AODA
June 3, 2010
The AODA Alliance here releases a thorough analysis of the Charles Beer Independent Review of the Ontario Government’s implementation of the Accessibility for Ontarians with Disabilities Act (about 20 pages). We hope you find this helpful as an explanation of what the Report found, and how much it responds to concerns and issues we have been raising.
The disability community advocated for the AODA to include a requirement that there be periodic independent reviews of the AODA’s implementation, to get an independent assessment of how effective is this law and its implementation. The Charles Beer Independent Review shows that it was very important for this Independent Review process to be included in the AODA. It now remains to be seen whether the Government will implement this Report fully, or leave it to gather dust on some shelf.
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AODA ALLIANCE’S DETAILED ANALYSIS OF THE CHARLES BEER INDEPENDENT REVIEW REPORT ON THE AODA AND ITS IMPLEMENTATION
June 3, 2010
The AODA Alliance here offers a detailed analysis of the Charles Beer Independent Review Final Report on the Effectiveness of the Accessibility for Ontarians with Disabilities Act. That Report, entitled “Charting a Path Forward,” was prepared under section 41 of the AODA. It was delivered to the Ontario Government in February, 2010. The Government made it public three months later, on May 31, 2010.
We commend Charles Beer and his staff for holding thorough, accessible, inclusive consultations, for listening attentively to the perspectives of all sectors affected by this legislation, for providing a thoughtful list of the accomplishments and problems to date with the AODA’s implementation, and for offering a well-written final report which offers a manageable list of constructive recommendations.
We have already called on the Government to adopt the Independent Review’s Report and to implement all its recommendations except one, the proposal that the next Independent Review of the AODA be deferred from three years from now to four years from now. We have also asked both the opposition parties to commit, if elected, to similarly adopt and implement this Report.
The Report lays out a compelling case for its call for stronger Government leadership, needed to achieve a fully accessible Ontario by 2025, and for transformative improvements to how the Government implements the AODA that are far more than mere tinkering. If anything, this Report is measured and restrained in its identification of problems with the Government’s implementation of the AODA to date. As addressed in part below, and more thoroughly in the AODA Alliance’s December 11, 2009 brief to the Beer Independent Review, there are indeed more problems with the Government’s implementation of the AODA than the Independent Review Report identifies. Those additional problems further buttress the findings and recommendations in the Independent Review’s Report. Our brief to the Independent Review can be seen at: http://www.aodaalliance.org/strong-effective-aoda/12152009.asp
It was the McGuinty Government that agreed to include in the AODA a requirement for this Independent Review of its activities. It was the same Government that chose Mr. Beer to conduct this Independent Review. There is no reason why the Government should not adopt and implement his entire Report, with the one exception identified above, and addressed further below.
2. GENERAL OVERVIEW AND SUMMARY OF THE REPORT’S RECOMMENDATIONS
The AODA requires Ontario to become fully accessible to persons with disabilities by 2025. That was 20 years from the date when the AODA was enacted. It is now less than 15 years away.
The Charles Beer Independent Review Report found serious problems with how the Ontario Government has been implementing the AODA since it was enacted in 2005. It calls for significant changes in the Government’s implementation of the AODA, which are necessary if Ontario is to become fully accessible to persons with disabilities by 2025. It is clear from the Report that those changes are needed if Ontario is to reach full accessibility by 2025. That is another way of saying, as we have been saying for some time, that Ontario is now not on schedule for reaching the full accessibility by 2025 that the AODA requires.
The Independent Review Report found a continuing pressing need for the AODA. It found a consensus in Ontario among those directly involved with this legislation, recognizing the importance of the AODA’s vision for persons with disabilities.
The Report recognized that the Government has attempted a number of commendable initiatives as it led the implementation of the AODA over the past five years. However, using polite and tempered language, it leveled a powerful series of criticisms directly at the Ontario Government’s work in implementing this legislation.
The Report identified specific, serious deficiencies with the Government’s implementation of the AODA to date. It found a troubling lack of knowledge within society about the obligation to provide accessibility, even so many years after the AODA was enacted.
The Report found that Ontario needs new, stronger leadership on this issue from the Ontario Government. It identified a need for the Government to “breathe new life into the AODA”. It concluded that the AODA’s implementation needs revitalization. It found that “transformative change (i.e. in how the Government implements the AODA) is necessary to achieve accessibility by 2025.”This is clearly much more than mere tinkering with the way the Government has been implementing the AODA to date.
The Report found wide support for the idea of accessibility standards. These are core to the AODA. It also found substantial support for the collaborative approach of including persons with disabilities and the obligated sectors (i.e. business and the public sector) in developing these accessibility standards. This collaborative approach to developing accessibility standards was central to the proposal for the AODA which the disability community presented to the Ontario Government when it advocated for the Disabilities Act between 1994 and 2005. The previous Harris Government had repeatedly refused between 1995 and 2003 to bring all the interested stakeholders to the same table, despite our repeated requests.
The Report found that the expanding number of persons with disabilities in the future must be taken into account in planning action on accessibility:
“We have to recognize that over the next generation the face of the disability community will change. As our society ages, the number of older Canadians will increase and the number of people with disabilities will increase in tandem with this trend. Moreover, medical advances mean that younger people with disabilities — from premature infants to workers suffering serious injuries on the job — are living longer.
The rising numbers include not only those with physical, hearing or visual disabilities but also those with various mental health, developmental or learning disabilities. The emerging disability population we are speaking about when combined with their immediate family members — will soon represent close to 60 per cent of Ontario’s population. From my own observations during this review, the older members of this group will be especially assertive in demanding improved services from all sectors to make their lives accessible.”
The Report recognized that this Independent Review “… is taking place at a crucial time — a time when a number of stakeholders have begun to express disenchantment with the implementation of the act, the timelines for change and the ability to realize the 2025 vision.”
The Report’s central finding in effect endorses or echoes key concerns voiced in the AODA Alliance’s December 11, 2009 brief to the Independent Review. The Report states:
“Notwithstanding the good will, sincere intentions and hard work on the part of all involved a certain sense of frustration and disappointment has been building among the many individuals and organizations that have been working to support the implementation of the AODA. Several reasons have been cited including: the current economic climate, disenchantment with the standards development committee process, ongoing uncertainties with respect to compliance requirements and timeframes, diminished focus and a relatively low level of public knowledge and engagement.
I do not believe that these sentiments are the result of a lack of commitment on the part of the minister responsible for the AODA, or the Accessibility Directorate of Ontario. Indeed, I believe that the minister and her staff as well as the ADO are engaged with the various issues that have been set out in this review and understand the need for renewed action and new approaches.
In my view the implications of implementing the AODA are far-reaching and necessitate a shift in attitudes and transformational change at a number of levels including cultural, social, political and economic. This shift can be likened to changes that have unfolded in society with respect to attitudes and actions on issues like the environment, smoking and diversity. Achieving transformational change on this scale requires more focused attention at the highest levels of government.
The ability to realize change of this magnitude is linked more to two broader realities — one internal to government and one involving our society. First, within government and perhaps similarly in other large and complex organizations, achieving change requires a focused and high level accountability structure. The degree of change required cannot occur in a “business as usual” environment. Those familiar with government processes confirm that a focused change management approach supported by strong leadership is essential to effect real change.
Second, public support for the objectives of the AODA and compliance with the standards depends on public awareness. There is no doubt that the real measure of the AODA’s success will be the reduction in barriers for persons with disabilities, but this can only be achieved by shifting attitudes among the general public to embrace and support the goals of the legislation. The government needs to develop and maintain a coordinated and integrated public awareness campaign.
These core elements — a change management strategy and an effective public awareness campaign – are essential if Ontario is to meet the goals of the AODA. With one standard in regulation, and four other standards in various stages of completion, now is the time to revitalize the implementation of the AODA. The government must breathe new life into the AODA by demonstrating a renewed commitment to its success by building momentum for change internally as well as across the obligated sectors and among the public at large.”
The Report concluded that: “…it is essential to raise the profile of the goals and objectives of the act and apply a renewed and refocused sense of commitment and leadership.” It concluded that: “structural changes” are needed. The Report called for significant improvements to the AODA’s implementation, in order for Ontario to be able to reach the AODA’s deadline of full accessibility by 2025. It found: “It is critical that the government build a broader public awareness and understanding about the AODA and that the necessary tools and supports be available for the obligated sectors.”
The Report summarized its main recommendations as follows:
“Continued progress towards achieving the 2025 vision will require action by the Ontario government to:
- Harmonize the accessibility standards before they are finalized in regulation
- Renew its commitment and strengthen its leadership on accessibility
- Build awareness and educate the public about accessibility and the AODA and
- Introduce a streamlined standards development process.
To address these objectives and move forward, I am proposing that the Government of Ontario implement the following changes:
- Harmonize the accessibility standards prior to releasing the remaining proposed standards as regulations
- Renew leadership for implementation of the AODA by
- formally designating the Minister of Community and Social Services as the Minister Responsible for Accessibility
- strengthening the Accessibility Directorate of Ontario by:
- elevating the role of the assistant deputy minister to deputy minister, and
- ii. focusing on renewed priorities including a public awareness and education campaign to support the AODA
- Amend the AODA to establish an arm’s-length advisory body — the Ontario Accessibility Standards Board — to review and develop accessibility standards — replacing the standards development committee process.
I will also be making recommendations on the repeal of the Ontarians with Disabilities Act, 2001 and on the role of Municipal Accessibility Advisory Committees.”
Of all the substantial feedback that the Independent Review received, the Report recognized that the AODA Alliance’s brief was the most detailed and comprehensive. It is clear from a review of the Report that our brief had a substantial impact on the Independent Review and its recommendations. The Report acknowledged that a number of other disability organizations endorsed our brief.
3. REPORT CALLS FOR NEW GOVERNMENT LEADERSHIP ON ACCESSIBILITY
An absolutely key finding in the Report is that there is a pressing need for new, invigorated Government leadership in this area. This echoes the AODA Alliance’s very first theme in its brief’s detailed series of recommendations to the Independent Review. The Report states:
* “Virtually everyone consulted during the review felt that stronger government leadership is required to achieve the vision for 2025.”
* “A strong sense exists, particularly among people with disabilities, that momentum has been lost since the AODA was passed in 2005. With only one standard in effect after four years, many — especially in the disability community — feel the province is behind schedule as the clock ticks toward the 2025 deadline.
While acknowledging the dedication and hard work of the government staff involved, many people consulted believe implementation of the act has become bogged down in the government’s day-to-day, “business as usual” processes. …”
* “Stakeholders sense that accessibility is being overlooked as the government goes about its everyday work. A silo mentality seems to have emerged, with little coordination among ministries and no coherent strategy. For example, disability groups were disappointed by the government’s failure to make accessibility a criterion for awarding infrastructure funding, particularly in the recent stimulus package and in the major investments in recent years to renew the capital facilities of hospitals and universities. This is seen as a huge lost opportunity.
Moreover, while legislative amendments to improve accessibility for voters and candidates in municipal elections were passed in December 2009, many in the disability community view these measures as weak. Proposed amendments covering provincial elections are also believed to need strengthening.”
The Report made a series of specific, measured and reasonable recommendations to address this shortcoming with the status quo:
“The review has found that transformative change is necessary to achieve accessibility by 2025. One of the key hurdles in meeting this goal is the low level of public awareness and understanding of accessibility and the AODA. To raise the profile of accessibility and support the transformational change needed both inside and outside government, I believe the minister’s title should reflect this important role. This change would acknowledge the work being done internally by the ADO and make it clear where political responsibility for the AODA lies within the government.
I, therefore, recommend that:
The Minister of Community and Social Services be formally designated as Minister Responsible for Accessibility."
The Report went beyond the symbolism of the Minister’s formal title. It went on to propose that for the first time, the Ontario Government should have a full-time deputy minister responsible for accessibility:
“I am recommending that the role of the assistant deputy minister for the ADO (i.e. the Accessibility Directorate of Ontario) be elevated to that of deputy minister. This is a significant change from the current structure.
The recommendation must be seen in context of the stature that the office of a deputy minister carries in the provincial government. A deputy minister is accountable in different ways to the Premier, to the minister and to the Secretary of Cabinet, and has a detailed performance contract setting out priorities and expected results. Equally important is the awareness that a deputy minister has a clear mandate and authority to deliver on his or her responsibilities. Each deputy participates on key deputy ministerial committees across government. A deputy minister dedicated to accessibility would be able to ensure that the accessibility lens is brought to bear at the most senior levels of government on an ongoing basis. He or she would be in a position to lead a change management strategy to promote accessibility government-wide. A deputy focused on accessibility would be able to devote more time and attention to these tasks than it would be realistic to expect a Deputy Minister of Community and Social Services to do.
The Report then made this key recommendation:
“I, therefore, recommend that:
The government, led by the Minister Responsible for Accessibility, strengthen the Accessibility Directorate of Ontario by:
- elevating the role of the assistant deputy minister to deputy minister to provide stronger leadership and accountability for the implementation of the AODA, and
- focusing the ADO on renewed priorities including a public awareness and education campaign to support the AODA.
The designation of the minister and the appointment of a full-time deputy minister would send a clear message across the public service that accessibility is a priority for the government. Together, these changes would revitalize the directorate and support its responsibility to ensure that Ontario meets the goals set out in the AODA. As well, a strengthened ADO would provide a clearer avenue for stakeholders (whether from the disability community, government or the other obligated sectors) to bring forward concerns and ideas about the implementation of the AODA as well as broader accessibility issues.”
The Independent Review considered several different options for carrying out the needed revitalization of the AODA’s implementation. The recommendations that the Independent Review chose to put forward are more modest than other proposals the AODA Alliance and other raised with the Independent Review to improve the Government’s work.
One of the important measures of whether the Ontario Government will treat this Report seriously is whether it will implement the Report’s recommendation that the Minister be designated formally as being a Minister for Accessibility, and that a new Deputy Minister be appointed with 100% of his or her job being the accessibility portfolio. The Report correctly stated: “Designating a Minister Responsible for Accessibility and appointing a deputy minister to support this portfolio will underline that accessibility is a priority within the government and for Ontario society as a whole.” We agree. If the Government does not implement these recommendations, it will be a strong signal that the needed leadership on this issue will continue to be lacking.
The Report recommended new priorities for the Accessibility Directorate of Ontario (ADO) once the five accessibility standards are enacted, namely:
- “public awareness and education
- a provincial policy on accessibility
- compliance and stakeholder support."
We agree, but add one important addition. The Accessibility Directorate needs to maintain its work on developing accessibility standards. The first five accessibility standards are not enough to fully implement the AODA. New ones will also be needed.
4. REPORT CALLS FOR TRANSFORMATIVE REVAMPING OF PROCESS FOR DEVELOPING ACCESSIBILITY STANDARDS UNDER THE AODA
The Report documented a series of significant concerns with the standards development process that the Ministry used under the AODA. We have raised many of these concerns. These all arise from the way that the Ministry of Community and Social Services led and managed the standards development process. For example, the Report stated regarding the Standards Development Committees:
* (Regarding the process for recruiting members of the Standards Development Committees) “On paper, the selection process looks sound but a number of issues were raised about its transparency and effectiveness.”
* “Some problems can be traced to the very beginning of the committee process, in the terms of reference and initial orientation materials.”
* “The review heard many comments about the lack of support and resources necessary to be effective, both individually as members and collectively as a committee.”
* “Despite the increase in their representation to 50 per cent, people with disabilities who served on committees reported feeling overwhelmed by business and other sectors — as well as by the process itself and the sheer volume of materials and documents. Disability representatives did not have access to resource teams or technical and legal advice to develop their positions as other sectors did; as a result, many in the disability community felt that their voice was not as effective as it could have been.”
* “When the committees resumed deliberations in 2008, the ADO assisted disability members on some committees to work together between meetings. Still, it was widely felt that the committee members from the disability community did not receive enough support to tackle many of the more technical issues.”
* “Concerns were raised with the model of decision-making adopted by the committees.”
* “The way voting was conducted drew criticism. In some cases, it appears documents to be voted on were presented at the last minute — and sometimes not in accessible formats — so members could not properly review them. Some committee members believe clause by clause voting proved to be impractical, as rejection of one clause could undermine other clauses that stayed in place. Since abstentions were not permitted (and were recorded as a no vote), some members felt obliged to vote on technical issues they did not understand. Others felt the results were influenced by pressure to meet deadlines when more time should have been spent on some questions. A number of issues that could not be resolved were put aside for discussion later, but never revisited.”
* “Problems were reported with the process for public review of the initial proposed standards, which involved public meetings and written submissions. Apparently committee members were not permitted to speak at the meetings, even though many of those attending were expecting an opportunity for dialogue. Moreover, little in the way of background information was provided at the meetings. As a result, some stakeholders felt that the sessions did not provide an opportunity for meaningful feedback on the proposed standards.
Some committee members remarked that they found the summaries of comments from the public review to be incomplete or misleading. …”
* “Apart from the committee members representing people with disabilities and various sectors, the standards development process involved other players: the committee chairs, the ADO, the Canadian Standards Association (CSA), facilitators, and committee members representing government ministries. Often the roles and responsibilities of these different players were perceived as unclear or overlapping. This situation undermined the effectiveness and efficiency of the process, despite good will on all sides.
For example, some committee members were uncertain whether the government representatives were there as advisors or stakeholders, even after they no longer had voting rights. For their part, after they ceased to have a voting role, the role of government representatives became more that of observers. And there were various opinions about the CSA’s (i.e. the Canadian Standards Association) contribution. Several participants felt the CSA staff were not allowed to do what they do best — develop standards — and were instead relegated to an administrative role. Others expressed doubts that the CSA had the policy expertise needed to deal with standards that are not mainly technical in nature.”
* “One key element that has been missing to date in implementing the AODA is an overarching provincial policy framework for accessibility that reflects the public interest. Developing such a policy should be a further priority for the ADO. This framework should provide:
- Greater clarity on goals and expectations supporting the vision for an accessible Ontario by 2025 (i.e., what does an accessible Ontario in 2025 really look like?)
- A set of core principles to inform the ongoing standards development and review process and to evaluate the effectiveness of the AODA
- A focus on the economic impact of the AODA, and
- Criteria for the development of additional standards.”
The Report found that there have been commendable improvements with the work on the AODA within the Accessibility Directorate at the Ministry over the past two years. This is good news. However it reflects the regrettable fact that there were even more deficiencies over the two or three previous years, that had needed correcting.
As a result, the Report concluded that significant changes are needed to the way standards are developed under the AODA. It found:
* “It is clear that changes to the standards development process are needed. “
* “At the outset let me reiterate that the process under the AODA was new, innovative and groundbreaking. It was to be expected that there would be challenges. However, in my opinion tinkering with the current process will not be enough. Nor do I believe we can return to the traditional government regulation-making process, which may or may not involve consultations. A number of fundamental changes are needed, including replacing the standards development committees. However, any new approach to standards development must continue to respect the spirit and intent of the AODA.
I have reached the conclusion that an arm’s-length advisory body with ongoing responsibilities is required to bring greater focus, experience and expertise to the standards development process. What is needed going forward is focused, continuing attention by a dedicated group that can build the expertise required to review and develop credible accessibility standards.
Amendments to the AODA will be required as I do not believe these changes can be accomplished under the current framework in the legislation.”
The Report made very specific recommendations on how to fix this problem. From its review of the standards development process in the U.S., the Report recommended:
“Although there are many differences between the accessibility legislative framework in the U.S. and the AODA, there are general principles and best practices that can be applied to Ontario’s approach to standards development and review. For example:
- an inclusive process that incorporates extensive involvement of the disability community and the obligated sectors on an ongoing basis
- a transparent process
- a recognized role and process for establishing technical and sectoral committees, and
- a permanent accessibility board.”
One of the Report’s important recommendations is to replace the current ad hoc Standards Development Committees with a new permanent Accessibility Standards Board. That Board would develop and recommend accessibility standards to the Government. It would start its work when the first five accessibility standards are all enacted. The Report also recommended that the Ministry start the process of developing the Board before legislation is passed to amend the AODA to create this Board.
We are especially pleased that the Independent Review made this recommendation. It is one which the AODA alliance urged in its brief to the Independent Review.
Moreover, there is important history to this recommendation. When the Legislature was debating the AODA bill, Bill 118, back in 2005, the AODA Alliance’s predecessor, the ODA Committee, recommended that the AODA bill be amended to make the process of developing accessibility standards independent of and arms-length from the Ontario Government. Back in 2005, both the opposition Conservatives and NDP supported this recommendation before the Standing Committee that was debating the AODA bill clause-by-clause.
At that time, the McGuinty Government did not accede to this recommendation. With the experience of five years now under our collective belts, it is clear that our 2005 proposal was a wise one. Now it has the endorsement of the Independent Review, which the McGuinty Government itself appointed.
The Report states:
“I have concluded that for the standards development process to be effective going forward, the best approach is to ensure the inclusion of all the key players (the disability community, the provincial government and the other obligated sectors) from the beginning.
The board members should be experienced individuals, able to bring the views of their sectors to the table but also practised in consensus-building. I see the board process first and foremost as a collaborative one. The chair should be a high-profile individual with standing and credibility in the province who is highly skilled in facilitation and has experience working with boards in complex environments.
Membership on the board would consist of 15 members, including the chair, who would be non-voting. Persons with disabilities or their representatives would have seven members (50 per cent representation) on the board, consistent with the government’s commitments made in 2007 for the standards development committees. The obligated sectors (broader public, private and not-for-profit) would be represented by six senior and experienced individuals knowledgeable about their own sectors and versed in government structures and processes. The provincial government would be represented on the board by a senior public servant. Various ministries would be involved through sectoral and technical committees.
I appreciate that the proposed membership may at times introduce tension in the board’s decision-making process. I believe, however, that with an experienced chair and the commitment of board members to the goals of the AODA, this model can work.
The following outlines the purpose, mandate, and roles and responsibilities of the new board:
Purpose: To review and develop accessibility standards under the AODA and provide recommendations to the Minister Responsible for Accessibility.
Mandate: To build expertise on accessibility standards development; conduct research and monitor national and international accessibility developments; conduct five-year reviews of accessibility standards as mandated by the AODA; advise the Minister Responsible for Accessibility on the need for new standards; and, on the direction of the minister, develop and harmonize proposed new standards and integrate them with other relevant legislation and government policy.
Roles and Responsibilities: Similar to those outlined for the standards development committees in Part III (Accessibility Standards) of the AODA, with necessary modifications.
Details on the roles and responsibilities of the new board would be articulated in proposed amendments to the AODA and in a memorandum of understanding between the board and the Minister Responsible for Accessibility and the ADO. These would include:
- Review and revise accessibility standards in accordance with the AODA through an inclusive process, and submit proposed standards to the government for consideration as regulations
- Advise the minister on the need to develop new standards
- At the direction of the minister, develop new standards through an inclusive process, and submit proposed standards to the government for consideration as regulations
- Support the ADO in the preparation of guidelines and other reference materials and in promoting partnerships to share knowledge and best practices, to further the implementation of the standards
- Develop a transparent and inclusive public consultation process, involving persons with disabilities, to support the review of both existing and proposed new standards
- Establish appropriate technical and sectoral committees for the review and development of standards through a process of subcommittees reporting to the board, and establish procedures to guide the subcommittees
- Ensure harmonization of the standards
- Build expertise on the development and review of accessibility standards.
Structure of Board
The composition of the board would consist of:
- the chair (non-voting)
- seven representatives from among persons with disabilities or their representatives
- six representatives from the obligated sectors, and
- one provincial government representative (a senior public servant).
Selection and Appointment of Members
The chair and members would be appointed by the government through Order-in-Council. The government should develop selection criteria and recruitment strategies in consultation with stakeholders.
The board would be supported by an executive director and a small, dedicated staff. Consideration should be given to transferring employees from the ADO to ensure continuity. At the direction of the board, the executive director would be responsible for operational activities, budget allocations, stakeholder engagement and liaising with the ADO. Part of the role of the secretariat would be to ensure that the board members from the disability community receive appropriate support.
The board would be required to establish technical and sectoral committees to support the review of existing standards and development of new standards. I see the role of these committees as critical in advising the board on the content and form of the standards. The work of the committees must be transparent and accessible to the public and include input from the board’s consultation process.
The board would need to establish a process for the committees including mandates, criteria for membership and the term of appointments.
Accountability and Reporting
The board would be accountable to the minister and report to the minister on a regular basis. The board would be required to submit an annual report to the minister.”
5. REPORT CALLS FOR MAJOR NEW PUBLIC EDUCATION INITIATIVE ON ACCESSIBILITY
We have urged the Government for some time to show leadership by launching a major public education campaign on what the AODA requires. The Report finds sweeping support for this proposal, and recommends it. It states: “Calls were heard on all sides for a massive effort to educate business, the broader public sector and other obligated organizations on what they must do to comply with the AODA.”
The Report found that even five years after the Government passed the AODA, there is very limited public awareness about it:
“The minimal awareness of the AODA among both obligated organizations and the public at large was frequently mentioned. Even some members of standards development committees knew little about the legislation when they began their work. And when committee members told colleagues in their sectors what they were doing, they often found people had no idea this work was underway.
The attitudinal barrier, if not addressed, can grow to substantially impede the AODA’s mandatory goal of full accessibility.
Written Brief, AODA Alliance
This awareness gap is viewed as a huge hurdle to securing compliance as standards are phased in. Many in the disability community, in fact, regard attitudes as the biggest barrier they face. They believe that attitudinal change must go hand in hand with the implementation of standards or else the AODA will not succeed and a backlash could even result. People with invisible disabilities, such as mental health or learning disabilities, emphasize that the attitudinal barriers confronting them are significant and only beginning to be acknowledged. Both people with disabilities and representatives of the obligated sectors agree on the need for the government to make a substantial investment in public education and awareness as part of the rollout of standards, to create a culture and environment to support change.
Part of the problem appears to be the vagueness of the vision expressed in the AODA itself. Many stakeholders in both the disability community and the obligated sectors found it hard to visualize what an accessible society would really look like.
One initiative mentioned was the government’s 2008 advertising campaign on transit vehicles and bus shelters across Ontario, supported by print ads in commuter papers. Stakeholders however felt that the campaign had little impact on public awareness.”
The Report elsewhere noted: “What struck me very early on in my work and has remained a constant throughout the review is the lack of public awareness and engagement about accessibility generally and about the AODA, its goals and obligations, more specifically.
When the AODA went through the legislature in 2004 and 2005, it generated media attention and extraordinary optimism and enthusiasm from within the disability community. The public and broader public sectors were already somewhat attuned to issues around accessibility as they had had obligations under the ODA since 2001. For the public at large, however, the passage of the AODA was seemingly just a blip in the media. Some may have a vague recollection of the legislation passing but most Ontarians simply have no knowledge of what took place in May 2005. There is a fundamental lack of appreciation of the purpose of the legislation and its broad implications for our society as a whole.”
On the attitude towards accessibility of the obligated sectors, the Report found:
“It has been clear to me that the commitment to accessibility among all sectors is not in question…At the same time, however, I also sense a tremendous angst among representatives from the obligated sectors and fears that the cost of compliance will be burdensome. Part of this concern stems from frustration with the standards development process and the timelines for compliance included in the proposed accessibility standards.
This anxiety has been compounded by the dramatic change in the global and local economic climate since the AODA was passed. I want to stress that a difficult economy cannot be an excuse for abandoning the goal of accessibility. I do believe, however, that the current economic climate must be taken into account in considering the pace of change and the reasonable expectations for the obligated sectors as we meet the goal of accessibility by 2025. It is imperative to ensure that the implementation of all the standards and related procedures is well coordinated and harmonized. If this does not occur, it will not be possible to realize the intent of the AODA on time.”
The “tremendous angst “ to which the Report refers reflects a failure on the part of so many in the obligated sectors to realize that the removal and prevention of barriers that the AODA standards will address is already required under the Human Rights Code, and has been required for almost 30 years. We have urged the Ministry to proactively tackle this attitudinal barrier to the provision of full accessibility, whose existence the Report has reconfirmed.
The Report politely levels pointed criticism of the Government’s approach to date on educating the public on accessibility:
“Achieving the transformational change needed to fulfil the vision for 2025 will require a, broad-based public awareness and education strategy. The benefits of accessibility should be profiled to help erode attitudinal barriers and to advocate for a philosophy of barrier prevention and a more inclusive society.
I believe it is imperative for the government to intensify its public awareness effort, particularly with respect to the new standards. The ADO should take the lead in communicating the purpose and intent of the AODA and the role of accessibility standards, to ensure successful implementation of the legislation. To date, the government has not developed a strong communications campaign to promote the AODA, its objectives, obligations and broad application.
At the political level, in addition to the minister, it is important for the Premier and senior ministers to reinforce accessibility in their speeches and communications to the public.”
The Report found problems with something as obvious and simple as how the Government makes information on accessibility available on its website. It found:
“For example, it is currently a challenge for anyone searching for information on the AODA or the ADO to find what they are looking for on the Internet… The AODA should be given much more visibility on the government’s central website. There should be a direct link to the ADO like the one for the Office of Francophone Affairs. While this might seem obvious, it is another example of how accessibility needs to be front and centre, especially in light of the increased use of the Internet. The government should make full use of accessible formats in its communications. This is required under the ODA, but the review was told that it does not always happen.”
6. REPORT ONLY TOUCHES ON THE TROUBLING LACK OF AN AODA ENFORCEMENT MECHANISM TO DATE
A key issue for the disability community for years has been the need for an effective way to enforce the AODA. Premier McGuinty promised in the 2003 election that the Disabilities Act his Government would enact would have effective enforcement. The previous Harris Government’s weak Ontarians with Disabilities Act 2001 had no effective enforcement. While in opposition, the McGuinty Liberals slammed the Harris Government for that, and promised to do much better if elected in 2003.
We and many others told the Charles Beer Independent Review that the lack of an enforcement mechanism in place under the AODA on the eve of the Customer Service Accessibility Standard (coming in force on January 1, 2010) was a serious flaw in the AODA’s implementation.
The Report’s limited response to this concern is its weakest point. The Report clearly identifies the concern in this area that we and others raised. It states:
“During the consultations, much interest was expressed in the compliance and enforcement procedures the government will put in place to implement the standards. Stakeholders in both the obligated sectors and the disability community were surprised that the compliance and enforcement framework had not yet been released given the January 1, 2010 effective date for the customer service standard for the provincial government and broader public sector.
CHS strongly endorses the need for establishing strong, enforceable, and effective regulations under the AODA. We also strongly endorse developing effective enforcement, quality assurance, and resource development provisions to properly support the enforcement of those regulations.
Written Brief, The Canadian Hearing Society (CHS)
The AODA Alliance called for an independent, arm’s-length enforcement agency, as well as a new, independent tribunal to hear appeals.
Many wonder if the government will emphasize education and support, or take a more punitive approach. People seek answers to such questions as how often accessibility reports will be required, what they will contain, who will review them, what the follow-up will be, who will do inspections and under what circumstances, and which tribunal will hold hearings. While outside the scope of the review, these issues were frequently raised during the consultations.”
We do not agree that this issue was outside the scope of the Independent Review. This issue is clearly pivotal to the “comprehensive review of the effectiveness of this Act and the regulations" that s. 41(1) of the AODA calls for.
The Report further states, without specifics: “Extensive work has also been undertaken internally to develop the enforcement and compliance mechanisms that will be required.” In fact, the Government has not conducted an appropriate public consultation on the enforcement process to give the broad disability community proper input into the development of the enforcement mechanism.
Even though the Independent Review unfortunately thought that this issue was outside its scope, the Report nevertheless fortunately recommended in general terms that the Accessibility Directorate make as a priority the Development, communication and implementation of a compliance and enforcement framework. It also later noted that the lack of an enforcement/compliance framework adversely affected the standards development process. It stated: “The government has not announced the compliance and enforcement framework for the AODA. Many felt that this contributed to an atmosphere of confusion and uncertainty during the standards development process.”
It is unfortunate that the Independent Review did not more extensively address the shocking lack of a full enforcement mechanism on the eve of the first accessibility standard coming into force, and that it did not make more detailed recommendations on this. However, there is a silver lining to this cloud, from the perspective of the Government’s duty to implement the Report’s recommendations.
Even though the Independent Review did not consider this issue within its scope, it found enough other problems with the Government’s current implementation of the AODA that it called for strengthened, new Government leadership with regard to the AODA’s implementation. If we add to this the Government’s unjustified failure to have the promised full, effective enforcement mechanism in place, that makes the need for new, stronger Government leadership even more compelling. The Report states:
“I have also made it clear that in light of the timing of this first review and because most of the standards are not in place, I am not in a position to address all of the issues that have been raised. Some are premature, while others are outside my mandate. I recognize that the first review will leave a number of unanswered questions and unresolved issues that have been brought to my attention. For example, the government has not yet established its compliance and enforcement regime. This will begin in 2010 but will have to await a later review. I am satisfied that this issue and others will be addressed in time, either directly through the standards review process, or in the next legislative review, or indirectly as a result of my recommendations.”
7. REPORT CALLS FOR ACCESSIBILITY STANDARDS TO BE HARMONIZED
The Report’s call for the forthcoming accessibility standards to be harmonized is its least ground-breaking recommendation. Before this Independent Review began, there was no dispute that the provisions of these standards should be harmonious, in the sense that the Report uses that term. The Government did not need the Independent Review to recommend such harmonization to know that this was worth doing. Moreover, harmonizing these accessibility standards, while desirable, will not redress most of the serious concerns with the AODA’s implementation that the Independent Review found.
8. REPORT ADDRESSES THE GOVERNMENT’S “OPEN FOR BUSINESS” STRATEGY
The Report stated that the Government asked Mr. Beer to consider the Government’s “Open for Business” strategy:
“As part of the Open for Business strategy, the government is committed to reducing the amount of regulation in Ontario by 25 per cent over a two-year period, by March 2011.”
To address this, the Report mainly called on the Government to harmonize the accessibility standards, as addressed above, to make it easier for businesses to know what they have to do and by when. As indicated above, we agree with this measure.
We believe that if Ontario is to be “open for business” it should be open for persons with disabilities to fully participate in business, as customers, employees, and business owners. The AODA requires the enactment and enforcement of accessibility standards to address barriers facing persons with disabilities. The Report did not suggest that the Government’s “Open for Business” strategy requires the Government not to enact and enforce all the accessibility standards needed to ensure a fully accessible Ontario by 2025. To the contrary, the Report recognized that there is a consensus in support of accessibility standards:
“During the consultations, representatives from all sectors agreed that standards are necessary to move the yardsticks toward an accessible society.” Standards are regulations enacted under the AODA. If the Independent Review found that there is wide support (including from the obligated sectors) for accessibility standards, this means that the Government’s “Open for Business” strategy should not, indeed must not deter the Government from enacting all the strong and effective regulations needed to ensure effective accessibility standards under the AODA.
9. REPORT PROPOSES WHEN TO REPEAL THE ONTARIANS WITH DISABILITIES ACT 2001
The Government asked the Independent Review when it should repeal the Ontarians with Disabilities Act 2001 (ODA), enacted by the previous Harris Government. That law requires public sector organizations (including the Ontario Government, municipalities, hospitals, school boards, public transit authorities and colleges and universities) to develop and make public annual accessibility plans. It also imposes a series of specific accessibility obligations on the Ontario Government – obligations which the Ontario government is not now consistently fulfilling.
The Report found: “Today, there is a definite reluctance among disability groups to see the ODA repealed.” The Report concluded that “…it is sound public policy ultimately to have only one piece of accessibility legislation in Ontario to identify, prevent and remove barriers for persons with disabilities.” However, it found that it would be premature to repeal the ODA 2001 before all five of the accessibility standards now on the books or in the works are enacted, and that to repeal it prematurely would send the wrong message. In summary, it recommends that the Government should:
- “Repeal the ODA once all of the accessibility standards are in regulation; repeal the ODA as a whole and not in stages
- Undertake an assessment to determine which, if any, provisions of the ODA are not covered by the AODA legislative and regulatory framework and therefore may need to be incorporated, including the requirements on the provincial government
- After consultations, incorporate the planning framework under the ODA into the AODA, with necessary modifications
- Implement a transitional guideline to integrate and streamline the planning requirements under the ODA and the reporting requirements under the AODA and
- Preserve the consequential amendments made by the ODA to other legislation, if necessary."
We had asked that the ODA 2001 not be repealed until 2025. The Report’s approach is acceptable as an alternative so long as in the end, all the requirements now set out in the ODA 2001 remain in effect, whether via specific incorporation into accessibility standards or by amendments to the AODA.
We do not agree with the Report that all accessibility planning should focus on implementation of the first five accessibility standards. Of course, implementing those standards will be an important focus of any accessibility planning. However, those five will not cover all the barriers Ontarians with disabilities face. Until we see those standards in their final form, we do not even know if they will effectively address all the barriers in the areas on which they focus. Organizations should plan to address all their barriers, whether or not they are covered in those first five accessibility standards.
10. OTHER ISSUES
We here address four additional issues that the Report considered.
First, the Report reviewed the effectiveness of Municipal Accessibility Advisory Committees (MAACs). It noted feedback on the need to strengthen them. It found that municipal accessibility advisory committees have a great deal of potential to generate positive change at the local level, but some of them have been more successful than others. It concluded that the MAACs need better supports and recommended that:
- “The MAACs continue as advisory bodies to municipalities
- Municipalities ensure that their accessibility advisory committees are appropriately utilized and seen as important resources in making communities more accessible
- In cooperation with stakeholders, the ADO continue to develop timely, regional forums to support MAACs and municipalities in carrying out their responsibilities under the AODA
- The ADO develop mechanisms for the sharing of best practices, in cooperation with stakeholders; and
- MAACs play a role in bringing together other advisory and informal organizations in their communities that are assisting the obligated sectors to comply with the AODA.”
Second, the Government asked the Independent Review to advise what new accessibility standards are needed. The Report declined to do so. It recommended instead that after the first five accessibility standards are enacted, the minister should determine if further standards are required, with the advice of the proposed Ontario Accessibility Standards Board.
We had suggested that it is the Ministry, and not the Independent Review that should be developing ideas on which other accessibility standards are needed. We emphasize that other accessibility standards will definitely be needed. We are also concerned that there not be a delay of years before work on them begins.
Third, although not listed in the Report’s summary of its recommendations, the Report identified a shortage of support services needed for accommodating various disabilities and commendably urged strategies to overcome this shortage. These problems are not new to Government. The Report states:
“Let me make an observation concerning the availability and importance of American Sign Language (ALS) interpreters and Langue des signes québécoise (LSQ) interpreters, real time captioners and attendant care workers. In my own consultations we experienced challenges in scheduling sessions as a result of the limited supply of these necessary services across the province. It became clear to me that it is critical for these resources to be available in order to make it possible for people with various disabilities to fully participate in public forums, especially where the issues being discussed relate directly to accessibility. As we move to 2025, strategies to increase the supply of these critical human resources need be considered.”
Fourth, over the past few years, we have been very critical of the costing studies that the Government has commissioned for each Standards Development Committee. We have felt that these studies were of little use, especially given the way they were conducted.
Regrettably the Government has, to date, disregarded our concerns. The Independent Review Report shows that there is widespread concern about those cost studies. It found: “All sides seemed to feel that the costing studies done for the committees were of little help.” We regret that it has taken five years, and the conduct of this Independent Review, to further validate the concern we have been raising with the Government.
11. THE REPORT’S ONLY RECOMMENDATION WE OPPOSE
The only recommendation in the Independent Review’s Report we do not accept is its proposal that the next Independent Review be moved back, from three years from now (which the AODA requires), to four years from now. The Report suggested that this delay was needed for the Government to set up the new Accessibility Standards Board, and to see how it is operating.
We respectfully disagree. Ontario is now not on schedule for reaching full accessibility by 2025 as the AAODA requires. We need the next Independent Review to be commenced on schedule in three years. If it were delayed for an additional year before that review even begins, its report may not be made public until 2015, a mere ten years before the 2025 deadline for full accessibility. Ontarians with disabilities cannot afford to wait until 2015 to see if Ontario is back on schedule for reaching full accessibility by 2025.