Intervention of                                             ARCH Disability Law Centre
to the Canadian Radio-television and Telecommunications Commission

Telecom and Broadcasting Notice of Consultation CRTC 2021-69: The Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations

March 22, 2021
55 University Avenue, 15th Floor, Toronto, ON, M5J 2H7
Phone: 416-482-8255 or 1-866-482-2724
TTY: 416-482-1254 or 1-866-482-2728
archgen@lao.on.ca 
www.archdisabilitylaw.ca
 @ARCHDisabilityLawCentre
@ARCHDisability

TABLE OF CONTENTS

INTRODUCTION…………………………………………………………………………	1
SUMMARY OF RECOMMENDATIONS…………………………………………	2
ARCH’S RESPONSE TO THE CALL FOR COMMENTS…………………….	5
A.THE POWER TO MAKE REGULATIONS ABOUT MANNER AND FORM MUST BE INTERPRETED IN ACCORDANCE WITH THE PURPOSE OF THE ACA AND SECTION 6 PRINCIPLES	5
B.RESPONSES TO AND RETENTION OF FEEDBACK RECEIVED THROUGH THE FEEDBACK PROCESS	9
C.TIMING OF ACCESSIBILITY PLANS, PROGRESS REPORTS AND FEEDBACK PROCESSES	10
D.PUBLICATION OF ACCESSIBILITY PLANS, PROGRESS REPORTS AND FEEDBACK PROCESSES	11
E.ALTERNATE FORMATS OF ACCESSIBILITY PLANS, PROGRESS REPORTS, AND DESCRIPTIONS OF THE FEEDBACK PROCESS LISTED IN THE REGULATIONS	12
F.EXEMPTIONS FOR REGULATED ENTITIES WITH LESS THAN 10 EMPLOYEES AND SUBJECT TO RESELLER REGISTRATION OBLIGATION 		         14

Introduction
1.	ARCH provides this submission to the Canadian Radio-television and Telecommunications Commission to intervene in its proceeding, Call for Comments – The Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations CRTC 2021-69. ARCH expresses its interest in participating in any future public hearing with respect to this matter.
2.	ARCH’s submission draws upon our legal knowledge of and experience with the Accessible Canada Act (ACA), the Canadian Human Rights Act, dispute resolution processes and decisions of the Canadian Human Rights Commission and Tribunal, and the federal courts that review those decisions. In addition, our submission is informed by the experiences of persons with disabilities. It also draws upon our ongoing work on ARCH’s Meaningful Participation in Regulation Making Project, funded by the Government of Canada’s Social Development Partnerships Program – Disability Component. This project identifies barriers in regulation-making processes under the ACA, and proposes recommendations to makes these regulation-making processes more inclusive and accessible. 
3.	ARCH Disability Law Centre is a specialty legal clinic that practices exclusively in disability rights law. Since incorporation in 1979, ARCH has been dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusion of persons with disabilities. ARCH provides a range of legal services directly to persons with disabilities in Ontario. ARCH’s work extends nationally as well. ARCH represents persons with disabilities and disability organizations in precedent setting cases at various provincial and federal tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, and the Canadian Transportation Agency, as well as appellate courts, including the Court of Appeal for Ontario, the Federal Court of Appeal and the Supreme Court of Canada.  ARCH has an extensive law reform practice, working on a variety of initiatives to advance the rights of persons with disabilities. ARCH provides public legal education to disability communities, and conducts community development projects to support our law reform work. 

Summary of Recommendations
4.	ARCH provides the following recommendations to the CRTC regarding the proposed Canadian Radio-television and Telecommunications Commission Accessibility Reporting Regulations:
Manner and Form of Accessibility Plans and Progress Reports: 
a.	The draft regulations do not require accessibility plans and progress reports to include specific information that is essential for ensuring that plans and reports yield real progress towards full accessibility. ARCH submits that the CRTC has taken an impoverished view of its regulation making powers under the ACA. The CRTC’s focus on the distinction between form and content, without regard for the principles outlined in section 6 of the ACA, will mean that the regulations do not require accessibility plans and reports to include essential information about how and when barriers will be removed, how consultations were conducted, or how input from persons with disabilities was taken into account. The CRTC’s narrow interpretation of its regulatory power is inconsistent with the objectives and principles of the ACA and Parliament’s intent. 

b.	ARCH urges the CRTC to interpret its regulatory powers liberally, purposively and in a manner consistent with well-established principles of statutory interpretation. ARCH submits that the CRTC should amend the regulation to require accessibility plans and progress reports to include essential elements detailed below at paragraph 15. By including these elements, the regulation will more effectively promote ACA principles of meaningful participation of persons in planning and reporting processes; the recognition of multiple and intersecting forms of marginalization and discrimination in accessibility plans and progress reports; and the achievement of the highest level of accessibility by regulated entities.
Feedback Processes: 
c.	The CRTC should require that regulated entities provide a substantive response to feedback that goes further than a simple acknowledgment that feedback has been received. This response should communicate the actions the regulated entity will take and when these actions will be taken; whether the regulated entity is claiming that it cannot provide disability accommodations or remove a barrier due to undue hardship; and how the person can escalate their feedback or make a complaint if they are not satisfied with the entity’s initial response. As well, feedback should be retained until 2040, the deadline specified in the ACA, to ensure that regulated entities address trends and patterns in the feedback they receive over time.
Timing of Accessibility Plan and Progress Reports: 
d.	The deadlines for regulated entities to produce their initial accessibility plans are inconsistent with section 5.2 of the ACA, which provides that the ACA should not require or authorize “any delay in the removal of barriers or the implementation of measures to prevent new barriers as soon as is reasonably possible.” Regulated entities have known that they will need to develop accessibility plans and progress reports since the ACA became law, nearly two years ago. They have known the CRTC would pass a regulation by July 10, 2021. Consequently, they should have already begun taking steps to develop their initial plans. ARCH submits that the draft regulation should be amended to provide for much shorter timelines.

e.	However, should the CRTC accept ARCH’s submission to impose additional specific requirements with respect to the manner and form of accessibility plans, the deadlines set out in the draft regulation may be more likely to be justified.
Publication of Accessibility Plans, Progress Reports, and Descriptions of Feedback Processes: 
f.	ARCH agrees that all regulated entities should be required to publish accessibility plans, progress reports, and descriptions of their feedback processes online on their websites. However, ARCH submits that the regulation should specify that “plain language” be used, rather than “clear, simple and concise language”. Accessibility Standards Canada is developing a standard on plain language. This standard has the potential to provide clarity and standardization if all regulated entities follow it when creating their accessibility plans, progress reports, and feedback processes. 

g.	In addition, ARCH submits that the regulation should require regulated entities to publish and retain their previous accessibility plans and progress reports until 2040. It is important that the Canadian public, including persons with disabilities and Deaf persons, have access to these documents to promote monitoring, transparency and accountability. 
Alternate Formats of Accessibility Plans, Progress Reports, and Descriptions of Feedback Processes: 
h.	ARCH submits that the regulation should require videos in American Sign Language and langue des signes québécoise as a mandatory alternate format. Merely encouraging larger regulated entities to produce this alternate format creates unnecessary barriers for Deaf people and is not consistent with the purpose of the ACA. 

i.	The CRTC should consider other ways to make its list of alternate formats more inclusive based on feedback it receives from persons with disabilities during this consultation. 

j.	As well, the CRTC should set deadlines for the provision of alternate formats that encourage regulated entities to prioritize these requests. 
Exemptions: 
k.	The CRTC should create more tailored exemptions for regulated entities with less than ten employees and who are subject to the reseller registration obligation. These exemptions should be based on evidence of undue hardship that these regulated entities are likely to experience. Regulatory exemptions to accessibility requirements have the unintended consequence of removing incentives for regulated entities to overcome barriers to accessibility. 

l.	However, if the CRTC finds it necessary to create exemptions, it should clearly state in the regulation that human rights principles, including undue hardship and the duty to accommodate, continue to apply to exempted regulated entities. These exemptions should also be time-limited and regularly reviewed.

ARCH’s Response to the Call for Comments
A.	The Power to Make Regulations about Manner and Form Must be Interpreted in Accordance with the Purpose of the ACA and Section 6 Principles
5.	In the CRTC’s Call for Comments, the CRTC decided that “the scope of the Commission’s power over plans and reports is confined to making regulations dealing with manner and form, rather than content.” As a result, the CRTC’s draft regulation only requires accessibility plans and progress reports to have particular headings, with reference to relevant sections of the Accessible Canada Act. The CRTC has not provided for any other requirements regarding the manner and form of these plans and reports.
6.	ARCH submits that the CRTC has taken an impoverished view of its power to make regulations under the ACA. The CRTC’s focus on the imprecise distinction between form and content will mean that the regulations do not require accessibility plans and progress reports to include information that is essential for meaningful barrier removal and participation of persons with disabilities in the creation of accessibility plans and reports. This interpretation of the CRTC’s regulatory power is inconsistent with the purpose and principles of the ACA and Parliament’s intent.
7.	Principles of statutory interpretation require that the scope of the CRTC’s regulatory authority must be rationally related to the purpose of the ACA. The ACA’s preamble and purpose sections make it clear that the ACA is human rights-related legislation. The preamble to the ACA refers to the role of this legislation to complement the rights of persons with disabilities under the Canadian Human Rights Act. As such, it must be given a broad and purposive interpretation. Moreover, the ACA’s purpose is to institute a “proactive and systemic approach for identifying, removing and preventing barriers to accessibility without delay.” 
8.	Parliament specifically connected this purpose to the accessibility plan provisions in subsections 42(9) and 51(9) of the ACA, which require regulated entities to take into account the principles in section 6 when developing their accessibility plans. Since subsection 6(f) requires the involvement of persons with disabilities in “policies, programs, services and structures”, accessibility plans must communicate the information that persons with disabilities require in order to meaningfully participate in consultations regarding these plans. Regulated entities also should include what input was received from these consultations and how that feedback was taken into account. 
9.	Similarly, subsection 6(g) refers to “achieving the highest level of accessibility”. Taking this principle into account requires accessibility plans to include specific actions the entity will take to remove barriers, identifying a person(s) responsible for overseeing the implementation of these actions, timelines for barrier removal, and performance indicators to determine if progress is being made to achieve accessibility. It also requires updated accessibility plans to document and account for barriers in the previous plan that were not removed, setbacks or limitations that explain why, strategies that address these challenges, and timelines for implementation of these strategies. If regulated entities are not required to include this information in their accessibility plans and track it in their progress reports, this will undermine transparency and accountability, and in turn, frustrate efficient barrier identification, prevention, and removal. 
10.	The CRTC’s distinction between form and content is not helpful to determining the scope of its regulatory authority. The boundary between form and content in this context is difficult to discern, especially since the ACA requires that every regulated entity “take into account the principles set out in section 6 when it prepares an accessibility plan or updated version of its accessibility plan.” This requirement is absent from the draft regulation, even though it specifically incorporates other sections of the ACA by reference. The CRTC’s decision to refer to some ACA provisions and not others may communicate to regulated entities that the section 6 principles are unimportant in this context.
11.	Moreover, according to principles of statutory interpretation, precisely worded powers such as those found in subsections 45(1) and 52(1) must imply any necessary elements to accomplish the purpose for which Parliament granted them. In this context, the necessary elements include concrete actions meant to address barriers, who is responsible for these actions, timelines for completing these actions, how the regulated entity will measure its own performance, how it will report this performance, and how it will consult with and gather feedback from persons with disabilities. This information is necessary in order for regulated entities to effectively consult with persons with disabilities, plan, and act to remove barriers. Consistent with the overall purpose of the ACA as well as the specific grant of regulatory authority to the CRTC, this information should be required by regulation.
12.	The CRTC’s approach, which only requires specified headings, will not obligate regulated entities to effectively track barriers in a way that is meaningful and that involves persons with disabilities. Persons with disabilities must know what steps the regulated entity has planned to take, who is responsible for taking those steps, deadlines, and performance indicators to determine whether accessibility plans and progress reports address the barriers they face and whether plans and reports have been implemented appropriately. Without this information, it will be difficult for people with disabilities to give meaningful feedback through the feedback process or through consultations that will inform future reports and updated plans. Regulated entities must also explain in their accessibility plans and progress reports how they used input from consultations with persons with disabilities and information received from their feedback process. In particular, regulated entities should explain why they rejected any input that was not adopted.
13.	The CRTC’s draft regulation may also lead to the exclusion of certain communities of persons with disabilities who face more significant barriers to participating in consultations. For example, a heading that addresses consultations with persons with disabilities does not require regulated entities to provide information about whether they consulted with diverse communities of persons with disabilities to prepare their plans and reports, and whether they took steps to reach and include these communities. However, if a regulated entity fails to do this, the resulting accessibility plan or report may undermine subsection 6(e) of the ACA, which requires the ACA to be carried out in accordance with the recognition that persons with disabilities experience “multiple and intersecting forms of marginalization and discrimination”. 
14.	Based on the CRTC’s draft regulation, accessibility plans may not address the essential elements for regulated entities to remove barriers without delay and engage with diverse communities of persons with disabilities to identify, prevent, and remove barriers to accessibility. Perfunctory accessibility plans and progress reports, which meet the basic formal requirements in this draft regulation without attention to the section 6 principles, will undermine the goals of the ACA, as well as the inclusive and meaningful participation of persons with disabilities.
15.	The CRTC should amend the regulation such that it requires accessibility plans and progress reports to include the following information:
a.	Specific, concrete actions the regulated entity will take to remove and prevent barriers;
b.	The position of the person(s) responsible for ensuring that the entire plan and/or each of these actions is implemented;
c.	Timeframes within which specified actions will take place;
d.	Performance indicators for measuring whether existing barriers have been successfully removed;
e.	A reporting of how the regulated entity advertised its consultation, the diversity of the participants, and what steps it took to promote accessibility during its consultations;
f.	A description of the discussions, submissions and other information received during consultations (and for progress reports, in the feedback process) and how the regulated entity took these into account;
g.	A description of any feedback from consultations (and for progress reports, from the feedback process) that was not used, adopted or implemented and the reasons why;
h.	A description of how the plan addresses and takes into account each of the principles outlined in section 6 of the ACA; and
i.	With respect to updated accessibility plans: barriers in the previous plan that were not removed, setbacks or limitations that explain why, strategies that address these challenges, and timelines for implementation of these strategies.
16.	In the alternative, if the CRTC decides that its regulation-making power does not encompass these essential elements of accessibility plans and progress reports, this information should be addressed in voluntary guidance documents. ARCH submits that it is highly preferable for these requirements to be included in mandatory regulations for the reasons described above. However, if the CRTC chooses to interpret its regulatory authority narrowly, it should develop guidance documents which encourage regulated entities to include these essential elements as much as possible. Persons with disabilities should have an opportunity to give input to the CRTC about what should be included in these guidance documents. 
B.	Responses to and Retention of Feedback Received through the Feedback Process
17.	ARCH agrees that feedback processes should allow for anonymous feedback; that personal information provided through the feedback process should be kept confidential; and that a designated and publicly identified contact person should receive feedback, as provided for in the draft regulation. However, ARCH submits that the regulation should require that people who provide feedback receive a substantive response that goes further than a simple acknowledgment that feedback has been received. As well, feedback should be retained to ensure that regulated entities account for trends and patterns in the feedback that they receive over time.
18.	The feedback process must be meaningful to facilitate participation by persons with disabilities and to promote accessibility. In order to make feedback processes meaningful, persons with disabilities who take the time and effort to voluntarily give feedback should know what changes the regulated entity will make, if any, and when those changes will be implemented. This answer should also explain why the regulated entity is relying on undue hardship if it has taken the position that it is unable to remove certain barriers that are relevant to the feedback provided. Finally, the response should also include information about how and to whom a person can escalate the issue or make a complaint if they feel that the initial response is not adequate. 
19.	If regulated entities do not provide a substantive answer, they implicitly communicate to persons with disabilities that their feedback will not be taken seriously. People with disabilities will be discouraged from providing feedback. This will mean that feedback processes will be unlikely to achieve the overall purpose of the ACA to identify, remove, and prevent barriers.
20.	It is also important for regulated entities to retain feedback over time to evaluate their efforts to remove or prevent barriers and to determine which barriers to prioritize in their updated accessibility plans. The CRTC should require that regulated entities retain feedback they have received until January 1, 2040, the date specified in the ACA when a Canada without barriers must be realized. This requires regulated entities to account for patterns in the feedback that they receive over time in their accessibility plans and progress reports until the target date outlined in the ACA.
C.	Timing of Accessibility Plans, Progress Reports and Feedback Processes
21.	ARCH agrees that regulated entities should publish a progress report in each year they do not publish an accessibility plan. However, ARCH submits that the deadlines for regulated entities to submit their initial accessibility plans should be sooner, so as not to create unnecessary delay in the removal of barriers.
22.	Regulated entities have been aware that they would be required to develop accessibility plans and progress reports since July 10, 2019, when the ACA became law. They also understood that accessibility regulations would set out more specific planning and reporting requirements within two years of that date. They were also specifically notified of the CRTC’s development of this draft regulation in April 2020. Based on this information, regulated entities should have already begun to take steps to come into compliance with accessibility planning and reporting obligations. 
23.	Therefore, the first accessibility plans and the description of the feedback process for regulated entities in Classes B1 and T1 should be due within six months after the regulation becomes law. Regulated entities within Classes B2 and T2 should receive a year after the regulation becomes law to complete their initial plans, and regulated entities within Classes B3 and T3 should receive a year and a half, based on the CRTC’s proposed schedule.
24.	Should the CRTC amend its draft regulation to prescribe more detailed and meaningful accessibility plans and progress reports (as recommended by ARCH at paragraph 15), regulated entities may need more time to comply with these requirements. This may mean that the deadlines outlined by the CRTC may be more likely to be justified. In this case, the CRTC’s deadline for descriptions of the feedback process should precede the deadline for the initial accessibility plan by one year, as currently required in the draft regulation. 
D.	Publication of Accessibility Plans, Progress Reports and Feedback Processes
25.	While ARCH agrees that all regulated entities should be required to publish accessibility plans, progress reports, and descriptions of their feedback processes online, some of the CRTC’s publication requirements should do more to promote accessibility and accountability. ARCH’s main concerns relate to the phrase, “clear, simple and concise language”, and the failure to require publication and retention of previous accessibility plans and progress reports.
26.	It is not immediately obvious what “clear, simple and concise language” means. Each regulated entity may interpret this provision differently. This will mean that some regulated entities may produce more accessible plans and reports, as compared to others. ARCH submits that this requirement should be changed to say “plain language”. Accessibility Standards Canada is developing a standard on plain language. This standard has the potential to provide clear guidance for all regulated entities as they create their accessibility plans, progress reports, and feedback processes. 
27.	As well, the CRTC should require that regulated entities publish previous accessibility plans and progress reports from the past 10 years on their website, in addition to the most recent version. This would promote transparency and would facilitate persons with disabilities in giving feedback and participating in consultations on future accessibility plans and progress reports. 
28.	Moreover, since the ACA’s purpose is to achieve a barrier-free Canada, on or before January 1, 2040, the CRTC’s regulation should require regulated entities to retain all accessibility plans and reports until that date.  The CRTC should decide on a timeline for retention of plans and reports after 2040 that promotes transparency. Further, the regulation should require entities to make plans and reports older than 10 years available to the public upon request. 
E.	Alternate Formats of Accessibility Plans, Progress Reports, and Descriptions of the Feedback Process Listed in the Regulations
29.	The CRTC’s draft regulation contains an underinclusive, closed list of alternate formats, which is inconsistent with the objectives of the ACA and the human rights obligations of regulated entities. As a key component of a larger legislative scheme intended to promote accessibility, it is particularly important that accessibility plans, progress reports, and feedback processes themselves be accessible. It would be frustrating and deeply ironic if a regulated entity was required to address barriers to obtaining these documents in its accessibility plan because the CRTC failed to prescribe sufficient regulatory requirements to ensure accessibility.
30.	The CRTC has the regulatory power to designate “the format prescribed by regulations” for accessibility plans, progress reports, and descriptions of the feedback process.  At paragraph 67 of its Call for Comments, the CRTC states that the ACA does not permit it to adopt a non-exhaustive list of alternate formats. In response, ARCH submits that there is nothing in the ACA that prevents the CRTC from prescribing that any alternate format that is requested as a disability accommodation should be provided by regulated entities upon request. 
31.	However, even if the CRTC must prescribe a closed list of alternate formats, the CRTC has the power to create broad categories of alternate formats and to ensure that this closed list is as inclusive as possible. For example, the CRTC’s draft regulation refers to “an electronic format that is compatible with adaptive technology that assists persons with disabilities”, to anticipate changes in technology that may occur. This category includes many different alternate formats that may meet the diverse needs of persons with disabilities and may evolve over time as technology advances. Similarly, the CRTC could also create or broaden other categories to include any other alternate formats that persons with disabilities may raise in response to the CRTC’s Call for Comments. 
32.	While the broad category of “an electronic format that is compatible with adaptive technology that assists persons with disabilities” is helpful, ARCH cautions that the CRTC may need to qualify this category by excluding PDF documents. Despite claims that PDF documents can be made fully accessible, many persons with disabilities continue to experience barriers to accessing this format. As such, it may be prudent for the regulations to specify that accessibility plans, progress reports and feedback processes should not be provided in PDF format. 
33.	It is particularly concerning that the CRTC’s closed list of alternate formats intentionally excludes American Sign Language (ASL) and langue des signes québécoise (LSQ). The CRTC has stated that ASL and LSQ video formats are particularly resource intensive.  In response, ARCH submits that since regulated entities have not been previously required to produce this alternate format, it is unclear how often these formats would be requested and how significant a financial burden this would be for regulated entities. The CRTC should not decide that providing this alternate format is “especially resource-intensive” for all public and private regulated entities, regardless of size, when this has never been required before.
34.	Moreover, failure to provide this alternate format will undermine the participation of Deaf people who require ASL and LSQ in order to give feedback to regulated entities and participate in consultations on accessibility plans and progress reports. Not including ASL and LSQ in the regulations is contrary to the section 6 principles in the ACA, including sections 6(e), 6(f), and 6(g), as well as the human rights obligations of regulated entities. The ACA also recognizes that sign languages are “the primary languages for communication by deaf persons in Canada.” As well, regulated entities have a human rights duty to accommodate persons with disabilities who ask for alternate formats and to provide alternate formats unless doing so would cause undue hardship. This obligation exists regardless of what is prescribed in accessibility regulations. 
35.	ARCH submits that the CRTC should amend the regulations to require all regulated entities to provide ASL and LSQ formats. To address the CRTC’s position that these videos are “resource intensive”, the regulations can impose a reasonable deadline for providing ASL and LSQ videos that takes into account the time it would take to create these videos upon request. 
36.	Finally, ARCH submits that the CRTC should provide deadlines for the provision of alternate formats. In particular, the CRTC should require that certain alternate formats that are easier to create, such as print, large print and electronic formats, be provided very quickly. Consistent with section 5.2 of the ACA, this would encourage regulated entities to create these alternate formats from the outset and have them ready to send to anyone who requests them. It would also highlight the importance of universal design and reinforce some of the goals and practices that are discussed in accessibility plans and progress reports themselves. If the CRTC creates guidance with respect to alternate formats, this should strongly encourage regulated entities to be proactive by adopting universal design in creating these plans and reports from the outset. This will mean that these documents will already be accessible to as many people as possible, and requests for alternate formats will not be needed as frequently.
37.	ARCH proposes the following deadlines for the provision of alternate formats for all regulated entities:
•	20 days for Braille or American Sign Language and langue des signes québécoise videos;
•	10 days for audio; and
•	2 days for all other formats.
38.	These specific deadlines would provide certainty, both to regulated entities and persons with disabilities, regarding how quickly an alternate format should be produced. A deadline that corresponds to the actual time that is required to create the alternate format would also emphasize that providing alternate formats is a priority, consistent with the CRTC’s Call for Comments.
F.	Exemptions for Regulated Entities with Less than 10 Employees and Subject to Reseller Registration Obligation
39.	The draft regulation states that regulated entities with less than 10 employees, as well as entities subject to the reseller registration obligation, should be entirely exempt from accessibility planning and reporting requirements. ARCH submits that the CRTC could create a more context-specific exemption based on direct, objective, and quantifiable evidence of the undue hardship that these regulated entities may experience. Regulatory exemptions to accessibility requirements may have the unintended consequence of removing incentives for regulated entities to overcome barriers to accessibility. 
40.	Under such a broad exemption, regulated entities need not take any steps with respect to planning and reporting at all – they do not need to create an accessibility plan, report on their progress, or receive input about barriers to accessibility through feedback from and consultations with persons with disabilities. In this way, the creation of exemptions undermines the principle described in subsection 6(g) of the ACA, which states that “the making of regulations must be done with the objective of achieving the highest level of accessibility for persons with disabilities.” Exemptions to accessibility requirements also undermine subsection 5.2 of the ACA, since they may create incentives for exempted entities not to remove barriers or to do so slowly. While these regulated entities may not be able to meet all of the CRTC’s regulatory requirements without undue hardship, they should not be exempted from all requirements without greater justification.
41.	The CRTC explains that these smaller regulated entities have “limited capacity” to follow the draft regulation and that this exemption would have a “very limited impact”. However, undue hardship cannot be established based on impressionistic assumptions, rather it is established only when there is actual evidence that providing the accommodation would cause a real, serious risk to health and safety or is impossibly costly. Nonetheless, even where there is sufficient evidence to create an exemption, regulated entities should only be permitted to rely on these exemptions sparingly.
42.	In addition, the regulation should clearly state that human rights principles, including undue hardship and the duty to accommodate, continue to apply when a regulated entity relies on an exemption. The duty to accommodate places an obligation on the regulated entity to take all necessary steps to investigate whether it is possible to provide an accommodation, or whether suitable alternative accommodations exist which meet the disability-related need. A particular accommodation may not be available at one time, but may become available in the future, as technology advances or circumstances change. 
43.	Finally, if the CRTC finds it necessary to create exemptions, these exemptions should be reviewed every five years to ensure that they remain supported by direct, objective, and quantifiable information. 
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