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Sunny Ways? More Accessibility Legislation Coming

Blog Canadian Labour and Employment Law
Baker & McKenzie
Jonathan D. Cocker.
Canada October 3 2016

True to their October 2015 campaign promise, the federal government has recently commenced a cross-country consultation process with Canadians aimed at developing national accessibility legislation.

Targeting Barriers from Sea to Sea to SeaThese federal sessions are tasked with the laudable goal of targeting barriers impacting Canadians ability to fully participate in daily activities, such as:

  • physical and architectural barriers that impede the ability to move freely in the built environment, use public transportation, access information or use technology;
  • attitudes, beliefs and misconceptions that some people may have about people with disabilities and what they can and cannot do; and
  • outdated policies and practices that do not take into account the varying abilities and disabilities that people may have.

Canadians are invited to participate in this consultation process with a seemingly wide-open scope for law-making in this area.

Provincial Initiatives Already Underway

But wait .. some provinces have already conducted similar consultations more than 10 years ago. Further, provinces like Ontario now have a fairly comprehensive set of accessibility standards, governed by a new Accessibility Directorate of Ontario, with the full powers of law under the Accessibility for Ontarians with Disabilities Act, 2005.

Under AODA, there are, in fact, existing mandated accessibility standards for:

  • customer service
  • information and communications
  • transportation
  • employment
  • design of public spaces

These standards tackle the very same barriers the federal government now seeks to combat.

Duplicative or Complementary?

Businesses in Ontario (aside from the federally-regulated minority) will be well on their way to compliance with most, if not all, of these standards after starting this process in 2005.

So, it must be asked, what does the federal government purport to regulate in this area and what does it mean for the dutiful in Ontario (and elsewhere) that have made commitments, including infrastructural changes, based upon provincial and not federal standards?

Will the resulting federal legislation be consistent with, for example, the AODA? Will there be some form of equivalency recognition for provincial schemes (and the businesses regulated thereunder) to be exempt from new federal legislation, as was done for privacy law? If not, should those implementing compliant accessibility programs delay further process steps until the requirements of a federal scheme become clear? In short, there is an argument that the federal efforts detract from existing provincial efforts on accessibility.

Innovative, But Where is the Authority?

Maybe the federal government can bring a moxie to the enterprise that provincials cannot the consultation does aim at both disabilities and (the distinct category of) functional limitations. While this might be innovative, the lawyers and the provincial governments protective of their constitutional powers of property and civil rights will wonder where the federal government obtains the legal authority to legislate national accessibility standards.

If it is to be non-binding and merely guidance for provincial and territorial governments, it may be best to make this clear to those it seeks to enlist in this legislative process. Otherwise, the federal government runs the risk of a decidedly cloudy outcome to its Sunny Ways.

Baker & McKenzie – Jonathan D. Cocker

Original at http://www.lexology.com/library/detail.aspx?g=4278fd2e-ed85-47cc-baef-043aa7bdfae7