For immediate publication
Toronto - I welcome this opportunity to provide comments on Bill 118, the Accessibility for Ontarians with Disabilities Act.
In the spring of last year, the Ontario Human Rights Commission ("the Commission") provided a written submission to the Ministry of Citizenship and Immigration’s public consultation on strengthening the Ontarians with Disabilities Act. As I believe that the comments of the Commission at that time remain relevant in considering Bill 118, I take this opportunity to provide it to you for your review. Having reviewed Bill 118, there are some points from this submission to which I would like to particularly draw your attention, as I believe they may be helpful to you.
To begin with, I believe that Bill 118 represents a significant advancement over the current Ontarians with Disabilities Act, and am pleased to see that so many of the Commission’s recommendations have been incorporated into the draft legislation. I am particularly pleased to see that the scope of the legislation has been broadened to include the private sector, and that issues relating to employment will be covered. As the Commission has repeatedly encountered in its work a lack of awareness or commitment in the private sector of the rights of persons with disabilities to inclusion and full participation, I believe that the inclusion of the private sector in this legislation is essential to advancing the rights of persons with disabilities. As well, I am pleased to see the emphasis on the development and implementation of clear, measurable and reviewable standards for accessibility, to be developed in consultation with both persons with disabilities and those who will be implementing the standards.
However, I am concerned to see that Bill 118 contains no provisions for harmonizing its provisions with those of the Ontario Human Rights Code ("the Code"). That is, the relationship between the Code and Bill 118 should be clear, and the requirements of Bill 118 should be explicitly tied to the principles and requirements of the Code. For example, it should be clear that the standard for the sufficiency of accessibility plans and implementation is that of the human rights duty to accommodate short of undue hardship. The Code, of course, enjoys primacy over other legislation, and none of the provisions of Bill 118 affect that primacy, nor should they. Organizations covered by Bill 118 will continue to be required to comply with the Code. They will continue to be required to take steps to ensure the full accessibility of their services and facilities to the point of undue hardship. However, it has been the Commission’s experience with the Ontario Building Code, which has similarly never been explicitly harmonized with the Code, that there is a potential for confusion among those regulated by both pieces of legislation, and that this has been to the great detriment of accessibility for persons with disabilities, as well as a cause of significant frustration for all concerned. The Commission is concerned that, if Bill 118 is not amended to harmonize its provisions with those of the Code, similar confusion and difficulties will result.
In its submission, the Commission recommended that any legislation replacing the Ontarians with Disabilities Act contain effective mechanisms for complaints and dispute resolution. While I am pleased to see that Bill 118 contains a variety of compliance mechanisms, it does not create any mechanisms for individual complaints regarding accessibility or compliance with standards. Individuals may provide input into the development of standards, but they cannot, for example, request an inspection on the basis that the standards have not been complied with. The Code remains the only recourse for individual concerns regarding accessibility. As outlined at length in the Commission’s submission, this is problematic. I am concerned that the rights of individuals with disabilities will continue to have to be advanced one complaint at a time. While the Commission has developed efficient and fair mechanisms for investigating, mediating, and resolving complaints, this is, even at its best, a lengthy process that is costly for all involved. Complaints by persons with disabilities to the Commission have climbed steadily in recent years, both in absolute numbers and in terms of the percentage of the Commission’s caseload. The Commission is concerned that Bill 118 will lead to an increase in the number of individuals who are compelled to seek redress through the Commission’s complaint process as Bill 118 provides a right without a clear remedy.
Finally, I would like to reiterate the Commission’s recommendation that this legislation include effective mechanisms for monitoring and reporting. I note that Bill 118 is structured in such a way as to provide a high degree of flexibility in its implementation. While this has its advantages, it also has its pitfalls. Measures to require annual public reporting on activity and progress under the Accessibility for Ontarians with Disabilities Act would help to ensure public accountability for the exercise of this discretion.
I hope that this is helpful to you. Thank you again for the opportunity to bring this information to your attention.
Original signed by:
Keith C. Norton, Q.C., B.A., LL.B.