Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
More Specifics on the Amendments to Bill C-81 (the Proposed Accessible Canada Act) that the Senate’s Standing Committee Passed and that We Want the House of Commons to Ratify – Still No Commitment by the Federal Government to Ratify All the Senate’s Amendments
May 9, 2019
Here’s the latest news regarding Bill C-81, the proposed Accessible Canada Act. It has reached the final stage in its debates in Canada’s Senate, Third Reading debates. That is expected to wind up by May 16, which happens to Be Global Accessibility Awareness Day. the Federal Government has still not committed to pass all the amendments that the Senate’s Standing Committee made to the bill at the disability community’s request to improve it.
- We now have the exact wording of the amendments to Bill C-81 that the Senate’s Standing Committee passed on May 2, 2019. Below we set out the formal report of that Standing Committee to the Senate. That report lists the specific amendments.
These amendments improve the bill. However, they do not include all the improvements that disability organizations and advocates sought, including the AODA Alliance.
The amendments include:
* Setting 2040 as the end date for Canada to become accessible;
* Ensuring that this 2040 timeline does not justify any delay in removing and preventing accessibility barriers as soon as reasonably possible;
* Recognizing American Sign Language, Quebec Sign Language and Indigenous Sign Languages as the primary languages for communication used by Deaf people;
* Making it a principle to govern the bill that multiple and intersectional forms of discrimination faced by persons with disabilities must be considered;
* Ensuring that Bill C-81 and regulations made under it cannot cut back on the human rights of people with disabilities guaranteed by the Canadian Human Rights Act;
* Ensuring that the Canadian Transportation Agency cannot reduce existing human rights protections for passengers with disabilities when the Agency handles complaints about barriers in transportation; and
* Fixing problems the Federal Government identified between the bill’s employment provisions and legislation governing the RCMP.
- The ARCH Disability Law Centre has posted online a helpful explanation of these amendments. We set it out below.
- When a Senate Standing Committee reports back to the whole Senate on a bill it has studied, it can include in its report “observations” about the bill. These set out the Committee’s advice to the Federal Government. They are not binding on the Government, but are meant to put real pressure on the Government to address them.
The Senate Standing Committee’s report, set out below, included two observations about Bill C-81. The first observation, under the heading “Federal Contracts,” commendably raises a concern that the AODA Alliance has raised for some time. It states:
“Your committee heard concerns that despite this legislation, federal funding may continue to be spent on projects that do not always meet accessibility standards. Therefore, we encourage the federal government to ensure that when public money is spent or transferred, the funding should never be used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided.”
The Committee’s second observation “…strongly encourages the government to create standardized, effective training that will ensure that all persons in Canada can expect the same level of access to all government services.”
- The Federal Government has still not publicly said whether it will pass all the Senate’s amendments to Bill C-81. On May 6, 2019, we wrote federal Disabilities Minister Carla Qualtrough to ask her Government to commit to do so. She has not yet responded to us.
Of special importance are the Senate’s amendments that set 2040 as the end timeline for Canada to become fully accessible to people with disabilities. The minister has in the past spoken in opposition to amendments that would make this change to the bill.
Of interest, the minister yesterday was asked about this in the House of Commons. On May 8, 2019, she appeared before the House of Commons’ Standing Committee on Human Resources (the HUMA Committee). Conservative MP (and Committee vice-chair) John Barlow asked Minister Qualtrough whether she would support passage of all the amendments that the Senate made to Bill C-81. We express our thanks to MP Barlow for raising this with the minister.
In this request, MP Barlow specifically mentioned the amendments setting 2040 as the time line for reaching accessibility.
In her response, the Minister said:
“I certainly was open, as I told senators, to amendments within their process, but I’m very mindful that of course that is their process to run. I’m looking at their suggestions, looking at what the government thinks would be the best for this law and I’m open to many of their amendments, yes.”
It is not news that the Minister is open to “many” of the Senate’s amendments. Of the 11 amendments passed, a majority of them were proposed in the Senate by the Government’s own sponsor of the bill, Senator Jim Munson, or had been the subject of prior Government signals of support for them.
The only real open question is over setting the 2040 timeline. Four of the amendments speak to this.
The Minister did not say that she is open to all of the Senate’s amendments. That is why we need as many of you as possible to now email or tweet the Federal Government to press for the Government to support all the Senate’s amendments to the bill.
To get action tips on how you can help press the Federal Government to agree to pass ALL the amendments to Bill C-81 that the Senate passed, and to read our May 6, 2019 letter to federal Disabilities Minister Carla Qualtrough (explaining why we need all these amendments passed), visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/
To find your MP’s email address or Twitter handle, visit https://www.ourcommons.ca/en and search for their contact information.
Text of the Report to the Senate of Canada on Bill C-81 by the Senate’s Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities
Originally posted at https://sencanada.ca/en/committees/report/74724/42-1
May 7, 2019
The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its
Your committee, to which was referred Bill C-81, An Act to ensure a barrier-free Canada, has, in obedience to the order of reference of March 21, 2019, examined the said bill and now reports the same with the following amendments:
- Preamble, page 1: Replace line 15 with the following:
“bility without delay complements the rights of persons with disabil-”.
- Clause 5, page 3: Replace line 13 with the following:
“ers, on or before January 1, 2040, particularly by the identification and removal of bar-”.
- Clause 5.1, page 4: Replace lines 1 to 5 with the following:
“5.1 (1) The area of communication referred to in paragraph 5(c.1)
(a) includes the use of American Sign Language, Quebec Sign Language and Indigenous sign languages; and
(b) does not include broadcasting as defined in subsection 2(1) of the Broadcasting Act or telecommunications as defined in subsection 2(1) of the Telecommunications Act.
(2) American Sign Language, Quebec Sign Language and Indigenous sign languages are recognized as the primary languages for communication by deaf persons in Canada.”.
- New clause 5.2, page 4: Add the following after line 5:
“5.2 Nothing in this Act, including its purpose of the realization of a Canada without barriers, should be construed as requiring or authorizing any delay in the removal of barriers or the implementation of measures to prevent new barriers as soon as is reasonably possible.”.
- Clause 6, page 4:
(a) Replace lines 12 to 14 with the following:
“wish to have regardless of their disabilities;”; and
(b) replace lines 22 to 26 with the following:
“must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons;
(f) persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures; and
(g) the development and revision of accessibility stan-”.
- Clause 11, page 6: Replace line 6 with the following:
“Canada without barriers on or before January 1, 2040.”.
- Clause 18, page 7: Replace line 14 with the following:
“tribute to the realization of a Canada without barriers, on or before January 1, 2040,”.
- Clause 94, page 54:
(a) Replace lines 9 to 17 with the following:
“(4) An individual is not entitled to file a complaint in re-”; and
(b) replace line 22 with the following:
“(5) The Accessibility Commissioner must cause a written”.
- New clause 121.1, page 67: Add the following after line 21 :
“121.1 For greater certainty, nothing in any provision of this Act or the regulations limits a regulated entity’s duty to accommodate under any other Act of Parliament.”.
- Clause 143, page 77: Replace line 10 with the following:
“subsection 94(5), 96(1), 100(2), 101(2) or 103(3), the Ac-”.
- Clause 172, pages 88 to 91:
(a) On page 88, replace line 37 with the following:
“172 Section 172 of the Act is replaced by”;
(b) on page 89,
(i) replace lines 3 to 12 with the following:
“(2) On determining that there is an undue barrier to the”, and
(ii) replace lines 34 and 35 with the following:
“(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.”;
(c) on page 90, replace line 25 with the following:
“172.2 (1) For the purpose of paragraphs 172(2)(d) and”;
(d) on page 91, replace line 5 with the following:
“graphs 172(2)(b) and (c) and 172.1(2)(b) and (c) may in-”; and
(e) renumber the remaining clauses and amend all references to them accordingly.
Your committee has also made certain observations, which are appended to this report.
JUDITH G. SEIDMAN
to the thirty-fourth report of the Standing Senate Committee on Social Affairs, Science and Technology (Bill C-81)
Your committee heard concerns that despite this legislation, federal funding may continue to be spent on projects that do not always meet accessibility standards. Therefore, we encourage the federal government to ensure that when public money is spent or transferred, the funding should never be used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided.
Your committee is concerned that while the goal of this legislation is to prevent, identify and remove disability-related barriers, this legislation does not sufficiently emphasize how important the education and training of front-line personnel is in accomplishing that end. Your committee strongly encourages the government to create standardized, effective training that will ensure that all persons in Canada can expect the same level of access to all government services.
ARCH Disability Law Centre Analysis of the Senate Standing Committee’s Amendments to Bill C-81
Originally posted at https://archdisabilitylaw.ca/update-se
May 7, 2019
Update: Senate Committee Adopts Amendments which Strengthen Bill C-81- Accessible Canada Act
Bill C-81, An Act to ensure a barrier-free Canada, continues its journey through the legislative process. If it becomes law, this Act may lead to new requirements for advancing accessibility in federal employment, transportation, services, information and communications, and other areas.
On May 2, 2019 the Senate Standing Committee on Social Affairs, Science and Technology (SOCI) made a number of amendments to Bill C-81. Many of these amendments were adopted in response to the written and oral submissions that the Senate received from disability groups and members of disability communities across Canada. ARCH supported disability communities in their advocacy, and made our own oral and written submissions to the Senate. A common theme among these submissions was the need for the Senate to make changes to strengthen Bill C-81 and ensure that it achieves its purpose of a barrier-free Canada.
What Amendments Did the Senate Committee Adopt?
Including Timelines: SOCI adopted amendments which add a timeline of 2040 for realizing a barrier-free Canada. Amendments also clarify that this timeline does not authorize any delay in removing or preventing barriers to accessibility, and that action to advance accessibility should be taken as soon as reasonably possible. Including timelines is an important accountability mechanism, which many disability organizations advocated for, including the AODA Alliance, the Council of Canadians with Disabilities and ARCH.
Taking Intersectionality Into Account: SOCI adopted an amendment which incorporates intersectionality into the principles of Bill C-81. Laws, policies, programs, services and structures must take into account disability and the multiple and intersectional forms of discrimination faced by persons with disabilities. This change means that organizations will have to take into account intersectionality when developing their accessibility plans. Throughout the legislative process, ARCH and other disability organizations have consistently advocated for incorporating barriers related to intersectionality into Bill C-81. Persons with disabilities and disability communities have been firm that laws, policies and programs about disability and accessibility must address the lived experiences of whole persons, not just their disabilities.
Protecting Existing Human Rights of People with Disabilities: SOCI adopted an amendment which clarifies that nothing in Bill C-81 or its regulations limits the legal obligations that organizations already have to accommodate persons with disabilities under the Canadian Human Rights Act and any other federal laws. ARCH and other disability advocacy groups highlighted to SOCI the importance of this amendment.
Protecting Existing Human Rights of Passengers with Disabilities at the Canadian Transportation Agency: Under Bill C-81, we expect that most complaints by passengers with disabilities about barriers in air travel, train travel, and every other kind of transportation that the Federal Government regulates, will go to the Canadian Transportation Agency (CTA). The Bill gives the CTA power to make regulations to set enforceable standards on what barriers these transportation providers must remove and prevent.
However, subsection 172(2), a provision that is currently in the Canada Transportation Act, effectively means that once the CTA make these regulations and transportation providers, like airlines, comply with these regulations, they do not need to do anything more. This is problematic because the regulations that the CTA sets may not meet the duty to accommodate protections that people with disabilities have under human rights law. Under subsection 172(2), if a passenger with a disability complained to the CTA that an airline or other transportation provider should have accommodated their disability, their case would fail if the airline complied with the CTA regulations. A more detailed analysis of this issue is in ARCH’s Final Report: Legal Analysis of Bill C-81, available by going to: https://archdisabilitylaw.ca/initiatives/advocating-for-accessibility-in-canada/arch-reports-and-recommendations/ ARCH and the AODA Alliance highlighted to SOCI the importance of repealing the problematic section 172(2) of the Canada Transportation Act.
SOCI did not repeal subsection 172(2), but adopted an amendment which changes it. The amendment allows the CTA to find that there is a barrier to accessibility, even if the transportation provider has complied with all the CTA regulations. For passengers with disabilities, this means they could file a complaint with the CTA that they faced an undue barrier in the federal transportation system, and insist that the transportation provider do more than what the CTA regulation requires. The passenger with a disability could win their case, even if the transportation provider has complied with all the CTA regulations. However, the CTA could only order the transportation provider to take “corrective measures”. The CTA could not order the transportation provider to pay the person damages or money compensation. This is different than for other complaints to the CTA about inaccessibility of the federal transportation system. Generally for these other complaints, the CTA can order the transportation provider to take corrective measures and to pay damages to the person who complained.
Recognizing Sign Languages: Communication is one of the areas in Bill C-81 for which new accessibility standards may be created. SOCI adopted an amendment that explains that communication includes the use of American Sign Language, Quebec Sign Language and Indigenous Sign Languages. Another amendment recognizes that sign languages are the primary languages for communication by Deaf persons in Canada.
Legal recognition of sign languages is an issue that Deaf communities in Canada have long advocated for. ARCH and other disability advocacy groups supported the Canadian Association of the Deaf in calling for Bill C-81 to recognize sign languages as an important acknowledgement that sign languages are not just disability accommodations, but are important for cultural and linguistic reasons.
These are some of the amendments that the Senate Committee adopted. While the amendments made address many of the issues raised by ARCH and other disability groups, they do not deal with all of our concerns and recommendations. A number of weaknesses remain in Bill C-81. One such weakness is the use of permissive language “may” rather than directive language “shall” or “must”. This language gives government and other bodies power to make and enforce accessibility requirements, but does not actually require them to use these powers. For example, the Bill allows the Government of Canada to make new accessibility regulations but does not require them to do so. Therefore, there is no assurance that such regulations, a cornerstone for advancing accessibility, will ever be made.
In addition to the amendments, the Senate Committee reported 2 observations to Bill C-81. The first addresses the concern expressed by many in the disability community that federal funding may continue to be spent on projects that perpetuate barriers. The observation encourages the federal government to ensure that any federal public money should not be used to create or perpetuate disability related barriers when it is reasonable to expect that such barriers can be avoided. The second observation emphasizes the importance of training in achieving a barrier-free Canada. It encourages the government to create standardized, effective training to ensure that all persons in Canada can expect the same level of access to all government services.
What Happens Next?
In the coming weeks, the amended Bill C-81 will come before the Senate for Third Reading. At that time, Senators will vote on whether to pass the Bill with the amendments adopted by SOCI. If the Bill passes Third Reading, it will return back to the House of Commons for approval. If it gets approval from the House, the Bill will then enter the final stages of the process to become a law.
ARCH is pleased that in response to submissions by disability communities across Canada, the Senate made a number of important amendments to strengthen Bill C-81.
Now, the Senate and the House of Commons must both act quickly to allow enough time for the Bill to finish it journey through the legislative process, before the Fall federal election is called.
If you support Bill C-81 becoming law with the changes that the Senate Committee has made, write to or tweet Minister Carla Qualtrough and Members of Parliament. Let them know they should pass Bill C-81 with all the amendments. For practical tips and information on how to do this, go to the AODA Alliance’s website: www.bit.ly/2vKXmV2
Recorded video of the Senate Committee’s study of Bill C-81, with sign language interpretation, and the written submissions made by disability groups to the Senate can be found by going to: https://sencanada.ca/en/committees/soci/studiesandbills/42-1 and clicking on Bill C-81.
To read ARCH’s analysis of Bill C-81, and submissions ARCH made to the House of Commons and Senate, go to: https://archdisabilitylaw.ca/initiatives/advocating-for-accessibility-in-canada/
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Excerpt from the Hansard of the House of Commons Standing Committee on Human Resources on May 8, 2019
Mr. John Barlow: Thank you very much, Mr. Chair.
My first question is to Minister Qualtrough. You were talking about the importance of barrier-free and we certainly heard from almost every single stakeholder as part of the discussion at committee on Bill C-81 on the concerns raised that the bill does not go far enough, that it does not have the metrics to ensure success or teeth to ensure that federally legislated businesses adhere to it.
Now there were dozens of amendments that we brought forward that every opposition party agreed with. None of them were supported by the government. However, many of those amendments have come forward and been accepted at the Senate. I’m just curious and I would like to know if you’re going to be supporting those amendments that have come forward from the Senate specifically adding a timeline of 2040 for Canada to be barrier-free? Are you going to support those amendments?
Hon. Carla Qualtrough: Thank you for the question. I certainly was open, as I told senators, to amendments within their process, but I’m very mindful that of course that is their process to run. I’m looking at their suggestions, looking at what the government thinks would be the best for this law and I’m open to many of their amendments, yes.
Mr. John Barlow: Thank you very much, Minister. I appreciate that.