Help Us Make Information and Communication Accessible to Ontarians with Disabilities — Please Tell the Ford Government If You Support the AODA Alliance’s Finalized Brief to the Information and Communication Standards Development Committee on that Committee’s Draft Recommendations to Improve the 2011 Information and Communication Accessibility Standard

Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

Help Us Make Information and Communication Accessible to Ontarians with Disabilities — Please Tell the Ford Government If You Support the AODA Alliance’s Finalized Brief to the Information and Communication Standards Development Committee on that Committee’s Draft Recommendations to Improve the 2011 Information and Communication Accessibility Standard

November 26, 2019

          SUMMARY

It’s finished and delivered! The AODA Alliance has submitted its final brief to the Information and Communication Standards Development Committee. In that brief we give that Committee our feedback on its July 24, 2019 draft recommendations for improving Ontario’s 2011 Information and Communication Accessibility Standard that was enacted under the (AODA).

Our detailed brief, which we set out below, includes all the content that was in our draft brief that we circulated for public comment on November 5, 2019. There has been minor editing and a small amount of additional material, thanks to the helpful feedback we received on that draft. Thanks to all who read our draft and offered their feedback.

Let’s build support for our cause. Help in a snap, by notifying the Information and Communication Standards Development Committee if you support the AODA Alliance’s brief. We encourage individuals and disability organizations to do so. Even though the deadline for submitting feedback to the Committee has passed, nothing stops you from sending a short email stating your support. Write the Information and Communication Standards Development Committee at aoda.input@ontario.ca

You could simply say: “I support the November 25, 2019 brief on the Information and Communication Accessibility Standard.”

Here is a short summary of what we say in this brief. This is the summary that is also included in the brief itself.

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committee s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

If you want more background on this issue, you can explore the time line of our efforts to get a strong Information and Communication Accessibility Standard enacted in Ontario by visiting https://www.aodaalliance.org/category/infoandcom/

Now 299 days have passed since the Ford Government received the blistering final report of the Independent Review of the AODA’s implementation and enforcement conducted by former Lieutenant Governor David Onley. The Onley Report found that the Government’s implementation and enforcement of the AODA has been too weak. The Ford Government has announced no plan to implement that report.

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

Brief to the Ontario Information and Communication Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Information and Communication Accessibility Standard

November 25, 2019

Via email to: aoda.input@ontario.ca

A. Introduction

1. Overview

This is the AODA Alliance’s brief to the Information and Communication Standards Development Committee on its draft recommendations for revisions to the 2011 Information and Communication Accessibility Standard.

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for action.

In 2011, the Ontario Government passed the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions on the accessibility of information and communication. That is usually referred to in this brief as the Information and Communication Accessibility Standard. At other points, this brief at times refers to the IASR, of which that Standard is a part.

In 2016, the Ontario Government appointed the Information and Communication Standards Development Committee under the Accessibility for Ontarians with Disabilities Act (AODA) to review the 2011 Information and Communication Accessibility Standard, enacted under the AODA, and to recommend any revisions needed so that this accessibility standard would best achieve the AODA’s purposes.

The Information and Communication Standards Development Committee has developed draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them. The Ontario Government was required to do this under the AODA. The feedback which the Government receives is to be submitted to the Information and Communication Standards Development Committee. That committee is then required to consider that feedback, as it finalizes its recommendations to the Government.

This brief provides the Information and Communication Standards Development Committee with our feedback on the Committee’s draft recommendations. Our 49 recommendations throughout this brief are also gathered together in one place in Appendix 1. We hope that this feedback will assist the Committee as it finalizes its recommendations to the Government.

This brief embodies the accumulated input that we have received over the years from a broad and diverse spectrum of sources across the disability community. That includes feedback both disability organizations and individuals with disabilities. Over the years, we have found that many from within the disability community have come to rely on the AODA Alliance’s work formulating briefs such as this.

^The AODA Alliance welcomes this opportunity to offer our input. We ask that the Accessibility Ministry ensure that all members of the Information and Communication Standards Development Committee receive this brief as a whole, and not just a summary of it that the Accessibility Directorate of Ontario prepares. We have received informal word that in the past, at least some Standards Development Committees only receive a summary of feedback from such mandatory public consultations. That summary was evidently prepared by the Accessibility Directorate of Ontario. To fulfil the spirit and purposes of the AODA’s public consultation provisions, it is important for all Standards Development Committee members to hear directly from the public, including the AODA Alliance, without having their input filtered by the Ontario Government.

We have offered to make an in-person presentation directly to the Information and Communication Standards Development Committee on our feedback. We thank the Information and Communication Standards Development Committee for accepting this offer, and look forward to presenting to the Committee on January 22, 2020. Given the extensive detail in this brief, we would appreciate it if the Committee was able to give us more than 15 minutes to present. The Transportation Standards Development Committee and Employment Standards Development Committee each gave us 30 minutes to present. We realize that the Committee’s time is limited, and welcome whatever time can be provided. We would also welcome guidance from the Committee on which topics, covered in this brief, would be most helpful for us to concentrate on during our presentation.

When it comes time for the Information and Communication Standards Development Committee to vote on the recommendations that it will present to the Ontario Government, we ask the Committee to vote separately on each of the recommendations that we present in this brief.

We thank the members of the Information and Communication Standards Development Committee for their commendable efforts to strengthen the Information and Communication Accessibility Standard. We also acknowledge with thanks the feedback and input that we regularly receive from our supporters that enable us to provide informed feedback to the Government and the public in areas such as this. For example, we publicly circulated a draft of this brief on November 5, 2019 for comment. We have incorporated the feedback received into this finalized brief.

2. Who Are We?

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.”

To learn about us, visit: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

We have been widely recognized by the Ontario Government, by all political parties in the Ontario Legislature, within the disability community and by the media, as a key voice leading the non-partisan campaign for accessibility in Ontario. In every provincial election since 2005, parties that made election commitments on accessibility did so in letters to the AODA Alliance.

Our efforts and expertise on accessibility for people with disabilities have been recognized in MPPs’ speeches on the floor of the Ontario Legislature, and beyond. Our website and Twitter feed are widely consulted as helpful sources of information on accessibility efforts in Ontario and elsewhere. We have achieved this as an unfunded volunteer community coalition.

Beyond our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. Our efforts influenced the development of the Accessible Canada Act. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue.

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that desired legislation.

We have also been consulted outside Canada on this topic, most particularly, in Israel and New Zealand. In addition, in June 2016, we presented on this topic at the UN annual international conference of state parties to the Convention on the Rights of Persons with Disabilities.

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the information and communication context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these kinds of issues.

As but one example, the AODA Alliance played a leading role in campaigning to enable the Information and Communication Standards Development Committee to get back to work in 2018 after the work of all Standards Development Committees was frozen in the wake of the 2018 Ontario election. We were happy and relieved when the Ontario Government lifted that freeze on the Information and Communication Standards Development Committee in the fall of 2018 and allowed it to go back to work.

3. Summary of this Brief

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations.

Our feedback set out in this brief is summarized as follows:

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, this would not ensure that information and communication would be accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all the known recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. There are too many exemptions that are too broad, and that fall below requirements of the Ontario Human Rights Code.
  1. We agree with many, if not most or all of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most of the Committee’s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we agree with them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication. We aim to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the Standard’s excessively broad exemptions.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We strongly oppose any effort to re-open the AODA in the Ontario Legislature or any effort to amend it. This is because we do not want to risk the Legislature weakening the AODA.
  1. Some of the Committee’s suggestions in its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

Here are three important themes which we ask the Committee to bear in mind as it reviews our recommendations.

a) A Commendable Start

First, we strongly commend and congratulate the Committee for its efforts and for the draft recommendations. As will become evident, we agree with many if not most of the Committee’s Phase 1 draft recommendations. We urge adjustments to several of those recommendations to further strengthen them. These are in a number of cases minor adjustments or refinements to the Committee’s work. We also point out several additional improvements to the Information and Communication Accessibility Standard, to supplement those which the Committee suggested.

Based on its work so far, the Information and Communication Standards Development Committee has done by far the best job of any Standards Development Committee that has been appointed to review an existing AODA accessibility standard. It prepared far stronger draft recommendations for reform than did the Accessibility Standards Advisory Council (ASAC) when it reviewed the 2007 Customer Service Accessibility Standard or the Transportation Standards Development Committee when it reviewed the 2011 Transportation Accessibility Standard.

b) Committee’s Job Not Merely to Assess if the Information and Communication Accessibility Standard Has Been Working “As Intended”

Second, it appears that several Standards Development Committees that reviewed an existing AODA accessibility standard got substantially erroneous advice from the Accessibility Directorate of Ontario. The Transportation Standards Development Committee, Employment Standards Development Committee and the current Information and Communication Standards Development Committee, each stated that its job, when reviewing an existing AODA accessibility standard, is to determine if the standard is working “as intended”. The Information and Communication Standards Development Committee’s draft recommendations state in the introduction:

“The Act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required.”

Substantially the same erroneous language was included in the initial draft recommendations of the Transportation Standards Development Committee that were circulated in 2017 for public comment and the draft recommendations of the Employment Standards Development Committee which were circulated earlier this year for public comment.

For a Standards Development Committee to merely look to see if the standard is working “as intended” seriously and substantially understates the goal of this mandatory review of the 2011 Information and Communication Accessibility Standard. The AODA does not limit a Standards Development Committee to inquiring on such a review to see if the standard is working “as intended”.

Rather, this mandatory review’s purpose is to ascertain whether the Information and Communication Accessibility Standard is working sufficiently to ensure that information and communication will become fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend any improvements needed to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Information and Communication Accessibility Standard is working “as intended.” By that lesser and palpably weak approach, the Information and Communication Accessibility Standard would be fine, and would need no improvements, if it led obligated organizations to merely do whatever the original 2011 Information and Communication Accessibility Standard spelled out. That would leave information and communication in Ontario full of disability barriers long after 2025.

As this brief documents, the 2011 Information and Communication Accessibility Standard, while helpful, was not capable of ensuring that information and communication will become fully accessible by 2025, or ever. We have publicly shared our strong disagreement with the Accessibility Directorate’s substantial dilution of the aim of these five year reviews of AODA accessibility standards. We have alerted the Directorate about our concerns. Despite this, and with no explanation or justification, that Directorate appears to have persisted in pressing Standards Development Committees to adopt this incorrect and unduly restrictive understanding of their mandate. We identified this concern in our briefs to the Transportation and Employment Standards Development Committees. We also identified it in Chapter 5 of our January 15, 2019 brief to the Third AODA Independent Review conducted by David Onley. It appears under the heading: “Inappropriate Government Attempts to Unduly Restrict the Work of Standards Development Committees”.

Even though the Information and Communication Standards Development refers to this erroneous “working as intended” approach to its review, it is clear from the draft recommendations that the Committee did not allow itself to be improperly hog-tied by the Directorate’s erroneous advice or direction. We congratulate the Committee for this.

c) Committee Should Use the Findings in the Moran and Onley Reports As Its Starting Point

Third, we agree with the Standards Development Committee’s draft recommendations’ general assessment of the 2011 Information and Communication Accessibility Standard, as summarized in this paragraph:

“The Committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The Committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, Committee members agreed that the standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.”

However, it is vital for the Committee to proceed from the starting point that the Information and Communication Accessibility Standard is substantially more deficient than that, even though it is the strongest of the accessibility standards enacted to date. The Committee should work from the starting point established by the second AODA Independent Review conducted by Mayo Moran and the third AODA Independent Review conducted by David Onley. The key findings in the reports of those reviews appear to come directly from the detailed briefs that the AODA Alliance submitted to those reviews.

In 2014, the second mandatory Independent Review of the AODA, conducted by Mayo Moran, found that there are very serious deficiencies in the accessibility standards enacted to date. These included the 2011 Information and Communication Accessibility Standard. Nothing in that accessibility Standard has been changed since that report to address those concerns. Appendix 1 to this brief sets out key excerpts from the Moran Report.

The third Independent Review of the AODA, conducted by David Onley, reinforced and supplemented the Moran Report’s overall findings. It did not disagree with the Moran Report’s findings regarding the IASR’s deficiencies. In 2019, the third AODA Independent Review conducted by David Onley accepted the earlier Moran Report as a correct starting point. It did not contradict any of the Moran Report’s findings about the problems with the accessibility standards enacted to date. It did not find that in the intervening four years, the Ontario Government had done anything to reduce those serious deficiencies.

To the contrary, the Onley Report made even more pointed and blistering findings about the AODA’s overall implementation. It did not exempt the Information and Communication Accessibility Standard from those blistering findings.

Based on public feedback, Onley’s report found that the pace of change regarding accessibility since 2005 for people with disabilities has been “glacial.” With then under six years left before 2025, the report found that “…the promised accessible Ontario is nowhere in sight.” He concluded that progress on accessibility under this law has been “highly selective and barely detectable.”

David Onley found “…this province is mostly inaccessible.” The Onley report correctly concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley report had damning things to say about years of the Ontario Government’s implementation and enforcement of the AODA. It in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership. The Onley Report recommended:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

Since the Onley Report was received some ten months ago, the Ontario Government has announced no comprehensive plan to implement it, nor has it publicly said that it will do so in the future. Ontario keeps slipping further behind the goal of full accessibility, while the 2025 deadline looms closer.

d) The Bottom Line for This Committee

As such, the Information and Communication Standards Development Committee’s job is pivotal. It should recommend fixes to the Information and Communication Accessibility Standard that will rectify the substantial deficiencies in the AODA’s implementation in so far as they pertain to the accessibility of information and communication. This brief aims to help the Committee with that task.

If the Information and Communication Accessibility Standard is to be strengthened in order to ensure that the AODA’s goal is achieved by 2025 in relation to information and communication, this must happen now. The next mandatory review of the Information and Communication Accessibility Standard does not have to be appointed until the eve of the 2025 deadline. By then, if Ontario is not back on schedule for the 2025 deadline in connection with the accessibility of information and communication, it will be too late to meet that deadline.

Substantial progress on accessibility is easier to achieve in the area of information and communication than in many other areas like the built environment. Information technology is rapidly evolving and replacing earlier products. The inaccessible technology, websites or mobile apps of last year will often be superceded in the next months or years.

In the following discussion, our recommendations track the sequence of the Committee’s draft recommendations. We insert additional topics where they best fit, following the structure of the Information and Communication Accessibility Standard itself.

B. Our Specific Feedback on the Draft Recommendations’ Phase 1 Proposals

1. Accessibility Standard’s Long Term Objective

We commend the Committee for reviewing the Information and Communication Accessibility Standard’s long term objective, and for trying to simplify it. We believe that all that needs to be added to the Committee’s proposed simplified language is the AODA’s 2025 deadline.

We therefore recommend that:

#1. The Standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

2. Section 2 – Definitions

The term “accessible formats” should be clarified so that organizations know that digital formats are an option, but only if they are in a format that is screen-reader-friendly.

We therefore recommend that:

#2. The Committee’s recommendations should recommend that the definition of “accessible formats” in s. 2 of the Standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

3. Definition of Electronic Self-Serve Kiosks

The IASR’s definition of an electronic self-serve kiosk is far too narrow.

We therefore recommend that:

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

4. Committee’s Recommendation 1 Consolidating the Regulation’s Feedback Requirements

We agree with the Committee’s Recommendation 1 that it would be good to immediately consolidate in one place in the IASR all feedback requirements, in language that makes them clear and consistent as long as this makes it clear that this that does not reduce any existing obligations.

5. Section 9 – Definitions and Exceptions

The Standard’s definition of “conversion-ready” information is too loose. Section 9 provides:

“conversion ready” means an electronic or digital format that facilitates conversion into an accessible format;”

That definition does not ensure that the material is capable of ready conversion into an accessible format.

We therefore recommend that:

#4. The Committee should recommend that section 9(1) of the Standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

Section 9(4) of the IASR defines unconvertible information in a manner that is far too broad. It weakens the rights of people with disabilities. Section 9(4) provides:

“For the purposes of this Part, information or communications are unconvertible if,

(a) it is not technically feasible to convert the information or communications; or

(b) the technology to convert the information or communications is not readily

available.”

That provision dramatically reduces obligations of organizations below what they are required to do under the Human Rights Code, and, where applicable, the Charter of Rights. Our proposal for amending s. 9(2) makes s. 9(4) unnecessary.

We therefore recommend that:

#5. The Committee should recommend that either:

(a) Section 9(4) should be deleted, or

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

6. Committee’s Draft Recommendation 2 PDF Documents

We agree with the Committee’s draft recommendations where they conclude that PDF documents are often inaccessible and that the required expertise to make them accessible is seldom present in obligated organizations.

The Committee’s draft recommendations indicate that they do not propose banning PDF formats. We have never proposed banning anyone from creating a PDF document. It has always been our position, which we urge here, that if an obligated organization creates a pdf document in connection with activities to which this accessibility standard would apply, an accessible alternate format document, such as an MS Word, txt or HTML document should also be posted and made available at the same time.

The Committee’s draft recommendations state that the Committee considered non-regulatory measures such as education for Government employees, but did not vote on this. We do not believe that such non-regulatory measures are sufficient. They would not solve this persistent but easily-remedied problem.

As an example, we have been struggling for well over a decade to get the Ontario Government to change its own practices with PDFs, so that it will always simultaneously post an accessible format for a document whenever it publicly posts a PDF. This has too often been a frustrating and futile effort, even after we repeatedly raised this at the highest levels within the Ontario Public Service. We still continue to face serious problems.

The Ontario Government has repeatedly claimed to be leading Ontario by its example on accessibility. Yet its poor example in this context is not one by which we would want Ontario to be led. For example, the Ontario Government even released in inaccessible PDF documents such important things as the 2014 final report of Mayo Moran’s Independent Review of the AODA, and the previous Government‘s long-awaited anti-poverty strategy. Years after being told that PDFs present an accessibility problem, the Ministry of Education continues to make important publicly-facing documents regarding Ontario’s education system available via PDF documents.

A simple, clear enforceable rule in the Information and Communication Accessibility Standard is the only effective measure that will have a hope of success, not only for the Ontario Government, but for other obligated organizations as well.

Some may think that a PDF can be made fully accessible. With such a view, we strongly and respectfully disagree, based on years of ample experience. However, this is a moot point.

First, as the Committee correctly recognizes, obligated organizations mostly do not have the expertise to make a PDF accessible, even if it is assumed that this goal can be accomplished. Second, when a person receives a PDF, there is no way to know from the file name whether anyone has even attempted to incorporate accessibility features in it, and if so, how many such features. Third, it makes no sense to ask obligated organizations to divert their resources into trying in vain to remediate a new PDF, when they could instead quickly, easily and at no cost simply post the document in an accessible format like MS Word, whenever they post a PDF.

It would take enormous resources to try to persuade obligated organizations to voluntarily change their practices. It is far more effective to set a simple rule which obligated organizations can readily understand and which is easy to enforce.

Documents are not written in PDF. They are written in another application like MS Word. Typically, they are accessible when initially created. After they are written, accessibility is stripped from that document when it is converted to a PDF.

We therefore recommend that:

#6. The Committee should recommend the addition to the standard of a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

7. Committee’s Draft Recommendation 4: Products and Product Labels

We agree with the Committee’s Draft Recommendation 4 that the loophole in the 2011 Information and Communication Accessibility Standard must be closed which exempts products and product labels from information and communication accessibility. Section 9(2) of the Standard states:

“(2) The information and communications standards do not apply to the following:

  1. Products and product labels, except as specifically provided by this Part.”

We commend the Committee for attempting to address this. However the draft recommendations do not go far enough to address this. The Committee’s draft recommendations call on the Ontario Government to try to work out a shared regulatory solution with the Federal Government and/or in the interim, that the Ontario Government explore non-regulatory solutions with obligated organizations.

Here again, an enforceable mandatory and specific standard is needed to change practices on the ground. Almost 15 years into the AODA, Ontarians with disabilities do not have time to hope that non-regulatory voluntary measures will change practices that have not substantially changed. In this context, we re-emphasize the finding in the Onley Report that progress on accessibility has been far too slow, and that Ontario remains a province full of “soul-crushing barriers.”

To hold off any regulatory action on this pending Ontario working out a coordinated action by the Federal Government would, we regret, indefinitely delay any regulatory action. Getting agreement with the Federal Government will predictably take years. The Federal Government will no doubt want to try to work out a common approach for all the provinces. While that might at first seem appealing, it will take even longer. It will risk the standard being diluted down to the lowest common denominator among the provinces. Ontario should lead with the strongest standard, and not follow others to the weakest standard.

In the recent federal election, most of the federal parties were not prepared to make any commitments at all on new measures they would take to promote accessibility for people with disabilities. Only one party was prepared to make commitments with any detail or that embodied real change for disability accessibility. After the election, there is little reason to expect that they will become more eager to make accessibility a priority.

There is no compelling reason to await federal regulatory action in this sphere, as the Committee’s draft recommendations propose. The Committee is worried about the possible overlap between federal and provincial jurisdiction. Yet in any area of public regulation of economic activity, there are innumerable situations where there may be an overlap between federal and provincial jurisdiction. Ontario nevertheless regularly takes action, without waiting for the Federal Government. We have a federal labour board and a provincial labour board. We have a national building code and the Ontario Building Code. The list goes on.

Our constitution fully accommodates this without a province having to withhold regulatory action. In 2011, it is commendable that the Ontario Government did not withhold enacting regulatory standards for the accessibility of websites. For the same reason, it can and should act now in the area of the accessibility of product labels. If the Federal Government later decides to take action in this area, Ontario can then of course discuss ways to harmonize their requirements. However this should not reduce Ontario’s accessibility protections.

While it would be helpful for the Ontario Government to work with industries to come up with creative new solutions in this area as the Committee proposes, that too is no reason to withhold the enactment now of a regulatory requirement. Indeed, the presence of a mandatory Ontario regulatory accessibility requirement would help motivate industries to develop creative new solutions, including harnessing new technologies.

We therefore recommend that:

#7. The Committee’s Draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable accessibility standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

8. Committee’s Draft Recommendation 5 Alternative Formats and Communication Supports

We agree with the Committee’s concern with s. 12 of the Information and Communication Accessibility Standard. It requires an obligated organization to consult with a person with a disability on a needed accessible document format. It leaves the ultimate decision to the obligated organization in unilateral terms. The Committee’s draft recommendation commendably found:

“The Committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.”

We agree with the Committee that this provision needs to be strengthened. We also agree with the Committee’s proposal that the obligated organization should endeavour to get the agreement of the person requesting the alternative format. However, we are concerned that this does not go far enough.

The Supreme Court of Canada has held that obligated organizations have a duty to investigate alternative solutions in “duty to accommodate” cases. (See D. Lepofsky “Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic School Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School” to be published in 2020 40.1 National Journal of Constitutional Law) We anticipate that many obligated organizations do not know of their existing procedural duty to accommodate that includes investigating alternative solutions up to the point of undue hardship.

We therefore recommend that:

#8. The Committee’s Draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

9. Committee’s Draft Recommendation 6 and 7

We agree with the Committee where it states that s. 12 of the Information and Communication Accessibility Standard is unduly vague, where it requires that an alternative format document must be provided in a timely manner. We also agree with the Committee’s Draft Recommendation 6 that the obligated organization and the requesting individual should endeavour to reach an agreement on the time frame for this.

However we do not agree with the Committee’s Draft Recommendation 5 through 7 where these propose to refer to the Accessibility Standards Advisory Council (ASAC) the task of developing an alternative dispute resolution mechanism for addressing situations where the obligated organization and requesting individual cannot reach an agreement. We commend the Committee here for trying to be creative. Yet we fear that it might take years to develop that new mechanism.

Moreover, it is not clear to us that ASAC even now exists. At the time of writing, the Government’s website only lists one person as a member of ASAC. We do not know if ASAC has been meeting since the 2018 Ontario election, much less that it has been meeting with sufficient frequency to do this work in a timely way. ASAC’s membership has, in the past, not been selected based on its expertise in designing alternative dispute resolution mechanisms.

The creation of the required legal machinery to which the Committee’s draft recommendations refer might require a legislative amendment, if there is to be an enforceable requirement and monetary penalties for non-compliance. We have not had a chance to investigate that complex question. As further addressed later in this brief, we do not want the Government to re-open the AODA’s provisions in the Legislature.

The development of recommendations for the content of an element of an accessibility standard should not be sub-delegated to ASAC. The AODA requires that the development of such ideas and recommendations for accessibility standards be developed initially through a Standards Development Committee which is subject to the AODA’s procedural safeguards and openness requirements (including requirements for public input). ASAC is not bound by any of those safeguards, for which we fought so hard. For example, its meeting minutes are not required to be made public. In contrast, the minutes of meetings of a Standards Development Committee must be made public, according to the AODA.

To strengthen requirements in this area to address the shortcomings which the Information and Communication Standards Development Committee commendably identified, it would be helpful for the Information and Communication Accessibility Standard to be amended to set clear timelines, or presumptive timelines for an organization to respond to a request. This could vary depending on the organization’s size and the importance of the requested information. For example, if the information is to come from a hospital and relates to a patient’s medical condition, then the required response time should be very short. Given the readily-available availability of technology to produce alternative formats for documents, and the low cost for doing so, there is no reason for such timelines to ever be lengthy. If the Ontario Government were to post online helpful information on how to convert documents to accessible formats, and a list of venders who can be retained to do this, then an obligated organization should easily be able to act quickly when a request is received.

We therefore recommend that:

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive timelines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non-compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and/or where the requested information relates to important matters such as health, safety, or other vital services. Otherwise, nothing longer than a 7-day timeline should apply.

10. Committee’s Draft Recommendation 8

We agree with the aim of the Committee’s Draft Recommendation 8. It calls for the IASR’s requirements to provide accessible formats and communication supports to be brought together in one place in the IASR, as long as nothing is done to weaken them. We would want to screen the proposed wording of any regulatory changes to be sure that they do not reduce any rights of people with disabilities.

 11. Committee’s Draft Recommendation 9: On-Demand Conversion Ready Formats

We agree with the Committee’s Draft Recommendation 9. It would require the Ontario Government and the Legislature to immediately ensure that all publicly-facing documents are available in an accessible format. If this is required for new documents, this is not a major burden for the Ontario Government. As noted earlier, documents are typically first created in an accessible format like MS Word, and then are counterproductively rendered inaccessible by converting them to formats such as PDF.

12. Committee’s Draft Recommendation 10: On-Demand ASL and LSQ Translations

The Committee’s Draft Recommendation 10 commendably aims to find a creative way to address the need for on-demand Government information in ASL and LSQ. We share the intent of that proposal. We believe it should be strengthened.

We therefore recommend that:

#10. The Committee’s Draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

13. Other Deficiencies with Section 12 that the Committee’s Draft Recommendations Do Not Fix

Section 12(1)(a) of the Standard sets the obligation too low. It states:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a) in a timely manner that takes into account the person’s accessibility needs due to disability; and

(b) at a cost that is no more than the regular cost charged to other persons.”

It is not sufficient for an obligated organization to take “into account” the needs of people with disabilities. The requirement should be to provide supports that meet the needs of people with disabilities unless to do so is shown to cause the organization undue hardship.

We therefore recommend that:

#11. The Committee should recommend that section 12(1) of the Standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)   in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)   at a cost that is no more than the regular cost charged to other persons.”

It is commendable that section 12(3) requires organizations to notify the public about the availability of accessible formats and communication supports. However the provision is too vague. It requires more detail to make it effective. Section 12(3) provides:

“(3) Every obligated organization shall notify the public about the availability of accessible formats and communication supports.”

We therefore recommend that:

#12. Section 12(3) of the Standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

Unlike the clear language used in a number of other parts of the IASR, section 12(4) is unintelligible. An organization needs a lawyer to figure it out. It states:

“(4) Every obligated organization that is required to provide accessible formats or accessible formats and communication supports by section 3, 4, 11, 13, 19, 26, 28, 34, 37, 44 or 64 shall meet the requirements of subsections (1) and (2) but shall do so in accordance with the schedule set out in the referenced section and shall do so only to the extent that the requirements in subsections (1) and (2) are applicable to the requirements set out in the referenced section.”

We do not know what this provision means. We fear others will also not know what it means. Whatever it means to say, it should be said in much clearer language – language that lets an organization and persons with disabilities understand it without needing to pay a lawyer to decipher it.

We therefore recommend that:

#13. Section 12(4) of the Standard should be re-written in plain language to make it intelligible.

We commend and endorse the concerns and advice that Communication Disabilities Access Canada CDAC provided to Accessibility Minister Raymond Cho in its January 19, 2019 letter to the minister. CDAC is an amazing and well-respected expert in its field. It has cutting-edge knowledge and good ideas on how to make progress.

We quote from the key part of that letter here:

“Communication Disabilities Access Canada (CDAC) is a national and provincial, non-profit organization that addresses accessibility for people who have speech, language and communication disabilities. Over 165,000 Ontarians have disabilities that affect their communication, that are not caused primarily by deafness or significant hearing loss. Diverse disabilities such as physical, neurological, cognitive, learning, hearing, vision, and linguistic disabilities can affect one or more areas of a person’s speech, comprehension, reading and writing.

Communication access to goods and services is as important as physical access for people who have little or no speech and who use picture, symbol, letter boards and devices to convey their messages.

The current integrated standards do not provide sufficient directives for businesses and organizations on ways to make their services accessible for people with speech, language and communication disabilities. For example, most people with speech and language disabilities experience significant barriers to services in face-to-face and telephone interactions, group meetings and forums and written communication. These contexts are not adequately or comprehensively addressed in any of the standards. They are either oversimplified or omitted.

At this time, the Information and Communications Standard primarily focuses on making written information (print and digital) accessible. Examples of accessible formats cited on the Accessibility Directorate’s website, include human assistance, large print, text transcripts of audio or visual information, handwritten notes instead of speech, plain language and electronic documents.

Many of these accessibility accommodations are extremely useful and appropriate for people who have speech and language disabilities. However, the accessibility needs of people with speech and language disabilities go beyond access to written information and occur in face-to-face and telephone interactions, group meetings and written communication. Many of these contexts are critical communication situations, such as police, legal and justice services, where communication barriers can have serious consequences.

To address this significant gap in the standards, we propose that the Information and Communications (IC) Standard expand its mandate to include regulations that address two-way, interactive communication for people who have disabilities that affect their communication.

We are recommending:

  • The IC Standards Development Committee should include people who have a thorough knowledge and proven track record to represent the communication access needs of people with diverse speech and language disabilities.
  • The mandate of this committee should go beyond “processes that businesses and organizations must follow to create, provide, and receive information and communications that are accessible to people with disabilities” to include “processes, and resources to ensure effective two-way communication in face-to-face, telephone and group interactions and written communication.
  • Development of regulations, guidelines and resources for: Face-to-face, telephone and group interactions. Standards and guidelines are required for all service providers who interact with the public within these contexts, so that they have the knowledge, skills and resources to interact with people who communicate in ways other than speech. They need to know how-to make telephone services accessible and how to make meetings and public forums inclusive for people who have communication disabilities.
  • Communication supports: Service providers need information about how and when to provide and work with communication assistants, communication intermediaries, Sign Language interpreters and other formal communication support services. Formal communication assistance services are essential in critical communication contexts such as health care, police, legal and justice services. In these situations, appropriate communication support services must be mandatory.
  • Communication accommodations: Service providers need information about simple, non-technical communication tools that they may provide when a person has no effective means to communicate. They need clarification on the use of communication devices that people may use.
  • Writing: Regulations are required to address writing activities for people who cannot physically write or who cannot write due to learning or linguistic disabilities. Writing includes accessible forms, procedures for note taking and signatures.
  • Environmental accommodations: Services need guidelines on creating and designing accessible signage and wayfaring, counter spaces, and elevators with a communication access lens.
  • Policies are required for communication procedures in emergency evacuation situations, as well as authentic assistance in critical contexts, including medical assistance in dying, police, legal and justice settings.

We believe that many of these accessibility features could be included in the IC Standard to provide a foundation upon which sector-specific communication standards could be developed, such as transportation, healthcare, education and employment. An example of a generic baseline communication standard would-be mandatory training for all service providers on how to communicate with a person who has unclear speech or who uses a communication device. An example of a sector-specific communication standard would be that health care providers must ensure that a communication assistant is authorized by a patient when supporting them in the provision of informed consent to treatment.

Existing resources:

CDAC has developed a range of free guidelines and resources on ways to make services communication accessible. These resources are available for the Accessibility Directorate to promote and use across the province, resources include:

  1. A database of qualified Communication Intermediaries to assist people with speech and language disabilities communicating in police, legal and justice situations

http://www.cdacanada.com/communication-assistance-database/.

We have information about making justice services accessible at

http://www.access-to-justice.org/

  1. A database of communication assistants who are available to support people with speech and language disabilities communicating at meetings, forums and on committees at http://www.cdacanada.com/communication-assistance-database/
  1. A webinar on making services accessible at

Making your services accessible for people with communication disabilities

  1. Written guidelines on communication access at

http://www.communication-access.org/wp-content/uploads/2018/12/Guidelines-for-Communication-Access-1.pdf”

We therefore recommend that:

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the Standard.

14. Part 3: Section 13 Emergency Plans Generally

We share the Committee’s commendable call for greater action to ensure the accessibility of information regarding emergency plans and procedures.

15. Committee’s Draft Recommendation 11: Emergency Requirements

We agree with the Committee’s Draft Recommendation 11 that all the IASR’s various provisions regarding emergency plans and procedures should be consolidated in one part of the regulation. We add that nothing should be done to weaken these provisions.

16. Committee’s Draft Recommendation 12: Unacceptable Emergency Outcomes and Preparedness

The Committee concluded that “the preparedness of all levels of Government for emergencies involving people with disabilities is unacceptable.” We share this concern.

The Committee commendably recommended that the Government should review overall emergency preparedness measures from a disability perspective. However, it did not recommend anything to strengthen s. 13 of the Information and Communication Accessibility Standard. We turn attention to that here.

Section 13 does not spell out a most obvious and important aspect of emergency procedures in this area. It does not explicitly require an organization to incorporate in any emergency procedure, a process for ensuring that it makes emergency announcements in an accessible format or manner during an emergency or crisis. Even if it is implicitly covered by earlier provisions in the IASR, it is very important to have a specific, clear and strong requirement here.

We therefore recommend that:

#15. Section 13 of the Standard should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are provided in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

17. Part 4: Section 14 Website and Web Content Accessibility Generally

We share the Committee’s view that the Standard’s website accessibility provisions need to be strengthened.

18. Committee’s Recommendation 15: Differentiating Organizations/High Impact Organizations

We strongly and heartily endorse the Committee’s proposal that an organization’s number of employees should not be the sole determinant of an organization’s accessibility obligations. We have been urging that view upon the Ontario Government for over a decade without success.

The Committee’s idea of defining high impact organizations for purposes of defining their accessibility obligations has merit. We would add a few refinements.

First, the Information and Communication Accessibility Standard, as now constituted, has an erroneous upside-down approach to organizations’ duties and timelines. As in all other areas of the IASR, the Information and Communication Accessibility Standard starts from a mechanistic approach whereby the bigger the organization, the more it must do, and the sooner it must do it.

That is inappropriate here. In the case of small organizations, such as smaller businesses, website and mobile app accessibility should be attainable more quickly than by larger organizations, especially where the measures are required on a go-forward basis. A small company with a small website can ensure the accessibility of its entire web footprint much more quickly than the Ontario Government. Yet the Information and Communication Accessibility Standard erroneously places the least obligations on that small company and gives it the longest timelines. It places the greatest obligations on the Ontario Government and gives it the shortest timelines. This makes no sense.

The Information and Communication Accessibility Standard should be revised where needed to correct this incorrect approach. It is irrelevant for those timelines that have already expired.

Second, the measure of what constitutes a high impact organization should include more than does the Committee’s Draft Recommendation 15.

We therefore recommend that:

#16. The Committee’s Draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

19. Extending the Information and Communication Accessibility Standard to Require WCAG 2.1, Not the Current 2.0

At present, the specific standard for website accessibility that the Information and Communication Accessibility Standard sets is Web Content Accessibility Group (WCAG) 2.0. That was established by the W3C consortium at least a decade ago. Since then, we understand that it has been updated much more recently to WCAG 2.1. As we read it, the Committee’s recommendations merely refer to the old WCAG 2.0. They do not recommend updating the Information and Communication Accessibility Standard to require WCAG 2.1. The Committee’s draft recommendations do not explain this. It is critically important.

We therefore recommend that:

#17. Section 14 of the Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

As well, it is entirely unjustifiable in late 2019 for the standard to lead any organization to think that it is sufficient in the interim to only meet WCAG 2.0 Level A, and not, as a bare minimum, Level AA. Yet s. 14(3) still provides as follows, with an end date of 2021:

“(2) Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA, and shall do so in accordance with the schedule set out in this section.”

No organization should now waste its efforts at merely meeting Level A as an interim goal, when it makes more sense to set Level AA as its goal from the outset.

We therefore recommend that:

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

20. Committee’s Draft Recommendation 13: Mobile Applications & New Technologies

We agree with the Committee’s Draft Recommendation 13. It would extend the Information and Communication Accessibility Standard’s website accessibility requirements to mobile applications. However we do not agree that all small organizations should be exempted from this requirement, just as we do not believe that all small organizations should be categorically exempted from the Information and Communication Accessibility Standard’s website accessibility requirements.

If anything, a well-resourced small organization could at least in some cases find it easier to make its website and mobile apps accessible than can a larger organization. The IASR arbitrarily defines the size of an organization solely by its number of employees, regardless of the organization’s resources or its impact on the market. If for example a small organization has a broadly-selling app, there is no reason why it should not meet accessibility requirements. The Ontario Human Rights Code does not grant any such exemption for small organizations.

We therefore recommend that:

#19. The Committee’s Draft Recommendation 13 should recommend that section 14 of the Standard should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

21. Committee’s Recommendation 16: Significant Refresh

The Committee’s draft recommendations correctly identify another serious deficiency with s. 15 of the Information and Communication Accessibility Standard, namely that key requirements are only triggered by an obligated organization creating a new website or undertaking a significant refresh of an existing site. We agree with the Committee that this vague threshold provides obligated organizations with an easy, undeserved and unacceptable end-run around the provision.

We also agree with the Committee’s Draft Recommendation 16 to fix this, and the stated intent underlying it, namely:

“•    Any content that is new or which an obligated organization changes, updates or adds to a web site must meet the accessibility requirements of Section 14

  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The Committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that Section 14 include examples for the sake of clarity
  • Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.”

22. Committee’s Recommendation 17: Practicability

We agree with the Committee’s concern that s. 14(5) includes too broad an exemption to its website accessibility requirements, by only requiring obligated organizations to take the required action to make websites accessible “where practicable”. We agree with the Committee that

“…this term is too vague and might allow some organizations to avoid doing something they are actually able to do.”

We encourage the Committee to fortify and further reinforce this serious concern. The sweeping “where practicable” exemption is far broader than the relevant Human Rights Code exemption from the duty to accommodate people with disabilities, which is only available where it is impossible to provide more accessibility without undue hardship. “Undue hardship” is a much more exacting requirement than mere practicability. Moreover the Standard’s failure to use the stronger undue hardship terminology sends a harmful and erroneous signal to obligated organizations that they need not meet this higher undue hardship test. It misleads obligated organizations. This is a disservice to obligated organizations and people with disabilities.

To define the existing term “practicable” in s. 14(5) to mean the same as undue hardship, as the Committee is contemplating, risks confusing obligated organizations or suggesting to them that undue hardship means the same as merely not practicable. It is neater and cleaner, and less risk-prone, to simply replace the term “not practicable” in the Standard with the correct “undue hardship”.

We would prefer if no “exception” clause was included. Compliance with well-established international standards for new web postings simply does not create an undue hardship. At the very least, if there is to be an exemption clause, the exemption should be no broader than that provided under the Human Rights Code.

We therefore recommend that:

#20. The Committee’s Draft Recommendation 17 should be replaced with a recommendation that the Standard’s not practicable exception from website accessibility is removed from section 14. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

It is important for the Standard to make it clear that all organizations covered by this provision have a clear duty to promptly provide people with disabilities, on request, in an accessible format, with any information on their website that is inaccessible. This would include, for example, any information that need not yet be made accessible because of the timelines in the regulation, or any archival material that need never be made accessible on the website.

We therefore recommend that:

#21. Section 14 of the Standard should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

23. Part 4, Subpart 1: Section 14 Exemptions Generally

We agree that the Standards’ exemptions are too broad and need to be narrowed.

24. Committee’s Recommendation 19: Extranet Exemption

We agree with the intent and content of the Committee’s Draft Recommendation 19 that the exemption for public-facing websites with a log-in should be removed and that these types of websites should be required to comply with the Information and Communication Accessibility Standard. We however believe that the proposed 2023 deadline for all publicly-facing websites, other than new ones, is too long a timeline, especially where meeting it would not provably pose an undue hardship.

We therefore recommend that:

#22. The Committee’s Draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

25. Committee’s Recommendation 20: Intranet Exemption

We agree with the Committee’s important finding that “technology has advanced to the point where all organizations should be able to make their websites accessible under Section 14.” We therefore agree with extending this requirement to the broader public sector and large organizations, including employee-facing websites. As such, we agree with the Committee that “all definitions related to a type of website be removed and that Section 14 simply apply to all websites, internet or intranet for all obligated organizations”. Indeed this is a critical reform to strengthen the current weak Employment Accessibility Standard. As indicated earlier, we would go further and urge that it be extended to at least some small organizations, even if they do not fit within the proposed definition of a high impact organization.

26. Committee’s Recommendation 21: Pre-2012 Exemption

We agree with the Committee’s view that the Information and Communication Accessibility Standard’s exemption for pre-2012 web content is overbroad and should be narrowed. The Committee’s Draft Recommendation 21 seems on first examination to be sensible. We would add that where historic, archived content is available on the web, and where a customer or employee needs it in an accessible format for purposes of seeking or using an obligated organization’s goods, services or facilities, or for purposes of their employment, the obligated organization should be required to make that content available on request in an accessible format.

We therefore recommend that:

#23. The Committee’s Draft Recommendation 21 should be expanded to require an obligated organization to provide an item of pre-2012 inaccessible online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

27. Committee’s Recommendation 22: Live Captioning and Audio Description

We agree with the Committee’s Draft Recommendation 22 that sets out requirements so that by 2025, the Standard’s live captioning and audio description exemptions will be eliminated. We would add that by 2021, this exemption should be lifted for the city of Toronto, a public sector organization which is larger and more resourced than a number of entire provinces in Canada.

We therefore recommend that:

#24. The Committee’s Draft Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

28. Committee’s Recommendation 23: Web Hosting Location

We agree with the Committee’s Draft Recommendation 23 which would clarify that s. 14 obligations apply to a website whether or not it is hosted in Ontario. This is a loophole that should not be permitted to remain.

29. Chief Information Officer

A number of larger organizations in the public and private sector now have a senior executive position often called the Chief Information Officer (CIO) or Chief Technology Officer (CTO). This is a critical position that could be decisive in enhancing the accessibility of information, especially digital information.

At present, there is nothing in place in the Standard to help ensure that a CIO or CTO has sufficient knowledge and training on digital accessibility, or that requires them to have lead responsibility for digital accessibility or that ensures that they know that they have that lead responsibility. There is similarly nothing in place to require that a CIO or CTO is held accountable within the organization for the organization’s efforts at ensuring digital accessibility.

We therefore recommend that:

#25. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer or Chief Technology Officer position or their equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility in the organization’s internal and external digital communications.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s or CTO’s performance contract that the CIO or CTO is responsible and accountable for ensuring digital information accessibility and for ensuring that Accessibility is an integrated component of Performance and Security design requirements.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s or CTO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO or CTO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility and assistive technology.

30. Teleconference Platforms Used by Public Sector Organizations

Increasingly, organizations use web-based teleconferencing and meeting platforms for internal meetings of their employees or officials, and for public-facing meetings, such as electronic town hall meetings. Some of these platforms are more accessible than others. It is critical that organizations only use the most accessible ones. A requirement to this effect in the Standard would help pressure all such platforms to become accessible.

We therefore recommend that:

#26. The Standard should be amended to require that when any public sector organization, large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform that is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The Standard should provide key criteria for assessing the accessibility of such platforms.

31. Digital Information Accessibility Statement

The Standard does not require any obligated organization to prepare and make public a comprehensive statement of the status of the accessibility of its website or related mobile apps. This might be covered to some extent in an accessibility plan or progress report on accessibility that the organization must prepare under the IASR. However, there is no assurance that the needed information will be included and will be comprehensive.

Excellent research provided to the AODA Alliance by Emily Prosser, an Osgoode Hall Law School, which she prepared at the ARCH Disability Law Centre, includes the following:

“The United Kingdom Statutory Instrument 2018 No.952, entitled The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the “Regulation”) is comparable to certain provisions within the AODA Information and Communication Accessibility Standard. There is also a Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (the “Directive”) which is relevant.

 

Both the Regulation and the Directive require public organizations to create an “Accessibility Statement”.[1]

That research also stated:

“An Accessibility Statement as defined by the Regulation and Directive is: “a detailed, comprehensive and clear statement produced by a public sector body on the compliance of its website or mobile application with these Regulations”.[2] The Accessibility Statement is a useful tool especially where an organization determines it is unable to meet accessibility standards. The Regulation requires a public sector body to explain in its Accessibility Statement any instances where it cannot comply with the accessibility requirement and provide accessible alternatives where appropriate.[3]

Under the AODA Information and Communication Accessibility Standard, obligated organizations are required to provide a requesting party with an explanation when it determines that it is unable to convert information and communications to an accessible format.[4] This requirement is similar to the Accessibility Statement required under the Regulation and Directive. However, Accessibility Statements are more robust. Accessibility Statements outline both an organization’s compliance and lack thereof meaning they go beyond simply addressing instances where an organization cannot comply with standards. Additionally, Accessibility Statements are required whether or not there is a ‘requesting party’ who has been denied accessible/convertible information. Further, the term ‘explanation’ is undefined in the Information and Communication Standard and so it lacks the formal requirements of an Accessibility Statement. As a result, there is no guarantee as to the quality of an explanation given to a requesting party under the Information and Communication Accessibility Standard.”

We therefore recommend that:

#27. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organization’s website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

32. Committee’s Recommendation 14: Procurement

We agree with the Committee’s draft recommendations that the IASR’s general provisions regarding procurement of accessible goods, services and facilities “…are not strong enough to result in accessible digital procurement.” We also agree with the general thrust of the ideas in the Committee’s Draft Recommendation 14 on the substantive requirements to add to the IASR regarding procurement of accessible information technology. We need the Information and Communication Accessibility Standard to go further. It should spell out specifics of what kinds of accessibility features or functionality should be required. These should be expressed in terms of end-user-usability, and not the specific technology to include. This is so because technology in this area is so rapidly evolving. In other words, these amendments to the Standard should not only set process requirements, but also requirements for end results in terms of functional end-user experience. We anticipate that obligated organizations often know little or nothing about this and need as much regulatory direction as possible.

We therefore recommend that:

#28. Beyond the measures in the Committee’s Draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

We agree with the Committee that beyond the specific context of procuring information technology, the IASR’s general provisions regarding procurement need to be strengthened. We do not agree with the Committee’s suggestion that this be referred to ASAC. As noted earlier, under the AODA, the review of any accessibility standard must be conducted at least every five years by a Standards Development Committee that is appointed for that purpose.

The members of the Standards Development Committee appointed to conduct that review should be chosen based on their expertise and experience in this specific area. No Standards Development Committee has been appointed since 2011 to review any of the IASR’s general provisions, such as its procurement provisions. It would be open to the Government to assign that review to an existing Standards Development Committee that was already appointed to review any other parts of the IASR or to recommend new accessibility standards.

The Government is in violation of the AODA for not having done so. That review was required to have been started in 2016. As noted earlier, the Standards Development Committee that conducts such a review should comply with all the procedural safeguards in the AODA that involve conducting a review of an accessibility standard.

We therefore recommend that:

#29. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review all the general provisions in the IASR, sections 1 through 8.

We agree that the Government and public sector organizations need to be given some time to implement any changes in the area of procurement. However, we do not agree that this should extend out to 2021, as the Committee’s draft recommendations propose. This is so for several reasons.

First, public sector organizations have had accessible procurement duties under the AODA for years. They are not starting from scratch.

Second, their duty not to create new barriers is enshrined in pre-existing human rights law. It is not a new creation of the AODA or the IASR.

Third, 2025 is not far away. We cannot afford any delays, especially on the part of public sector organizations that are supposed to be leading by example.

Fourth, any such delay inappropriately suggests to public sector organizations that it is okay for them to continue to use public money to create new disability barriers. Yet that harmful use of public money must stop.

This is especially so as it applies to the Ontario Government that is the very body that is creating this regulation. As noted earlier, the Ontario Government has claimed for years to be leading Ontario by example in the area of accessibility. The Ontario Government is hardly caught by surprise by new regulatory provisions in this area.

For the same reasons, we respectfully disagree with the Committee’s Draft Recommendation 14 where it proposes that an obligated organization should be exempt from any of this new requirement if it has entered into a contract regarding the matter before January 1, 2021. That would let an obligated organization disregard this new requirement even if it was amply aware that it was coming e.g. because it was earlier posted in a draft regulation.

We therefore recommend that:

#30. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

We propose further measures to strengthen the IASR procurement provisions, whether they apply to information technology or other goods, services or facilities.

Section 5 of the IASR falls well short of the duty to prevent the creation of new barriers that the Supreme Court of Canada recognized years ago in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650.

This section of the Standard unjustifiably exempts any organization from even having to ask for accessible goods, services or facilities when seeking to procure them, “where it is not practicable to do so.” We know of no situation where it is impracticable to even ask vendors for accessible goods, services or facilities, as part of procurement. Moreover, the “not practicable” standard erroneously falls substantially short of the “without undue hardship” standard in the Human Rights Code. It is counterproductive and harmful for the Standard to point obligated organizations to a test that is transparently lower than the Human Rights Code.

If there were to be any exemption clause in this part of the IASR at all, it should be considerably narrowed. We here draw on the Committee’s commendable recommendation, further addressed later in this brief, that the Standard should also be amended to create a class of “high impact” private sector organizations.

We therefore recommend that:

#31. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#32. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

The duty to procure accessible goods, services and facilities should be extended to large or high impact private sector organizations. This is important for ensuring accessibility of goods, services, facilities and employment.

We therefore recommend that:

#33. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and high-impact private sector organizations.

Moreover, these procurement requirements should be extended to apply to any private sector organization when engaging in a project or contract for the Ontario Government. The Government should not be able to get around these procurement requirements by contracting out some of its work to the private sector.

We therefore recommend that:

#34. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

33. Section 6 – Self-Service Kiosks

Related to the issue of procurement, the IASR’s section regarding electronic kiosks, s.6, remains far too weak. Its requirements should be strengthened. Features of the Information and Communication Accessibility Standard bear on such kiosks, just as they can apply to other customer-facing technology. These requirements should extend further in the private sector than at present.

We therefore recommend that:

#35. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities.”

It is also important for private sector organizations with less than 50 employees to take serious action on this front, especially where they offer technology for use by the public during point-of-sale transactions.

We therefore recommend that:

#36. Section 6(2) of the IASR should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#37. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

34. Committee’s Recommendation 18: Harmonization and Application across Requirements

We agree with the Committee’s Draft Recommendation 18 that the IASR should be amended to make it clear that its website accessibility provisions in s. 14 apply to all websites that are referred to across the IASR. We go further. The IASR should be refined to make it clear that these website accessibility requirements apply to any website specified in any provincial legislation or regulations, such as any provincial law that requires anything to be posted on a website.

We therefore recommend that:

#38. The Committee’s Draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or regulations apply, such as a provincial law that requires specified information to be posted on a website.

35. Part 5: Sections 15, 16, 17 and 18 Generally

It is inexcusable that in 2019, over 14 years after the AODA was enacted, students continue to face difficulties in getting timely access to needed educational materials in an accessible format that they can read.

The AODA Alliance has released a proposed Framework for the Education Accessibility Standard and has submitted it to the K-12 Education Standards Development Committee. We set out the relevant passages below. We do however urge the Information and Communication Standards Development Committee to press forward with its recommendations in this area, as elaborated upon below. If the K-12 Education Standards Development Committee or the post-Secondary Education Standards Development Committee opt to make further recommendations on point, that can only enrich the discussion. However, we ask the Information and Communication Standards Development Committee not to hold off proceedings on these recommendations due to the forthcoming work of the two Education Standards Development Committees.

In the key part of the AODA Alliance’s proposed Framework for the Education Accessibility Standard, a vision is offered of what an accessible education system would look like. This vision includes, among other things:

“2.5 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them and would be available in accessible formats when needed.

2.6 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and would fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.”

Among the recommendations in that proposed Framework for the contents of the Education Accessibility Standard is the following:

“8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and internal or external websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

8.1 Each school board should ensure that:

Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.

  1. a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  1. b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  1. c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.
  1. d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  1. e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

8.2 The Ministry of Education and each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased either by a school board, or by the Ministry for use by school boards, unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board or the Ministry.”

The proposed Framework also includes:

“12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other instructional materials and teaching resources that are not provided at the same time in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this provision has not been effective and sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

12.1 To ensure that instructional materials are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  1. b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  1. c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.”

We therefore recommend that:

#39. Sections 15 to 18 of the Standard should be amended to ensure the accessibility of instructional and other information in Ontario’s education system, in accordance with Recommendations 8.1, 8.2, 12.1 and 12.2 of the AODA Alliance’s October 10, 2019 proposed framework for the contents of the K-12Education Accessibility Standard.

36. Committee’s Recommendation 24: Purchase of Accessible Teaching/Training Materials

We agree with the Committee’s Draft Recommendation 24 that “obligated organizations that are educational or training institutions be required to order textbooks or other printed curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print copies.” This should apply to both print and electronic teaching materials.

We therefore recommend that:

#40. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic textbooks or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

37. Section 15 – Educational and Training Resources and Materials

Beyond this, s. 15, on providing accessible educational and training materials, while helpful, needs to be strengthened. It now provides:

“15. (1) Every obligated organization that is an educational or training institution shall do the following, if notification of need is given:

  1. Provide educational or training resources or materials in an accessible format that takes into account the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by,
  2. Procuring through purchase or obtaining by other means an accessible or conversion ready electronic format of educational or training resources or materials, where available, or
  3. Arranging for the provision of a comparable resource in an accessible or conversion ready electronic format, if educational or training resources or materials cannot be procured, obtained by other means or converted into an accessible format.
  4. Provide student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

(2) For the purposes of this section and sections 16, 17 and 18, an obligated organization is an educational or training institution if it falls into one of the following categories:

  1. It is governed by the Education Act or the Private Career Colleges Act, 2005.
  2. It offers all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000.
  3. It is a designated public sector organization described in paragraph 3 or 4 of Schedule 1.
  4. It is a public or private organization that provides courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act.
  5. It is a private school within the meaning of the Education Act.”

We therefore recommend that:

#41. Section 15 of the Standard should be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.   Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as textbooks are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the timelines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

38. Section 17 – Producers of Educational or Training Material

It is helpful that s. 17 requires publishers to make accessible educational textbooks and certain other printed instructional materials available on request, in an accessible format. It however needs to be expanded. It now only applies to textbooks. Section 17 provides:

“17. (1) Every obligated organization that is a producer of educational or training textbooks for educational or training institutions shall upon request make accessible or conversion ready versions of the textbooks available to the institutions. O. Reg. 191/11, s. 17 (1).

(2) Every obligated organization that is a producer of print-based educational or training supplementary learning resources for educational or training institutions shall upon request make accessible or conversion ready versions of the printed materials available to the institutions. O. Reg. 191/11, s. 17 (2).”

It should also apply to any other course materials produced in printed form, as well as course materials and books produced in electronic form. With the spread of e-books, this is increasingly important.

We therefore recommend that:

#42. Section 17(1) and (2) of the Standard should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

39. Committee’s Recommendation 25: Definition of Educational and Training Institutions

We agree that the Standard’s requirements for educational organizations should extend to any organization that provides any education or training programs, whether or not they meet the Standard’s current definition of an education organization.

We therefore recommend that:

#43. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

40. Section 18 – Libraries of Educational and Training Institutions

Section 18 is a helpful provision addressing accessibility at public libraries. However, it has an exception for “special collections” that, if not defined, could sweep away much-needed protections. Section 18 provides:

“18. (1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.

(2) Special collections, archival materials, rare books and donations are exempt from the requirements of subsection (1).

(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:

  1. In respect of print-based resources or materials, January 1, 2015.
  2. In respect of digital or multimedia resources or materials, January 1, 2020.”

A law school at a university might argue that its entire law library is a “special collection”, that is thus exempt from any accessibility requirements. We do not anticipate that this was what the Government meant to achieve here.

We therefore recommend that:

#44. Section 18(2) of the Standard should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

41. Committee’s Recommendation 26: Increasing Captionist Capacity

We share the Committee’s concern that there is a limited number of trained captionists in Ontario. We agree with the need for new efforts to increase their numbers. The Committee appears to make a non-regulatory recommendation.

We add that technology exists now to facilitate off-site captioning from distant locations. The captionist can be anywhere in the world. An audio hookup is set up via the web so the captionist can hear the spoken words to transcribe.

The Government can further facilitate this by either creating or funding a start-up that would crowdsource these services, so that captionists around Ontario, or indeed around the world, could get quick and easy access to customers in Ontario. This could be part of an economic development strategy. A well-run Ontario-based service could sell its services around the world, bringing in new revenues to Ontario.

We therefore recommend that:

#45. The Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

42. Committee’s Recommendation 27: Accessibility in Education

We agree with the Committee’s advice that the disability accessibility curriculum should be included at all levels of Ontario’s education system.

We therefore recommend that:

#46. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

“11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

43. Committee’s Recommendation 28: Accessibility in Information and Communications Tools and Systems

We agree with the Committee that:

“There is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communications tools and systems, and this leads to a lack of accessibility in these products.”

We also agree with the Committee’s Draft Recommendation 28 where it proposes that “all obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of people with disabilities…” We see value in this recommendation being further refined.

We therefore recommend that:

#47. The Committee’s Draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some specific examples of the needed training, including differently affected disabilities, beyond its reference to Sign Language.

The Ontario Government’s economic development strategy has tried to promote the development of the information technology sector in Ontario, to serve both the Ontario market and markets around the world. However, as far as we can tell, the Ontario Government has never acted on our advice in this area, which we repeatedly gave over several years. We had recommended to the Ontario Government that it should attach strings to its funding in that sector that require that sector to develop expertise in accessible information technology design. That would promote the expansion of Ontario’s technology sector so that it has more accessible design expertise to offer organizations around the world.

We therefore recommend that:

#48. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development efforts, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

44. Committee’s Recommendation 29: Accessibility in Provincially Regulated Professions

We endorse the Committee’s Draft Recommendation 29. It provides:

“Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers.”

The AODA Alliance’s proposed Framework for the Education Accessibility Standard points in a similar direction. It includes:

“Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities. Teacher’s colleges and other programs that are publicly funded to train professionals who will work with students in Ontario schools are therefore creating new generations of barriers that will impede students with disabilities.”

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are already working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.”

Section 16 of the Standard commendably requires training organizations to provide for their teachers, training on the needs of students with disabilities. However, it does not require any of their employees to ever take that training.

Regarding teacher training, we therefore recommend that:

#49. Section 16(1) of the Standard should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

It is essential that the Committee’s proposal take the form of a mandatory regulation, and not merely a policy or “best practice”. Too many professions need this reform to try to convince them voluntarily, one profession at a time.

Moreover, the AODA Alliance has been trying without success to secure voluntary action by the Ontario Government for over a decade. In the 2007 Ontario election, the AODA Alliance asked the parties to commit to ensure that relevant professions require their members to have sufficient accessibility training. In that election, the McGuinty Government promised to advocate to self-governing professions on this. In the ensuing 11 years that the Liberal Government was in power, we repeatedly asked it to keep this promise. We never saw or were shown any Government action to act on this promise.

45. Committee’s Recommendation 30: Education Standards

This recommendation only deals with where to locate certain requirements within the IASR. We take no issue with this as a pure housekeeping matter.

C. Our Feedback on The Committee’s Proposed Phase 2

In Phase 2 of the Committee’s draft recommendations, it proposes a major overhaul of how accessibility barriers should be regulated under the AODA. We commend the Committee for trying to take a broad and creative look at how progress is going under the AODA, and for trying to come up with innovative solutions, thinking beyond the regulatory status quo. Any effort in that regard should be encouraged.

Below we offer a few general responses to the Committee’s proposed reforms to the AODA’s overall design. These are only preliminary thoughts. A fuller response requires substantially more time and research than is currently available. The Committee’s Phase 2 proposal goes far beyond the scope of the Information and Communication Accessibility Standard.

The Committee’s Phase 2 reforms call, among other things, for the creation of a new public authority. The Committee calls it the “Trusted Authority”. That new public agency would have a series of new powers, including powers which bear directly on the AODA’s interpretation, implementation and enforcement.

These reforms would require the Legislature to amend the AODA itself. These are not measures which can be enacted as accessibility standard regulations under the AODA, as it is now written.

As noted earlier, we are opposed to the Ontario Legislature re-opening the AODA and considering making any amendments to it at this time. We don’t want there to be any risk that the Government would try to weaken or reduce any provisions in the AODA. Re-opening the legislation would create such a risk. We would react very strenuously against any Government effort to re-open the AODA’s terms in any way.

Even if we had wanted the Government to re-open the legislation, the likelihood of it doing so now is extremely low. Throughout the first third of its mandate the current Government treated the AODA as a very low priority. It took months and months for the Government just to unfreeze the work of existing AODA Standards Development Committees, including the Information and Communication Standards Development Committee. It took more months after that to get the Government to re-start the important work of the Education and Health Care Standards Development Committees. This was so even though while in opposition, the Conservatives criticized the former Ontario Government for dragging its feet on appointing an Education Standards Development Committee.

Over two thirds of a year has passed since the Government received the blistering report of David Onley’s AODA Independent Review. Despite our pressure, the Government has announced no comprehensive plan to implement the Onley Report.

As such, we would not agree to the Government proceeding with the Committee’s Phase 2 proposal, in so far as it requires legislative amendments. There is a second important reason why the Committee’s Phase 2 proposal should not proceed at this time. The Committee’s Phase 2 proposal contemplates delegation of certain powers to the proposed Trusted Authority which itself raises a number of significant legal concerns, beyond any policy discussion over the proposal’s pros and cons. We have not had the time or opportunity to explore those issues in preparation for this brief. They would have to be resolved before a profitable discussion of the proposal’s pros and cons should be undertaken.

There are other important avenues and arenas for such proposals regarding reform of the AODA to be presented. For example, there have been three successive Government-appointed Independent Reviews of the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018-19. Another AODA Independent Review will have to be appointed by March 7, 2022. Those are but one appropriate place to present such suggestions. We do not know if the Information and Communication Standards Development Committee or any of its members presented these ideas to any of the three AODA Independent Reviews for their consideration.

As a visible player on the provincial front regarding the AODA, the AODA Alliance would want to be a major player in any such discussions. For our part, we pointed out serious problems with the way the AODA has been operating, in our proposals to the Federal Government regarding the design of the new Accessible Canada Act. See for example our Discussion Paper on what Canada’s national accessibility law should include, published in the National Journal of Constitutional Law and available at https://www.AODAalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

The same goes for our recent proposals to the BC Government on what the promised BC accessibility law should include, available at https://www.AODAalliance.org/whats-new/the-british-columbia-government-commits-to-provincial-accessibility-legislation-and-seeks-public-input-on-a-proposed-framework-for-a-bc-disabilities-act-read-the-AODA-alliances-submission-to-the-b/

Despite the foregoing concerns, some parts of the Committee’s Phase 2 proposal can be undertaken now, without needing any reforms to the AODA or to any accessibility standards. For example, the Committee raises concerns about the use of the term “obligated organization.” The term “obligated organization” can be changed, in the Government’s communications on the AODA. The term “obligated organization” does not itself appear in the AODA.

Similarly, the Government could do a far better job of outreach to and inclusion of people with disabilities in its ongoing AODA consultation and implementation efforts, including in its consultation on the Information and Communication Standards Development Committee’s draft recommendations which are the focus of this brief. That too requires no amendment to the AODA.

The Government could now create far better resources to guide obligated organizations. At least two of the AODA Independent Reviews have called for that very action. We strongly support the need for that.

Finally, it is open to the Government to review the Information and Communication Accessibility Standard more frequently than every five years, in order to keep it up to date in connection with new developments, such as new developments in the world of information technology or the creation of new international standards for the accessibility of information technology.

We also want to alert the Committee that we respectfully disagree with some of the key points in its Phase 2 discussion. We agree that the AODA’s implementation has fallen far short of what we all expected, what we all need and what the AODA promised. Our 450-page January 15, 2019 brief to the David Onley Independent Review may be the most detailed documentation of this failure. It explores in detail the causes of this failure and offers constructive proposals to get the AODA back on track. The Onley Report echoes our analysis in key ways, as did the 2015 Moran AODA Independent Review Report that proceeded it and on which it built.

The Committee’s Phase 2 discussion seems in no small part to be constructed on the premise that the AODA has failed because it has been undertaken as an exercise of a regulator compelling compliance through enforcement, rather than by trying to get obligated organizations to understand that it is in their self-interest to ensure that their goods, services, facilities, and employment are accessible. For example, the Committee’s Phase 2 discussion states:

“In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.”

As our brief to the Onley AODA Independent Review and our website amply documents, the opposite has in fact been the case. We have demonstrated over and over that the Ontario Government has throughout this decade taken an extremely weak and minimalist approach to AODA enforcement. For years, it would barely if ever even utter the word “enforcement” in public in connection with the AODA. It conducts “audits” of very few organizations each year.

These are only paper audits. We have only seen documentation of one on-site AODA audit or inspection from the day the AODA was passed up to at least 2017. That was a pre-announced inspection of one Government ministry by another Government ministry. In that case, the deputy minister of the inspecting ministry gave written prior notice to the deputy minister of the ministry to be inspected, that an inspection would be upcoming.

Despite knowing year after year about rampant AODA violations since 2013, the Government has only imposed a tiny number of monetary penalties. In 2015, 2016 and 2017 combined, for the thousands of private sector organizations known to have violated this legislation, the Government only imposed a total of five monetary penalties. That’s less than two monetary penalties for each of those years. That conveys the clear message to violators that their risk of a monetary penalty is extremely slim.

The Toronto Star has run editorials that support our concern in this regard. It has slammed the Ontario Government for its weak AODA enforcement. Contrary to the Committee’s characterization of events, Minister after Minister responsible for the AODA has publicly said that their primary focus is on doing exactly what the Committee proposed in the passage quoted above, i.e. showing businesses the business case for accessibility. A good example of this is the following passage from the February 26, 2015 interview on CBC Radio Toronto’s flagship Metro Morning program by the previous Liberal Government’s Economic Development Minister Brad Duguid (then responsible for AODA implementation and enforcement):

“[Matt Galloway] But her, her real, her real thrust in this, in the report, is that Ontario’s not moving quickly enough to reach the 2025 goal of full accessibility. I wanna read something to you that one of your predecessors put together, which was Marie Bountrogianni, who, uh, when the legislature passed the disabilities act said, “What was missing in the previous act was enforcement compliance.

When you leave it to the good will of the people, it doesn’t get done.” What’s changed since then?

[Brad Duguid] Well, there- there’s two things. Number one, you can’t enforce that if the businesses aren’t aware of what their responsibilities are. So, the first thing we need to do is make businesses more aware, and we’re doing that through a number of different initiatives. There’s the advertising campaign. We also have a partnership with the Ontario Chamber of Commerce where we’re reaching out to businesses an- and educating them on what they need to do.

Secondly, and this is the key, and when you, and I, I just recently appointed David Onley as our special advisor, and this is something we’re working very, very closely on. We need to make sure that businesses are, are aware of why there’s a competitive advantage for them to become accessible.

We don’t want businesses just to reach a standard, we want them to go beyond the standard and there’s every- there’s a really good business case for businesses across this province to do this. In fact, the Martin Institute indicates that there’s 7.9 billion dollars in our economy if we can become more accessible.

So, that- what I’m saying there is, I don’t want to come in and, and take a really hard approach on businesses and turn them off. What I wanna do is get businesses to embrace what this will do to their bottom line. There’s a really good business case.”

No minister responsible for this legislation has publicly proclaimed a contrary approach to AODA enforcement. No minister coming after Mr. Duguid has ever disagreed with his view, criticized it, or proclaimed a different approach. Certainly, the new Ford Government has not repudiated it.

The Committee’s Phase 2 discussion addresses a criticism at the AODA itself, which should instead be directed at the Accessibility Directorate of Ontario and the Ontario Government. The Committee’s Phase 2 discussion includes:

“The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • Students, many of whom participate in projects such as “mapathons”, design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • Non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • Persons with disabilities and their families or support communities
  • Professional organizations
  • Community volunteers
  • Civil society”

Similarly the Committee’s Phase 2 discussion later states:

“Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the Act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.”

The Committee has commendably identified a legitimate area for improvement, but is identifying the wrong culprit. Under the AODA as now written, it is open to the Government to do a far more inclusive job of consulting and including the diverse voices to which the Committee points, in its work on the AODA’s implementation and enforcement. For example, Standards Development Committees could readily engage more such voices in their work developing standards. The Accessibility Directorate of Ontario can and should do much more of this within the ample mandate that the AODA gives it. Nothing in the AODA prohibits the Ontario Government from doing so.

As well, the Committee presents a very good series of suggestions for reform in its Appendix B. No Trusted Authority or other amendments to the AODA or to its current overall structure are needed to implement them. The IASR can and should be amended, such as in ss. 5 and 6, to incorporate the very helpful requirements that the Committee formulated in its Appendix B. With such a revision to the IASR we would be in clear support.

Appendix 1 Excerpts from the Mayo Moran Second Independent Review of the AODA

The 2014 Moran Report included;

“However, the Review also heard considerable discussion about the content of the standards. In particular, members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever. They identified two problems. First, the current standards have serious gaps and deficiencies. And second, important aspects of everyday life fall entirely outside the scope of the current requirements. At the same time, obligated organizations also provided valuable feedback about the content of the current standards and some of the challenges that they pose. Below, I summarize the central themes of the feedback on these issues, including both suggestions about where there may be gaps in the existing standards as well as recommendations for additional standards.

Proposed Revisions to Current Standards

The Review heard many comments that suggested revisions to existing standards. Various disability groups advocated specific changes to the standards to better reflect the needs of their members and clients. 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. One disability stakeholder considered the deficiencies in the IASR so serious that the mandatory review of the Transportation, Employment and Information and Communications standards should begin in 2015 instead of 2016 as currently planned. Many obligated organizations in both the public and private sectors had other concerns, emphasizing that the overall AODA regime is too complex and should be simplified as much as possible.

Members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever.

IMPACT ON SPECIFIC DISABILITIES

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. They suggested that more extensive training requirements to recognize and respond to the needs of people with these disabilities were essential.

The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards. For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.

Groups supporting people who are deaf or have hearing loss pointed out that the vagueness about support persons leaves doubt about an organization’s responsibility to provide interpreters or other communication facilitators. Individuals with speech and language disabilities not caused by hearing loss believe standards should more fully outline requirements for communications assistance, especially in essential services.

People with environmental sensitivities and multi-chemical sensitivities want to see these conditions explicitly included in the definition of disability. Participants with episodic or fluctuating disabilities likewise urged a direct reference to their type of disability in the definition. Representatives of people with bowel disorders called for a network of open, accessible public toilets to be established through the Customer Service, Transportation and Design of Public Spaces standards.

The Review was told that the AODA has not been effective in addressing non-visible disabilities.

EXEMPTIONS AND EXCEPTIONS

The existing regulations set different requirements based on the size of the organization. Where the line should be drawn between small and large businesses was a major source of contention in the feedback received by this Review. In fact, some felt it was a mistake to create any exemptions on the basis of the number of employees, as very small organizations can have huge revenue streams.

At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. 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 Customer Service standard currently sets the threshold for certain requirements at 20 employees rather than 50. Currently, organizations with under 20 employees are exempt from requirements to prepare documents on their accessibility policies – including policies on service animals and support persons and the handling of service disruptions – and to produce copies on request, as well as from obligations to document training policies, keep training records and file accessibility reports. In its review of the Customer Service standard – which coincided with this Review – ASAC proposed to raise that threshold to 50 employees instead of 20 to align with the IASR, and several disability groups voiced their concerns about this proposal to this Review.

In addition to the exemptions based on organizational size, the Review also received some feedback on several other provisions that were questioned including the following:

  • Exemption of owner-operated sole proprietorships from the entire IASR as they have no employees.
  • Exclusion of the entire private sector from the duty to incorporate accessibility criteria and features when acquiring goods, service and facilities.
  • Exclusion of products and product labels from the Information and Communications standard.
  • Exclusion of unconvertible information from accessible format requirements, which some described as a loophole that should be closed.
  • Exemptions for all organizations except the provincial Government from the website provisions on live captioning and pre-recorded audio descriptions.

As well, disability stakeholders took issue with various exceptions that are less exacting than undue hardship under the Human Rights Code. This issue will be addressed later in the section on the AODA’s Relationship with Other Legislation.

GAPS IN STANDARDS

Beyond exemptions and the impact on certain disability groups, participants highlighted a host of gaps in existing standards and put forward numerous suggestions to close them.

Information and Communications

One of the gaps identified that was among the most serious sources of concern was the exclusion of extranets from the website standards. An extranet is a controlled extension of an organization’s internal network that allows access to outside users over the internet. It was pointed out that the standards development committee expected everything behind the log-in to be covered. The fact that this was not done is seen as a step backward.

Unless Ontario keeps standards in line with evolving information technology, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

The importance of keeping the Information and Communications standards in line with evolving international standards was also stressed. Unless a mechanism is created to do this, the Review was told, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

Some participants raised concerns about the provision of accessible formats for various purposes “on request”. They proposed that all educational resources should be accessible, with no need for a request. On the other hand, some post-secondary stakeholders pointed out that this might not be a wise use of resources as there may turn out to be no demand for many of the materials.”

Appendix 2 List of the AODA Alliance’s Recommendations in this Brief

#1. The Standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

#2. The Committee’s recommendations should recommend that the definition of “accessible formats” in s. 2 of the Standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

#4. The Committee should recommend that section 9(1) of the Standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

#6. The Committee should recommend the addition to the standard of a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

#7. The Committee’s Draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable accessibility standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

#8. The Committee’s Draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive timelines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and or where the requested information relates to important matters such as health or safety or other vital services. Otherwise nothing longer than a 7 day timeline should apply.

#10. The Committee’s Draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

#11. The Committee should recommend that section 12(1) of the Standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)   in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)   at a cost that is no more than the regular cost charged to other persons.”

#12. Section 12(3) of the Standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

#13. Section 12(4) of the Standard should be re-written in plain language to make it intelligible.

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the Standard.

#15. Section 13 of the Standard should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are provided in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

#16. The Committee’s Draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

#17. Section 14 of the Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

#19. The Committee’s Draft Recommendation 13 should recommend that section 14 of the Standard should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

#20. The Committee’s Draft Recommendation 17 should be replaced with a recommendation that the Standard’s not practicable exception from website accessibility is removed from section 14. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

#21. Section 14 of the Standard should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

#22. The Committee’s Draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

#23. The Committee’s Draft Recommendation 21 should be expanded to require an obligated organization to provide an item of pre-2012 inaccessible online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

#24. The Committee’s Draft Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

#25. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer or Chief Technology Officer position or their equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility in the organization’s internal and external digital communications.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s or CTO’s performance contract that the CIO or CTO is responsible and accountable for ensuring digital information accessibility and for ensuring that Accessibility is an integrated component of Performance and Security design requirements.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s or CTO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO or CTO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility and assistive technology.

#26. The Standard should be amended to require that when any public sector organization, large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform which is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The Standard should provide key criteria for assessing the accessibility of such platforms.

#27. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organization’s website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

#28. Beyond the measures in the Committee’s Draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

#29. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review all the general provisions in the IASR, sections 1 through 8.

#30. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

#31. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#32. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

#33. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and high-impact private sector organizations.

#34. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

#35. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities.”

#36. Section 6(2) of the IASR should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#37. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

#38. The Committee’s Draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or regulations apply, such as a provincial law that requires specified information to be posted on a website.

#39. Sections 15 to 18 of the Standard should be amended to ensure the accessibility of instructional and other information in Ontario’s education system, in accordance with Recommendations 8.1, 8.2, 12.1 and 12.2 of the AODA Alliance’s October 10, 2019 proposed framework for the contents of the K-12Education Accessibility Standard.

#40. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic textbooks or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

#41. Section 15 of the Standard should be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.   Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as textbooks are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the timelines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

#42. Section 17(1) and (2) of the Standard should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

#43. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

#44. Section 18(2) of the Standard should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

#45. The Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

#46. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

“11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

#47. The Committee’s Draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some specific examples of the needed training, including differently affected disabilities, beyond its reference to Sign language.

#48. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development efforts, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

#49. Section 16(1) of the Standard should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

[1] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, S.8(1). Retrieved at http://www.legislation.gov.uk/uksi/2018/952/made#f00004; Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, S.7(1). Retrieved at http://www.legislation.gov.uk/eudr/2016/2102/contents

[2] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, s.3; Directive (EU) 2016/2102 of the European Parliament and of the Council, Article 7(1).

[3] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, section 4(a)(b).

[4] Integrated Accessibility Standards, s.9(3)(a).