March 18, 2011
The Ontario Human Rights Commission (OHRC) continues to have serious concerns with the Ontario Government’s most recent Proposed Integrated Accessibility Regulation released for public comment. The Government is also proposing related changes to Ontario Regulation 429/07, Customer Service, and to Ontario Regulation 629, Vehicles for the Transportation of Physically Disabled Passengers.
The primary focus of the Proposed Integrated Regulation remains the prevention of new barriers going forward in the areas of information and communications, employment and public transportation. The Proposed Regulation contains no hard requirements for removing the many existing barriers across the province. This contravenes section 6(6) of the Accessibility for Ontarians with Disabilities Act (AODA) 2005. It states that standards are to include requirements for the removal of existing barriers.
The Government has stated that barrier removal will be its long-term objective and that barrier prevention is its short-term objective. If that is the case, amend the Proposed Regulation so that all the implementation timelines are short-term. This would be in keeping with the standards development committees’ obligation to re-examine the Regulation within five years after its adoption pursuant to section 9(9) of the AODA.
There are some improvements in this Proposed Regulation. Improvements since 2010 include requirements for:
- Barrier removal planning (but requires no removal of existing barriers)
- Incorporating accessibility criteria and features when procuring facilities, products and services, including self-service kiosks (but private organizations are either exempt or have a lower “have regard for” standard)
- Providing reasons if procurement is not accessible or if information and communications cannot be converted to accessible formats
- Accessible emergency response information and assistance for employees by January 2012 (but no requirement for accessible real-time announcements)
- Employee accommodation plans that identify, in addition to accessible formats and communication supports, “any other accommodation that is to be provided”
Many concerns remain with standards that could result in contraventions of the Ontario Human Rights Code (Code):
- The complete exemption of smaller organizations, as well as organizations with no employees, from many technical requirements, such as accessible websites
- The exemption of volunteers from employment standards
- The exemption of inaccessible transit vehicles that exist in a fleet on July 1, 2011
- Minimal “upon request” requirements, while consistent with the Code, add nothing new in terms of advancing standards. When deferred by schedule, they actually take away from the Code’s duty to accommodate unless it would cause undue hardship
- “Where not practicable” exemptions appear throughout. These could lead to contraventions of the Code’s duty to accommodate unless it would cause undue hardship
The AODA Alliance is raising similar concerns. The OHRC generally supports the AODA Alliance’s submission dated March 11, 2011, including other matters not raised in the OHRC’s submission.
Part 1: General
Purpose and application
Section 1.2 acknowledges that the standards are not a substitute or replacement for requirements under the Ontario Human Rights Code nor do they limit an organization’s obligations under the Code.
This Part fails to identify interpretive human rights principles to apply throughout the Proposed Regulation. These include the obligation to:
- Design inclusively and avoid creating new barriers, a relatively immediate duty unless it would cause undue hardship
- Prioritize and implement solutions that favour integration over segregation unless segregation is the most appropriate way to meet the needs of persons with disabilities in the current circumstances
- Take steps to address existing systemic or individual barriers, and achieve results, in stages, if needed, to avoid undue hardship
- Apply the best current technology and practice standards, or next best interim measures if it would cause hardship.
Policies and Plans
Section 3 requires the establishment of accessibility policies on a deferred schedule by organizational class.
Section 4 requires select classes of organizations to establish, implement, document and make available annual status reports on multi-year strategy plans to prevent and remove barriers that do not meet requirements under the Regulation. While this section requires organizations to “implement” their plans, the Proposed Regulation does not require them to achieve results and remove existing barriers.
Government and public sector organizations have similar planning and reporting requirements under the Ontarians with Disabilities Act 2001 so they should be required to meet this goal almost immediately.
These sections also require select classes of organizations to make their accessibility policies and plans available in accessible format “upon request” by deferred schedule. This does not meet the Code’s duty to accommodate unless it would cause undue hardship. Amend these sections so that the “upon request” requirement is immediate. Also, require that organizations make their policies and plans available in “conversion-ready” (electronic accessible) format in advance; otherwise, this provision offers nothing new.
Procurement and kiosks
Section 5 requires the Government of Ontario, the Legislative Assembly and designated public sector organizations to incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities. Section 6 sets out additional requirements for self-service kiosks.
Amend section 5.1 to clarify that “criteria and features” include any standards under Parts 2, 3 and 4 of the Proposed Regulation as well as standards set out under any other AODA regulation.
Delete “except where it is not practicable to do so” from section 5.1 and 5.2 as this exemption is not in keeping with the duty to accommodate unless it would cause undue hardship under the Code.
Amend section 5.2 to require organizations to document reasons when accessible procurement is not possible and make the reasons available in conversion-ready format in advance rather than only “upon request”.
Replace the weaker “shall have regard” standard for private organizations under section 6.2 with the stronger “shall incorporate” standard used under section 5.1 and section 6.1.
Amend the definition of “kiosk” under section 6.5 to clarify that it includes a broad range of devices such as point-of-sale technology.
All requirements under sections 5 and 6 should apply to all classes of organizations including large and small private organizations, on a phased in schedule if necessary. Otherwise, weak or non-existent procurement requirements will only create new barriers or continue existing ones.
Section 7 requires every obligated organization to provide training on the requirements of the Regulation. Amend the section to broaden training to cover section 1.2 regarding an organization’s obligations under the Human Rights Code. Amend section 7.5 to require small organizations to keep a record of training provided as well.
Section 8 of the Proposed Regulation should not exempt small organizations from reporting obligations. Rather, they should be required to file, or at least keep, reports on a deferred schedule for the same reason identified under s.8.2.1: doing so would be consistent with a “phased approach”.
Part 2: Information and communications
The complete exemption of “products” under section 9.2.1, which could include books, magazines, films and DVDs, etc., is not in keeping with the Code’s duty to accommodate unless it causes undue hardship. Recent human rights litigation such as the Famous Players et al. settlements confirms this. The Proposed Regulation should require producers of these types of products to build in any currently available accessible features, technology and practices as well as cooperate to develop new standards or improve on existing ones where necessary.
Section 9.2.2 provides an exemption for “unconvertible” information or communications. This could result in contraventions of the Code and the human rights principle of creating no new barriers. The Regulation should prohibit organizations from acquiring or producing information or communications that is not convertible to accessible formats. An exception might only be appropriate for pre-existing information or communications. Even then, there should be a requirement to convert it or stop using it over time, with only an exemption for undue hardship.
Section 11 should require organizations to make feedback processes accessible in advance rather than only “upon request”. Deferring requests for accessible feedback processes (by schedule set out under 9.11.3) is not in keeping with the Code’s duty to accommodate unless it causes undue hardship.
Unless provided elsewhere, section 12 requires that organizations provide accessible formants and communications supports only “upon request” and only then in accordance with the deferred schedule under section 12.5. This does not meet the Code’s duty to accommodate unless it causes undue hardship. At a minimum, section 12 should require organizations to make information available in conversion-ready format in advance. Otherwise, this section adds nothing new.
Delete the clause under section 12.2, “...final determination as to which accessible format or communication support shall be used rests with the organization.” This clause is unnecessary and it could otherwise provide an unwarranted defence to organizations that violate the Regulation.
Revise section 12.4 to read more clearly.
Section 13 requires organizations to make emergency procedures, plans or public safety information available in accessible formats or with appropriate communications support, but only “upon request’. Amend the section to require the information be available in “conversion-ready” format in advance. Otherwise, this section adds nothing new, as organizations already have the duty to make information accessible upon request unless it causes undue hardship under the Code. This section must be amended to address the accessibility of real-time emergency announcements.
Some of the timeline requirements under section 14 for making new and existing websites and posted content accessible are much too long. For example, the up to ten-year timeline for the higher WCAG 2.0 Level AA standard makes this requirement moot, given the fast-pace change of technology. The long timelines are also inconsistent with the November 2010 Federal Court decision in Jodhan v. Canada, which called for website accessibility compliance “within a reasonable time period, such as 15 months”.
To avoid creating new barriers, the standard should also apply relatively immediately to new websites or refresh of existing websites, as well as new content and software applications posted to websites.
The requirement to make intranets accessible should apply to all organizations, not just government.
Designated public sector organizations and all private organizations have a blanket exemption from “new live captioning” and “pre-recorded audio descriptions” requirements for website content under this section. The Government of Ontario and the Legislative Assembly need only meet these requirements by 2020. These exemptions are not in keeping with the Code’s duty to accommodate unless it causes undue hardship.
The “not practicable” exemption under section 14.5 and 14.6 does not meet the Code’s standard of “undue hardship”. This section should require organizations to choose commercial software or tools or both that will allow them to refresh or implement new websites, publish new content and applications, and make existing sites, content and applications accessible. The requirement should be to the highest level of WCAG standards, whatever they may be at any time, unless to do so would cause undue hardship. Only then should the standard require organizations to provide the next best level of accessibility that would not result in undue hardship.
The Government should review and update best-known accessibility standards for websites within five years in accordance with section 9(9) of the AODA, “Development of subsequent proposed standards”.
Section 14 website requirements should also apply to small organizations with less than 50 employees.
Section 15 should require educational or training institutions to make educational and training resources and materials, as well as student records and information on programs available in conversion-ready format in advance rather than only “if notification of need is given”. Similarly, sections 17, 18 and 19 should not simply have “upon request” provisos for producers of educational or training material, libraries of educational and training institutions, and public libraries. Otherwise, these standards add nothing new, and their deferred implementation schedule does not meet the Code’s duty to accommodate upon request, unless it causes undue hardship.
Sections 18.2 and 19.3 should not completely exempt archival materials, special collections, rare books and donations. Rather, these institutions should at least be required to take steps to begin converting these materials into accessible format, on a deferred schedule if necessary.
It is not clear whether sections 15, 16, 17 and 18 apply to all private educational institutions.
Part 3: Employment
Section 20.1.b exempts volunteers and non-paid work. This does not reflect the Code, human rights policy and case law.
Sections 22, 23.1, 24, 25 and 28 require employers to “notify” the public, applicants and employees about the availability of accommodation supports as well as “document” related accommodation plans. Section 29 requires employers to “develop and have in place... a process” and “document” the return to work of employees with disability-related needs. These are all appropriate requirements to implement on a deferred schedule by organization class, if need be, as the regulation does under section 21.
However, sections 23.2 and 26.1 should not defer, by schedule, applicant or employee “requests” for accommodation in recruitment, assessment or selection processes. The regulation also should not defer requirements under sections 30, 31 and 32 for employers to “take into account” the accessibility needs of employees during performance management, career development and advancement, and redeployment, respectively. Employers already have an immediate obligation to take into account and address the known accommodation needs of employees with disabilities unless it causes undue hardship under the Code.
Delete section 23.3, “The decision as to which accommodation is to be provided rests with the employer”, as well as the clause at section 26.2, “...the final determination as to which accessible format or communication support shall be used rests with the employer.” These are unnecessary and could otherwise provide an unwarranted defence to organizations that violate the Regulation.
Part 4: Transportation
Effective July 1, 2011, all new or used transit vehicle purchases or acquisitions must meet the accessibility requirements in this Part. Vehicles manufactured in 2013 onward must also meet the accessibility standard in this Part.
Section 33.1 defines “conventional transportation services” to mean “public passenger transportation services” but exclude “specialized transportation services” defined elsewhere in the section. The section should define “public passenger” to mean passengers both with and without disabilities. After all, the primary goal of the transportation standards should be to make conventional systems accessible for everyone.
Section 33.2 completely exempts the funicular railway travelling on the Falls Incline Railway operated by the Niagara Parks Commission, an operational enterprise of the Government of Ontario. This is not in keeping with the Niagara Parks website, which states that it is, “currently developing plans to upgrade the Railway to an enclosed, fully accessible service that will be available year-round.” Provide reasons or remove this exemption.
Amend sections 34 on the availability of information on accessibility equipment and section 35 on non-functioning accessibility equipment to apply to transit “facilities” and not just vehicles and services. Furthermore, amend section 35 to require transportation providers to maintain accessibility equipment in good working order.
The following sections require that organizations provide accessible information only “upon request”: section 34.2 on accessibility equipment, etc.; section 37.2 on emergency preparedness and response policies; section 44.2 on vehicle operator general responsibilities. These sections should require conversion-ready information be available in advance. Otherwise, the “upon request” proviso adds nothing new as it is already required under the Code’s duty to accommodate unless it causes undue hardship.
Beginning January 2014, section 38 requires that transportation providers must not charge a fee to a support person accompanying a person with a disability. This important requirement amounts to a policy change. The timeline to implement it should be much shorter. The Canadian Transportation Agency has made a similar ruling.
The Proposed Regulation does not require transportation providers to replace existing vehicles to meet accessibility standards in this Part. This contravenes section 6(6) of the AODA, which states that standards are to include requirements for the removal of existing barriers. Where providers choose to acquire new or used vehicles on or after July 1, 2011, section 39 requires that they ensure the vehicles meet the requirements in this Part.
This section permits providers to honour inaccessible vehicle contracts existing on June 30, 2011. In February 2011, the Ontario Human Rights Commission wrote to transit providers and relevant municipalities across the province encouraging them not to sign contracts for inaccessible transit vehicles in the interim. Otherwise, such vehicles could be subject to an application (complaint) before the Human Rights Tribunal of Ontario, particularly in light of the 2007 Supreme Court decision in Council of Canadians with Disabilities v. VIA Rail Canada.
The Proposed Regulation does not require transportation providers to retrofit vehicles existing in their fleets on July 1, 2011. This could contravene 6(6) of the AODA, which states that standards are to include requirements for the removal of existing barriers. Where providers choose to modify a portion of the vehicle, section 40 requires they ensure that portion is accessible, unless the modification involves the following features and would impair structural integrity: grab bars (section 53), mobility aid spaces (section 55), lighting (section 57), indicators and alarms (section 61) or washrooms on mobility aid accessible rail cars (section 62 (2)). It is not obvious why these requirements are allowed. These exemptions could permit transportation providers to prolong the maintenance of inaccessible vehicles within their fleet.
Delete section 41.1.a as it is unnecessary. In the alternative, amend section 41.1.a to read, “...in their accessibility plan conventional transportation service providers shall... identify initiatives to encourage persons with disabilities who are, or were, eligible for specialized transportation services, to use accessible, conventional transportation services... “.
Section 45 requires conventional transportation providers to provide alternative accommodation, where no specialized service is available in the same jurisdiction, if the conventional system is not accessible, except where not practicable to do so. The “where not practicable” exemption falls below the standard of undue hardship under the Code and should be amended accordingly.
Amend section 46.2 so that it applies to conventional transportation providers regardless of whether those providers also operate specialized transportation services. Amend this provision further to clarify that the provider’s first obligation is to make fare payment options and mechanisms inclusive and accessible to all. Only then shall the provider offer alternative accessible fare payment options to individuals who need it because of their disability. Otherwise, this section encourages segregation over integration and inclusive design, and is not in keeping with human rights principles and the Code.
It appears that sections 53 through 61 of this Proposed Regulation do not apply to transit vehicles regulated by Ontario Regulation 629 (Vehicles for the Transportation of Physically Disabled Passengers) because the Government is proposing similar amendments for that Regulation, which applies to accessible urban transit buses operating on Ontario highways.
Section 62.1 only requires transportation providers to have one mobility aid accessible rail car per train. This is not in keeping with the 2007 decision of the Supreme Court in Via Rail. Amend this section to apply to the purchase of all new or used rail cars and all forms of rail cars including subways.
Sections 63.1 and 63.2 set out three categories and conditions of eligibility for specialized transportation services for persons who, because of their disability, cannot use the conventional system. Section 63.3 permits specialized transportation providers to deny service for two of the three categories if the conventional system is accessible to the person. Delete section 63.3 as it is redundant. The 2017 timeline for implementing section 63 is too long without requiring proof of undue hardship.
Section 66 requires fare parity between specialized transportation and conventional transportation systems operating in the same jurisdiction. This requirement applies beginning January 2013 where the provider operates both the conventional and specialized services, and January 2017 where these services are provided separately. Human rights case settlements have long ago set the principle for fare parity. Amend this section to reduce the implementation timelines significantly.
Section 66.6 also requires the same fare structure and payment options for specialized and conventional services, but only applies if the provider operates both services. This requirement should apply regardless of whether the same provider or different providers operate the two services in the same jurisdiction. This section permits providers to make alternative fare options available to persons who cannot use a fare option because of their disability. Amend this provision to require fare options first be universally accessible to all passengers, including people with disabilities, as much as possible.
Section 68.1 requires specialized transportation providers to provide “origin to destination” services that take into account and accommodate the abilities of its passengers. The concept of providing an “overall package of transportation services” in a flexible way as set out under section 68.3 fails to recognize the human rights principle of inclusive design: making integrated transit systems as accessible as possible, while offering alternative ones for passengers who still cannot access the conventional system. Moreover, conventional and specialized transportation providers share responsibility in this regard; whereas, this section only applies to specialized providers.
However, if section 68 is to be implemented as proposed, delete section 68.3 entirely and amend section 68.2 to include “door-to-door services”. Amend this Part to ensure that the geographic area of service for specialized transportation is the same as conventional transportation. Also amend this Part to indicate that taxicabs may be used an alternative means to deliver door-to-door services, still at fare parity with the conventional system.
Section 70 requires that hours of service for specialized transportation be the same as conventional transportation by Jan 2013 for providers who operate both services, and by January 2017 for specialized providers who operate separately. While the two services operate separately in some jurisdictions, both are public and receive government funding, with the latter being an accommodation of the former. As such, a different implementation schedule is arbitrary. Amend the implementation requirement for separate operators from 2017 to 2013.
Section 71 requires same-day booking service for specialized transportation “to the extent that it is available”. Otherwise, operators must accept requests up to three hours before the end of service on the day before. This is not sufficiently close in par with wait times for conventional transit. The proviso, “to the extent that it is available”, amounts to a complete exemption and is not in keeping with the undue hardship standard under the Code. Amend the section to require same-day booking service by a scheduled date, and require day-before booking by a sooner date. Section 42.1 requires specialized transportation providers to identify the process for estimating the demand for specialized transportation services. This should help implement same-day booking service.
For greater clarity, amend section 72 to indicate that any trip restriction policy should generally be no more restrictive for specialized transit passengers than for conventional transit passengers.
Section 75 sets out requirements for school boards to provide integrated accessible school transportation services, or alternative services where integrated services are not possible because of the nature of the disability or safety concerns. This provision should also apply to private elementary and secondary educational institutions.
Section 76 requires hospitals, colleges, and universities that receive provincial operating grants, to provide accessible vehicles or equivalent services upon request beginning July 1, 2011. This provision adds nothing new as these institutions would already have to accommodate such requests unless it caused undue hardship under the Code. Amend the section so that effective July 1, 2011, institutions shall meet the accessibility standards of this Part the next time they replace, overhaul, or acquire additional transportation vehicles. Amend this section to apply to private post-secondary institutions as well.
Sections 78.1 and 78.2 require municipalities to consult on the development of accessible design criteria for consideration in the construction or replacement of bus stops and shelters, and identify planning. This provision does not actually set any standards nor require results for accessible stops and shelters. The Government should develop minimum provincial standards, allowing for local flexible design; otherwise, municipal discretion will lead to inconsistent outcomes across the province.
Sections 78.3 and 78.4 require municipalities to consult to determine the proportion of on-demand accessible taxicabs required in the community and report on progress made. Section 79 prohibits, through municipal licencing, owners and operators of taxicabs from charging higher fares or additional fees for passengers with disabilities. The Regulation should set other standards and timelines including hours of service and wait times parity.
Reaching these outcomes will require additional incentives and requirements to increase the number of accessible taxicabs on the road. This would not only benefit passengers with disabilities but also families with small children and strollers, and others who may be transporting bulky items. The AODA Alliance, in its submission, proposes creative options for increasing the number of accessible cabs through municipal priority granting of taxi licences or supplementing specialized transportation service demand with accessible cabs. The Government should also explore other incentives and requirements for the production and purchase of accessible cabs.
Part 5: Compliance and enforcement initiatives
The OHRC supports the recommendation of the AODA Alliance to amend section 83 to require that individuals who raise concerns about matters that are subject to an order, to a review of an order, or to an appeal of an order, receive notice of applications and decisions as well as have opportunity to make submissions accordingly.
Section 85 designates the Licence Appeal Tribunal as the body to hear appeals of orders made under the AODA and the Proposed Regulation. The Government should ensure the Tribunal has sufficient resources and expertise to address accessibility under the AODA and other related law, including the Canadian Charter of Rights and Freedoms, the Ontario the Human Rights Code, the Building Code, etc., while also having regard for the United Nations Convention on the Rights of Persons with Disabilities and relevant case law. This is particularly important given that:
- Only individuals or organizations subject to a Director’s order have recourse to seek review or appeal of orders, while individuals impacted by barriers do not
- The Supreme Court of Canada has ruled that administrative tribunals must apply the Human Rights Code on relevant matters and
- The purpose of the AODA is to address accessibility barriers systemically and avoid case-by-case litigation so individuals with disabilities need only bring a matter before the Ontario Human Rights Tribunal as a last resort.
 Niagara Parks Commission funicular railway: http://www.niagaraparks.com/attractions/incline-railway-history.html
 Canadian Transportation Agency news release / http://www.otc-cta.gc.ca/doc.php?did=661&lang=eng
 Tranchemontagne v. Ontario (Director, Disability Support Program),  1 S.C.R. 513, 2006 SCC 14