Read or Watch What the AODA Alliance Said to the Senate’s Standing Committee on Social Affairs on April 11, 2019 About the Need to Strengthen the Weak Bill C-81, the Proposed Accessible Canada Act

Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

 

Read or Watch What the AODA Alliance Said to the Senate’s Standing Committee on Social Affairs on April 11, 2019 About the Need to Strengthen the Weak Bill C-81, the Proposed Accessible Canada Act

 

April 15, 2019

 

          SUMMARY

 

Here’s a chance to read or watch exactly what AODA Alliance Chair David Lepofsky said in our April 11, 2019 evidence presented to the Senate’s Standing Committee on Social Affairs on the need to strengthen the weak Bill C-81, the proposed Accessible Canada Act. See the text below (about 14 pages).

 

In this text we do not include what two other organizations presented at the same time. We will later post on our website the transcript for the entire set of hearings that the Senate held on Bill C-81. That will include the presentations of all the organizations that presented on Bill C-81, including the others that presented at the same time as the AODA Alliance.

 

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

We encourage you to read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page  to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

 

It’s not too late for you to help our campaign. Send the Senate Standing Committee a short email to express your support for the amendments to Bill C-81 that the AODA Alliance has requested. We are so appreciative of the individuals and organizations that have already done so. Email the Senate at:

soci@sen.parl.gc.ca

 

The Senate Standing Committee will meet on May 2, 2019 to decide what amendments it will make to Bill C-81. The minister leading this bill, Carla Qualtrough, told the Standing Committee on April 3, 2019 that she is open to amendments and wants Bill C-81 to be the best bill it can be. Senator Jim Munson, who is sponsoring this bill in the Senate, told the Standing Committee on April 10, 2019 in clear and categorical terms that there will be amendments. We are campaigning to ensure that these amendments are strong and effective.

 

During our presentation to the Senate Standing Committee, AODA Alliance Chair David Lepofsky encouraged the Committee to watch the AODA Alliance’s online video about serious accessibility problems in new Toronto area subway stations. It has already been seen thousands of times and has secured good media coverage. Check it out by visiting https://youtu.be/za1UptZq82o

 

To help our campaign, on April 5, 2019, the AODA Alliance sent a letter to the leaders of all the federal political parties. We asked them to support amendments to Bill C-81 that the Senate makes to strengthen it. We want these passed in the House of Commons before the federal election this fall. We also asked the party leaders to pledge that if Bill C-81 is not properly strengthened, or is not passed before the election, that they’ll bring it back before Parliament after the federal election to be strengthened and passed into law.

 

Stay tuned. We will keep you posted on new developments. We always welcome your feedback on this presentation and on anything else we are up to! Email us at aodafeedback@gmail.com

 

          MORE DETAILS

 

Text of What AODA Alliance Chair David Lepofsky Presented to the Senate’s Standing Committee on Social Affairs on April 11, 2019 Regarding Bill C-81

 

(Note: The evidence of other presenters and their responses to other Senators has been omitted here, but will be available in the full transcript for these hearings which we will post on our website when it becomes available. Also, the full transcript that we will later post will translate any French passages, set out below, into English.)

 

THE STANDING SENATE COMMITTEE ON SOCIAL AFFAIRS, SCIENCE AND TECHNOLOGY

EVIDENCE

OTTAWA, Thursday, April 11, 2019

 

The Standing Senate Committee on Social Affairs, Science and Technology met this day at 10:30 a.m. to study Bill C-81, An Act to ensure a barrier-free Canada.

 

Senator Chantal Petitclerc (Chair) in the chair. We will continue with our second panel.

 

David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance:  Good morning, senators. Bill C-81 is strong on good intentions, but palpably weak on implementation. It’s called An Act to ensure a barrier-free Canada, but it does not require a single barrier anywhere in Canada, ever, to be removed. People with disabilities need and deserve better than that.

Bill C-81, at its core and its heart, is driven by the commendable notion that the federal government will enact enforceable regulations called accessibility standards that will tell federally regulated organizations what they have got to do. But it doesn’t require any federal accessibility standards to ever be enacted as enforceable regulations. People with disabilities need and deserve better.

Let me be clear: The regulations that the bill requires to be enacted within two years are on procedural things, not substantive accessibility standards. The federal government could meet that deadline merely by prescribing the forms that people with disabilities shall use if they want to give feedback to Air Canada or Bell Canada. People with disabilities need and deserve better than that.

This legislation splinters its enforcement and the setting of enforceable regulations among multiple federal agencies. From the minister’s defence of her practice, she conceded that if she was starting from scratch, that isn’t necessarily how she would do it. But her explanation of why she did it gives triumphant ascendancy to federal bureaucracy over disability equality.

Now the question is: What do we do about it? The question is not: Are you going to pass this bill, senators? You’re going to pass this bill, so let’s take that off the table. We all know it. We all understand it. That’s the starting point.

The question before this committee is: Are you going to amend it first? What we say is that you must. The reality is this bill needs a lot of amendments not to make it perfect — that’s a red herring — but to get this bill from the status of weak to one that is closer to what people with disabilities need and deserve.

In the house, there were a couple hundred pages of amendments. Hard work over the past weekend has led us to distill it down to a series of amendments before you that we proposed — and you have received e-mails from some witnesses who support them — which fill a grand total of 3.5 pages and cover a few core themes. I am only going to address a couple of them, but let me be clear, there is time to do this. You’re going to vote in committee on May 2. I understand you will do third reading by May 16. We are working and approaching the federal parties to urge that, once amendments are passed — if they are — that the house consider them quickly, so the issue of swift passage of this bill, whether amended or not, is now, procedurally, not a bar to your being able to do what we need you to do.

So what should you do?

Well, let me just focus on a couple, but I invite questions on all of what we proposed. Let’s just turn to the headlines. Yesterday, the Government of Ontario announced a multi-billion-dollar plan for new subways in Toronto, but only if other levels of government, including the federal government, add billions to the allocation the province is committing to. That’s not unusual. But we need the federal government to be required, before it spends our money on a project like that, to say a ground rule of getting our federal money is you have to meet certain federal accessibility requirements.

Now, the minister came before you a week ago and said, “We can’t do that. We don’t have constitutional authority to do that.” Respectfully, the minister is wrong. It’s called the federal spending power. Have you heard of the Canada Health Act? The Canada Health Act says that if provinces get federal money for provincial health programs, they must meet federal accessibility requirements. Not disability accessibility, but their financial accessibility.

If what the minister told you is right, then the Canada Health Act has been unconstitutional for over three decades since it was enacted. I would be staggered to believe that is the position of the current federal government. If they can do it there, they can at least attach strings when they give money, if they agree to, to local projects and not just federal buildings.

You might look at me and say, “Oh, come on, in 2019 we wouldn’t use public money to build inaccessible public transit.” Senators, go to YouTube, search on AODA Alliance and public transit. You will see a video we released during last spring’s provincial election that has thousands of views and media coverage where we document serious accessibility problems in brand new subway stations in Toronto that just opened within the past year-and-a-half.

This isn’t about perfect, folks. This is about basic equality, so we ask for an amendment that would at least require federal ministers or their ministries, if they are agreeing to give our federal money to a province, a municipality, a college or university for a project like that, to put, as a term of the agreement, an enforceable term, just like the Canada Health Act, that accessibility requirements are required. Why should the federal government ever allow federal money to be used to create new barriers or perpetuate existing ones?

Let me give you one other core amendment. My colleague from the CNIB said the minister last week had agreed to amend the bill to ensure that it does not curtail in any way the human rights code and the duty to accommodate. I hope the minister does that, but I don’t hear her as having said that. I hear her as having said that she, as a former human rights lawyer, has ensured that this bill doesn’t interfere with the duty to accommodate. But senators, it threatens to.

Section 172 of the bill perpetuates a provision in the Canada transportation legislation that would let the CTA enact a regulation, and once it does so, to set standards for accessible transit, no matter how low that standard may be and no matter how deficient from a human rights standard it may be. As a traveller with a disability or others in my coalition or anyone in Canada, we are barred from asking any more under the legislation’s guarantee against undue barriers.

With that provision in the act, our position is: Please don’t ever enact any standards under the CTA because they threaten to take away our rights. A simple amendment would repeal that provision from the act.

Let me conclude by inviting questions on the other areas that we’ve raised. I’m telling you that we are not just about saying what’s wrong. We are about proposing constructive suggestions for what’s right, and the amendments we’ve placed before you are designed for a Senate that has a limited time frame to act, a commitment to respect policy decisions made in the House of Commons and an eagerness to ensure that these amendments can be considered by the house quickly and easily, with a realistic chance of them being taken seriously. They are designed to be tailored both to our needs and to what the minister said to you last week. So we ask you to take them all seriously. They are all substantive, and they all bear on the needs of all people with disabilities.

I conclude by saying this: I’m speaking for my coalition, but as an individual, I first came before Parliament 39 years ago as a much younger individual — my wife said I had hair back then when she saw the video — to appear before the standing committee considering the Charter of Rights. At that time, the Charter proposed to guarantee equality but not to people with disabilities. I and a number of other folks argued and succeeded in getting the Charter amended to include that right.

I leave you with two thoughts. First, the amendments we seek are aimed at making that right become a reality, not just as a matter of good intention but as effective implementation.

The Chair: Thank you so much, Mr. Lepofsky. We have a list of senators who are eager to ask questions.

Senator Seidman: Thank you all very much for your presentations.

Mr. Lepofsky, I will take you up on your challenge. I’m searching for commonalities. I appreciate the premise you made that we are looking for clear, crisp, focused and meaningful amendments that have a hope of being passed on the other side because that’s exactly what’s going to have to happen in this process.

I would like to ask you specifically, you submitted three areas that need strengthening with 11 amendments. I would like to ask you very specifically about your amendment about timelines. It is true that HUMA heard testimony around timelines, but they decided not to amend the bill to include a deadline. You have proposed one. In fact, I think you proposed January 1, 2040.

I would like to hear from you why you are pushing that we have a timeline and why it would be that particular one.

Mr. Lepofsky: There are two timelines that we set. One is that the government should be required — not just permitted but required — to enact accessibility standards regulations within five years and also the timeline for ultimate accessibility in Canada by 2040. Yes, these were pitched to HUMA. The opposition parties, left and right, united in support of that agenda. The government did not agree.

Our hope is that, on your sober second thought, you find wisdom drawing on the experiences that bring you to this Senate, that a return of this issue to the House in June, months before an election, may lead all members of the house to see the wisdom in adopting them.

To be clear, I have an appointment to meet the minister this afternoon to bring that message. We would like to work with the Senate and the house to see if we can broker a package that covers everything.

With respect to the 2040 deadline, I had the privilege of leading the coalition that fought for a decade to win the enactment of Ontario’s accessibility law, and I now lead the coalition that has fought for the past 14 years to get it effectively implemented. The minister doubted whether a deadline in the legislation would help. Our front-line grassroots experience of 14 years demonstrates unequivocally that it does. The minister feared that that might lead to a disincentive. People think, “Oh, you have to wait until 2039 to start.” Not only doesn’t it, but we’ve proposed wording that you can include that will utterly accommodate the minister’s worry by making that clear.

What we’ve learned is if you say, “It will become accessible sometime in the next millennium, whatever,” action won’t happen. If, on the other hand, the 2040 deadline is set, senator, then Air Canada knows that deadline overarches their plans and their accessibility requirements. CASDO knows that the standards they recommend have to meet that requirement, and cabinet and all other regulation-making bodies will know that that is the measure. Without that tool, our efforts in Ontario — which have been a hard slog, believe me — would be considerably harder.

Senator Seidman: Thank you.

Senator Munson: Thank you for being here. I think we have to acknowledge the work of former Senator David Smith, when, David, you talked about the Charter. He was the person who led the charge to make sure that dealing with disabilities was in the Charter. It had been left out, and I want to acknowledge that.

I have two quick questions, one for Mr. Belanger and one for Mr. Lepofsky.

Mr. Belanger, you support the bill, but it seems Indigenous people have been left off the table, and I can’t understand why. I know there have been discussions about nation to nation, but there are more than 600. So you support it, but you have been left out. If you could address that.

Mr. Lepofsky, you have not been much of a fan of the CRTC, CTA and others. You have an amendment here, so could you explain that amendment to us and how that would work? There is supposed to be no wrong door, but there seem to be a lot of doors, so if you could talk about your amendment, to get that on the record.

Mr. Belanger: (not included here)

 

 

Senator Munson: Mr. Lepofsky?

Mr. Lepofsky: Thank you. Sometimes it helps when you have someone who is blind and what you are facing is a bit of a smoke screen. The “no wrong door stuff” that you’ve been hearing about, respectfully, I think has been raised by those presenting it as a smokescreen, or as least it is serving that way.

What do I mean? Our strong preference from day one would be one-stop shopping — one agency, one place to go, one body making the regulations. It is quicker, more efficient, fairer and certainly easier for us.

The current regime only serves the interests of organizations that want to use the splintering to make it harder for us. But we know that in the amendments that you are going to pass in the next two weeks that a total rewrite of the major chunks of the bill is not feasible.

So what do we do? What could fix it? “No wrong door” talks about where you get in. It is not the most important thing. What happens when you get there? Right now, we have four agencies with four different procedures, with four different policies and practices, and there will be four different sets of forms and four different potential sets of deadlines. It is a guarantee of chaos for us, but it will be great for the airlines because they know them, or the broadcasters because they’ve been navigating them and they are lawyered up to be able to do that.

So what’s our solution? A simple amendment that says that the major bodies are required to develop, within a timeline that we prescribe, a series of processes to harmonize and have, essentially, the same procedure, or as close as possible, behind the door when you get there.

We heard yesterday from the leads of those agencies that they have started working together on their processes, but there are no commitments whatsoever to ensure that it is the same process. The bill now, in sections 94 to 110, prescribes a series of expedited processes at the accessibility commissioner. We say, great, if they work expeditiously, but neither the CTA nor the CRTC have been experienced by people with disabilities as expeditious — much the reverse.

My last point is you heard yesterday from these agencies that are generally serious in saying all they’ve done. That’s understandable from them. But can I just take you to the front lines for a minute? I will just tell you my own personal experience. I could aggregate it across all the feedback we get.

CTA’s track record historically is pretty lousy. They finally got religion three years ago and are starting to work on regulations. They’ve had the power to do this for over 30 years. Where have they been? As a blind person who travels internationally, I can tell you I dread entering Canadian airspace, not because we never get service, but it is way more unreliable here than I have seen otherwise.

The CRTC. In the U.S., it has been federal law since, I believe, 2016 that cable providers must provide an accessible PVR. In Canada, where is the CRTC? It is not required here. It should be, but it is not.

So please take the track records and understand that our jadedness is well justified. But our solution is what you can do in a short period is at least require the other agencies, if we are stuck with them, to come up with not just statements to you yesterday about how they want to be expeditious, but actually require them to come up with processes that will be expeditious. That’s what our amendment proposes….

(Passage omitted)

 

 

Senator M. Deacon: Thank you for that.

Mr. Lepofsky, I will come back to Senator Seidman’s question, and that is the whole concept of the balance of getting this through — I can’t help but bring this up just one more time — in an efficient and expedient and respectful way, and balancing what are significant concerns and amendments that, in many cases, are kind of related. Now that we have this, how do we make sure the stuff gets done?

Mr. Lepofsky: Two things. First, we are used to battling uphill. Doing disability rights advocacy is like swimming up Niagara Falls, but that doesn’t deter us. We keep doing it. When the people are more jittery and “We better just take what we can get” and all that stuff, I get that. But we’ve never taken that view. We’ve stared down the risks.

If we took that view, we would not have gotten a disability amendment in 1982. We probably would have settled for a weak accessibility law passed in Ontario in 2001 rather than standing our ground and getting a stronger one in 2005. And in this case, we have all three parties that voted for this law in the house, though the opposition said it is too weak. We wrote to all the party leaders and said : We want to take this risk off the table. Will you promise, if this bill doesn’t come through, you will bring it back in the fall?

So we are putting even more heat on them. We are saying: We want to come back with amendments from the Senate, if the Senate agrees, and decide on this bill in time to get it properly considered. Do whatever you have to do, pass it with the amendments or not. That could be dealt with before the house rises. And they’ve got the shared pressure of all the groups you’ve heard from that are jointly saying: Please get this thing through.

So the pressure will be on them. But we also have the good fortune that we have opposition parties — we are non-partisan, and we are supporting amendments in the house. We are hoping — and I will be seeing the minister this afternoon — that they will see the wisdom of strengthening this.

The final thing I will say, senator, is it is a legitimate concern, but I think it is a concern that has been answered. Minister Qualtrough answered your concern last week. Senator Munson asked her: Are you open to amendments? She could have said: Look, it is too tight. We are too busy. We are not going to be able to get it through; please just approve it.

That’s not what she said. She knew as much as anyone else in this room about the legislative timelines in the house. She probably knows more because she is part of the government. She said: No they are open to amendments, and we want this to be the best bill it possibly can be.

The fact of the matter is, with our short three pages of amendments covering a few core issues that cut across what people said at HUMA and the issues they raised here, that these will help move in the direction that she said she is open to. So I suggest you take her up and hold her to what she said.

(French follows – Senator Mégie – Ma question s’adresse à Monsieur Lepofsky.)

(après anglais — M. Belanger: … but that’s what I believe.)

La sénatrice Mégie: Ma question s’adresse à Monsieur Lepofsky. J’ai cru comprendre que vous avez collaboré à l’élaboration de la Loi sur l’accessibilité pour les personnes handicapées de l’Ontario. Ai-je bien compris?

(anglais suit — M. Lepofsky: Yes. Here’s the quick CV…)

(Following French – Senator Mégie – . . .ai-je bien compris?)

Mr. Lepofsky: Yes, here’s the quick CV — in 1980 .

(French follows – Senator Mégie – Je voulais juste ajouter ma. . .)

(après anglais — M. Lepofsky: … in 1980 —)

La sénatrice Mégie: Je voulais juste ajouter ma réelle question.

Avaient-ils un échéancier? S’ils en avaient un, est-ce que vous observez un mouvement pour la mise en œuvre de cet échéancier?

(anglais suit — M. Lepofsky: There was a movement to get the legislation…)

(Following French – Senator Mégie – . . .de cet échéancier?)

Mr. Lepofsky: There was a movement to get the legislation in place and I had the privilege of leading that movement. It was passed unanimously in 2005. The idea of the deadline of 2025 came from the government, not from us. The minister who brought it in came to the house committee here and said, “You should do it, too,” and we agreed with her. It was a great idea and we jumped on it and said it was great. It may not be as quick as we’d like, but it got action going. Are they on schedule now? No.

Senator, your colleagues were asking questions about the five-year review. We’ve had three of these reviews in Ontario. Their core job is to say, “Are we on schedule?” And all three reviews demonstrated — the most recent one in the most blistering terms — no, we’re not and we need strong action.

Now, if we didn’t have that deadline, their review could be informative but it certainly wouldn’t have the message that it does that we are far behind schedule. This came up in question period as recently as yesterday in the Ontario legislature. It is a critical tool.

Let me give you one more example because you are asking, “Will this help?” The Toronto Transit Commission runs a subway and has a whole bunch of subway stations. Approximately half of them have no elevator. But to its credit, the TTC has a plan to make them all accessible by 2025 because they’ve read the Ontario legislation.

Actually, the Ontario government has not passed a regulation addressing subway stations, but the mere presence of that date in the legislation itself has lead this major subway to adopt that plan.

Let me tell you one more thing. They tried to back down from that plan a few years ago and push it back, and we went to the media and said: “Not fair; the act says 2025.” And that media pressure led the TTC to back down and stick to 2025.

If the minister’s approach to this legislation had prevailed in Ontario, we would be further behind in getting those subway stations accessible.

(French follows – Senator Mégie – Merci.)

(après anglais — M. Lepofsky: … those subway stations accessible.)

La sénatrice Mégie: Merci.

Senator Dasko: I will focus specifically on your meeting with the minister this afternoon. In the interests of being efficient and especially effective, in your meeting with the minister could you focus her mind on what she would be willing to do, and could you get back to us with any insights or promises, pledges, intelligence, anything you can? That will help us move forward, given the time frame that’s left, given the suggestions you have for us, which in my mind seem serious and extensive. But maybe it is all easy, but I’m a new senator.

If you could learn from the minister what she would be willing to do — and I’m not saying that will determine what we do — that will help us very much in what we do. Then we will understand what might be doable and what all of us, in the end, might hope to expect and get from the process. Can I ask you that question?

Mr. Lepofsky: As a deputant who is notorious for long, wordy answers, my answer is yes.

Senator Dasko: We look forward to getting back to you. And I know Senator Omidvar has a question.

Senator Omidvar: Thank you for being here. And Mr. Lepofsky, for the correspondence that you have been in with not just me but everyone. And I want to probe your assessment the capacity, of the CRTC and the CTA on disability accessibility. They were here yesterday. I quoted to them a section of your letter, a rather blistering assessment of their lack of progress. They, in turn, responded by talking about the great pride they have in the progress they have made. And I will quote from a brief submitted to this committee from the CRTC. They talk about the history of their progress: In the mid 1980s, they —mandated TTY relay services. In 2009, it was expanded to include the provision of IP relay services, and five years later, the provision of video relay services. A 911 service is currently mandated. In 2009, the CRTC began to require broadcasters to provide described video services four hours per week. Would you still use the word “lousy” to describe their progress?

Mr. Lepofsky: Only in public. In private, they may be slightly more colourful.

Senator Omidvar: Tell us what you can.

Mr. Lepofsky: I say this not just to be glib, but we are not saying that they did nothing. Full disclosure: Scott Streiner, the head of the CTA, is a good guy with a strong record in human rights. If you could pass an amendment to make him immortal, we would vote for it, okay?

Senator Omidvar: Not in our power.

Mr. Lepofsky: I don’t know if you have the authority. That may be provincial.

I say two things in terms of these agencies. The first is that they do not have core expertise. They are not there; they are experts in broadcasting and in transit, not in accessibility. That’s what the accessibility commissioner will be.

Look at the track record of the CTA — three decades, their own draft regulation out for comment now acknowledges that they have not done enough. Why couldn’t they have done some of this years ago? We didn’t just invent people with disabilities using airplanes or trains. This is not new. It is not rocket science.

The final thing I would say is what the amendment focuses on. They have labyrinthian procedures that are designed for major regulatory decision-making. I get that. But it is not suited to us. That’s why we give credit to the government in its design of sections 94 to 110 to come up with something even more streamlined than the sometimes more labyrinthian process of the Human Rights Commission.

But we need those other agencies to talk about not just no wrong door, but equally fast, comparable procedures, once you get behind that door. And I didn’t hear them say they were going to do that, or didn’t hear them saying they were going to commit to doing that. That’s why we need this amendment.

Senator Omidvar: Fine. Thank you.