Submission of
ARCH Disability Law Centre
to the Canadian Transportation Agency Regarding the Proposed Accessible Transportation Planning and Reporting Regulations

April 14, 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
www.archdisabilitylaw.ca
 @ARCHDisabilityLawCentre
@ARCHDisability

Table of Contents
Introduction
Summary of ARCH’s Recommendations to the Canadian Transportation Agency
ARCH’s Submissions on the Proposed Accessible Transportation Planning and Reporting Regulations
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
B.	Responses to Persons with Disabilities Who Give Feedback and Retention of Feedback
C.	Regulated Transport Entities Should Accept Requests for Alternate Formats or Feedback through All Communication Channels with the Public
D.	Timing of Accessibility Plans, Progress Reports and Feedback Processes
E.	Publication of Accessibility Plans, Progress Reports and Feedback Processes
F.	Alternate Formats of Accessibility Plans, Progress Reports, and Descriptions of the Feedback Process Listed in the Regulations
G.	Exemptions for Regulated Transport Entities with Less than 10 Employees

Introduction
ARCH provides this submission to the Canadian Transportation Agency regarding the proposed Accessible Transportation Planning and Reporting Regulations, published in Part I of the Canada Gazette on February 13, 2021. 
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. 
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 ARCH’s Recommendations to the Canadian Transportation Agency
ARCH provides the following recommendations to the Canadian Transportation Agency regarding the proposed Accessible Transportation Planning and Reporting Regulations:
Manner and Form of Accessibility Plans and Progress Reports: 
•	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 Canadian Transportation Agency has taken an impoverished view of its regulation making powers under the ACA. The Agency’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 Canadian Transportation Agency’s narrow interpretation of its regulatory power is inconsistent with the objectives and principles of the ACA and Parliament’s intent. 
•	ARCH urges the Canadian Transportation Agency to interpret its regulatory powers liberally, purposively and in a manner consistent with well-established principles of statutory interpretation. ARCH submits that the Agency should amend the regulation to require accessibility plans and progress reports to include essential elements detailed below at page 9. 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 transport entities.
Feedback Processes: 
•	The Canadian Transportation Agency’s draft regulations should require that regulated transport 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 transport entity will take and when these actions will be taken; whether the regulated transport 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 transport entity’s initial response. 
•	The Canadian Transportation Agency’s draft regulations should be amended to require each regulated transport entity to designate a person to receive feedback and to ensure that personal information received through the feedback mechanism be kept confidential. Both of these amendments are consistent with the Canadian Radio-television and Telecommunications Commission’s proposed Accessibility Reporting regulations.
•	The draft regulations should require that regulated transport entities retain feedback until 2040, the deadline specified in the ACA for achieving a barrier free Canada. This is necessary to ensure that regulated transport entities address trends and patterns in the feedback they receive over time, and to enable transparent monitoring of these efforts. 
Communication of Requests for Alternate Formats and Feedback to Regulated Transport Entities:
•	ARCH supports the requirement in the draft regulations that regulated transportation entities receive feedback or request an alternate format “by any means by which the regulated transport entity communicates with the public.” This requirement is important to the promotion of accessibility and universal design. ARCH recommends that the Agency retain this requirement in the final version of the draft regulations.
Timing of Accessibility Plan, Progress Reports, and Feedback Processes: 
•	The deadlines in the draft regulations for regulated transport entities to produce their initial accessibility plans and descriptions of their feedback processes 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 transport 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 Canadian Transportation Agency 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 regulations should be amended to provide for shorter deadlines.
•	However, should the Canadian Transportation Agency 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. Under these circumstances, the draft regulations should require that regulated transport entities publish a description of their feedback processes a year in advance of these deadlines, consistent with the CRTC’s proposed Accessibility Reporting regulations.
Publication of Accessibility Plans, Progress Reports, and Descriptions of Feedback Processes: 
•	ARCH submits that all regulated transport entities should be required to publish accessibility plans, progress reports, and descriptions of their feedback processes online on their websites. This is crucial, especially in the context of the COVID-19 pandemic, which has demonstrated the importance of accessible online information for the Canadian public, including persons with disabilities.
•	The draft regulations should require that accessibility plans, progress reports, and descriptions of the feedback process be in “plain language”, 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 transport entities follow it when creating their accessibility plans, progress reports, and feedback processes. 
•	In addition, ARCH submits that the draft regulations should require regulated transport 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: 
•	ARCH submits that the draft regulations should require regulated transport entities to provide alternate formats of their descriptions of their feedback process. If persons with disabilities do not have accessible information about how to engage the feedback process, this will create unnecessary barriers that are inconsistent with the purpose of the ACA. 
•	ARCH submits that the draft regulations should require videos in American Sign Language and langue des signes Québécoise as a mandatory alternate format. Even if the Agency encourages regulated transport entities to produce this alternate format in voluntary guidance documents, the failure to require this by regulation creates unnecessary barriers for Deaf people and is not consistent with the purpose and section 6(g) principle of the ACA. 
•	The Canadian Transportation Agency should consider other ways to make the list of alternate formats contained in the draft regulations more inclusive based on feedback it receives from persons with disabilities during this consultation. 
•	As well, the draft regulations should be amended to set shorter deadlines for the provision of alternate formats that encourage regulated transport entities to prioritize these requests. 
Exemptions: 
•	The draft regulations should be amended to create more tailored exemptions for regulated transport entities with less than ten employees. These exemptions should be based on evidence of undue hardship that these regulated transport entities are likely to experience. Regulatory exemptions to accessibility requirements have the unintended consequence of removing incentives for regulated transport entities to overcome barriers to accessibility. 
•	However, if the Agency finds it necessary to create exemptions, it should clearly state in the draft regulations that human rights principles, including undue hardship and the duty to accommodate, continue to apply to exempted regulated transport entities. These exemptions should also be time-limited and regularly reviewed.

ARCH’s Submissions on the Proposed Accessible Transportation Planning and Reporting Regulations
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
In the Canadian Transportation Agency’s Regulatory Impact Analysis Statement, the Agency decided that, “[p]ursuant to the ACA, the proposed Regulations can only prescribe the form and manner in which initial accessibility plans and updated plans are to be published. Therefore, these suggested elements were not included in the proposed Regulations.” As a result, the Agency’s draft regulations only require accessibility plans and progress reports to have particular headings, with reference to relevant sections of the Accessible Canada Act. The Agency has not provided for any other requirements regarding the manner and form of these plans and reports.
ARCH submits that the Canadian Transportation Agency has taken an impoverished view of its power to make regulations under the ACA. The Agency’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 Agency’s regulatory power is inconsistent with the purpose and principles of the ACA and Parliament’s intent.
Principles of statutory interpretation require that the scope of the Canadian Transportation Agency’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, the ACA 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.” Parliament specifically connected this purpose to the accessibility plan provisions in subsection 60(9) of the ACA, which require regulated transport 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. 
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 transport 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. 
The Canadian Transportation Agency’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 transport 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 regulations, even though the regulations specifically incorporate other sections of the ACA by reference. The Agency’s decision to refer to some ACA provisions and not others may communicate to regulated transport entities that the section 6 principles are unimportant in this context.
Moreover, according to principles of statutory interpretation, precisely worded powers such as those found in subsection 63(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 transport 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 transport 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 Agency, this information should be required by regulation.
The Canadian Transportation Agency’s approach, which only requires specified headings, will not obligate regulated transport 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 transport 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 transport 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 transport entities should explain why they rejected any input that was not adopted.
The Canadian Transportation Agency’s draft regulations 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 transport 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 transport 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”. 
Based on the Canadian Transportation Agency’s draft regulation, accessibility plans may not address the essential elements for regulated transport 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 these draft regulations 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.
The Canadian Transportation Agency should amend the regulations such that they require accessibility plans and progress reports to include the following information:
•	Specific, concrete actions the regulated transport entity will take to remove and prevent barriers;
•	The position of the person(s) responsible for ensuring that the entire plan and/or each of these actions is implemented;
•	Timeframes within which specified actions will take place;
•	Performance indicators for measuring whether existing barriers have been successfully removed;
•	A reporting of how the regulated transport entity advertised its consultation, the diversity of the participants, and what steps it took to promote accessibility during its consultations;
•	A description of the discussions, submissions and other information received during consultations (and for progress reports, in the feedback process) and how the regulated transport entity took these into account;
•	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;
•	A description of how the plan addresses and takes into account each of the principles outlined in section 6 of the ACA; and
•	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.
In the alternative, if the Agency 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 Canadian Transportation Agency chooses to interpret its regulatory authority narrowly, it should develop guidance documents which strongly encourage regulated transport entities to include these essential elements in their accessibility plans and progress reports. Persons with disabilities should have an opportunity to give input to the Agency about what should be included in these guidance documents. 
While large transport providers are required to comply with the Accessible Transportation for Persons with Disabilities Regulations, medium and small transport providers are not. The Agency is currently developing accessibility guidelines for medium and small transportation providers. To encourage medium and small transportation providers to comply with the guidelines, the draft regulations could require them to include information about how they are implementing those guidelines in their accessibility plans and progress reports.
B.	Responses to Persons with Disabilities Who Give Feedback and Retention of Feedback
The draft regulations should require that people who provide feedback to a regulated transport entity receive a substantive response that goes further than a simple acknowledgment that feedback has been received. ARCH also recommends that feedback should be received through a designated person and that personal information provided through the feedback process be kept confidential. Finally, feedback should be retained to ensure that regulated transport entities account for trends and patterns in the feedback that they receive over time.
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 transport entity will make, if any, and when those changes will be implemented. This answer should also explain why the regulated transport 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. 
If regulated transport 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.
ARCH agrees that feedback processes should allow for anonymous feedback. However, the draft regulations should require the regulated transport entity to designate a person to receive feedback and to keep personal information provided through the feedback mechanism confidential. These changes to the draft regulations would make them consistent with the Canadian Radio-television and Telecommunications Commission’s proposed Accessibility Reporting regulations. A designated point person can be trained to interact with persons with disabilities. They could also be knowledgeable about the regulated transport entity’s accessibility plan, actions that are underway to improve accessibility, and the arrangement of accommodations. This designated person could make the feedback process more accessible and meaningful for persons with disabilities, consistent with the purpose of the ACA. Similarly, ensuring that personal information provided through the feedback process is kept confidential is also important. The possibility that any information provided through the feedback process could be made public could discourage persons with disabilities from giving feedback. They may not want details about their disability or about their personal experiences that relate to the barriers they wish to advance to be published in a way that identifies them. It is not necessary for regulated transport entities to disclose this personal information to address barriers and report on their progress in doing so.
It is also important for regulated transport 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 Canadian Transportation Agency should require that regulated transport entities retain feedback they have received at least until January 1, 2040, the date specified in the ACA when a Canada without barriers must be realized. While the Agency does not have the explicit power to regulate the retention of feedback, it does have the power to regulate the development of feedback processes, accessibility plans, and progress reports. Regulated transport entities must 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 for feedback processes and progress reporting to be meaningful. ARCH submits that the Agency should imply retention of feedback as a necessary element of its regulatory powers, in accordance with ARCH’s statutory interpretation arguments described at pages 6-8.
C.	Regulated Transport Entities Should Accept Requests for Alternate Formats or Feedback through All Communication Channels with the Public
ARCH supports the requirement in the draft regulations that regulated transport entities receive feedback or requests for alternate formats “by any means by which the regulated transport entity communicates with the public.” It is crucial for persons with disabilities to make requests for alternate formats or give feedback in a way that is accessible to them. While regulated transport entities may argue that it is difficult for them to monitor all communication channels with the public, this is a responsibility that regulated transport entities must take on when they create these communication channels in the first place. It would not be unreasonable for these entities to create procedures to relay the feedback given through each of these communications channels to a designated person, as described above.
Moreover, imposing the additional step of requiring persons with disabilities to find out how to request alternate formats or give feedback creates additional, unnecessary barriers. Restricting how persons with disabilities are permitted to make requests for alternate formats or give feedback is also inconsistent with universal design. Universal design aims to ensure that a building, space, technology or service being designed is usable by the greatest number of persons possible. Typically applied to the built environment, architecture, and information and communication technologies, the concept of universal design can also be applied to the design of systems and services. Universal design in the context of the draft regulations would require regulated transport entities to receive feedback or requests for alternate formats in multiple modes of communication to accord with the diverse needs and circumstances of persons with disabilities.
In particular, regulated transport entities should not be permitted to set out designated methods of communication in accessibility plans. If this accessibility plan is not already in an accessible format, it would be impossible for some persons with disabilities to know which methods of communications are designated. This will mean that a person with a disability may have no information about where to start making inquiries, they may have to contact the regulated transport entity in a variety of different ways before receiving an answer, and may eventually give up before receiving an accessible format or giving feedback at all. This significantly undermines the requirement to provide alternate formats and create accessible feedback processes. 
D.	Timing of Accessibility Plans, Progress Reports and Feedback Processes
ARCH agrees with the requirement in the draft regulations that regulated transport entities should publish a progress report in each year they do not publish an accessibility plan. However, ARCH submits that the deadlines for regulated transport entities to submit their initial accessibility plans should be sooner, so as not to create unnecessary delay in the removal of barriers. 
Regulated transport 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 Canadian Transportation Agency’s development of this draft regulation in December 2019. Based on this information, regulated transport entities should have already begun to take steps to come into compliance with accessibility planning and reporting obligations. 
Regulated entities in Class 2 and Class 3 should be required to make their first accessibility plans sooner. The draft regulations appropriately provide for the first accessibility plans and description of the feedback process for regulated transport entities in Class 1 to be due by December 31, 2021, fairly soon after the regulations are finalized. However, regulated transport entities within Class 2 should receive a year after the regulations become law to complete their initial plans, and regulated transport entities within Class 3 should receive a year and a half.
Should the Canadian Transportation Agency amend its draft regulations to prescribe more detailed and meaningful accessibility plans and progress reports (as recommended by ARCH at page 9), regulated transport entities may need more time to comply with these requirements. This may mean that the deadlines for initial accessibility plans outlined by the Agency may be more likely to be justified. Under these circumstances, the draft regulations should require that regulated transport entities publish a description of their feedback processes a year in advance of these deadlines, consistent with the CRTC’s draft regulations. Consistent with section 5.2 of the ACA, it is important for persons with disabilities to have an avenue to identify barriers and ask regulated transport entities to address them earlier than the deadlines for initial accessibility plans, some of which are years in the future.
E.	Publication of Accessibility Plans, Progress Reports and Feedback Processes
ARCH submits that all regulated transport entities should be required to publish accessibility plans, progress reports, and descriptions of their feedback processes online on their websites. In addition, some of the draft regulations’ publication requirements should do more to promote accessibility and accountability. ARCH’s 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.
The draft regulations should require all regulated transport entities to publish their accessibility plans, progress reports, and descriptions of their feedback process on their websites, in accessible formats. Like the CRTC, the Agency should recognize that it is not undue hardship to require regulated transport entities to incur the “minimal cost of obtaining” an accessible website. Publishing this information in accessible formats online would accommodate the disability-related needs of travellers who face barriers to obtaining these documents at the regulated transport entity’s physical locations. As well, persons with disabilities may want information about a regulated transport entity located at their travel destination, which could be located across the country. Furthermore, the COVID-19 pandemic has demonstrated the importance of accessible online information. 
As well, ARCH recommends that the Agency amend the draft regulations’ requirement for “clear, simple and concise language” to say “plain language” instead. It is not immediately obvious what “clear, simple and concise language” means. Each regulated transport entity may interpret this provision differently. This will mean that some regulated transport entities may produce more accessible plans and reports, as compared to others. ARCH submits that the draft regulations should require “plain language”. Accessibility Standards Canada is developing a standard on plain language. This standard has the potential to provide clear guidance for all regulated transport entities as they create their accessibility plans, progress reports, and feedback processes. 
As well, the Canadian Transportation Agency should require that regulated transport 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. 
Moreover, since the ACA’s purpose is to achieve a barrier-free Canada, on or before January 1, 2040, the Canadian Transportation Agency’s regulation should require regulated transport entities to publish accessibility plans and progress reports on their website for 10 years, and to retain older plans and reports until that date, such that they could be provided on request. The Agency should decide on a timeline for retention of plans and reports after 2040 that promotes transparency. The Agency does not have the explicit power to regulate retention of accessibility plans and reports. Nonetheless, it does have the power to require regulated transport entities to publish them and produce alternate formats, to advance the ACA objectives of transparency and accountability. A power to regulate the retention plans and reports is necessary to these regulatory powers, consistent with ARCH’s statutory interpretation arguments at pages 6-8. 
F.	Alternate Formats of Accessibility Plans, Progress Reports, and Descriptions of the Feedback Process Listed in the Regulations
The Canadian Transportation Agency’s draft regulations contain an under-inclusive, closed list of alternate formats, which is inconsistent with the objectives of the ACA and the human rights obligations of regulated transport entities. It also does not require descriptions of the feedback process to be provided in alternate formats at all. 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 transport entity was required to address barriers to obtaining these documents in its accessibility plan because the Agency failed to prescribe sufficient regulatory requirements to ensure accessibility.
The Canadian Transportation Agency has the regulatory power to designate “the format prescribed by regulations” for accessibility plans and progress reports. The Agency also has the power to prescribe how regulated transport entities publish a description of their feedback process. While alternate formats of the feedback process are not specifically referenced in the ACA, they are an essential element that the Agency should necessarily imply to fall within its powers. Further support for this broader interpretation is provided by the CRTC’s draft regulations, which do provide for alternate formats of feedback processes. 
In addition, ARCH submits that there is nothing in the ACA that prevents the Canadian Transportation Agency from prescribing that any alternate format that is requested as a disability accommodation should be provided by regulated transport entities upon request. Nonetheless, even if the Canadian Transportation Agency must prescribe a closed list of alternate formats, the Agency 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 Agency’s draft regulations refer 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 Agency could also create or broaden other categories to include any other alternate formats that persons with disabilities may raise during the consultation in response to the Agency’s draft regulations. 
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 Canadian Transportation Agency 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. 
It is particularly concerning that the draft regulations’ closed list of alternate formats excludes American Sign Language (ASL) and langue des signes Québécoise (LSQ). 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 transport entities and participate in consultations on accessibility plans and progress reports. Not including ASL and LSQ in the draft 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 transport entities. The ACA also recognizes that sign languages are “the primary languages for communication by deaf persons in Canada.” As well, regulated transport 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. 
ARCH submits that the Canadian Transportation Agency should amend the draft regulations to require all regulated transport entities to provide ASL and LSQ videos upon request. To address any concerns advanced by regulated transport entities regarding the resources this may require, 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. 
Finally, ARCH submits that the draft regulations’ deadlines for the provision of alternate formats should be shorter, to encourage regulated transport entities to prioritize these requests. In particular, the Agency 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 transport 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 Agency creates guidance with respect to alternate formats, this should strongly encourage regulated transport 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.
ARCH proposes the following deadlines for the provision of alternate formats for all regulated transport 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.
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.
G.	Exemptions for Regulated Transport Entities with Less than 10 Employees 
The draft regulations state that regulated transport entities with less than 10 employees should be entirely exempt from accessibility planning and reporting requirements. ARCH submits that the Canadian Transportation Agency could create a more context-specific exemption based on direct, objective, and quantifiable evidence of the undue hardship that these regulated transport entities may experience. Regulatory exemptions to accessibility requirements may have the unintended consequence of removing incentives for regulated transport entities to overcome barriers to accessibility. 
Under such a broad exemption, regulated transport 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 transport entities not to remove barriers or to do so slowly. While these regulated transport entities may not be able to meet all of the Agency’s regulatory requirements without undue hardship, they should not be exempted from all requirements without greater justification.
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 transport entities should only be permitted to rely on these exemptions sparingly.
In addition, the regulations should clearly state that human rights principles, including undue hardship and the duty to accommodate, continue to apply when a regulated transport entity relies on an exemption. The duty to accommodate places an obligation on the regulated transport 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. 
Finally, if the Canadian Transportation Agency 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.