The Ford Government Makes the Obviously Incorrect Claim that Ontario’s Accessibility Law Doesn’t Cover Accessibility of Buildings
Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
November 16, 2018
SUMMARY
1. Still No End in Sight for the Ford Government’s Four-Month-long Freeze of the Work on Removing and Preventing Barriers Against Students with Disabilities in Ontario’s Education system, and Barriers Against Patients with Disabilities in Ontario’s Health Care System
On November 13, 2018, CBC TV and radio news aired excellent reports on the Ford Government’s ongoing and unjustified freeze on the work of the Standards Development Committees that were appointed under the Accessibility for Ontarians with Disabilities Act to recommend what disability barriers must be removed and prevented in Ontario’s education system and health care system. This freeze has gone on for over four months. From what the Government told CBC, this freeze appears to have no end in sight. The Government says that it will be giving this issue “further consideration””
We set out below the text of the online version of this CBC news report. While preparing this report, CBC news sent AODA Alliance Chair David Lepofsky a statement, which the Ford Government sent to CBC on November 9, 2018 on point. CBC asked the AODA Alliance to comment on the Government’s statement. We set that full statement out below.
The Government’s statement notes that the Government is resuming the work of the Employment Standards Development Committee and the Information and Communication Standards Development Committee. All that Government statement said about the work on education and health care standards was this:
“We will have more to say regarding the resumption of the Education and Health Standards Development Committees upon further consideration.”
The Government has made no public statement on what “further consideration” is needed, or how long this further consideration will take, or why it has taken over four months so far, with no end in sight. The new Government has shown itself capable of acting quickly and decisively on other issues, when it wishes to do so.
Early last summer, the Ontario Government said that it needed to brief the Minister for Accessibility and Seniors on this. It does not take this long to brief a minister.
The AODA Alliance wrote the Minister for Accessibility and Seniors Raymond Cho back on August 29, 2018, to spell out in detail why it is important for the Ford Government to lift this freeze now. the Government has not answered that letter.
If it takes the Government this long just to decide on resuming the work of these Standards Development Committees, there can be real concern whether the Government will act promptly and effectively to get Ontario back on schedule to reach accessibility for Ontarians with disabilities by 2025. This delay in resuming the work of the Education and Health Care Standards Development Committees does not square with the commitments on accessibility for people with disabilities that Doug Ford made in the 2018 Ontario election. In his May 15, 2018 letter to the AODA Alliance, Doug Ford wrote:
“Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.
Too many Ontarians with disabilities still face barriers when they try to get a job, ride public transit, get an education, use our healthcare system, buy goods or services, or eat in restaurants.
Whether addressing standards for public housing, health care, employment or education, our goal when passing the AODA in 2005 was to help remove the barriers that prevent people with disabilities from participating more fully in their communities.
For the Ontario PCs, this remains our goal. Making Ontario fully accessible by 2025 is an important goal under the AODA and its one that would be taken seriously by an Ontario PC government.”
2. The Ford Government Wrongly Claims that Ontario’s Accessibility Law Doesn’t Cover Accessibility of Buildings
Is the Ford Government trying to substantially cut back on the reach of the AODA? We have a basis for concern.
The Government’s November 9, 2018 statement to CBC includes a very disturbing new and clearly incorrect statement on the reach of the Accessibility for Ontarians with Disabilities Act. The CBC’s November 13, 2018 news report does not address this issue.
The Ford Government told CBC:
“It is important to note that accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act (AODA), but under the Ontario Building Code. Accessibility requirements for buildings are included in Ontarios Building Code to make it easier for organizations by ensuring that all construction requirements are found in one place. The Building Code is the responsibility of the Ministry of Municipal Affairs and Housing.”
This is obviously untrue. Accessibility in buildings falls well within the AODA. It is true that the Ontario Building Code has provisions, albeit chronically insufficient ones, on accessibility in new buildings and in major renovations of existing buildings. However, it is incorrect for the Government to claim that accessibility of buildings is somehow outside the scope of the Accessibility for Ontarians with Disabilities Act.
The very first section of the AODA specifically includes accessibility of buildings. It defines the scope and purpose of the AODA. Section 1 of the AODA provides:
” 1. Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this Act is to benefit all Ontarians by,
(a) developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and
(b) providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.”
Section 3(d) of the AODA makes the AODA apply, to among others, a person who:
” (d) owns or occupies a building, structure or premises”
Section 6 of the AODA requires an accessibility standard to address, among other things, barriers in buildings. Section 6 includes:
” (6) An accessibility standard shall,
(a) set out measures, policies, practices or other requirements for the identification and removal of barriers with respect to goods, services, facilities, accommodation, employment, buildings, structures, premises or such other things as may be prescribed, and for the prevention of the erection of such barriers;”
In February 2015, the former Ontario Government released the report of an Independent Review of the AODA, conducted by former University of Toronto law dean Mayo Moran. Her report said this, among other things:
* “The Building Code does not require retrofitting of existing buildings to improve accessibility and most of the accessibility provisions do not apply to houses.
* “The issue of retrofits to remove existing barriers was a particular subject of discussion during the consultations. Current accessibility requirements apply to new buildings and extensive renovations as well as to newly constructed or redeveloped public spaces. They do not call for the retrofitting of the built environment, but many in the disability community and in the business sector do not realize this. As a result, people with disabilities may feel betrayed when they encounter physical barriers, while some businesses are turned against accessibility by what they fear will be high retrofit costs.”
* “As mentioned above, the current Built Environment Standards do not cover retrofits to remove existing barriers. Many disability stakeholders argued that this must change. They pointed out that barriers in buildings mean people with disabilities cannot use them, whether to shop, study, work, play or obtain services from health care to drivers licences.
During the Review, considerable discussion of retrofits arose in different sectors. Many concerns were raised about the built environment in health care, such as lack of elevators to doctors offices and inaccessible hospital washrooms. A strong view was expressed that all health care facilities in particular should be physically accessible to people with disabilities. The importance of access to buildings was also underlined in the education sector. In the housing sector, a suggestion was made for retrofits of all apartment suites to install power door openers.
Generally speaking, the Review heard that if accessibility standards were expanded to require building retrofits, it would be necessary to create exemptions in cases of undue hardship. For example, some people with disabilities who contended that the AODA should require retrofits of ramps and door openers felt this should apply only where it can be done without undue hardship. Other disability stakeholders observed that such exemptions would be inconsistent with the usual approach under the Building Code, which is to impose accessibility requirements without providing for exceptions if the cost would result in undue hardship. It was argued that this usual practice should be overlooked if it stands in the way of retrofits to improve accessibility.”
* “On the content of other possible new standards, it may be helpful to summarize the gap analysis that emerged from the Review. The gap that stood out most clearly from the perspective of this Review concerned the built environment and the issue of retrofits. As mentioned earlier, of all the barriers facing people with disabilities, those involving the built environment attracted the most comment during the Review. Yet, as noted above, barriers in existing facilities as opposed to those in new construction or renovations are not covered by the current accessibility standards, leading to much frustration in the disability community. The Review repeatedly heard that in the absence of an obligation to ensure that the built environment eventually incorporates at least some accessibility features, it will be very difficult to celebrate the Ontario of 2025 as a leader in accessibility. At the same time, it is also very clear that retrofit obligations (which many assume are already part of the AODA standards) can be costly undertakings and imposing any new obligations in this regard requires sensitivity.
Ontario could begin to address this issue by considering standards resembling the U.S. Americans with Disabilities Act (ADA) regulations which require private facilities that provide goods or services to remove existing architectural barriers where this is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense. (ADA Title III Regulations, section 36.304). This approach would lend itself to setting some priorities for accessibility enhancements, such as entry ways and washrooms (the two areas most frequently referred to in the consultations). Although by no means a full solution, beginning to address the built environment through a relatively modest option would significantly improve access for people with disabilities without generating major worries about cost.
As is the case with all AODA standards, compliance with such a requirement would not relieve organizations of their obligation under the Human Rights Code to accommodate people with disabilities to the point of undue hardship. Individuals who believed their needs were not adequately met by readily achievable measures would still have the option of seeking recourse through the Human Rights Tribunal of Ontario.”
It is true that AODA standards to date have not comprehensively addressed disability accessibility barriers in the built environment. The former Ontario Government promised to enact a Built Environment Accessibility Standard, but did not ever do so. It only enacted a much narrower accessibility standard, addressing barriers in a limited number of public spaces.
However, that does not mean that “accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act” as the Ford Government claims. It is very important for the Ford Government to correct this serious misunderstanding of its obligations under the AODA.
We always welcome your feedback. Write us at aodafeedback@gmail.com or tweet us at @aodaalliance
More Details
CBC News November 13, 2018
Originally posted at https://www.cbc.ca/news/canada/toronto/ontario-standards-development-committees-1.4901869 Accessibility advocates want the Ontario government to put them to work
Committees working on provincial accessibility standards say their work’s been paused for too long
Taylor Simmons CBC News
Posted: Nov 13, 2018 4:00 AM ET | Last Updated: November 13
Kathleen Lynch, a student at Humber College, looks down at a garbage can blocking the path to her classroom. She wants Ontario to get back to work creating accessibility standards, so all of her classrooms will be equipped with automatic doors. (Mehrdad Nazarahari/CBC)
A Toronto student with multiple sclerosis has a message for Premier Doug Ford: “Get in my chair” and see how you experience the province.
Kathleen Lynch, a journalism student at Humber College, is one of some 74,000 post-secondary students with disabilities in Ontario.
She says if Ford could only see the daily challenges she faces, he’d work much harder to ensure the province accomplishes its goal of becoming fully-accessible by 2025.
“Do you know how quickly he’d be snapping his fingers saying, ‘We need to do something about this?'” she said.
And Lynch isn’t alone in her criticism.
Kathleen Lynch wants to see the government do more to make post-secondary institutions more accessible to students with disabilities. (Mehrdad Nazarahari/CBC)
Accessibility advocates say the government hasn’t put several Standards Development Committees (SDCs) special groups looking at how to get rid of accessibility barriers in the province back to work almost five months after the spring election.
Their work is an essential part of the Accessibility for Ontarians with Disabilities Act (AODA), passed in 2005. All the parties voted to work toward making the province barrier-free by 2025.
Creating a standard
The SDCs are meant to study barriers in different sectors to make recommendations for an accessibility standard.
The three still paused looking at health care, schools K – 12 and post-secondary institutions are the most recent to begin their work.
They stopped work on May 8, 2018, when the provincial election campaign officially began.
Raymond Cho became Ontario’s new minister of Seniors and Accessibility in June 2018. He was a previously a Toronto city councillor. (John Sandeman/CBC)
In a statement, the Ministry for Seniors and Accessibility said they’ve resumed some of the other committees, but they’ll have more to say on the ones still paused “upon further consideration.”
That doesn’t sit well with David Lepofsky, the chair of the AODA Alliance.
He said as the official opposition, the PCs had previously criticized the former Liberal government for not moving fast enough to create the committees.
“On our behalf they slammed the former government when it delayed,” he said. “The Conservative Party that used to press to move forward on this has frozen our work … That’s not fair.”
When he inquired, Lepofsky said a spokesperson told him the government needed time to brief the new minister before resuming the committees’ work.
David Lepofsky is also a member of the K-12 Standards Development Committee. (CBC)
“It doesn’t take four months to brief a new minister,” he said. “Our students with disabilities have been facing this uphill situation in schools for years. It’s long overdue time to fix it, so we can’t afford a delay.”
Why the standards matter
In the absence of a standard, Lynch feels she’s been left to fight her own battle.
As a result of her disease, she isn’t able to move her left arm and uses a power wheelchair to get around.
Most of her classrooms are not equipped with automatic door openers, which she said makes it extremely difficult to get through them.
“If there is an automatic button that’s my independence,” she said. “There’s a lot of handicapped kids, and I don’t know if their needs are being met.”
Lynch said this is the only classroom door, as part of her program, she can open using an automatic door opener. Otherwise, she’s left flagging other students down for help. (Mehrdad Nazarahari/CBC)
On top of that, she said other students are often using the barrier-free washrooms, which are the only ones she can use.
“Several times I’ve come here and I’m waiting 10, 15 minutes for somebody to walk out that door. And it’s kind of demoralizing, it’s kind of dehumanizing and it’s a basic need to go to the washroom,” she said.
As a fix, she’d like to see the college give out key cards to students with disabilities so only they can use those washrooms.
In a statement, Humber College said Lynch’s building exceeds accessibility standards, and has automatic door openers installed at all public entrances and at barrier-free washrooms.
But an accessibility standard might require them to do more.
When a student with a physical disability enrolls in a program, the standard might require the school to offer those classes in rooms already equipped with automatic openers.
Lynch said those openers would give her back her independence, which is why she’s also eager for the SDCs to get back to work.
“It’s 2018. They’re too far behind,” she said.
‘We’re disappointed to still be waiting’
Sandi Bell, the chair of the Health Care Standards Development Committee, agrees.
“We’re disappointed to still be waiting,” she said. “I have been particularly concerned because we are one of the most recent … committees to have been formed. So we’re still working on our very first set of recommendations.”
Bell said they’re looking at complex barriers, such as what a hospital might do with a person’s service animal should they experience an emergency.
“The issues are huge,” she said. “Every day that goes by, someone may not be being afforded the accessibility, the accommodation that they need.”
Jeanette Parsons is a member of the Post-Secondary Standards Development Committee. (Grant Linton/CBC)
Jeanette Parsons, the chair of the Inter-University Disability Issues Association and a member of the post-secondary SDC, is also eager to resume.
“We really, really do want to come back to the table with this and we’re looking forward to the resumption of this work,” she said.
Parsons’s committee had just begun to identify some of the biggest barriers facing post-secondary students with disabilities, such as transitioning from high school, accessible learning materials and mental health.
“It’s valuable for universities to sort of have a road map as to how they can enhance accessibility generally,” she said.
Many hospitals and schools have created their own accessibility standards, but according to Lepofsky: “There’s no specific accessibility standard regulation that’s enforceable in Ontario for schools, colleges, universities, hospitals and other health care providers.”
There are accessibility requirements for buildings under the Ontario Building Code, but they’re “completely inadequate,” Lepofsky says.
People can also file complaints under the Ontario Human Rights Code, but it’s up to the individuals to fight those battles.
“If we set one provincial standard then everyone will know what they’ve got to do, Lepofsky said.
“We’re eager to get back to work so we can give this government good recommendations … but we can’t do that until they lift their freeze.”
Statement from the Ontario Government to CBC on Friday November 9, 2018
Everyone in Ontario deserves to fully participate in everyday life and we are committed to working with our partners to advance accessibility. Increasing accessibility is good for everyone including people with disabilities, businesses, seniors and families with young children.
It is important to note that accessibility in buildings does not fall under the Accessibility for Ontarians with Disabilities Act (AODA), but under the Ontario Building Code. Accessibility requirements for buildings are included in Ontarios Building Code to make it easier for organizations by ensuring that all construction requirements are found in one place. The Building Code is the responsibility of the Ministry of Municipal Affairs and Housing.
Also, Ontarians, including students should know that under Ontarios existing accessibility laws, organizations are required to ensure that if accessibility features are not in place, alternate measures are available so that a person with a disability can access goods or services. Organizations are also required to have a process in place to receive and respond to feedback.
Under the AODA, Standard Development Committees engage in important work recommending and reviewing Ontarios accessibility standards. Active committees were paused in advance of the spring election, however we are pleased to confirm that the Employment and Information & Communications Standards Development Committees have been notified that their work will be resuming this year. The Transportation standards committees work is complete, and their final recommendations were posted on Ontario.ca in May of 2018.
We will have more to say regarding the resumption of the Education and Health Standards Development Committees upon further consideration.