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Government Response to Recommendations of the Accessibility Advisory Council for a Made-in-Manitoba Accessibility Act

Posted January 21, 2013

Honourable Jennifer Howard
Minister responsible for Persons with Disabilities

More than 15% of Manitobans face barriers that prevent their full participation in activities others take for granted. These barriers are very costly – to persons with disabilities, to their family and friends, and to their communities. In Manitoba, accessibility legislation will provide a process for the removal of barriers, as well as the prevention of new ones.

In June 2012, the Manitoba Accessibility Advisory Council prepared recommendations on enacting legislation for the prevention and removal of barriers, and on other policies and practices the government can undertake to improve accessibility.

The Government of Manitoba accepts the recommendations of the Manitoba Accessibility Advisory Council (Council) for a new Act and thanks the Council for its significant contribution in producing a report that can serve as the basis for substantive accessibility legislation.

The main goal of accessibility legislation is to prevent barriers from existing by working with public and private sectors on long-range plans to ensure accessibility. The introduction of legislation will lay out a framework for the development and implementation of accessibility standards and serve as an important step in fulfilling the vision of a fully accessible society. The recommendations of the Council will create critical elements essential to accessibility legislation:

  • The process will be designed to develop clear, specific and achievable goals.
  • Accessibility standards will affect both the public and private sectors.
  • Persons with disabilities and other stakeholders affected by the legislation, such as businesses and municipalities, will play a central role in the development of legislation standards.
  • Guarantees contained in the human rights codes will not be affected in any way.
  • There will be a regular review of the progress made.

The Government of Manitoba embraces the Council’s report and accepts its key recommendation that accessibility legislation be enacted. It is therefore the intention of the government to introduce legislation in 2013.

BACKGROUND

In 2011, the government passed The Manitoba Accessibility Advisory Council Act, which established the Accessibility Advisory Council. The Council was created to make recommendations on enacting legislation for the prevention and removal of barriers, and on other policies and practices the government can undertake to improve accessibility.

The Council is made up of 12 members with diverse backgrounds and experiences, including representatives of organizations of persons with disabilities, business, municipalities and other organizations. The Council has been meeting since November 2011, with meeting summaries provided to the public on the Council’s website.

In May 2012, The Accessibility Advisory Council Discussion Paper on Accessibility Legislation was released. It served as the basis for a broad consultation in May 2012. The feedback, concerns and ideas of numerous individuals and stakeholders have been considered as the Council prepared its recommendations.

The Council presented its recommendations on accessibility legislation to the Manitoba government in June 2012. The report contained 43 recommendations, each of which received unanimous support of the Accessibility Advisory Council. The unanimity reflected the hard work of the Council and the conviction that the time for accessibility legislation has come.

The implementation of accessibility legislation will be an immense task requiring long-term commitment and strong government leadership. Education will be a key component of introducing legislation; not only in ensuring greater public awareness of the benefits of full accessibility, but in creating a clear understanding of the obligations individuals and organizations will have under standards established by the Act.

Legislation alone will not eliminate every barrier, but it is an important tool to help us make Manitoba more accessible by preventing new barriers and setting in motion long-term plans to remove existing ones. It will take the efforts of all Manitobans working together to change attitudes, policies and practices.

Part One

The following are the recommendations of the Accessibility Advisory Council that have been accepted by the Government in full and will be incorporated into accessibility legislation.

PREAMBLE

The Government of Manitoba accepts the Council’s recommendation that strong, powerful and positive language be used in the preamble. The preamble will set the tone of the Act and reflect the government’s commitment to the identification, removal and prevention of barriers to full accessibility for all Manitobans. Given the significance of accessibility legislation, the preamble should recognize that:

  • Removing barriers will improve the health, independence and social inclusion of persons with disabilities;
  • Most Manitobans will confront barriers to accessibility at some point in their lives;
  • Barriers create additional costs to persons with disabilities, their family and friends and communities as a whole; and,
  • Disability rights provided by the Canadian Charter of Rights and Freedoms; and the Manitoba Human Rights Code.

The preamble should state Manitoba’s vision for accessibility legislation, and reflect the government’s commitment to legislation that will reshape our society in a way that will ensure persons with disabilities equal access to, and participation in, all facets of society.

DEFINITIONS

The Government of Manitoba accepts the Council’s recommendation of an inclusive definition of disability. As such, the Council recommends the Act should define barrier as anything that interacts with an impairment in a way that may hinder the person’s full and effective participation in society on an equal basis with others. This definition is intended to embody an inclusive, broad meaning of impairment, including long-term physical, mental, intellectual, invisible, episodic or sensory impairments.

The barriers to be removed and eliminated specified in The Accessibility Advisory Council Act are appropriately named. They are: a physical barrier, an architectural barrier, any information or communication barrier, an attitudinal barrier, a technological barrier, or a barrier established or perpetuated by an enactment, a policy or a practice.

PURPOSE

The Government of Manitoba accepts the Council’s recommendations that the purpose of the Act should cover fundamental areas involving the interaction of persons with disabilities and the broader society in which they live, work, learn and play. These areas should include, but not be limited to:

  • the design, operation, and management of the built environment
  • employment
  • transportation
  • information and communication
  • the delivery and receipt of goods and services

Rather than referring to buildings, facilities, premises and structures, the terminology should be the “built environment” as it is broad enough to cover everything that human design has modified from its natural origins. When we re-shape our society in a more accessible manner, we discover the broad appeal and positive spinoffs of universal design. In the same way products and services, such as cell phones and MP3 players with voice output screen readers, were directly marketed to persons with disabilities, they are now being demanded by a broad range of consumers.

The Act is intended to be broad and comprehensive, and to be able to deal with issues over time. The Act should recognize the evolving nature of access and barriers, and the need for flexible application of accessibility standards in the future. The rights of citizens to accessibility will change over time, and the framework of the legislation must reflect this.

ACCESSIBILITY ADVISORY COUNCIL

The Government of Manitoba accepts the Council’s recommendations that the Accessibility Advisory Council should be continued under the new Act. It also accepts that provisions from The Accessibility Advisory Council Act on the appointment of Council members, composition of the Council, and the establishment of committees be maintained, with the following clarification:

Membership of the Council must include representatives from organizations of persons disabled by barriers.

The Council recommends that committees should be established to develop accessibility standards for the consideration of the Council. Standard development will involve those most affected by the proposed standard including: persons with disabilities, affected stakeholders and/or representatives of the sectors who may have obligations under the proposed standard.

The Council recommends that each committee’s mandate be specified. The Council should be responsible for developing the guidelines for all committees established under the Act. The period for public comment following the Council’s recommendations being made public should be 60 days or any longer period specified by the Minister.

PRINCIPLES OF ACCESSIBILITY

The Government of Manitoba accepts the Council’s recommendations that the Council should be guided by the four principles articulated in The Accessibility Advisory Council Act. They are:

Access: Persons should have barrier-free access to places, events and other functions that are generally available in the community.

Equality: Persons should have barrier-free access to those things that will give them equality of opportunity and outcome.

Universal design: Access should be provided in a manner that does not establish or perpetuate differences based on a person’s impairment.

Systemic responsibility: The responsibility to prevent and remove barriers rests with the public or private person or organization that is responsible for establishing or perpetuating the barrier.

The Government has considered and accepted these principles, but feels that these should guide all persons and organizations with responsibilities under the Act and standards created under the Act, not just the Council. These principles will apply more broadly to every party with a duty under the Act and regulations.

ACCESSIBILITY STANDARDS

The Government of Manitoba accepts the Council’s recommendations respecting the establishment of accessibility standards by regulation. Standards will set out measures, policies, practices, or other requirements for identifying, preventing and removing barriers. Standards should require a person or organization that is subject to the standard to implement those requirements within the time period specified in the standard.

Standards should be developed in areas including, but not limited to:

  • the design, operation and management of the built environment
  • employment
  • transportation
  • information and communications
  • the delivery and receipt of goods and services

The Council recommends that the Act should not exempt any sector or activity from being subject to an accessibility standard. However, in certain circumstances, it may be reasonable for regulations to permit some exemptions from complying with the requirements of a specific standard.

The Council recommends that an accessibility standard may create different classes of persons or organizations, or the buildings, activities and operations under their control, according to certain characteristics. These characteristics may include their size, amount of revenue, number of employees and sphere of activity.

The Council recommends that accessibility standards may also allow for the definition of a class to be adjusted to include or exclude a specific person or organization based on criteria unique to that person, organization, or activity.

The Council recommends that any person or organization may be subject to more than one accessibility standard, and that an accessibility standard may be general or specific in its application and may be limited as to time and place.

STANDARD DEVELOPMENT PROCESS

The Government of Manitoba accepts the Council’s recommendations respecting the process for the development of accessibility standards, including that they should be enacted only after the Minister has received the recommendations of Council.

The Council recommends that the terms of reference for a proposed accessibility standard must specify the persons or organizations that may be made subject to the standard.

The Council recommends that the terms of reference for the development of the standard should be given to the Council and made available to the public by posting it electronically, or by other means to ensure the information is accessible, including alternate formats.

The Council recommends that the Council, on receiving the terms of reference for a proposed accessibility standard from the minister, should consider and make recommendations to the minister on:

  • the accessibility objectives of the standard;
  • the activity, undertaking and sector to which the standard relates;
  • the measures, policies, practices or other requirements that should be implemented, including how they should be implemented and by whom; and,
  • the timeframe for the implementation.

The Council recommends that when recommending timeframes for the implementation of an accessibility standard, the Council should be required to consider:

  • The nature of the barriers that the standard is intended to identify, prevent or remove;
  • The cost and level of technical complexity associated with implementing the standard; and,
  • Any other matter referred to in the terms of reference.

The Council recommends that in developing an accessibility standard, the Act should require the Council to consult with:

  • persons disabled by barriers or representative organizations of persons disabled by barriers
  • the Manitoba Human Rights Commission
  • representatives of the sectors or organizations that may be subjected to the proposed accessibility standard
  • representatives of the provincial and local government that have responsibilities or are related to the sector or classes of persons or organizations to be subjected to the proposed accessibility standard

The Council recommends that the Act should allow persons to submit comments about the proposed standard to the Minister within 60 days after a proposed accessibility standard is made available to the public, or within any longer period specified by the Minister. The Minister should then consult with the Council in regard to any comments received from the public about the proposed accessibility standard, and thereafter the proposed accessibility standard may be revised.

The Council recommends that each accessibility standard be reviewed within five years of enactment, and every five years thereafter, by having the Council examine the accessibility objectives and the measures, policies, practices and other requirements in the standard. The review should examine how well and by whom they are being implemented, after which the Council may develop recommendations to update the standard and submit these to the Minister.

Part Two

The following are recommendations of the Accessibility Advisory Council that have been accepted by the Government and additional measures the Government will consider in accessibility legislation.

MANDATE OF MINISTER RESPONSIBLE

The Government of Manitoba agrees with the recommendations of the Council regarding the Minister’s mandate under the Act. However, the Government will ensure that the Minister’s responsibility for public education will form part of the legislated mandate.

The Government’s leadership role articulated in Full Citizenship: A Manitoba Provincial Strategy on Disability (2001), which outlines Manitoba’s vision for full participation of persons with disabilities as equal citizens in our society, remains steadfast. The Minister’s role in identifying issues affecting persons with disabilities, co-ordinating policy development to improve access to public services and raising awareness about living with a disability will continue.

REVIEW BY GOVERNMENT

The Government accepts the Council’s recommendation that the Act should be reviewed within four years after it comes into force by a person appointed by the Minister. The review would determine the effectiveness of this Act, the accessibility standards and the other regulations made under this act and to report on his or her findings to the Minister. It is also accepted that further reviews should be conducted every five years in this regard.

In addition to proactive duties related to the reviewing of the Act, the Government will consider a process for undertaking an ongoing review of existing Manitoba statutes to ensure they reflect the four accessibility principles contained within the new Act (Access, Equality, Universal Design, Systemic Responsibility).

The Government will also place an additional duty on the Minister to develop a multi-year action plan that will contain timelines for the development and implementation of standards and other means of achieving accessibility in areas under the Minister’s mandate.

The Minister will also be required to prepare an annual report to the Legislature on activities of the Government and the Council.

ROLE OF MUNICIPALITIES

While the Council did not make a recommendation specific to municipalities, the Government recognizes the role that municipalities play in implementing accessibility in their communities. Given this important role, it is felt that the Act must provide that municipal councils take a proactive approach by regularly reviewing accessibility issues in their communities, and developing appropriate measures to achieve accessibility. The government will consider a similar duty for all larger public sector organizations.

Recognizing that municipalities and public sector organizations may already have mechanisms in place to achieve these goals, the Act will be flexible enough to accommodate different approaches to community consultation and planning for accessibility.

COMPLIANCE

The Accessibility Advisory Council recognized the key role of educating stakeholders and the parties required to comply with the new legislation. In addition, the Council recommended that the Act provide an effective compliance mechanism. This would include:

  • requiring parties with a duty under the Act to prepare accessibility reports relating to progress in the prevention and removal of barriers;
  • allowing the Minister to appoint a director to oversee compliance issues relating to the new Act;
  • when appropriate enabling the Minister to use existing provincial inspection and enforcement mechanisms to enforce standards developed under the Act;
  • the issuing of compliance orders;
  • allowing administrative penalties to be issued under the legislation; and,
  • providing for a fine of up to $25,000 when a party commits an offense under the Act.

The Government of Manitoba agrees with the Council that appropriate graduated compliance and enforcement mechanisms should be enacted in legislation, and accepts its recommendations. The Government recognizes that it must take a lead role through significant efforts to educate the public and all stakeholder groups on issues relating to the legislation and the achievement of accessibility. As Manitobans recognize the benefits to be derived from increased accessibility, reasonable and practical solutions to these issues will be achieved.

While the Government agrees with the general recommendations of the Council, it recognizes that, as the standards are developed, a full compliance system would be required. This would include the following aspects:

Inspections

  • Clear powers of inspectors in performing inspections to determine compliance with the Act, the accessibility standards and the other regulations;
  • express powers of entry into buildings or property;
  • restrictions on the ability of an inspector to enter a dwelling that is occupied as a residence except with the consent of the owner or occupant, or with the authority of a warrant;
  • the ability to ask for records and things that an officer requires for the inspection; or additional information, including personal information, that the inspector reasonably requires to perform the inspection;
  • limiting the power to enter and inspect a place without a warrant to only during the place’s regular business hours or, if it does not have regular business hours, during daylight hours;
  • the ability to issue orders where an inspector finds that the Act, an accessibility standard or another regulation is being contravened, requiring the person or organization responsible for the contravention to remedy it;
  • the ability of the recipient of the order issued by an inspector to request a review of the order by the director; and,
  • an appeal of the decision of the director to the Manitoba courts.

Administrative penalty

  • The ability to issue an administrative penalty for non-compliance based on the nature of the infraction and the size of the organization that must comply.
  • It is contemplated that the maximum administrative penalty would be $10,000, similar to the level in other provincial laws.
  • An appeal of the decision to levy a penalty would be made to the Manitoba courts.

Fine Levels

The Government of Manitoba notes the recommendation of the Council that the Act provide the courts the ability to assess a fine of up to $25,000 when a party commits an offence under the Act. A fine provided under the new Act should be set so that the cost of paying the fine is not less than the cost of complying with the Act. A limit of $25,000 may be too low to accomplish this. In this regard, consideration will be given to providing for criteria to be considered by the courts in setting fines that would include factors such as the size of the organization. As such, Government will continue to welcome input on fine levels and other mechanisms to ensure compliance.

Public disclosure of orders and administrative penalties

While the Council did not address this particular duty, the government feels the Act should provide for public disclosure of orders and administrative penalties similar to the process under The Consumer Protection Act and other Manitoba legislation.

CONCLUSION

The Government of Manitoba believes that accessibility legislation is good for the Province. Accessibility legislation will provide tangible benefits to all Manitobans, and will build on other efforts to advance the inclusion of persons with disabilities into all facets of society. Accessibility legislation promises to provide significant economic benefits and will better meet the growing demand for accessible products and services.

Eliminating barriers will provide significant economic gains in the areas of education, employment, markets and communities. In fact, reducing the unemployment rate among persons with disabilities in Manitoba by just one percent could reduce the need for income assistance payments by over $6 million annually. Accessibility legislation will not require businesses to hire people with disabilities; rather, removing barriers will help employers find and keep workers in a tight labour market dependent upon skilled employees.

It is estimated that in Manitoba, persons with disabilities represents more than $1 billion in consumer spending. Eliminating the barriers to employment and consumer services will greatly expand these figures, and boost the contribution of these citizens to the Manitoban economy. A recent study in Ontario found that retail sales in that province are projected to increase between $3.8 billion and $9.6 billion over five years due to the elimination of barriers related to customer service and access.

The Government of Manitoba believes that all Manitobans should be able to fully and equally participate in society. By eliminating the physical, institutional and structural barriers facing certain individuals, all Manitobans stand to benefit. Recognizing that nearly every Manitoban has a disability, knows someone with a disability, or will acquire a disability in the coming years, the time for accessibility legislation has come. The Government of Manitoba will move forward with accessibility legislation and make the vision of an inclusive society a reality for all Manitobans.