AODA Alliance
Accessibility for Ontarians with Disabilities Act Alliance
www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance
Brief to the House of Commons Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities on 5 Year Review of the Accessible Canada Act
September 29, 2024
1. Overview
We commend the Federal Government for having committed in the 2015 election to enact national disability accessibility legislation. The Accessible Canada Act (ACA) that resulted from that pledge is strong on good intentions, but extremely weak on implementation and enforcement. It must be substantially strengthened and simplified if it is to lead Canada to become accessible to people with disabilities by 2040, the ACA’s deadline.
Progress towards an accessible Canada has been agonizingly slow. One quarter of the 21 years has passed that Parliament allowed to reach an accessible Canada. Yet Canada is nowhere near 25% of the way towards reaching that goal.
The ACA has failed to require real progress on removing and preventing disability barriers. We do not believe the Federal Government could produce an impressive list of major disability barriers that the ACA caused to be removed over the past five years. Some federally-regulated organizations have no doubt taken some action to remove some disability barriers, but not because of any ACA requirements.
The ACA is far too weak. It does not require a single disability barrier to ever be removed or prevented. It gives people with disabilities no substantive rights, but it gives the Federal Government and federally-regulated organizations many loopholes.
It requires federally-regulated organizations to make accessibility plans, but it does not require those plans to be strong and effective. It does not require those plans to be effectively implemented.
The long, complicated and convoluted ACA is incredibly hard to decipher, even for experts. For non-experts, it is impenetrable. Its implementation and enforcement are excessively bureaucratized and wastefully splintered among three federal agencies, the Canadian Human Rights Commission, the CRTC and the CTA. Each has a poor record on effectively enforcing accessibility for people with disabilities. The ACA’s fragmented enforcement is confusing, bureaucratic and, ultimately, ineffective.
The Federal Government’s implementation of the ACA is far too slow. In five years, it has not passed a single accessibility standard regulation. It has only passed a regulation on procedural matters.
Accessible Standards Canada has developed drafts of some voluntary standards, for which we are appreciative. However, voluntary, unenforceable measures are thin gruel compared to mandatory enforceable regulations. Who would obey the speed limit if it is voluntary?
Fully five years after the ACA went into effect and seven years after the Government introduced it into Parliament, the Government has belatedly release a vague draft roadmap on how to reach an accessible Canada by 2040. The Government should have produced it five years ago.
The Accessible Canada Act has turned out to be much like the Canada Disability Benefit Act. The Federal Government made wonderful and inspiring promises on what each law would achieve for people with disabilities. Both laws gave the Federal Government lots of powers. Neither law imposed on the Government the needed duties and deadlines. People with disabilities were asked to trust the Federal Government. The result has been a paltry $200 per month Canada Disability Benefit that won’t lift most people with disabilities out of poverty, and airlines still destroying or losing passengers’ wheelchairs with impunity. Advisory panels, consultation after consultation, federal conferences and summits, and disability advisory panels are no substitute for strong, enforceable and mandatory accessibility standards and a swift and user-friendly process to enforce them.
In 2018 and 2019, the grassroots non-partisan AODA Alliance was one of the disability organizations that predicted these results when those bills were making their way through Parliament. We proposed constructive amendments to prevent this. Most were rejected. In this brief, we list some of the key amendments to the ACA that we need Parliament to pass. For background on our past efforts, visit the AODA Alliance website’s Canada page.
2. The Questions This Legislative Review Should Ask Itself
We recommend that:
#1. This Standing Committee’s review and report should answer these questions:
- a) What specific major disability barriers has the ACA required to be removed since July 2019 within the reach of Parliament’s authority?
- b) At the current rate of progress since July 2019, is Canada now on schedule to become accessible to people with disabilities by 2040?
- c) If not, what changes to the Accessible Canada Act or to its implementation should be made to ensure that Canada will meet the 2040 deadline?
3. At Least One Enforceable Accessibility Standard Regulation Should Be Enacted Within 1 Year from Now and Four More Within 2 Years
The ACA’s centerpiece is the enactment and enforcement of accessibility standard regulations. These regulations will specify what an organization must do, and by when, to become accessible. The Act lets the Federal Cabinet, the Canadian Radio, Television and Telecommunication Commission (CRTC) and the Canadian Transportation Agency (CTA) enact these regulations. However, it does not require them ever to be enacted. If they are not enacted, the Act will fail. None have been enacted to date:
We therefore recommend that:
#2. The ACA should be amended to require at least one accessibility standard regulation to be enacted covering all obligated organizations within one year from now, with another four such accessibility standard regulations to be enacted within two years from now. Those regulations should go into force upon their enactment and should require implementation actions to begin upon their enactment.
4. The ACA’s Confusing and Complicated Implementation and Enforcement Processes Should be Substantially Strengthened and Simplified
The lengthy ACA is extremely and unnecessarily complicated and confusing. As we predicted five years ago, it is hard for people with disabilities to navigate. It wrongly splinters the power to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the CTA, and the CRTC. Each of those agencies are quite dysfunctional at fulfilling their mandates towards people with disabilities.
This makes it hard for people with disabilities to navigate the system and to get disability barriers fixed. People with disabilities have to learn to navigate as many as three or four different sets of accessibility rules, enforcement agencies, procedures, forms and timelines for presenting an accessibility complaint.
We therefore recommend that:
#3. The ACA should be amended to eliminate the splintering of its implementation and enforcement between the Accessibility Commissioner, the CRTC and the CTA. One new federal agency should be created with these functions all consolidated in one place.
It is good that the ACA aims to provide effective enforcement tools. Although its enforcement provisions are lengthy, they are missing key ingredients. Unless we have misread its long, confusing and complicated provisions (a regrettable risk), it does not appear that people with disabilities can complain if an obligated organization’s accessibility plan is too weak or deficient, or if the obligated organization does not implement its accessibility plan, and to thereby engage the enforcement process.
We therefore recommend that:
#4. The Accessible Canada Act should be amended to allow people with disabilities to lodge an enforcement complaint if an obligated organization’s accessibility plan is insufficient or too weak, or if the obligated organization has failed to effectively implement its accessibility plan.
5. Federal Public Money Should Never Be Used to Create or Perpetuate Disability Barriers
The ACA does not require the Federal Government to ensure that recipients of federal money never use those funds to create or perpetuate disability barriers. For example, the ACA doesn’t require the Federal Government to attach accessibility strings when it gives money to a municipality, hospital, college, university, local transit authority or other organization to build new buildings or other infrastructure. Those recipients are left free to use federal public money to design and build new infrastructure that is not fully accessible to people with disabilities. The ACA doesn’t require the Federal Government to attach any federal accessibility strings when it gives business development loans or grants to private businesses.
It is helpful that the ACA lets the Federal Government impose accessibility requirements when it buys goods or services. However, it doesn’t require the Federal Government to ever do so.
This allows for a wasteful and harmful use of public money. The Senate’s Standing Committee on Social Affairs that held hearings on Bill C-81 made this important observation in its May 7, 2019 report to the Senate:
“Your committee heard concerns that despite this legislation, federal funding may continue to be spent on projects that do not always meet accessibility standards. Therefore, we encourage the federal government to ensure that when public money is spent or transferred, the funding should never be used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided.”
We therefore recommend that:
#5. The Accessible Canada Act should be amended to add the following provision:
11.1.
(1) No one shall use public money distributed to them by the Government of Canada or any agency thereof by loan, grant, or other like payment in a manner that creates or perpetuates barriers.
(2) Without limiting the generality of the foregoing, subsection 1 includes payments by the Government of Canada to any person or entity to purchase or rent any goods, services or facilities, or to contribute to the construction, expansion or renovation of any infrastructure or other capital project, or to provide a business development loan or grant to any person or entity.
(3) Within the period of two years that begins on the day on which this subsection comes into force, the minister must establish and make public policies and procedures to implement, monitor compliance with, and report to the public on compliance with subsections 1 and 2.
(4) The power to make regulations under clauses 117 (1) (c) and (d) includes the power to make regulations to implement this section.
6. The Accessible Canada Act Should Require the Federal Government to Apply a Disability Lens to All Its Decisions
In the 2019 election campaign, the Liberal Party of Canada promised that it would apply a disability lens to all Federal Government decisions. Proposed opposition amendments to Bill C-81 that were defeated in 2018 would have made this a permanent legal requirement, not a voluntary practice, that future governments could ignore.
The ACA should entrench in law a disability lens, that must be applied to all Government policies and decisions and would make it binding on both the current Government and future governments.
We therefore recommend that:
#6. The following provision should be added to the Accessible Canada Act:
In order to systemically entrench the full inclusion of people with disabilities in all opportunities available in Canada, the government shall implement a disability lens whereby:
(a) Within two years of this provision coming into force, the government shall have reviewed all existing policies to ensure that they do not exclude or adversely affect persons with disabilities.
(b) Within 3 months of completing this review, the Minister shall submit a report to Parliament on the findings of the review and corrective measures taken.
(c) The government shall review all new policies and decisions to ensure that they do not exclude or adversely affect persons with disabilities.
(d) Before the Government of Canada adopts any new policies or makes any new decisions, the Minister shall certify that the policy has been reviewed to ensure that it does not exclude or adversely affect persons with disabilities, and shall annually report to Parliament on the reviews conducted and corrective measures taken.
7. Nothing Done Under the Accessible Canada Act Should Ever Reduce the Rights of People with Disabilities
The ACA includes insufficient protections to ensure that nothing done under it reduces the rights of people with disabilities and that if there is a conflict between two laws regarding accessibility, the stronger one will prevail.
We therefore recommend that:
#7. Section 6 of the Accessible Canada Act should be amended to add the following to the principles set out in it that govern the Act:
“(2) (a) If a provision of this Act or of any regulation under this Act conflicts with or guarantees a different level of accessibility for people with disabilities than a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.
(b) Nothing in or under this Act or regulations enacted under it may be construed or applied to reduce the rights of people with disabilities enjoyed at law.”
8. An Unfair and Discriminatory Provision of the Accessible Canada Act Should Be Removed So that Passengers with Disabilities Who Are the Victims of Accessibility Barriers in Federally Regulated Travel (Like Air Travel) are Always Able to Seek Monetary Compensation When They Deserve It
An unfair and discriminatory provision, section 172, was included in the Accessible Canada Act. It is helpful that in 2019, the Senate somewhat softened it, after tenacious pressure from disability advocates. However, it should be repealed altogether.
Section 172(3) of the Accessible Canada Act unfairly takes away important rights from people with disabilities in a discriminatory way. It bars the CTA from awarding justly deserved monetary compensation to a passenger with a disability, even if the CTA finds that an airline or other federally regulated transportation-provider imposed an undue barrier against them, so long as a federal transportation accessibility regulation says that the airline did not have to provide the passenger with that accommodation.
This unfairly protects huge, well-funded airlines and railways from having to pay monetary compensation in situations where they should have to pay up. Our proposed bill would repeal the offending portion of section 172(3).
We therefore recommend that:
#8. To ensure that the Canadian Transportation Agency can decide whether there is an undue barrier that makes federal transportation inaccessible for persons with disabilities and can always order the full range of remedies to remove and prevent such barriers, and to ensure that s. 172(3) of the Canada Transportation Act does not reduce rights of persons with disabilities, subsection 172(3) of the Accessible Canada Act and the corresponding s. 172(3) of the Canada Transportation Act should be amended to remove the words “but if it does so, it may only require the taking of appropriate corrective measures.”
Section 172(3) of the Canada Transportation Act currently reads:
“Compliance with regulations
(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.”
With this amendment, section 172(3) would read:
“Compliance with regulations
(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter.”
9. No Federal Laws Should Create or Permit Disability Barriers
The Accessible Canada Act does not now ensure that federal laws never impose or permit the creation of barriers against people with disabilities.
We therefore recommend that:
#9. Section 2 of the Accessible Canada Act’s definition of “barrier” should be amended to add the words “a law”, so that it will read in material part:
“Barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a law, a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. (obstacle)”
10. Eliminate the Accessible Canada Act’s Power to Exempt the Federal Government from Some of the Act’s Requirements
The ACA has too many loopholes. For example, it lets the Federal Government exempt itself from some of its duties under the Act. The Government should not ever be able to exempt itself.
Parliament should eliminate the Federal Government’s power to exempt itself from some of its duties under the ACA.
We therefore recommend that:
#10. Section 72(1) of the Accessible Canada Act should be amended to add the words “except any entity referred to in paragraphs 7(1) (a), (b) and (c) (the Government of Canada, or a department or agency of the Government of Canada)”, so that the provision will read in material part:
“72(1) The Minister may, by order, exempt any regulated entity or class of regulated entities except the any entity referred to in paragraphs 7(1) (a), (b) and (c) (the Government of Canada, or a department or agency of the Government of Canada) from the application of all or any part of sections 69 to 71, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the period of three years that begins on the day on which the order is made and the end of any shorter period specified in the order.”