Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
With a Federal Election Impending, AODA Alliance Asks Party Leaders for Election Commitments on Accessibility for People with Disabilities in Canada
August 4, 2021
It seems very likely that there will be a federal election this fall.
Once again, the AODA Alliance swings into action. On August 3, 2021, we wrote the leaders of the major federal parties. We asked them for election pledges concerning accessibility for over 6 million people with disabilities in Canada. We set that letter out below.
We will let you know what responses we receive. We will be active over the next weeks and months on social media and elsewhere, to raise these issues leading up to the federal election.
We don’t support or oppose any candidate or party. We try to get the strongest commitments on accessibility from as many candidates and parties as we can.
We encourage you to write the federal party leaders. Ask them to make the election commitments we seek. Our letter to them, set out below, includes their email addresses. Also,
Please let the media know that this federal election has important disability issues that the media should cover. Accessibility for people with disabilities is just one of those important issues.
To get background on this issue, watch two captioned videos by AODA Alliance Chair David Lepofsky. The first video explains what the Accessible Canada Act needed to include. The second video explains the bumpy road that the Accessible Canada Act travelled through Canada’s Parliament. To learn about our efforts over the past six years to get a strong and effective Accessible Canada Act enacted and implemented, visit the AODA Alliance website’s Canada page.
August 3, 2021 Letter from the AODA Alliance to the Major Federal Party Leaders
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue,
Toronto, Ontario M4G 3E8
United for a Barrier-Free Society for All People with Disabilities
August 3, 2021
The Right Honourable Justin Trudeau
Via email: firstname.lastname@example.org
Office of the Prime Minister of Canada
80 Wellington Street
Ottawa, ON, K1A 0A2
The Hon. Erin O’Toole, Leader of the Loyal Opposition and the Conservative Party
Leader of the Conservative Party; MP, Regina-Qu’Appelle
Via email: Erin.OToole@parl.gc.ca
Leader of the Conservative Party
House of Commons
Ottawa, ON, K1A 0A6
The Hon. Jagmeet Singh, Leader of the NDP
Via email: Jagmeet.Singh@parl.gc.ca
300 – 279 Laurier West
Ottawa, ON, K1P 5J9
Annamie Paul, Leader of the Green Party of Canada
Via email: email@example.com
582 Parliament Street
Toronto, ON, M4X 1P8
The Hon. Yves-François Blanchet, Leader of the Bloc Québécois
Via email: Yves-Francois.Blanchet@parl.gc.ca
House of Commons
Ottawa, ON, K1A 0A6
The Hon. Maxime Bernier, Leader of the People’s Party of Canada
Via email: firstname.lastname@example.org
House of Commons
Ottawa, ON, K1A 0A6 Canada
Dear Federal Party Leaders,
Re: Seeking Your Commitments to Ensure the Effective Implementation of the Accessible Canada Act (ACA)
It is widely reported that a federal election is fast approaching. We seek commitments from each federal political party regarding Canada’s new national accessibility legislation, the Accessible Canada Act (ACA).
It is good that Parliament passed the ACA over two years ago. That is only the first step on the road to making Canada accessible to people with disabilities in Canada by 2040, the deadline that the ACA requires.
In this letter, we explain what we seek, who we are, and why over six million people with disabilities in Canada need these strong election commitments. Founded in 2005, the AODA Alliance is a strictly non-partisan community coalition that advocates for accessibility for people with disabilities in Ontario and at the federal level. We were one of the disability organizations that appeared before the House of Commons and Senate in 2018-2019 to call for amendments to strengthen Bill C-81, the bill that became the ACA. During debates in Parliament over this bill, several MPs and Senators relied on our submissions on the need to strengthen that bill.
In the 2019 federal election, short months after the ACA was passed and proclaimed in force, the federal Liberal party committed “to the timely and ambitious implementation of the Accessible Canada Act so that it can fully benefit all Canadians.” It also pledged to use a disability lens for all Government decisions. You can read a non-partisan comparison of the commitments of the federal parties in this area in the last election by visiting: https://www.aodaalliance.org/whats-new/non-partisan-issue-by-issue-comparison-of-the-positions-of-the-6-major-federal-political-parties-on-achieving-accessibility-for-over-6-million-people-with-disabilities-in-canada/
The Accessible Canada Act requires Canada to become accessible to people with disabilities by 2040, at least within federal jurisdiction. In the two years since the Accessible Canada Act was passed, there has been some progress towards its implementation. However, we have to date not observed any appreciable improvement in accessibility for people with disabilities. The Federal Government has still not even hired the national Accessibility Commissioner or the Chief Accessibility Officer to lead its implementation. No accessibility standards have yet been enacted to require specific action to remove and prevent disability barriers.
The ACA requires the Government of Canada (at section 117(1.1) of the ACA), the CTA (at section 63(1.1) of the ACA), and the CRTC (sections 45(1.1) and 54(1.1) of the ACA) to enact at least one regulation in the first two years after the ACA comes into force, which was July 11, 2021. The AODA Alliance has been informed by ARCH Disability Law Centre that although the CRTC has passed a regulation (though not one that sets any detailed accessibility standards), the Government of Canada and the CTA have not, as of the date of this letter, enacted any regulations that have been published in the Canada Gazette.
In summary we ask your Party to make specific commitments to ensure that the implementation and enforcement of the ACA is swift, strong and effective, including, e.g. making needed accessibility standard regulations within four years, effectively enforcing the law, establishing a single unified process for complaints under the ACA, ensuring that nothing is done under the ACA that cuts back on the rights of people with disabilities, and ensuring that public money is not used to create or perpetuate barriers against people with disabilities.
1. Enforceable Accessibility Standard Regulations Should Be Enacted Within Four Years of the ACA’s Enactment
The ACA’s centerpiece is the enactment and enforcement of accessibility regulations. These regulations will specify what an organization must do and by when, in order to become accessible. The ACA lets the Federal Cabinet, the Canadian Radio, Television and Telecommunication Commission (CRTC) and the Canadian Transportation Agency (CTA) enact these regulations. However, with one exception, it does not require them to ever be enacted, and if they are not enacted, the ACA will fail.
- Will you enact or amend legislation to require the Federal Government, the CTA and the CRTC to enact regulations to set accessibility standards in all the areas that the ACA covers within four years of the ACA’s enactment? If not, will you commit that those regulations will be enacted under the ACA within four years of the ACA’s enactment?
2. The ACA Should Be Effectively Enforced
We have learned from extensive experience with provincial accessibility legislation that the ACA will be ineffective unless it is effectively enforced.
- Will your party commit to ensure that the ACA is effectively and vigourously enforced?
3. Federal Public Money Should Never Be used to Create or Perpetuate Barriers
The ACA does not require the Federal Government to ensure that federal money is never used by any recipient of those funds to create or perpetuate disability barriers. For example, the ACA doesn’t require the Federal Government to attach accessibility strings when it gives money to a municipality, college, university, local transit authority or other organization to build new infrastructure. Those recipients of federal money are left free to design and build new infrastructure without ensuring that it is fully accessible to people with disabilities. Also, the bill doesn’t require the Federal Government to attach any federal accessibility strings when it gives business development loans or grants to private businesses.
It is helpful that the ACA lets the Federal Government impose accessibility requirements when it buys goods or services. However, it doesn’t require the Federal Government to ever do so.
This allows for a wasteful and harmful use of public money. The Senate’s Standing Committee on Social Affairs that held hearings on Bill C-81 in the spring of 2019 made this important observation in its May 7, 2019 report to the Senate:
“Your committee heard concerns that despite this legislation, federal funding may continue to be spent on projects that do not always meet accessibility standards. Therefore, we encourage the federal government to ensure that when public money is spent or transferred, the funding should never be used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided.”
Since then, the Federal Government continues to spend money without ensuring that the infrastructure, goods, services and facilities on which it is spent will be accessible to people with disabilities.
- Will your party ensure by legislation, and if not, then by strong monitored public policy, that no one will use public money distributed by the Government of Canada in a manner that creates or perpetuates barriers, including e.g. payments by the Government of Canada to any person or entity to purchase or rent any goods, services or facilities, or to contribute to the construction, expansion or renovation of any infrastructure or other capital project, or to provide a business development loan or grant to any person or entity?
4. The ACA Should Never Reduce the Rights of People with Disabilities
The ACA includes only limited and insufficient protection to ensure that nothing under the ACA reduces the rights of people with disabilities. The ACA provides:
“121.1 For greater certainty, nothing in any provision of this Act or the regulations limits a regulated entity’s duty to accommodate under any other Act of Parliament.”
- Will your party amend the ACA to provide that if a provision of the ACA or of a regulation enacted under it conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility shall prevail, and that nothing in the ACA or in any regulations enacted under it or in any actions taken under it shall reduce any rights which people with disabilities otherwise enjoy under law?
A discriminatory provision was included in the Accessible Canada Act. It is helpful that it was softened in the Senate, after extensive advocacy efforts by people with disabilities. However, it should be repealed altogether.
Making this worse, section 172(3) of the ACA unfairly takes away important rights from people with disabilities in a discriminatory way. It bars the CTA from awarding justly-deserved monetary compensation to a passenger with a disability, even if the Agency finds that an airline or other federally-regulated transportation-provider has imposed an undue barrier against them, so long as a federal transportation accessibility regulation wrongly states that the airline did not have to provide the passenger with that accommodation. Section 172 of the ACA provides:
“Inquiry — barriers to mobility
172 (1) The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue barrier to the mobility of persons with disabilities.
(2) On determining that there is an undue barrier to the mobility of persons with disabilities, the Agency may do one or more of the following:
(a) require the taking of appropriate corrective measures;
(b) direct that compensation be paid for any expense incurred by a person with a disability arising out of the barrier, including for any costs of obtaining alternative goods, services or accommodation;
(c) direct that compensation be paid for any wages that a person with a disability was deprived of as a result of the barrier;
(d) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, for any pain and suffering experienced by a person with a disability arising out of the barrier;
(e) direct that compensation be paid up to a maximum amount of — subject to the annual adjustments made under section 172.2 — $20,000, if the Agency determines that the barrier is the result of a wilful or reckless practice.
Compliance with regulations
(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.”
This unfairly protects huge, well-funded airlines and railways from having to pay monetary compensation in situations where they should have to pay up to victims of their discriminatory practices.
- Will your party repeal the offending portion of section 172(3) of the ACA that reads “but if it does so, it may only require the taking of appropriate corrective measures.” and replace them with words such as: “and grant a remedy in accordance with subsection 2.”?
5. The ACA’s Implementation and Enforcement Should be Consolidated in One Federal Agency, Not Splintered Among Several of Them
The 105-page ACA is far too complicated and confusing. It is hard for people with disabilities and obligated organizations to navigate it. This is because the bill splinters the overlapping powers to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the CTA, and the CRTC.
This harmfully makes the ACA’s implementation and enforcement less effective, more confusing, more complicated and more costly. It makes it take longer to get accessibility regulations enacted. It risks weak, contradictory or unnecessarily complex regulations.
This splintering makes it much harder for people with disabilities to navigate the system, to find out what rights they have, and to get violations fixed. People with disabilities are burdened to learn to navigate as many as three or four different sets of accessibility rules, enforcement agencies, procedures, forms and time lines for presenting an accessibility complaint. It also burdens people with disabilities with multiple public consultations on the same topic.
This splintering only helps existing federal bureaucracies that want more power, and any large obligated organizations that want to dodge taking action on accessibility. Those organizations will relish exploiting the bill’s confusing complexity to delay and impede its implementation.
It is wrong for the ACA to give near-exclusive powers over accessibility to federally-regulated transportation organizations (like airlines) to the CTA, and near-exclusive powers over broadcasters and telecommunication companies (like Bell Canada and Rogers Communications) to the CRTC. The CTA and CRTC have had powers in this area for years. Their record on accessibility is not good.
- Will your party assign all responsibility for the ACA’s enforcement to the Accessibility Commissioner and all responsibility for enacting regulations under the ACA to the Federal Cabinet? If not, then at a minimum, would your party require by legislation or policy that the CRTC, CTA and the Federal Public Sector Labour Relations and Employment Board must, within six months, establish policies, practices and procedures for expeditiously receiving, investigating, considering and deciding upon complaints under this Act which are the same as or as reasonably close as possible to, those set out for the Accessibility Commissioner?
6. No Federal Laws Should Ever Create or Permit Disability Barriers
It is important to ensure that no federal laws impose or permit the creation of barriers against people with disabilities.
- Will your Party review all federal laws to identify any which require or permit any barriers against people with disabilities, and will your party amend Section 2 of the ACA (definition of “barrier”) to add the words “a law”, so that it will read:
“barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a law, a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.”
7. Federal Elections Should Be Made Accessible to Voters with Disabilities
Voters with disabilities continue to face disability barriers in federal elections, including, for example, barriers that can impede them from voting independently and in private, and verifying their choice.
- Will your party pass legislation or regulations and adopt policies needed to ensure that federal elections become barrier-free for voters and candidates with disabilities?
8. Unfair Power to Exempt Organizations from Some ACA Requirements Should be Eliminated or Reduced
The ACA has too many loopholes. For example, it unfairly lets the Federal Government exempt itself from some of its duties under the ACA. The Government should not ever be able to exempt itself.
- Will your Party eliminate or reduce the power to exempt organizations from some of the requirements that the ACA imposes? Such as eliminating the power to exempt the Government of Canada, or a federal department or agency? If not, will your party commit not to grant any exemptions from the ACA?
9. Federally-Controlled Courts and Tribunals Should be Made Disability-Accessible
People with disabilities continue to face barriers when they try to take part in proceedings in courts for which the Federal Government is responsible.
- Will your party develop and implement a plan to ensure that all federally-operated courts (e.g., the Supreme Court of Canada and Federal Courts), and federally operated regulatory tribunals (like the CRTC and CTA) become accessible to participants with hearing disabilities?
10. Other Measures Needed to Strengthen the ACA
In 2018, federal opposition parties proposed a number of amendments to strengthen Bill C-81 in the House of Commons. The Government defeated most if not all of them.
- Would your party pass the amendments to the ACA which the opposition proposed in the fall of 2018 in the House of Commons, which the Government had defeated, and which would strengthen the ACA?
11. Ensure the National Building Code Fulfills The Rights of People with Disabilities Under the Charter of Rights, the Canada Human Rights Act and the Convention on the Rights of Persons with Disabilities
The National Building Code as well as provincial building codes fail to ensure that buildings they cover are accessible and embody universal design. These building codes fall short of the accessibility requirements in the Charter of Rights, applicable human rights codes and the Convention on the Rights of Persons with Disabilities.
Current inter-governmental Efforts to harmonize federal and provincial building codes threaten to further dilute these inadequate laws, to the detriment of people with disabilities.
- Will your party commit to ensure that the National Building Code meets the accessibility requirements in the Charter of Rights, the Canada Human Rights Act and the Convention on the Rights of Persons with Disabilities? Will your party commit that any efforts to harmonize federal and provincial building codes will never reduce or dilute accessibility protections for people with disabilities?
We would appreciate a response by email in MS Word format. We will make responses public. We would be pleased to answer any questions you have.
David Lepofsky CM, O. Ont
Chair, Accessibility for Ontarians with Disabilities Act Alliance