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2005 to 2014, progress in Ontario
towards full accessibility for people with disabilities.
David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance.
Delivered at the Osgoode Hall Law School, February
3rd, 2014, as a Roy McMurtry clinical fellow.
>> Good afternoon everyone.
In a series of lectures I'm giving during my month here at Osgoode Hall Law School,
I'm, I'm trying to give the whole history,
background, strategies, and results of a grass roots campaign
that's gone on for many years in Ontario
to tackle the barriers many people with disabilities face,
and to use the law to solve those
barriers, to achieve our goal of a barrier-free society.
What I'd like to do today is talk about our results.
What have we accomplished.
In 2005, the Ontario, Legislature unanimously passed and applauded
the Accessibility for Ontarians with Disabilities Act, or AODA.
I had the privilege of leading the
decade-long nonpartisan fight to win us that legislation.
It's now been nine years since it's passed.
What did it guarantee, and how are we doing.
What have we accomplished.
This is about results.
So, before I jump into the results, I gotta tell you a bit about the problems.
This is covered elsewhere in some of the
lectures in this series, but I'll do it briefly.
We've got at least, 1.7 or 1.8 million people with
a physical, or mental, or sensory disability in Ontario right now.
That number is growing as the population ages.
When those folks try to get a job, or an education, or use transit services, or go
buy goods or services, from stores, they face barriers everyday of their lives.
Some of them are physical, the building may be physically inaccessible.
Some of them may be technological, their
website might be inaccessible to the adaptive
technology that a blind person like me uses to read what's on a computer screen.
Some of them may be bureaucratic, some may be attitudinal.
They're all illegal since 2000, pardon me, since
1982, they have violated the Ontario Human Rights Code
which guarantees, equality for people with disabilities without
discrimination in areas like employment, housing, goods, and services.
Since two thou, since 1985, in the case of public sector organizations, they violate
the Canadian Charter Rights and Freedoms, it's section 15 guaranteed equality.
The problem with those laws that drew, drove many of us to fight
for a disabilities act was not that they weren't, were, were poorly worded, or
that they were badly interpreted by courts,
but rather but to enforce those laws,
you had to bring, human rights or, charter claims one barrier at a time.
Individuals had to be the cops, and they could run up against huge battles, if they
took on that, by, by, organizations that might
be well funded, well oiled, and well lawyered.
And, most people with disabilities don't have the time, the
resources, and the opportunity to wage those kind of battles,
and even if they all did we'd still, we've faced
to many barriers to, to, to tear down that way.
So, our solution was a new law.
So, what did we win in 2005.
They AODA is an important and ground breaking law in
Ontario, and the legislature, the governing liberals under then Dalton
McGuinty the opposition parties which voted, all voted for it
have much to be proud of for their unanimous support.
The first thing it does is it
requires Ontario to become fully accessible by 2025.
It gave 20 years.
Next, it requires the Ontario government to lead us there, not to pay for
it, but to lead us there, and it does so by two major roles.
The government is required to develop and enact a series of accessibility standards.
An accessibility standard is a regulation, or
a law, that speaks to a particular sector
of the economy, or a particular area of human activity, and it says, hey folks,
you in that sector, you gotta tear
down these barriers, you gotta prevent these barriers,
and here what, here's what you gotta do, and here's when you gotta do it by.
So they provide clear, they're supposed to provide clear direction and
the AODA doesn't just let the government make these standards it
requires the government to do so, and to enact enough of
them to ensure that we get to the goal of full accessibility.
The second thing that the AODA requires is that the government
effectively enforce these standards, and
it gives the government enforcement powers.
Now, in other lectures in this series, I talk about the fight to
get this legislation, the design of the
legislation, how accessibility standards are actually made.
Today, I'm just jumping to results, but as I address this, results, results, I have
to a kind of a concept or a picture in your mind to bear in mind.
If, if you were the victim of an
individual act of discrimination, I was when the Toronto
Transit Commission refused to consistently announce all subway
or bus stops for the benefit of blind people
like me, you had bring an individual case,
and if the case went to full litigation, there's
the opportunity to sit down with the organization
on the other side and, and negotiate a resolution.
Now, in those two cases, we weren't able to
settle them, I had to go to a full hearing.
But many, if not most, human rights claims get settled.
Think of the standards development process,
the development of an accessibility standard, just
like creating one huge negotiating table to
settle a bunch of human rights complaints.
So, if you do a transportation standard,
it provides an opportunity for the disability community's
representatives on one side of the table, and
the transportation sector on the other side of
the table to work out what are the
barriers, what are the problems, what kind of
fixes can we do, make recommendations to government,
and the Government can decide what to do.
And the advantage of this format is that if
they come up with good measures, that's great, but
if the measures they come up with are too
weak and don't meet the stringent of requirements of accessibility
in the Human Rights Code and Charter of Rights,
it always remains open to an individual to bring a
human rights, or charter case, to enforce their rights,
to say those standards under the AODA aren't good enough.
And that was part of our design.
We didn't want the government in enacting an
accessibility standard to be able to reduce our rights,
and this disability act specifically says, if another
law provides more accessibility, that's the law that prevails.
So how'd we do.
The conclusion I'm going to take you to is that we've made, I
believe, progress since 2005 that we would
not have made without the Disabilities Act.
So, this has been a fruitful and a worthwhile venture.
But, we are certainly way behind schedule in achieving full accessibility by 2025.
We are not where we should be, nine years into this.
And, unless something changes dramatically, we will
not reach full accessibility by 2025, or ever.
The lecture I'm gonna give tomorrow at York Lanes
will go, will review strategies that we are undertaking now
to try to kick-start this process to get gov, the
government of Ontario back on schedule, where it should be.
But we are so, on the one hand, the good news is, this
has been worth pressing because we've
made, we're creating more activity to remove
and prevent barriers against people with disabilities than, than we would have if
we'd just left it to individuals to litigate them, and didn't have the AODA.
But, the AODA has not lived up to its promise, anywhere near it.
So, to the results.
The first thing I need to focus on is where the government started.
In 2005, the government decided that
it would make five accessibility standards first.
We thought the choices were good.
One was in the area of customer service, second
was in the area of transportation, third in the
area of employment, fourth in the area of information
communication, and fifth in the area of the built environment.
Let me tell you what we've gained so far.
They were all good choices.
They don't cover the whole waterfront, we need more standards now, but
at least as the first five to tackle, they were a good choice.
First, the Customer Service Accessibility Standard.
It was the first to be enacted, it was passed in 2007, it is limited in scope.
The idea of an accessibility standard was that it would list barriers you've
gotta remove or prevent, and tell you when you've gotta do it by.
For the most part, this standard, only eight pages long, didn't.
It tells organizations, to provide goods or services to the public that they
must develop an accessibility policy, that they've got to train
their employees on it, that they've got to have a customer
feedback system for people to file complaints if things aren't going well.
Now, those are useful things to do, but we
wanted a standard that actually told those who provide
goods and services, not just have a policy, but
here are the barriers you should be fixing, or preventing.
So, it served as an icebreaker, that's good.
Got organizations talking about accessibility, that's good.
If they deliver goods or services.
But on the other, and it did actually
motivate some organizations to actually do what they're told.
And it did lead some organizations to
go even beyond what the specific standard requires.
That's all good, but the three major flaws with
it, the first I've already identified is that it did
not actually specify the range of barriers it should have
so that organizations would know exactly what they've gotta do.
The whole idea of standards is so
that each organization doesn't have to reinvent the
wheel, and so that we folk, folks with
disabilities know what we are entitled to get.
The second flaw, oh, is that the standard, and this applies with all
of the standards, with only a couple
exceptions in them, had crazy long timelines.
They gave the public sector, government, school boards, and cities and so on,
universities, til 2010, just to come up with a policy
that they could have devised within a few weeks, trained their
staff in in a few weeks, and, setup a feedback mech, mechanism.
They got three years.
Even more crazy, they gave the private sector up til 20, the end of 2012, which
is way too long, way too close the end
of the 20 year, hor, event horizon for this legislation.
The final problem with the Customer Service Standard is it actually, and we
would say wrongly and impermissibly, purported
to authorize the creation of a barrier.
It provides that an organization that provides goods
or services can decide that you with a
disability are essentially a danger to yourself or
others if you come into their, their, place
of business alone, and to require you to bring a support person, and to be also
free to charge a second fee, or admission
fee if there is one, for that support person.
We say that shouldn't have been there in the first place, that the
accessibility standards are there to get rid
of barriers, not authorize or create them.
Nevertheless, it was an icebreaker, it was the first, the start.
What about the other areas.
Well three of the areas I've listed, that they dealt with,
transportation, employment, and information communications, were
all regulated in June of 2011.
A single regulation was passed, it's called The Integrated
Accessibility Standard Regulation to address all three of those areas.
Let me tell you what we've gained.
I'm summarizing, there's a lot more detail in them, more than
I can cover in the time of this, of this lecture.
First, before it delves into the specifics of either of any of
those three important areas of activity,
it's set some important general requirements.
Any organization that provides transportation, or has employees,
or that, could need or provide information
communication, or use those, they've gotta, number one,
create an accessibility policy to deal both
with the requirements of the Act, of this regulation, and generally, to get to
full accessibility.
Second, they've gotta develop, in the case
particularly of large organizations, an accessibility plan.
And it's gotta have detail on how they're gonna implement their policy.
It's also, gotta be implemented.
It's not enough to just have a plan, they've got to implement their plan.
And finally, after a certain amount of time, those plans are
multi-year plans, like five year plans, but every year after they
establish that plan, for large organizations, they've got to, excuse me,
develop and make available on, to the public, an annual status report.
How are they doing.
Now, these three measures together force an organization in effect,
to look at their accessibility problems or issues within their organizations.
And that's really important because when we present
bar, or we identify barriers, the person with
a disability goes to a, agovernment office, or
a private office, or whatever, and says, hey,
I, I can't work here, or I can't benefit from, from the services you provide, I'm
facing a barrier, the common answer we got,
we get is, oh, we never thought of that.
And, requiring organizations to have a policy, have a plan, do status
reports and implement their plan, in an sense says, think about it.
And it targets one of the inherent
problems that leads to the barriers we face.
So, all of that's good.
There's some more general requirements
organizations within certain, government and,
and, and, particularly have to make sure that when they use
public money to buy goods and services, that they take
into account accessibility so they buy things that, we can use.
When they set up electronic kiosks for us to,
to, access services, they should be, include accessibility features, too.
These are all steps forward.
These, like other requirements in the standard,
have exceptions that we think are too broad,
but they, that concern is tempered by the
fact that the Human Rights Code still prevails.
And an organization, we always caution, that thinks that they can rely on the,
broad exceptions in these regulations is taking a huge risk because
they may not, they may think that they're complying with the AODA standard,
but they're not necessarily complying with the requirements of the Human Rights Code.
Any organization that's going to try and do work
in these, this area of accessibility is going to
wanna do what they need to do to make sure they're on the right side of the law.
And to the extent these standards fall short of the Human Rights
Code, and believe me, they do, we think they're a missed opportunity.
Helpful, but a missed opportunity, and they generate the risk
that an organization may say, hey, wait a minute, I thought
I complied with that standard, I did all I gotta do,
what do you mean I now face a human rights complaint.
And an organization that is that
frustrated is entitled to be that frustrated.
We'd like to see the standards strengthened,
or at least an organization be warned of
how far they've gotta go to comply with
the Human Rights Code, not just these standards.
Anyway, let me now go past these general provisions to tackle the three
specific areas that the Integrated stan,
Accessibility Standard of, of 20, 2011, touches.
First it regulates transportation.
This is huge for people with disabilities.
I gave an entire lecture on this subject, which will be available on video as part
of this lecture series, so I'm only going to now touch on a couple of high points.
The transportation provisions help by delineating, requirements
for accessible public transit vehicles, and requirements for
parallel transit, in Toronto it's called Wheel Trans,
for those who can't ride the conventional system.
But, it's got a number of major, major flaws.
First, this part of the standard, like most, if not all of
the standards the government passed, really
owns, only aims at preventing new barriers.
Now, preventing new barriers is important,
making sure that public transit authorities only
buy accessible vehicles to be used by the public, that's important and that's good.
But what about all the inaccessible vehicles that they're gonna have
on the road for the next 20 years till they wear out.
The standard purports to say that they don't need to
be retrofitted, generally with a couple of very narrow exceptions.
Well, if the retrofit could be done at
reasonable cost, but could provide real accessibility, that's wrong.
Maybe not for the vehicle that's gonna go out of
service next week, but the one that was bought 20 minutes
before the standard went into effect, we shouldn't have to
wait the 20 years or whatever that that vehicle wears out.
Moreover, the standard actually authorized organizations,
transit authorities, to keep buying inaccessible vehicles
all, contracting for them all the way up to July of 2011 even
though the transit sector knew these standards were coming, were at the table
when they were being negotiated, had a lot of input into what they say.
That's just wrong.
It also violates, in our views, Supreme Court of Canada
case law about the not, duty not to create new barriers.
Finally, or second, the transportation standard does not address accessibility
in public transit stations, union stations, subway stations, and so on.
And, there are a number of barriers there that are pretty important.
Accessible vehicles aren't very useful if you can't get on them, or if you
get off them in a station, but you can't get out of the station.
Finally, the standard, deals with a couple of
areas that are important, like accessible taxis, accessible
bus stops at the roadside, not by saying all of what needs to be done and
by when, but simply by leaving it to cities to decide what needs to be done,
and when, as they regulate trans, state taxis,
or decide what to do with their bus stops.
The problem with that is it means we gotta have every city reinvent the wheel, make a
lot of mistakes, and we've got to now
lobby city by city rather than one provincial government.
It defeats the purpose that the Disabilities
Act was passed for in the first place.
Let me turn to the area of information and communications.
This is a hugely important area, and it's probably
the area where we've made some of our greatest strides.
Think about it.
When you go to work, or to school, or to buy goods or services,
or engage in any kind of commerce, communication is at the core of it.
Reading what's on their website, reading materials that they make available for
you to, to read if it's option, manuals, catalogs, reading materials at school.
Talking to people, talking to the person over the counter
about what they're selling, or about what you want to buy.
Knowing what your professor is actually, or teacher is saying in school and so on.
For people with communication disabilities, or information
disabilities, these are huge, the barriers to,
accessible information and communication are, are enormous
and are a huge impediment to full participation.
I think it's to the government's credit that
they did tackle information communications as part of
the 2011 integrated regulation, accessibility regulation, and there
are a number of good components in it.
These are subject to our general criticism that the timelines
are way to long, and the exemptions are way too broad.
But, I'll just summarize some of what's in there.
First, they require organizations, that provide
goods or services, to provide information supports.
For a blind person that might mean, mean access to information and audio recorded,
or, in braille, or, in large print if they're low vision.
Similar for people with dyslexia, they may need it,
in an electronic version that their computer can read aloud.
For people with hearing loss, there's alternative
kinds of communication that work for them.
Some use sign language, some use lip reading,
some use captioning, there's a range of different needs.
The regulation doesn't detail exactly what you give and when to give it, but
it does set up a framework for
requesting these kinds of accommodations, and, and supports.
And that, is a real step forward.
Perhaps the most, specific step forward in this regulation, in
the area of information and communication, relates to website accessibility.
Now, if you're sighted, you're used, and not dyslexic, you're used to
just going on your computer, logging on a website and using it.
Point and click and so on.
If you've got a mobility disability, if you can't use your hands, you may
have problems using a mouse, and, there is access technology to conquer all this.
But, for those of us with print disabilities, with visual
reading disabilities, whether visual impairment,
or dyslexia and other disabilities, there
are ways to format a website that makes it easier
for our computers, using our screen reading access technology, to access.
And if they, if, if they use those design techniques in the architecture of
their website, that actually enables us to fully, use them, and, in fact, opens
through the internet, an entire world of
information accessible without needing anyone's help, that
was never available to me 35 years ago when I went to this law school.
The revolution in access to printed information for people
with vision loss since I was a kid is breathtaking.
I would compare it to the difference between taking a horse and buggy to
go from Toronto to Florida, to taking a, airplane to go from Toronto to Florida.
It is absolutely transformative.
However, if when a website is designed, the right architecture is
not included, which is easy to include to ensure that our
screen access technology can access it, we don't get the benefit of
those websites, we don't get the benefit of that transformative change.
Instead, we find that yet another accessibility
door has been slammed in our face.
Now, what did the government, do here.
By the way, the changes in a website, or
the architectural features in a website, that make it
more accessible to us, also make it easier to
use for everybody, and especially those using smart phones.
So, this isn't a question of what do we require them to
do that, benefits us in, in, at the price of everyone else.
It actually benefits everyone the same way that when the TTC calls root
stops for benefit of a blind person, like me, it also helps sighted folks.
Same way a ramp, instead of steps, in front of a building helps people with a
baby stroller, a shopping cart, a bag on wheels, or a wheelchair and a walker.
Well, what the government did is, they relied
on and they accepted our position that they
should require, over time, that websites conform with
an international standard that's been set for web accessibility.
The fancy letters are WCAG or World-Web Content Accessibility Guidelines, 2.0.
These were developed some years ago.
They have three different layers, levels, single-A, double-A, triple-A.
Triple-A is not meant as a regulatory, lever.
We wanted double-A.
The government has regulated, required itself to achieve double-A over timelines
we say are too long, but at least it set them.
And for other organizations they say single-A rising to double-A.
This is foolish because what they're really telling people is
reengineer your practices once to meet an inadequate lower single
A standard, and then later, go back and learn all
over again to start meeting a more useful double-A standard.
And, they set timelines for them that are so long that I think that by the time
the last of them kicks in there'll be a WCAG 3.0, and this will all be moot.
It will be superseded.
But, in any event, it is a step forward.
I think any organization that's smart is gonna
go to double-A right now ahead of the timelines.
Why bother running the risk of being sued.
It's happened in the states, Target Corporation was sued
for inaccessible websites successfully, and it's happened in Canada.
A blind woman named Donna Jothand successfully
sued the Canadian government for website inaccessibility.
The federal government was, was given 18 months to fix their, websites.
Now, the Government exempted some technical standards for, a
number of years, I, I don't want to go
into the details, I can answer questions on it,
but all in all this is a significant step forward.
Finally, in the area of information communications, the standard
does set requirements for educational institutions, like this one.
It requires that when they get, provide books like you
read, for courses, they should be trying to acquire them
from suppliers who can also have ones that can be
provided to students, with print disabilities in an accessible format.
Since books are now no longer written by pen, or on
a typewriter, they're written on computer probably in a program like Microsoft
Word, the, publisher at some point has the document in a format,
like Word that we could readily read with the right access technology.
If you have a iPhone, by the way, you can buy one app for $10, that I use everyday.
Upload any word document in it, tap, and your
IPhone is reading it to you, or your iPad.
I mean, this is, we're not talking about expensive access technology.
But if the formats are in, are, are problematic formats, we can't read them.
So, the idea of Universities having to aim to procure, materials for use in
courses, that we can actually get access
to quickly, would overcome barriers that I've faced
when I was a student here, and as an undergrad, and in high school, and
that, students with disabilities, print with disabilities
continued to face over many years since then.
It also requires publishers, to sell books to institutions like this, to
make product available with an accessible
format option, and that's a significant breakthrough.
And finally, it requires any educational organization like this to train their,
the people who teach you, on how to teach in an accessible way.
That's a breakthrough.
There are requirements about libraries procuring accessible product.
There's a lot of accessible product that they can procure.
We think the requirements and standards should've gone further.
Let me turn to employment.
Employment is, of course, fundamental, as is,
are all the areas that these standards tackle.
What we wanted was a standard that would describe to the employer of today what to
do to make sure that their workplace five years from now is a fully accessible one.
Five years, you could say six years, whichever.
The fact is that the workplace of five years from now has not been designed.
For a lot of organizations, they don't know what building they'll be
in, and frankly, a lot of people don't work on site anyway.
The technology, the software, the processes that they will
use in five years, in many cases have not been
acquired yet, they've not been purchased yet, they've not
been contracted for yet, they've not even been designed yet.
So, if employers set about today on an aggressive strategy to
make sure that the workplace of five years from now would
be barrier-free for people with
disabilities, they could accomplish a great
deal by planning ahead, and at very marginal cost in most cases.
The standard, for the most part, doesn't do that.
It does require all organizations, and
their accessibility plans, to detail what they're
going to do to implement the standard, and to remove and prevent barriers.
And that, we believe, is general language that
should require the kind of planning we're talking about.
But the standard would have been way more effective if it then went into detail.
Each employer shouldn't have to go out and figure out themselves what they
need to do to reach that goal five or six years from now.
It would have been much better if the standard did it for them.
Instead, what the standard does, and it's helpful, is it takes
something the law already requires and tries to make it actually happen.
There are two ways to achieve accessibility in a, in
a place of employment, or a school, or anywhere else.
One is plan for an inclusive environment.
Plan for a workplace that's barrier free.
That'll get you a good chunk of the way.
But, the other thing that will invariably happen
is you'll have an employee or some employees
with disabilities who, no matter what your, your
arrangements are, they may need an individual accommodation.
And the human rights code provides a duty to accommodate employees with disabilities
up to the point of undue hardship on the part of the employer.
So, the standard doesn't touch that duty.
It doesn't change that duty, nor should it, or would it, or could it.
But what it does do, is it tries to
get employers to actually live up to that duty.
It takes a bunch of practices which make,
frankly, good sense, and I gather a number of
large number of organizations already use, and it sets
it as a requirement for all but smaller organizations.
It requires throughout the employment life
cycle, interviewing, recruitment, hiring, training, promotion, and,
if you go off work on disability, return to work, and your evaluation.
It specifically says that, that the employer has to have a
plan, that they work out with you the employee with the
disability, on meeting your accommodation needs, and that you've got to
make sure they know about the availability of these kind of supports.
In a province where too many employees don't
know what they're entitled to, and not enough
employers know what they're obliged to do, this
can cause a lot of success, I believe.
It will not completely solve the problem.
To completely solve the problem, we need employers
effectively planning for that barrier-free workplace of the future.
By the way, if you're even spending
a moment thinking about, well, what does this
cost, the fact is by planning for the future you build it into the cost
of running your business, and by achieving
full accessibility you open up the workplace to
a greater pool of employees, and, as our
population ages, a much greater pool of employees.
So, in effect, this is a money maker
for any organization that seeks profit, we believe.
Moreover, removing workplace barriers also helps ensure that the
organization will have a barrier-free
environment for customers with disabilities.
So, it's a win-win for an employer if they can hire, have
access to a broader labor, labor pool, and a broader customer base.
Certainly worth the money.
That's employment.
So, those are the three areas that were regulated in 2011.
Let me turn now to the final area that the government said that they would
regulate, and that at least in one posting they claim, they've finished regulating.
And we disagree.
And that is the area of the built environment.
Physical buildings, indoors and outdoors.
You don't have to spend much time trying to make your way around our
community before you find out that we have a community full of barriers.
In government, in public sector settings like schools, in public
transit, and in private settings, businesses and so on.
These barriers hurt everyone, they help no one.
And if you look at the legislative history of the AODA,
back between 2004 and 2005, as all three political parties, got on their
feet to support the AODA, and in some cases urged that it even be strengthened,
many references were made to the need to fix our built environment.
And when the government proposed 20 years
for implement, achieving full accessibility, it's because principally
they thought that the built environment was gonna
be one of the toughest nuts to crack.
And the hypothesis underlying, or the hypothesis, the policy underlying
the AODA, if barriers are easy to remove, do it fast.
If it costs or takes more effort, costs more or takes more effort, take longer.
But 20 years was viewed, unanimously, to be enough.
So how are we doing.
The government decided a built environment accessibility standard
is needed, and they set about developing it.
That's good.
Where we got to is substantially incomplete.
The government split the end product into two pieces.
They decided to deal with inside the
building by regulating it under the building code.
The building code is a law that stipulates what buildings, what
requirements you have when you build buildings, with a few exceptions.
They decided to create a second, or separate,
standard under the AODA, to deal with what they
call public spaces, things the building code doesn't, code
doesn't regulate, recreational paths, parking spots, and the like.
Let me tell you where we've gotten so far.
For one thing, the government decided when they embarked on this back in, 2008
or so, they decided that the first round of
regulatory effort would only deal with new construction or substantial renovations.
See the building code doesn't require you, for
example, to go back and retrofit anything, unless
you're doing a, ren, major renovation, and then
only in the area you're doing the major renovation.
Well, most buildings in Ontario are old,
and aren't going away, and aren't being renovated.
So, the government decided to do that first, and ipso facto
decided that they were gonna leave most built environments barriers untouched.
The government's answer is, okay, we're going to
do that first, so we set the benchmark of
what new construction should look like, and then
after that we will come back up through the
standards development process, deal with the issue of
retrofits, of fixing buildings which are not now under
renovation, and are not going to be renovated,
in the for, you know, for the time being.
That's what they said.
They've since passed a public sec, a public spaces accessibility regulation
to deal with outside the buildings, and at the end of
last year, at the end of December of 2013, they passed
amendments to the building code to deal with inside the building.
Let me tell you what we got, and let me tell you why it's inadequate so far.
Helpful steps forward, but again, lost
opportunities, and certainly not enough to get
us to a fully accessible, barrier-free, built environment in 2025, or indeed ever.
First, the public spaces regulation.
It deals with a range of areas,
beach, recreational trails, and beach access, routes.
It sets some good technical standards about making sure they're accessible.
By the way, everything that they're doing for people
of mobility disabilities, if you're a hiker, you could
say that that's just a whole lot less tripping
for me, and stumbling and falling, and hurting myself.
Which is good it's going to mean not, it's going to be
helpful not only for people who have ex, explicit mobility, disabilities, it'll be
helpful for seniors who want to go for a walk and just
can't go that far, and for whom these supports will, will be helpful.
But they are limited by a number of unreasonable limitations.
They take way too long to go into effect, you've heard me sing that song.
They are only applied to a trail, or a beach
access route, that the organization creating them intends to maintain.
Now superficially, that means all an organization has to
do is say, I built it, here it is,
I hope people enjoy it, I have no intention
of ever maintaining it, and they're off the hook.
Our answer is, that wording, is, should not be read that way,
and it should be read narrowly so that it must require a demonstrated
ongoing commitment in unequivocally to never maintain it at all.
So, as long as there's some chance they're gonna any maintaining
ever, that exemption should not come to the assistance of an organization.
And any organization that thinks they're gonna rely
on that exemption is running a big risk.
Moreover, their inaction could trigger a human rights complaint, whether or not
it constitutes a contravention of the
Public Spaces Accessibility Regulation under the AODA.
The second problem, and this recurs, is the
government created these huge exceptions for these, for, for
anything that, I'm gonna paraphrase, might adversely effect certain natural
environment considerations, or heritage properties, and so on.
And these exemptions are way wider then the
undue hardship requirement of the Human Rights Code.
There is no justification for saying we are going to make the,
we can't make this trail accessible
because it might adversely affect heritage.
There is always, they've made the Wailing Wall in Jerusalem, its only what 2,000
years old, they made that accessible, the Parthenon in Greece, the Osgoode
Hall, the other Osgoode Hall, the one downtown, I'm going a little closer
to contemporary, built in the, whatever, 1850s, used to have steps at the front.
They put a ramp in.
It's different than the steps, but it works, and everybody
likes it, especially, I might add, lawyers with law books
in bookcases on wheels, which of course is every, most
of who is going in and out of that building.
So, these exemptions were, were included in terms
that were way too broad, and we feel that
any organization that thinks they are going to
rely on them is doing so at their peril.
The, nevertheless assuming organizations still try to
hide from those kind of requirements, this standard,
unlike the Customer Service Standard, unlike the
Employment Standard, set some detailed, specific technical requirements.
How wide the path angles, what you should have at the edges so
people don't fall off or hurt themselves, when and where railings, and so on.
And all of that is actually quite useful.
The Public Spaces Regulation, then goes on,
to deal with certain other public spaces.
For sidewalks, only new ones, or redeveloped ones, it provides requirements
for accessible curb cuts, those are the, where, where we don't
have a step down at the edge, so that, people with
mobility devices, like wheelchairs or walkers, can get down to the street.
But for blind folks like me, a curb cut
that just ramps down to the street is actually
dangerous, cuz our cane doesn't warn us, hey, you've
left the sidewalk, enjoy those cars coming at you.
So, there is a solution, and the standard actually
sets it, and this is groundbreaking, and this is good.
They require, at those edges, what are called tactile walking surface indicators.
It's a bumpy surface that our cane can detect,
or if you're using a guide dog, your feet
can detect, which help you know that you're in
a, you've changed from the sidewalk, to the street.
We wish there was a requirement for retrofits at major,
intersection, but at least for new ones, that will be helpful.
The Public Spaces Standard also requires, everything in this is like
good news on the one hand, and bad on the other.
It requires that new traffic lights, or redeveloped
traffic lights, I don't know who redevelops a traffic
right or renovates them, but in any event, they
have to include what's called an audible pedestrian signal.
You may have seen or heard these in
some intersections, where, where it beeps, when you,
when the light changes, so someone who can't
see the light changing can know it's changing.
This is good.
The problem is, it allows them, it gives the, the
option to a municipality to not have it run automatically, to
require an individual, visionless, to walk over to have to grope
it and find a button and push it to trigger it.
I will tell you that there are a number of,
automatic or, audible pedestrian signals in Toronto that have that feature.
I have tried using them, it is a royal pain.
I pretty much don't bother.
If I've got a white cane in one hand, a briefcase
in the other, gloves because it is Canada, and it gets
cold out, and I wanna get home, going over and trying
to find the pole, they have a beep coming from it,
but it's not always audible over traffic signals, and then find
the button, and then press it, and then wait it, for
it to run a couple of traffic, or a traffic cycle,
there are other ways I'd rar, I rely on my earlier training,
on how to cross streets without the benefit of them.
This worries me because I don't want
municipalities, and we don't want municipalities to install
these and then say, we put all this money into them and no one's using them.
The solution is to make them operate automatically, not
at, with a push button, especially in non-residential areas.
Some people say they make too much noise.
There are white noise versions of them that are
quite audible, but don't have to be, as intrusive.
If you go to Australia, there are tons
of these out there, not just at major intersections.
Another example of a good step forward, at the
same time is to some extent a lost opportunity.
With respect to public spaces, I will tell you they also,
cover things like accessible parking for parking lots and on the street.
For parking lots, they set actual specific
requirements, proportions, or ratios, and so on.
But for, for city parking, they just say, hey city, you figure it out,
which we do, we think again, requires us to go lobbying city by city.
Accessible playgrounds.
If you're gonna build a new playground, it says include
accessibility features, and consult with people with disabilities on them.
It's helpful, but it would've been way more
helpful if it said, here are the features
to include, rather than leaving it to everybody,
any municipality building, a playground, or a pri, a
school, or whatever, to have to incur the
cost, and the burden of going out and figuring
out, what, how to invent that wheel that
others have already invented, with, in, in the past.
There are other public spaces requirements, they're similar in
the sense that they, they target things we need
to fix, but they don't have enough detail quite
often, and I think that what was going on
is the government was at certain points was getting
chicken that if they got too specific that, organizations
in the public and private sector might get upset,
that why are you telling us all what to do.
The fact is, in my experience, they wanna know what
they gotta do so that they've complied with the law.
In one case they say in public, in service areas, that's where
you go to a, an office, they have a counter, and they
have a queuing line, that the queuing line has to be properly
designed to be accessible, and they should have at least one low counter.
That's great, but they don't say how that, how tall the counter should be.
And an organization is left then to guess how tall they gotta
make it so that they don't get exposed to contravention of the law.
Just misses the point of what a good and effective accessibility standard would do.
It's helpful they regulated it, they should have gone further.
Let me turn very briefly to the issue inside buildings.
Just last December, as I said, the
government's passed some amendments to building code.
And they are helpful, again they don't go
far enough, but there are several problems here.
The first is, I have to say the building
code's been a problem for us for a long time.
Since 1975 it's purported to set accessibility requirements
and it's always been incomplete and out of date.
It was so incomplete and out of date that we needed
the AODA passed so we could get this issue away from
the building code people, and back in the hands of people
who might actually come up with solutions that meet our needs.
So what happened.
After the government got proposals from, a built environment standards develop,
development committee that was convened to put forward ideas, they took the part that
could be dealt by the building code and gave it back to the
people who do in the entire government, who deal with the building code.
So it went right back to where the problem came from.
It then languished there for years.
Years.
And what they ended up coming up with, while helpful, was always constrained by
things like, oh, we can't do that because the building code doesn't let us.
That might be good policy, but we can't do that cuz the building code doesn't let us.
They come up with standards which in the end don't
fulfill the Human Rights Code, don't meet, rise to its requirements.
And again, a lot of builders think, like others, that
all they gotta do is comply with the building code.
They don't know from the Human Rights Code.
What we have said to the government is this, we don't
mind if you've amended the building code, but you've got to
keep your commitment to go further, and you've gotta pass a, an, accessibility
standard to deal with future retrofits in non-renovated old buildings.
And to this day, the government has never said yes.
They put a commitment to do that on their website in '09.
We copied it onto our website.
They've since taken down that page of their website.
But we have preserved it.
You can't just take a page down and think the promise is gonna go away.
That's what we're there for, to hold them accountable.
But the other thing we've asked them to do is this,
we're entitled under the AODA to standards enacted under the AODA,
and there's a bunch of procedural protections I deal with in
other lectures and a bunch of safeguards for the disability community.
We don't have those in the case of the building code.
We've asked the government to take whatever they put in the building code
and enact it in a parallel standard under the AODA for the built environment.
It can regulate the exact same things in exactly
same way, but so that we have access to
the whole machinery and the AODA to enforce it,
and to have it reviewed, with our entitlements for input.
The government hasn't answered.
So, let me take the last few minutes to, so, so that's where we are.
So, if all these standards that are on the books were complied with
to the letter, we would not achieve full accessibility by 2025 or ever.
But on the other hand, they will help, and they certainly move us considerably
further forward than we would have been if we had not, got, had this act at all.
Let me take the last few minutes to talk
to you about, where we've come on other important
fronts in achieving the goal of full accessibility by
2025 apart from the actual making of accessibility standards.
Well, the first thing that will come to
mind is, okay, that's great they made these standards.
What about enforcing them.
In the act the government gave itself, effective enforcement powers and we have
repeated written promises on our website at
aodaalliance.org, that they would effectively enforce it.
They can audit organizations, they can inspect organizations, they can issue
compliance organizations and there's authority for
very stiff monetary penalties for contraventions.
Well, enforcement, unfortunately, is not, has not been happening up til last fall.
We actually wrote the government a year ago, a year ago and
said, can you tell us what you're doing about enforcing this law.
Under that Customer Service Standard, the one with the not very
onerous requirements that gave businesses like five years to comply, all businesses
with 20 or more employees had to file, or e-file, a
self report with the government by, the end of December of 2013.
And all they had to do in that is say, you know, I've got a
policy on the customer service, I've trained my
staff, and I've done the other measures needed.
A self report.
I'm not talking about an income tax return,
we're talking about a very simple self report.
We asked the government a year ago, how many of those organizations
did file, and what are you doing about the ones who didn't.
The government did not answer.
We ran a count up on Twitter for months on their failure to answer.
Last summer, I had to resort to a Freedom of
Information request, and I finally got the answers last November.
And they ended up on, prominent coverage in the Toronto Star, and
in an editorial in the Toronto Star cuz the news was so bad.
What did we find out.
Of the 36 or so, or, pardon me, all the private sector
organizations in Ontario that had to file one of those reports had five
years to do it, by, of all those with 20 or more employees.
By the end of last year, by the end of,
or by the middle of this past November, even eight
or ten months after the deadline, fully 70% were in
violation of the filing requirement, and the government knew it.
It was higher a year ago, it had gone up to just,
un, to 70% of not, or I should say down to 70% non-compliance.
That is pathetic, and the government knew it.
So, the question is what were they doing about enforcing it.
Well, we revealed through our favorite information request that
the government had not issued a single monetary penalty,
they'd not issued a single compliance order, they'd not
conducted a single inspection or a single audit of any
of those organizations even though they knew for months
about this rampant non, contravention, and even though they
withheld the information from us, and forced us to
resort to a Freedom of Information request to get it.
Well, you might wonder, well, is it a problem that the
budget's really bad, they just don't have the money for the enforcement.
So, I asked how much the government,
government annually gave to the office that had
this mandate, it's called the Accessibility Director
of Ontario, and how much they actually used.
Cuz you'd think, well, they must be over budget, they just don't have the time.
Turned out they're under budget every year.
Sometimes in excess of $1 million a year.
From 2005 to 2013, they had not used a total of $24 million appropriated to
them over that, I don't mean in one year, but, spread over the whole period.
So, they weren't enforcing, they knew of
rapid contraventions, they had the money to
do it, they had the power to do it, they just weren't doing it.
And they promised effective enforcement with the
lead minister responsible, Doctor Eric Hoskins, had
months earlier, said that this act, accessibility,
is his top, and his government's top priority.
Heck of a top priority.
So, that's where we're at on enforcement.
Needless to say, we have been, working *** that one.
There are other areas where we are, undertaking advocacy.
I'm gonna do very, very, very quick, bullets because they,
they're part of the campaign to try to get full accessibility.
We are concerned that Ontario laws not either authorize,
or require discrimination or, or create or perpetuate barriers.
So, in 2007 we asked the government to undertake a
review of all its legislation to re, to identify, accessibility problems.
The Premier in '07, Dalt McGintey, promised it.
They didn't start til around 2011.
It's going on now.
Again, too slow, but it's an interesting area of trying
to affect social change, not through challenging laws in court,
but trying to get the government to look at its
own legislation and figure out what it should be doing.
Another area in which we've been active is trying to use the public purse.
The government spends billions every year on
capital infrastructure, and not just government buildings, but
giving money to colleges, and universities, and
hospitals, and so on, and municipalities for buildings.
And it also spends billions every year buying goods and services.
We wanted the government to make it a
condition of anyone getting that money, that they not
use a dime of public money to create,
or perpetuate, or exacerbate barriers against people with disabilities.
You want our money, we want to make sure you're not misusing it.
Now, the government's done some in this area, but we don't have any
sign, of, sort of, palpable progress, and they've been quite slow in doing it.
The real linchpin, the real point where we are going
to see if this means something or not is next year.
2015 the Toronto, 2015 Pan and Parapan American games are taking place here.
The government is investing a ton of money in it.
We've asked them to have, a strategy to ensure that this
game is not, the games are not only accessible in the
sense that people with disabilities can get in the stadium, but
that there are accessible restaurants, hotels,
tourist sites, services, goods and employment.
So, there's a legacy of accessibility, that's
happened in other cities that have hosted Olympics.
We, so far, don't have a major comprehensive
public plan for this, if you check our
website you'll see that we've offered one, but
the government is still, going slow on it.
A next area where we've been active is on accessible elections.
If people with disabilities are going to have a real
clout, they've got to have clout at the ballot box.
And there are barriers in the voting process, either getting to,
a polling station if there's not accessible transit, or accessible parking.
Getting in the polling station, even though they're
supposed to be accessible, they are at times not.
Elections Ontario messes up, same on the municipal level.
And there are people like me, who can not
mark our ballots on our own and verify our choice.
Same with people with certain motor disabilities.
We have been pushing for some changes.
We fought for legislative reforms.
We got half way measures in 2010.
Bill 231 was before the legislature, details about it in our website, was
a bill to amend the Elections Act, among other things to deal with accessibility.
Our long-term fight is for telephone and Internet voting.
Secured telephone and internet voting, not only
for voters with disabilities, but for everybody.
We believe that that will help overcome a lot of barriers,
not for all voters with disabilities, but for a lot of them.
44 municipalities in Ontario now use it, Toronto's looking at it,
Elections Ontario has been dragging their feet like you can not believe.
The other area I'm gonna just talk about for a few seconds is this, the courts.
The courts themselves, like all other sectors of our
society, have too many barriers facing people with disabilities.
And those barriers make it hard to go to court and get justice.
It may be inaccessible buildings, not avail, lack of available
sign language or other communication supports, a wide range of barriers.
It's hard to deal with that under an
accessibility regulation, cuz you can't regulate judges the
way you might, what they, how they handle
cases the way you might other, other issues.
To the credit of our former Chief Justice Roy McMurtry, after whom my fellowship is
named, in 2005 he announced that the court should do their share to fix this.
This resulted in a report from a joint committee of the Bench Bar
in Government, chaired by, Madame Justice Karen Wilder of our Court of Appeal,
I worked on that committee, released in 2007 on the Court of Appeal
website, mapping out how to make our courts more acc, fully accessible by 2025.
I'm also involved with a joint permanent
committee that's overseeing progress, to achieve that goal.
As I've said in so many other context,
we're making progress, but we're not on schedule.
Let me, let me conclude.
The, the, the task we set out on back in, 20 years ago, November
of 1994, when a small group of us started fighting for this legislation,
was undoubtedly an enormous, if not,
perhaps, an unrealistic one, and, you would
think that everything I've just said today,
which should make me lack any optimism.
After all, if the government that was committed
to do this has been dragging their feet
on enforcement, taking too long to get these
standards made, balking at our efforts to try to
get them to direct the next accessibility standards
to make, and passing accessibility standards that palpably
fall below the Humans Rights Code's requirements, you'd
think, I should be a pessimist, but I'm not.
I'm an optimist.
And, I'm an optimist for, two reasons.
The first I already gave you which is that we have made
significant progress the, so far, even though nowhere near what we should have.
But the other reason I'm optimistic is because at every step of the way, starting
on day one, what we were trying to
accomplish looked not only uphill, but inaccessibly uphill.
We got the legislation passed, it only took ten years.
We got standards enacted under it, not enough.
We got enforcement tools, pass, created not being used.
But we've been able to now secure more public attention then ever before on this.
With election commitments on accessibility being made, at least by two, if
not three parties in every election, and many bi elections since 1995.
So, I remain an optimist that we will get there and
we will hold their feet to the fire until we do.
I thank you very much for this opportunity to speak
to you, and I really look forward to taking your questions.