With the recent passage of the Accessibility for Ontarians with Disabilities Act[1] (“the AODA”), accessibility issues in Ontario are now governed by three pieces of complementary legislation: the Code, the AODA, and the Ontario Building Code (“OBC”).
The AODA replaces the previous Ontarians with Disabilities Act and is expected to spur significant advances in the accessibility of Ontario’s goods, services, facilities, accommodation, employment, buildings, structures and premises. As the OHRC, among many others, had advocated for a number of years, the AODA creates a positive mechanism for developing and implementing accessibility standards in both the public and the private sectors. [2] The AODA sets out a process for the development of accessibility standards for specific industries, economic sectors, or classes or persons or organizations. Standards development committees will be established, consisting of persons with disabilities, industry or sector representatives, and representatives of relevant government ministries. These committees will determine long-term accessibility objectives to be achieved by January 1, 2025, and the measures required to meet these objectives. The committees will develop plans for progressive implementation of measures to meet the long-term objectives.
The committees will also develop initial proposed standards, which will set out measures, policies, practices and requirements for the identification and removal of barriers. The proposed standards will be made public, and the public will have the opportunity to submit comments. The finalized standards will then be established by regulations. Objectives, proposed measures, and standards will be reviewed every five years.
An Accessibility Standards Advisory Council will be established to advise the Minister on matters related to the AODA. The majority of the members of the Council must be persons with disabilities. The Accessibility Directorate under the Ministry of Community and Social Services will have the responsibility for advising on the establishment and composition of the standards committees, providing training materials and guidelines for members of the standards committees, examining and reviewing the standards, advising on accessibility reports, and consulting with persons and organizations who have reporting obligations under the Act. The Directorate will make an annual report on the implementation and effectiveness of the Act.
The AODA does not supersede the Code. The AODA states that nothing in it diminishes the legal obligations of the Government or any other person or organization with respect to persons with disabilities that are imposed by law, and that where the AODA or an accessibility standard conflicts with another Act or regulation, the provision providing the highest level of accessibility shall prevail. That is, organizations that provide services, facilities, housing or employment will continue to be required to accommodate persons with disabilities to the point of undue hardship. The AODA does not create a new complaint mechanism for individuals who encounter barriers to accessibility. Persons with disabilities who encounter barriers to services, facilities, housing or employment will continue to be able to file complaints under the Code, and the Code remains the key enforcement mechanism for individuals with disabilities. The OHRC will continue to have a broad mandate, and a vital role to play, in ensuring the rights of persons with disabilities in the province of Ontario.
However, insofar as the Accessibility Directorate will be overseeing the development of accessibility standards and plans, there is an opportunity for the OHRC to re-focus its efforts. For example, rather than taking on sector-specific initiatives encouraging the identification of barriers and the development of plans as it has done with the transit and restaurant sectors, the OHRC may focus its resources on addressing the source causes of inaccessibility. As well, while the OHRC will continue to take an active role in promoting accessibility, it will also be able to place greater emphasis on other issues affecting the disability community.
The OBC sets minimum standards for the construction of buildings, including standards related to accessibility issues. The OHRC has, for a number of years, identified deficiencies with the OBC’s barrier-free requirements that are hindering the development of an accessible built environment. For example,
- the barrier-free provisions of the OBC emphasize mobility-related disabilities, and provide insufficient guidance on non-mobility-related issues;
- the provisions regarding upkeep and renovation require accessibility improvements only in limited circumstances; and
- compliance with the technical requirements of the OBC does not necessarily result in substantive equality for users with disabilities.
A comprehensive discussion of the OHRC’s concerns regarding the OBC is set out in its submissions to the 2002 public consultations on building code reform. [3]
The Code has primacy over the OBC, and human rights tribunals have affirmed that compliance with the OBC is no defence to a complaint of discrimination under the Human Rights Code. [4] However, it is the experience of the OHRC that many businesses, even large and sophisticated ones, are under the incorrect impression that by complying with the OBC they are meeting all of their legal obligations. As a result, the barrier-free provisions of the OBC may have the unintended effect of reinforcing existing barriers for persons with disabilities. Indeed, many business owners have expressed to us frustration regarding the confusion caused by the discrepancies between the requirements of the OBC and the Human Rights Code.
The OHRC has publicly expressed its concerns regarding the accessibility provisions of the OBC on a number of occasions over the years, including in its report on age discrimination, A Time For Action; the 2002 submissions on the OBC; the earlier report on accessibility in the restaurant industry, Dining Out Accessibly; and the submissions on strengthening the Ontarians with Disabilities Act. In December 2005, the OHRC wrote to the Minister of Municipal Affairs and Housing, reiterating its concerns with the OBC.
The Ministry of Municipal Affairs and Housing has very recently announced amendments to the accessibility provisions of the OBC. The OHRC will review these amendments in light of its previously expressed concerns. The OHRC believes that it is essential that any reform to the OBC bring the provisions of the OBC into harmony with those of the Code and would welcome the opportunity to assist the Ministry in this regard, in keeping with the OHRC’s broad mandate under section 29 of the Code.
[1] S.O. 2005, c. 11. The AODA received Royal Assent and came into force on June 13, 2005
[2] See, for example, the OHRC’s Submission of the OHRC Regarding Consultations to Strengthen the Ontarians with Disabilities Act, March 31, 2005, www.ohrc.on.ca.
[3] Submission of the Ontario Human Rights Commission Concerning Barrier-Free Access Requirements in the Ontario Building Code, March 2002, www.ohrc.on.ca.
[4] Quesnel v. London Educational Health Centre, (1995), 28 C.H.R.R. D/474 (Ont. Bd. Inq.)