AODA ALLIANCE URGES MCGUINTY GOVERNMENT TO FULLY COMPLY WITH THE AODA AND HONOUR DISABILITY ACCESSIBILITY ELECTION PROMISES
August 29, 2012
There are serious problems with how the McGuinty government is proposing to amend an important accessibility standard – an accessibility standard that took years to develop and was just enacted last year. What the Government proposes to do can undermine gains we made last year. It runs afoul of important guarantees for persons with disabilities in the AODA and in this Government’s earlier election commitments to us.
Here’s what happened. Last year, the Government enacted the Integrated Accessibility Regulation (IAR) to address barriers facing persons with disabilities in transportation, information and communication, and employment. Over a year later, on August 15, 2012, the Government posted on the internet for public comment some proposed amendments that it wants to make to the IAR. That was the first we had heard of this.
These proposed amendments were included in the Government’s draft new Public Spaces Built Environment Accessibility Standard. They have nothing to do with barriers in the built environment.
We have just written Community and Social Services Minister John Milloy. We spell out our serious concerns in detail. We set out our August 29, 2012 letter to Minister Milloy below. In summary, we voice these concerns:
1. The Government is wrongly skipping over important and mandatory requirements in the AODA for revising an Accessibility Standard Regulation.
2. The McGuinty Government says these are all minor and technical amendments, aimed at clarifying the IAR and making it easier to comply. Yet the AODA creates no exception or exemption for minor or technical amendments to an accessibility regulation.
3. The Government’s proposed amendments to the IAR are not all merely minor or technical.
4. The Government is breaching its 2011 election promise not to reduce protections for people with disabilities.
5. The Government has not given the public a clear explanation of its proposed amendments to the IAR, needed for the public, including people with disabilities, to be able to give meaningful input to the Government on these proposals.
6. By proceeding as it plans, the Government will leave a harmful cloud of uncertainty over the validity of any amendments to the IAR enacted in this incorrect way.
We are here raising important matters of principle. We would raise objections even if we liked all the proposed amendments, and even if they were all improvements in protections for people with disabilities.
In our letter, we offer the Government simple and constructive solutions that would let it consider its proposed amendments, while obeying the AODA. It is important for the Government to strictly comply with the AODA, if it expects others to do so as well.
Please contact the Government. Endorse our concerns. You can write Minister John Milloy at
Hon. John Milloy, Minister
Community and Social Services
6th Floor, Hepburn Block
80 Grosvenor Street
Toronto, Ontario M7A 1E9
Send this Update to family and friends. Please use social media like Facebook and Twitter to spread the word about this development. Circulate this concern to your local media. Let voters in Ontario’s two September 6, 2012 by-elections know about this development.
You can download the Government’s draft regulation, posted on August 15, 2012 for 45 days for public comment, that would amend the Integrated Accessibility Regulation and create a new Public Spaces Built Environment Accessibility Standard, by visiting https://www.aodaalliance.org/docs/08-12-Public-Spaces-Built-Environment-Accessibility-Standard-Regulation-draft.doc
You can learn more about how to give input into the government’s proposed new accessibility standard regulation by visiting https://www.aodaalliance.org/strong-effective-aoda/08172012.asp
You can get tips on how to raise disability accessibility issues in the current September 6, 2012 by-election campaigns in the Kitchener-Waterloo and Vaughan ridings by visiting https://www.aodaalliance.org/strong-effective-aoda/08232012.asp
Send us your feedback. Write us at email@example.com
TEXT OF THE AUGUST 29, 2012 LETTER FROM THE AODA ALLIANCE TO COMMUNITY AND SOCIAL SERVICES MINISTER JOHN MILLOY
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
Email: firstname.lastname@example.org Twitter: @aodaalliance
August 29, 2012
Via email: email@example.com
Hon. John Milloy, Minister
Community and Social Services
6th Floor, Hepburn Block
80 Grosvenor Street
Toronto, Ontario M7A 1E9
RE: Proposed Amendments to the 2011 Integrated Accessibility Regulation
We have serious concerns about your government’s recent proposal to amend the Integrated Accessibility Regulation (IAR). Your Government enacted the IAR in 2011 under the Accessibility for Ontarians with Disabilities Act.
On August 15, 2012, your ministry posted on the internet, for public comment, a draft new regulation. That posted draft regulation is mainly intended to address barriers people with disabilities face in public spaces of the built environment. You have given the public 45 days to comment on this draft regulation.
We do not here address the government’s proposals regarding barriers in public spaces of the built environment. Rather, we are deeply concerned that also within that same web posting is a Government proposal to make several amendments to the 2011 IAR. The 2011 IAR addresses barriers in access to transportation, to information and communications and to employment.
We were taken completely by surprise on August 15, 2012 to learn from your web posting about your Government’s proposed amendments to the 2011 IAR that have nothing to do with barriers against persons with disabilities in the built environment. Before this, in the many formal and informal dealings we have had with your Government at all levels since June 2011 (when the IAR was enacted), no one told us that your Government was considering any amendments to the IAR. We have spoken to your Government at all levels many times over that period about future plans for accessibility standards to be proposed under the AODA. There were innumerable opportunities to specifically raise your Government’s plans about possibly amending the IAR with us. We would have had lots to say.
1. The Government is Wrongly Skipping over Important Requirements in the AODA for Revising an Accessibility Standard Regulation
We are deeply concerned because your Government has failed to take all the important steps it is required to take under the Accessibility for Ontarians with Disabilities Act (AODA) before it can post a draft regulation to amend the 2011 IAR. The Government cannot amend the 2011 IAR simply by posting a draft regulation, receiving public comments on it, and then passing these changes either as is, or with more modifications. Such an inadequate process is what your Government is here inappropriately proposing to do.
Sections 6 to 10 of the AODA require that before the government may enact a new accessibility standard, or may revise an existing one, it must take a series of mandatory steps. These steps are intended to ensure that the process for developing a new accessibility standard, or for revising an existing accessibility standard, is fair, open and fully consultative. They aim to ensure that at all stages when a new accessibility standard is being developed, or when revisions to an existing accessibility standard are being considered, persons with disabilities and others have a full opportunity for input, including a full opportunity for dialogue across the table with other stakeholders, such as the private sector and the broader public sector.
Before the Government can revise an existing accessibility standard regulation, it must reconstitute the Standards Development Committee under the AODA that initially recommended that accessibility standard’s enactment. That Standards Development Committee must follow all the procedures set out in the AODA to get input from the public, including the disability community.
The Standards Development Committee must then submit an initial proposal to the Government for changes to the existing accessibility standard regulation. The public must then be given a chance to comment on this proposal. After that, the Standards Development Committee must develop a final proposal, taking into account the public’s input on its initial proposal.
The government can then review the Standards Development Committee’s final proposal and decide what changes, if any, it wants to make to the existing accessibility standard regulation. Only after that can the Government post a draft regulation on the internet for public comment, in order to amend an existing accessibility standard regulation. After that, the government must assess the public feedback it receives on its posted regulation. Once all of that is done, the government can pass a regulation that amends an existing accessibility standard regulation.
It is open to the Government at any time after an accessibility standard regulation has been enacted to assign the Standards Development Committee to review it and make recommendations to revise it. IN any event, the AODA requires the Government to assign the Standards Development Committee to review that existing accessibility standard regulation and to recommend any needed changes no later than five years after the existing accessibility standard regulation was enacted.
Section 9(9) of the AODA provides in material part:
“9 (9) Within five years after an accessibility standard is adopted by regulation or at such earlier time as the Minister may specify, the standards development committee responsible for the industry, sector of the economy or class of persons or organizations to which the standard applies shall,
(a) re-examine the long-term accessibility objectives determined under subsection (2);
(b) if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025 and the time-frame for their implementation;
(c) develop another proposed accessibility standard containing such additions or modifications to the existing accessibility standard as the standards development committee deems advisable and submit it to the Minister for the purposes of making the proposed standard public and receiving comments in accordance with section 10; and
(d) make such changes it considers advisable to the proposed accessibility standard developed under clause (c) based on the comments received under section 10 and provide the Minister with the subsequent proposed accessibility standard.”
Several years ago, your government commendably appointed Standards Development Committees to develop recommendations for accessibility standards in the areas of transportation, of information and communication, and of employment. In June 2011, as a result of the extensive work of those Standards Development Committees, and after very extensive direct Government discussions with us, with the broader disability community and with other stakeholders, your government ultimately enacted the 2011 IAR.
Your government will be obliged to reconstitute these Standards Development Committees, or an amalgamation of those Committees, to review that regulation within five years of its 2011 enactment. Those Standards Development Committees will be able to recommend any additions, changes or revisions to the 2011 IAR. To date, your government has not reconstituted those Committees, or an amalgamation of those Committees, to undertake a review of the 2011 IAR.
Put simply, your government cannot unilaterally post a draft regulation with proposed amendments to the 2011 IAR, now, without first subjecting it to a Standards Development Committee process. Your Government cannot pick and choose when it will follow the AODA’s mandatory requirements.
This is not some tedious technicality. The AODA provisions governing the development, review, and revision of accessibility standards were the product of very extensive discussions, consultations and negotiations between 2003 and 2005 with all stakeholders, including the disability community.
Many Ontarians with disabilities fought long and hard for this legislation. Many Ontarians with disabilities campaigned vigorously to ensure that the legislation included important safeguards like the ones just described, to protect the accessibility standards that are developed and enacted under it.
Even then, since the 2005 enactment of the AODA, we have also had to campaign vigorously to try to get added protections for the Standards Development Committee process. For example, after 2005, when your government initially established its first Standards Development Committees, it did not ensure that people with disabilities had equal representation on those committees. Our community, and its concerns, were outnumbered, under-represented and overpowered.
As a result of that unfairness, on September 14, 2007, Premier McGuinty made a series of election commitments at our request. He promised to ensure that persons with disabilities would have 50% representation on all Standards Development Committees. He pledged that every recommendation that a Standards Development Committee considered could be separately voted on clause-by-clause to ensure that our voices could be fairly heard. He committed that Standards Development Committees could consult with the public including the disability community. He promised that disability sector representation on each Standards Development Committee would have new Ministry staff support to assist them. Premier McGuinty’s September 14, 2007 letter to us, setting out his election commitments, is available at https://www.aodaalliance.org/strong-effective-aoda/09142007.asp
Your Government here in effect proposes to end-run both important protections for persons with disabilities in the legislation itself and the added guarantees set out in the Premier’s important 2007 election commitments.
This is not fair. It also sends very bad signals to the public. If the Government is not going to strictly obey the AODA, how can it expect others to do so? For the Government to do this now implies that anyone, unhappy with an existing accessibility standard regulation, can try to end-run the legislation by simply asking you and your Ministry to amend that existing accessibility standard regulation without first submitting the issue to the mandatory Standards Development Committee deliberative process.
2. The AODA Creates No Exception or Exemption for Minor or Technical Amendments to an Accessibility Regulation
It is no answer to our concerns that your government’s August 15, 2012 web posting calls these proposed amendments to the 2011 IAR minor and technical changes, said to be aimed at clarifying the IAR and making it easier for organizations to comply. The Ministry’s website’s August 15, 2012 posting on these amendments states:
“The draft standards also propose minor technical amendments to the Integrated Accessibility Standards Regulation to:
• clarify some of the requirements
• make it easier for organizations to implement them.”
Nothing we have found in the AODA creates such an exception or exemption from the mandatory standards development process that we described earlier in this letter. Your government’s new approach to amending an existing accessibility standard regulation creates a dangerous loophole through which a truck might later be driven.
By your government’s new approach, it can at any time amend any accessibility standard to make it “easier” for an organization to comply with that accessibility standard, without first submitting the issue to a Standards Development Committee. Your government could presumably unilaterally repeal any requirement in a standard, or lengthen any time line in a standard, that you’ve already passed into law. To repeal barrier removal and barrier prevention requirements would make it easier for an organization to comply. To lengthen time lines for removing and preventing barriers would also make it easier for an organization to comply. That could gut a standard without any of the safeguards in the legislation for which we fought so long and hard.
Such a lopsided view of the process for developing or amending accessibility standards is unfair to people with disabilities. It undermines the goal of achieving full accessibility for all Ontarians with disabilities by 2025.
3. The Government’s Proposed Amendments to the IAR Are Not All Merely Minor or Technical
We have not had a full opportunity to study all the ramifications of your proposed amendments to the Integrated Accessibility Regulation. We would raise the serious concerns set out in this letter, even if we concluded that all your proposed amendments were great – even if they all had strengthened the IAR.
In any event, from our first review of them, it is clear that at least some of the Government’s proposed amendments to the 2011 IAR are not all “minor” and “technical.”
Your government proposes to amend the IAR’s requirements for an educational institution to ensure the accessibility of its library collection. That amendment appears to reduce the right of accessibility to an educational institution’s library materials. Your amendment would only allow a student in that educational institution to assert a need for accessibility of those library materials.
That leaves out in the cold any faculty and other staff members with disabilities at the educational institution who equally might need those educational materials in an accessible format. As well, your amendment leaves unprotected visiting scholars and other members of the public with disabilities who are entitled to go to that educational institution’s library and make use of those library materials.
The IAR s. 18 now provides in material part:
“Libraries of educational and training institutions
18. (1) Subject to subsection (2)and where available, the libraries of educational and training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request…”
In contrast, section 4 of the new proposed regulation states:
“4. Subsection 18 (1) of the Regulation is revoked and the following is substituted:
Libraries of educational and training institutions
(1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability who is a student of the educational or training institute, upon request.”
We should not have to now fight a rear-guard battle to preserve what we gained last year in the IAR. Your Government should not incorrectly claim to the public that these amendments are all merely “minor and technical.”
4. The Government is Breaching Its 2011 Election Promise Not to Reduce Protections for People with Disabilities
To the extent that your proposed amendments to the IAR can reduce protections for persons with disabilities, this directly breaches your government’s 2011 election commitments to us. In his August 19, 2011 letter to us, setting out your Government’s 2011 election accessibility commitments, Premier McGuinty pledged: “We will ensure that we maintain and/or strengthen the current provisions and protections in the AODA or any regulations enacted under the legislation.” Premier McGuinty’s August 19, 2011 letter to the AODA Alliance can be found at https://www.aodaalliance.org/strong-effective-aoda/090220111.asp
Moreover, your failure to obey the AODA’s requirements for revising an existing accessibility standard regulation itself breaches the Premier’s 2011 pledge not to cut back on gains we had made to date. One important gain we had made, up until now, is a clear requirement on how an existing accessibility standard regulation could be amended, i.e. through strict compliance with section 9 of the AODA.
5. The Government has Not Given the Public a Clear Explanation of Its Proposed Amendments to the Integrated Accessibility Regulation
Making this situation worse, your government has not posted along with these proposed amendments to the 2011 IAR a proper, clear and detailed explanation of what each amendment proposes to do. Its terse posting does not enable a reader to know exactly what the Government is changing and why it is doing so. Your website only includes a very vague posting on topic. It states:
“The draft standards also propose minor technical amendments to the Integrated Accessibility Standards Regulation to:
• clarify some of the requirements
• make it easier for organizations to implement them
The proposed technical amendments cover:
• Accessibility plans: allowing public sector organizations to create joint plans
• Libraries of educational and training institutions: specifying that accessible resources or materials be provided to students of these institutions
• Accessible formats and communications support for employees: removing duplicative requirement for employers to consult with employees when determining formats and supports
• Courtesy seating: amending ‘courtesy’ seating references to ‘priority’ seating
• Pre-boarding announcements: clarifying requirements and reducing duplication
• Requirements re grab bars, etc.: clarifying requirements for placement of grab bars, handholds etc. on conventional transportation vehicles
• Duties of municipalities: clarifying that contracted third parties must be involved in consultations as appropriate
• Accessibility reports: clarifying dates for organizations to submit their accessibility reports.”
The Government’s terse summary of its proposed amendments to the 2011 Integrated Accessibility Regulation is currently available at: http://www.mcss.gov.on.ca/en/mcss/programs/accessibility/built_environment/regulation_summary.aspx
For example, the Government’s posted explanation of its libraries amendment, addressed earlier in this letter, is entirely incomplete and uninformative. It says: “Libraries of educational and training institutions: specifying that accessible resources or materials be provided to students of these institutions.” The Government does not thereby alert the public that this proposed amendment to the IAR reduces protections that the IAR now extends to employees and visitor’s to that educational institution.
In sharp contrast, in the past, when your government earlier posted other proposed accessibility regulations and standards, it commendably often had accompanied them with detailed, plain-language summaries. Those let members of the public, whether from the disability community or not, understand them and comment on them, without needing a lawyer.
Here, an interested member of the public may well need to hire a lawyer to try to wade through the technical language of the 2011 IAR, and compare it to your proposed amendments, to figure out what these proposed amendments mean. By just reading the Government’s terse web posting’s summary set out above, members of the public, including the disability community, might be unfairly led to conclude that these proposed amendments are all are inconsequential and are not worth exploring any further.
In his September 2007 election promises to us, Premier McGuinty committed that “Our process for developing standards is one that is open and consultative.” Yet consulting on a document that many if not most won’t be able to readily read and digest is not open and truly consultative.
The government is allowing forty-five days for people to learn about these proposed amendments and to give feedback. One third of this period is taking place during the second half of August, when many are unavailable due to holidays and other commitments.
6. The Government Will Leave a Cloud of Uncertainty over the Validity of any Amendments to the IAR Enacted in This Incorrect Way
To enact amendments to the 2011 IAR without complying strictly with the requirements of the AODA, will leave a cloud over those amendments. Organizations in the public and private sectors will not be certain if they were lawfully enacted. They will not know whether they should comply with the amendment, or with the original regulation before it was amended.
This too does a major disservice to people with disabilities and to organizations in the public and private sectors who are obliged to comply with AODA accessibility standards. They should be able to have confidence that the Government has strictly followed the AODA in developing them.
7. Conclusion – An Avoidable Problem and a Simple Solution
We are not saying that the Government may never make the changes to the 2011 IAR that it is here contemplating. Rather, there is a simple and expeditious solution to our concerns.
We recommend that the government now announce that it will for the time being stop its 45-day consultation on these proposed amendments to the 2011 IAR that have nothing to do with the built environment. Of course, the 45 day consultation period on the Government’s proposed new standards for public spaces in the built environment can continue on schedule.
It would remain open to your government to submit its proposed IAR amendments to a Standards Development Committee process. There they can be properly explored in an environment where people with disabilities will have their promised supports and equal representation at the table.
This would, for example, enable people with disabilities and others to properly and openly identify and discuss whether there are other “minor” and “technical” amendments that they might wish made to the 2011 IAR. It would be very helpful and appropriate through that process for the Government to make public an informative summary that explains exactly what its proposed amendments would do and why they are needed.
This does not need to be a long process. On May 24, 2012 in Toronto, Ellen Waxman, the assistant deputy minister of Community and Social Services for the Accessibility Directorate, publicly announced that your government is aiming to have a new, streamlined Standards Development Committee process in place under the AODA by the start of 2013. It would be open to your government to submit these proposed 2011 IAR amendments to that new process in early 2013, if it did not want to establish some earlier process to do so now.
We regret that your Government has chosen to proceed as it has. For us to now have to address this issue will distract us and others from the important tasks of providing input on the public spaces built environment proposals, and on the next major accessibility standards to be developed. Those issues are the ones which should be your and our core focus.
Had your Government discussed its contemplated course of action with us well in advance, and certainly well before it posted its draft amendments to the IAR on August 15, 2012, we would have alerted you to these concerns. Your Government could have avoided this issue. As you know from our extensive dealings with your Government, we always try to provide constructive non-partisan input and advice, including alerting the Government to possible risks.
Please keep Premier McGuinty’s election commitments to us. Please respect the letter and the spirit of the legislation for which your government was so widely congratulated.
Please do not simply dig in, and decline to change direction now. Please do what is best for ensuring public confidence in the AODA and in any accessibility standards enacted under it.
If you opt to disregard the concerns raised in this letter, and to forge ahead with the proposed amendments to the IAR that have nothing to do with the built environment, please now publicly explain to us and to the public why you believe your Government can do so, when the provisions of the AODA do not provide any such exceptions or exemptions from the guarantees we won in that legislation for amendments to accessibility standards regulation. Please tell us what provisions of the AODA let you proceed in the way you have proposed. Please explain to us and to the public why you have tabled any amendments that can cut back on our previous gains, contrary to Premier McGuinty’s 2011 election promises to us.
As always, we would be pleased to do whatever we can to assist you in addressing these concerns.
David Lepofsky, CM, O. Ont.
Chair, AODA Alliance
cc: Premier Dalton McGuinty, fax (416) 325-3745, firstname.lastname@example.org
Marguerite Rappolt, Deputy Minister, Community & Social Services, fax (416) 325-5240, email@example.com
Ellen Waxman, Assistant Deputy Minister for the Accessibility Directorate, Ministry of Community and Social Services, fax (416) 325-9620, firstname.lastname@example.org
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UNITED FOR A BARRIER-FREE ONTARIO