A Good Start With Helpful Ingredients, But It Needs Substantial Improvements to Be a Good Law
Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities http://www.aodaalliance.org firstname.lastname@example.org Twitter: @aodaalliance
June 21, 2018
This is the AODA Alliance’s preliminary review of bill C-81, the proposed Accessible Canada Act, which the Trudeau Government introduced into Parliament for First Reading on June 20, 2018, just before it rose for the summer break.
We commend the Federal Government for bringing this bill forward. Our overall first impression is that this bill is quite a good start, with a number of important ingredients in it. It reflects a number of the ideas that we shared with the Federal Government during its two-year public consultation.
However, it also has substantial deficiencies and a number of areas that need significant improvement. These are all doable within the overall framework of the bill, if the Federal Government agrees. With significant amendments, this bill can be turned into good legislation. Without those amendments it will not be sufficient to meet its important and commendable goals. In summary:
1. There are a number of good features in this bill:
a) It is good that by its title, this bill aims to create a barrier-free Canada for people with disabilities.
b) It creates several important new officials and agencies to achieve this. This includes a new Accessibility Commissioner for enforcement, a new Canadian Accessibility Standards Development Organization to create model accessibility standards that the Government can enact as regulations, and a new Chief Accessibility Officer to advise and report on progress and needed improvements.
c) The bill aims to provide effective enforcement and effective public accountability for accessibility efforts, including a formal complaint process. It also provides for Independent Reviews of the bill’s effectiveness over time.
2. However the bill’s significant shortcomings include:
a) It sets no time lines for Canada’s achieving accessibility, or for major implementation steps that the Government must take to get this bill fully up and running.
b) It commendably empowers the Government to create accessibility standards or regulations. However it wrongly does not require the Government to ever do so.
c) It wrongly splinters enforcement and implementation in a confusing way over four different public agencies, rather than providing people with disabilities with the simple one-stop-shopping they need. As part of this, it wrongly leaves it to two public agencies, the CRTC and CTA, to continue overseeing efforts on accessibility, despite their inadequate track records on this over many years.
d) The bill creates too many exemptions and powers for public officials to exempt an organization from key parts of the bill.
e) The bill does not effectively ensure that the Federal Government will use all its levers of power to promote accessibility across Canada. For example, it does not require the Federal Government to ensure that federal money is never used by any recipient of those funds, to create or perpetuate disability barriers, e.g. when federal money contributes to new or renovated infrastructure.
Overall, this bill constitutes a serious effort by the Federal Government to craft constructive legislation. The bill is over 100 pages long. It is by far the longest and most detailed such legislation in Canada in this area. In some areas, it appears to build on areas where earlier provincial laws have been constructive, and to improve on areas where they have fallen short. In other respects, this bill, as now written and without needed amendments, will replicate deficiencies that have been experienced under earlier provincial accessibility legislation. Detailed accessibility legislation was enacted in Ontario in 2005, in Manitoba in 2013, and in Nova Scotia in 2017.
The need for these improvements to this bill does not take away from the fact that the Federal Government is to be commended for bringing this bill forward, and for including in it a number of the core components that it did. We look forward to working with the Federal Government and with all parties in Parliament to get the bill improved through the debates and hearings process. We strongly urge Parliament to hold robust, open nation-wide travelling legislative hearings on this bill, where people with disabilities and all Canadians can offer ideas for improvements.
We plan to conduct a further analysis of the bill over the next weeks. We will come forward with a package of needed amendments. We will seek feedback from the public, including people with disabilities, as we formulate that feedback and those proposed amendments. Feedback should be sent to us at: email@example.com
Bill C-81’s Strengths and Areas of Needed Improvement A First Look
We emphasize that this series of points come from a very preliminary review of the bill. The bill is very complex and will require far more extensive study.
After closer study, we will have more to say, and specific improvements to propose. These are not listed in order of importance.
* It is good that the bill is called An Act to Ensure a Barrier-Free Canada. However its purpose clause is more modest than this. As well, the bill’s purpose provision does not set a specific deadline for reaching full accessibility, which is something the Accessibility for Ontarians with Disabilities Act commendably has. With no end date in this bill, this means that people with disabilities are expected to face the prospect of disability accessibility barriers for the indefinite future.
Section 5 of the bill sets the weak goal of a “the progressive realization, within the purview of matters coming within the legislative authority of Parliament, of a Canada without barriers”. One new ramp per year, somewhere in Canada, would entirely fulfil that insufficient goal.
* The bill lacks specific mandatory time lines for implementation action by the Federal Government. This can let the bill’s start-up and overall implementation drag on for years. It must be remembered that during the lifetime of this bill, a series of different governments can be expected to take power. The bill needs to let each of them know by when they must act, when it comes to key implementation measures.
* The range of activities where accessibility is to be secured, as the bill describes them, is too narrow. These need to go further. For example, the bill deals with the procurement of goods and services, but not facilities. It deals with barriers in “the delivery of programs and services”, but not the delivery or offering of goods or facilities.
* The bill’s definition of disability and of barrier, commendably aim to be broad. However these will need a closer look to ensure they are sufficiently inclusive.
* The bill’s list of obligated or regulated entities, while helpful, needs to be expanded to include those organizations that contract with the Federal Government or that receive federal funding. Otherwise, federal money will continue to be used to create or perpetuate disability barriers.
* The bill’s exemptions need to be substantially narrowed or eliminated. The bill wrongly gives several public agencies or officials far too much sweeping power to grant partial or blanket exemptions to specific organizations from important parts of this bill. For example, section 55 lets the CRTC completely exempt an organization or organizations that it regulates from a wide range of obligations under the bill. Even worse, the CRTC doesn’t have to give any reasons for doing so, nor does the bill provide an effective way for CRTC to be held accountable for granting such an exemption.
* The bill creates a dangerous exemption. It makes an accessibility regulation trump human rights obligations. This must be removed from the bill.
Section 172 of the bill includes the following regarding the Canada Transportation Agency:
“172?(1)?The Agency may, on application, inquire into a matter in relation to which a regulation could be made under subsection 170(1), regardless of whether such a regulation has been made, in order to determine whether there is an undue barrier to the mobility of persons with disabilities.
(2)?Subsection 172(2) of the English version of the Act is replaced by the following:
Compliance with regulations
(2)?if the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue barrier to the mobility of persons with disabilities.”
By this very troubling and unacceptable provision, if the transportation industry gets a weak accessibility regulation passed, that could trump the duty of transportation providers under the CTA legislation to remove undue barriers to transportation.
* It is very good that the bill creates the Canadian Accessibility Standards Development Organization, a new federal departmental corporation. The bill gives it power to create model national accessibility standards. The bill needs to be clarified to ensure that these accessibility standards can include standards that address barriers that may lie in whole or in part within provincial authority.
However, as a major flaw, the bill does not require the Federal Government to ever enact any accessibility standards or regulations. It only appears to permit the Federal Government to enact these, if it wishes.
In sharp contrast, the Accessibility for Ontarians with Disabilities Act (AODA) is far superior, where it requires the Ontario Government to enact all the accessibility standards that are needed to achieve the AODA’s purpose i.e. the achievement of an accessible Ontario by 2025. There are other contexts in which Bill C-81 is superior to the AODA.
Under Bill C-81, the Federal Government need never enact any accessibility standards or regulations. We know from earlier experience under the AODA’s predecessor, the Ontarians with Disabilities Act 2001, that it is entirely insufficient to merely give a Government the power to enact accessibility standards or regulations, without requiring that Government to do so.
* It is also very good that the bill creates a new Accessibility Commissioner, with a mandate to conduct enforcement of parts of this legislation.
* It is very good that the bill creates a new position, the Federal Government’s Chief Accessibility Officer. This person will advise the minister on areas of need, and must make annual reports which are to be made public, on progress on accessibility and trends. However, this person does not have any authority to do anything more than give advice. There may be real value in merging this function with the Accessibility Commissioner, so that the advice will be informed by the Commissioner’s work on accessibility implementation and enforcement. On the other hand, if this function is performed by a separate Chief Accessibility Officer, they might provide more arms-length assessment of the work of all public agencies, including that of the Accessibility Commissioner. We need to explore this further.
* A serious deficiency in this bill is that it wrongly splinters the regulatory oversight of enforcement and implementation across four different public agencies. It empowers the Canadian Radio, Television and Telecommunications Commission (CRTC) to oversee implementation in the broadcasting and telecommunication sector, the Canada Transportation Agency (CTA) to oversee its implementation in the area of federally-regulated transportation (such as air travel), the Federal Public Sector Labour Relations and Employment Board to oversee enforcement in some aspects of employment in the Federal Public Service, and the new Accessibility Commissioner to oversee implementation and enforcement for all other obligated organizations.
This substantially weakens the bill. It will cause a great deal of confusion. It will force people with disabilities to run from enforcement agency to enforcement agency. It risks inconsistent implementation and enforcement. It wastefully requires four different oversight organizations to develop expertise and duplicative procedures.
Possibly worst of all, it entrusts this issue to two existing public agencies, the CRTC and CTA, whose many prior years of having a mandate in this area show them to be unreliable and ineffective. Giving them more mandate and powers will not fix that. No doubt the obligated organizations on which they have been too soft for years regarding accessibility, will be delighted that this bill leaves those agencies in charge in this area.
* An important part of the bill is its imposing a duty on obligated organizations to make accessibility plans and to consult people with disabilities on them. This has some benefits, if legislated more effectively. However, there are several problems with Bill C-81’s approach.
a) As now designed, this places a major burden on each obligated organization to re-invent the wheel.
b) These plans do not have to ensure that an obligated organization will become fully accessible by any deadline, or ever. These accessibility plans do not have to be good plans. Ontario learned under the predecessor to the AODA, the Ontarians with Disabilities Act, that such weak plans are not particularly helpful.
c) This approach burdens people with disabilities with having to consult with organization after organization, year after year, to try to get the same accessibility provision made. For example, to get cable TV companies to provide an accessible PVR, they must consult every cable provider about the same obvious need. Each cable company can then reject this request. The bill should instead ensure that a strong accessibility standard in that area is enacted quickly, that requires each cable company to provide accessible PVRs.
d) The bill requires each obligated organization to invent its own process for consulting people with disabilities. That is a wasteful duplication of effort, and again, risks inconsistent practices.
e) The bill expects people with disabilities to become accessibility consultants to each obligated organization.
f) The bill does not oblige each obligated organization to post its accessibility plan and updates and progress reports about them on line. We have learned in Ontario that this makes is far harder to crowd-source enforcement through public monitoring.
* The bill makes a good number of duties of obligated organizations, and rights of people with disabilities, come into effect only after certain technical regulations are passed. Of course, this makes sense when the duties and rights are to be set out in accessibility standards. However, it should not happen for other duties and rights. For example, under the bill, the public cannot get from certain obligated organizations a copy of their accessibility plan until regulations are enacted that set out how such requests are to be made and handled.
These restrictions make the coming into force of these obligations subject to potentially long delays. It means the disability community must lobby the Federal Government, possibly for years, to get all those regulations passed. If no such regulations are ever passed, the related duties and rights will never materialize. In contrast, the AODA did not include similar restrictions.
* Because the bill wrongly splinters the regulatory oversight and enforcement role among different public agencies listed above, each of the Accessibility Commissioner, the CRTC and the CTA will have to get regulations enacted to cover very similar things. This wasteful duplication again risks inconsistencies. It risks even further delays, and the real possibility that some sectors of the economy will have these regulations ready for them before other sectors. It unfairly burdens the disability community to have to try to lobby each of these different public oversight agencies on the very same issues to be included in these duplicative regulations.
* It is very good that the bill includes a complaint procedure for people with disabilities who face barriers, and creates a series of enforcement powers and remedies. This can make this bill a substantial improvement over any provincial legislation to date.
However, these complaint procedures will need to be carefully scrutinized and in some respects, improved. One clear example jumps to mind. Where a complaint could be filed with the new Accessibility Commissioner, that Commissioner can refuse to investigate it under section 95 of the bill if:
“(a)?the complainant ought to exhaust grievance or review procedures otherwise reasonably available;
(b)?the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;”
This can create an unfair Catch 22 for people with disabilities. The Accessibility Commissioner could decide that the complaint is more appropriately dealt with by the Canadian Human Rights Commission under the Canada Human Rights Act. Yet the Canadian Human Rights Commission can decide to refuse to investigate a case if it feels it is better dealt with elsewhere. It could decide that the case is better dealt with by the Accessibility Commissioner. People with disabilities need one-stop-shopping. They should not be faced with the risk of having to run in circles between enforcement agencies and officials, each trying to pass the buck to the other.
The Canadian Human Rights Commission already has an unfortunate history in this area. The fact that the Accessibility Commissioner will be situated within the Canadian Human Rights Commission does not make this problem go away.
* The bill needs to be substantially expanded to ensure that whenever the Federal Government spends federal money on procuring goods, services or on infrastructure, or on loans or grants to recipients, or on transfer payments to a province, municipality or college or university, that money will not be used to create or perpetuate disability barriers. This needs to be effectively and federally monitored and enforced, with ample public accountability.
*More generally, the bill does not ensure that the Federal Government uses all the levers of power at its disposal to promote full accessibility, beyond the specific measures it now lists. For example, it does not require the Federal Government to review its existing legislation and regulations for accessibility problems and to take corrective action.
* It is good that the bill provides for a five year Parliamentary review of this bill, as well as a five year Independent Review by a person to be appointed for that process. However these take too long to get started. The Parliamentary review doesn’t start until five years after certain regulations are enacted under the bill. The Independent Review does not begin until five years after that Parliamentary review is completed. That is far too long. The first reviews should start much, much sooner.
Moreover, subsequent Independent Reviews are pushed far too far off into the future. Section 132 of the bill provides that subsequent Independent Reviews will take place every ten years. In Ontario the three year interval for successive Independent Reviews has been effective.
* The bill lacks effective provisions needed to ensure that the Federal Government focuses specific tailored measures to address its special duties in relation to Aboriginal People, and more particularly, those with disabilities.
Links to Key Background Information
To read the AODA Alliance’s June 20, 2018 news release, issued right after Bill C-81 was introduced in Parliament for First Reading, visit:
https://www.aodaalliance.org/whats-new/news-release-an-historic-step-on-the-road-to-a-barrier-free-canada-for-4-million-canadians-with-disabilities-today-the-trudeau-government-just-introduced-in-parliament-for-first-reading-an-act-t/ To read the Federal Liberal Party’s 2015 election pledge to enact a national accessibility law, visit https://www.aodaalliance.org/whats-new/new2015/federal-liberal-party-promises-to-introduce-canadians-with-disabilities-act-time-for-federal-conservatives-and-bloc-quebecois-to-make-the-same-promise/ To watch the August 22, 2017 online policy experts’ conference on what the promised national accessibility legislation should include, moderated by AODA Alliance chair David Lepofsky and hosted by the Alliance for an Accessible and Inclusive Canada, visit https://www.youtube.com/watch?v=94PEEbhI4TU
To read the Federal Government’s 2017 report on its public consultation on what the promised national accessibility law should include, and the AODA Alliance’s analysis of that report, visit https://www.aodaalliance.org/whats-new/the-federal-government-releases-report-of-its-public-consultation-on-what-the-promised-canadians-with-disabilities-act-should-include-lots-of-good-content-but-some-areas-where-the-federal-re/ To get a copy of the Discussion Paper on what the promised national accessibility law should include, written by AODA Alliance chair David Lepofsky, send a request to firstname.lastname@example.org