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The Accessibility Standards Advisory Council Submits Weak, Ineffective and Counter-productive Final Recommendations to the Ontario Government for Proposed Revisions to the Customer Service Accessibility Standard

The AODA Alliance Calls on the Government to Keep Its Promise Not to Weaken any Existing Accessibility Protections November 12, 2014

SUMMARY

We regret to have to report to you about yet another major lost opportunity on the accessibility front in Ontario. This is especially troubling as Ontario continues to rudderlessly languish behind schedule for reaching full accessibility by 2025, the deadline that the Accessibility for Ontarians with Disabilities Act requires.

On Friday, November 7, 2014, the Government made public the weak and toothless final proposal for revisions to the Customer Service Accessibility Standard that was prepared earlier this year by the Accessibility Standards Advisory Council (ASAC). We set out ASACs proposals below. ASAC is the body which the Government appointed to develop proposals for new accessibility standards and for revisions to existing standards under the AODA.

Under the AODA, the Government must direct the review of any accessibility standard that has been on the books for five years. The Customer Service Accessibility Standard was enacted in 2007. Its review was required to start in 2012. However, the Government delayed appointing all members of ASAC until mid-2013. That delayed the start of this mandatory review of the Customer Service Accessibility Standard for over a full year beyond its legal deadline, contrary to the AODA.

ASACs proposals that were just made public are palpably weak, paltry and ineffective. They ignore most if not all of the detailed, constructive input that the AODA Alliance submitted to ASAC earlier this year. ASACs proposals would do nothing significant to improve the accessibility of customer service in Ontario for people with disabilities.

Making things worse, ASAC actually recommends that the Government cut back on the already-weak provisions of the existing Customer Service Accessibility Standard that was enacted in 2007. Its proposal would reduce obligations under that Standard for many of the very same private sector organizations which since January, in huge numbers, have been violating mandatory requirements in the 2007 Customer Service Accessibility Standard. The Government has known about those massive violations of the AODA since January 2013.

If the Government adopted ASACs flawed proposal, it would wrongly reward that massive law-breaking by reducing the obligations of those obligated organizations under the Customer Service Accessibility Standard. That would send the wrong signal to obligated organizations. Instead, the Government at last needs to keep its unkept promise to effectively enforce the AODA, rather than wrongly reducing the AODA obligations of organizations that have in massive numbers been violating this law with impunity.

For the Government to follow ASACs advice in this regard would also violate the Governments promise not to cut back on accessibility protections we have previously won. We call on the Wynne Government to confirm that it will keep its word to us, and that it will not cut back on any existing accessibility standards provisions.

ASAC also proposes to preserve in the Customer Service Accessibility Standard a provision which should never have been there in the first place, because it wrongly creates a barrier against people with disabilities. An accessibility standard cannot create barriers against people with disabilities. An accessibility standard is supposed to tear down disability accessibility barriers.

Now the 2007 Customer Service Accessibility Standard wrongly lets an organization dictate to a customer with a disability, in some situations, that the customer must bring his or her own support person at their own expense, or else entry can be barred. It wrongly lets the organization charge people with disabilities a second admission for that support person, even if the customer doesnt want a support person, or feel they need one.

Rather than recommending that the Government repeal this unlawful provision in the 2007 Customer Service Accessibility Standard, ASAC merely recommends some minor tinkering with its wording.

The Government is required to post ASACs proposals for at least 45 days. The public can submit comments to the Government on these. After that, the Government will decide what changes, if any, it will make to the Customer Service Accessibility Standard. In the face of ASACs seriously deficient proposals, we will ourselves go directly to the Government, with our own agenda for meaningful improvements to the Customer Service Accessibility Standard.

We urge the Government to immediately instruct the Accessibility Directorate of Ontario to develop meaningful, strong revisions to the Customer Service Accessibility, that are not constrained by the weak and counterproductive proposals that ASAC has submitted. The Accessibility Directorate of Ontario is part of the Ministry of Economic Development, Employment and Infrastructure the Ontario Government Ministry with lead responsibility to implement and enforce the AODA.

The Government should use the AODA Alliances April 4, 2014 brief to ASAC as the basis for these reforms. We would welcome the chance to work with the Government and other stakeholders on this.

This is ASACs first foray into proposing contents for accessibility standards, since the Government decided in 2012 to assign the development of proposals for accessibility standards to ASAC. We regret that, so far, the Governments 2012 reform to the process for developing accessibility standards in Ontario has turned out to be an abysmal and abject failure.

To read the AODA Alliances April 4, 2014 brief to ASAC, recommending substantial improvements to ASACs initial proposals (recommendations which ASAC has evidently opted to reject), visit http://www.aodaalliance.org/strong-effective-aoda/04082014.asp

To read ASACs initial proposal for revisions to the 2007 Customer Service Accessibility Standard, posted for public comment on March 3, 2014, visit http://www.aodaalliance.org/strong-effective-aoda/03142014.asp

To read the AODA Alliances September 12, 2007 critique of the 2007 Customer Service Accessibility Standard, visit http://www.aodaalliance.org/strong-effective-aoda/09122007.asp

While were at it, why not swing by the accessibility clock. A disturbing 359 days have now passed since we revealed that the Ontario Government was not enforcing the AODA, and that there have been rampant AODA violations in the private sector. This revelation came from a Freedom of Information application last year. The Government still has not made public its promised plan for the AODA’s effective enforcement.

Two hundred and sixty-five days have passed since the Toronto Star reported on February 20, 2014 that the Government would be publicly posting that new enforcement plan “in short order.”

One hundred and eighty-two days have passed since Premier Wynne promised to establish a toll-free line for members of the public to alert the Government to accessibility barriers against people with disabilities in the community. None has been announced.

To read our November 18, 2013 revelation that the Government was failing to effectively enforce the Disabilities Act despite knowing of rampant private sector violations, and funds on hand for enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/11182013.asp

To read the Government’s February 20, 2014 pledge to publish in “short order” its plan for enforcing the Disabilities Act, visit http://www.aodaalliance.org/strong-effective-aoda/02202014.asp

To read the Governments May 14, 2014 election promise to establish a toll-free line to report disability accessibility barriers, visit http://www.aodaalliance.org/strong-effective-aoda/06132014.asp

As well, 442 days have passed since the Government unveiled its plans for the legacy of the 2015 Toronto Pan/ParaPan American Games. Yet it has still not released details and specifics of a comprehensive disability accessibility legacy for the Games. Only 238 days remain until the 2015 Games begin. Time is running out!

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MORE DETAILS

Text of the Final Proposals for Revisions to the 2007 Customer Service Accessibility Standard Proposed to the Ontario Government by the Accessibility Standards Advisory Council

Final Proposed Revisions to the Customer Service Standard 2014

Purpose and Application

Current Regulation:

The Customer Service Standard establishes requirements for the provision of accessible customer service which apply to every designated public sector organization and to every other person or organization that provides goods or services to members of the public or other third parties and that has at least one employee in Ontario.

The Customer Service Standard provides the following definitions:
Designated public sector organization means the Legislative Assembly and the offices of persons appointed on the address of the Assembly, every ministry of the Government of Ontario, every municipality, and every person or organization listed in Schedule 1 or described in Schedule 2 of the regulation (including boards, commissions, authorities, agencies, district school boards, hospitals, colleges, universities, and public transportation organizations).
Provider of goods or services means a person or organization to whom the Customer Service Standard applies.

Proposed Change:

It is proposed that the types and definitions of obligated organizations under the Customer Service Standard be matched with those of other accessibility standards as follows: designated public sector organization
Government of Ontario
large designated public sector organization
large organization
Legislative Assembly
small designated public sector organization
small organization

It is also proposed that the term facilities be included throughout the Customer Service Standard where there are currently references to goods and services (i.e. goods, services and facilities).

For the purpose of the Customer Service Standard, facilities refers to services in buildings or premises that are offered for use to members of the public or third parties (e.g. stadium, banquet hall). It does not refer to the structure or physical features of the built environment which are covered by the Building Code.

Explanation:

This means removing the definitions of designated public sector organization and provider of goods and services under the Customer Service Standard and replacing them with the definitions under the other accessibility standards.

As a result, in this section and everywhere else in the document, references to a provider of goods and services have been replaced with obligated organization to match the other accessibility standards.

The proposed change would reduce inconsistencies across all accessibility standards.

The recommendation to include the term facilities throughout the Customer Service Standard would match language used throughout all other accessibility standards that refer to goods, services and facilities. It is not intended to change which organizations must comply with the Customer Service Standard, but better reflects the nature of businesses across Ontario and what they provide to customers. The addition of the term facilities is intended to reflect when facilities are provided as a service, and does not refer to facilities as a physical structure.

Class Structure

Current Regulation:

The Customer Service Standard establishes different requirements for private and not-for-profit organizations (i.e. other providers of goods and services) based on the number of employees:
Private and not-for-profit organizations are defined as having between 1-19 employees (small).
Private and not-for-profit organizations are defined as having 20 or more employees (large).

Proposed Change:

It is proposed that the class structure under the Customer Service Standard be changed to match that of the other accessibility standards, as follows:
Private and not-for-profit organizations would be defined as having between 1-49 employees (small).
Private and not-for-profit organizations would be defined as having 50 or more employees (large).

Requirements under the Customer Service Standard that currently apply to organizations with 20 or more employees would now apply to organizations with 50 or more employees.

Proposed changes regarding class structure would be reflected in the requirements for private and not-for profit organizations under the following sections of the Customer Service Standard: Establishment of policies, practices and procedures Service animals
Support persons
Notice of temporary disruptions
Training
Feedback process
Notice of availability of documents

Explanation:

This proposed change would match the class structure of the Customer Service Standard with the class structure of the other four accessibility standards (employment; information and communications; transportation; and the design of public spaces). The proposed change would result in a consistent definition of private and not-for-profit organizations, would simplify requirements, and would reduce inconsistencies across all accessibility standards.

For example, with this proposed change, organizations with 20-49 employees would continue to be required to establish policies, practices and procedures governing the provision of goods or services to people with disabilities (as required under Section 3 of the Customer Service Standard). However, these organizations would no longer be required to prepare one or more documents describing their policies, practices and procedures or to provide these documents upon request (as currently required under Section 3.5).

Effective Dates

Current Regulation:

The Customer Service Standard came into effect for designated public sector organizations as of January 1, 2010 and to all other providers of goods or services as of January 1, 2012.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

It is proposed that where practical and applicable, compliance dates align with the Integrated Accessibility Standards Regulation with provision of a grace period if required.

Delayed effective dates are proposed for all other recommendations with material changes to existing requirements to allow organizations time to comply.

Explanation:

The proposed changes are intended to ensure that organizations have sufficient time to understand and comply with the revised Customer Service Standard. Where there is a similar requirement under the Customer Service Standard and another accessibility standard, aligning timelines is intended to reduce inconsistencies and simplify requirements.

Establishment of Policies, Practices and Procedures

Current Regulation:

Every provider of goods or services is required to establish policies, practices and procedures governing the provision of its goods or services to people with disabilities.

The provider must make reasonable efforts to ensure that its policies, practices and procedures are consistent with the following principles:
The goods or services must be provided in a manner that respects the dignity and independence of people with disabilities;
The provision of goods or services to people with disabilities and others must be integrated unless an alternate measure is necessary, whether temporarily or on a permanent basis, to enable a person with a disability to obtain, use or benefit from the goods or services; and
People with disabilities must be given an opportunity equal to that given to others to obtain, use and benefit from the goods or services.

The policies must deal with the use of assistive devices by people with disabilities to obtain, use or benefit from the providers goods or services or the availability, if any, of other measures which enable them to do so.

When communicating with a person with a disability, a provider must do so in a manner that takes into account the persons disability.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare one or more documents describing its policies, practices and procedures and, upon request, shall give a copy of a document to any person.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

It is proposed that references to policies, practices and procedures throughout the Customer Service Standard be changed to match the term policies in the other accessibility standards.

Proposed changes would be reflected in the following sections of the Customer Service Standard: Service animals
Support persons
Training

Explanation:

The proposed change would align language and terminology across all accessibility standards, reduce inconsistencies, and simplify requirements.

Service Animals

Current Regulation:

This provision applies if goods or services are provided to members of the public or other third parties at premises owned or operated by the provider of the goods or services and if the public or third parties have access to the premises.

If a person with a disability is accompanied by a guide dog or other service animal, the provider of goods or services must ensure that the person is permitted to enter the premises with the animal and be permitted to keep the animal with him or her unless the animal is otherwise excluded by law from the premises.

If a service animal is excluded by law from the premises, the provider of goods or services must ensure that other measures are available to enable the person with a disability to obtain, use or benefit from the providers goods or services.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare one or more documents describing its policies, practices and procedures with respect to service animals and, upon request, shall give a copy of a document to any person.

Under this provision, a guide dog means a guide dog as defined in section 1 of the Blind People Rights Act.

Under this provision, an animal is considered a service animal if:
If it is readily apparent that it is used by the person for reasons relating to his/her disability; or
If the person provides a letter from a physician or nurse confirming that the person requires the animal for reasons relating to the disability.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

Proposed changes to policies, practices and procedures in the Policies, Practices and Procedures Section above would apply to this section.

It is proposed that the definition of service animal to be changed. An animal would be defined as a service animal if:
The person provides third party certification that their service animal has been trained to provide assistance that relates to that persons disability; or
It is readily identifiable that the animal is used by the person for reasons relating to their disability; or
The person provides documentation from a regulated health professional confirming that the person requires the animal for reasons relating to their disability.

Explanation:

Adding the option to provide third party certification that the animal is trained is intended to provide people with disabilities another means to demonstrate their animal is a service animal. This addition also reflects the fact that service animals are not pets, and may be formally trained to provide assistance to a person with a disability.

The term readily identifiable is recommended to replace readily apparent to make it more clear to organizations that a service animal may be recognized through indicators or visual cues such as a vest or harness, without staff having to ask for a letter from a health professional.

Expanding the range of people who can provide documentation confirming a persons requirement for a service animal to regulated health professionals from the more specific physician or nurse was seen by the committee as more inclusive of the range of health care professionals that may be used by people with different types of disabilities. Changing the term letter to documentation is also more inclusive of the types of documents that a health professional may provide (e.g. form, template, or letter).

Support Persons

Current Regulation:

This provision applies if goods or services are provided to members of the public or other third parties at premises owned or operated by the provider of the goods or services and if the public or third parties have access to the premises.

If a person with a disability is accompanied by a support person, the provider of goods or services must ensure that both are permitted to enter the premises together and that the person with a disability is not prevented from having access to the support person while on the premises.

The provider of goods or services may require a person with a disability to be accompanied by a support person when on the premises, but only if a support person is necessary to protect the health or safety of the person with a disability or the health or safety of others on the premises.

If an amount is charged for admission to the premises or in connection to a persons presence on the premises, the provider of goods or services must ensure that notice is given in advance about the amount, if any, payable in respect of the support person.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare one or more documents describing its policies, practices and procedures with respect to support persons and, upon request, must give a copy of a document to any person.

Under this provision, support person means, in relation to a person with a disability, another person who accompanies him or her in order to help with communication, mobility, personal care or medical needs or with access to goods or services.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

Proposed changes to policies, practices and procedures in the Policies, Practices and Procedures Section above would apply to this section.

Additional language is proposed to clarify when an organization may require a support person to accompany a person with a disability for reasons of health and safety as follows:
This would only occur where, after consultation with the person with a disability, requiring a support person is the only means to allow the person to be on the premises and at the same time fulfill the providers obligation to protect the health and safety of the person with a disability and that of others (i.e., the health and safety risk cannot be eliminated or reduced by other means); and
Any considerations on protecting health and safety must be based on specific evidence and not on assumptions.

Explanation:

The additional requirements clarify for organizations that there are limited circumstances whereby an organization could require that a person with a disability be accompanied by a support person and that certain conditions should be met including: Consultation with the person with a disability;
Determination that there is no other solution or means to allow the person to be on the premises and at the same time fulfill the providers obligation to protect the health and safety of the person with a disability and that of others; and The decision is evidence-based.

Notice of Temporary Disruptions

Current Regulation:

If, in order to obtain, use or benefit from a providers goods or services, people with disabilities usually use particular facilities or services of the provider and if there is a temporary disruption in those facilities or services in whole or in part, the provider is required give notice of the disruption to the public.

Notice of the disruption must include information about the reason for the disruption, its anticipated duration and a description of alternative facilities or services, if any, that are available.

Notice may be given by posting the information at a conspicuous place on premises owned or operated by the provider of goods or services, by posting it on the providers website, if any, or by such other method as is reasonable in the circumstances.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare a document that sets out the steps to be taken in connection with a temporary disruption and, upon request, must give a copy of the document to any person.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

No additional changes to the current Notice of Temporary Disruptions Section of the Customer Service Standard are recommended.

Training for Staff

Current Regulation:

Every provider of goods or services is required to ensure that the following people receive training about the provision of its goods or services to people with disabilities:
Every person who deals with members of the public or other third parties on behalf of the provider, whether they do so as an employee, agent, volunteer or otherwise.
Every person who participates in developing the providers policies, practices and procedures about providing goods or services to members of the public or other third parties.

The training must include a review of the purposes of the AODA and the requirements of the Customer Service Standard and instruction about the following matters:
How to interact and communicate with people with various types of disability;
How to interact with people with disabilities who use an assistive device or require the assistance of a guide dog or other service animal or the assistance of a support person;
How to use equipment or devices available on the providers premises or otherwise provided by the provider that may help with providing goods or services to a person with a disability; and
What to do if a person with a particular type of disability is having difficulty accessing the providers goods or services.

The training must be provided to each person as soon as practicable after he or she is assigned the applicable duties.

Training must also be provided on an ongoing basis in connection with changes to the policies, practices and procedures governing the provision of goods or services to people with disabilities.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare a document describing its training policy, and the document must include a summary of the contents of the training and details of when the training is to be provided.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario is required to keep records of the training provided under this provision of the Customer Service Standard, including the dates on which the training is provided and the number of individuals to whom it is provided.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

Proposed changes to policies, practices and procedures in the Policies, Practices and Procedures Section above would apply to this section.

It is proposed that the requirements on who must be trained and when training must be provided be replaced with the following language: Training must be provided to:
All employees, and volunteers;
All people who participate in developing the organizations policies; and
All other people who provide goods, services or facilities on behalf of the organization. Every person must be trained as soon as practicable.
Organizations must provide training on any changes to its accessibility policies on an ongoing basis.

Explanation:

These proposed changes would match the broader language in the other accessibility standards, simplify requirements, and reduce inconsistencies across all accessibility standards.

Feedback Process for Providers of Goods or Services

Current Regulation:

Every provider of goods or services must establish a process for receiving and responding to feedback about how it provides goods or services to people with disabilities and must make information about this feedback process readily available to the public.

The feedback process must permit people to provide their feedback in person, by telephone, in writing, or by delivering an electronic text by email or on diskette or otherwise.

The feedback process must specify the actions that the provider of goods or services is required to take if a complaint is received.

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must prepare a document describing its feedback process and, upon request, must give a copy of the document to any person.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

It is proposed that the title of the section be changed to Feedback Process on the Accessible Provision of Goods or Services.

It is also proposed that the language on the channels and formats of an organizations feedback process under the Customer Service Standard be matched with the language in the Information and Communications Standard which specifies that:
Obligated organizations must ensure that their feedback process is accessible to persons with disabilities by providing or arranging for the provision of accessible formats and communication supports upon request.

It is further proposed that language be added to the feedback section that is similar to the language in the policies, practices and procedures section of the Customer Service Standard which states that when communicating with a person with a disability, a provider shall do so in a manner that takes into account the persons disability.

Explanation:

The proposed new title of the section is intended to clarify that the requirements relate to receiving feedback on the accessibility of the provision of goods and services rather than the accessibility of the goods and services themselves.

Changing how feedback is accepted to require organizations to provide accessible formats and communication supports (rather than accepting feedback through certain communication channels such as in person, by telephone, in writing, on diskette) matches similar requirements under the Information and Communications Standard.

The proposed change may enhance accessibility for people with disabilities since they can request the accessible format or communication support that works best for them and their needs when providing feedback rather than choosing from the possible methods for providing feedback that are determined by the organization (e.g. by telephone or in writing).

Reiterating the requirement for organizations to communicate with a person in a manner that takes into account their disability in the feedback provision (similar to the requirement in the policies, practices and procedures section of the Customer Service Standard) reinforces the importance of this principle.

Notice of Availability and Format of Documents

Current Regulation:

Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario must notify people to whom it provides goods or services that the documents required by the Customer Service Standard are available upon request (e.g. accessible customer service policies).

The notice may be given by posting the information at a conspicuous place on premises owned or operated by the provider, by posting it on the providers website, if any, or by such other method as is reasonable in the circumstances.

If a provider of goods or services is required by the Customer Service Standard to give a copy of a document to a person with a disability, the provider is required to give the person the document, or the information contained in the document, in a format that takes into account the persons disability.

The provider of goods or services and the person with a disability may agree upon the format to be used for the document or information.

Proposed Change:

Proposed changes to the definition of provider of goods and services in the Purpose and Application Section above would apply to this section.

Proposed changes to class structure in the Class Structure Section above would apply to this section.

It is proposed that an organization be required to provide accessible formats and communication supports upon request to a person with a disability. These must be provided in a timely manner and at a cost that is no more than the regular cost charged.

It is also proposed that the current provision that organizations and people with disabilities agree upon an accessible format be replaced with the following requirement:
Organizations must consult with the person making the request to determine the suitability of an accessible format or communication support.

Explanation:

The proposed change would align language and terminology with the Information and Communications Standard, reduce inconsistencies, and simplify requirements.

Initial proposed changes

The Accessibility Standards Advisory Council/Standards Development Committee developed its final proposed revisions to the Customer Service Standard after considering public feedback collected between March 3, 2014 and May 22, 2014 based on the Committees initial proposed revisions.