August 13, 2007
There’s just 18 days left to let the Ontario Government know what you think of the proposed transportation accessibility standard that has been developed by the Transportation Standards Development Committee under the Accessibility for Ontarians with disabilities Act. It is very important that as many people as possible send the Government their feedback.
To help you with this, the AODA Alliance has finalized its brief to the Ontario Government on the proposed transportation accessibility standard. Here we make this final version of the brief public. (See below.) This is the same text we circulated last week as a draft, with only EXTREMELY MINOR CHANGES.
We urge everyone, individuals and organizations, to email or phone the Ontario Government’s Accessibility Directorate as soon as possible. Let them know if you support the AODA Alliance’s brief. We hope you’ll support our position on the proposed standard, and our recommendations. Add any comments and recommendations you want to supplement our brief.
Unfortunately the Government has only given you until August 31, 2007 to send in your feedback. Email the Government at:
You don’t need to write a long email to the Government, if you don’t have time. You can just send in one sentence, saying whether you support the brief of the AODA Alliance on the proposed transportation accessibility standard. Get as many other people as possible to do the same.
You should assume that transportation providers are well-organized to voice their perspective on this issue. The disability community needs you to act right now, to help ensure that our perspective is heard. Circulate this email to as many people as you can. The Government will be tracking how many people send in feedback, either endorsing or opposing the proposed standard.
Here’s our position in brief:
* The proposed Transportation Accessibility Standard is extremely disappointing and entirely unacceptable. It is far too weak. It won’t bring Ontario’s public transit services to full accessibility within the next 18 years, as the AODA requires. It doesn’t fulfill the 11 principles for the AODA which the Ontario Legislature unanimously passed on October 29, 1998. It is not the strong, effective and enforceable blueprint we need for achieving accessible public transportation as soon as reasonably possible. Instead it reads largely like a manifesto written by transit providers for delay and insufficient action.
* It doesn’t effectively address and set new standards for the removal and prevention of many important barriers to access to public transit. Of those barriers it does address, it sets many time lines that are far too slow. It reflects an impoverished approach to providing timely accessibility for persons with disabilities, that falls short of the requirements of the Ontario Human Rights Code.
* In several key areas, the proposed standard sets no new standard for barrier removal and prevention. Where it specifies a barrier to be addressed, the standard is at time expressed in unacceptably vague terms. This makes it so discretionary that it will be difficult, if not impossible to effectively enforce. In some important areas, the “standard” it purports to set leaves it almost entirely, if not entirely, to the transit authority to decide what, if anything, to do, how much to do, and by when to do it.
* One example pointedly shows how weak and ineffective the proposed standard is. In a recent, widely publicized decision, the Ontario Human Rights Tribunal ruled that under the Ontario Human Rights Code, blind people riding a Toronto bus or streetcar have the right to have all route stops called out. The Tribunal gave the Toronto Transit Commission 30 days to provide this accommodation. In stunning contrast, the proposed accessibility standard, released shortly before that Human Rights Tribunal hearing was completed, gives public transit systems across Ontario fully 18 years to provide this accommodation. The Transportation Standards Development Committee refused to let David Lepofsky appear at one of its meetings to explain why this accommodation is needed now. David Lepofsky is the person who won this recent human rights case against the Toronto Transit Commission, and also led the decade-long campaign for passage of the AODA. If the proposed transportation standard is so deficient when addressing this obvious, simple accommodation, it can hardly be expected to be much better when addressing more complex barriers.
* The AODA alliance therefore recommends that this proposed standard be re-designed “from scratch.” It should address all the serious barriers in the public transit system, set clear, enforceable standards of what has to be done to remove and prevent these, and fix far more prompt time lines for accomplishing this. The revised standard should meet or exceed the Ontario Human Rights Code’s requirements, and not fall so dramatically far short of them.
* There is real cause for concern about the process to date used by the Transportation Standards Development Committee. The activity of the Standards Development Committee should be reformed to make it more fair, open and effective. For example, the Government and the Transportation Standards Development Committee should hold an open consultation with the public including the disability community.
* The Ontario Government should extend the time lines for receiving input on this proposed standard beyond August 31, 2007. This issue is so complex and important. So many whose voices should be heard are on holiday during this consultation period.
* It isn’t possible in this brief to provide a comprehensive re-write of the proposed transportation standard. The proposed standard is far too flawed to be fixed by a few wording adjustments. Moreover, we don’t have access to the full range of research and other technical information that the Standards Development Committee had access to during its closed proceedings.
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
BRIEF OF THE AODA ALLIANCE TO THE ONTARIO GOVERNMENT ON THE PROPOSED PUBLIC TRANSPORTATION ACCESSIBILITY STANDARD
August 13, 2007
This is the submission of the Accessibility for Ontarians with Disabilities Act Alliance to the Ontario Government on the proposed Transportation Accessibility Standard.
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 more about us, visit: http://www.www.aodaalliance.org
Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. Our new coalition exists to build on the work of the ODA Committee and to step into its shoes. 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
Under the Accessibility for Ontarians with Disabilities Act 2005 (AODA), Ontario is legally required to become fully accessible to persons with disabilities by 2025, less than 18 years from now. The Ontario Government is required to enact enforceable accessibility standards to remove and prevent barriers that impede persons with disabilities from full participation in Ontario life. These standards must get Ontario to the mandatory goal of full accessibility by the Legislature’s deadline.
On June 27, 2007, the Ontario Government made public a proposed Transportation Accessibility Standard dated May 28, 2007, available at:
http://www.mcss.gov.on.ca/mcss/english/pillars/ accessibilityOntario/accesson/business/transportation/ standard/report/
The Government has invited public input on this proposed standard. Here is the AODA Alliance’s response. We also encourage as many as possible from the disability community to send the government their feedback. Send feedback to the Government at:
or by snail mail at:
Accessibility Directorate of Ontario
777 Bay Street,
6th Floor, Suite 601A
Toronto Ontario M7A 2J4
2. SUMMARY OF THE AODA ALLIANCE’S POSITION ON THE PROPOSED STANDARD
The proposed Transportation Accessibility Standard is extremely disappointing and entirely unacceptable. It includes some potentially useful ingredients, and addresses to an incomplete extent some of the many barriers that impede persons with disabilities from fully benefiting from public transportation in Ontario.
However, it is far too weak. It won’t bring Ontario’s public transit services to full accessibility within the next 18 years, as the AODA requires. It doesn’t fulfill the 11 principles for the AODA which the Ontario Legislature unanimously passed on October 29, 1998. (See Appendix 1) In his April 7, 2003 letter to David Lepofsky, then chair of the Ontarians with Disabilities Act Committee, Dalton McGuinty promised in the last election that his Government would pass an accessibility law that fulfils all 11 of those principles. This letter is at:
At bottom, this proposed standard reads largely like a manifesto written by transit providers for delay and insufficient action, rather than a blueprint for achieving accessible public transportation as soon as reasonably possible. This proposed standard doesn’t effectively address and set new standards for the removal and prevention of many important barriers to access to public transit. Of those barriers it does address, it sets many time lines for their removal that unjustifiably are far too slow. It reflects an impoverished approach to providing timely accessibility for persons with disabilities that falls demonstrably short of the requirements of the Ontario Human Rights Code. It may become a formula for delay, rather than achieving full accessibility “within as short a time as is reasonably possible,” as promised by the first of the 11 principles for the AODA which the Legislature unanimously passed on October 29, 1998.
In several key areas, the proposed standard sets no new standard for barrier removal and prevention at all. Where the proposed standard specifies a barrier to be addressed, the standard is at time expressed in unacceptably vague terms, so discretionary as to be difficult, if not impossible to effectively enforce. In some important areas, the “standard” it purports to set leaves it almost entirely, if not entirely, to the transit authority to decide what, if anything, to do, how much to do, and by when to do it. This all falls far short of being an effective standard.
In one area, the proposed standard is internally contradictory. In another area, the proposed standard calls for action which may be misleading to persons with disabilities and the public on whether accessible transit services are available.
It is therefore recommended that this proposed standard be re-designed “from scratch,” to address all the serious barriers in the public transit system, to set clear, enforceable standards of what has to be done to remove and prevent these, and to fix far more prompt reasonable time lines for accomplishing this. The revised standard should meet or exceed the Ontario Human Rights Code’s requirements, and not fall so dramatically far short of them.
The revision of this proposed standard should involve the Government and the Transportation Standards Development Committee in holding an open consultation with the disability community. There is real cause for concern about the process to date used by the Transportation Standards Development Committee. The Ontario Government should extend the time lines for receiving input on this proposed standard beyond August 31, 2007, especially since this issue is so complex and important, and since so many are on holiday during this consultation period.
3. PROPOSED STANDARD EMBODIES IMPOVERISHED APPROACH TO FULL ACCESSIBILITY AND HUMAN RIGHTS
Key parts of the proposed accessibility standard fall far short of the requirements of the Human Rights Code, and reflect an impoverished approach to disability accessibility and human rights. Section 1 of the Ontario Human Rights Code provides:
“1.–Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of …disability.”
Section 11 of the Code defines constructive discrimination:
“11.–(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances;
(2) The Commission, the Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
Section 17 of the Human Rights Code provides in part:
“17.–(1) A right of a person under this Act is not infringed for the reason only that the person is incapable of performing or fulfilling the essential duties or requirements attending the exercise of the right because of disability.
(2) The Commission, the Tribunal or a court shall not find a person incapable unless it is satisfied that the needs of the person cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.”
Examples of the ways in which the proposed standard suffer from this serious deficiency are as follows:
a) As detailed below, the time lines set out in the proposed standard are for the most part unjustifiably long. The Human Rights Code would only tolerate such delays, only if prompter action would cause undue hardship to transit providers. In Ontario, many if not most public transit providers are large government agencies, with substantial budgets. In recent years, the federal and provincial governments have announced major new funding for public transit, over and above current existing funding. For such inordinate delays to be warranted, Ontario’s transit providers must show that they cannot make any more progress any sooner.
b) A very striking illustration of how the proposed standard falls dramatically short of the Human Rights Code’s requirements is its provision regarding the simple, obvious and straightforward accommodation of having public transit bus and streetcar drivers announce each route stop for the benefit of blind and vision impaired passengers. Blind and vision impaired people need all bus and streetcar route stops to be audibly announced, so they can know where they are on the route and when they have arrived at their destination. Yet the proposed accessibility standard doesn’t require municipal transit providers to have bus and streetcar drivers audibly announce all route stops. For the next 18 years, it only requires them to announce major intersections and passenger requests. Section 5.28.1 of the proposed standard states:
“The transportation provider shall ensure that operators audibly announce, through manual or electronic means, transfer points with other fixed routes, other major intersections and destination points, or any stop on the request of a passenger.”
Section 5.28.5 gives fully 18 years for transit providers to automate announcement of all route stops, except subways, which are given eight years. Yet this technology for automating route stop announcements exists right now. The Toronto Transit Commission (TTC) has announced that by the end of 2007, it will have this technology installed on all buses, streetcars and subways.
This proposed standard flies in the face of the resounding July 26, 2007 ruling of the Ontario Human Rights Tribunal in Lepofsky v. TTC #2. There, the Tribunal held that the Human Rights Code requires TTC to have its bus and streetcar drivers audibly announce all route stops, not just major intersections and passenger requests. The Tribunal rejected TTC’s claim that it would cause TTC undue hardship for its drivers to provide such announcements. The Tribunal gave TTC thirty days, not 18 years, to have these announcements provided. TTC is not appealing this ruling.
When the Transportation Standards Development Committee was finalizing this proposed standard, the Human Rights Tribunal was already holding its public hearing in the case of Lepofsky v. TTC #2. Ontario’s anti-discrimination enforcement agency, the Ontario Human Rights Commission, was on the public record arguing that the Human Rights Code requires transit providers to audibly announce all route stops, not just major intersections and passenger requests – an argument the Human Rights Tribunal ultimately accepted.
In this proposed standard, the Transportation Standards Development Committee opted to take an impoverished approach to human rights, by adopting TTC’s position (which ultimately lost at the Tribunal), and by finalizing its proposed standard before the Human Rights Tribunal announced its decision in that case. The Ontario Government opted to release this proposed standard just days before the Human Rights Tribunal released its decision on this issue. There is serious cause for concern that if this proposed standard falls so far short on so simple and easy an accommodation as announcing all bus and streetcar route stops, can it be expected to have dealt more effectively with more complex or challenging barriers in the public transit system?
c) In spring, 2007, the Supreme Court of Canada released an important decision which endorsed the importance of achieving an accessible public transportation system. It approved significant requirements for train car accessibility, including the requirement that new barriers not be created when new equipment is purchased. See Council of Canadians with Disabilities v. Via Rail  S.C.J. No. 15.
In important areas, the proposed standard flies in the face of the Via Rail decision’s principles regarding transit accessibility for persons with disabilities, just as it also retreats from the AODA’s central commitment to achieve full accessibility and the related guarantees of equality in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. In key areas, the proposed standard is constructed around and commits only to “equivalent” services for persons with disabilities, not “equal services.” Section 2 merely defines “equivalent” as “having similar or identical results.”
This runs the real risk of falling well short of true equality. It can permit the long term segregation of passengers with disabilities outside the mainstream or conventional transit system. The amorphous standard of “similar” results doesn’t necessarily ensure true equality. This runs afoul of the Supreme Court of Canada’s Via Rail ruling, which held at para. 121 that:
“The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right.”
The Supreme Court spoke of equal access, not merely similar access.
i) Section 6.2.1 states:
“The transportation provider shall establish, implement, maintain and document an accessible public transportation plan that includes policies, procedures and performance measures that ensure the provision of equivalent transportation services to all passengers.”
ii) Section 7.2.1 states:
“Independent operators, brokerages or dispatch services providing on-demand taxi services shall establish, implement, maintain and document policies, procedures and practices to deliver on-demand taxi services for persons with disabilities equivalent to services available to the general population.”
iii) Section 10.2.1 states:
“Persons or organizations whose primary business is not the provision of passenger transportation services, but who provide other passenger transportation services shall, provide accessible conveyances or equivalent services to persons with disabilities.”
When the proposed standard is first skimmed through, it looks as if it includes a number of commitments to achieve accessibility. However, a careful examination of the proposed standard’s definition of accessible public transit services reveals that it gives transit providers a sweeping discretion to provide a so-called family of services, and to decide which service to provide passengers with disabilities. These can be segregated from the mainstream or part of the conventional transit system. Section 2 defines “accessible public transit services” as:
“Accessible public transit services – various accessible service options, generally referred to as a family of services, developed and implemented to address the transportation requirements for persons with disabilities that are delivered by public transit. Accessible public transit services include, but are not limited to, to-the-door, workshop shuttles, medical shuttles, community bus, accessible fixed route services, travel training, and trip planning.”
The proposed standard is substantially designed around the notion that transit providers are entitled to provide “accessibility” via this “family of services” to passengers with disabilities, whether on the conventional transit system or via separate disability-accessible services like para-transit. This means that “separate but equal” service for persons with disabilities into the indefinite future is acceptable as full accessibility. This contradicts the Supreme Court’s Via Rail decision which held:
“174. VIA asserted before the Agency that it “has a policy for alternative transportation that is sensitive to passengers with disabilities and a history of satisfying those needs”, but provided no evidence in support of this assertion. In oral argument before this Court, VIA explained that in the past it has sent passengers to their destinations by taxi when they could not be accommodated on its trains, and that passengers who call in advance may be offered assistance.
175. This ad hoc provision of taxis or a network of rail services with only some accessible routes is not, it seems to me, adequately responsive to the goals of s. 5 of the Canada Transportation Act. Section 5 provides that the transportation services under federal legislative authority are, themselves, to be accessible. It is the rail service itself that is to be accessible, not alternative transportation services such as taxis. Persons with disabilities are entitled to ride with other passengers, not consigned to separate facilities.
176. Likewise, the fact that there are accessible trains traveling along some routes does not justify inaccessible trains on others. It is the global network of rail services that should be accessible. The fact that accessibility is limited to isolated aspects of the global network — like VIA’s alternative transportation policy or the suggestion that persons with disabilities can continue to ride the existing fleet for the time-being — does not satisfy Parliament’s continuing goal of ensuring accessible transportation services.”
A thread running through the proposed standard is that of the twin notions of entitling persons with disabilities only to equivalent services, and entitling transit providers to deliver this through the open-ended discretionary “family of services.” Because these twin bedrock features of the proposed standard are fatally flawed, the proposed standard must be re-designed from top to bottom to fulfill the requirements of true accessibility, as guaranteed by the Human Rights Code and the Charter of Rights, and as elaborated upon in the Via Rail decision.
d) A too-common problem is that accessibility equipment that transit providers already have in place in their transit systems (like elevators, lifts and escalators) doesn’t consistently and reliably work. Yet section 5.36 doesn’t require transit providers to ensure that this equipment is in working order, or that it be regularly inspected and promptly fixed. It merely states:
“The transportation provider shall maintain accessibility-related equipment consistent with manufacturer’s specifications.”
Manufacturers don’t have public responsibility for setting standards for disability accessibility of public transit services, or for ensuring that full accessibility and respect for the human rights of persons with disabilities are honoured and achieved.
4. NO NEW STANDARD IMPOSED IN KEY AREAS
An AODA accessibility standard was intended to provide clear indication of what barriers must be removed, and by when. This meant that an accessibility standard would itself set a new standard to be achieved.
Yet in key areas, the proposed standard imposes no new standard at all. Instead, it pointlessly says that transit authorities must obey other legislation and regulations, apart from the AODA. This is utterly redundant.
The AODA was passed because other legislative requirements were insufficient. Half a decade ago, the Ontario Human Rights Commission released a comprehensive study of accessibility problems facing persons with disabilities using public transit. It found that Ontario’s public transit system is replete with barriers impeding persons with disabilities. It recommended, among other things, that new standards be enacted for transit accessibility. By this, the Human Rights Commission didn’t mean that the needed new standard would say that transit-providers should obey existing laws. To see that report, visit:
Making things worse, the proposed standard doesn’t say what existing legislation and regulations it refers to. Are these provincial, or federal, or both? What if those requirements conflict or are unclear? For what other legislation and regulations may enforcement proceedings be taken under the AODA? What happens if other legislation or regulations on point are repealed?
What Ontario needs, and what the Transportation Standards Development Committee was appointed to draft, is a new standard, with new requirements, that specifies what action is to be taken and what barriers are to be removed and prevented. To the extent that this proposed standard doesn’t do this, it fundamentally fails to fulfil its mandate under the AODA. It is the abdication of responsibility for creating a new standard.
a) Section 5 says that urban transit buses, streetcars, subway cars, light rail cars, family of service vehicles, commuter railcars, inter-city railcars, commuter buses, and intercity coaches must “conform to all applicable legislation and regulations.” Required here were specifics of new requirements that all these critically-important vehicles must conform with to be accessible, and time lines for when changes must be made. Elsewhere in the proposed standard are a modest number of added requirements. However, even if all those added other requirements were obeyed, this would not achieve full accessibility on the fixed route services that these vehicles service.
b) Section 5.32 provides that where there is a service disruption, the transit provider shall reasonably accommodate persons with disabilities. It states:
“Where a planned or unanticipated service disruption occurs, the transportation provider shall take reasonable steps to inform and accommodate persons with disabilities who would otherwise use the equipment or feature.”
This merely repeats what the Ontario Human Rights Code says. It includes no specifics. AODA standards were intended to inject specifics, so that persons with disabilities wouldn’t have to fight barriers one at a time.
c) Section 7.1 doesn’t set any new standard for accessible taxis. It instead imposes the redundant requirement to comply with existing legislation and regulations, not spelled out. It states:
7.1 “Independent operators, brokerages or dispatch services providing on-demand taxi services shall ensure accessible taxi vehicles conform to applicable legislation and regulations.”
d) Section 8.1.1 establishes no new standard for accessible shuttles, limousines, etc. It states:
“Persons or organizations, including transportation providers or operators, who provide booked services for taxis, limousines, shuttles, tour buses and community service transportation vehicles shall ensure accessible vehicles conform with applicable legislation and regulations.”
e) Section 9.1 imposes no new standard for accessibility of accessible school buses. It states:
“Persons or organizations providing school transportation services shall ensure accessible school transportation vehicles conform with applicable legislation and regulations.”
f) Section 10.1 provides that conveyances for other transportation services that are accessible must comply with existing law. It states:
“Persons or organizations providing conveyances for other transportation services shall ensure accessible conveyances conform with applicable legislation and regulations.”
5. TIME LINES FAR TOO LONG
In many, if not most areas that the proposed standard addresses, it sets time lines for removing and preventing barriers which are far too long. The AODA set its 20-year deadline (i.e. January 1, 2025 — now less than 17.5 years away) for full province-wide accessibility, with the expectation that that was the outside end-date. It was not intended that organizations such as transit providers would be given unreasonably long time lines and that the 20-year target would be used to delay action that could be taken far sooner. Yet this proposed standard seems to be a licence for foot-dragging.
a) Section 4 gives transit providers fully three years to simply institute minimal training on disability accessibility for their employees. Such training should be readily launched within weeks, and could be completed within one year. To expedite this, transit providers could easily work together to develop common training materials.
b) Section 5.11.1 gives transit providers 18 years to provide accessible equipment where fare payment and ticket validation equipment is provided on the conveyance. Section 5.11.2 gives three years to start providing any alternative means to assist passengers with disabilities to pay fares in such situations. This could leave passengers with disabilities with no support for something as obvious and rudimentary as paying fares for three years, in at least some situations. It would also permit transit authorities to continue to acquire inaccessible fare-paying technology for years so long as they eventually meet the 18-year deadline.
c) Section 5.13 gives transit providers three years to simply put an accessibility symbol on certain vehicles (without in fact requiring the vehicles to be first made fully accessible). Transit providers cannot possibly need three years to paste a sticker on some vehicles.
d) Section 5.17 gives transit providers fully 18 years to provide audible announcement of the route or direction, or destination or next major stop of the conveyance at the boarding point, with one exception. It gives subways three years to comply. Similarly, section 5.28.3 gives subways three years to audibly announce all subway stops. Section 5.28.5 gives subways eight years to provide automated announcements of all subway stops. Yet Ontario’s sole subway system, Toronto’s, has been required to provide key parts of this for two years under an order of the Ontario Human Rights Tribunal in Lepofsky v. TTC #1. Moreover, TTC promised as far back as 1991 to institute automated subway stop announcements by 1992.
e) Section 5.28.1 gives transit providers three years to provide audible announcement of major intersections and passenger requests along a transit route. As described earlier, the Ontario Human Rights Tribunal gave the Toronto Transit Commission thirty days to start audibly announcing all bus and streetcar route stops, and not merely major intersections and passenger requests.
f) Section 5.28.5 gives fully 18 years for transit providers to automate announcement of all bus and streetcar route stops. TTC will have this in place in Toronto on all its bus and streetcar services by the end of 2007.
g) Section 5.32 gives all transit providers fully three years to provide reasonable accommodation to patrons with disabilities when there is a service disruption. Yet the Human Rights Code requires them to provide this right now. It has so required for 25 years.
h) Section 5.35 gives transit providers three years to stop charging a separate fare for a personal attendant who accompanies a passenger with a disability. There is no reason why such a practice can’t stop immediately.
6. TRANSIT AUTHORITIES TOO OFTEN LEFT TO SET THEIR OWN STANDARDS
In several important areas, the proposed standard improperly leaves it to the transit providers to set their own accessibility standards. It is recognized that a strong and effective accessibility standard can leave with transit providers some latitude on how to achieve legislated benchmarks for accessibility. However, an effective accessibility standard shouldn’t delegate to the transit providers a sweeping mandate to set their own accessibility standard. To do so is to convert the AODA into an unenforceable, voluntary compliance law. This runs afoul of the 11 principles that the Ontario Legislature set for the AODA in the unanimous resolution passed on October 29, 1998 (Set out in Appendix 1), and to the Government’s commitments on what the AODA will achieve.
Examples of this include:
a) Section 5.18.2 leaves it totally up to transit operators’ front-line operators to decide whether it is safe to use boarding equipment for persons with disabilities. If the front-line operator deems it unsafe, the standard is complied with, even if there was no safety problem at all. It provides:
“Where lifting devices, ramps, or portable bridge plates are used, the transportation provider shall ensure that the operator does not deploy the boarding/de-boarding lifting devices, ramps, or portable bridge plates if the operator deems the location or stop to be unsafe for deployment.”
b) Section 5.31 requires transit providers to develop emergency preparedness and response plans that address passengers with disabilities. Yet it doesn’t set any standards of what these plans must include or must achieve (beyond new vehicles having accessible emergency response controls). This leaves this to the sole discretion of transit providers. It doesn’t ensure that these plans are comprehensive and effective. It states:
“5.31.1 The transportation provider shall:
a) develop and maintain an emergency preparedness and response policy and procedures that provides for people with disabilities;
b) communicate emergency response procedures to passengers through all appropriate channels; and
c) ensure conveyances include appropriate emergency equipment in conformance with applicable legislation and regulations.
5.31.2 In the event of an emergency, the transportation provider shall ensure that the operator provides emergency information that an individual with a sensory or other disability can respond to appropriately.”
(See also a similar problem regarding taxi, shuttle, limousine and related companies’ emergency response plans in ss. 7.5 and 8.4 of the proposed standard, for school buses in s. 9.3.1, as well as for those whose primary business is not the provision of passenger transportation services, but who provide other passenger transportation services in s. 10.4.1.)
d) An extremely important issue is the retrofitting of existing long-life transit vehicles to the extent practicable to enable persons with disabilities to use them, pending their later replacement with new accessible vehicles. This proposed standard gives transit providers complete discretion over what retrofitting to do, and how and when to do it. It would let them do no retrofitting at all if they wish. It imposes no standards. Making this worse, it then gives transit providers fully three years to develop whatever policy they wish to address this important area. Section 5.33 states:
The transportation provider shall establish and maintain a policy that details how the transportation provider considers opportunities to improve accessibility features of long-life equipment.”
e) Section 5.39 imposes a very minimal duty on transit providers to “make available” information on their accessibility features. It leaves it to the transit providers to decide what information to provide, how and when to provide it, and how often to provide it. Under this standard, a transit provider could put a single print sign up in its head office that virtually no one would know about, and yet fulfil this obligation. It states:
“The transportation provider shall make available information on the availability of accessibility-related equipment and features of their conveyances, routes and services.”
f) Section 6.2.2 provides that transit providers shall establish a disability advisory committee to give input into accessibility plans. However, it doesn’t provide for an open accountable process for selecting persons with disabilities to sit on that committee. The proposed standard would let the transit provider hand-pick which persons with disabilities will serve on that committee. To be effective, such committees should not be selected in that self-serving way. There should be a far more open, fair, representative and accountable selection process.
g) Section 6 provides for transit providers to make annual accessibility plans somewhat akin to those now required under the Ontarians with Disabilities Act 2001. There are some enhancements. However, this proposed standard still leaves to the transit providers overwhelming discretion of what to include in their accessibility plans.
h) Section 6.12 requires neighbouring transit authorities with accessible transit services to “facilitate” transit between them. However, it leaves it entirely to the transit providers to decide how to do this, and what level of service persons with disabilities will be able to receive between them. It states:
“6.12 Transportation between adjacent municipalities
Where accessible public transit services are provided in adjacent municipalities within a contiguous urban area, the transportation providers of both services shall facilitate connections between respective services.”
i) Section 7.2 addresses the need to provide accessible taxi services. However, it leaves it to taxi providers to set their own policies, describing what they will provide and how. The proposed standard then merely repeats their existing duty under the Human Rights Code to remove and prevent barriers. It states:
“7.2.1 Independent operators, brokerages or dispatch services providing on-demand taxi services shall establish, implement, maintain and document policies, procedures and practices to deliver on-demand taxi services for persons with disabilities equivalent to services available to the general population.
7.2.2 In establishing, implementing and maintaining policies, procedures and practices, independent operators, brokerages or dispatch services providing on-demand taxi services shall:
a) prevent the creation of barriers to accessible on-demand service;
b) identify barriers to accessible on-demand service;
c) remove barriers to accessible on-demand service; and
d) provide alternative services until barriers are removed.”
j) Section 9.2.2 in effect lets school bussing services serve passengers with disabilities as they wish, without having to effectively work towards an inclusive and equality-based service within reasonable time lines. It appears to assume that if a person’s disability cannot accommodate an existing vehicle, the school can in perpetuity provide “separate but equal” alternative busing. It states:
“Where the provision of accessible school transportation services is not possible due to the nature of the disability or safety concerns, the person or organization responsible for school transportation shall provide alternative accessible transportation.”
7. VAGUE LANGUAGE MAKES PROPOSED STANDARD REQUIREMENTS POTENTIALLY TOOTHLESS AND DIFFICULT TO ENFORCE
To be effective, an AODA accessibility standard must be readily capable of effective enforcement through the AODA’s provisions for auditing organizations and launching enforcement proceedings. To achieve this, a standard’s terms should be sufficiently clear and specific that it will be reasonably evident whether a transportation-provider has fulfilled the standard or not. The AODA was intended to reduce the need to fight cases before the Human Rights Tribunal one barrier at a time, just to find out what standards need to be fulfilled. Absolute precision isn’t expected. Undue vagueness in a standard is, however, entirely unacceptable.
In too many places where this proposed standard does attempt to set an actual standard, it uses wording that is so vague or discretionary that it can present difficulty for those responsible for enforcing it. Such vague language gives transit providers far too much arbitrary discretion on what to do, and how much or how little to do. Slippery language in a standard can help an organization avoid being held legally responsible for a failure to remove and prevent barriers.
a) Section 4 requires training of transit employees on the vague criteria of “relevant” training” “as frequently as necessary and as appropriate to their duties.” It provides no specifics on such important matters as the minimum frequency of such training. It states:
“The transportation provider shall provide relevant training, learning opportunities or direction where applicable to employees and volunteers as frequently as necessary and as appropriate to their duties.”
b) Section 5.11.1 deals with situations where fare payment and ticket validation equipment is provided on the conveyance. It merely says that equipment be provided that is “accessible” and allows for secure use by persons with disabilities. This provides no specifics on what barriers need to be addressed, nor even any examples of how they may be addressed. It states:
“Where fare payment and ticket validation equipment is provided on the conveyance, the transportation provider shall provide equipment that is accessible and allows for secure use by persons with disabilities.”
c) Section 5.11.2 vaguely requires that where accessible equipment isn’t yet available, the transit provider shall provide “an alternate service” that is “consistent with the operating environment of the service.” Such weasel words may let the transit providers give whatever interim assistance they wish. It provides:
“Where fare payment and ticket validation equipment is not yet accessible on the conveyance, the transportation provider shall offer an alternative service for fare payment and ticket validation consistent with the operating environment of the service.”
d) Section 5.25.1 provides that reserved seating for persons with disabilities should provide for personal attendants to sit with them “where possible.” It states:
“Where possible, the transportation provider shall on all new conveyances provide seating adjacent to the allocated space for use by personal care attendants.”
Similarly, section 5.26.1 uses this amorphous “where possible” escape clause for the provision of seating that would accommodate a person with a disability and their service animal, such as a guide dog for blind patrons. It provides no specificity on when it is acceptable for this accommodation to be refused. It states:
“Where possible, the transportation provider shall on all new conveyances provide space adjacent to the allocated space or courtesy seating, without obstructing the aisle, for use by a service animal.”
e) Section 5.26.2 imposes a vague restriction on the accommodation to be provided to persons with disabilities accompanied by a service animal, nebulously requiring that it must be “transported in a manner that does not adversely affect the safety of other passengers on the conveyance.” It states:
“The transportation provider shall ensure that a service animal is transported in a manner that does not adversely affect the safety of other passengers on the conveyance.”
f) At several points in the proposed standard, unacceptably vague requirements are imposed to promote the use of well-contrasted signage for the benefit of persons with low vision. These don’t incorporate in every instance the needed, measurable and specific standards on the degree of contrast that must be used. For example,
i) Section 5.16.2 states:
“Where route or destination signs are displayed on the conveyance, the transportation provider shall ensure that all new conveyances have signs that:
i) are illuminated;
ii) have non-glare surfaces;
iii) are positioned to minimize glare; and
iv) use characters that provide high contrast with the background.”
ii) Section 5.18.3 states:
“Where lifting devices, ramps, or portable bridge plates are used, the transportation provider shall ensure that each end of boarding/de-boarding lifting devices, ramps, or portable bridge plates be marked by a colour strip with high colour contrast to its background that runs the full width of the device or plate.”
iii) Section 5.20.2 states:
“The transportation provider shall ensure that:
i) the top outer edge of each step and be marked by a colour strip in high contrast to its background that runs the full width of the leading edge of the step and is readily apparent from both directions of travel;
ii) all interior edges at raised floor areas be marked by a colour strip in high contrast to its background that runs the full width of the leading edge of the step and is readily apparent from both directions of travel; and
iii) step surfaces do not create glare.”
iv) Section 5.34 states:
“The transportation provider shall ensure that all new conveyances incorporate colour contrasting and lighting features that promote independent boarding, on-board circulation and de-boarding for passengers with visual disabilities.”
g) Section 5.29 vaguely says that stop-request signaling devices must be “within reach.” It specifies no concrete minimum reach that must be accommodated. It states:
“The transportation provider shall ensure that accessible stop-request controls are available throughout new conveyances, including within reach of allocated spaces and seated passengers.”
8. MISLEADING REQUIREMENT
In one area, the proposed standard also includes requirements that, if followed, may actually be misleading for persons with disabilities.
Section 5.13.1 requires an international symbol of access for certain vehicles. However the proposed standard doesn’t require the vehicles to be fully accessible before this symbol must be posted on them. This can give the public the misleading idea that the vehicle is accessible, whether or not it really is. It states:
“The transportation provider shall ensure that conveyances used for the transportation of persons with disabilities in transportable mobility aids display the International Symbol of Access.”
9. CONTRADICTORY REQUIREMENTS
The proposed standard is internally contradictory. There can be no excuse for this. At a minimum, an accessibility standard should not be internally contradictory. Transit authorities, persons with disabilities and government enforcement officials should be able to tell what the standard requires a transit authority to do.
The proposed standard is confusing and contradictory on what route stops must be announced on certain vehicles.
a) Section 5. 17 states:
“For all services that do not require pre-booking, the transportation provider shall ensure that the operator audibly announces through manual or electronic means the route or direction, or destination or next major stop of the conveyance at the boarding point.
|Fixed route urban transit bus
|Fixed route streetcar
|Fixed route subway car
|Fixed route light rail car
|Family of service vehicles
|Fixed route commuter rail car
|Fixed route inter-city rail car
|Fixed route commuter bus
|Fixed route inter-city coach
|Fixed route ferry vessel
b) Section 5.28.1 states:
“The transportation provider shall ensure that operators audibly announce, through manual or electronic means, transfer points with other fixed routes, other major intersections and destination points, or any stop on the request of a passenger.
|Fixed route urban transit bus
|Fixed route streetcar
|Fixed route light rail car
c) Section 5.28.2 states:
“The transportation provider shall ensure that the operator audibly announces through manual or electronic means next destination points or stops for all services that do not require pre-booking.
|Family of service vehicles
d) Section 5.28.3 states:
“The transportation provider shall ensure that the operator audibly announces all stops through manual or electronic means.
Class Shall comply with this requirement within n years after this standard is adopted in regulation
|Fixed route subway car
|Fixed route commuter rail car
|Fixed route inter-city rail car
|Fixed route commuter bus
|Fixed route inter-city coach
e) Section 5.28.4 states:
“The transportation provider shall ensure that the operator audibly announces the trip origin and destination through manual or electronic means.
|Fixed route ferry vessel
10. IMPORTANT AREAS LEFT OUT
To be effective, an AODA standard such as this needs to be comprehensive. Yet this proposed standard leaves out important requirements needed to attain full accessibility. For example:
a) It doesn’t require transit providers to have in place an effective, prompt and accountable method for receiving complaints and feedback from persons with disabilities on accessibility issues and problems. Such a complaints process needs to be timely. It needs to ensure that complaints are effectively investigated and, where meritorious, acted upon. It must ensure that those in senior positions, managing the transit authority are kept meaningfully posted on what accessibility problems persons with disabilities actually experience when using their transit services. It needs to be open and accountable.
On this topic, all the proposed standard vaguely says is that a transit provider’s annual accessibility plan should include a “process to manage, evaluate and take necessary corrective action on customer feedback” (section 6.2.4(k)) and “number and types of customer feedback” (section 6.2.5(g)).
b) The provision requiring transit providers to undertake training of their employees (section 4) doesn’t require any training for senior management on the importance of removing and preventing barriers against persons with disabilities, on how to plan for accessibility, or on the common experiences of persons with disabilities who too often confront barriers to access to public transportation. It doesn’t require front-line employees who deal with the public to be trained on the diverse range of disabilities they can encounter and on the most effective way to meet their needs. It only requires training on the AODA’s requirements and not on the requirements of the obviously-related Ontario Human Rights Code. Given the weakness of this proposed standard, and the extent that it falls short of the Human Rights Code, training on Human Rights Code requirements is especially important.
c) Section 5.24 provides for some reserved seats on public transit vehicles for persons with disabilities using mobility aids. Section 5.24.3 lets other passengers use these seats if not needed for persons with disabilities with mobility aids. There is no provision to assist passengers with disabilities with the recurring problem of other passengers without disabilities using these seats even when needed by a patron with a disability.
d) Section 7 sets out standards to address access to accessible taxi services. However, it suffers from the very critical omission that it doesn’t impose on municipal governments any duty to use its taxi licensing power to increase the number of accessible taxis on the street. If there aren’t more accessible taxis, there won’t be much hope in increasing the availability of accessible taxi services.
In ironic contrast to the foregoing, the proposed standard does impose a requirement that seems to be of doubtful use. Section 5.14 requires the international symbol of blindness to be posted on certain vehicles “in a manner that will be visible to passengers boarding the vehicle.” It is questionable what use such postings will be to blind and vision impaired patrons. It states:
“The transportation provider shall ensure that where stops are audibly announced on a conveyance the International Symbol for Blindness (as shown in Figure 2) for persons who are blind or who have low vision is displayed on the outside of the conveyance in a manner that will be visible to passengers boarding the vehicle.”
11. DEFICIENT PROCESS FOR DEVELOPING PROPOSED TRANSPORTATION STANDARD
The process which the Transportation Standards Development Committee followed for developing this proposed standard was seriously deficient.
We are unaware of that Committee opening up its process to meaningful and effective direct input from the disability community. We are aware of one request from the disability community for an opportunity to give input directly and in person to the Transportation Standards Development Committee. It was unjustifiably refused.
David Lepofsky, former Chair of the Ontarians with Disabilities Act Committee (the coalition that led the decade-long campaign for enactment of the AODA) wrote to this Standards Development Committee on August 15, 2006. He wanted to request an opportunity to appear before the Committee in person, to address an important issue on which the Transportation Standards Development Committee was apparently divided, namely whether to require municipal public transit authorities to audibly announce all bus and streetcar stops for the benefit of blind and visually impaired passengers. (See this letter in Appendix 2.) Mr. Lepofsky, himself blind, was deeply interested in this issue. He was fighting a case on this topic before the Human Rights Commission (Lepofsky v. TTC #2) and Tribunal, and had won a similar case against the Toronto Transit Commission in 2005 regarding announcement of all subway stops (Lepofsky v. TTC #1).
The Transportation Standards Development Committee Chair, Mr. Al Cormier, wrote to Mr. Lepofsky by email dated August 15, 2006, refusing to permit him to speak to the Committee. He stated:
“By copy of this email, I am asking the project manager at CSA to attach your letter to the agenda for our meeting of August 28 and 29.
According to the CSA process, the Committee may decide to receive only or receive it and discuss it.
I note your offer to appear before the Committee. While I appreciate this offer, I don’t think this will be possible this late in our work plan.
Thank you for taking the time to share your views.”
Yet that Committee wouldn’t complete its work for another nine months. When Lepofsky wrote to the Committee, it had only held six of its twelve meetings. There would have been ample time to allow for public input, including that of Mr. Lepofsky. As noted above, the Transportation Standards Development Committee eventually proposed a standard adverse to Mr. Lepofsky’s position, and reflective of TTC’s position. The Human Rights Tribunal has now ruled in Lepofsky v. TTC #2 that the TTC’s approach violates the Ontario Human Rights Code.
The only way for the public to understand what went on at the Transportation Standards Development Committee was to read its posted Minutes. Its Minutes, however, are difficult if not at times impossible to understand. They make reference to documents and discussions which are not adequately explained. From information obtained from some members of that Committee, it is our understanding that key controversies are not adequately documented in those minutes.
It is very clear, from the list of members appointed to the Transportation Standards Development Committee, that the Committee was very lopsided, in a manner adverse to persons with disabilities. Disability representatives were a minority among the Committee’s members. Many other members were employees of government or government-funded public agencies. The disability community representatives also would have benefited from the Government providing adequate support and resources to them, in order to be able to effectively respond to the positions of the various transit sector and government representatives (who had far better financial resources to back their efforts). It is hardly surprising that the resulting standard reads like a manifesto of transit providers, rather than a balanced, strong and effective standard which the AODA was promised to deliver.
It is also doubtful that fully five of this Committee’s members should have been delegates from five different Ontario Government ministries. On the Committee were separate delegates from the Ministry of Transportation, the Ministry of Education, the Ministry of Northern Development and Mines, the Ministry of Health and Long-Term Care, and the Ministry of Municipal Affairs and Housing. Under the AODA, Standards Development Committees were meant to be independent of the Ontario Government. They were meant to give advice to the Ontario Government on what accessibility standards should be set. They were not meant for the Government to advise itself. It would be open to the Government to have officials from these or any other relevant ministry available to give the Standards Development Committee technical advice if it wished. However that is a far cry from putting all these ministry representatives on the Standards Development Committee itself.
As well, the August 31, 2007 deadline now set for public input on this proposed standard should be extended. The current input period now extends over the summer when many are on holidays. It is especially difficult for community disability organizations to formulate input and consult with their consumer populations and boards. This is made more difficult by the fact that the proposed standard is long and isn’t written in plain language. To date, the Ontario Government hasn’t released a plain language, accessible explanatory note to assist individuals and community groups to formulate their feedback.
Based on the foregoing, it is recommended that:
1. This fundamentally flawed proposed standard not be enacted in its present form.
2. Because the proposed standard is so incomplete and inadequate, the Government should direct that it be re-drafted from top to bottom, to make it strong and effective.
3. The proposed standard should be revised to:
a) Identify and effectively address all barriers to access to transportation services;
b) More clearly and specifically set enforceable accessibility standards, and not merely reiterate that other legislation and regulations be obeyed;
c) Ensure that the standards that are set meet or exceed the requirements of the Ontario Human Rights Code, and fulfil the principles that the Supreme Court of Canada mandated in Council of Canadians with Disabilities v. Via Rail;
d) Ensure that the standards that are set don’t leave it to transit providers to decide how much to do, and when, if ever, to do it;
e) Set far prompter time lines for removing and preventing barriers;
f) Ensure that once the standard is adopted and complied with, Ontario will have a fully accessible public transportation system.
4. To achieve this, the Government should:
a) Increase the representation of the disability community on the Standards Development Committee to a footing of equality;
b) Provide that Standards Development Committee meetings will be open to the public;
c) Ensure that the public including the disability community can give direct input to the Standards Development Committee, including via in-person presentations, after the Standards Development Committee circulates options for the public to consider and supporting research (e.g. other standards in place in other countries);
d) Provide much-needed resources and funding to the disability representatives on the Standards Development Committee to enable them to participate on a footing of equality with the other sectors represented there;
e) Extend the time period for public input on this proposed standard, beyond the current deadline of August 31, 2007.
APPENDIX 1 – ONTARIO LEGISLATURE’S UNANIMOUS OCTOBER 29, 1998 RESOLUTION ON ACCESSIBILITY LEGISLATION
ODA RESOLUTION UNANIMOUSLY PASSED BY THE ONTARIO LEGISLATURE
OCTOBER 29, 1998:
In the opinion of this House, since persons with disabilities in Ontario face systemic barriers in access to employment, services, goods, facilities and accommodation; and since all Ontarians will benefit from the removal of these barriers, thereby enabling these persons to enjoy equal opportunity and full participation in the life of the province; and since Premier Harris promised in writing during the last election in the letter from Michael D. Harris to the Ontarians with Disabilities Act Committee dated May 24, 1995 to:
a) enact an Ontarians with Disabilities Act within its current term of office; and
b) work together with members of the Ontarians with Disabilities Act Committee, amongst others, in the development of such Legislation;
and since this House unanimously passed a resolution on May 16, 1996 calling on the Ontario Government to keep this promise,
Therefore this House resolves that the Ontarians with Disabilities Act should embody the following principles:
1. The purpose of the Ontarians with Disabilities Act should be to effectively ensure to persons with disabilities in Ontario the equal opportunity to fully and meaningfully participate in all aspects of life in Ontario based on their individual merit, by removing existing barriers confronting them and by preventing the creation of new barriers. It should seek to achieve a barrier-free Ontario for persons with disabilities within as short a time as is reasonably possible, with implementation to begin immediately upon proclamation.
2. The Ontarians with Disabilities Act’s requirements should supersede all other legislation, regulations or policies which either conflict with it, or which provide lesser protections and entitlements to persons with disabilities;
3. The Ontarians with Disabilities Act should require government entities, public premises, companies and organizations to be made fully accessible to all persons with disabilities through the removal of existing barriers and the prevention of the creation of new barriers, within strict time frames to be prescribed in the legislation or regulations;
4. The Ontarians with Disabilities Act should require the providers of goods, services and facilities to the public to ensure that their goods, services and facilities are fully usable by persons with disabilities, and that they are designed to reasonably accommodate the needs of persons with disabilities. Included among services, goods and facilities, among other things, are all aspects of education including primary, secondary and post-secondary education, as well as providers of transportation and communication facilities (to the extent that Ontario can regulate these) and public sector providers of information to the public e.g. governments. Providers of these goods, services and facilities should be required to devise and implement detailed plans to remove existing barriers within legislated timetables;
5. The Ontarians with Disabilities Act should require public and private sector employers to take proactive steps to achieve barrier-free workplaces within prescribed time limits. Among other things, employers should be required to identify existing barriers which impede persons with disabilities, and then to devise and implement plans for the removal of these barriers, and for the prevention of new barriers in the workplace;
6. The Ontarians with Disabilities Act should provide for a prompt and effective process for enforcement. It should not simply incorporate the existing procedures for filing discrimination complaints with the Ontario Human Rights Commission, as these are too slow and cumbersome, and yield inadequate remedies;
7. As part of its enforcement process, the Ontarians with Disabilities Act should provide for a process of regulation-making to define with clarity the steps required for compliance with the Ontarians with Disabilities Act. It should be open for such regulations to be made on an industry-by-industry basis, or sector-by-sector basis. This should include a requirement that input be obtained from affected groups such as persons with disabilities before such regulations are enacted. It should also provide persons with disabilities with the opportunity to apply to have regulations made in specific sectors of the economy;
8. The Ontarians with Disabilities Act should also mandate the Government of Ontario to provide education and other information resources to companies, individuals and groups who seek to comply with the requirements of the Ontarians with Disabilities Act;
9. The Ontarians with Disabilities Act should also require the Government of Ontario to take affirmative steps to promote the development and distribution in Ontario of new adaptive technologies and services for persons with disabilities;
10. The Ontarians with Disabilities Act should require the provincial and municipal governments to make it a strict condition of funding any program, or of purchasing any services, goods or facilities, that they be designed to be fully accessible to and usable by persons with disabilities. Any grant or contract which does not so provide is void and unenforceable by the grant-recipient or contractor with the government in question;
11. The Ontarians with Disabilities Act must be more than mere window dressing. It should contribute meaningfully to the improvement of the position of persons with disabilities in Ontario. It must have real force and effect.
APPENDIX 2 – AUGUST 15, 2006 LETTER FROM DAVID LEPOFSKY TO TRANSPORTATION STANDARDS DEVELOPMENT COMMITTEE
|Transportation Standards Development Committee
|Alex Cormier, Chair
|Nadia Temple, Director, Accessibility Directorate
Scot Weeres, Director, Standards Development and Compliance
Andrea Maurice, Assistant Deputy Minister, Ministry of Community and Social Services,
Madeline Meilleur, Minister Responsible for Disability Issues
James Sanders, President, Canadian National Institute for the Blind
John Rae, President, Alliance for Equality of Blind Canadians
|David Lepofsky, CM
|August 15, 2006
|Requiring Audible Announcement of all Public Transit Route Stops in Transportation Standards under the Accessibility for Ontarians with Disabilities Act
I write to address the Transportation Standards Development Committee on an important issue that I understand the Committee is considering regarding the development of a standard for transportation under the Accessibility for Ontarians with Disabilities Act. Specifically, I understand that your Committee is considering including in the forthcoming transportation accessibility standard a provision regarding announcement of all route stops on public transit providers such as municipal bus services. I also understand that this proposal is being opposed or resisted by some of the public transit providers on the Transportation Standards Development Committee, including a representative from the Toronto Transit Commission. I further understand that as an alternative, your Committee may be considering a proposal that public transit providers only be required to audibly announce main intersections or stops, and passenger-requested destinations.
I urge your Standards Development Committee to include in its first transportation accessibility standard a clear requirement that public transit providers such as municipal and inter-city bus and rail services consistently and reliably announce all route stops for the benefit of passengers who are vision impaired, dyslexic or otherwise unable to read posted signs identifying the stop. A requirement that only major route stops/intersections and passenger-requested stops be announced is entirely inadequate. It would fail to meet the goals of the Accessibility for Ontarians with Disabilities Act and the requirements of the Ontario Human Rights Code. Unless a sufficient majority of the Committee is prepared to adopt the standard I propose, I ask for an opportunity to make a presentation to your Committee in person, and that a similar opportunity be provided to other interested parties, such as persons with disabilities and disability organizations.
2. MY INTEREST IN THIS ISSUE
I am very interested in and concerned about this issue. I write this letter in my personal capacity. I am totally blind, and a user of public transit services, particularly in Toronto where I live.
I have been actively involved in advocating for mass transit audible stop announcements in Toronto. I am the individual who waged a decade-long campaign to get TTC to consistently and reliably announce all stops on its subway system. I ended up having to fight a multi-year human rights complaint against TTC on that issue, Lepofsky v. TTC #1. TTC vigorously opposed me, every step of the way. Despite my major, widely publicized victory against TTC in that case last year, the TTC has mounted similar resistance to my request that it require its bus and streetcar drivers to now announce all surface route stops. Regrettably, I have had to resort to yet another human rights complaint against TTC to secure this reasonable and obvious accommodation from TTC (Lepofsky v TTC #2). Through these activities I have become quite well-informed on this topic. I have also gotten substantial encouragement and supportive feedback from the public on this topic, including from some TTC employees.
I am very familiar with the standards development process in which your Committee is involved. For over a decade I served as co-chair and subsequently as chair of the Ontarians with Disabilities Act Committee. That broad community coalition led the successful decade-long campaign for the enactment of the Accessibility for Ontarians with Disabilities Act. As part of that process, I was centrally involved in the detailed negotiations leading to the statutory provisions under which your Standards Development Committee operates. Over 25 years ago, I was actively involved in the successful disability community campaigns to have disability rights included in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.
3. THE NEED FOR THE CONSISTENT, RELIABLE AUDIBLE ANNOUNCEMENT OF ALL ROUTE STOPS ON PUBLIC TRANSIT SERVICES
From the perspective of the Human Rights Code and the AODA’s statutory requirement that Ontario become fully accessible within the next 19 years, there is a clear, compelling and obvious need for public transit providers such as bus companies to audibly announce all route stops. To make effective use of a public transit provider’s services, it is necessary for a rider to know with confidence where he or she is on the route, and when he or she has arrived at his or her destination. To ensure this for riders who are blind or who have other similar disabilities, each route stop must be consistently and reliably announced.
In Lepofsky v. TTC #1, the Ontario Human Rights Tribunal ruled that TTC had violated the human rights of blind Toronto subway patrons for at least a decade, because it failed to consistently and reliably announce all subway stops. Implicit in this was recognition that equal access to public transit services includes a requirement that all route stops be audibly announced. Evidence from TTC adduced at that Human Rights Tribunal hearing showed that TTC was well-aware that the Human Rights Code imposed this requirement vis à vis its subway operations.
It is self-evident that the need for such audible route stop announcements is no less important on a bus route than on a subway route. It is ineffective to try to count bus stops. For example, municipal buses don’t necessarily stop at every marked roadside bus stop. Moreover, counting stops, even on the subway, has never been an effective substitute for consistent and reliable audible announcement of all subway stops, due to the risk of losing count.
The need for this accommodation is jointly supported by two key organizations concerned with the accessibility needs of blind and vision-impaired public transit patrons. Both the Canadian National Institute for the Blind (Canada’s largest rehabilitation service-provider for blind and vision-impaired Canadians) and the Alliance for Equality of Blind Canadians (a national consumer organization of blind and vision-impaired Canadians) wrote to TTC last summer, supporting my call for this accommodation on all TTC surface routes. (See text of those letters below, and my July 19, 2005 letter to TTC which they address.)
4. INSUFFICIENT TO HAVE A POLICY TO ANNOUNCE ONLY MAJOR INTERSECTIONS AND PASSENGER-REQUESTED STOPS
I understand that some members of your Committee may be proposing that bus services only be required to announce major stops/intersections and passenger-requested stops. This is entirely insufficient for meeting this important accessibility need, for reasons including the following:
a) If a transit patron asks a bus driver to announce his or her destination stop, the driver can thereafter forget to call out that requested stop. I and other blind and vision impaired transit riders have experienced this. The risk of a driver forgetting to call a requested stop can be increased, for example, if the destination stop is far from the requesting patron’s embarkation point and/or if the bus has many passengers getting on and off. If, on the other hand, the transit driver is required to call out all stops, then he or she doesn’t have to try to memorize and remember on an ongoing basis which stops were specifically requested by a transit patron. If all route stops must be announced, this will become routine for drivers.
b) If the driver forgets to announce the requested stop, this can require the transit patron to ride the bus to the end of the line and back to their stop again, and then to find their way across the street to the bus stop where they intended to disembark. To avoid this risk, when I am on the bus (without an accompanying sighted friend who can visually recognize our destination), I have had to take steps to actively ensure that the driver doesn’t forget to announce my stop. This can include, for example, my remaining throughout the ride in the front of the bus, as close to the driver as possible, (preferably in his or her line of sight when the driver isn’t driving), and periodically asking the driver what street we are at. I must remain vigilant throughout the ride. I can’t easily work, read an audio book, or just relax and enjoy the ride like other passengers. CNIB has had to provide to its clients specialized training in such strategies, because of the well-known risk of bus drivers forgetting to announce a requested destination.
c) If a public transit patron boards the bus through the back doors (e.g. in Toronto at a subway stop), then he or she must make their way to the driver to ask for their destination stop to be called out. If the vehicle is crowded and/or if the vehicle starts moving before that public transit patron reaches the driver, this can be more difficult.
d) I know the foregoing as a blind person who has good orientation and mobility skills. It is even more difficult to deal with these issues for a person with poorer orientation and mobility skills, or for a person with a newly acquired vision impairment, and/or limited balance.
Not all vision-impaired persons have had the benefit of extensive orientation and mobility training. Many people experience vision loss in their senior years. For them, dealing with missing their destination stop would be especially challenging. This would be even more so if, in addition to a vision loss, they have a cognitive impairment.
5. OPTION OF IMPLEMENTING AN AUTOMATED SURFACE ROUTE ANNOUNCEMENT SYSTEM
TTC has announced that it is testing for possible future implementation an automated surface route announcement system, to be supported by Global Positioning Satellite technology. This constitutes a tacit recognition by TTC of the need for this accessibility need to be met.
In my view, it may not be necessary for a public transit provider to implement such technology, with the attending costs. I have never insisted on the implementation of that technology. Instead, hopefully it ought to be sufficient for the public transit provider to get its transit operators to consistently and reliably announce all surface route stops. Every bus driver is required to know their route, including the location of all stops. Every bus driver has a mouth.
Public transit providers are free if they wish to implement an automated audible route stop announcement system. However, prior to implementing such a system, or in lieu of implementing such a system, each public transit provider should be required to have its operators clearly, consistently and reliably make these announcements. Transit patrons with disabilities like mine should not be required to wait to have this accessibility need met until such technology is brought on line. It should not be denied to transit patrons with such disabilities in the case of public transit providers who don’t choose to implement such technology.
6. BROAD BENEFIT OF THIS ACCOMMODATION
The consistent, reliable announcement of all transit route stops is not just beneficial for transit riders who are blind, vision-impaired or dyslexic. It provides benefits to a broad spectrum of transit riders. This includes tourists who are new to a community, sighted riders who are traveling an unfamiliar route, sighted riders who are riding a bus when it is hard to see out the window and who can’t visually monitor for their destination stop (e.g. when there is a large crowd on the bus, or at night, or during poor weather conditions), and riders who doze off or who read during the ride.
I am widely recognized in Toronto for having had to fight for a decade to get TTC to consistently and reliably announce all subway stops. I have received a substantial amount of unsolicited, reinforcing feedback from the public, including many people without disabilities. They repeatedly remark on how these announcements are helpful to all riders, not just those with disabilities akin to mine.
7. NO UNDUE HARDSHIP TO PUBLIC TRANSIT PROVIDERS
Public transit providers cannot justify a failure to provide this obvious accommodation unless they can prove that provision of this accommodation is impossible without undue hardship. The duty to accommodate transit patrons with disabilities requires public transit providers to make serious and substantial efforts. The concept of “undue hardship” dictates that transit providers are required to shoulder hardships when fulfilling the duty to accommodate, so long as that hardship is not proven to be “undue.”
It would not cause public transit providers any hardship, much less undue hardship, to consistently and reliably announce all public transit route stops. Announcing a stop takes mere seconds. It requires no new staff, nor longer working hours for existing staff.
The surface route stops on any bus or streetcar line are well-defined and limited in number. A public transit driver can easily become accustomed to announcing all stops on his or her route. A list of stop names can be provided, just as is done for subway operators. For a surface route operator, these announcements will become routine. In contrast, it is harder for a bus or streetcar driver to try to reliably hold in his or her head the names of individually requested stops. It is hardly surprising that a driver can forget to announce a single stop that a passenger may have requested 10 or 20 minutes earlier, if the driver isn’t required to routinely announce all route stops. The fact that bus and streetcar drivers have to collect fares and issue transfers doesn’t make it impossible for them at some time between stops or on arrival at a stop to announce the stop.
TTC is now substantially improving the consistency and reliability of its subway stop announcements. It was able to dramatically improve these announcements within a short period of weeks, after it was ordered to take action on this by the Human Rights Tribunal. Its own audit data shows that it has easily exceeded in short order the rates of announcements that it had claimed under oath was the maximum its operators could achieve during last year’s Human Rights Tribunal hearing. This proves that TTC was able to have consistently and reliably provided these announcements all along — it just wasn’t willing to do so before it was ordered to do so by the Human Rights Tribunal.
It is my understanding that TTC used to require its surface route operators to announce all surface route stops. TTC hasn’t answered my request for information on why that policy changed. I have also been advised by TTC patrons that they have been on some surface routes where individual operators have now opted to announce all route stops. I have had occasion to encounter this myself, though this regrettably hasn’t been the majority practice.
Public transit providers cannot justify a refusal to provide this accommodation on the grounds of some real or speculative fear that their drivers may resist this requirement. The duty to accommodate is mandatory under the Human Rights Code, except where it is impossible to comply with it without undue hardship. It is not limited to the personal preferences of an organization’s employees.
8. TIME LINES FOR IMPLEMENTING THIS PRACTICE
Public transit providers do not need a significant amount of time to implement this practice by directing their operators to announce all route stops. Such a practice should be able to get underway in a period of a few weeks, if not sooner. This is so because:
a) No equipment need be purchased or installed.
b) As noted above, in Toronto some bus and streetcar drivers now announce all stops. All Toronto subway operators are required to announce all subway stops and have received training to this end.
c) Any training that might be provided to transit drivers will be short and simple. TTC has developed enhanced training materials for subway operators pursuant to last year’s Human Rights Tribunal order, under the supervision of an official monitor appointed by the Tribunal. This includes a video/DVD that contains an interview with myself and two other blind TTC patrons, explaining the importance of announcing subway stops. I hope and trust TTC would be willing to share that DVD. I too would be happy to share a copy of it.
Other transit providers could easily develop a similar training tool that could be used across Ontario in short order. It only took a couple of hours to shoot the TTC subways training DVD. I am certain blind or vision-impaired transit patrons can easily be found who would be happy to take part in such a video. I myself am pleased to offer to volunteer for this if that would assist.
9. THE NEED TO INCLUDE THIS IN THE FIRST TRANSPORTATION STANDARD
It is important that this requirement be included in the first transportation accessibility standard. It should not be put off to a subsequent standard.
It may be years before subsequent standards are developed. People with disabilities had to wait for over a decade just to get the AODA passed.
Nothing needs to be studied or learned to enable this simple and obvious accommodation to be addressed now. Public transit providers have had since the enactment of the Ontarians with Disabilities Act 2001 some five years ago to proactively address this accessibility need in their annual accessibility plans. Several U.S. public transit providers provide this kind of accommodation on subway or surface routes. This is not rocket science.
10. CREDIBILITY OF THE STANDARDS DEVELOPMENT PROCESS
For an additional reason, it is especially important that the first accessibility standard proposed by your Standards Development Committee require public transit providers to announce all surface route stops. Yours is among the first such committees established under the AODA. It is important that this standards development process live up to the high expectations that the community has for it. It must win the public’s confidence as a credible process. Over one year has already passed since the Legislature required that Ontario become fully accessible by 2025. Prompt action on this goal is needed, especially in the case of barriers that can be quickly and easily removed.
That TTC resisted this in the context of its subway services, and continues to resist it pending possible implementation of an automated system on its surface routes has brought TTC into significant public criticism. On July 4, 2005, the Toronto Star ran an editorial (text set out below) roundly criticizing TTC for its decade of foot-dragging on the subway announcement issue. It condemned TTC’s record on this as “shameful” and a “sorry record.”
I have also received an extraordinary amount of feedback from the public vis à vis both the subway and surface route announcement system, to the same effect. Many are simply dumbfounded that TTC fought and continues to fight so hard against properly meeting this accessibility need.
It is especially important that this accommodation be required in the first transportation standard in light of last year’s powerful Human Rights Tribunal ruling in Lepofsky v. TTC #1. A core reason for the AODA’s standards development provisions is to eliminate where possible the need to re-litigate barriers one at a time. The Human Rights Tribunal has found in no uncertain terms that transit riders with disabilities like mine need consistent reliable announcement of all transit route stops on subways. TTC hasn’t appealed that decision, and has instead accepted it and taken steps to comply with it.
11. NEED FOR YOUR COMMITTEE TO RECEIVE INPUT FROM TRANSIT RIDERS WITH DISABILITIES
If a sufficient majority of your Standards Development Committee cannot now agree to recommend that this be included in your proposed transportation standard, I request that your Committee invite and receive input in person, from persons with disabilities affected by this issue. I would welcome an opportunity to make a presentation to your Committee. I would expect that others would similarly welcome such an opportunity. It is central to the spirit of the AODA that Standards Development Committees take into account not only the views of those few who are appointed to their Committee, but also the needs of those for whom this legislation was enacted.
I know that TTC substantially benefited when it presented a video (in which I and other blind persons appeared) to their subway operators on the need for consistent, reliable announcement of subway stops. I believe that this contributed in an important way to the prompt improvement of their subway stop announcements. Your Committee, if not now agreeable to including the requested requirement in your proposed standard, would similarly benefit from an opportunity to hear from those who need this requirement.
I understand that your committee now includes representation from TTC and so has had the opportunity to hear firsthand from their side of this issue. It ought to provide a similar chance to hear directly from the other side.
12. IMPORTANT THAT DELIBERATIONS BE WELL-DOCUMENTED IN YOUR COMMITTEE’S MINUTES
It will be very important that any of your Committee’s deliberations on this issue be well-documented in the minutes. Under the AODA, the minutes are an important means for the public to understand what issues the Committee considered, what views were expressed, how the Committee came to any recommendations, and what diverging views may have been expressed. This provides much-needed transparency and accountability in the process.
I would be pleased to provide your Committee with any further assistance as it may require and look forward to hearing from you with respect to the matters raised in this correspondence. I ask that you circulate this letter to all members of your Standards Development Committee.
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