Submission to Rich Donovan

4^th Independent Review of the 
Accessibility for Ontarians with Disabilities Act 
May 26, 2023
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

About ARCH
Climate and context
Standards
Listening to Ontarians with Disabilities
Attitudinal Barriers
Purpose of the AODA
Enforcement
Recommendations

About ARCH
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 40 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. ARCH provided fulsome submissions to standard development committees in the development and review of all the accessibility standards pursuant to the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), and participated in the three Independent Reviews of the AODA. More information about our work is available on our website: www.archdisabilitylaw.ca

https://archdisabilitylaw.ca/?s=aoda

SO 2005, c 11

Charles Beer, Charting a Path Forward: Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act; (2005), online: <https://www.ontario.ca/page/charting-path-forward-report-independent-review-accessibility-ontarians-disabilities-act>; Mayo Moran, 2014 Legislative Review of the Accessibility of Ontarians with Disabilities Act; (2014), online: https://www.ontario.ca/document/legislative-review-accessibility-ontarians-disabilities-act; and David Onley, 2019 Legislative Review of the Accessibility of Ontarians with Disabilities Act; (2019), online: https://www.ontario.ca/page/accessibility-ontarians-disabilities-act-annual-report-2019

Climate and context
Accessibility matters because it is a precondition for persons with disabilities to live independently and participate fully and equally in society.  Ten years ago, the Second Independent Reviewer, Mayo Moran, observed that “[a]n inclusive society of the kind that the AODA aims at will be healthier and more robust along many dimensions.”  The Interim Report of the 4^th Independent Review (“Interim Report”) comes at a time when persons with disabilities experienced a rise in discriminatory barriers due to the disproportionate impact of the COVID-19 pandemic and “the corresponding policy and legal responses attempting to contain it.” Such responses include the Triage Protocol, inaccessible distribution and access to vaccines, visitation bans for persons with disabilities living in congregate care settings, barriers to accessing communication supports in hospitals, barriers in accessing education, barriers to accessing health care and barriers to health card renewal services. Moran’s observation serves as a powerful lens to view the rise in discriminatory barriers in the wake of the COVID-19 pandemic, as symptoms of a society that did not prioritize accessibility soon enough. 

UN. Committee on the Rights of Persons with Disabilities (11th sess. : 2014 : Geneva), General comment no. 2 (2014), Article 9, Accessibility at para 1

Supra note 3 Moran at 55

Accessibility for Ontarians with Disabilities Act Alliance, Carrying Forward David Onley’s Legacy – Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Rich Donovan Fourth Independent Review of the Implementation and Enforcement of the Accessibility for Ontarians with Disabilities Act on Phase One – What Findings Should the Donovan AODA Independent Review Make?; (February 6, 2023) online: https://www.aodaalliance.org/whats-new/feb-6-2023-finalized-aoda-alliance-rich-donovan-assessment-brief/

Independent Living Canada, ARCH Disability Law Centre, Disability Related Barriers to COVID-19 Vaccines: Highlights from the COVID-19 Vaccination Accessibility Survey 2021; (2022), at 7 citing Hilary K. et al, “Outcomes in patients with and without disability admitted to hospital with COVID-19: a retrospective cohort study” CMAJ January 31, 2022 194 (4) E112-E121, online: https://archdisabilitylaw.ca/news-release-new-report-disability-related-barriers-to-covid-19-vaccines-highlights-from-the-covid-19-vaccination-accessibility-survey-2021/

ARCH Disability Law Centre, ARCH Submissions Detailing its Position on the Inclusion of the Clinical Frailty Scale in Ontario’s Triage Protocol; (2020), online: https://archdisabilitylaw.ca/resource/arch-submissions-detailing-its-position-on-the-inclusion-of-the-clinical-frailty-scale-in-ontarios-triage-protocol/

Supra note 7

ARCH Disability Law Centre, ARCH Bulletin on COVID-19: People Living in Developmental Services Group Homes Need Access to Essential Support Persons (2020) online: https://archdisabilitylaw.ca/resource/arch-bulletin-on-covid-19-people-living-in-developmental-services-group-homes-need-access-to-essential-support-persons/

ARCH Disability Law Centre, Advocacy Toolkit – Advocating for Your Support Person, Attendant or Communication Assistant to be with You in Hospital During the COVID-19 Pandemic; (2020), online: https://archdisabilitylaw.ca/resource/advocacy-toolkit-advocating-for-your-support-person-attendant-or-communication-assistant-to-be-with-you-in-hospital-during-the-covid-19-pandemic/

ARCH Disability Law Centre, Access to Education for Students with Disabilities during the COVID-19 Crisis; (2020) online: https://archdisabilitylaw.ca/resource/access-to-education-during-covid-19/

ARCH Disability Law Centre, COVID-19 Health Care; (2020-2022), online: https://archdisabilitylaw.ca/covid/covid-19-health-care/

Evaluating the effectiveness of the AODA asks whether Ontario is on track to create a barrier-free Ontario by 2025. Given the timing of the 4^th Review, a mere eighteen months away, it is a foregone conclusion that it is not.  The 4^th Review captures the feelings of anger, frustration, betrayal and disappointment in the wake of this “unequivocal failure”  to achieve “massive cultural transformation.”   

Rich Donovan, Independent 4^th Review of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) Interim Report; (2023), online:  https://www.aodareview4.com/report-interim at 4

Onley supra note 3 at 25

Moving forward and beyond 2025, the 4th Review comes at a time when a new framing is needed to drive action forward. 
ARCH believes that the conceptual task of the 4^th Review is to acknowledge and affirm a rights-based framework for achieving wide-scale accessibility with defined targets, indicators for success with deadlines and consequences. This submission is focused on ARCH’s response to aspects of the Interim Report that challenge a rights-based perspective which must be addressed first. ARCH’s submission is focused on the problematic framing of the 4^th Review: 1) an “over-reliance”  on standards as a key driver of poor outcomes; and 2) a “lack of data” that results in this over-reliance.  This leads to a problematic framing of possible solutions, specifically and most alarmingly, a proposed “move away”  from standards that risk excluding key recommendations to create, strengthen and reform standard development, implementation and enforcement, including those identified in the Third Legislative Review by David Onley. Approaching 2025, there is much unfinished work that remains outstanding.  

Supra note 14 at 19. An “over-reliance on standards” is in reference to creating or expanding accessibility standards, and complying with or enforcing these standards as has been the focus in prior reviews.

Ibid. A “move away from standards” is in reference to a departure from this focus.

AODA Alliance, ARCH Disability Law Centre together with 21 other disability organizations and groups called on the government to announce a plan to implement the recommendations contained in the Third Legislative Review by David Onley; (July 10, 2019), online: https://www.aodaalliance.org/whats-new/in-a-compelling-open-letter-21-disability-organizations-unite-to-call-on-the-doug-ford-government-to-announce-a-plan-to-implement-the-report-on-ontarios-disabilities-act-submitted-by-former-lieuten/

See for example, the AODA Alliance’s submission to the 4^th Review dated February 6, 2023, supra note 6.

The 4^th Review occurs at a moment that is appreciably different from prior reviews, all of them confirming widespread support for “the value of accessibility and inclusion.” The Interim Report however contains no such assurances. There is an alarming focus on the disenchantment with the status quo i.e. a standards-based approach to barrier-removal, without critically examining the barriers that prevent harnessing its full potential.  The Interim Report adopts a disruptive model of innovation: why get better and better at things people want less and less? “Persons with disabilities do not demand standards or definitions, they demand positive experiences similar to that of the rest of the population.” Poor outcomes and negative experiences are caused by an “over-reliance on standards.” This is due in significant part to a lack of “data.” 

Beer, supra note 3 at 18; Moran supra note 3 at 7;  Onley supra note 3 at 21

Greg Satell, The 4 Types of Innovation and the Problems They Solve, (2017) online: https://hbr.org/2017/06/the-4-types-of-innovation-and-the-problems-they-solve  “Disruptive innovation” is one of 4 types of innovation strategies identified by Clayton Christensen in The Innovator’s Dilemma: “what is normally considered best practice — listening to customers, investing in continuous improvement, and focusing on the bottom line — can be lethal in some situations. Getting better and better at things people want less and less.”

Supra note 14 at 13

According to the Interim Report, standards themselves do not “identify easy wins that satisfy demand” nor do they “identify where … the biggest bang [is] for the buck.” Based on these findings, the proposed approach is a shift in focus away from standard development, implementation and compliance. The focus of the 4^th Review instead is on “data and outcomes” based on experience (of persons with disabilities, obligated sectors and the government) and demand for “positive” and “equal experiences.” 

Supra note 14 at 20-21

Ibid at 19

Ibid at 13

Ibid

Ibid at 5

Compliance with minimum requirements does not fulfill all duties and obligations to identify, remove and prevent barriers. In this respect, ARCH would agree that an “over-reliance” on standards is not sufficient to create a barrier-free Ontario. Standards are the floor and not the ceiling and serve as a starting point. However the problematic framing ignores the systemic failure of successive governments to take action to develop new and strengthen existing standards as a root cause for this failure. The task under s. 41(1) the AODA is to undertake a comprehensive review of the effectiveness of the Act and standards. One of the reasons why the AODA is not as effective as it should be is because the standards lack strong and prescriptive requirements.  Unfortunately, this gets lost in the Interim Report’s framing which implies that the present focus on compliance with standards is at odds with the need to engage in a continual process of barrier removal that is informed by the lived experience of persons with disabilities, if that is what the Reviewer is suggesting as the alternative. ARCH is concerned that an approach that presents these approaches as mutually exclusive and not complementary may only serve to further weaken the AODA’s effectiveness in addressing system-wide barriers that are well documented and well known. ARCH is concerned that this implicit call to deregulation may result in further retrenchment of the role of government to create, strengthen, and enforce accessibility standards and reform standard development processes to achieve the goals of the AODA.   

Ibid at 13

Onley, supra note 3 at 26, articulated a view expressed by participants during consultations that parallels many of the themes contained in the Interim Report as follows: “In fact, the Review learned that all the recent standards development committees have been talking about non-regulatory measures to reach the goals of the AODA. Some believe the whole regulatory model under the AODA needs a sober second look to focus on solving problems and producing results. The current process is viewed as unfriendly to innovation and risk-taking. From this perspective, government is not the solution but a facilitator, in contrast to the stance that legislation can fix everything. Government’s role is to model accessibility in practice and act as a convener to bring businesses and other organizations together to drive change forward.”

Moreover, as part of a rights-based framework, and in addition to undertaking a review of the effectiveness of the current standards and need to improve their effectiveness under s. 41 of the AODA, including the need for strong and prescriptive standards, the Review ought to target the lack of visible and effective enforcement as one of the key barriers preventing the realization of the AODA’s stated purpose.  We agree with Onley that “[a] more visible and aggressive enforcement of the AODA is essential to achieving the vision of an accessible Ontario.” ARCH recommends that the 4^th Review should include a focus on building a case around stronger enforcement to “drive success.” 

ARCH Disability Law Centre, Considerations for Effective Implementation and Enforcement of the Proposed Federal Accessibility Legislation; (May 10, 2017), at 6 online: https://archdisabilitylaw.ca/resource/considerations-for-effective-implementation-and-enforcement-of-the-proposed-federal-accessibility-legislation/

Supra note 3 at 76.

In light of the contested boundaries that shape the parameters of the 4th Review, ARCH’s submission is not focused on providing a comprehensive list of recommendations for inclusion in the Final Report. Without a rights-based framework acting as a compass to guide the charted course of the Final Review to 2025 and beyond, ARCH’s concern is that that it may lead to a destination that falls short of what   the AODA promises; “greater societal appreciation of the barriers affecting persons with disabilities, and a resolve to eliminate those barriers.” 

Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233, affirming Toronto Transit Commission v. Ontario (Finance), 2009 ONCA 658, affirming [2008] O.J. No. 5251 (Ont. S.C.J.), 2008 CanLII 67910 (ONSC)).

ARCH’s submission endeavours to course-correct that trajectory.
Recommendation #1: ARCH recommends that the 4^th Review make a finding that disability-related barriers have increased as a result of the COVID-19 pandemic, and that it is therefore even more critical that the government and obligated organizations publicly re-commit to eliminating discriminatory barriers that prevent full inclusion, independence and participation of persons with disabilities consistent with the goals of the AODA. 
Recommendation #2: ARCH recommends that the government expedite the release of draft regulations of sector specific standards in health and education for public feedback. 
Recommendation #3: ARCH recommends that the government consult the public on the need for additional standards.
Standards
The Interim Report identified an “over-reliance”  on standards as a key driver of poor outcomes and a lack of data as a reason for this over-reliance.  ARCH is troubled by an approach that calls for a departure from standards rather than a commitment to compliance beyond the minimum requirements in an effort to remove all barriers.  The reasons provided in the Interim Report are critically examined and challenged here. 

Supra note 14 at 19.

First, perfect adherence to standards will not always result in a barrier-free experience for persons with disabilities. Due to a variety of factors, this is almost certainly guaranteed. For example, the Interim Report cites examples in which compliance with accessibility standards does not necessarily make for an entirely accessible experience.  However that does not mean that standards are “pointless.”  

As stated by David Onley supra note 3 at 65: “It is a fundamental misconception dating back to the early days of the AODA that standards alone can achieve accessibility for people with disabilities. Standards are not enough because the world we live in is constantly changing as technology evolves, society is transformed, new barriers arise and new ways of removing and avoiding barriers emerge. Moreover, people with disabilities are a diverse group - not only in terms of background but also in terms of needs, values and individual preferences. Standards have trouble keeping up with this dynamic, ever changing context; they are necessary but not sufficient.”

See examples provided by Donovan supra note 12  at  11 and 19

Supra note 14 at 12. There is a need for compliance and maintenance of features to prevent barriers in design and remove barriers in the environment. Compliance does not preclude the need for maintenance nor does the need for maintenance render standards “pointless.”

Second, given the Interim Report’s framing, previously identified gaps in the standards risk languishing in obscurity rather than urgently being triaged as pressing and substantial concerns worthy of the public’s consideration and attention.  To provide a discrete example, accessibility standards that relate to transportation, the design of public spaces and customer service do not address accessibility barriers in transit stations, shelters and stops. While a person with a disability may board an accessible bus, with accessible services (such as stop announcements) and be greeted by drivers who are trained in how to support persons with disabilities, the first point of access to the service, the station itself, remains inaccessible. To realize the full potential of standards in achieving wide-spread accessibility, the transportation standard should prescribe clear accessibility requirements.  Given the framing of the Interim Report, weak standards will continue to perpetuate systemic barriers that standards are designed to remove.

ARCH Disability Law Centre and AODA Alliance, Brief to the Ontario Transportation Standards Development 
Committee on Revisions to the 2011 Ontario Transportation Accessibility Standard Enacted under the Accessibility for Ontarians with Disabilities Act; (2017) online: https://archdisabilitylaw.ca/resource/aoda-alliance-and-archs-joint-submission-on-revisions-to-the-2011-ontario-transportation-accessibility-standard-under-the-aoda/

Third, ARCH does not agree that a “standard-driven” approach is necessarily at odds with an approach that is informed by the lived experiences of persons with disabilities and that the two are somehow mutually exclusive.  ARCH does not agree that standards “prevent an understanding of what PWD actually want in their experiences” or that compliance with standards excludes a consideration of lived (user) experience. For example, ARCH has recommended that the government develop a meaningful forum where feedback on the impact of the AODA and its standards can be made and be used to produce change. Prior reviews place a value on lived experience as the potential “key that unlocks accessibility,” given the “keen interest of todays’ businesses in customer satisfaction.”  

Supra note 14 at 11

ARCH Disability Law Centre, Written Submission of ARCH Disability Law Centre to Mayo Moran AODA Independent Review; (June 30, 2014), at 15 Recommendation 10

Onley supra note 3 at 77

Listening to Ontarians with Disabilities 
A broad and liberal interpretation of the AODA requires obligated organizations to go beyond whether an action required by the standard has been implemented. Rather “it is important to assess the end result such as whether the obligated organizations have in fact removed and prevented disabilities barriers.”  The lived experience of persons with disabilities is central to this inquiry. 

Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233

K-12 Education Standards Development Committee, Development of proposed Kindergarten to Grade
12 (K-12) education standards – 2022 final recommendations report at 125

The Interim Report proposes that the best outcomes are demand driven and based on experience, offering two examples that are problematic. A rights-based approach must infuse and inform the Review or risk perpetuating the very barriers it seeks to identify and remove. In providing an example of “accessibility initiatives that can be considered a success,” one that led to better outcomes in the municipal transportation sector, a municipal transit executive reported that they were willing to take a risk and reframe the regime based on experience. The Interim Report uses this example to illustrate the “importance of listening to demand rather than standards, when designing experiences.” This example is problematic for a number of reasons. Very few details are provided including, how the standard was at odds with lived experience, and whether as a result, the standard ought to be strengthened to improve its effectiveness,  what the initiative entailed including whether it removed any barriers, what data was collected about demand and experience and from whom, and what constitutes a “better outcome” and for whom? 

Supra note 14 at 18

Ibid

The “Fulfilling Lives Program” is another example that is problematic.  The program collected “lived experience insights” to inform decisions about program cuts “that actual disadvantaged individuals knew would be ineffective, saving significant resources.”  Notably, there is no definition of “improved outcomes” other than cost savings to the government.  It’s also not clear how this is an example of “lived experience integrated to design.” There is no information about whether the government consulted individuals to ask what their needs were in an effort to design programs that would support those needs.  The Interim Report proposes that “there is potential to engage in similar initiatives within the context of the AODA.” 

Supra note 14 at 20

Ibid

Ibid

Selective questioning leads to selective listening.  ARCH is gravely concerned about the motivations and implications of this type of engagement, in this type of listening, especially if it is for the purpose of screening for “easy wins that satisfy demand” and “biggest bang for the buck” stories of “success.”  The importance of listening is a key theme and message in the Third Review, titled “Listening to Ontarians with Disabilities.” It contains enduring wisdom germane to the exercise of transforming the culture. 

Supra note 14 at 20-21

Supra note 14 at 19

Onley supra note 3

The solution is the change of heart I mentioned. What is required is what a member of a local accessibility advisory committee called “accessibility mindfulness” – one of many profound insights brought to the Review by everyday people. All public and private sector organizations should work harder to know their customers, an increasing portion of whom have disabilities, and make more effort to understand and anticipate their needs. All Ontarians should put themselves in the shoes of people with disabilities – and think and act in the spirit of the AODA because it is the right thing to do. 

Onley supra note 3 at 66

Going beyond compliance requires obligated organizations to take steps to listen to the experiences of persons with disabilities. Equipped with this “data,”  obligated organizations ought to commit to a multi-year plan to remove them. What is equally needed are processes that require obligated organizations to design with accessibility in mind from the beginning. Given the lack of clarity in the examples provided, ARCH invites the Reviewer to adopt this framing around data and lived experience to the extent that its proposed approach may be viewed as inconsistent. 

There are numerous factors that contribute to persistent inaccessibility.  ARCH is concerned with the framing  that failure to collect data for the last 17 years, indirectly accounts for the prevalence of barriers today (due to an over-reliance on standards). While data is important, ARCH is concerned that a sole focus on collecting data will lead to more delay and divert focus away from other important factors such as the development of strong prescriptive standards and robust and visible enforcement mechanisms.

Attitudinal Barriers
Persons with disabilities and organizations that support them including ARCH, have advocated for standards in health, education, the built environment, residential housing, voting, and in other domains.  It is obligated organizations that are resistant. The Interim Report appears to justify a move away from standards because they are a “point of friction” for obligated organizations due to the cost of compliance. Such wide-spread systemic resistance is itself an attitudinal barrier that ought to be challenged: persons with disabilities demand disruption of “business-as-usual” status quo. 

Moran supra note at 48-49

Ibid at 47, Supra note 14 at 13 in reference to claim that “Persons with disabilities do not demand standards”

Supra note 14 at 19.

The basis for that challenge is articulated in the Divisional Court’s decision in Hejka v. The Regional Municipality of Durham. 

Supra note 41

It is a landmark case regarding the rights of persons with disabilities in accessing paratransit services. Durham Region and Durham Region Transit Commission (the Region) took steps in an effort to improve the accessibility of their conventional transportation services, including making their services compliant with the AODA. As part of this process, the Region initiated a review of paratransit users. Based on their review, the Region decided that Mr. Hejka was no longer eligible for unconditional door to door service and changed his eligibility to conditional. Under conditional eligibility, Mr. Hejka was required to use conventional (rather than paratransit) transportation for part of his trip. As this posed a risk to his safety, he was required to be accompanied by a personal care assistant (PCA) at his own expense. Following an internal appeal that did not resolve Mr. Hejka’s issue, he sought a judicial review of the Region’s decision. The Divisional Court found in favour of Mr. Hejka. In particular, it found that the Region’s decision was unreasonable and must be quashed. 
The municipality attempted to argue that the AODA’s purpose is achieved through a consideration of the shared nature of public transportation, “like many public services, [this] means the reasonable goal [under the AODA] is good service for all, not perfect service to a few.” The Divisional Court disagreed.  It examined the text i.e. the specific wording in the provision, the context and the purpose of the AODA. It affirmed the AODA as social justice legislation that is meant to redress a history of discriminatory exclusions by identifying, removing and preventing discriminatory barriers. To achieve its purpose, it must be interpreted in a broad and liberal manner. In examining the text of the legislation, the Court stated that nowhere in the standard does it include “the right to decide that even though one type of service might best meet the disability-related needs of a passenger, that service should not be provided because of a need to take into account the needs of all the other passengers using the service.” The Court stated, “[i]t may meet the needs of the Region to cut down on the number of people who use specialised services, but that is not what the Regulation specifies should be the governing consideration”.

Supra note 41 at paras. 32 and 33

Supra note 41 at para. 40

Supra note 41 at para. 50

The Court was critical of utilitarian-type arguments that advance the notion of the “public good” as the maximization of overall wellbeing within budgetary constraints. The Court recognized that to give credence to these utilitarian-type arguments would only serve to perpetuate the barriers the legislation was designed to identify, prevent and remove. The Court’s decision exposed these “business-as-usual” rationales for what they rightfully are: attitudinal barriers that operate to privilege the able-bodied and perpetuate the status quo.  

ARCH Disability Law Centre, Case Summary and Analysis: Hejka v. The Regional Municipality of Durham, 2022 ONSC 2233; (May 26, 2022), online: https://archdisabilitylaw.ca/category/arch-updates/blog/

The Court’s decision serves as a warning to service providers to pay heed to the attitudinal barrier that is current today, that characterizes accommodation of disability-related needs as an unreasonable demand for perfect services rather than a claim that derives its legitimacy as a human right. Implicit in the Court’s reasoning is a recognition that these attitudinal barriers have historically influenced and shaped the shared nature of our public policy.  In “decentering” such arguments, it affirmed a human rights-based approach to the interpretation of the AODA to fulfill its purpose.

Supra note 41

The goal of the AODA may not always align with the goal of immediate wealth maximization, contrary to how the AODA has been promoted including in the Interim Review itself.  The Divisional Court decision clarifies that “points of friction” in implementation are in fact attitudinal barriers that have historically disadvantaged persons with disabilities which the AODA was meant to remedy.  
Recommendation #4: ARCH recommends a rights-based approach to identify and challenge cost-based resistance to standards, including in the built environment, as attitudinal barriers that privilege the able-bodied status quo which the AODA is intended to remedy.
Purpose of the AODA
The Terms of Reference focus the 4^th Review on the following key questions: “What is success for the AODA? What data exists to measure the success of the AODA in achieving its purpose? What changes could be made to improve its success?” What the goal is, i.e. what constitutes “success,” is a contested topic. ARCH believes that the conceptual task of the 4^th Review is to acknowledge and affirm a rights-based framework for achieving wide-scale accessibility with defined targets, indicators for success with deadlines and consequences. What success is under the AODA cannot be answered without an inquiry into the AODA’s ultimate goal and purpose.  Only then can relevant data and relevant outcomes to measure success be identified.  

Supra note 6 at 1-2, D. Onley remarks on May 1, 2019 to the Senate’s Standing Committee on Social Affairs

There is a difference of opinion of how the AODA’s goal of accessibility should be conceptualized, as captured in prior reviews. What is the destination it promises? Seventeen years later, this is still contested. Meanwhile, the Interim Report has indicated “no comment.”  We recommend the Reviewer to reconsider; the 4^th Review must lead in providing interpretive clarity. This clarity now comes from the Divisional Court’s decision in Hejka v. The Regional Municipality of Durham. 

Onley supra note 3 at 63

Supra note 14 at 13

Supra note 41

First, by way of background, is a summary of prior reviews’ handling of the question of the purpose of the AODA. In 2005, the Beer Review identified the need for a provincial policy framework for accessibility focused on the question: “What does an accessible Ontario in 2025 really look like?” The recommendation called for a plan setting out goals, expectations and timelines to execute that vision by 2025. In 2014, the Moran Report identified that “while the commitment to enabling people with disabilities to participate fully in society is strong, there are many different views of what accessibility is and how the AODA’s goal should be conceptualized.” What should expectations be around barriers in the existing built environment? Is “full accessibility” a realistic goal without major retrofits? Should the goal be simply meeting legislated targets given that the definition of accessibility is always evolving? Should the goal be “full accessibility” with some acknowledgement that this is an unattainable vision to provide a focus for barrier removal efforts? What is the measuring stick for gauging improved accessibility? What are the targets and indicators of success to track achievement? Given that compliance reports reflect no measurable objectives, how can organizations know where they are, what remains to be done and how they rate? 

Beer supra note 3 at 50

Onley supra note 3 at 63

Moran supra note 3 at 21-22

Ibid at 21. The Moran Report captured feedback from stakeholders suggesting that it may be preferable to adopt a more flexible approach in which people with disabilities provide ongoing feedback on what does and does not work. Regulation that is more spirit – or values-based rather than testable could facilitate such an approach.

In 2019, the Onley Report confirmed widespread confusion in implementing and interpreting what the AODA means by accessibility. “The result is that organizations have trouble figuring out the ultimate goal they are working toward and people with disabilities are not sure what to expect.” Onley expressed a vision of an accessible Ontario as a place where people with disabilities are free from discrimination: “an Ontario that complies fully with the Human Rights Code – a place where people with disabilities are free from discrimination – where all barriers have been removed and all needs accommodated, to the point of undue hardship. This place is a long way off – but is this the destination the AODA promises, or not?” 

Onley supra note 3 at 63

Onley supra note 3 at 63: “an Ontario that complies fully with the Human Rights Code – a place where people with disabilities are free from discrimination – where all barriers have been removed and all needs accommodated, to the point of undue hardship.”

The Divisional Court decision does not answer this question directly. However it does provide clarity and guidance to decision makers in interpreting the AODA that is consistent with Onley’s view. The court affirmed that the AODA is “social justice legislation” that has the same goals as human rights laws. It must be interpreted broadly and liberally in order to achieve those goals.  For example: 
•	accessibility must be interpreted in a fair, large and liberal way so as to achieve the AODA’s purpose; 
•	accessibility is not achieved by removing a barrier only to create another one to take its place: this is antithetical to the purpose of the statutory scheme;
•	accessibility is achieved when an individual’s disability-related needs, that systemic accessibility improvements do not account for, are accommodated; 
•	accessibility favours an approach that encourages rather than fetters independence and access;
•	accessibility represents a greater societal appreciation of the barriers affecting persons with disabilities and a resolve to eliminate those barriers;
•	accessibility is meant to combat ableism and remediate historical disadvantage;
•	accessibility is achieved through an expansive definition of barriers i.e. a policy or practice that limits and potentially prevents a person from fully accessing services; 
•	accessibility is achieved through the removal of barriers that perpetuate discrimination;
•	accessibility is achieved by treating persons with disabilities as rights holders with equal concern, respect and consideration, and not as objects of pity or charity;
•	accessibility is meant to challenge attitudinal barriers that characterize accommodation of disability-related needs as a demand for perfect service. 
ARCH proposes that success under the AODA requires identifying, removing and preventing barriers to ensure that persons with disabilities are free from discrimination. This places an onus on obligated organizations to do the hard work of justifying why the failure to remove the barrier would otherwise result in undue hardship. Due to the high bar that is required to establish undue hardship, a rights-based approach would curtail easy access to ableist rationales that go unchallenged as common sense and fiscally responsible. Examples of easy rationales which are currently being used by the government to justify failure to enforce the AODA for example include: the AODA imposes unnecessary red tape that will seriously harm small businesses, the AODA will stymie economic opportunities, and the AODA threatens fining small businesses out of existence. 

AODA Alliance, The Ford Government Defeated a Proposed Resolution in the Legislature that Called for a Plan to Implement David Onley’s Report on Strengthening the Implementation of Ontario’s Disabilities Act – The Government Invoked False and Hurtful Stereotypes About the Disabilities Act, Unfairly Disparaging Its Implementation and Enforcement as “Red Tape; (11 June 2019), online: https://www.aodaalliance.org/whats-new/the-ford-government-defeated-a-proposed-resolution-in-the-legislature-that-called-for-a-plan-to-implement-david-onleys-report-on-strengthening-the-implementation-of-ontarios-disabilities-act-the/].

Recommendation #5: ARCH recommends that the Final Report provide interpretive clarity by affirming that an accessible Ontario is one where persons with disabilities are free from discrimination through the identification, removal and prevention of barriers to participation, inclusion and access, to the point of undue hardship. A broad and liberal interpretation of the AODA requires obligated organizations to go beyond whether an action required by the standard has been implemented. Rather “it is important to assess the end result such as whether the obligated organizations have in fact removed and prevented disabilities barriers.”

Supra note 41

Supra note 42

Enforcement
As part of a rights-based approach in evaluating the effectiveness of the current standards and need to improve their effectiveness through strong, clear and prescriptive accessibility requirements, the Review should include recommendations for stronger enforcement. A key barrier identified in the Interim Report is the lack of human resources in relation to the more than 460,000 organizations that are subject to the AODA.  The government justifies the lack of enforcement by appealing to economic and cost-based arguments which we have identified earlier as being inconsistent with a rights-based approach.  

Supra note 14 at 16

AODA Alliance , The Ford Government Defeated a Proposed Resolution in the Legislature that Called for a Plan to Implement David Onley’s Report on Strengthening the Implementation of Ontario’s Disabilities Act – The Government Invoked False and Hurtful Stereotypes About the Disabilities Act, Unfairly Disparaging Its Implementation and Enforcement as “Red Tape”; (June 11, 2019), online: https://www.aodaalliance.org/whats-new/the-ford-government-defeated-a-proposed-resolution-in-the-legislature-that-called-for-a-plan-to-implement-david-onleys-report-on-strengthening-the-implementation-of-ontarios-disabilities-act-the/

Effective enforcement is critically important to achieve widespread accessibility. Standards enforcement includes a variety of mechanisms such as voluntary compliance, and reporting, inspections, administrative orders and notices of non-compliance, and monetary penalties against organizations or directors/officers of organizations that fail to comply maximum $100,000 daily. Despite the variety of these enforcement tools, the Government of Ontario has largely relied on voluntary compliance and reporting. 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. 

Supra note 30

The Moran Report recommended that the government strengthen its enforcement and noted that in 2013, only 30% of private sector organizations of more than 20 employees had filed accessibility reports. In 2015, 65% of businesses still had not filed their 2012 accessibility reports and 60% had failed to meet the 2014 reporting deadline. The Onley Report made similar findings and noted that “the results suggest extensive non-compliance with what the Accessibility Directorate of Ontario considers foundational accessibility requirements.” Onley affirmed that more visible and aggressive enforcement of the AODA is essential to achieving the vision of an accessible Ontario and provided a number of recommendations that have yet to be implemented. 

Onley supra note 3 at 72

Recommendation #6: ARCH recommends that enhanced compliance and enforcement mechanisms in the Onley Report be implemented.
The Interim Report suggests a preference towards implementing positive incentives rather than calling on the government to make visible enforcement a priority, as prior reviews have done. While incentives to exceed minimum requirements under standards may be an underutilized tool to achieve success where appropriate, ARCH does not agree that this should replace the need for robust and visible enforcement.  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 provide individuals with the power to remove barriers via a complaints mechanism, which is a key feature in a rights-based approach to achieving accessibility. 

Supra note 14 at 20

Supra note 28 at 8

Ibid

Access to justice must take place at the systemic level which rationalizes the vesting of that power with government. Access to justice therefore requires the government to effectively and visibly enforce the AODA. Failing to enforce the AODA sends “a very mixed message about the importance of the AODA” and trivializes the experience of discrimination and inequality experienced by persons with disabilities.

Moran supra note 3 at 58: “The designers of the AODA purposefully and thoughtfully chose a non-complaints system. They did so for good reason – such systems often get bogged down in dealing with individual situations and end up being unable to effect more systemic change.”

Moran supra note 3 at 33

Without access to neither remedies nor enforcement, “[p]eople with disabilities will have to depend on the good will of organizations and business in order to have their “right” to a barrier-free and accessible Ontario become a reality.”  This brings us to the line that closes the Interim Report: “Mr. Premier, do you care?” Framing the call to action based on an appeal to good will rather than on a rights-based demand for equal experiences is troubling as we approach 2025. 

Supra note 36 at 13-14

Supra note 14 at 25

Supra note 14 at 5

Moreover, implementation and compliance should not depend on whether, as conditions precedent, there are “positive incentives” to care. Organizations should not be able to use the lack of “positive incentives” as an excuse in failing to meet accessibility standards. This perpetuates ableism which characterizes persons with disabilities as unworthy of having their human rights respected in the absence of first providing obligated organizations with “incentives” to do so. 

Supra note 14 at 21:“Put differently, the AODA has not provided a positive reason why organizations in Ontario should meet accessibility standards, nor why the public should care.”

Supra note 14 at 20-21 page 20-21

We propose vigorous enforcement as a key to restoration and reclamation of the status of persons with disabilities as rights holders. We recommend reframing the 4^th Review and resulting call to action through a rights-based lens that prioritizes stronger standards and proactive enforcement of those standards. Without clear leadership from government, the AODA cannot fulfill its function as an “instrument for transforming our attitudes toward people with disabilities.” 

Beer supra note 3 at 38

Nowhere is the need for proactive systemic enforcement more apparent than in the aftermath of the Divisional Court decision discussed above. While the decision considered the applicant’s particular circumstances and is binding on the Respondents with respect to those circumstances, the Court made very clear and discrete findings regarding the Respondents’ policy itself.
For example, policy decisions that erect barriers rather than remove them, unless specifically mentioned in the AODA, that are contrary to the text, context and purpose of the AODA may be subject to judicial scrutiny. Specifically, the Court articulated the following principle of general application:  conventional transportation, even if in compliance with an accessibility standard, may continue to pose a significant barrier if the person cannot access it independently without risk to his or her own safety.  To remove that risk, a policy that requires a person to provide a personal care attendant to safely access conventional transportation, rather than accommodate those needs in a manner that preserves access and independence, is also a barrier. 
The Divisional Court’s ruling provides interpretive clarity by holding that the Respondents’ policies do not “comply” with the transportation standard. The Divisional Court adopted a rights-based approach in interpreting the standard that promotes the independence, dignity and ability of persons with disabilities to participate in society and avoids any interpretation that would perpetuate discrimination. 

Supra note 57

Despite this clear interpretive guidance from the Divisional Court, the Respondents have not, as of the day of this writing, over a year after the ruling was released on April 12, 2022, revised their policy to remove the PCA requirement when a person cannot safely and independently access conventional transportation. The lack of robust and visible enforcement perpetuates systemic discriminatory barriers as there are no “incentives” for obligated organizations to comply and only disincentives from a cost perspective. The lack of enforcement contributes to a culture of complicity: organizations are not motivated to prioritize efforts to remove barriers given that AODA noncompliance does not trigger the same reputational or litigation-associated risks of other forms of regulatory noncompliance – “no one cares.” Why get better and better at things no one cares about? Though getting tough on enforcement will not, on its own, remove all barriers, it would signal a change in the culture that is long overdue. 
Recommendation #7: ARCH recommends that the government commit to active and proactive enforcement of the AODA, along with the need for strong and prescriptive standards, rather than rely on incentives.

Recommendations
Recommendation #1: ARCH recommends that the 4^th Review make a finding that disability-related barriers have increased as a result of the COVID-19 pandemic, and that it is therefore even more critical that the government and obligated organizations publicly re-commit to eliminating discriminatory barriers that prevent full inclusion, independence and participation of persons with disabilities consistent with the goals of the AODA. 
Recommendation #2: ARCH recommends that the government expedite the release of draft regulations of sector specific standards in health and education for public feedback. 
Recommendation #3: ARCH recommends that the government consult the public on the need for additional standards.
Recommendation #4: ARCH recommends a rights-based approach to identify and challenge cost-based resistance to standards, including in the built environment, as attitudinal barriers that privilege the able-bodied status quo which the AODA is intended to remedy.
Recommendation #5: ARCH recommends that the Final Report provide interpretive clarity by affirming that an accessible Ontario is one where persons with disabilities are free from discrimination through the identification, removal and prevention of barriers to participation, inclusion and access, to the point of undue hardship. A broad and liberal interpretation of the AODA requires obligated organizations to go beyond whether an action required by the standard has been implemented. Rather “it is important to assess the end result such as whether the obligated organizations have in fact removed and prevented disabilities barriers.”
Recommendation #6: ARCH recommends that enhanced compliance and enforcement mechanisms in the Onley Report be implemented.
Recommendation #7: ARCH recommends that the government commit to active and proactive enforcement of the AODA, along with the need for strong and prescriptive standards, rather than rely on incentives.