Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Ontario for All People with Disabilities
Making the Accessibility for Ontarians with Disabilities Act Fulfil Its Untapped Promise – Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Rich Donovan Fourth Independent Review of the Implementation and Enforcement of the AODA on Phase Two – What Recommendations Should the Donovan AODA Independent Review Make?
May 31, 2023
Making the Accessibility for Ontarians with Disabilities Act Fulfil Its Untapped Promise – Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Rich Donovan Fourth Independent Review of the Implementation and Enforcement of the AODA on Phase Two – What Recommendations Should the Donovan AODA Independent Review Make?. 1
- This Brief 1
- Who Are We?. 3
- Findings in the Rich Donovan Interim Report With Which the AODA Alliance Agrees. 4
- Overview.. 6
- Actual Passages in the Donovan Interim Report in Issue. 7
- Why We Respectfully Disagree. 10
- The Upshot 16
The AODA Alliance submits this brief to the second phase of the Rich Donovan Independent Review of the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act (AODA).
The Donovan Independent Review divided its work into two phases. During the first phase, it assessed how Ontario is progressing towards the AODA’s stated purpose of leading Ontario to become accessible to people with disabilities by 2025. It completed its first phase by submitting its March 1, 2023 Interim Report to the Ontario Government. That Interim Report was made public on March 9, 2023.
In the AODA Alliance’s February 6, 2023 brief to the Donovan Independent Reviews first phase, we provided our input into the findings that we urged the Donovan Independent Review to make. In its second phase to which this brief speaks, the Donovan Independent Review is now considering what recommendations to make to the Ontario Government in order for the AODA to do a better job of achieving its goal of an accessible Ontario for some 2.9 million Ontarians with disabilities. This brief is the AODA Alliance’s submission to the second phase of the Donovan Independent Review’s work. We here provide our input on the recommendations to the Government that we urge the Independent Review to reach.
Section 41 of the AODA sets out the mandate for this Independent Review. It provides:
“41. (1) Within four years after this section comes into force, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a comprehensive review of the effectiveness of this Act and the regulations and report on his or her findings to the Minister.
(2) A person undertaking a review under this section shall consult with the public and, in particular, with persons with disabilities.
Contents of report
(3) Without limiting the generality of subsection (1), a report may include recommendations for improving the effectiveness of this Act and the regulations.
Tabling of report
(4) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session.
(5) Within three years after the laying of a report under subsection (4) and every three years thereafter, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a further comprehensive review of the effectiveness of this Act and the regulations.
(6) Subsections (2), (3) and (4) apply with necessary modifications to a review under subsection (5).”
In part I of this brief, we explain who the AODA Alliance is and summarize the findings in the Rich Donovan’s Interim Report with which we agree. Part II of this brief responds to the findings in the Donovan Interim Report with which we respectfully disagree.
Part III of this brief lists the recommendations that we invite the Rich Donovan Independent Review to make to the Ontario Government. To make them easier for this Independent Review to use, these recommendations are set out in the same order of the chapters that were in the AODA Alliance’s February 6, 2023 brief to the first phase of the Donovan Independent Review.
This brief was first circulated for public input on May 23, 2023. We once again thank all our volunteers and supporters who have helped with our advocacy efforts over the years, including in the many topic areas that this brief addresses. We also applaud the unsung heroes within the Ontario Government, the Ontario Legislature, and other obligated organizations, who have strived to try to get more action on accessibility.
The AODA Alliance has extensive experience with the design, implementation, and enforcement of accessibility legislation. Founded in 2005 shortly after the AODA was passed, we are a voluntary, non-partisan, grassroots coalition of individuals and community organizations. Our mission is:
“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.”
To learn about us, visit the AODA Alliance website. Our coalition is the successor to the non-partisan grassroots Ontarians with Disabilities Act Committee. The ODA Committee advocated for more than ten years, from 1994 to 2005, for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our supporters from the ODA Committee’s broad grassroots base. To learn about the ODA Committee’s history, visit the ODA Committee’s legacy website.
Beyond our work at the provincial level in Ontario, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue. In 2016, AODA Alliance chair David Lepofsky made public a Discussion Paper on what the federal legislation should include. That widely read Discussion Paper is now published in the National Journal of Constitutional Law at (2018) NJCL 169-207.
The AODA Alliance has spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on the topic of designing and implementing provincial accessibility legislation. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that legislation. As other examples, we have also lent our advice and support to similar efforts in Newfoundland and Labrador, New Brunswick, Nova Scotia, and Alberta.
We have been consulted outside Canada on this topic, most particularly, in Israel and New Zealand. In addition, in June 2016, AODA Alliance Chair David Lepofsky presented on this topic at the UN annual international conference of state parties to the Convention on the Rights of Persons with Disabilities.
We agree with the vast majority of the key findings in the March 1, 2023, Interim Report of the Rich Donovan AODA Independent Review, including his findings that:
- The Ontario Government, including the Premier and his Cabinet, have utterly failed 2.9 million Ontarians with disabilities.
- “Despite 17 years since the AODA has come into force, People with Disabilities (PWD) still consistently face barriers in their everyday experiences, from navigating city streets, to applying for jobs, to accessing public transit and government services.”.
This has led to “frustration, anger, resignation, and disappointment with the state of accessibility in Ontario.”
- “The current experience for many people with disabilities in Ontario is poor. This stems from design flaws in services, products, technology, buildings, infrastructure, careers, processes, and human imagination.”
- The Government’s failed implementation of the AODA over 17 years resulted from “a series of failures and missed opportunities”.
- It is “utterly shocking” that the Ontario Premier and Cabinet have no plan to achieve an accessible Ontario for people with disabilities.
- Both the Government and private sector organizations “have not prioritized disability in their operations.”
- “…(T)here is an urgent need for action.” His report called for accessibility for people with disabilities urgently to be made a greater priority.
- “Boards of Directors, business owners and the Premier of Ontario must urgently demand better experiences for Ontario’s people with disabilities.”
- The Ontario Government needs:
“An urgent and material adjustment in strategy and output.”
- Among disadvantaged groups in society, no others experience the same severity of exclusion:
“No other demographic group faces these kinds of negative experiences, barriers, and outright discrimination without public outcry, much less one that represents nearly a quarter of the population.”
- There has been a failure of needed leadership on accessibility:
“It is the assessment of the 4th Reviewer that leadership on accessibility – and the AODA – has been absent for 17 years. Without leadership, progress on this file is impossible.”
- The Government of Ontario and all political parties share responsibility:
“It is the obligation of the government of the day to serve the population. It has failed to do so for 22% of that population. Opposition parties have failed to hold governments of the day accountable for this lack of service. These failures are shared by all of Ontario’s political parties.”
- The failure to make more progress on accessibility was also due in no small part to the lack of meaningful enforcement of the AODA:
“Alongside standards is a critical lack of enforcement or incentives to comply with the AODA or improve accessibility more generally.”
- The Donovan Report attributes some of the responsibility for the lack of leadership to the media’s failure to give more coverage to accessibility problems:
“A key reason for the lack of leadership on accessibility is there has been little perceived incentive for potential leaders to prioritize it. Lacking “breaking news” stories, accessibility rarely enters the media cycle in a sustained way. This has helped keep accessibility off the social or political agenda in Ontario.
The absence of disability in the news cycle reflects a failure of Ontario and Canada’s major media outlets.”
- “…the Premier of Ontario and his Cabinet have yet to meet the basic needs of a group of people totaling over one fifth of its population.”
- In the bluntest statement of any of the four Independent Reviews that have been conducted since the AODA was passed in 2005, the Donovan report pointedly asked:
“Mr. Premier, do you care?”
We overwhelmingly agree with the findings in the Donovan Interim Report which assess the lack of progress on accessibility in Ontario since 2005. We respectfully disagree with some of that report’s remarks on the causes for this state of affairs. We hope and trust that this should not impede the Donovan Independent Review from acting on the menu of recommendations that we set out in Part III of this brief.
We first set out the key passages in the Donovan Interim Report with which we disagree. We then explain the basis of our disagreement. We emphasize that our disagreement with the following passages does not weaken or undermine in any way the overwhelming findings in the Interim Report with which we agree, and on the basis of which we offer our recommendations.
If we have misread or misunderstood the passages in issue, we regret any such misinterpretation.
It hardly needs repeating that AODA outcomes have been poor. PWD report continued disappointment in the AODA since its inception, and as has been indicated in previous reviews, progress has been painfully slow and uneven.
The 4th Reviewer has identified two main drivers of these poor outcomes: a reliance on standards, and the absence of enforcement/incentives.
A key issue with this standard driven approach is that is ignores the lived, everyday experience of PWD: the very issue this legislation is intended to target. As noted in the previous section, many experiences can be technically accessible, from the point of view of standards, but be such a negative experience that they would be unused. A website or app can comply with a technical standard, yet be rendered practically useless by containing too many links to too much confusing information. While less likely, the reverse is also possible.
Standards are also a point of friction for those subject to the AODA. Standards do not identify where there is the biggest “bang for the buck,” nor do they identify clear priorities. This has led to significant business lobby pushback against the AODA, even though the aims of the AODA align with the goals of individual businesses – revenue maximization. The greatest pushback has been on issues pertaining to the built environment. A result has been an incentive structure encouraging the bare minimum, while punting costs as far down the road as regulators will permit.
It is the conclusion of the 4th Reviewer that this emphasis on standards is due in significant part to a lack of data – and the best data comes from experience. Over the course of our jurisdictional scan outside of the realm of disability, we consistently identified how collecting lived experience insights reduced program cost and improved outcomes.
An example of lived experience integrated to design is the UK Fulfilling Lives Programme, which funded local partnerships across 12 areas in England to address complex needs such as homelessness, mental illness, and substance abuse. This program saved more than £700 per person, per year in government services.
Essential to this program was that its intended beneficiaries were engaged as experts to co-produce program reports. Many people, not 4 “experts”. This led to the abandonment of programs that actual disadvantaged individuals knew would be ineffective, saving significant resources.
There is potential to engage in similar initiatives within the context of the AODA. However, at present, program reports are unilaterally filed by those under AODA jurisdiction, while meaningful consultations with actual PWD only typically occur during external AODA reviews, with extremely limited implementation success. This represents a material failure.
Alongside standards is a critical lack of enforcement or incentives to comply with the AODA or improve accessibility more generally. According to one MSAA official interviewed as part of these consultations, there are 20-25 staff to monitor approximately 460,000 compliant organizations. Under these constraints, there are minimal, if any, onsite visits. Those audits that do occur focus primarily on a narrow slice of a technical standard. A good example of a narrow technical investigation is website accessibility, for which 600 audits have occurred. Over 17 years, for 460,000 organizations.
For small businesses, AODA enforcement is essentially self-certification, with no need to maintain documents. This means that some 380,000 Ontario small businesses have been left to the honour system to implement standards that can have capital intensive built environment costs, and for which small business owners lack the finances and tools to implement. This is not a strong impetus for change.
For larger businesses, the provincial government, and municipalities, there have been few teeth to AODA enforcement. While there is the technical ability for large organizations to be fined up to $100,000 per day for non-compliance, this threat has never materialized.
One element to potentially drive outcomes that is missing is a lack of positive incentives for improving accessibility. A major component of this is the lack of data to identify easy wins that satisfy demand. Put differently, the AODA has not provided a positive reason why organizations in Ontario should meet accessibility standards, nor why the public should care. The provincial and federal governments have the tools and capacity to absorb risk to incentivize change demanded by society. These tools have been ignored.
Government and Governance
There are two governance issues that limit the ability of organizations to eliminate barriers as intended under the AODA. First is a lack of a “north star” or positive role model(s) to follow for leading practices. Second is a lack of harmonization across accessibility regimes, especially for organizations that operate in multiple provinces.
There is currently no organization that is widely regarded as a leader in accessibility under the AODA whose processes can be emulated by other actors. This leads to an inefficient process in which organizations must continually reinvent the wheel on their respective accessibility regimes.
The government of Ontario should be the north star of accessibility in the province. At present this is not the case. Enforcement of the AODA is difficult when its owner has not complied with standards. A rapid and substantive improvement of accessibility within the Ontario government is needed to establish credibility on this file.
There is also a substantive harmonization problem across accessibility regimes. For organizations conducting business across the country, this necessitates compliance with multiple provincial regimes, leading to a confusing and inefficient process.
One critical area of harmonization in the next three years is that with the Accessible Canada Act (ACA), which covers federally regulated entities such as crown corporations, financial institutions, and airlines. This also eliminates potential duplication problems for organizations under the jurisdiction of the ACA.
Excerpt 1: Accountability
“Without leadership, there can be no accountability. This has certainly been the case with the AODA. Yet this difficulty goes beyond ownership of this file. It is the assessment of the 4th Reviewer that even with engaged leadership, as it stands today, accountability would be a significant challenge. A key reason is there are no metrics for what success looks like. This review has outlined how a lack of data has led to an overreliance on standards. Beyond this, it has made it impossible for media, advocacy groups, government, and private organizations to track process and hold others, and themselves, accountable. It is noteworthy to compare accessibility data collection and public dissemination in New Zealand when compared to Ontario. There, the Office of Disability Issues has created a series of interactive Tableau dashboards to visualize accessibility data for public consumption. In New Zealand, disability data is derived by benchmarking outcomes and attitudes of People with Disabilities compared to those without disabilities. This includes satisfaction with government services, ease of transit use, and attitudes towards local authorities. Public data availability enables voters to hold government accountable. It also enables media to track progress, keep issues on the agenda, and provides a tool for opposition parties to question governments on progress. Interestingly, Ontario has done this on other files, just not disability. During the peak of the Covid-19 Pandemic, Ontario’s Science Table posted daily, interactive Covid statistics for public consumption. This enabled citizens and media to hold public officials accountable, provide a clear baseline of information that stakeholders could refer to, and allowed for real time tracking of progress and setbacks. This model should be extended to disability. The Reviewer notes that Canada’s federal government is currently in the process of collecting more robust disability and accessibility data. They have openly stated that they have a critical deficit in their understanding of disability. Most importantly, they have a plan to fix that data deficit. There is an opportunity for the Ontario government to leverage this process for its own data collection. Without data, even engaged leadership cannot be held accountable.”
Excerpt 2: Built Environment
“It is the assessment of the 4th Reviewer that accessibility as it pertains to built environments should be treated as a separate entity compared to the remainder of accessibility priorities and standards under the AODA. For 17 years there has been pushback on built environment changes due to capital costs. Concerns over these costs are real. Not addressing these costs is a significant risk. It should be emphasized that inaccessible buildings represent a serious economic risk to Ontario. Under the Accessible Canada Act, federally regulated entities must act to remove barriers in built environments. Organizations such as financial institutions that have thousands of retail locations will be forced to abandon leased property that is not accessible. Addressing this issue will take additional resources and strategies beyond that of other AODA areas.”
a) There Has Been an Overreliance on Accessibility Standards
We respectfully disagree with a suggestion in the Donovan Interim Report that there has been an “overreliance” on accessibility standards in Ontario. The Interim Report identifies no objective evidence supporting such a conclusion.
On its face, that statement could be read as a categorical rejection of the core of the Accessibility for Ontarians with Disabilities Act itself. The AODA’s core means for implementing the right of people with disabilities to accessibility and inclusion, as guaranteed by the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms, is by requiring the Ontario Government to enact and effectively enforce accessibility standards.
It is our position that Ontario’s failure to meet the legislated goal of an accessible province by 2025 is most assuredly not due to the fact that the AODA uses accessibility standards as its key regulatory tool. The failure is because the Ontario Government has not effectively used that tool. This in turn is due to the convergence of several Government failures.
First, the Government has failed to enact enforceable accessibility standards under the AODA in key areas where they are needed. For example, there is no Education Accessibility Standard, no Health Care Accessibility Standard, no Residential Housing Accessibility Standard, and no Accessible Goods and Products Accessibility Standard.
There is no comprehensive AODA Built Environment Accessibility Standard, only an extremely limited Post-Secondary Education Accessibility Standard which only addresses a tiny fraction of Ontario’s built environment. The rest of the built environment is left to the very limited and chronically outdated Ontario Building Code.
In this regard, the Ontario Government has not lived up to its duty under Section 7 of the AODA, which provides:
“7. The Minister is responsible for establishing and overseeing a process to develop and implement all accessibility standards necessary to achieving the purposes of this Act.”
Second, all the accessibility standards enacted to date under the AODA are far too limited and weak. Even if they were fully obeyed, they would not ensure that Ontario becomes accessible by 2025 in the areas they regulate, or ever.
The 2014 Mayo Moran 2nd AODA Independent Review identified several key problems with those accessibility standards – deficiencies that the AODA Alliance pointed out to Dean Moran in detail. The Government has done nothing in the intervening nine years to correct these deficiencies.
For example, existing accessibility standards rarely if ever require any existing disability barriers to be removed. They primarily if not exclusively focus on preventing new barriers.
Existing standards only address some recurring disability barriers in the field which they address. For example, the Transportation Accessibility Standard includes no requirements for accessible public transit stations.
Too often, existing accessibility standards set no standard at all. For example, Design of Public Spaces Accessibility Standard commendably aims for new playgrounds to include accessibility features, but it does not identify the accessibility features that should be included. It instead requires obligated organizations to conduct wasteful and duplicative public consultations with people with disabilities for each new playground to be created.
Making all this worse, most, if not all, of the accessibility standards enacted to date fail to ensure a level of accessibility that fulfils the requirements of the Ontario Human Rights Code and, where applicable, the Charter of Rights. In other words, an obligated organization could obey the AODA accessibility standard while not obeying the more exacting Ontario Human Rights Code and/or Charter of Rights.
The Moran AODA Independent Review identified this concern as well over nine years ago. Here again, the Government did nothing to correct this glaring deficiency.
Third, the Government has had in hand for one or more years the final reports of fully six AODA Standards Development Committees but has not taken any regulatory action under the AODA to implement any of them. It has not revised the Transportation Accessibility Standard in response to the final report of the Transportation Standards Development Committee that the Government received in 2018. It has not revised the Employment Accessibility Standard in response to the recommendations of the Employment Standards Development Committee that it received in 2019. It has not revised the Information and Communication Accessibility Standard in response to the final report of the Information and Communication Standards Development Committee which the Government received in 2020.
The Government has not enacted an Education Accessibility Standard in response to the final reports of the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee that it received early in 2022. It has not enacted a Health Care Accessibility Standard in response to the final report of the Health Care Standards Development Committee that it also received early in 2022.
Fourth, the Government has violated its duty to appoint a Standards Development Committee to review an accessibility standard within five years of its enactment or revision. Current review of the 2012 Design of Public Spaces Accessibility Standard was appointed over five years past that deadline. Its mandatory review of the Customer Service Accessibility Standard is already almost two years overdue, as the Government is only now recruiting members of a Customer Service Standards Development Committee to conduct that review.
Fifth, in the only case where any AODA accessibility standard has been revised in the past decade, the revisions were paltry and did little if anything to strengthen the accessibility standard in question. That was the case in June 2016 when the Government enacted minor revisions to the weak 2007 Customer Service Accessibility Standard.
Sixth, as three successive AODA Independent Reviews have unanimously found, the Government has done a very poor job of enforcing those accessibility standards which are on the books, limited as they are. As such, it must be obvious to many if not most obligated organizations that they can ignore the AODA with impunity.
Taken together, this does not prove that effectively drafted and enforced accessibility standards cannot work. It only proves that weak, limited, poorly constructed and largely unenforced standards are insufficient. It would be an unwarranted leap of logic to conclude from this confluence of failures that Ontario was over relying on accessibility standards, or to conclude that accessibility standards cannot effectively serve the AODA’s commendable goals.
b) Government Failure to Provide Incentives
We wish to raise a significant caution if the Donovan Interim Report means to imply that the current plight in Ontario regarding accessibility is due to the Government failure to provide incentives. We understand the notion that obligated organizations might do more regarding accessibility if they were incentivized to do so. However, we caution that it is not the Government’s and the public’s responsibility to finance the achievement of accessibility in the private sector or the greater public sector. Under the Ontario Human Rights Code and the Charter of Rights, this is the responsibility of each obligated organization. It is a cost of their doing business, no less than any other cost of doing business. By analogy, the continued presence of sexual harassment in some workplaces is not due to the fact that the Government provided no financial incentives to employers to prevent their managers from sexually harassing their subordinates.
We also flag that the idea of providing incentives to employers to hire people with disabilities have raised serious concerns that the increased employment that they generate can end up being extremely temporary. It risks being ended as soon as the employment incentive expires. A Government-appointed business panel gave the Government this caution several years ago.
We do not oppose Government programs to incentivize disability barrier-removal and prevention. However, we believe that there is a serious risk in relying on them. We would not agree that their absence as a significant reason for Ontario’s failure to live up to the AODA’s goals.
c) Lack of Data
We of course see a real benefit in better data-collection regarding barriers facing people with disabilities. However, we would not agree that Ontario’s failure to make better progress on accessibility is due in any significant part to the lack of sufficient data-collection. We fear that the Government could try to use this as a reason or pretext for stalling further reforms.
We respectfully disagree with New Zealand as an example Ontario should follow. New Zealand is far behind in taking effective action on disability accessibility. The accessibility bill now before the New Zealand Parliament is frankly vacuous and toothless for people with disabilities. It has been roundly condemned by New Zealanders with disabilities as a total failure. AODA Alliance Chair David Lepofsky was invited to address the Select Committee of the New Zealand Parliament earlier this year on that bill.
We do not need any more data collection to verify what three successive AODA Independent Reviews have documented, including the Donovan Interim Report. People with disabilities know from their daily lives how pervasive are the recurring disability barriers around them. As a top priority, we instead need prompt and strong action on those barriers.
d) The Need for the Ontario Government to Serve as an Accessibility Role Model
Of course, it would be good if the Ontario Government had served as an effective role model on accessibility which others could emulate. The AODA Alliance has played a key role in pointing out where the Government has repeatedly and systemically fallen short, and by offering it constructive suggestions – advice which the Government has far too often failed to implement.
We have documented time and again how the Government’s claims to be leading Ontario by example are unfounded and self-serving. Too often, it has led by a poor example. Chapter 10 of the AODA Alliance’s 2019 brief to the David Onley AODA Independent Review provides ample documentation of this.
Too often, the AODA’s implementation has been predicated on the idea that the Ontario Government should first have to comply with the AODA, and only thereafter, should others (such as the private sector) be expected to do so. This has led to excessively and unjustifiably long timelines in AODA accessibility standards especially for the private sector. See for example the timelines under the 2007 Customer Service Accessibility Standard.
No obligated organizations should expect to delay their own disability barrier removal and prevention until the Government gets its own house in order. By the same token, no private business should be permitted to discharge toxic pollutants into the environment until after the Government gets its own environmental house in order. Our society wisely expects all to ensure that they are not polluting the environment at the same time.
There are situations where it is reasonable to expect smaller public and private sector organizations to take less time, and not more time, to get their accessibility houses in order than the Government. For example, a small organization with a small web presence can be expected to fix its website’s accessibility before the Government can fix its massive web presence.
This it not to say that the Government should have no leadership role here. The Government should be providing the public with templates, effective advisory services, and the like to make it quicker, cheaper and easier for other obligated organizations to take action on accessibility. However, the action of those organizations need not be preconditioned on the Government first moving more quickly. Such an expectation is a formula for failure, based on ample past experience.
e) Harmonization with Other Jurisdictions
The Donovan Interim Report correctly points out that there can be different accessibility standards and requirements imposed at the federal level and in other provinces. This is a regrettable and unavoidable fact of life in a relatively decentralized federal system of government. Unfortunately, Canada’s Parliament does not have constitutional authority to enact a comprehensive national accessibility statute with the same reach into the provinces as the US Congress can achieve through the Americans with Disabilities Act.
This is a regulatory fact of life that businesses face whenever they do business in more than one Canadian province, whether it relates to accessibility or any other regulatory domain.
The risk about which the Donovan Interim Report expresses concern remains largely years away. No enforceable accessibility standards have yet been enacted federally under the Accessible Canada Act. Few have been enacted in other provinces. Moreover, in many cases, an obligated organization that carries on operations in Ontario will not have to worry itself about accessibility standards enacted federally or in other provinces, as these regulations will not apply to them.
Moreover, there is a serious danger to people with disabilities and to disability accessibility if Ontario seeks to “harmonize” itself with other jurisdictions. It poses the major risk that Ontario will dilute its standards, sinking to the lowest common denominator.
The most effective strategy for avoiding this risk is for Ontario to raise its accessibility standards to ensure that they achieve the level of accessibility standards required by the Ontario Human Rights Code and, where applicable, the Charter of Rights. We know that those stronger human rights requirements apply across Canada, both federally and provincially. The human rights standard for accessibility is a universal one. In other words, efforts to harmonize accessibility standards with any measures that fall below the human rights/Charter level of accessibility are a futile and counterproductive action for all concerned.
There is always room for additional measures to promote accessibility, to supplement the effective implementation of the AODA. However, it is our strong and enduring position that strong and effective accessibility standards that are effectively enforced is a vital and necessary means for achieving those goals. We do not object if the Donovan Independent Review opts to recommend additional ways to promote the AODA’s goals. However, we would disagree with any abandonment of accessibility standards or any reduction in their central role. In the following section of this brief, we offer our recommendations that we invite the Donovan Independent Review to adopt, that would make the AODA work.
The following are the recommendations that we urge the Rich Donovan Independent Review to make to the Ontario Government. Two principles underlie these recommendations.
First, there must be no amendments whatsoever recommended to the AODA itself. That legislation is the result of a decade of hard advocacy work by people with disabilities across Ontario. We do not want to risk the Legislature opening up this statute and weakening it. Any reforms that are recommended must leave this legislation entirely intact.
Second, we urge that the Independent Reviews recommendations be specific. We have tried to achieve this in the following pages.
There has been some progress on accessibility since for people with disabilities in Ontario the AODA’s enactment. However, we agree with the findings of this Independent Review and the three previous AODA Independent Reviews that this progress has been far too slow.
Ontario is not now on schedule for becoming accessible to people with disabilities by 2025. At the present rate of progress, Ontario will not even come close to reaching full accessibility by 2025. A dramatic improvement is needed now to the AODA’s implementation and enforcement.
After this Independent Review’s interim report and each of the three previous AODA Independent Reviews called for strong renewed Ontario Government leadership, none has been showed. There remains a pressing and urgent need to revitalize the AODA’s implementation. Independent Review recommended.
As this Independent Review’s interim report correctly found, the Ontario Government has never had and now has no comprehensive plan for leading Ontario to reaching accessibility by 2025. There is a clear and present need for such a plan.
Over the years, the Ontario Government has too often tried to shroud the AODA’s implementation and enforcement, including the development and review of AODA accessibility standards, with far too much secrecy. The public is entitled to expect the AODA’s implementation and enforcement, including the development and review of AODA accessibility standards, to be open, transparent, and publicly accountable.
We therefore recommend that:
- The Ontario Government must act promptly to re-vitalize and breathe new life into the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act (AODA). This should start with strong new leadership from the top, including the Premier, the Cabinet and the senior leaders within the Ontario Public Service.
- The Ontario Government should act quickly to adopt, implement, and make public a comprehensive multi-year plan for effectively leading Ontario to become accessible by 2025, which includes the issues regarding the AODA’s implementation and enforcement that are addressed in this brief.
- There should be substantial reform at the Accessibility Directorate of Ontario so that it better provides the leadership on the AODA’s implementation and enforcement that Ontario needs.
- As is addressed in further detail elsewhere in this brief, the Ontario Government’s implementation, and enforcement of the AODA, including the development and review of AODA accessibility standards, should be carried out in an open, public transparent and accountable way.
As discussed earlier, we agree with the finding in this Independent Reviews interim report that for years, the AODA has not been effectively enforced, even though the Ontario Government knew for years about unacceptably high levels of AODA non-compliance, particularly within the private sector. Enforcement efforts have always been too weak.
This ineffective AODA enforcement does a major disservice to Ontarians with disabilities, to the broader public, and to all the obligated organizations who have opted to comply with the AODA.
The former and current Ontario Governments did not significantly improve AODA enforcement after the 2014 Mayo Moran Report, the 2019 David Onley Report and the 2023 Rich Donovan Interim Report demonstrated the need for strengthened AODA enforcement. The AODA Alliance has had to resort to Freedom of Information applications to prove how poor AODA enforcement has been starting a decade ago.
For years, the Ontario Government has failed to effectively publicize the Government’s promised toll-free number for the public to report AODA violations, for purposes of AODA enforcement. From feedback that the AODA Alliance has received, that number does not serve as a way to lodge a complaint and have any hope of AODA enforcement.
It is important to make AODA enforcement independent of and arms length from the Ontario Government. For example, the Ontario Government should not enforce the AODA against itself. Independent public enforcement of the AODA will better ensure effective enforcement of the AODA. AODA enforcement should not be subject to any political involvement.
While enforcement is not the only way to get obligated organizations to comply with the AODA, it is one vital way to do so. The failure to effectively enforce the AODA has contributed to low rates of AODA compliance.
The Government’s decade-long failure to effectively enforce the AODA works against the efforts of those who try to get obligated organizations to comply, such as accessibility consultants. Those consultants can point to strong enforcement powers in the AODA. However, the fact that only five monetary penalties were imposed in 2015, 2016 and 2017 combined, is ample proof that obligated organizations need not fear any real consequences if they don’t comply with the AODA.
It is not sufficient for AODA enforcement to take the form of “paper audits”, where Government officials merely review an obligated organization’s documentary records on AODA compliance, such as records of an obligated organization’s accessibility policy and of its staff training on accessibility. Effective auditing or inspections need to include on-site examination of the actual accessibility of the obligated organizations, not just its accessibility paper trail.
We therefore recommend that:
- AODA enforcement should immediately be substantially and visibly strengthened, including effectively using all AODA enforcement powers, enforcing all AODA accessibility requirements, and enforcing the AODA in connection with all classes of organizations that must obey the AODA. The Government should not just enforce the requirement of certain obligated organizations to file an accessibility self-report. The Government should effectively enforce AODA requirements vis à vis both the public and private sectors, and vis à vis all classes of organizations within each sector.
- AODA enforcement should be transferred outside the Ministry responsible for the AODA and be assigned to an arms-length public agency to be created for AODA enforcement, using the language of the AODA without needing any amendments.
- The number of inspectors and directors appointed with AODA enforcement powers should be significantly increased.
- Ontario Government and local municipal inspectors and investigators under other legislation should be given a mandate to enforce the AODA when they inspect or investigate an organization under other legislation or by-laws.
- A core feature of AODA enforcement should be the on-site inspection of a range of obligated organizations each year on the actual accessibility of their workplace, goods, services, and facilities, not a mere audit of their paper records on accessibility documentation.
- The Accessibility Directorate of Ontario and any successor body assigned responsibility for AODA enforcement should publicly release and promptly post detailed information on AODA enforcement actions at least every three months. It should report on how many obligated organizations are actually providing accessibility, and not, as too often is the case at present, how many organizations simply tell the Government that they are providing accessibility. This should include prompt reports of quarterly results and year-to-date totals, broken down by sector and size of organization. At a minimum, it should include such measures as the number of notices of proposed order issued, the total amount of proposed penalties, the number of orders issued and total amounts and number of penalties imposed, the number of appeals from orders and the outcome, the total amount of penalties including changes ordered by the appeal tribunal, and the orders categorized by subject matter.
- Obligated organizations should be required to report to the Accessibility Directorate of Ontario or any successor AODA enforcement agency on accessibility complaints received via their required AODA feedback mechanisms, and on how they were resolved, while protecting individual privacy.
- New ways for crowd-sourced AODA monitoring/enforcement should be created, such as the Government beginning to post all online AODA compliance reports from obligated organizations in a publicly-accessible searchable data base, and by requiring each obligated organization to post its AODA accessibility policy and its AODA compliance report on its own website, if it has one.
- To reverse the public perception that the Government is not and will not be effectively enforcing the AODA, the Government should immediately and widely publicize its new enforcement plans and its intention to substantially increase its efforts at AODA enforcement. This should not be limited to postings on a Government website.
- The Government should develop an effective strategy for ensuring that municipalities effectively enforce the Ontario Building Code’s accessibility requirements as well as any built environment accessibility requirements in AODA accessibility standards, including
- providing effective training tools on the Ontario Building Code accessibility requirements that can be used by municipal enforcement officials; and
- monitoring levels of enforcement and compliance at the municipal level across Ontario regarding the Ontario Building Code accessibility requirements.
- Ontario should provide an effective toll-free accessible telephone hotline fore reporting AODA violations and for triggering possible AODA enforcement. This was promised years ago. However, from feedback that the AODA Alliance has received, all that the public now has available to it is a toll-free number for getting information about the AODA.
Chapter 3 Current AODA Accessibility Standards Don’t Ensure Ontario Will Become Accessible to People with Disabilities by 2025
As noted earlier, the weak, limited current AODA accessibility standards will not ensure that Ontario becomes accessible to people with disabilities by 2025, even in the specific areas they regulate, e.g. customer service, employment, transportation, or information and communication. The 2014 final report of the Mayo Moran AODA Independent Review correctly identified significant deficiencies with these accessibility standards. In the intervening years, the former Ontario Government did not rectify those deficiencies.
As also noted earlier, the Government’s mandatory 5-year review of the 2007 Customer Service Accessibility Standard did not rectify most of the significant deficiencies with that accessibility standard. In one way, it made that weak accessibility standard even weaker.
The Government’s mandatory 5-year review of the 2011 Transportation Accessibility Standard resulted in weak recommendations to the Government from the Transportation Standards Development committee. Even if those recommendations were all implemented, these would not materially or substantially improve that accessibility standard. Similarly, the 2018 draft recommendations from the Employment Standards Development Committee on how to improve the very limited Employment Accessibility Standard would not significantly improve that accessibility standard.
We therefore recommend that:
- The Ontario Government should substantially strengthen all the existing accessibility standards.
- Any accessibility standards enacted under the AODA should, at least, measure up to the accessibility standards and accommodation and undue hardship requirements of the Ontario Human Rights Code. Where any existing standard falls below that standard, or provides defences to obligated organizations that are broader than those under the Human Rights Code, the AODA accessibility standard should be amended as part of any review of that accessibility standard, to bring it in line with the Human Rights Code.
- The Ontario Government should direct each present and future Standards Development Committee to make recommendations on accessibility that live up to the Ontario Human Rights Code. To assist with this, the Accessibility Directorate of Ontario should give each Standards Development Committee up-to-date information on relevant rulings by the Human Rights Tribunal of Ontario and courts, and should centrally involve the Ontario Human Rights Commission in each Standards Development Committee on an ongoing basis, including appointing a representative of the Ontario Human Rights Commission as an ex officio non-voting member of each Standards Development Committee.
- Each accessibility standard should be revised to ensure that it truly is an accessibility standard, that it sets specific measurable and enforceable accessibility benchmarks.
- When any Standards Development Committee is conducting a review of an existing AODA accessibility standard, that Committee should be advised that its mandate is not simply to decide if the existing accessibility standard is working “as intended”. Rather, it should investigate whether the accessibility standard will ensure that accessibility in the area that the standard addresses will be achieved by 2025. If it does not, then the Committee should recommend measures needed to ensure that accessibility in that area will be achieved by 2025.
- The Ontario Government should now convene a summit with leaders from the disability community and the transportation sector to identify substantially stronger reforms to the 2011 Transportation Accessibility Standard than those which the Transportation Standards Development committee had recommended.
Chapter 4 The Need for New Accessibility Standards, Including a Strong and Comprehensive Built Environment Accessibility Standard
After the AODA has been part of Ontario law for eighteen years, the built environment in Ontario remains replete with far too many disability accessibility barriers. The AODA has not had a significant effect on removing existing barriers or preventing new ones in the built environment. A new building can be built in full compliance with the AODA and the Ontario Building Code and yet have serious accessibility problems. The Ontario Building Code’s accessibility requirements, like the few built environment requirements in AODA accessibility standards, are entirely inadequate to meet the known modern needs of people with disabilities.
Ontario also has a pressing need for a comprehensive Built Environment Accessibility Standard to be enacted under the AODA. The former Ontario Government’s decision to carve the built environment largely out of AODA accessibility standards and to only address it in the Ontario Building Code was wrong. It set Ontario back.
The former Ontario Government’s failure to keep its August 19, 2011 election promise to promptly enact the promised Built Environment Accessibility Standard set Ontario back.
The former and present Ontario Governments’ failure to act effectively on the 2014 Mayo Moran and 2019 David Onley recommendations to address retrofits in existing buildings set Ontario further back.
Ontario has a pressing need for a Residential Housing Accessibility Standard. There is a serious shortage of accessible housing in Ontario for people with disabilities. It is getting worse because the demand for accessible housing increases as Ontario’s population ages. This is now a crisis crying out for urgent and comprehensive action from both the public and private sectors. There is no effective strategy in place in Ontario to ensure a sufficient increase in the supply of accessible housing in Ontario.
Ontario needs a Goods and Products Accessibility Standard to be created under the AODA.
The former Ontario Government as well as the current Government never undertook a comprehensive consultation or other effort to determine what additional accessibility standards need to be created in order for the AODA to ensure that Ontario reaches full accessibility by 2025.
We therefore recommend that:
- The Government should consult with the public, including with people with disabilities, over the next three months, on all the sectors that other accessibility standards need to address, to ensure that Ontario becomes accessible by 2025, with a decision to be announced on the economic sectors to be addressed in those standards within three months after that consultation.
- The Government should not delay a decision on whether to have a new accessibility standard developed, while the Ontario Public Service decides what barriers it might include.
- Immediately after the Government decides what remaining accessibility standards need to be created, it should promptly create Standards Development Committees to develop recommendations for each of those new accessibility standards.
- The Government should swiftly enact a comprehensive Built Environment Accessibility Standard under the AODA, ensuring that it effectively addresses accessibility retrofits in existing buildings, as well as accessibility in new construction and major renovations (not limited to those covered in the DOPS accessibility standard). Among other things, the new and comprehensive Built Environment Accessibility Standard should include additional accessibility requirements for elevators that are not currently addressed by the requirements in the Ontario Building Code and other provincial laws. To this end, the Ontario Government should ensure that the Design of Public Spaces Standards Development Committee is supported effectively to make comprehensive recommendations about all aspects of the built environment, whether or not they are covered in the 2012 Design of Public Spaces Accessibility Standard.
- The Government should now publicly recognize that there is a problem with the inaccessibility of the built environment in Ontario. It should launch a concerted and comprehensive strategy that will address new construction, major renovations, and the retrofit of existing buildings that are undergoing no major renovations, using feedback from the Ontario Human Rights Tribunal complaints and findings, and the Ontario Human Rights Commission’s policies and advice.
- The Government should create a Residential Housing Accessibility Standard under the AODA, and should promptly appoint a Standards Development Committee to make recommendations on what it should include, or assign this to the current Design of Public Spaces Standards Development Committee
- The Government should announce a comprehensive strategy on accessible housing to address the current and growing crisis in accessible housing in Ontario, in addition to creating an AODA accessibility standard in this area.
- The Government should strengthen enforcement of accessibility in the built environment. For example, it should require that before a building permit or site plan approval can be obtained for a project, the approving authority, municipal or provincial, must be satisfied that the project, on completion, will meet all accessibility requirements under the Ontario Building Code and in all AODA accessibility standards.
- The Government should substantially reform the way public sector infrastructure projects are managed and overseen in Ontario, including a major reform of Infrastructure Ontario. This should include:
- A requirement that accessibility advice be obtained on all major projects starting at the very beginning, during master planning, feasibility studies, and functional programming, with any accessibility advice that is received being made public. This input should also be obtained through consultations with people with disabilities.
- A requirement to track any decisions to reject any accessibility advice, identifying who made that decision and the reasons why. That information should promptly be publicly reported.
- To require the Government to promptly make public the accessibility requirements under consideration as a requirement for a contract for any infrastructure, with enough time before the start of the bidding competition to allow for feedback and adjustments. It is too late to make this public only after the bidding competition.
- A requirement for post-project accessibility commissioning inspections which would include compliance with the project specific output specification accessibility requirements as well as the Ontario Building Code and AODA accessibility standards.
- A requirement in all contracts that any accessibility deficiencies found must be the financial responsibility of the Project Company who built the project to fix them.
- The Government should require that when public money is used to create new public housing, 100% of that housing should include universal design and visit-ability as mandatory design features.
- The Government should direct the forthcoming Customer Service Standards Development Committee to include in its recommendations any readily-achievable modifications to the built environment that would help make customer service accessible to customers with disabilities.
- The Government should agree to create a Goods and Products Accessibility Standard.
- The Government should promptly enact a Health Care Accessibility Standard and an Education Accessibility Standard, implementing the recommendations it received in early 2022 from the Health Care Standards Development Committee, the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee.
- Accessibility standards should include, where appropriate, not only end-dates for achieving results, but also interim benchmarks for major milestones towards full accessibility.
There is a pressing need to reform the standards development process under the AODA. The problems with the standards development process that the 2010 final report of the Charles Beer AODA Independent Review identified remain present over a decade later. The former Ontario Government’s attempt to address these by temporarily assigning the Accessibility Standards Advisory Council with responsibility for developing recommendations for all accessibility standards was a failure and was properly abandoned by the former Ontario Government by 2016.
The Ontario Government has a sorry record of violating the AODA, because it has thrice failed to appoint Standards Development Committees on time to conduct mandatory 5-year reviews of existing AODA accessibility standards by the AODA’s deadline. This includes the former Ontario Government’s failure to appoint the mandatory review of the 2007 Customer Service Accessibility Standard until sometime in 2013, and its failure up until it left office to appoint the mandatory review of the 2012 Public Spaces Accessibility Standard by the end of 2017 and the review of Part I of the 2011 Integrated Accessibility Standards Regulation by 2016.
Since taking office in June 2018, the current Ontario Government did not appoint the mandatory review of the 2012 Public Spaces Accessibility Standard until years after the legal deadline. It remains in violation of its duty to appoint a review of the Customer Service Accessibility Standard by June 2021.
Once the former Ontario Government had decided to develop new accessibility standards in the area of education and health care, it took far too long to take the simple first step of appointing Standards Development Committees to start working on recommendations on what those accessibility standards should include. It took some two years for the former Ontario Government to appoint the Health Care Standards Development Committee and over one year to appoint the K-12 and Post-Secondary Education Standards Development Committees. It took that Government longer to set up any of these Standards Development Committees than it had taken the Government to develop the entire AODA legislation and introduce it for First Reading in the Legislature back in 2003-2004.
The current Government unjustifiably created further delays in reaching accessibility in Ontario, by its excessively long freeze of the work of existing Standards Development Committees that were already appointed and working on their mandates before the June 7, 2018 Ontario election. It froze the work of the Employment Standards Development Committee and the Information and Communication Standards Development Committee for five months, and then lifted that freeze around November 2018. Its freeze on the work of the Health Care Standards Development Committee and the two Education Standards Development Committees continued in effect up to the time of the David Onley’s January 2019 final report. Those Standards Development Committees did not resume their work until months after that.
The current Government breached prior practice by failing to hold an open fair competition for people to apply to the Design of Public Spaces Standards Development Committee. Highly qualified candidates were denied a chance to be considered for service on that important Standards Development Committee.
The Ontario Government has shrouded the work of Standards Development Committees in far too much secrecy, especially in recent years.
The mandatory minutes that each Standards Development Committee must keep and publicly post, regarding their meetings, are too often insufficiently detailed and informative to enable the public to know what these committees are doing and have confidence in their work.
The Ontario Government was wrong to require Standards Development Committees to have a 75% vote in support before a recommendation for an accessibility standard could be submitted to the Government.
Standards Development Committees have not been effectively fulfilling their core role under the AODA to propose an accessibility standard for the Government to consider enacting. For example, in 2018 the Transportation Standards Development committee submitted recommendations that are in significant part made up of items that are not a proposal for revisions to the 2011 Transportation Accessibility Standard.
The recommendations from Standards Development Committees for revisions to the 2007 Customer Service Accessibility Standard and the 2011 Transportation Accessibility Standard, and the recommendations for revisions to the 2011 Employment Accessibility Standard, are all very weak, and dramatically less than people with disabilities need.
The standards development process requires much more extensive involvement by the Ontario Human Rights Commission.
Standards Development Committees have at times insufficiently consulted with the disability community, especially when formulating their draft recommendations.
In and after May 2018, the Government has inappropriately failed to consult the public on final recommendations it received for revisions to the 2011 Transportation Accessibility Standard from the Transportation Standards Development committee, as well as recommendations for revisions to the 2011 Information and Communication Accessibility Standard that it received from the Information and Communication Standards Development Committee and recommendations for revisions to the 2011 Employment Accessibility Standard that it received from the Employment Standards Development Committee.
The Government’ has repeatedly failed to comply with the statutory deadline for deciding on making an accessibility standard after a Standards Development Committee recommends one.
The former Government took the extraordinary and highly problematic step in June 2016 of purporting to amend parts of the 2011 Integrated Accessibility Standards Regulation without first appointing a Standards Development Committee to review the relevant parts of that standard, a mandatory precondition under the AODA.
We therefore recommend:
- There is a strong need for the standards development process under the AODA to be substantially strengthened so that it produces stronger accessibility standards that will fulfil the AODA’s purposes.
- The Government should always hold an open competition for positions on a Standards Development Committee, including the position of chair of a Standards Development Committee.
- The Government should always meet all of its own deadlines set by the AODA, such as the deadlines for appointing Standards Development Committees 5-year mandatory reviews of existing AODA accessibility standards.
- The Government should ensure that the Standards Development Committees, appointed under the AODA to make recommendations on what an accessibility standard should include, can operate in a more open and accountable manner and are fully independent of Government. These should not be shrouded in secrecy and non-disclosure requirements. An independent Ontario Access Board should be created to conduct and oversee this work, that is fully independent of and arms-length from the Ontario Government, all within the existing terms of the AODA.
- The Ontario Government should never again try to get members of Standards Development Committees to sign non-disclosure agreements when inviting them to serve on an AODA Standards Development Committee.
- The Accessibility Directorate should provide effective dedicated staff support to the disability sector representatives on each Standards Development Committee.
- The Government should amend the Terms of Reference for Standards Development Committees, to allow them to make a recommendation on what an accessibility standard should include as long as that recommendation is supported by a simple majority of 50% of the voting members, at least half of which comprise representatives on the Committee from the disability sector
- Minutes kept by Standards Development Committees should be more detailed and informative. They should include minutes of any sub-committee and should have appended to them, as part of any public posting, any documents which are tabled with the Standards Development Committee to review. Minutes of meetings of a Standards Development Committee should accurately and comprehensively record the detailed issue-by-issue deliberations of that committee on accessibility standard proposals. They should be written in a fashion to make them fully understandable by members of the public who did not attend those meetings.
- The Government should widely publicize the opportunity for community groups to request a chance to present to a Standards Development Committee, when it is developing proposals for an accessibility standard. These opportunities should be available before the Standards Development Committee writes its draft report, since once that draft report is written, it is much harder to get the Committee to make substantial changes or additions to it.
- When it is developing proposals for the contents of an accessibility standard, the Government should strongly encourage a Standards Development Committee to extensively and publicly consult the public, including the disability community. As part of this, each Standards Development Committee should be encouraged to invite stakeholders from the disability community and regulated sectors to meet together with that Standards Development Committee, to informally discuss issues that a Standards Development Committee has found challenging to resolve.
- When the Government receives a Standards Development Committee’s draft or final report, it should immediately post it online as the AODA requires. It should not delay that public posting for weeks, months or even years, which has occurred in the past, contrary to the AODA.
- When a Standards Development Committee submits an initial or draft recommendation to the Government for the contents of a new accessibility standard, or for revisions to an existing accessibility standard, the Government should then convene face-to-face stakeholder meetings as one avenue for gathering input and should not restrict input to written submissions from the public. It is best when these meeting include stakeholders from all perspectives, rather than isolating the disability sector from obligated organizations.
- When a Standards Development Committee submits to the Government a final proposal for the contents of a new accessibility standard, the Government should obey s. 9(7) of the AODA by the minister, responsible for the AODA, deciding within 90 days what to enact from that proposal. The Government should immediately make that decision public.
- When a Standards Development Committee is developing a recommendation for the contents of an accessibility standard, the Accessibility Directorate should provide to that committee, and post on the internet for public input, a review of measures adopted in other jurisdictions to advance the goal of accessibility for persons with disabilities in the area that the new accessibility standard or the existing accessibility standard under review is to address.
- The Human Rights Commission should be far more extensively involved in the formal and informal work of each Standards Development Committee, including during review of public input and discussion and votes on clauses of proposed accessibility standards. This could include having a representative of the Ontario Human Rights Commission sit on each Standards Development Committee, as they work on proposals for the contents of accessibility standards, whether as a voting member or a non-voting member.
- The Government should encourage each Standards Development Committee, when developing proposals for the contents of an accessibility standard, to identify where changes are needed to provincial or municipal legislation, regulations or bylaws, to advance the goal of a fully accessible Ontario.
- Standards Development Committees should fully fulfil their core mandates under the AODA by each recommending the specific contents of a proposed accessibility standard, or revisions to an existing accessibility standard. The accessibility standard or revisions to a standard that they recommend should be designed to meet the AODA’s goal of achieving accessibility in Ontario by 2025. If they are to also recommend any other non-regulatory measures at all, such as non-legislative measures, this should be secondary to their core mandate, and not the core of their recommendations.
- The Government should never attempt or purport to amend an AODA accessibility standard without first fulfilling the mandatory AODA requirement to appoint a Standards Development Committee to consider revisions to that accessibility standard.
With less than two years left before we reach 2025, and with the AODA having been the law since 2005, the findings in the 2010 Charles Beer AODA Independent Review report and the 2014 Mayo Moran AODA Independent Review report remain valid and current. Many if not most in the public are not aware of their AODA obligations. Of those who are aware of the AODA, too many, including too many within the Ontario Government itself, are not aware that the Ontario Human Rights Code and, where applicable, the Canadian Charter of Rights and Freedoms impose disability accessibility obligations that are as high as or higher than those now imposed by AODA accessibility standards. Government efforts on public education on the AODA have not solved this problem.
The Ontario Government’s ineffective enforcement of the AODA has undermined efforts at public education on the AODA. This is because the message has been widespread that failing to comply with the AODA likely brings no adverse consequences for an obligated organization.
It worked against the AODA’s goals for the former Ontario Government to have publicly posted online that accessible customer service does not include providing ramps or automatic door openers.
There is a pressing need to include disability accessibility and inclusion in school curriculums, as the K-12 Education Standards Development Committee recommended. Moreover, professional training for a range of professions (such as design professionals e.g. architects and interior designers), needs to include sufficient training on disability accessibility.
This many years after the AODA was enacted, it would be wrong to contend that effective AODA enforcement must now await further efforts to educate the public and obligated organizations on their obligations under the AODA. It is incorrect and harmful to treat public awareness and education as some unending precondition to initiating effective AODA enforcement.
While it has made available some useful tools and resources, the Ontario Government has not provided obligated organizations all the tools that could help them comply with the AODA and has not effectively and sufficiently publicized the tools and resources it has provided.
The public, including obligated organizations, will pay far more attention to public education and awareness efforts on accessibility when they know there is effective AODA enforcement. The aim and core focus now should be raising action, not raising awareness.
We therefore recommend:
- The Government should widely advertise on the mass media, and not just on the internet, via email and on Twitter, about the availability of resources, training materials and guides it has already developed for organizations to comply with accessibility standards enacted under the AODA.
- Promptly after any new AODA accessibility standard is enacted or an existing accessibility standard is revised in the future, the Government should make available and widely publicize a free guide, policy guideline and other like resource materials for obligated organizations to comply with that accessibility standard’s accessibility requirements
- The Government should develop, make available and widely publicize a free web-authoring tool for creating accessible web pages, to comply with the Integrated Accessibility Standards Regulation’s information and communication website accessibility requirements.
- The Government should promptly implement a permanent program to ensure that students in the school system are educated in disability accessibility. For example:
- The Government should identify the Minister and public officials responsible for this program’s development and implementation.
- The Government should develop a sample curriculum which school boards could adopt if they wish, in lieu of developing their own curriculum.
- The Government should report to the public on this program’s implementation and effectiveness.
- The Government should promptly require the self-governing bodies for key professions (such as architects, interior designers, planners, other design professionals, lawyers, doctors, other health care professionals and social workers) to adopt, implement and require education on disability accessibility to qualify for those professions, and to require continuing professional development on this topic for those already qualified in those professions. Among other things, as part of this effort:
- For these key professions such as architects and planners, the Government should require that to qualify in future for a licence or other qualifications certificate, a specified amount of training in barrier free design must be completed, that goes beyond the insufficient requirements of the Ontario Building Code and AODA accessibility standards.
- A lead minister and public servants should be identified as responsible for this initiative.
- The Government should make publicly available resource materials to help those self-governing professional bodies develop the needed disability accessibility curriculum on accessibility needs of persons with disabilities.
- The Government should report to the public on this program’s monitoring, implementation, and effectiveness.
- Funding to any post-secondary faculty or self-governing professional organization for any of these professions should be made strictly conditional on compliance with this provincial policy and goal. Any college, university or other educational institution that provides training to any of those professions should be required to include accessibility training in their curriculum, especially if they are to receive any public funding.
- The Government should promptly consult with persons with disabilities, including the AODA Alliance, on the content of these public education materials. This should involve in-person discussions, and not merely an invitation to provide online feedback to the Government.
- The Government should not treat AODA public education or AODA awareness-raising as a substitute for or precondition for effective AODA enforcement. The Government’s aim and core focus now should be raising action, not raising awareness.
Chapter 7. The Government’s Failure to Effectively Ensure that Public Money Is Never Used to Create, Perpetuate or Exacerbate Disability Barriers
Public money should never be used to create or perpetuate accessibility barriers against people with disabilities. Public spending to which accessibility strings can and should always be attached includes, for example, infrastructure spending, spending on procurement of goods, services and facilities, transfer payments to the Ontario Government’s transfer partners, and spending on grants or loans such as those given to businesses or local authorities, or the broader public sector. It would be irresponsible for any public official or office to permit public money to be used to create or perpetuate disability accessibility barriers. It creates more future costs – the cost of removing barriers that should never have been created in the first place.
The Ontario Government does not have in place effective, monitored procedures for ensuring that public money is never used to create or perpetuate disability accessibility barriers. There is no real accountability or consequences for a public official who permits or directs the use of public money in a way that creates or perpetuates disability barriers. The public has no way to find out who made or advocated for the bad decisions that result in these publicly funded barriers.
The former Government did not take effective new action to address this concern after the 2014 Mayo Moran AODA Independent Review Report identified it as a concern. The David Onley Report amplified this concern. We have seen no corrective Government action since then.
Where the Government has put in place some policies regarding accessibility considerations when undertaking public procurement of goods, services or facilities, there are no publicly disclosed regimes for monitoring or enforcing these. There are no known consequences for contravening these policies or procedures.
As widely viewed online videos produced by the AODA Alliance in 2016, 2017 and 2018 reveal regarding the new Centennial College Culinary Arts Centre, the new Ryerson University Student Learning Centre, and new and recently-renovated Toronto area public transit stations, the former Ontario Government broke Premier Wynne’s pledge in the 2014 Ontario election that public money would not be used to create or perpetuate disability barriers.
There was no discernable progress in ensuring accessibility of publicly funded infrastructure from June 2014 to June 2016, when the Minister of Infrastructure was also the minister responsible for the AODA. The fact that both subjects were under one minister should have led to far better provincial efforts at ensuring that new infrastructure is fully accessible to people with disabilities.
An effective use of the Government’s lever of power over the use of public money could have a very dramatic impact on the removal and prevention of disability accessibility barriers, at little or no cost to the Ontario Government.
Infrastructure Ontario, part of the Ontario Government, has not shown itself to be effective at or truly committed to ensuring that provincially funded infrastructure projects are fully accessible to people with disabilities. In connection with public transit, the same problem persists with Metrolinx, the major provincial organization that oversees many transportation infrastructure projects. This is so despite any positive rhetoric on this subject emanating from those Government organizations.
We therefore recommend:
- The Ontario Government should adopt and broadly publicize a cross-government policy that public money may never be used to create or perpetuate accessibility barriers against people with disabilities.
- The Government should set standards for, implement, widely publicize, monitor, enforce and publicly report on a comprehensive strategy to ensure that public money is never used by anyone to create or perpetuate barriers against people with disabilities, for example, in capital or infrastructure spending, or through procurement of goods, services or facilities, or through transfer payments to the Ontario Government’s transfer partners, or through business development grants or loans, or research grants. A senior public official within the Ontario Public Service should be designated with lead responsibility and authority for this effort.
- The Government should make it a condition of research grants that it funds or to which it contributes that people with disabilities should, where feasible and appropriate, be included in research study as subjects.
- In any Government strategy to ensure that public money is not used to create or perpetuate accessibility barriers, it is not sufficient for the Government to make it a condition that a recipient of public money merely obey the AODA and AODA accessibility standards. It should require that recipients of public money comply with accessibility requirements in the Ontario Human Rights Code, and where applicable the Charter of Rights. It should require, among other things, that the recipient organization’s specific capital project or goods, services or facilities be fully disability accessible or require a commitment to remediate these to become fully accessible by timelines to be set out in the grant, loan or other terms of payment of public money.
- Any Government contract for infrastructure or for the procurement of goods, services or facilities should include a mandatory, enforceable term that requires the recipient of the public money to remediate any accessibility barriers that the recipient allows to be created or perpetuated at the recipient’s expense.
- The Government should make it a condition of transfer payments and capital or other infrastructure funding to municipalities, hospitals, school boards, public transit providers, colleges, universities, and transfer partners that these recipient organizations adopt comparable initiatives to ensure that their procurement and infrastructure spending, and any loans or grant programs that they operate, do not create, exacerbate or perpetuate barriers against people with disabilities. The Government should make public a resource guide to assist those transfer partners to know how to effectively implement this requirement.
- The Government should promptly establish a process for monitoring and enforcing the recommended comprehensive strategy to ensure that public money is not used to create, perpetuate or exacerbate accessibility barriers. It should not be left to each ministry to do as little or as much as it wishes to implement Government policy and procedures on this topic, and to have to re-invent the wheel in this area.
- The Government should widely and prominently publicize as soon as possible to any organization that seeks Ontario infrastructure or procurement funds, or any Government funded or subsidies, loans or grants, that they must prove in their applications that they will ensure that public money isn’t used to create, perpetuate or exacerbate barriers against persons with disabilities.
- The Government should establish and widely publicize an avenue for the public to report to the Government on situations where public money is used to create, perpetuate or exacerbate disability accessibility barriers.
- The Provincial Auditor should audit the Government to ensure compliance with recommendations on ensuring that public money is not used to create, perpetuate or exacerbate disability accessibility barriers. As one example of this, the Provincial Auditor should audit the accessibility practices at Infrastructure Ontario, and provide a report to the public, including on any recommended reforms to how that Government organization approaches the planning for accessibility in infrastructure projects.
- It should be a mandatory Government policy that when an accessibility consultant is retained on an infrastructure project to which Ontario public funds are contributed, whether that consultant is working for a Government office or a contractor that is hired using public money the accessibility consultant should report directly to the Ontario Government, with the consultant’s advice being made promptly public.
- When a public infrastructure project is undertaken involving any Ontario Government funds, the Project Specific Output Specifications (on disability accessibility PSOS) for the project should be made public well before the competition process, and subject to public input. These should not be kept secret until after the bid competition is completed.
- When a government-funded infrastructure project is undertaken, successive plans in progress for the project should be made public on a real time basis, for crowd-sourced input on accessibility.
- Where a public official or private contractor project team member, paid out of the public purse, vetoes or decides against an accessibility measure that an accessibility consultant recommends, the identity of that public official or private contractor should be recorded and made public, when successive plans for the project are made public, with an explanation of what the accessibility feature is that was excluded from the project on the decision or advice of that public official or private contractor.
The Ontario Government has a special obligation to ensure that Ontario legislation and regulations are barrier-free for people with disabilities. These laws should not create or permit the creation of disability accessibility barriers.
The former Ontario Government promised to review all Ontario laws for accessibility issues in the 2007 election. It repeated that pledge in the 2011 and 2014 elections.
The former Government delayed even starting this review until 2011. That effort was further delayed for another two years after that.
Sixteen years after the initial pledge, the Ontario Government has only reviewed a mere 51 of Ontario’s 750 statutes and no Ontario regulations, for accessibility problems. Of the 51 statutes reviewed, the former Ontario Government only amended a mere 11 of them. The former Government rejected further NDP amendments. The former Government did not correct a number of barriers in the 51 statutes it reviewed.
This issue was shuffled from ministry to ministry over the past 11-12 years, and through a revolving door series of deputy ministers.
After some amendments were made to 11 Ontario statutes in spring 2016, the former Ontario Government in effect did nothing further on this review for its last two years in power. Since taking power in June 2018, the current Ontario Government has not announced any action or plans on this issue.
Between 1982 and 1985, the Ontario Government reviewed all laws for compliance with the Canadian Charter of Rights and Freedoms, including its equality guarantee in section 15.
We therefore recommend that:
- The Government should immediately announce a detailed plan for completing a comprehensive review of all Ontario statutes and regulations for accessibility problems, and for ensuring that new legislation and regulations will be screened in advance to ensure that they do not authorize, permit, create or perpetuate barriers against people with disabilities.
- The Government should complete a review of all legislation for accessibility barriers by June 30, 2025 and of all regulations by the end of 2026. The Government should introduce into the Legislature, with the intent of passing it, an omnibus bill or bills to amend any legislation as needed a result of this review, along timelines that the Government should announce by the end of 2025.
- Cabinet should amend any regulations that the government deems necessary as a result of the accessibility review, by the end of 2027.
- The Government should appoint the Attorney General of Ontario to lead this review of all Ontario laws for accessibility problems, in coordination with the Secretary of Cabinet.
- The Government should annually report to the public on its progress toward meeting the deadlines for reviewing all legislation and regulations for accessibility barriers. These reports should give specifics on what the Government has done and plans to do, whether by legislative amendments or other actions, to address accessibility barriers it has discovered in this review.
- When the Government identifies a potential barrier in an Ontario statute or regulation, it should consult with the public, including with people with disabilities, on options for addressing the barrier, before deciding on the contents of possible amendments to those laws.
Chapter 9 Making Ontario and Municipal Elections Accessible to Voters and Candidates with Disabilities
Voters and candidates with disabilities in Ontario provincial and municipal elections continue to face too many disability barriers. This is unjustified and unacceptable.
The same disability barriers can present themselves in provincial and municipal elections. It is inappropriate to have to reinvent the accessibility wheel in the election context at both the provincial and municipal levels, and then again, from one municipality to the next. This slows progress on accessibility while wastefully costing the taxpayer more.
Elections Ontario has not solved this problem at the provincial level, even though this issue has been within its mandate for many years.
A comprehensive new strategy is needed to ensure elections accessibility for voters and candidates with disabilities, which can be expected to require legislative and non-legislative reforms.
We therefore recommend:
- The Government should appoint an independent person to conduct a three month independent review of barriers facing voters and candidates with disabilities in provincial and municipal elections, including both in the campaign process and the voting process. This Review, should, among other things, gather information on the use of telephone and internet voting in municipal elections in Ontario. This Review should hold an open, accessible and province-wide public consultation, and report to the public within six months of its appointment. Its report should be made public immediately on its being submitted to the Government.
- Within six months after the report of the Disability Elections Accessibility Independent Review, the Government should introduce into the Legislature omnibus elections accessibility reforms for both municipal and provincial elections, to remove and prevent barriers impeding voters and candidates with disabilities in the voting process, and in participating in election campaigns, to ensure that:
- All voters with disabilities can independently mark their own ballot in private and verify their choice. This bill should, among other things, open up the option of telephone and/or internet voting in Ontario elections and by-elections.
- All voters with disabilities have full physical accessibility to all polling stations and all public areas in polling stations, including sharing at the provincial and municipal levels information on accessible polling station venues, so each does not have to reinvent the same accessibility wheel.
- Ensure that election campaign information is immediately and readily available in accessible formats, and that campaign websites are designed to be fully accessible.
- Ensure that all-candidates debates are accessible.
As noted earlier, the Ontario Government and Ontario Public Service has not led and is now not leading by a good example, in the area of accessibility. That is not to say it has done nothing on accessibility. Rather it has done far too little and has not lived up to its stated intention to lead Ontario by example.
The former Government did not keep Premier Wynne’s commitment to instruct all ministers on their accessibility commitments. This contributed to slower progress on accessibility.
The fact that the current Ontario Government has not made its Mandate Letters public makes it impossible for the public, including people with disabilities, to know what the Premier has instructed his ministers to do on accessibility for people with disabilities.
The transfer from 2013 to 2016 of the Accessibility Directorate of Ontario to the Ministry of Economic Development was well-intentioned and held great promise. However, it turned out to be a failure.
There is a pressing need for the Ontario Government to re-engineer the way the Government delivers and oversees the delivery of accessibility within the Ontario Public Service, as an employer and service-provider.
The Ontario Government’s efforts at becoming an accessible employer and service-provider were slowed and hampered by virtue of the fact that the Government has no Chief Accessibility Officer, at the level of a Deputy Minister or Associate Deputy Minister, with lead responsibility and authority for ensuring that the Ontario Public Service becomes accessible as an employer and service-provider.
The Ontario Government missed an extraordinary opportunity to achieve advances on accessibility in the tourism and hospitality sector, when Ontario hosted the 2015 Toronto Pan/Parapan American Games. Despite our repeated efforts over two years, the former Ontario Government did not undertake a strategy to use the Games to leverage an increase of accessibility in the tourism and hospitality sector, such as in hotels, restaurants and tourism sites.
We therefore recommend:
- The Government should designate a single minister to be responsible for ensuring that the Ontario Public Service becomes a fully accessible employer and service provider, and to ensure that the Government keeps all its accessibility commitments and duties, other than those for which the Minister for Accessibility and Seniors is responsible.
- The Government should establish a full-time Deputy Minister or Associate Deputy Minister responsible for ensuring the accessibility of the Ontario Government’s services, facilities and workplaces, to be called the Chief Accessibility Officer.
- The Premier should include in the mandate letter that his office issues to each cabinet minister, specific directions to fulfil the Government’s commitments and duties on disability accessibility which fall in whole or in part in that ministry’s purview. The Premier’s instructions to cabinet ministers on accessibility should be made public.
- The Premier’s office should direct the Secretary of Cabinet to ensure that the Government’s disability accessibility commitments and duties are kept and direct the Secretary to Cabinet to take all needed steps to implement them.
- The Government should announce and implement a plan to re-engineer how the Ontario Public Service discharges its duty to ensure that its own services, facilities and workplaces are fully accessible.
- The Government should ensure that there is an Accessibility Lead position in each ministry and should ensure that it is or becomes a full time position, which reports directly to the deputy minister of that minister, with an option for a dual report as well to the ministry’s Chief Administrative Officer.
- The Government should promptly implement and widely publicize within the Ontario Public Service a comprehensive permanent periodic program for auditing and monitoring its workplaces and public services and facilities for disability accessibility and barriers. This program should include, among other things, on-site audits and inspections, and not merely paper trail audits. The results of this monitoring should annually be made public.
- The Government should promptly implement a constructive program for ensuring accountability of public servants in the Ontario Public Service for efforts on disability accessibility. Among other things, the Ontario Public Service should require that every employee include in his or her annual performance review, performance goals on disability accessibility within the scope of their duties. Performance on this criterion should be assessed for performance, pay and promotion decisions.
- The Government should not solely or predominantly rely on online programs to train the Ontario Public Service on accessibility. It should implement live, interactive programming where possible that involves face-to-face interaction with persons with disabilities.
- The Minister responsible for International Trade should incorporate disability accessibility as a prominent part of Ontario’s international trade strategy for economic development and innovation.
- The Minister who is responsible for research and innovation should ensure disability accessibility is a key focus of research and innovation programs and projects that the Government operates or finances.
Chapter 11 The Unmet Need for a Strong and Effective Ontario Strategy to Substantially Increase the Employment of Ontarians with Disabilities
People with disabilities continue to face unfair and high rates of unemployment. This inflicts serious hardships on people with disabilities and on society. Society significantly benefits by substantially increasing the employment of people with disabilities
The Ontario Government is a significant cause of the disability unemployment problem. Ontario does not now have in place sufficient measures to combat this. At the present rate, employment in Ontario will not achieve full accessibility for people with disabilities by 2025. A stronger AODA Employment Accessibility Standard would help. However, companion Government strategies on increased employment for people with disabilities are also needed. Short term tax cuts or financial incentives are not long-term solutions.
Barriers that students with disabilities face in Ontario’s education system contribute to the unemployment plight facing too many people with disabilities. A good education is needed to get a good job. As such, delays in creating a strong and effective AODA Education Accessibility Standard contribute to the ongoing unemployment plight facing people with disabilities.
If Ontario had in place a combination of a stronger Employment Accessibility Standard, a strong Education Accessibility Standard, a stronger Transportation Accessibility Standard, a strong Built Environment Accessibility Standard, and a strong provincial disability employment strategy, the workplaces of 5 to 6 years from now can and should be fully accessible to people with disabilities.
It was unjustifiable for the former Ontario Government to take over four years to develop a weak disability employment strategy. There have already been ample studies, reports and advisory councils on employment for people with disabilities. What is needed now is action, not more delay for extensive study and discussions.
We therefore recommend:
- The Ontario Government should designate a specific minister and deputy minister with lead responsibility for ensuring that all the needed measures are taken to ensure substantially increased employment opportunities for people with disabilities.
- The Ontario Government should, within two months, make public a list of options for a strengthened disability employment strategy, drawn from the Government’s own past and present programs, and from the programs and ideas that others have accumulated, e.g. those readily discoverable on the internet. The Government should promptly consult the public, including employers and people with disabilities on those options, and on any additional options that the public brings forward. Within three months of releasing that list of options, the Government should announce a new and strengthened Ontario disability employment strategy, supplementing the existing Access Talent strategy, to substantially increase employment opportunities for people with disabilities. As part of this strategy:
- The Government should not treat “raising awareness” among employers about the benefits of employment for people with disabilities as its core strategy for substantially increasing employment opportunities for people with disabilities.
- The Government should become a good example through increased employment of people with disabilities in the Ontario Public Service (OPS) and the broader public sector and procuring services, providing grants or financing to organizations with a strong orientation toward supporting employment of people with disabilities
- The Government should eliminate Government-created barriers to increased employment of people with disabilities
- The Government should promptly implement a pro-active strategy to ensure that all students with disabilities in K-12 education secure an experiential learning opportunity, to work towards getting a good job reference to assist them in securing their first paid job.