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AODA Alliance Offers a Preliminary Look at the Proposed New Accessibility Law that the Nova Scotia Government Tabled in the Nova Scotia Legislature Last Week

A Good Start But It Needs Substantial Strengthening

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

November 6, 2016

SUMMARY

Last week, the Nova Scotia Government introduced a proposed new bill, to be called the Accessibility Act, into the Nova Scotia Legislature. We commend the Nova Scotia Government for doing so. This is especially timely, since the Federal Government is now busy consulting across Canada on the development of the promised Canadians with Disabilities Act.

The AODA Alliance wants to offer its help. We and our predecessor coalition (the Ontarians with Disabilities Act Committee), have over two decades of experience with the development and implementation of such legislation.

We have prepared a preliminary look at this law. It is based on our experience.

We commend the Nova Scotia Government for committing to enact a disability accessibility law, and for bringing a bill forward to its legislature for debate. The bill includes important and constructive features.

However, this bill needs to be very substantially strengthened. It is considerably weaker than Ontario’s AODA, and is in material ways, weaker than Manitoba’s accessibility legislation. If enacted as is, it would clearly be the weakest such law that is in effect in any province in Canada that has enacted comprehensive legislation in this area.

Because we don’t live in Nova Scotia, we defer to the experience and views of people with disabilities in Nova Scotia on their take on this bill. It certainly looks to us like the Accessibility Directorate of Ontario was consulted on what this bill should include.

We are happy to help Nova Scotia in any way we can. When the Manitoba Government was developing its accessibility legislation between 2009 and 2013, we were invited to share our views and our expertise. We twice made deputations to the Manitoba Legislature, met with senior Government officials, and had extensive and very positive collaboration with Barrier-Free Manitoba, our grassroots counterpart in that province.

Below we set out our preliminary look at Nova Scotia’s Bill 59, and then we set out the Nova Scotia bill itself.

You can always send your feedback to us on any AODA and accessibility issue at aodafeedback@gmail.com

Have you taken part in our Picture Our Barriers campaign? If not, please join in! You can get all the information you need about our Picture Our Barriers campaign by visiting www.aodaalliance.org/2016

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We encourage you to use the Governments toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.

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Learn all about our campaign for a fully accessible Ontario by visiting http://www.aodaalliance.org

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The AODA Alliance’s Preliminary Look at Nova Scotia’s bill 59, the Proposed “Accessibility Act”

1. Overview

The Nova Scotia Government should be commended for bringing forward a proposed new accessibility law for the province. This bill has a number of important features. It aims to advance the goal of accessibility for people with disabilities by creating and enforcing accessibility standards to tear down and prevent recurring accessibility barriers that people with disabilities too often face. It also includes enforcement powers. Effective enforcement is essential to any such law. It is also helpful that this bill mandates independent reviews of this law’s implementation and enforcement.

However, as now written, this bill is far too weak. It is substantially weaker than Ontario’s Accessibility for Ontarians with Disabilities Act (AODA). It is weaker than Manitoba’s Accessibility for Manitobans Act. If enacted as is, it would be the weakest such law in effect in any province that has enacted a comprehensive disability accessibility law.

Prepared in an extraordinary rush, the following discussion points to key areas where the bill needs to be strengthened. This analysis is based on over two decades of experience advocating for and then working with such legislation, enriched by extensive experience from form other countries around the world that have ventured into this area.

For more detail and more specifics, we encourage the Nova Scotia Legislature to also look at the Discussion Paper on what to include in the promised Canadians with Disabilities Act, written by AODA Alliance chair David Lepofsky, available at http://www.aodaalliance.org/strong-effective-aoda/august-19-2016-discussion-paper-on-a-Canadians-with-Disabilities-Act-by-David-Lepofsky.docx Although it speaks about national accessibility legislation, to be passed by Canada’s Parliament, that Discussion Paper’s ideas can be used for provincial accessibility legislation as well. For example, it includes a far better definition of “disability” than does Nova Scotia’s Bill 59, as described further below.

2. Importance of Public Legislative Hearings After Time to Study this Law

The bill commendably recognizes the importance of consultation with people with disabilities on accessibility issues. As such, it will be important for the Nova Scotia Government to act on this, by ensuring full public hearings on this bill, as the Ontario Government commendably did in 2004-05 when the Accessibility for Ontarians with Disabilities Act was introduced in the Ontario Legislature.

From extensive experience in this area, this should include ensuring that the public, including people with disabilities, have sufficient time in advance to study this bill, prepare proposals for amendments, and come forward to present at legislative public hearings. This cannot be rushed.

3. Need to Strengthen the Purpose of the Act

The Act’s purpose clause, s. 2, refers to efforts to “improve accessibility.” This is far too weak a goal. As in the Accessibility for Ontarians with Disabilities Act AODA), the purpose must be to actually achieve accessibility. A Government can “improve accessibility” by merely installing one ramp in the province, or getting one website’s accessibility enhanced. People with disabilities need to achieve accessibility.

The purpose provision includes:

“(d) facilitate the implementation and monitoring of and compliance with accessibility standards.”

This does not set a deadline for achieving a fully accessible province. The AODA set 20 years. This is an absolutely essential part of the AODA. Without it, we would not have made the progress in Ontario that we have made, nor would we have been as able to point out as effectively where improvements are needed.

Barrier-Free Canada is calling on the Federal Government to set a deadline in the promised Canadians with Disabilities Act. The Nova Scotia bill should also do so. The Government can consult with people with disabilities and obligated organizations to ascertain a deadline that can find support.

The bill should therefore be amended to set a deadline for reaching accessibility, and should not set the very weak goal of merely improving accessibility.

The bill’s purpose clause should also be amended to include “effective enforcement.” Experience with accessibility legislation in Canada and around the world shows that effective enforcement is fundamental to a law’s success or failure.

4. Need to Expand Definition of Disability

The definition of “disability” in s. 3 of the bill is too narrow. It must be broad enough to ensure that all people with disabilities are effectively covered by the bill. Section 3(1) provides:

“(h) “disability” means a physical, mental, intellectual or sensory impairment that, in the interaction with a barrier, hinders an individual’s full and effective participation in society;”

This does not make it explicit that disability includes mental health conditions, learning disabilities, neurological disabilities (such as autism spectrum disorder) or a communication disability, just to name a few. It should be amended to ensure that all disabilities are included. The discussion of the definition of disability in the Discussion Paper on the Promised Canadians with Disabilities Act is helpful in this area.

5. Need to Require Effective Enforcement

Section 7 sets out the minister’s duties, to ensure that this law is effectively implemented. It does not say that the minister is responsible for the law’s enforcement, much less its effective enforcement. Similarly, s. 12 sets out the duties of the Accessibility Directorate. It includes no enforcement powers or duties.

The bill should be amended to ensure that the law is required to be effectively enforced. and to designate whom is ultimately responsible for its enforcement. Below are recommendations on who this should be.

6. The Accessibility Advisory Board Must Meet Far More Often than Four Times Per Year

The bill gives much of the key duties on accessibility to the proposed Accessibility Advisory Board, but only requires it to meet four times per year. If so much of the bill’s leadership rests with that Board, it should be required to meet far more regularly, and be resourced to make this happen.

Regardless of how good the people are who are appointed to such a Board, ample experience shows that such boards are often unable to carry the heavy load allocated to them, and that governments far too infrequently follow their advice. As such, it is recommended that no matter how good are the people who are appointed to such a board, there should be no expectation that the board will be able to carry a significant part of the bill’s implementation.

7. The Duty to Set Up Standards Development Committees

Section 18 of the bill is very weak. It allows the minister to set up Standards Development Committees to make recommendations for the contents of accessibility standards. It does not require the minister to ever do so. The bill provides:

“18 The Minister may, in consultation with the Board,

(a) establish standard development committees to assist the Board with making recommendations to the Minister on the content and implementation of accessibility standards;”

Ontario’s AODA requires the minister to set up Standards Development Committees. The bill should be amended to require this in Nova Scotia as well.

8. Undue Barriers in the Standards Development Process

Section 22 imposes an undue burden on the standards development process. Section 22(2) provides in material part:

“(2) An accessibility standard must include

(a) an economic impact assessment for the standard;

(b) an assessment of how the standard will increase accessibility in the Province; and”

An economic impact assessment and projection of the accessibility gains under the standard can be helpful. However, it unduly burdens the process, and drags it out, to require these.

Moreover, an individualized economic assessment for each standard will burden the Government with the costs of repeating the same effort over and over. The actual economic impact and benefits of a specific accessibility standard may not easily be predicted in advance. The AODA Alliance has seen costing studies like this earlier in the implementation of the AODA which exaggerated the costs associated with them.

Section 22(2) of the bill should therefore be amended to provide that an accessibility standard may include an economic impact analysis and a projection of the accessibility gains under it, but this should not be a mandatory requirement.

9. Compensating Members of a Standards Development Committee

It is very good that the bill provides for compensating members of a Standards Development Committee who does not work for the Government. Ontario has not done so. It is unfair to expect such a major public function to be discharged by volunteers. It is especially unfair to the disability sector. Business and broader public sector representatives on a Standards Development Committee typically do this work as part of their job, so they suffer no personal hardships from taking part in the Standards Development Committee.

Section 21 of the bill provides in material part:

“20 (1) Committee members not employed in the public service of the Province shall be paid such remuneration as is determined by the Minister.

(2) Committee members shall be reimbursed for their reasonable expenses incurred in the performance of their duties.”

10. Who Will Make Accessibility Standards?

The bill seems to be implementing an idea first raised in Ontario in the 2010 Charles Beer AODA Independent Review, namely that accessibility standards should be de developed by one body that makes recommendations, rather than handled by different Standards Development Committees for each area to be regulated. The Ontario Government decided to consolidate this under the oversight of the Ontario Accessibility Standards Advisory Council, the counterpart to the bills’ Accessibility Advisory Board.

Ontario has tried this approach. It has been a dismal failure. Nova Scotia should not repeat this mistake.

Instead an arms-length independent body should be established to make these recommendations. That is what Barrier-Free Canada has recommended for the promised Canadians with Disabilities Act. It is actually what the 2010 Charles Beer AODA Independent Review recommended for Ontario. Ontario regrettably did not try to make this process independent of the Government.

By Nova Scotia having this process under the minister’s and the Government’s direct control, it will lead to all the problems experienced in the past years in Ontario. Nova Scotia should learn from Ontario’s mistakes.

11. Recommendations to the minister on accessibility standards should Immediately be made public for public comment.

The bill allows the board or a Standards Development Committee to submit a recommendation for the contents of an accessibility standard to the Government, and lets the Government act on it. It does not require the Government to make the recommendation public or to seek public input on it. Ontario imposes both such requirements. They are an important part of the process. The standards development process should be open, accountable and transparent throughout.

The bill should be amended to require a recommendation from the board or a Standards Development Committee to be immediately made public for public comment.

It is possible that the Government meant to achieve this by s. 33. Section 33 of the bill provides:

“33 The Minister shall make a proposed accessibility standard and the recommendations publicly available.”

This is written in a confusing way. If the Government means to achieve what is suggested here, the bill should be revised to clarify this. The bill’s latter provision, addressed below, on making such recommendations public, further reinforces a sense that the Government did not mean for these to immediately and automatically be made public to all.

12. The Law’s Reach Should Be Expanded

Section 29 of the bill allows accessibility standards to address organizations that provide employment, accommodation or goods or services, among other things. It should also cover organizations that provide facilities, not just goods or services. Section 29(1)(d) provides that an accessibility standard can apply to organizations that:

“(d) provide goods, services or information to the public; or”

Section 29(1)(d) should be amended to also include those who provide facilities, not just goods or services.

13. No Need for the Government to Have Power to Revoke the Board’s Mandate to Work on an Accessibility Standard

Section 36 of the bill lets the Government shut down work on an accessibility standard in the middle of the process. Section 36 of the bill provides:

“36 The Minister may, by giving written notice to the Board, withdraw the terms of reference for an accessibility standard that has been given to the Board and, where the Minister does so, the Board shall cease its activities in respect of that standard.”

There is no need for this. If we have had any problem in Ontario, it has been the Government not getting to work on an accessibility standard. There has never been any risk of a topic being assigned to a Standards Development Committee which turns out to be utterly unnecessary. This unnecessary provision in this bill may reflect a preoccupation with maintaining Government control over every step of the process. Ontario experience shows that that has worked against making good progress on accessibility.

14. The Bill Lacks Any Mandatory Process for Accessibility Standards to Be Reviewed and Strengthened Over Time

It is important for such a bill to ensure that any accessibility standard that is enacted will be independently reviewed for its sufficiency over time, and strengthened if needed. Unlike the AODA, this bill does not do this.

The bill should therefore be amended to ensure that every four years, an accessibility standard is reviewed by a Standards Development Committee for its effectiveness. The Government should be required to consider recommendations for strengthening it.

15. Inspectors Should Work for An Independent Enforcement Agency, Not the Government

Sections 45 and afterward provides for inspectors and compliance/enforcement powers. This is helpful. However, they are all operated directly under the Government and the minister responsible for the bill. This has been an utter failure in Ontario.

Enforcement powers should be assigned to an arms-length independent agency. This is what Barrier-Free Canada has recommended for the promised Canadians with Disabilities Act, that the Federal Government is now developing.

The Government should not have the job of enforcing this bill against itself. That is an overwhelming conflict of interest and a formula for failure. Similarly, if the bill is to be taken seriously, its enforcement should be placed out of the reach of the Government and of political influence.

The bill should therefore be amended to empower an arms-length agency to enforce it.

16. Compliance Orders Should not Be Made Appealable to a Minister

There is nothing wrong with letting an obligated organization bring an administrative appeal from an inspector’s compliance order under the bill. However, the bill unwisely makes this an appeal to the minister. Section 51 of the bill provides in part:

“52 (1) An individual or organization named in an order made under Section 51 may request the Minister to review the order.

(2) A request must be made in writing and must include the individual’s or organization’s name and address, the reasons for requesting the review and any additional information that the individual or organization wants to be considered by the Minister.

(3) The Minister is not required to hold a hearing when a request for review is made.

(4) A request for review operates as a stay of the inspector’s order pending the outcome of the review by the Minister.”

Ministers don’t typically decide administrative appeals. There is no assurance that an elected politician with a jammed ministerial agenda will have the time or the expertise for such appeals. An inspector’s compliance order is not a political issue, and should not be made into one.

The bill should be amended to provide for an internal appeal to a supervisory official.

17. Minister Given Power to Decide if a Monetary Penalty will be Imposed

The bill requires the minister to decide if a monetary penalty will be imposed. Section 53 of the bill provides in part:

“53 (1) Subject to Section 54, where the Minister is of the opinion that an individual or organization has failed to comply with an inspector’s order within the period specified in the order, the Minister may issue a written notice requiring the individual or organization to pay an administrative penalty in the amount prescribed.

(2) Notice of an administrative penalty may only be issued after the period for appealing an order has expired or, where an appeal has been filed, after a decision has been made on the appeal.

(3) The notice of administrative penalty must be served on the individual or organization required to pay the penalty.”

Here again, this should be assigned to a lower-level official, not an elected minister. It too should be in the hands of an arms-length independent agency.

To require the minister’s involvement again threatens to politicizes the law’s enforcement. Law enforcement in individual cases should not be politicized. Imposition of such a penalty should not be delayed until a minister can review and sign off on it.

18. Mandatory Public Reporting On the bill’s Enforcement is Needed

The bill lets the Government report to the public on its enforcement, but does not require this. Section 62 of the bill provides:

“62 The Minister may issue public reports disclosing details of orders and decisions made and administrative penalties issued under this Act.”

The bill should be amended to make periodic reporting on enforcement efforts mandatory. In Ontario it has been a major ordeal getting such information from the Ontario Government. It has required filing Freedom of Information applications twice. One is now under appeal, because the Government has been so resistant to being open an transparent. The final report of the Mayo Moran AODA Independent Review recommended, in the face of this, that the Ontario Government report quarterly on such information.

19. Need for Automatic Public Posting of Key Documents on the Bill’s Implementation

The bill requires key documents on its implementation to be made public on request, but it does not require these to automatically be posted on line. Section 63 of the bill provides:

“63 The following documents must be provided in an accessible format and at no charge to a person within a reasonable period after the person requests it from the Minister or a public sector body:

(a) in the case of the Minister,

(i) the terms of reference for a proposed accessibility standard,

(ii) the recommendations of the Board,

(iii) a proposed accessibility standard,

(iv) a review conducted under Section 64,

(v) any educational and awareness tools made publicly available,

(vi) a summary report prepared by the Board,

(vii) an accessibility plan; and

(b) in the case of a public sector body, its accessibility plan.”

In the interests of saving costs and of full openness, the bill should be amended to require all these documents to be automatically posted on line in a prompt time, and in an accessible format.

20. The Periodic Independent Review of the Bill’s Implementation and Enforcement Should Be More Frequent than the Bill Requires

It is commendable that the bill requires the Government to appoint an Independent Review of the bill’s implementation and enforcement. However the time lines are too long. Section 64(1) of the bill provides:

“64 (1) Within four years after the coming into force of this Act, and at least every five years thereafter, the Governor in Council shall appoint a person to undertake a comprehensive review of the effectiveness of the Act and report on the person’s findings to the Minister.”

Ontario’s commendable time lines were four years after the law’s implementation, and every three years after each successive report is released. Ontario’s two Independent Reviews to date, in in 2009-10 and 2013-14, both blew the whistle on the need for more action. Had they been delayed akin to the bill’s time lines, the Ontario public, including people with disabilities, would be seriously disadvantaged. Such delays as the bill proposes only serve to help insulate public officials, who implement the bill, from more timely independent scrutiny. That serves no public interest.

It must be remembered that additional time is injected to this time line, taken up by the time it takes the Independent Review to conduct its review and write its report.

If anytime, more prompt tine lines than Ontario’s might be warranted, since Nova Scotia will have the benefit of many years of experience in Manitoba and Ontario, to enable it to get off the ground much more quickly.

It is therefore recommended that s. 64(1) be amended to require the first Independent Review to begin four years after the bill goes into effect, and then on three year intervals after each report.

21. Ensuring Public Money Is Never Used to Create or Perpetuate Accessibility Barriers

Nothing in Bill 59 ensures that public money in Nova Scotia is ever used to create or perpetuate accessibility barriers against people with disabilities. the Government needs a concerted legislated strategy to ensure this, especially when it spends money on procuring goods, services or facilities, when it invests in capital and infrastructure programs, or offers loans or grants to businesses or other obligated organizations. Ideas for this are set out in the Discussion Paper on the proposed Canadians with Disabilities Act, referred to in the introduction to this review.

It is therefore recommended that the bill be amended to institute a mandatory, enforced regime for ensuring that public money is never used to create or perpetuate disability accessibility barriers, in such areas as government procurement, capital or infrastructure spending, or loans or grants to businesses or other obligated organizations.

Text of Nova Scotia’s Bill 59 the Proposed Accessibility Act

Nova Scotia Legislature Bill 59

BILL NO. 59
(as introduced)

3rd Session, 62nd General Assembly
Nova Scotia
65 Elizabeth II, 2016

Government Bill
Accessibility Act

The Honourable Joanne Bernard
Minister of Community Services

First Reading: November 2, 2016

An Act Respecting Accessibility in Nova Scotia

WHEREAS barriers to accessibility are a reality for many Nova Scotians with disabilities;

AND WHEREAS, under the United Nations Convention on the Rights of Persons with Disabilities, member states undertake to take appropriate measures to ensure accessibility and to develop and monitor minimum accessibility standards;

AND WHEREAS the Canadian Charter of Rights and Freedoms grants equality rights to all persons without discrimination on the basis of a disability;

AND WHEREAS the Human Rights Act recognizes that the Government, public agencies and all persons have a responsibility to ensure equal opportunity for every individual to enjoy a full and productive life;

AND WHEREAS the number of Nova Scotians with disabilities is likely to rise due to the demographic changes associated with an aging population;

AND WHEREAS an accessible Nova Scotia will improve the health, well-being and independence of persons with disabilities;

AND WHEREAS public consultation provides an opportunity for Nova Scotians to be actively involved in the development of a process for identifying, reducing, removing and preventing barriers;

AND WHEREAS the Government is committed to establishing progressive timelines for developing and implementing accessibility standards while taking into account the resources required to comply with such standards;

THEREFORE be it enacted by the Governor and Assembly as follows:

1 This Act may be cited as the Accessibility Act.

2 The purpose of this Act is to

(a) ensure that issues related to persons with disabilities are conveyed to and addressed by public sector bodies;

(b) ensure that existing measures, policies, practices and other requirements are reviewed with a view to making suggestions to improve accessibility;

(c) provide the framework and authority to create accessibility standards; and

(d) facilitate the implementation and monitoring of and compliance with accessibility standards.

3 (1) In this Act,

(a) “accessibility plan” means a plan to address the identification, reduction, removal and prevention of barriers in the policies, programs, practices and services of a public sector body;

(b) “accessibility standard” means an accessibility standard established under this Act;

(c) “barrier” means anything that hinders the full and effective participation in society of persons with disabilities including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice;

(d) “Board” means the Accessibility Advisory Board established under this Act;

(e) “built environment” means a building, a structure or premises;

(f) “committee” means a committee established under this Act;

(g) “Court” means the Supreme Court of Nova Scotia;

(h) “disability” means a physical, mental, intellectual or sensory impairment that, in the interaction with a barrier, hinders an individual’s full and effective participation in society;

(i) “government entity” means any department, board, commission, foundation, agency, association or other body of persons, whether incorporated or unincorporated, all the members of which or all the members of the board of management or board of directors of which

(i) are appointed by an Act of the Legislature or by order of the Governor in Council, or

(ii) where not so appointed, in discharge of their duties are public officers or servants of Her Majesty in right of the Province or for the proper discharge of their duties are, directly or indirectly, responsible to Her Majesty in right of the Province;

(j) “inspector” means an inspector appointed under this Act;

(k) “Minister” means the Minister of Community Services;

(l) “organization” includes a government entity, sole proprietorship, corporation, society, association, partnership and limited liability partnership, any association of individuals and any similar body;

(m) “order” means an order made under this Act;

(n) “prescribed” means prescribed by the regulations;

(o) “public sector body” means

(i) a government entity,

(ii) a prescribed municipality, and

(iii) a prescribed organization.

(2) A document or information is publicly available if it is posted on a website or made available in a prescribed manner.

4 (1) Nothing in this Act or the regulations diminishes the rights and protections offered to persons with disabilities under the Human Rights Act.

(2) Where a provision of this Act or the regulations conflicts with a provision of another enactment, the provision of this Act or the regulations prevails unless the other enactment provides a higher level of accessibility for persons with disabilities.

5 This Act binds Her Majesty in right of the Province.

6 The Minister is responsible for the general supervision and management of this Act and the regulations.

7 The Minister shall

(a) raise awareness of how persons with disabilities are disabled by barriers;

(b) promote and encourage the prevention, reduction and removal of barriers;

(c) oversee the development and implementation of accessibility standards necessary to attain the purpose of this Act;

(d) assist in the integration of applicable accessibility standards into the activities of all persons in the Province; and

(e) ensure persons in the Province are consulted in the development of accessibility standards and informed about their duties and responsibilities under the standards once created.

8 (1) The Minister shall annually prepare a report of the actions the Minister has undertaken pursuant to Section 7 during the preceding fiscal year.

(2) The Minister shall table the report in the House of Assembly within 15 days after it is completed or, where the Assembly is not then sitting, file it with the Clerk of the Assembly.

9 (1) The Minister may, in writing, delegate any power or duty conferred or imposed on the Minister under this Act to

(a) an employee of a government entity;

(b) an employee of a municipality; or

(c) another person,

who, in the Minister’s opinion, has the requisite qualifications and experience.

(2) Where the Minister delegates a power or duty under subsection (1), the Minister may

(a) specify how the power or duty is to be exercised or performed and impose any requirement in relation to or restrictions on the exercise or performance of the power or duty that the Minister considers appropriate; and

(b) provide that the delegate be paid for, or reimbursed for the cost of, exercising or performing the delegated power or duty.

(3) Before making a delegation to a person under clause (1)(a) or (b), the Minister shall consult with and obtain the consent of the employer of the person.

(4) Before making a delegation to a person under clause (1)(c), the Minister shall obtain the consent of the person.

(5) The Minister may revoke a delegation made under subsection (1).

ACCESSIBILITY DIRECTORATE

10 (1) There shall be an Accessibility Directorate.

(2) The role of the Accessibility Directorate is to

(a) support the implementation and administration of this Act and the regulations;

(b) address broader disability-related initiatives by acting as a central government mechanism to ensure that the concerns of persons with disabilities respecting policy, program development and delivery are advanced and considered by the Government.

11 (1) The Minister shall appoint an Executive Director and the staff of the Accessibility Directorate.

(2) The Executive Director shall lead the Accessibility Directorate and liaise with the Board.

(3) The staff appointed to the Accessibility Directorate are deemed to be appointed to the Civil Service pursuant to the Civil Service Act.

12 The Accessibility Directorate shall

(a) provide policy, programming, communication and administrative support on all aspects of this Act and the regulations;

(b) conduct research and develop and implement programs of public education and awareness on the purpose of this Act;

(c) examine and review measures, policies, practices and other requirements to improve opportunities for persons with disabilities; and

(d) identify and study issues of concern to persons with disabilities and recommend action where appropriate.

ACCESSIBILITY ADVISORY BOARD

13 (1) There shall be an Accessibility Advisory Board consisting of

(a) 12 members appointed by the Governor in Council on the recommendation of the Minister; and

(b) four non-voting members.

(2) In making recommendations to the Governor in Council for the purpose of subsection (1), the Minister shall take into consideration

(a) the skills and assets the Minister considers necessary to ensure an effective and optimally functioning Board; and

(b) representation by stakeholder groups that will be subject to the accessibility standards.

(3) At least one half of the members of the Board must be persons with disabilities.

(4) The following persons are non-voting members of the Board whose presence at or absence from a meeting does not affect quorum:

(a) the Minister of Transportation and Infrastructure Renewal or that Minister’s designate;

(b) the Minister of Business or that Minister’s designate;

(c) the Minister of Regulatory Affairs and Service Effectiveness or that Minister’s designate; and

(d) the Minister of Municipal Affairs or that Minister’s designate.

14 (1) A person appointed to the Board pursuant to clause 13(1)(a) holds office for a term of three years.

(2) No person may be appointed to the Board pursuant to clause 13(1)(a) for more than two consecutive terms.

15 (1) The Governor in Council, on the recommendation of the Minister, may designate members of the Board appointed pursuant to clause 13(1)(a) as the Chair and the Vice-chair of the Board.

(2) The Vice-chair shall act as Chair if the Chair is absent or unable to act or when authorized to act by the Chair.

16 (1) The Board shall hold at least four regular meetings in each year and meet with the Minister at least once every 12 months.

(2) The Board shall prepare a summary report after each regular meeting and make the report publicly available.

(3) The Board shall annually prepare a report of its activities and operations during the preceding fiscal year and file it with the Minister.

17 The Board shall advise and make recommendations to the Minister about accessibility and, in particular, shall

(a) suggest measures, policies, practices and requirements that may be implemented by the Government to improve accessibility;

(b) assess whether existing measures, policies, practices and requirements are consistent with the purpose of this Act;

(c) set priorities for the establishment and content of accessibility standards and the timelines for their implementation;

(d) set long-term accessibility objectives for furthering the purpose of this Act; and

(e) respond to requests for accessibility advice from the Minister.

18 The Minister may, in consultation with the Board,

(a) establish standard development committees to assist the Board with making recommendations to the Minister on the content and implementation of accessibility standards;

(b) specify a committee’s mandate;

(c) provide guidelines for a committee’s functions and operations; and

(d) establish a subcommittee of technical experts and other individuals familiar with issues specific to the standard being developed.

19 (1) A standard development committee established under Section 18 must have

(a) one half of its membership consist of persons with disabilities or representatives from organizations representing persons with disabilities;

(b) representatives of organizations and classes of organizations likely to be affected by the standard being developed; and

(c) representatives from departments of the Government that have responsibilities related to the standard being developed.

(2) A person does not need to be a member of the Board to be a member of a committee.

20 (1) Committee members not employed in the public service of the Province shall be paid such remuneration as is determined by the Minister.

(2) Committee members shall be reimbursed for their reasonable expenses incurred in the performance of their duties.

ACCESSIBILITY STANDARDS

21 (1) Where the Minister determines that there is an accessibility issue, the Minister shall prepare terms of reference for an accessibility standard to address the issue.

(2) The terms of reference prepared under subsection (1) must

(a) specify the accessibility issue;

(b) specify the individual, organization or class that may be subject to the standard;

(c) establish a timeline for a response by the Board; and

(d) suggest individuals, organizations and public sector bodies to be consulted.

(3) The Minister shall give the terms of reference to the Board and make them publicly available.

22 (1) Upon receipt of the terms of reference for a proposed accessibility standard, the Board shall consider and make any recommendations to the Minister respecting

(a) the accessibility objectives for the activity or undertaking, the class, the aspect of the built environment or the individuals or organizations to which the standard relates; and

(b) the measures, policies, practices and other requirements that the Board believes should be implemented, including

(i) how and by whom they should be implemented, and

(ii) the period for implementing them.

(2) An accessibility standard must include

(a) an economic impact assessment for the standard;

(b) an assessment of how the standard will increase accessibility in the Province; and

(c) a progressive timeline which takes into account the resources required to comply.

(3) When recommending time periods for implementing an accessibility standard, the Board shall consider

(a) the nature of the barriers that the measures, policies, practices and other requirements are intended to identify, reduce, remove or prevent;

(b) any technical and economic considerations that may be associated with implementing the standard; and

(c) any other matter referred to in the terms of reference.

23 When preparing recommendations under Section 28, the Board shall consult with

(a) persons with disabilities or representatives from organizations representing persons with disabilities;

(b) representatives of those engaged in the activity or undertaking, or the individuals or organizations, or representatives of the class that may be made subject to the proposed accessibility standard;

(c) representatives of government entities that have responsibilities relating to the activity, undertaking or class that may be made subject to the proposed accessibility standard; and

(d) other individuals or organizations that the Minister considers advisable, including a standard development committee.

24 The Board shall attempt to achieve a consensus among its members on its recommendations but, where there is no consensus, the majority may make recommendations and one or more members may submit separate recommendations.

25 The recommendations must be submitted to the Minister in the form and within the period specified by the Minister.

26 Upon receipt of the recommendations, the Minister may prepare a proposed accessibility standard adopting the recommendations in whole, in part or with any modifications the Minister considers appropriate.

27 An accessibility standard may

(a) specify the individuals or organizations that are subject to the standard;

(b) set out measures, policies, practices and other requirements for

(i) identifying, reducing and removing barriers, and

(ii) preventing barriers from being established; and

(c) require the individuals or organizations that are subject to the standard to implement those measures, policies, practices and other requirements within the period specified in the standard.

28 An accessibility standard may be general or specific in its application and may be limited as to time and place.

29 Accessibility standards may apply to individuals or organizations that

(a) employ others;

(b) offer accommodation;

(c) own, operate, maintain or control an aspect of the built environment other than a private residence with three or fewer dwelling units;

(d) provide goods, services or information to the public; or

(e) engage in a prescribed activity or undertaking or meet other prescribed requirements.

30 An accessibility standard may apply to different classes of individuals or organizations or aspects of the built environment and, without limiting the generality of the foregoing, may apply to classes with respect to any attribute, quality or characteristic, or any combination of those things, including

(a) the number of persons employed by an individual or organization or its annual revenue;

(b) the type of activity or undertaking in which an individual or organization is engaged or the sector of the economy of which an individual or organization is a part; or

(c) a particular characteristic of an aspect of the built environment, such as the type of infrastructure or the size of a building, a structure or premises, that is owned, operated, maintained or controlled by an individual or organization.

31 An accessibility standard may define a class to include or exclude an individual or organization, or an aspect of the built environment, having the same or different attributes, qualities or characteristics.

32 An individual or organization may be subject to more than one accessibility standard.

33 The Minister shall make a proposed accessibility standard and the recommendations publicly available.

34 Within 60 days after a proposed accessibility standard is made publicly available, or within any other longer period specified by the Minister, an individual or organization may submit comments about the proposed standard to the Minister.

35 After consulting with the Board with respect to any comments received and revising the proposed accessibility standard if the Minister considers it appropriate, the Minister may recommend the standard to the Governor in Council for approval as a regulation.

36 The Minister may, by giving written notice to the Board, withdraw the terms of reference for an accessibility standard that has been given to the Board and, where the Minister does so, the Board shall cease its activities in respect of that standard.

37 An individual or organization that is subject to an accessibility standard shall

(a) prepare and keep records in accordance with the regulations; and

(b) make the records available for inspection and examination under this Act and the regulations.

38 An individual or organization that is subject to an accessibility standard shall comply with it within the period specified in the standard.

39 Every public sector body shall prepare and make publicly available an accessibility plan.

40 An accessibility plan must include

(a) a report on measures the public sector body has taken and intends to take to identify, reduce, remove and prevent barriers;

(b) information on procedures the public sector body has in place to assess the following for their effect on accessibility for persons with disabilities:

(i) any of its proposed policies, programs, practices and services, and

(ii) any proposed enactments or by-laws it will be administering; and

(c) any other prescribed information.

41 A public sector body shall consult with persons with disabilities or representatives of organizations representing persons with disabilities when preparing an accessibility plan.

42 A public sector body shall update its accessibility plan every three years and make it publicly available.

43 Two or more prescribed municipalities may have a joint accessibility plan.

44 (1) The council of every municipality having a population of 10,000 or more shall establish an accessibility advisory committee or continue any such committee that was established before the coming into force of this Act.

(2) At least one half of the members of an accessibility advisory committee must be persons with disabilities or representatives from organizations representing persons with disabilities.

COMPLIANCE AND ENFORCEMENT

45 (1) Inspectors and other persons required to administer compliance with and enforcement of this Act and the regulations shall be appointed by the Minister in accordance with the Civil Service Act.

(2) Notwithstanding subsection (1), the Minister may engage, upon such terms and conditions as the Minister considers necessary, the services of such persons as the Minister requires for administering compliance with and enforcement of this Act and the regulations.

46 (1) An inspector carrying out an inspection under this Act shall produce, on request, an identification card provided by the Minister for that purpose.

(2) A copy of an identification card purporting to be signed by the Minister is proof in any court of law that an individual is an inspector.

47 (1) An inspector may carry out any inspection, examination or test reasonably required to

(a) determine compliance with this Act and the regulations;

(b) verify the accuracy or completeness of a record or of other information required to be prepared under this Act and the regulations; or

(c) perform any other duty or function that the inspector considers necessary or advisable in the administration or enforcement of this Act and the regulations.

(2) When carrying out an inspection under this Section, an inspector may

(a) require the production of any document or record for inspection and copying; and

(b) inspect the physical premises and equipment.

48 An inspector has all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act, with the exception of the powers of contempt, arrest and imprisonment.

49 (1) Subject to subsection (2), an inspector may, at any reasonable time, enter

(a) any land or any building, structure, premises or place that is subject to this Act or the regulations; or

(b) any other premises or place where the inspector has reasonable grounds to believe that records or things relevant to the administration or enforcement of this Act or the regulations are kept,

for the purpose of administering and enforcing this Act or the regulations.

(2) An inspector may not enter a private dwelling place or any part of a place that is designed to be used and is being used as a permanent or temporary private dwelling place except

(a) with the consent of the occupant of the place; or

(b) under an order granted under Section 50.

50 (1) Where a justice is satisfied on evidence under oath by an inspector that

(a) there are reasonable grounds to believe that it is appropriate for the administration of this Act for the inspector to do anything set out in Section 47; and

(b) the inspector may not be able to carry out duties under this Act effectively without an order under this Section because

(i) no person is present to grant access to premises that are locked or otherwise inaccessible,

(ii) a person has denied the inspector access to premises or there are reasonable grounds for believing that a person may deny the inspector access to premises,

(iii) a person has prevented the inspector from doing one or more things set out in Section 47 or denied the inspector access to something, as a result of which the inspector is unable to do one or more things set out in Section 47,

(iv) there are reasonable grounds to believe that a person may prevent an inspector from doing one or more things set out in Section 47, or may deny the inspector access to something as a result of which the inspector may be unable to do one or more things set out in Section 47,

(v) it is unpractical, because of the remoteness of the premises to be inspected or because of any other reason, for the inspector to obtain an order under this Section without delay if access is denied, or

(vi) there are reasonable grounds to believe that an attempt by the inspector to do anything set out in Section 47 without the order might defeat the purpose of that Section or cause an adverse effect,

the justice may issue an order authorizing the inspector to do anything set out in Section 47 that is specified in the order for the period set out in the order.

(2) The period referred to in subsection (1) may not extend beyond 30 days after the date on which the order is made, but the order may be renewed for any reason set out in subsection (1) for one or more periods, each of which may not be more than 30 days.

(3) An application for an extension under subsection (2) may be made before or after the expiry of the period.

(4) An order under this Section may be issued or renewed on application without notice.

51 An inspector who finds that this Act or the regulations are being or have been contravened may issue an order, in the form prescribed, requiring the individual or organization responsible for the contravention to remedy it.

52 (1) An individual or organization named in an order made under Section 51 may request the Minister to review the order.

(2) A request must be made in writing and must include the individual’s or organization’s name and address, the reasons for requesting the review and any additional information that the individual or organization wants to be considered by the Minister.

(3) The Minister is not required to hold a hearing when a request for review is made.

(4) A request for review operates as a stay of the inspector’s order pending the outcome of the review by the Minister.

(5) The Minister may confirm, revoke or vary the order.

(6) The Minister shall, within 60 days of the request for review being made, provide the individual or organization who requested the review with

(a) a copy of the Minister’s decision, with written reasons; and

(b) notification of the right to appeal the decision to the Court under Section 58.

(7) Where a request for review of an inspector’s order is not received by the Minister within 30 days after the order is served, the inspector’s order is final.

53 (1) Subject to Section 54, where the Minister is of the opinion that an individual or organization has failed to comply with an inspector’s order within the period specified in the order, the Minister may issue a written notice requiring the individual or organization to pay an administrative penalty in the amount prescribed.

(2) Notice of an administrative penalty may only be issued after the period for appealing an order has expired or, where an appeal has been filed, after a decision has been made on the appeal.

(3) The notice of administrative penalty must be served on the individual or organization required to pay the penalty.

54 No penalty may be issued by the Minister more than three years after the act or omission that renders the individual or organization liable to a penalty first came to the knowledge of the Minister.

55 (1) The Minister may file a certificate in the Supreme Court signed by the Minister and setting out

(a) the amount of the administrative penalty issued; and

(b) the individual or organization against whom the penalty is issued.

(2) A certificate filed under this Section has the same force and effect as if it were a judgment obtained in the Court for the recovery of a debt in the amount set out in the certificate and may be enforced in the same manner as a judgment of that Court.

56 An individual or organization who pays an administrative penalty for an incident of non-compliance may not be charged with an offence with respect to that non-compliance unless the non-compliance continues after the penalty is paid.

57 Administrative penalties paid under this Act must be used for the purpose of accessibility initiatives, including public education and awareness.

58 (1) Any individual or organization who is directly affected by a decision of the Minister made under

(a) Section 52 with respect to an order; or

(b) Section 53 with respect to an administrative penalty,

may appeal the decision by filing a notice of appeal with the Court and serving a copy on the Minister.

(2) An appeal may be made on the following grounds:

(a) in the case of a decision under Section 52, that the finding of a contravention of this Act or the regulations was incorrect; or

(b) in the case of an administrative penalty, that

(i) the amount of the penalty was not determined in accordance with the regulations, or

(ii) the amount of the penalty is not justified in the public interest.

(3) An appeal may not be commenced more than 30 days after the individual or organization receives a decision of the Minister.

(4) An appellant shall serve a notice of appeal on any other person who the Court orders to be served.

59 On receipt of the notice of appeal under subsection 58(1), the Minister shall file with the Court true copies of

(a) all documents and materials that were before the Minister when the Minister made the decision;

(b) the Minister’s decision; and

(c) the Minister’s written reasons for the decision.

60 (1) On hearing an appeal under Section 58, the Court may confirm, vary or dismiss the decision or refer the matter back to the Minister.

(2) The Court may make any order as to costs on an appeal that the Court considers appropriate.

61 The commencement of an appeal under Section 58 operates as a stay of the decision pending the outcome of the appeal.

62 The Minister may issue public reports disclosing details of orders and decisions made and administrative penalties issued under this Act.

63 The following documents must be provided in an accessible format and at no charge to a person within a reasonable period after the person requests it from the Minister or a public sector body:

(a) in the case of the Minister,

(i) the terms of reference for a proposed accessibility standard,

(ii) the recommendations of the Board,

(iii) a proposed accessibility standard,

(iv) a review conducted under Section 64,

(v) any educational and awareness tools made publicly available,

(vi) a summary report prepared by the Board,

(vii) an accessibility plan; and

(b) in the case of a public sector body, its accessibility plan.

64 (1) Within four years after the coming into force of this Act, and at least every five years thereafter, the Governor in Council shall appoint a person to undertake a comprehensive review of the effectiveness of the Act and report on the person’s findings to the Minister.

(2) The person undertaking the review under this Section shall consult with

(a) persons with disabilities;

(b) representatives from organizations representing persons with disabilities; and

(c) representatives from organizations affected by the implementation of accessibility standards.

(3) Within 30 days of receiving the report, the Minister shall make the report publicly available.

65 No action lies against the Minister, the Accessibility Directorate, the Board, an inspector or any other person acting under the authority of this Act for anything done, or omitted to be done, in good faith, in the exercise or intended exercise of a power or duty under this Act or the regulations.

66 An individual or organization who

(a) repeatedly fails to

(i) prepare and keep records in accordance with the regulations,

(ii) make the records available for inspection and examination, or

(iii) comply with an accessibility standard as required under Section 38;

(b) knowingly makes a false or misleading statement to the Minister or an inspector acting under the authority of this Act;

(c) knowingly makes a false or misleading statement in a record or report given or required under this Act;

(d) hinders, obstructs or interferes with, or attempts to hinder, obstruct or interfere with, the Minister or an inspector acting under the authority of this Act; or

(e) continues to fail to comply with an inspector’s order after having been issued an administrative penalty, regardless of whether the penalty is paid,

is guilty of an offence and liable on summary conviction to a fine of not more than $25,000.

67 In a prosecution of an offence under this Act, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused whether or not the employee or agent is identified or has been prosecuted for the offence, unless the accused establishes that the offence was committed without the knowledge or consent of the accused.

68 Where an organization commits an offence, a director, officer or agent of the organization who authorized, permitted or acquiesced in the offence is also guilty of the offence and liable on summary conviction to the penalty set out in Section 66, whether or not the organization has been prosecuted or convicted.

69 (1) The Governor in Council may make regulations

(a) prescribing municipalities and organizations in the public sector as public sector bodies;

(b) prescribing the manner in which a report must be made publicly available;

(c) prescribing an activity, undertaking or other requirements for the purpose of clause 23(1)(e);

(d) establishing accessibility standards;

(e) exempting an individual or organization or a class of individuals or organizations, or an aspect of the built environment, from the application of any provision of this Act or the regulations and prescribing terms and conditions for the exemption;

(f) respecting record-keeping and reporting requirements for individuals and organizations that are subject to an accessibility standard;

(g) respecting accessibility plans, including the content, timing and preparation of such plans;

(h) prescribing municipalities that may have a joint accessibility plan;

(i) respecting the offices, positions, territorial jurisdiction and duties of inspectors generally or specifically;

(j) establishing rules governing the qualifications, office, position, duties, conduct and discipline of inspectors;

(k) respecting the form of the order an inspector may make, including the content of the order and the method of its service;

(l) prescribing the form an inspector must use when making an order under Section 51;

(m) for the purpose of Section 53, respecting administrative penalties for contraventions of this Act, including regulations

(i) prescribing the form and content of the notice of administrative penalty,

(ii) respecting the determination of amounts of administrative penalties, which may vary according to the nature or frequency of the contravention and whether it is an individual or organization in non-compliance, and

(iii) respecting any other matter necessary for the administration of the system of administrative penalties provided for under this Act;

(n) respecting the specific use to be made of any funds collected through the imposition of administrative penalties;

(o) respecting the manner in which any order, notice or other document under this Act may be served, given or provided to any individual or organization;

(p) respecting incentive-based measures to encourage and assist an individual or organization to meet an accessibility standard;

(q) defining any word or expression used but not defined in this Act;

(r) respecting any matter or thing the Governor in Council considers necessary or advisable to effectively carry out the intent and purpose of this Act.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is a regulation within the meaning of the Regulations Act.

70 Chapter 130 of the Acts of 1989, the Disabled Persons’ Commission Act, is repealed.

71 This Act comes into force on such day as the Governor in Council orders and declares by proclamation.