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Submission to inform the Third Review of the Accessibility Act for Ontarians with Disabilities (AODA)

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November 2, 2018

Hon. David C. Onley
University of Toronto Scarborough
1265 Military Trail
Toronto, ON M1C 1A4

Dear Honourable Mr. Onley,

RE: Third Review of Accessibility Act for Ontarians with Disabilities (AODA)

I trust this letter finds you well. I am writing today to provide the Ontario Human Rights Commission’s (OHRC) input on the Third Review of the Accessibility for Ontarians with Disabilities Act (AODA).

As you know, the AODA’s goal of making Ontario accessible for people with disabilities by 2025 is looming closer. While many of the regulated standards are beginning to have a positive effect, the OHRC is concerned that Ontario will not achieve its goal for a barrier-free province without new standards, greater compliance, and more effective strategies. Most importantly, the province needs renewed leadership in terms of both the AODA and the barrier-free regulations of the Building Code, and in terms of removal of  pre-existing barriers – both physical and attitudinal – that persist throughout society.

It has been almost 40 years since the rights of people with disabilities were entrenched in Ontario’s Human Rights Code (Code); 20 years since the OHRC made its first submission supporting the development of accessibility legislation; and 13 years since all parties of the Legislature unanimously passed the AODA. Persons with disabilities should not wait any longer to fully contribute to their community and participate in the economic and social life of the province, equally, without discrimination. That’s the vision of the Code. But sadly this vision has yet to become reality.

Census data continues to show that people with disabilities are much less likely to participate in the labour force, and more likely to be unemployed or have a low income. And disability is consistently the highest cited ground of discrimination in over 50% of all applications before the Human Rights Tribunal of Ontario.

Barriers have lifelong impacts that have a high personal, economic and social cost, including long-term reliance on the social safety net. As the province’s Poverty Reduction Act recognizes, there is untapped potential in our population that needs to be drawn upon by building and establishing supports for, and eliminating barriers to, full participation by all people in Ontario’s economy and society, including persons with disabilities.

While the AODA and the Building Code are central to eliminating barriers, other government laws and plans must aim to positively impact the lives of people with disabilities including strategies for poverty reduction, employment, inclusive education and Indigenous reconciliation. That’s why the OHRC continues to make submissions, undertake public education and inquiries, take legal action, and publish policies on a broad range of disability rights issues, like the release of our new Policy on accessible education for students with disabilities.

In the coming year, we will continue to promote and enforce the elimination of discriminatory barriers for people with disabilities and make the following recommendations for consideration under the Third Review of the AODA.

Removing existing barriers

  1. Regulated standards must include “retrofit” requirements to remove existing barriers
  2. AODA-regulated multi-year accessibility plans should apply to more organizations

Regulated accessibility standards under the AODA and the Building Code focus primarily on barrier prevention – how to design things accessibly going forward. This is important of course, but it will not lead to a barrier-free Ontario by 2025.

And while there is a regulated requirement for government, the designated public sector and large organizations to have multi-year accessibility plans, it does not require them to remove barriers identified in plans.

Voluntary approaches, like tax credits and other incentives, encourage barrier removal, but so far have had a marginal impact.

In the OHRC’s view, there is an expectation under section 6(6)(a) of the AODA that regulated standards also include measures for removing existing barriers, not just preventing new ones. The OHRC believes the failure to use this provision to address existing barriers is not in keeping with the aim and spirit of the AODA.

The OHRC recommends that regulated standards include at least some priority “retrofit” requirements for removing existing barriers. For example: there could be a requirement, phased in by class and size of organization, to have one accessible building entrance on a barrier-free path of travel to a universal accessible washroom. Washrooms in particular go to the core of human dignity. People with disabilities should not have to wait for a new building or major renovation before core accessibility standards apply.

Organizations could be required to use multi-year accessibility plans to identify and remove these and other barriers. Organizations that demonstrate financial hardship could be given more time to meet barrier removal requirements while still offering next-best temporary solutions.

The OHRC also recommends that the regulated standard for developing multi-year accessibility plans be expanded to apply to other classes of organizations, not just government, public sector and large organizations.

Procurement

  1. AODA accessible procurement requirements should apply to more organizations
  2. Accessible procurement should mean that organizations give preference to buying and leasing accessible facilities

Through procurement spending on goods, services and facilities, employers and housing and service providers hold a power and responsibility to prevent and address, and not create or condone, accessibility barriers for the people they serve and employ.

Currently, AODA regulations only require the government, Legislative Assembly, and designated public sector organizations to incorporate accessibility design, criteria and features when procuring or acquiring goods, services or facilities.

The OHRC recommends the regulated requirement for accessible procurement be expanded to apply to more classes of organizations.

The OHRC further recommends that the procurement requirement be clarified, through amendment or policy interpretation, to mean that organizations are expected to give preference to facilities that meet current accessibility standards regulated under the Building Code when buying or leasing new buildings or spaces.

Attitudinal barriers

  1. AODA training requirements should include information about the under representation of people with disabilities and the barriers they experience in employment, housing and services
  2. AODA-obligated organizations should collect data about under representation when developing multi-year accessibility plans

The AODA defines a barrier to be “anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability” and lists “attitudinal barriers” in addition to physical, architectural, technological, information or communications barriers, and policies or practices.

Yet, no standard has been developed to address what is one of the most significant barriers people with disabilities encounter – “ableist” attitudes about them. OHRC policies explain that “ableism” is the attitudes and stereotypes in society that devalue or limit the potential and inclusion of persons with disabilities. People with mental health disabilities and addiction are particularly vulnerable to ableism.

The current scope of AODA standards is not wide enough. We will not have an accessible province by 2025 without tackling the social attitudes that prevent people with disabilities from participating and contributing to the community.

The OHRC recommends that the current regulated requirements for training include information specifically about the types of barriers that people with disabilities, including people with developmental and mental health disabilities and addictions, typically encounter, especially attitudinal barriers, when applying for jobs, looking for apartments or trying to access goods, facilities and services like education. Training should also include information about the under representation of people with disabilities in the labour force and particular occupations.

Data collection can be another important tool for organizations to understand and address systemic barriers.

The OHRC recommends that the Third Review of the AODA explore whether the AODA should expand the regulated standard for multi-year accessibility plans to require obligated organizations to collect and report data on the representation of people with disabilities among the people they employ or serve.

New standards development

  1. Standards development for education and health care should continue
  2. Health care standards should cover more than hospitals
  3. New standards should be considered for built environments including housing, electoral and political processes, sports and recreation

Following on the report of the Second AODA Review, Ontario committed to developing new accessibility standards for elementary, secondary and postsecondary education, as well as standards for the hospital sector. Three new standards development committees (SDCs) were struck under the AODA and the work has begun.

The OHRC’s new policy on accessible education and related recommendations identify many barriers that students with disabilities experience at all levels of education. The OHRC’s public consultation report on human rights, mental health and addictions also identifies barriers in health care services. OHRC policies and reports can help guide the work of SDCs and we are ready to assist as well.

The OHRC recommends that the work of these new SDCs and all other SDCs continue in accordance with the AODA’s legislated processes without delay.

The OHRC further recommends that the work of the health care SDC be expanded to include other health care sectors, not just hospitals.

In its submission to the second AODA review, the OHRC has identified a number of other potential areas for developing new accessibility standards.

The OHRC recommends, in no particular priority order, that consideration be given to developing additional regulated standards to address ongoing barriers in residential housing and other areas of the built environment, sports and recreation, and participation in electoral and political processes.

Legislative harmonization

  1. Regulated training requirements should specify Human Rights Code obligations to accommodate as well as create no new barriers and not perpetuate existing ones
  2. AODA processes for standards development, review and revision should also be applied to regulated accessibility provisions of the Building Code

The reports of the first two legislated AODA reviews recognized the importance of harmonization between requirements of the AODA, the Building Code and the Code for addressing accessibility barriers.

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 have concurrent, immediate and ongoing obligations under the Code, which generally has primacy over other Ontario laws. These obligations include the duty to respond to individual accommodation requests and to explore and provide solutions as soon as possible, short of undue hardship.

AODA regulations now specifically recognize the Code and set out requirements for organizations to train staff on obligations under both the AODA and the Code. Every year thousands of people access an online e-learning module developed by the OHRC and Ontario’s Accessibility Directorate to support this training requirement. Yet, much confusion remains among organizations on the complimentary relationship between these laws and other relevant laws.

The OHRC recommends that the current AODA regulated provision on AODA and Code training be amended to include additional requirements that all persons who participate in managing the organization:

  • Receive regular training about their obligations under the Code to:
    • Accommodate an individual’s disability-related needs short of undue hardship
    • Take steps to prevent the creation of new barriers for people with disabilities and the perpetuation of existing barriers
  • Receive regular training about their obligations to apply the regulated accessibility provisions of the Building Code when constructing new facilities, making major renovations or changing the use of existing facilities.

Some built environment standards regulated under the Building Code have been developed but not reviewed or revised under AODA processes.

The OHRC recommends that the processes for developing, reviewing and revising accessibility requirements regulated under the AODA be applied similarly to accessibility requirements regulated under the Building Code.

Compliance and accountability

  1. Public compliance data should name organizations that have not met their accessibility requirements under the AODA and Building Code and indicate the status of existing barriers identified in accessibility plans
  2. Organizations should be required to publish the status of AODA and Building Code related complaints they receive

Accessibility Directorate reports show that compliance with regulatory standards is weak in some areas or simply unknown. For example: the AODA accessibility compliance and enforcement report 2017 indicates that only about 43 percent (24,000) of the roughly 56,000 organizations required to submit compliance reports did so by the year-end deadline. Audits of organizations in select sectors done in 2016 and 2017 show that around one third had not met their obligation to develop multi-year accessibility plans or provide accessibility training to staff.

The OHRC believes that more public transparency and accountability around failure to comply with accessibility requirements also serves to educate and promote compliance.

The OHRC recommends that more compliance data be made available publicly for all regulated requirements under both the AODA and the Building Code. The data should name organizations that have not met regulated requirements. The data should indicate the status of measures taken to address compliance issues. It should also show the status of existing barriers that organizations have identified in AODA-regulated accessibility plans.

The OHRC also recommends that organizations be required to publicly report aggregate data on complaints they receive about AODA and Building Code-related accessibility barriers, and how the complaints were resolved.

Public profile

  1. More initiatives are needed to raise the public profile and promote compliance with AODA and Building Code accessibility requirements
  2. Ontario’s AODA action plan should identify annual targets for reaching the 2025 goal

The OHRC remains concerned about the lack of broad public awareness and support for the AODA and its goal of an accessible Ontario by 2025.

While transparent accountability will help promote compliance, the OHRC recommends undertaking more activities that aim to raise public profile and understanding of the AODA and Building Code and foster collective support for reaching the goal of an accessible Ontario by 2025. Activities could include, for example: celebrity awareness campaigns; school curriculum about human rights and the AODA; and, more training with professional and trade schools and accreditation institutions involved in public education, health care, architecture, engineering, industrial design and community planning.

Finally, the OHRC recommends that Ontario’s accessibility action plan specifically identify annual promotion and compliance activities, targets and timelines, with annual updates, for accomplishing the AODA goal of an accessible Ontario by 2025.

Conclusion

The OHRC has a long history of supporting the development of Ontario’s accessibility legislation and standards as well as providing input to your predecessors on the first two AODA reviews. This past spring, we made a submission on the Employment Standards Development Committee’s 2018 review - initial recommendations report, attached, which may be relevant to your review. Other AODA submissions including the OHRC’s 2014 submission on the second AODA review and the OHRC’s 2013 submission on proposed changes to the Building Code Regulation are available on our website.

We also encourage you to review Manitoba and Nova Scotia’s accessibility legislation, as well as the proposed Accessible Canada Act currently before Parliament, and consider whether these laws set new progressive benchmarks that Ontario might adopt to help meet its goal of an accessible province by 2025.

The OHRC would welcome an opportunity to meet with you to discuss our recommendations. Please do not hesitate to contact me directly.

Sincerely,

Renu Mandhane, B.A., J.D., LL.M.
Chief Commissioner
Ontario Human Rights Commission

cc:       Hon. Raymond Cho, Minister for Seniors and Accessibility
Hon. Caroline Mulroney, Attorney General
OHRC Commissioners
David Lepofsky, Chair, AODA Alliance