Paper – Considerations for Effective Implementation and Enforcement of the Proposed Federal Accessibility Legislation (2017)
This paper addresses an important legal issue ARCH recommended the Government to address as it developed the proposed federal accessibility legislation: ensuring effective implementation and enforcement of the proposed federal accessibility legislation.
ARCH’s Considerations for Effective Implementation and Enforcement of the Proposed Federal Accessibility Legislation were presented to government in its consultation process as it developed the new accessibility legislation in 2016.
This resource is part of ARCH’s Advocating for an Accessible Canada initiative. For more information about the initiative, go to: www.archdisabilitylaw.ca/initiatives/advocating-for-accessibility-in-canada
PDF and RTF versions of this submission are available at the end of this page.
In 2016, the Government of Canada announced its intention to develop and introduce federal accessibility legislation. The goal of the proposed legislation is to promote equality of opportunity and increase the inclusion and participation of Canadians with disabilities.
The Government of Canada has stated that new federal accessibility legislation would apply to organizations and areas that fall under federal legislative jurisdiction. Federal jurisdiction includes, for example, banking, inter-provincial transportation, telecommunications, federally-regulated employment, federally-regulated services such as Canada Post and Government of Canada services, criminal law, and certain indigenous issues.
ARCH Disability Law Centre is engaged in the Government’s process of consulting with Canadians as part of its development of the new accessibility legislation. ARCH has identified several important legal issues, which we recommend the Government address as it develops the proposed federal accessibility legislation. This paper discusses one of these issues: ensuring effective implementation and enforcement of the proposed federal accessibility legislation.
ARCH Disability Law Centre (“ARCH”) is a specialty legal clinic dedicated to defending and advancing the equality rights of persons with disabilities in Ontario. ARCH is primarily funded by Legal Aid Ontario. For over 35 years, ARCH has provided legal services to help Ontarians with disabilities live with dignity and participate fully in our communities. ARCH provides summary legal advice and referrals to Ontarians with disabilities; represents persons with disabilities and disability organizations in test case litigation; conducts law reform and policy work; provides public legal education to disability communities and continuing legal education to the legal community; and supports community development initiatives. More information about our work is available on our website: www.archdisabilitylaw.ca
Why are Effective Implementation and Enforcement Important?
Effective implementation and enforcement of the proposed federal accessibility legislation are critically important to achieve the objectives and purpose of the legislation. There is little point to legislating accessibility requirements if no action is taken to ensure that public and private sector organizations comply with those requirements. Without effective implementation and enforcement, the public is likely to think that the Government of Canada does not take seriously accessibility and equality for persons with disabilities. Without effective enforcement, the discrimination and inequality that persons with disabilities experience may become trivialized.
In this paper we consider Ontario’s experience with enforcing its own provincial accessibility legislation, the Accessibility for Ontarians with Disabilities Act (AODA), and how this experience can inform the design of enforcement mechanisms for the proposed federal accessibility legislation. Barrier-free Canada, David Lepofsky and others have written extensively on this topic. In this paper we highlight just a few critical points. We also consider the Convention on the Rights of Persons with Disabilities (Convention). The Convention includes a number of oversight and monitoring mechanisms, which provide a useful framework for the proposed federal accessibility legislation. Drawing on the AODA and the Convention, we provide some high-level considerations and recommendations for a multi-faceted approach to implementation and enforcement of the proposed federal accessibility legislation.
Accessibility for Ontarians with Disabilities Act
The Accessibility for Ontarians with Disabilities Act became law in Ontario in 2005. One of its stated purposes is “…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.” Under the AODA there are accessibility standards, which create obligations to identify and remove barriers to accessibility in relation to customer service, information and communications, employment, transportation and the design of public spaces. Additional accessibility standards in relation to other areas of life such as education and health care may be developed.
The AODA establishes a variety of mechanisms to enforce the obligations set out in its accessibility standards. Such mechanisms include voluntary compliance and reporting, inspections carried out by government-appointed inspectors, administrative orders and notices of non-compliance, and monetary penalties for organizations or directors/officers of organizations that fail to comply.
The Government of Ontario consulted with the public before the AODA became law, and during the development of accessibility standards. ARCH made a number of submissions in relation to the AODA and the individual accessibility standards. ARCH also participated in both independent reviews of the AODA, the first by Charles Beer and the second by Mayo Moran. In all our submissions, ARCH has advocated for robust, effective mechanisms to effectively enforce AODA requirements. In addition, ARCH regularly provides public legal education workshops as well as legal information and advice to persons with disabilities about the AODA, and we regularly hear from persons with disabilities about their concerns in relation to enforcement of AODA requirements.
Convention on the Rights of Persons with Disabilities
The Convention on the Rights of Persons with Disabilities is an international treaty which sets out a legal framework to promote respect for the dignity of persons with disabilities and promote, protect and ensure the full and equal enjoyment of all human rights and freedoms by persons with disabilities. ARCH previously wrote about the Convention, its relationship with proposed federal accessibility legislation, and the important impact the Convention can and should have on the federal accessibility legislation.
The Convention contains a number of oversight and monitoring mechanisms, which provide a useful framework for domestic accessibility legislation. Like the rest of the Convention, these enforcement mechanisms are part of a rights-based framework for persons with disabilities.
Article 31 requires states to collect data to enable them to formulate and implement policies that give effect to the Convention. These data are to be used to assess the implementation of the Convention and to identify and address barriers faced by persons with disabilities in exercising their rights. States must disseminate these data in an accessible manner. Article 33 speaks to national implementation and domestic monitoring of the Convention. It requires states to designate a focal point within government for implementation of the Convention. It also requires the designation of an independent mechanism to monitor implementation. Further, it mandates that persons with disabilities shall be involved and participate fully in the monitoring process.
In addition to domestic monitoring, the Convention establishes oversight mechanisms external to states. The Committee on the Rights of Persons with Disabilities is made up of 18 experts on disability rights, and receives periodic reports from states on their implementation of the Convention. The Committee also receives input from civil society, including persons with disabilities and their representative organizations. The Committee considers these reports and makes recommendations to states to promote the full implementation of the Convention.
Optional Protocol (OP) is another oversight mechanism provided for in the Convention, which establishes two
procedures by which the UN Committee on the Rights of Persons with Disabilities
can oversee the implementation of Convention
rights. The first is an individual communication procedure, whereby
individuals or groups of individuals who believe that Canada has violated their
Convention rights may complain to the
UN Committee. If a
communication meets the required criteria, the UN Committee raises the concerns
with the state and engages in a dialogue regarding the state’s response. The UN
Committee may request that the state take urgent action to avoid irreparable damage
to the person(s) complaining. The
second procedure is an inquiry procedure. The Committee may, in certain
circumstances, conduct an inquiry about serious or widespread violations of Convention rights. If the state agrees,
the Committee may visit in order to investigate.
Regardless of which procedure is engaged, the OP empowers the Committee to make
recommendations, comments and suggestions for the purposes of addressing the concerns
raised by the individual, group, or as a result of an inquiry. The
Committee’s recommendations, comments and suggestions are not legally binding.
How can the Convention on the Rights of Persons with Disabilities and Ontario’s experiences with the AODA inform federal accessibility legislation?
Drawing on the Convention and Ontario’s experience with the AODA, the following are some high-level considerations and recommendations for a multi-faceted approach to enforcement of the proposed federal accessibility legislation.
Relying largely on voluntary self-reporting and compliance is not effective: Although the AODA includes a variety of enforcement tools, the Government of Ontario has largely relied upon voluntary compliance and reporting. Obligated businesses and non-profit organizations are required to file accessibility reports every three years, and obligated public sector organizations are required to file accessibility reports every two years.
The Government’s reliance on voluntary compliance and reporting and its failure to effectively and visibly enforce the AODA is one of the key barriers preventing the realization of the AODA’s stated purposes. Mayo Moran, in her 2014 independent review of the AODA, wrote:
There can be no doubt of one central theme that emerged loud and strong from all of the consultations, and that is the vital importance of robust, effective and visible enforcement to the integrity of the AODA regime. A wide range of stakeholders reported that the lack of visible enforcement is a critical impediment that is holding Ontario back from achieving the 2025 goal for an accessible province. Just as the Ontarians with Disabilities Act was criticized by the disability community as “toothless”, some now feel the same way about the AODA. This concern, it should be noted, is by no means limited to disability advocates. Others including business groups observed that the Government has shown little appetite to wield the substantial enforcement mechanisms contained in the legislation. The result as reported to the Review is a very mixed message about the importance of the AODA.
The Moran report recommended that the Government of Ontario strengthen its enforcement of the AODA, and noted that in 2013 only about 30% of private sector organizations with 20 or more employees had filed accessibility reports. In 2015, following the Moran review, the Government of Ontario released information showing that 65% of businesses still had not filed their 2012 accessibility reports and 60% had failed to meet the 2014 reporting deadline.
In Ontario, reliance on voluntary self-reporting and compliance has not achieved wide-scale accessibility. In 2014 Moran documented that Ontario’s failure to enforce the AODA requirements in a concerted, robust way left persons with disabilities feeling that the pace of achieving greater accessibility was “agonizingly slow”. David Lepofsky similarly observed that:
Effective enforcement of strong accessibility laws is needed to get obligated organizations to resist the powerful impulse to keep doing business exactly as they always have. It is wrong to assume that obligated organizations just need to be educated on accessibility’s benefits, and then they will comply, driven by self-interest. Ontario experience shows that approach failed.
Given Ontario’s experience, ARCH recommends that the Government of Canada commit to active and proactive implementation and enforcement of the proposed federal accessibility legislation, rather than relying upon voluntary compliance and reporting.
Monitoring, implementation and enforcement should be grounded in a rights-based approach: It is anticipated that the proposed federal accessibility legislation will not create new rights for persons with disabilities in relation to accessibility, but rather will create legal requirements that public and private organizations must meet in order to achieve particular accessibility goals. Although federal accessibility legislation may not be rights-based law, its objectives ought to be grounded in the recognition that persons with disabilities experience pervasive discrimination and inequality, and that they are legally entitled, by virtue of the Canadian Charter of Rights and Freedoms, federal/ provincial/territorial human rights laws, and Canada’s ratification of the Convention, to equal access to goods, services, employment and other areas of life. Accessibility legislation has as its goal the achievement of substantive equality for persons with disabilities, just as the Convention, Charter and federal/provincial/territorial human rights laws do.
The intimate connections between accessibility legislation and human rights and equality laws must be taken into account when designing enforcement mechanisms. Below, we provide a few examples of a rights-based approach to enforcement in the context of the federal accessibility legislation.
While it is important to recognize the commonalities between accessibility legislation and existing human rights and equality rights laws, care must be taken to ensure that they are not confused with one another. In Ontario, the interaction between the AODA and Ontario’s Human Rights Code has been poorly understood by the public and private sectors. Some businesses and organizations have assumed that if they meet the accessibility requirements under the AODA, they will also have satisfied their legal obligations to accommodate persons with disabilities under Ontario’s Human Rights Code. This is not the case. In fact, the Human Rights Code and human rights jurisprudence create much broader legal obligations to accommodate persons with disabilities, than the very specific accessibility requirements contained in the AODA and accessibility standards. It is possible that an organization may fully comply with its AODA requirements, but nevertheless have contravened the Human Rights Code by failing to accommodate a person with a disability to the legal standard of undue hardship. It is imperative that human rights obligations and legal tests set out in the federal Canadian Human Rights Act not be confused with the accessibility requirements that will be established under the federal accessibility legislation. Equally, it is imperative that the obligations and legal tests that may be set out in the federal accessibility legislation do not undermine already established Canadian human rights law and jurisprudence.
Effective enforcement includes effective remedies: ARCH has heard from many Ontarians with disabilities about their attempts to complain about organizations that have not complied with the AODA, and their frustration when their complaints yield no effective remedies. The AODA does not create an independent process by which individuals or groups can make complaints to an independent judicial or quasi-judicial body and obtain a remedy. The Government of Ontario has created a phone number where people can report an organization’s failure to comply with the AODA. However there is no publicly available data about whether making such a report results in any remedial or enforcement action by the Government.
In contrast to the AODA, the Convention recognizes that a rights-based approach must include avenues for persons with disabilities to seek remedies when their rights have been infringed. Under the Optional Protocol to the Convention, individuals or groups of individuals who believe that Canada has violated their Convention rights may complain to the UN Committee on the Rights of Persons with Disabilities.
Robust, effective enforcement of the federal accessibility legislation should include a process by which persons and groups can complain about public and private organizations that fail to comply. Persons and groups who complain must receive effective remedies. An administrative tribunal with expertise in disability, accessibility, human rights and equality rights law would be an appropriate venue. The tribunal must have staff (such as mediators, investigators and adjudicators) who are knowledgeable and skilled in human rights and equality rights law and the provision of accommodation to persons with disabilities. A rights-based approach demands this expertise.
Such a tribunal must be fully accessible for persons with disabilities. At minimum, tribunal procedures should be designed so as to be flexible and accessible for persons with disabilities, and persons with disabilities must be able to request accommodation during all stages of the tribunal’s process.
Monitoring and enforcement should include government mechanisms and independent mechanisms: Article 33 of the Convention establishes a framework which includes both a focal point within government charged with overseeing implementation of the Convention and an independent body charged with monitoring. ARCH recommends that this same framework be utilized for the proposed federal accessibility legislation.
There are many ideas about what government-based and independent mechanisms could include. For example, government-based enforcement may include inspections, compliance orders, penalties, and other approaches. It may include designating a particular minister or government office to lead and be accountable for the implementation and enforcement of the legislation. Independent enforcement mechanisms may include designating a statutory human rights agency to monitor the implementation of the federal accessibility legislation and enforce its requirements in relation to individual complaints. It may include creating new implementation and oversight bodies such as a Canada Accessibility Commissioner, an Accessibility and Design and Communication Centre, and a Full Inclusion Policy Centre.
Effective implementation and enforcement includes the collection and public dissemination of relevant data: To date, the Government of Ontario has released very little data about the implementation and enforcement of the AODA. For example, in 2014 Mayo Moran found that AODA enforcement was not sufficiently transparent and recommended that the Government of Ontario provide quarterly reports on AODA orders issued, penalties imposed, appeals launched and their results. In 2015 the Government of Ontario released a plan of new actions under the AODA, which included a commitment to release annual compliance and enforcement plans and information about the number of organizations audited by the Government. According to a January 2017 letter from the AODA Alliance to the Honourable Tracy MacCharles, Minister of Accessibility and Minister of Government and Consumer Services the Government had not followed through with this commitment and no public data on auditing or enforcement had been released. The lack of publicly available data on enforcement of the AODA has contributed to low rates of compliance with AODA accessibility requirements, and public perception that achieving accessibility is not a priority for the Government of Ontario.
In contrast, the Convention recognizes the importance of collecting and publicly disseminating data about the implementation of rights for persons with disabilities, and it obligates states to do so.
The collection and public dissemination of data is important for effective implementation and enforcement of proposed federal accessibility legislation. Public data on enforcement may create incentives for private sector organizations to comply with accessibility legislation requirements. Data allows consumers to patron businesses and organizations that take accessibility seriously. Data is also necessary to assess implementation of accessibility requirements and to undertake proactive enforcement measures.
Proposed federal accessibility legislation will only apply to federally-regulated public and private sectors, however persons with disabilities do not organize or compartmentalize their lives according to federal/provincial/ territorial jurisdiction. Data gathering efforts will, therefore, need to address challenges that may arise in gathering data about the federal aspects of people’s lives.
If data is to be publicly disseminated, it must be in a format and manner that are fully accessible for persons with disabilities. This includes making data available in alternate formats, such as Braille, accessible PDF, and in plain language.
Data must be used to proactively address implementation: Traditional data collection and statistical analysis are important for monitoring compliance with the legislation, and public data on enforcement is important for incentivizing compliance. The Convention recognizes that data collection must also be used to proactively identify and address barriers to the realization of Convention rights. Similarly, ARCH recommends that the proposed federal accessibility legislation include proactive enforcement mechanisms.
Data can be a powerful tool for proactive enforcement and implementation of federal accessibility legislation. Data-based human rights monitoring is one example. It is a focused and thorough approach to tracking and monitoring data that emerge from the experiences of a particular group of people, including fact-finding, interviewing, the use of empirical benchmarks and indicators, and other components. The product of monitoring is usually a report analyzing the situation and providing a basis for further action. Data-based human rights monitoring can effectively be used to determine whether there are gaps between a domestic standard or law and the application or implementation of the standard. Including data-based monitoring as one component of enforcement of the federal accessibility legislation would be a powerful way to assess the impact the legislation has on improving accessibility. It would also provide the information needed to proactively plan for compliance and enforcement efforts to address areas in which the legislation has not been impactful.
There are a variety of other ways to proactively address implementation of the proposed federal accessibility legislation. Conducting systemic investigations into implementation issues that are not likely to be resolved by individual complaints is one example. This and examples from other countries should be explored further.
Monitoring and enforcement must include persons with disabilities and their representative organizations: The Convention obligates states to include persons with disabilities and their representative organizations in efforts to monitor the implementation of Convention rights. The Government of Canada has thus far consulted widely with persons with disabilities and disability organizations about the federal accessibility legislation, demonstrating an understanding of the importance of including persons with disabilities in the development of the legislation. Equally important is the inclusion of persons with disabilities in the enforcement of the legislation. Including data-based human rights monitoring as one of the enforcement mechanisms would offer an opportunity to do so.
Effective implementation and enforcement requires leadership and commitment from government: Effective implementation and enforcement is one way in which government can demonstrate its leadership in advancing accessibility and the rights of persons with disabilities. Effective enforcement mechanisms are needed to ensure that accessibility requirements are being met by the public and private sectors. Effective enforcement mechanisms send a message that governments are serious about achieving the objectives of accessibility legislation. Experience in Ontario demonstrates that failure by government to enforce accessibility legislation risks trivializing the existing, pervasive discrimination against persons with disabilities, and their rights to equal access to our communities.
One way to demonstrate leadership and commitment is for the Government of Canada to formally designate a Minister responsible for overseeing the implementation and enforcement of the federal accessibility legislation, within the federal public service and the private sector.
In this paper, we have drawn upon the oversight and monitoring framework in the Convention on the Rights of Persons with Disabilities and Ontario’s experience with enforcing the AODA to provide some high level considerations and recommendations for a multi-faceted approach to implementation and enforcement of the proposed federal accessibility legislation. The development of proposed federal accessibility legislation presents an enormous opportunity to design implementation and enforcement mechanisms that are truly effective in advancing accessibility and the rights of persons with disabilities. This is an opportunity to be proactive and creative. It is an opportunity to achieve a more inclusive and equal Canada.
 Employment and Social Development Canada, Accessibility Legislation: What does an Accessible Canada mean to you? Discussion Guide (Government of Canada, 2016), online: <https://www.canada.ca/content/dam/esdc-edsc/documents/programs/disability/consultations/No.653-Layout%20Discussion%20Guide-EN.PDF>
 Ibid at 4.
 ARCH participated in the Government of Canada’s public consultation process. ARCH is also a partner in a federal accessibility legislation consultation project led by the Canadian Hard of Hearing Association, entitled Spotlight on Invisible Disabilities. More information about this project is available online at: http://www.chha.ca/chha/spotlight.php
ARCH’s paper entitled “Proposed Federal Accessibility Legislation and the Convention on the Rights of Persons with Disabilities” discusses how the Convention is applicable and relevant to the development of federal accessibility legislation. The paper is available online at: http://www.archdisabilitylaw.ca/Discussion_Paper_FedAccessibilityLegislation_CRPD
 David Lepofsky, “What Should the Canadians with Disabilities Act Include? A Discussion Paper” (March 2016)
 Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, C 11, s. 1 [AODA]
 Andrea Gordon, “Wynne aims to remove barriers for students with disabilities”, The Toronto Star (5 December 2016) online: https://www.thestar.com/news/gta/2016/12/05/wynne-aims-to-remove-barriers-for-students-with-disabilities.html
 AODA, supra note 1 at ss. 14, 18, 19, 21, 22, 23, 26, 27, 28
 To read ARCH’s submission to Charles Beer go to: http://www.archdisabilitylaw.ca/submission-independent-review-accessibility-ontarians-disabilities-act. To read ARCH’s submission to Mayo Moran go to: http://www.archdisabilitylaw.ca/submissions/Written-Submission-to-the-Independent-Review-of-the-AODA-2014
 United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106 (entered into force 3 May 2008) [Convention]
 Supra, note 4.
 Supra, note 11, Articles 34-39.
 Optional Protocol to the Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106, Annex II, Article 2.
There are certain criteria that must be met before the UN Committee can consider the communication. Communication with the UN Committee is permitted only after an individual or group has exhausted all domestic remedies. The UN Committee cannot consider communications that are anonymous, or are not supported by enough evidence. The UN Committee cannot consider communications in which the same situation has or is being investigated by another international body.
 Ibid, Article 4.
 Ibid, Article 6.
 Ibid, Articles 5, 6.
 Supra, note 6, s. 14. See also Accessibility Directorate of Ontario, online: https://www.ontario.ca/page/completing-your-accessibility-compliance-report
 Mayo Moran, “Second Legislative Review of the Accessibility for Ontarians with Disabilities Act, 2005” (November 2014), online: https://www.ontario.ca/document/legislative-review-accessibility-ontarians-disabilities-act pg 34-35.
 Ibid., pg 57.
 Laurie Monsebraaten, “Ontario to ease crackdown on accessibility law; Fewer businesses will face inspection despite report urging more action” Toronto Star (25 February 2015) online: https://www.thestar.com/news/gta/2015/02/24/ontario-to-reduce-enforcement-of-accessibility-law.html
 Moran, supra, note 19 pg 36
 Lepofsky, supra, note 5 pg 16.
 See, for example, Palangio v. The Corporation of the Town of Cochrane, 2011 HRTO 1491 (CanLII) paras. 18, 44, 45.
 There are other significant differences between the AODA and Ontario’s Human Rights Code. The Human Rights Code establishes a right for persons with disabilities to be free from discrimination with respect to goods, services, employment, housing, and other areas of life. Persons with disabilities whose rights have been infringed may apply to the Human Rights Tribunal of Ontario for a decision and appropriate redress. In contrast, the AODA does not create rights for persons with disabilities, nor does it enable persons with disabilities to obtain effective remedies if organizations fail to comply.
 See also Lepofsky, supra, note 5 pg 19.
 Tess Sheldon & Ivana Petricone, ARCH Disability Law Centre, Addressing the Capacity of Parties Before Ontario’s Administrative Tribunals: Respecting Autonomy, Protecting Fairness (1 November 2009)online: http://www.archdisabilitylaw.ca/addressing-capacity-parties-ontario%E2%80%99s-administrative-tribunals-respecting-autonomy-protecting-fairne
 AODA, supra note 1 at ss. 14, 18, 19, 21, 22, 23, 26, 27, 28; Lepofsky, supra note 5 pg 24.
 Charles Beer, Charting a Path Forward: Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act (2009) online: https://www.ontario.ca/page/charting-path-forward-report-independent-review-accessibility-ontarians-disabilities-act.
 Lepofsky, supra, note 5 pg 19
 Moran, supra, note 19 pg 61.
 AODA Alliance (16 January 2017) online: http://www.aodaalliance.org/strong-effective-aoda/01162017.asp
 Disability Rights Promotion International, “Regional Training Manual: A Guide to Disability Rights Monitoring” (November 2014), online: http://drpi.research.yorku.ca/drpi-resources/drpi-regional-training-manual-a-guide-to-disability-rights-monitoring/ pg 21; see also United Nations Office of the High Commissioner for Human Rights, “Human rights monitoring, fact-finding and investigation by the United Nations” online: http://www.ohchr.org/Documents/Publications/Chapter03-MHRM.pdf
 HURIDOCS, “What is Monitoring?” (2010) online: https://www.huridocs.org/resource/what-is-monitoring/ pg 7.
 Ibid., pg 12.
 Beer, supra, note 29.