OHRC submission regarding Accessibility for Ontarians with Disabilities Act (AODA) 2013-2014 Legislative review

Ontario Human Rights Commission Submission Regarding
Accessibility for Ontarians with Disabilities Act (AODA)
2013-14 Legislative Review

June 2014

The Ontario Human Rights Commission (OHRC) is making this submission to the second independent legislative review of the Accessibility for Ontarians with Disabilities Act (AODA). In accordance with its mandate under section 29 (c) of the Ontario Human Rights Code, the OHRC speaks out and makes recommendations designed to prevent and eliminate discriminatory practices including barriers faced by persons with disabilities. Disability is consistently the most frequent ground of discrimination cited in over 50% of applications to the Human Rights Tribunal of Ontario.[1]

The purpose of the legislative review is to examine Ontario’s progress towards achieving the AODA’s goal of an accessible Ontario by 2025. While much has been accomplished with the coming into force of new regulated standards under the AODA, there is still a long way to go to make Ontario a barrier free reality for people with disabilities.

Legislative harmonization

In its 2009 submission on the first AODA legislative review, the OHRC called for better harmonization between the AODA and the Ontario Human Rights Code as well as other laws including the Ontario Building Code Regulation.[2] The first AODA review report released in 2010,[3] and the government’s response,[4] both recognize the need to look at options for harmonizing legislation.

Harmonization means that accessibility standards or regulations adopted under the AODA, the Building Code Regulation, or other laws, are designed and interpreted consistently with regard to legal obligations under the Human Rights Code, which generally has primacy over other Ontario laws. It means that everyone understands the complementary relationship between these laws.

The AODA and the Building Code regulations set minimum accessibility standards to prevent barriers up front for as many people as possible. Beyond these requirements, all organizations, regardless of class or size or timeline prescribed under AODA regulations, have a concurrent, immediate and ongoing duty under the Human Rights Code to respond to individual accommodation requests and to explore and provide solutions as soon as possible, short of undue hardship.

The OHRC recommends that the concurrent duty to accommodate individual needs short of undue hardship under the Human Rights Code be explicitly recognized under AODA regulations and in related guides, other education resources and initiatives.

Some progress has been made in response to the OHRC’s call for better harmonization. Section 1(2) of the AODA’s 2011 Integrated Accessibility Standards Regulation (IASR) states that, “The requirements in the standards set out in this Regulation are not a replacement or a substitution for the requirements established under the Human Rights Code nor do the standards limit any obligations owed to people with disabilities under any other legislation.”[5]

The OHRC’s 2011 recommendation to broaden IASR training requirements to include related obligations under the Human Rights Code was also adopted under section 7 of the final IASR.[6]

Subsequently the OHRC partnered with the Accessibility Directorate of Ontario and Curriculum Services Canada to develop the e-learning module, Working Together: The Code and the AODA, launched in 2013.[7] The OHRC and the Accessibility Directorate have also delivered a number of joint presentations to help organizations such as the Human Resources Professionals Association understand their obligations under both laws.

The OHRC recommends that section 1(2) of the IASR on the primacy of the Code and section 7 of the IASR requiring training on the Code as it pertains to persons with disabilities also apply to organizations and respective individuals that have obligations under the Accessibility Standards for Customer Service Regulation.

As stated in a past submission,[8] the OHRC recommends certain general requirements under the IASR including procurement, barrier identification and removal planning, reporting, and compliance penalties apply to organizations with obligations under the accessibility provisions of the Building Code Regulation.

As stated in past submissions,[9] the OHRC also recommends that AODA regulations should adopt the following accessibility-related human rights principles to help guide overall interpretation of the standards:

• Design universally / inclusively
• Create no new barriers
• Identify and remove existing barriers
• Favour integration over segregation
• Provide interim or next best measures where ideal or full accommodation is not (yet) feasible
• Achieve results progressively to the maximum of available resources, and at the same time
• Consider and accommodate individual needs short of undue hardship by exploring solutions through a cooperative process that maximizes confidentiality and respect.

Strengthen standards

While a number of the standards are prescriptive and say what needs to be done by when, many have vague or weak requirements.

Some standards only apply “upon request” rather than in advance. Feedback processes under the Accessibility Standards for Customer Service Regulation, and emergency management plans and other documents under the IASR, need only be made available in conversion-ready electronic format upon request. The IASR requirement for employers to address accommodation requests at the recruitment stage is staggered to take effect by class of organization up to 2017.

Minimal “upon request” requirements, while consistent with the Human Rights Code, add nothing new in terms of advancing standards, and in some cases may interfere with the legal duty to accommodate individual requests as soon as possible short of undue hardship.

Requirements for accessible procurement, kiosks and intranet sites are weaker or do not apply at all for private sector organizations. Organizations with fewer than 50 employees have no accessible website requirements. Volunteers and unpaid workers are exempt from the employment provisions even though they are covered under the Human Rights Code.

There are no requirements for accessible taxis. Municipalities need only consult on what proportion of taxis should be accessible for their community and report on progress.

Live captioning and pre-recorded audio description requirements only apply to government. And there are no standards at all for closed captioning in movie theatres despite successful litigation of this issue at the Human Rights Tribunal of Ontario.[10]

Other standards don’t harmonize well within a regulation. Under the Building Code Regulation, extensive renovations in one area of a building do not necessarily trigger accessibility requirements in that area or another area if, for example, there is no connecting barrier-free path of travel. Similarly, a parking lot can be developed without meeting accessibility standards if there is no barrier-free path connecting it to a building with a barrier-free entrance. This goes against the principle of create no new barriers.[11]

Some standards have “where not practicable” or “feasible” exemptions such as for accessible parking where meters, curbs and landscaping are in the way, and for heritage, cultural and natural elements.

The OHRC recommends that guidelines and other education material and initiatives that interpret the exemptions and other limitations under the AODA or Building Code regulations, also explain the human rights principles of inclusive design and no new barriers along with the duty to accommodate short of undue hardship under the Human Rights Code.

Remove existing barriers

Section 6(6) of the AODA states that standards established by regulation shall include measures for removing existing barriers, not just preventing new ones.[12]

The weakest aspect of the regulated standards to date is that very few require removal of existing barriers. The standards mostly focus on preventing new barriers going forward, which is necessary, but also inadequate to make Ontario accessible by 2025.

For example: as of July 2011, transit providers can no longer purchase inaccessible transit vehicles. However, there is no requirement to retrofit or replace existing vehicles that are inaccessible. Accessibility will happen only through attrition. While vehicles will eventually need replacing, new ones purchased prior to July 2011 could conceivably be in use past 2025.

Similarly, the accessibility standards of the Building Code Regulation and other provisions under the IASR such as for outdoor recreational trails, exterior paths, parking and play spaces, only apply to new construction and redevelopment. There are no requirements to retrofit buildings or outdoor space elements like pathways and pedestrian crossing signals, etc. These could remain inaccessible for many years without need of major reconstruction.

The OHRC has repeatedly raised concern about the need to address existing barriers. The OHRC’s 2011 recommendation to at least include barrier identification and planning requirements was adopted under section 4(1)(a) of the final IASR.[13] This provision requires the Government of Ontario, the Legislative Assembly, designated public sector organizations and large organizations to establish, implement, maintain and document a multi-year accessibility plan, which outlines the organization’s strategy to prevent and remove barriers and meet its requirements under this Regulation. This will help document where barriers exist and hopefully will encourage their removal. Unfortunately it still does not require the actual removal of existing barriers.

The OHRC recommends that the barrier identification and removal planning requirements of section 4(1)(a) of the IASR also apply to smaller private organizations, and apply to organizations with obligations under the Accessibility Standards for Customer Service Regulation.

As stated in past submissions, the OHRC also recommends that standards include more “retrofit” requirements to remove existing barriers.

For example: in its 2013 submission on proposed changes to the barrier-free requirements of the Building Code Regulation,[14] the OHRC suggested retrofit requirements for medium to large size restaurant chains to phase in at least one universal accessible washroom on a barrier-free path of travel to an accessible main entrance.

There are other ways barrier removal could be progressively realized over time. Priorities and fixed timelines for barrier removal could be set at an organizational level based on the results of the barrier identification and planning requirement under section 4(1)(a) of the IASR. Select priorities for barrier removal could also be set directly and more globally through specific standards with input from people with disabilities.

Barrier removal requirements could be balanced with a temporary undue hardship exemption if an organization can demonstrate prohibitive cost or health and safety factors. In the interim, next best measures might still be expected.

While an undue hardship exemption might be appropriate for barrier removal requirements, there should be no timeline or other exemptions that would permit the creation of new barriers. For example: as of July 2011, the IASR no longer permits the purchase of inaccessible transit vehicles. Similarly, the Building Code Regulation requires that new construction and major renovations follow current accessibility standards. There are no undue hardship exemptions for such requirements nor should there be any.

Barrier removal requirements along with strategies, plans, dedicated funding and incentives for organizations with less means, as well as monitoring and reporting on progress, are all essential components to achieving a barrier free province by 2025.

More transparent enforcement

The Accessibility Standards for Customer Service Regulation and the Integrated Accessibility Standards Regulation have now been in place for several years. A number of their deadlines have come due including an organization’s obligation to report on progress.

Organizations such as the AODA Alliance have raised concerns about ineffective compliance monitoring and enforcement.[15]

The OHRC recommends that the government be much more transparent about its compliance plan and strategies, the status of obligated organizations’ compliance with the regulated standards, including the IASR requirement to develop plans for the identification and removal of existing barriers, as well as measures taken to enforce compliance, and release annual aggregate data accordingly by class of obligated organization.

The OHRC recommends the AODA regulations be amended so that:

• The current requirement for a feedback/complaints process under section 7 of the Accessibility Standards for Customer Service Regulation also applies under the Integrated Accessibility Standards Regulation; and that
• Organizations are required to publicly report aggregate information on the number and nature of complaints they receive and the status of their resolution.

This approach would be helpful, for example, with an issue recently reported in the media. Some transit riders who use wheelchairs have complained to the Toronto Transit Commission (TTC) that they are having difficulty debarking from newly purchased subway cars.[16] The IASR requires that all new transit vehicles be accessible. The recommended change above would require organizations like the TTC to report publicly on the nature of such complaints and the steps being taken to resolve the problem and meet the requirements of the regulation.

Similarly, the OHRC recommends that the government report aggregate data on compliance with and enforcement of the accessibility provisions of the Building Code Regulation.

More public information about what organizations are doing to identify, remove and prevent barriers and address complaints, and what government is doing to enforce standards, will help all organizations be creative and comply with their obligations under the AODA and the Human Rights Code.

Broader public profile and support

The OHRC recognizes the Accessibility Directorate of Ontario has done much to promote compliance with AODA regulations. At the same time, it is important that the government take on a stronger leadership role.

The OHRC recommends that the government find more ways to give the AODA broader public profile and support including through promotion, education and training, including with professional and trade schools, accreditation institutions and associations.

As stated in its report Minds that Matter,[17] the OHRC recommends that the government:

• Consult with people with mental health disabilities and addictions to learn how well current AODA standards meet their needs
• Develop more supports to show obligated organizations how AODA requirements apply to people with mental health disabilities or addictions.

The OHRC calls on the government to implement the recommendation in the report of the first AODA review[18] calling for a provincial framework on accessibility that would set out goals and expectations for the AODA’s vision, along with core principles and criteria for developing and evaluating standards.

A provincial framework should also include tools and procedures to make sure the AODA, the accessibility provisions of the Building Code Regulation and the Human Rights Code are properly considered and addressed when reviewing, developing, revising and implementing legislation, policies and programs, signing contracts and spending public funds across government and public sector agencies.

A provincial framework would be in keeping with the resolution of the Canadian Association of Statutory Human Rights Agencies, endorsed by the OHRC as a member, calling on all levels of government to identify initiatives and develop priority plans that show how they will fulfill their obligations under the Convention on the Rights of Persons with Disabilities,[19] including Article 9 on accessibility.[20]

A provincial framework could also identity short and long term priorities including areas for more new standards.

More new standards

While there is still much compliance and promotion work to be done, the initial five areas of standards – customer service, information and communications, employment, transit, and built environment – are now in regulation and under way and will undergo periodic review. It’s time to consider what’s next.

The OHRC recommends that the government begin seeking public input on other priority areas for new regulated standards under the AODA.

In no particular order of priority, new regulated standards might be considered for areas such as:

• Air quality standards of the type proposed by the former Built Environment Standards Development Committee in 2009 to address the needs of persons with environmental disabilities[21]
• Captioning and descriptive video standards for movie theatres and movie distributors operating in Ontario
• Accessibility standards for the education system, health care services and residential housing (as recommended by the AODA Alliance)
• Accessibility standards to facilitate participation in sporting and leisure activities
• Standards for accessible elections including: accessible constituency offices and meeting rooms and polling stations and returning offices; internet and telephone voting; accessible all candidate debates[22]
• Standards for psychological health and safety in the workplace[23]
• Other elements for potential standards proposed by the former Built Environment Standards Development Committee such as building maintenance, contrast, colour, glare, acoustics, lighting, furniture placement, workplace offices, cafeterias, libraries, courtrooms, stages, balconies, terraces, porches, mailboxes, amusement parks, fitness rooms, etc.[24]

The development of new standards should always be mindful to avoid creating new barriers or falling below minimum gains already achieved. New standards should make clear significant progress over the status quo. Standards should represent the current best-known practices and specifications, which inevitably will evolve, improve and need to be revisited and revised on a regular basis. This on the other hand should not become an excuse to avoid developing new standards into regulation in the first place.