‘Humanizing’ Disability Law:
Citizen Participation in the Development of Accessibility Regulations in
Canada
by Laverne JACOBS, Associate
Professor, Faculty of Law, University of Windsor Canada.
« We are hoping that through discussions,
through dialogue, through comments we’ve received from the general public, we
can come to a more general agreement of what everyone sees as the best interest
of Manitoba »[1]
Consultation
is becoming increasingly popular among the federal, provincial and territorial
governments of Canada.[2]
This paper examines one of the most recent and widespread cases of consultation
to occur in the development of lawmaking in Canada: citizen participation in
the enactment of accessibility standards for persons with disabilities.
The first
attempt at legislation designed to enable this form of participatory governance
came about with the Ontarians with
Disabilities Act, 2001 (ODA).[3]
Systematic discontent and a grassroots movement by the disability community
eventually led to the development of legislation with more enforcement
potential –namely, the Accessibility for
Ontarians with Disabilities Act, 2005 (AODA).[4]
Both statutes, but especially the AODA, show a radical
shift in the process of developing laws in terms of incorporating citizen
participation. Under the AODA, regulations are finalized by the responsible
Minister and enacted by the Lieutenant Governor in Council after the content of
those regulations have been agreed upon and put forward by committees comprised
of persons with disabilities, industry, government and other affected
stakeholders. The legislation therefore adds a new dynamic to the creation of
regulations in Canada. The degree of citizen participation is much more
extensive, more formal, and lengthier than what is typically used for the
development of regulations.[5]
More
importantly, this new form of consultation process seeks to bring together
opposing views in a deliberative democratic battleground with the reality of
regulations built on consensus or compromise.
In addition to the two Ontario statutes noted above, accessibility
standards legislation has now also been enacted in the province of Manitoba.[6]
The new consultation model was prompted by dissatisfaction with the
existing approach to remedying disability discrimination. Prior to the
enactment of the ODA and the AODA, individuals who suffered disability
discrimination had, as their only source of redress, the option of filing a
complaint before an administrative body or a court.[7]
With respect to administrative bodies, human rights commissions and tribunals
exist in every province and territory and at the federal level. The aim of
these statutory administrative bodies is to achieve transformative change in
society by remedying disputes in which discrimination has been alleged.
Statutory human rights bodies fit within a swath of administrative actors in
Canada that can be described as reactive regulatory bodies.
I use the term
reactive regulation to represent the idea that regulation by
these administrative actors is triggered only in response to a complaint by an
aggrieved party. These bodies are not inquisitorial or investigative.
They do not rely on the initiative of the administrative actor to initiate a
search for wrongs and to remedy them. More importantly, they are also not
forward-looking beyond the parties in the dispute. For example, a human rights
commission or tribunal may provide systemic remedies when a workplace has been
found to have violated the right to be free of
discrimination. In such a case, the systemic remedy may involve training at the
workplace about discrimination and a requirement that the training be ongoing
over a period of time. However, although the remedy is systemic (in that it
aims to address an underlying repeated behaviour of
discrimination in the workplace) and forward-looking (in that it takes place
over time and hopes to prevent future occurrences), it is rooted in the unique
circumstances of the conflict that prompted the human rights commission or
tribunal’s involvement.
It is also confined to the workplace where the incident occurred. In
other words, reactive regulation, as established by the statutes enabling human
rights bodies in Canada, provide remedies only in discrete situations, as
opposed to setting blanket standards.[8]
In addition to the limited remedial scope, members of the disability
community were also concerned about the costs of bringing complaints over
disability discrimination within the human rights system.
In some
instances, human rights statutes do not allow for the complainants to be
awarded the costs of their litigation.[9]
Moreover, persons with disabilities often live below the poverty line.[10]
The cost of litigation can be quite high and therefore out of reach for many
persons with disabilities. Finally, many of the complaints that are brought
through the reactive human rights process are settled due to an emphasis on
alternative dispute resolution, particularly mediation, that
has blossomed in the past two decades.[11]
Mediated files
result in settlements that are generally sealed. This means that the resolution
may not be known beyond the parties and certainly cannot be used as precedent
in later similar cases. In short, despite the existence of human rights codes
and the administrative actors mandated to implement them, their impact on
persons with disabilities was not significant. This is because of inherent
barriers posed by the remedial nature of the system, costs, and the increase of
closed mediated settlements.
As mentioned
earlier, in Canada, it is also possible to file an action in court under the Canadian Charter of Rights and Freedoms
(Charter) for disability
discrimination.[12]
In such cases, a remedy is sought against the government (actions against
private parties for human rights violations are not possible under the Charter), and under the equality
section, which provides for freedom from discrimination.[13] Concerns about the limited scope of
remedies, costs and alternative dispute resolution exist equally with respect
to the Charter. There is also an
additional concern over past governmental delay in implementing Charter remedies to rectify disability
discrimination.[14]
Persons with
disabilities therefore sought a new method through which the eradication of
disability discrimination and the concomitant goal of social transformation
could be achieved. In contrast to the complaint-triggered human rights system,
regulations setting standards of accessibility were seen as a desirable
complementary tool to assist in lowering instances of disability discrimination
and developing a society that is more inclusive of persons with disabilities.
I use the term
proactive regulation to describe this
approach as it aims to break down discriminatory barriers before individuals
suffer discrimination. In this way, the proactive regulatory system skirts the
need for at least a portion of disability discrimination claims to be brought
to human rights agencies and the courts.
One question
that arises with the new proactive regulatory system is how well it works –
both from a perspective based on regulatory theory and from the perspectives of
persons with disabilities and others whom the change affects. In this paper, I
seek to address only the first question.[15]
In order to examine the efficacy and shortfalls of the proactive regulatory
system, I analyze the legislation and consultation processes of the
standard-setting regulations through the framework of Cass Sunstein’s
Valuing Life: Humanizing the Regulatory
State[16].
In Part I of
the article, I present a detailed and comparative description of the statutes
in Canada that provide for citizen participation in the development of
disability access standards. In Part II, I set out Sunstein’s
framework of analysis for humanizing the regulatory state.
Then, using empirical
examples primarily drawn from Manitoba’s consultations during the development
of its customer service standard, I apply the analysis to demonstrate that the
Canadian regulatory legislation and consultative processes succeed, to varying
degrees, in: i) capturing qualitatively diverse goods
and promoting sensible trade-offs among them, ii) taking account of values that
are difficult or impossible to quantify, and iii) attempting to benefit from the dispersed
information of a wide variety of human beings. The legislative wording and
consultation documents reveal that there may be room for intuition rather than
a disciplined analysis to inform the ultimate development of the regulations. I
argue, however, that any unclear aspects of the legislation can and should be
clarified through further consultative dialogue rather than analysis based on
monetary valuation.
Canadian
federalism divides legislative jurisdiction between the federal government and
the provinces. The provincial governments that have decided to enact disability
access legislation have chosen to address accessibility barriers in areas that
fall within the provincial legislative authority of the Constitution. These areas are: customer service,
employment, information and communication, and the built environment. The
current legislation aims to counteract attitudinal barriers as well, such as
stigmas surrounding mental illness.
In addition to
Ontario and Manitoba, which have already enacted accessibility standards
legislation, the province of Nova Scotia has presented plans to create a
similar law.[17]
British Columbia has adopted an inclusive approach to improving accessibility
in the province, which involves engaging citizens in disability related policy
discussions.[18]
The province
has also committed to considering options for a “made-in-B.C.” approach to accessibility-related
legislation.[19] Even more recently, there has been literature
from the federal government indicating that it will enact a federal statute to be
called the Canadians with Disabilities
Act.[20]
Although the precise issues that the federal statute will address have not yet
been revealed, given the nature of Canadian federalism, the statute could serve
to support initiatives taken by the provinces or address slightly different
concerns such as employment of federal employees, trans-provincial transportation,
and health care.
This Part of
the article first
presents a comparative overview of the two Ontario statutes-the ODA and the
AODA, and then a comparison between those statutes and the accessibility
legislation in Manitoba, The
Accessibility for Manitobans Act (AMA)[21].
The purpose of this Part of the article is to provide background on the issues
addressed by existing Canadian accessibility legislation and the means by which
it contemplates citizen participation. For each statute, background information
is first provided, including any unique historical information about the Act. A
discussion of the purpose of the statute, its guiding principles and its
underlying values then follows. This is
rounded out by a sketch of the nature of the obligations set out by the
statute, as well as an examination of both the duty to consult with persons
with disabilities and the nature of the consultation process established under
the statute.
This section presents an analysis of the Ontarians with Disabilities
Act, 2001 (ODA) as it existed between its enactment on December 14, 2001
and December 1, 2015. During that time, only one section was modified: the
provision establishing offences under the Act and prescribing monetary
penalties was repealed. Interestingly, this provision was repealed before it
was even brought into effect, reinforcing the commonly held perception that the
statute had very weak enforcement teeth.[22]
On December 1, 2015, a number of additional provisions were repealed.[23]
These sections of the ODA were deemed to be redundant once the AODA came
into effect in 2005. They were not repealed immediately, though, due to a
sentiment that it would be wisest to wait until the AODA’s standards had been
firmly put in place before repealing seemingly duplicative legislative
provisions. Today, many of the provisions no longer exist but it is useful to
have knowledge of them in order to have a historical and complete understanding
of citizen participation in the enactment of disability access legislation.
a)
Purpose, Guiding Principles and Underlying Values of the Statute
The Ontarians with Disabilities Act, 2001
(ODA) opens with a lengthy preamble that is not found in the later Ontario
accessibility statute. As with most legislation, the preamble is suggestive,
providing baseline principles for understanding and interpreting the rest of
the statute. The ODA’s preamble begins by emphasizing the nature of the
equality rights that it seeks to promote: the rights of persons with
disabilities to equal opportunity and full participation within the life of the
province of Ontario.
Barriers
experienced by people with disabilities in Ontario are also acknowledged in the
preamble. The preamble affirms that persons with disabilities experience
barriers and recognizes that the number of persons with disabilities “is
expected to increase as the population ages.”[24] The connection between aging and disability
has been highlighted consistently since the province began developing
accessibility standards.[25]
There is only
one strong and clear statement of the government of Ontario’s commitment to
improving the situation of persons with disabilities in the preamble. The rest
of the preamble is supportive of this statement which
asserts that the Government of Ontario is committed to moving towards “a
province in which no new barriers are created and existing ones are removed”[26].
In order to reach this goal, the Government will work with every sector of
society to build on what has already been achieved. Moreover, the preamble
indicates that the government views the goal of removing existing barriers and
avoiding the perpetuation of new ones as a widely shared responsibility among
all geographic regions, institutions, and individuals in the province. It is a
responsibility that “rests with every social and economic sector, every region,
every government, every organization, institution and association, and every
person in Ontario”.[27]
An unusual
aspect of the preamble, not evident in the other Canadian provincial
legislation on disability access, is its emphasis on the Government’s own past
leadership. The preamble contains a list of six Ontario statutes, which,
it boasts, have already been designed or amended to further the equality rights
of persons with disabilities, and the preamble indicates that no rights that
have been granted to persons with disabilities under other statutes or
regulations are to be diminished in any way by the ODA.[28]
Finally, the preamble asserts the government’s support for other jurisdictions
in Canada to identify, remove and prevent barriers to persons with
disabilities.
The underlying
philosophy of the legislation rests on the idea of bringing persons with
disabilities into the public policy realm to discuss the barriers that need to
be addressed. This philosophy becomes evident when one reads the purpose
statement of the ODA which indicates that “the purpose
of this Act is to improve opportunities for persons with disabilities and to
provide for their involvement in the identification, removal and prevention of
barriers to their full participation in the life of the province”. [29] This purpose statement brings together the
ideas of the preamble.
b)
Obligations and Consultation under the ODA
i.
Obligations
The bulk of
the ODA, as it existed until 2015, set out the access obligations of the
various levels of government. In doing so, it also identified the instances in
which government must consult with persons with disabilities and prescribed how
the consultations must be completed. In comparison to the statutes later
enacted, the duty to consult is limited and the guidance provided minimal.
Obligations
were owed by three sectors of the provincial government: the Government of
Ontario itself, municipalities and “other organizations, agencies and persons”
(which included organizations that provide transportation to the public,
educational institutions, hospitals and prescribed administrative agencies).[30]
In all cases, the nature of the obligation was to provide accessibility but the
essence of the obligation and the manner in which the obligation was to be
carried out varied depending on the subject matter. For example, the Government
of Ontario was responsible for ensuring accessibility with respect to the built
environment (buildings, structures and premises), goods and services, Internet
sites, employees, capital programs and accessibility plans within all
government ministries.[31]
In relation to the built environment, the government’s obligation was to ensure
that guidelines were created in order
to provide barrier-free access to buildings, structures and premises.[32]
The guidelines
were created in consultation with persons with disabilities and others. The
guidelines had to ensure that the level of accessibility was at least the same
as what was provided under the province’s Building
Code. The ODA allowed the government to set up a time frame by which the
building etc. must meet the guidelines, although it did not set out any
sanction for failure to comply. There was therefore a very detailed set of
steps that formed the collection of the Government’s obligations. By contrast,
when it came to the purchase of goods and services, the government was simply
obligated to “have regard to the accessibility for persons with disabilities to
the goods or services.”[33]
Unlike its responsibilities with respect to the built environment, there was no
duty to consult with persons with disabilities, to set guidelines, etc. One
sees a similar pattern within the other two government sectors.
ii.
The
Duty to Consult with Persons with Disabilities
The words
“consult” or “consultation” come up only 10 times in the ODA as it existed
between 2001-2015, which is rather surprising in light of the proactive
orientation of the statute reflected in its purpose statement. Many have
criticized the ODA for not having sufficient enforcement teeth.[34]
In my opinion, the Act may also be criticized for failing to provide a
significant number of consultation opportunities. Moreover, the consultation
opportunities that were available provided inconsistent levels of engagement
with the disability community, suggesting reticence on the part of the
legislature to fully engage in citizen participation. Much fuller opportunities
for consultation appear later in the AODA as well as in Manitoba’s AMA.
The
consultation opportunities designed by the ODA can be classified into four
categories. These categories represent situations in which the government
sector was obliged to participate in: i) direct
consultation, ii) indirect consultation, iii) no consultation or iv) consultation
on direction or through request. Direct consultation refers to instances where
a government sector must consult with persons with disabilities under the Act
in order to complete the statutorily required accessibility task. The
Government of Ontario’s responsibility to develop barrier-free design
guidelines for buildings, structures and premises, discussed above, provides an
illustration. The relevant ODA provision reads :
« 4. (1) In consultation with
persons with disabilities and others, the Government of Ontario shall develop
barrier-free design guidelines to promote accessibility for persons with
disabilities to buildings, structures and premises, or parts of buildings,
structures and premises, that the Government purchases, enters into a lease
for, constructs or significantly renovates after this section comes into force. » [35]
In keeping with the rest of the statute, there is no administrative
sanction or means for redress if this consultation does not take place. There are four
occurrences of direct consultation under the Act. Outside of barrier-free
design guidelines for ‘buildings, structures and premises’, public
transportation organizations, educational institutions and hospitals were required
to consult directly with persons with disabilities and others in preparing an
accessibility plan.
Indirect consultation denotes circumstances where the Act requires the
government sector to consult with a committee or other body established to
represent the interests of persons with disabilities. For example, every
government ministry was required to consult with the Accessibility Directorate
of Ontario while creating its annual accessibility plan.[36]
The Accessibility Directorate of Ontario is an office of civil servants
established by legislation to support the administration of the statute under
the direction of the responsible minister.[37]
There is no requirement that persons with disabilities be among the
employees appointed to this office. Indirect consultation may also signify an
obligation imposed on the government sector to consult with persons with
disabilities because a representative committee has not been established under
the Act for legitimate reason. For example, in preparing its annual accessibility
plan, every municipal council was required to seek the advice of the
municipality’s accessibility advisory committee. However, municipalities were
exempt from establishing accessibility advisory committees if they had a
population of less than 10,000 people.[38]
In such cases, a municipality without an accessibility advisory committee would
be required by default to consult with persons with disabilities directly.[39]
In many
instances, no consultation was required. For example, the Government of Ontario
could make decisions respecting the purchase of goods or services without
having to consult with persons with disabilities or a representative committee.
The government was required only to “have regard” to access for persons with
disabilities in relation to the goods and services procured. Moving even
further along the spectrum of consultation, it was possible for a government
sector to avoid providing access in certain cases such as where it determined
that it was not technically feasible to create accessible Internet sites.[40]
Finally, with respect to consultation on direction or through request,
situations existed under the statute where consultation would take place only
on direction of the responsible minister. For example, at his or her
discretion, the Minister could instruct the Accessibility Directorate to
consult with persons with disabilities in order to develop codes, standards,
guidelines etc.[41] One
final situation in which a similarly weak form of consultation would take place
was when a person with a disability requested
access, obliging the government sector to consider the request. There was only
one instance of this type of circumstance in the statute. It dealt with
government publications and obliged the Ontario government to make publications
available in a format accessible to the person who made the request unless it
was not technically feasible to do so.[42]
In conclusion,
the underlying philosophy of the ODA is to bring persons with disabilities into
decision-making processes for the creation of guidelines etc. on accessibility.
The statute aims, ultimately, to concretize the equality rights guaranteed
under the human rights statutes of each province and territory and the
constitutional right to equality for persons with disabilities. However, the
obligations imposed on the government vary according to the circumstance.
Moreover, the right to consultation itself comprises four categories on
a spectrum with only a few instances of direct consultation with persons with
disabilities themselves. There was also no enforcement mechanism under the ODA
to ensure that government complied with the outcomes (whether they be
accessibility guidelines, plans, or barrier-free design) once they had been
established. Some of these issues were addressed by another Ontario statute
developed later and which will be discussed next, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA).
Four years
after the ODA was enacted, the Accessibility
for Ontarians with Disabilities Act, 2005 (AODA) received royal assent. The
AODA provides stronger tools than the ODA for enforcing the obligations it sets
out. It also places obligations on for-profit businesses and organizations — a
move that is more in keeping with the statutory human rights codes. The human
rights codes apply in both the public and private sectors. Surprisingly, the
AODA was passed during the term of the conservative government as opposed to
the earlier statute which had been passed by the more
progressive New Democratic Party.
a)
Purpose, Guiding Principles and Underlying Values of the Statute
Similar to the
ODA, the AODA shares an underlying philosophy of engaging citizens in the
development of laws, policies and programs that affect them. There is no
distinct preamble in the statute. Instead, there is a short and precise
statement of purpose that recognizes the “history of discrimination against
persons with disabilities in Ontario”.[43]
The statement specifies further that the purpose of the statute “is to benefit
all Ontarians” through the development, implementation and enforcement of
accessibility standards, and to involve persons with disabilities, government
and industry in the process of developing the standards. It is worth setting
out the purpose statement in full. It lays the foundation and underlying theory
for: the statute, the terms of reference
for the standard development committees and other committees, and all other
regulations and delegated legislation authorized by the statute. The purpose
statement reads :
« Purpose
1. Recognizing the history of
discrimination against persons with disabilities in Ontario, the purpose of
this Act is to benefit all Ontarians by, (a) developing, implementing and
enforcing accessibility standards in order to achieve accessibility for
Ontarians with disabilities with respect to goods, services, facilities,
accommodation, employment, buildings, structures and premises on or before
January 1, 2025; and (b) providing for the involvement of persons with
disabilities, of the Government of Ontario and of representatives of industries
and of various sectors of the economy in the development of the accessibility
standards. »[44]
“Accessibility
standards” are a central tool in this legislation. They are legal instruments
designed to set out measures, policies, practices, etc. for the eradication and
prevention of barriers affecting persons with disabilities in prescribed areas
of society.[45]
The social areas that are prescribed in the statute mirror the areas of
protection in the Ontario Human Rights
Code. [46]
They are: goods, services, facilities,
accommodation, employment, buildings, structures and premises. However, the AODA offers
the opportunity for additional social areas to be identified and protected as
well, by indicating that “such other things as may be prescribed” may also be
the subject of accessibility standards.[47]
Like accessibility standards, barriers
are also at the heart of the legislation. Under the AODA, a “barrier” means
anything that prevents a person with a disability from fully participating in
all aspects of society because of their disability, including a physical
barrier, an architectural barrier, an information or communication barrier, an
attitudinal barrier, a technological barrier, a policy or a practice.[48]
Barriers have wide-reaching scope, and their removal aims to facilitate social inclusion.
Although the concept of a “barrier” had been mentioned in the earlier ODA, it
is developed in detail for the first time in the AODA. The AODA highlights the
concept of widespread
and enforceable barrier removal for the first time in the legislative sphere of
laws affecting persons with disabilities in Ontario.
b)
Obligations and Consultation under the AODA
i)
Obligations
Obligations
are imposed on the persons or organizations named or described in each
accessibility standard. These persons or organizations are required to
implement the measures, policies, practices or other requirements set out in
the standard within the time periods specified.[49]
Unlike the ODA, which had varying obligations depending on the issue, the AODA
simply obliges those subject to a standard to follow its requirements. The
standards, in turn, have been developed with the input of stakeholders representing
persons with disabilities, government and industry. They may have variety or
unevenness depending on the topic or issue, but the lack of consistency is
theoretically sanctioned by stakeholder approval.
To date,
standard development committees have created standards in each of the five
areas identified by the Minister shortly after the AODA came into force: customer service, transportation, information
and communications, employment, and the built environment.[50] A
current and significant challenge, though, concerns enforcing the obligations
under the standards that have been created. The statute indicates that the
obligations are binding and that the goal of the legislation is to make the
province accessible by 2025.[51]
However, on the ground, there are lapses in compliance caused in part by
weaknesses in enforcing inspections and other oversight tools that are at the
disposal of the government.[52]
The ability to order inspections of businesses that have not complied with the
standards lies within the discretion of the government’s ministry and, in
particular with the Accessibility Directorate of Ontario. Two years after the
first filing due date, 70% of companies had not filed a report, representing
36,000 businesses across the province. They also had not been audited. As of
2016, only four violations have been brought before the responsible tribunal.[53]
Clearly, if the legislation is to have an impact, the enforcement and/or
incentive piece needs to be rethought.
ii.
The
Duty to Consult with Persons with Disabilities
The duty to consult is extensive under the AODA. The instances in which
affected citizens may participate are more numerous, rigorous and consistent
than they were under the ODA. In contrast to the ODA, every standard is
developed by a standard development committee which
puts together the first version of the regulations. The statute states: “the
Minister shall establish standards development committees to develop proposed
accessibility standards which shall be considered for adoption by regulation”.[54]
The standard development committees must comprise persons with
disabilities, representatives from government and the industries that will be
affected, and any other person or organization that the Minister deems to be
advisable.[55] The
deliberations leading to the development of the standards under the AODA are
therefore based on consultative dialogue within the committees. The draft
proposed standard is also put out for public consultation before being
submitted to the Minister for final approval.[56]
The members of the public who are involved in consultation under the AODA
therefore represent a much wider cross-section of the general public than under
the earlier statute, the ODA.
Both the Chair and the standard development committee
members are selected by the responsible minister through an application process
that is open to the public. But, as with many other areas of government
and administrative law, the minister’s selections may have a profound influence
on the outcome of the consultation processes.
The process by
which the consultations take place may be found in the terms of reference for
each of the standard development committees. The terms of reference are soft
law documents, created by ministerial discretion. The terms of reference for
the five complete standards are now in the archives but at the time that each
committee started its work, they were posted on a government website dedicated
to the AODA.[57]
Consensus is
required for committee decisions but is defined in a way that does not require
unanimity. The terms of reference indicate that consensus means “substantial
agreement of members, without persistent opposition, by a process taking into
account the views of all members in the resolution of disputes”.[58]
On the ground, it is likely challenging to determine if this malleable standard
has been satisfied.
In addition, the terms of reference indicate under “Member Rules and
Responsibilities” that every member of the committee has an obligation to
present their views and interests and those of the organizations that have
endorsed them, to the best of their ability at all committee meetings.[59]
The Chair, by contrast, has a duty to “encourage the balanced analysis of all
relevant issues and questions from a variety of perspectives”.[60]
The Chair’s responsibilities are to be completed in a nonpartisan and impartial
manner.
In conclusion,
the AODA’s language presents a strong commitment to citizen participation in
the development of an accessible province. In comparison to the ODA, the AODA
has more expansive and rigorous obligations, and expressly provides for persons
with disabilities, representatives of government and industry to play a
principal role in developing the standards. Moreover, the general public has a
chance to participate through a notice and comment type review of the draft
regulations prepared by the stakeholders in the standard development
committees. Challenges on the ground
have related to enforcing compliance through governmental discretion. The use
of a soft consensus within the standard development committees and of
ministerial discretion to choose the heads of the committees may also prove
challenging.
The Manitoba
Legislature enacted the AMA in December, 2013. It
largely follows the model of the AODA in its general idea of incorporating the
participation of persons with disabilities and other stakeholders in creating
standards. However, it also contains marked differences that show an effort to
improve upon the potential of accessibility legislation to effect social
change, and to tailor the statute to local issues.
a)
Purpose, Guiding Principles and Underlying Values of the Statute
The purpose of the Accessibility for Manitobans Act (AMA) is
to achieve accessibility in five main areas of social interaction: employment,
accommodation, the built environment, the delivery and receipt of goods,
services and information, and prescribed activities or undertakings. There are
three distinct differences from the AODA with respect to this list of areas.
First, while the purpose section of the AODA specifies that one of the goals of
the Act is to achieve accessibility in relation to “buildings, structures and
premises”, it does not mention transportation in the
statute itself. The fact that accessibility standards were created in Ontario
with respect to transportation is a result of ministerial discretion. By
contrast, the AMA specifies that the concept of the built environment includes public transportation and
transportation infrastructure,[61]
placing a clear, positive responsibility on government to ensure that
transportation accessibility is addressed through regulatory standards.
A second difference from the AODA is
that the AMA explicitly refers to the delivery and receipt of information within its purpose section,
bringing attention to the importance of communication and information sharing
with the disability community.[62]
“Information and communication” is repeated in the section of the Act
identifying examples of barriers.[63] By
contrast, the purpose section of the AODA does not include “information”,
though it is included in the list of examples of barriers. [64] The
list of barriers is otherwise close to identical in the three statutes (the
ODA, AODA and AMA).[65]
Finally, the notion of preventing and removing barriers with
respect to “a prescribed activity or undertaking” is not present in the earlier
accessibility laws. This is a useful phrase that captures well the idea that new activities and undertakings may be the subject of
accessibility standards at any time.
With respect to its underlying values, the AMA presents a
distinctively modern understanding of the experience of inaccessibility faced
by persons with disabilities. The statute uses the expression “persons disabled
by barriers” throughout. “Persons disabled by barriers” is not an expression
used by any of the preceding accessibility statutes in Canada but one that is
firmly anchored in the social model of disability as it locates the source of
disablement and inequality in the sociopolitical environment as opposed to
locating it within the medical impairment of the individual. [66]
The more standard, “persons with disabilities” has generally
been adopted by legislators in the provinces and territories across
Canada.
In addition to the use of progressive language, the AMA
presents broader, more humanistic reasons for achieving accessibility in the
province than what is seen in the ODA and AODA. For example, the preamble of
the AMA asserts that achieving accessibility will result in improvements to the
health, independence and well-being of individuals disabled by barriers and
that the wide range of obstacles prevents the attainment of equal
opportunities, independence and full economic and social integration. The
preamble also draws attention to the familiar idea that we are all temporarily
able-bodied by recognizing that “most Manitobans will confront barriers to
accessibility at some point in their lives”[67] . Finally, there is an emphasis on the costs of inaccessibility which is not seen in any of the previous
accessibility statutes in Canada. The AMA articulates a concern that
accessibility barriers create considerable costs to people disabled by them, as
well as to their families, friends, communities and the general economy. The underlying
philosophy of the AMA is therefore deeply rooted in the well-being of persons
disabled by barriers, emphasizing that the persistence of these barriers has an
impact not only on persons disabled by barriers but also on the general
community.
Statutory interpretation of the AMA and standard development are to be
guided by the respect of four essential principles — access, equality,
universal design and systemic responsibility.[68]
The concept of access refers to barrier-free access to places and events and to
other functions generally available in the community. Although there are a few
key conceptions of equality in human rights law, [69]
equality of opportunity and outcome are those on which the statute
rest. The statute further emphasizes the importance of providing
accessibility based on universal design. Finally, the AMA focuses on systemic responsibility which is the idea that the person or
organization responsible for establishing or perpetuating the barrier also has
the responsibility to remove and prevent those barriers. Again, as with the use
of progressive descriptors, and the emphasis on humanistic reasons for
eradicating barriers and improving accessibility, the AMA’s guiding principles
add a new element to the accessibility laws in the country not seen in earlier
accessibility statutes.[70]
It is clear that the policymakers wanted to ensure that the
enactment of the AMA did not excuse obligations that already existed under
other equality rights instruments (such as the provincial Human Rights Code[71]),
and that the legislation is in keeping with the UN Convention on the Rights of Persons with Disabilities[72].
Finally, there is a strong commitment to have a “Made-in-Manitoba” perspective
engrained in the legislation and the standards created under the AMA. This idea
was clearly and repeatedly stressed in the discussion papers and other
documents leading up to the creation of the statute and of the customer service
standard.[73] Although its depths and limits are not fully
delineated, at least two ideas emerge from this material as to the meaning of
this phrase. First, Manitobans wanted to ensure that the legislation addresses
problems that are prevalent to Manitobans with disabilities. This means that
even if a similarly described problem exists in Ontario, the response in
Manitoba will be tailored to ensure that it is the Manitoba experience that is
addressed. The second idea is that the legislation should complement the family
of legislation that already exists in Manitoba to address issues of social
inclusion for persons with disabilities. The discussion paper leading to the
creation of the AMA outlines, for example, the province’s experience of
developing a consultative strategy to create an age-friendly initiative in
Manitoba.[74]
The AMA will expand on this initiative,
partly by ensuring that seniors are involved in the consultation so that there
is recognition of access issues faced by seniors as well.
b)
Obligations and Consultation under the AMA
i.
Obligations
Under the AMA,
accessibility standards are established by regulation and identify the persons
or organizations that are subject to them.
The AMA indicates also that each standard will set out the requirements
and any applicable time frames.[75]
In keeping with the purpose section, which outlines the areas where
accessibility is to be achieved, the statute specifies that an accessibility
standard may apply to a person or organization that employs; offers
accommodation, owns, operates, maintains or controls an aspect of the built
environment; provides goods, services or information ;
is engaged in a prescribed activity or undertaking; or meets other prescribed
requirements.
The AMA’s
scope of application is very similar to the AODA. It clarifies, however, that
owners and occupiers of residential premises with two or more dwelling units
are expressly exempted from application of the Manitoba statute.
Persons and
organizations, including public sector bodies are subject to the Act. They have
an obligation to prepare and keep records in accordance with the requirements
of the standards, to make those records available for inspection and
examination if called upon to do so, to comply with accessibility standards
within any time period specified and, generally, to cooperate with directors
and inspectors, refraining from making false or misleading statements and
records, reports or otherwise.[76]
Failure to fulfill these obligations can lead to a finding of guilty of an
offence under the AMA and a maximum fine of $250,000.[77]
The
responsible minister also has a duty to raise awareness about disabling
barriers, to promote and encourage the prevention and removal of barriers and,
generally, to ensure that accessibility standards are developed and implemented
smoothly.[78] These are strong positive obligations wisely
placed within the text of the statute itself. Equivalent responsibilities for
the responsible minister do not appear explicitly in either of the two Ontario
accessibility statutes. However, the responsible minister who decides to carry
out such functions may delegate them to the Accessibility Directorate of
Ontario.[79]
ii.
The
Duty to Consult with Persons with Disabilities
In Manitoba,
the process for creating accessibility standards starts with the responsible
minister’s terms of reference.
Significant emphasis is placed on the terms of reference. Unlike the
terms of reference under the AODA which do not require much detail outside of
the deadlines by which various stages of the standard development process must
be completed, the terms of reference under the AMA must specify the sector,
persons or organizations that may be made subject to the Act.[80]
This is a questionable development. It may save time but it eclipses democratic
deliberation over a fundamental element of any standard: who will be subject to
it.
The Accessibility
Advisory Council has the authority to create the standard development
committees unlike the AODA which gives this power to
the minister. The AMA does not specify the composition of the standard
development committees. By contrast, it specifies that the Accessibility
Advisory Council must contain 6 to 12 members chosen from the disability
community and sectors, persons or organizations that may be affected by
accessibility standards.[81]
Consultation must take place between the Accessibility Advisory Council,
persons disabled by barriers or representatives of their organizations, members
of the sectors and government that may be made subject to the proposed standard
and anyone else that the minister considers advisable.
The process
for creating the standards is very similar that of the AODA, including a
requirement of substantial consensus[82]
and the notice and comment period for the draft standard.[83]
We have now
seen a detailed and comparative overview of accessibility legislation in
Canada. How well does this regulatory process featuring citizen participation
work? One way to examine the effectiveness of the legislation is to do so
through a framework of analysis based on regulatory theory.
In his 2014
book, Valuing Life: Humanizing the
Regulatory State[84], Harvard law professor, Cass Sunstein asserts that governments should focus on the human
consequences of their actions. In creating regulations, they should consider
factors such as the effects of their actions or inaction; the number of lives
that would be saved, if any; whether people will be burdened and, if so, the
extent to which they will be burdened; and who exactly will be helped and/or
hurt.[85] Sunstein suggests that governments “seek a method to allow
them to make sensible comparisons and to facilitate choices among values that
are difficult or impossible to quantify, or that seem incommensurable.”[86]
Furthermore, a wide breadth of knowledge should be brought into the
decision-making process. It is important for governments to go beyond the
knowledge that they acquire from their public officials. Humanizing the
regulatory state requires them to seek knowledge from citizens as well.[87]
The question, of course, is how to go about achieving these objectives.
When it comes to determining the consequences of regulations made, evaluating
factors such as the effects of actions or the number of lives that would be
saved may impose significant information-gathering obligations on government
officials. Moreover, how does one value certain benefits or losses? By what
method can one assess the value of preventing prison rape, protecting privacy
or — an example provided by Sunstein and that fits
rather aptly in the context of accessibility standards — providing wheelchair
users independent access to public washrooms? Sunstein
argues for the use of a breakeven monetary analysis. While he accepts that
goods may be qualitatively diverse in the same transaction (for example, money
and the dignity of avoiding prison rape; or money compared to the dignity and
equality of social inclusion for persons with disabilities), Sunstein contends that pinpointing some sort of monetary
value will provide transparency to the government’s decision-making process in
creating regulations. He proposes that it should be possible to determine upper
and lower bounds for non-quantifiable goods and that these upper and lower
boundaries will help to promote sensible trade-offs.[88]
For example, it may be possible to determine the lowest and highest amount that
a person with a mobility disability would be willing to pay to have access to
washroom facilities.
At the same
time, Sunstein recognizes that there may be questions
about the appropriateness (including the morality) of such comparisons, and
that there may be broader social goals, such as distributive justice or the
recognition of equality, that motivate a government to regulate. Nevertheless, Sunstein suggests, that even in such circumstances, an
economic breakeven analysis should be performed because it helps to explain why
the case is difficult and what information could be helpful, if present. Sunstein writes: “In some cases, however,
agencies will not be able to identify lower and upper bounds in any way, and
breakeven analysis will be helpful largely insofar as it explains what information is
missing and why some cases are especially difficult.”[89]
Overall, Sunstein argues that to humanize the regulatory state, it
is necessary for governments to: i) take account of values that are difficult or impossible
to quantify; ii) capture qualitatively diverse goods and promote sensible
trade-offs among them; and iii) attempt to benefit from the dispersed
information of a wide variety of human beings. [90]
In his opinion, if these steps are taken, the result will be regulations based
less on intuition and more on disciplined analysis as to what is justifiable.
Using
qualitative empirical examples drawn from Manitoba’s consultation hearings and
AODA legislation and policy, I illustrate in the next and final part of this article,
that existing consultative processes for accessibility legislation succeed to
varying degrees in: i) capturing qualitatively
diverse goods and promoting sensible trade-offs among them, ii) taking account
of values that are difficult or impossible to quantify, and iii) attempting to
benefit from the dispersed information of a wide variety of human beings. I
argue, however, that Sunstein’s proposal to value
life through monetary means poses significant problems on the ground in the
context of disability access standards.
Examples from
the Accessibility for Manitobans Act customer
service standard consultation process illustrate that there are circumstances
where quantification would be impossible, inappropriate and/or would prove
unhelpful to the regulatory process. There are also instances where regulations
within disability access standard-setting and similar processes appear to be
based on intuition. As a response to both instances, I suggest that providing a
process for clarification and the space for further dialogue among stakeholders
provide equal, if not more, appropriate potential for advancement than
attempting to quantify the issues.
Cass Sunstein asserts that in order for
governments to focus on the human consequences of their regulatory actions,
they must take into account values that are difficult or impossible to
quantify. There is no doubt that the accessibility standard-setting processes
set up by the Canadian provincial governments take account of such values. In
essence, they deal with equality rights– specifically equal access, equal
opportunity and equality of well-being. Some
disability scholars would argue that these equality rights also represent a
move towards true citizenship within the community for persons with
disabilities.[91]
The areas set out by the government in which standards are to be developed
(customer service, transportation, information and communications, employment,
and the built environment) also all inherently deal with qualitative values
such as respect, dignity, time, appreciation and safety, that are difficult to
quantify or escape quantification altogether.
In the development of the customer service standard in Manitoba, a
discussion took place
during the public hearings on
whether training materials for customer service representatives in
retail stores should simply be adopted from Ontario where a regulation had
already been made.[92]
The representative from the Retail Council of Canada was of the
opinion that adopting the material from another province was an opportunity for
store owners with chain stores across the country to
have one uniform training standard. The implication was that it would therefore
be easier in terms of the time taken to train customer service representatives,
especially if done collectively. By contrast, a representative of a prominent
national disabled women’s network spoke up to indicate that the Ontario
standard had not been tested fully at and that she had experienced a lot of
insensitivity on the part of retail store clerks. Her point was that she did
not want the perpetuation of this type of insensitivity to be spread across the
country when it could be halted by reassessing and evaluating what was done in
Ontario and possibly developing more effective standards, if necessary, in each
province.
The ultimate
determination by the Manitoba Customer Service Standard Development Committee
was forced to take into account both the time it takes to train employees
nationally, which is possibly quantifiable, and the “insensitivity” (indignity)
that the disabled population would like to escape and denounce. The second of
these is certainly beyond quantification, dealing as it does with a complex
interrelation of values such as social interaction, protection of dignity and
degradation. This example illustrates not only Sunstein’s
humanizing approach in action but also some of the finer aspects of the
challenge of valuing non-quantifiable goods.
Sunstein emphasizes the importance of
transparency and accountability within the regulatory process. To make sensible
trade-offs among qualitatively diverse goods in a transparent and accountable
fashion, he asserts that quantification is the most useful tool. He also
asserts that quantification should not be an unfamiliar tool to the everyday
person as this sort of economic balancing is used often in everyday life. Sunstein writes: Quantification helps to promote
accountability, transparency, and consistency, and it can also counteract both
excessive and insufficient stringency. When regulators quantify and monetize
relevant goods, the goal is to promote sensible choices, not to erase
differences among qualitatively distinct goods. Nor should this point be
unfamiliar from daily life. People decide how much to spend to educate their
children, on health insurance, to reduce risks on the highway (as, for example,
by purchasing especially safe cars), on food, on housing, and on vacations. When
they make trade-offs among these and countless other diverse goods, they do not
pretend that they are qualitatively identical.[93]
In the disability
context, however, qualitatively distinct goods can invite manifold answers as
to what a “sensible” trade-off might be. Quantification may be one possibility
for determining the best outcome. However, it would appear that asserting that
one outcome is more “sensible” than another really requires a more thorough
canvassing of what “sensible” possibly means. A discussion of this nature would
be wise to explore questions such as: Whose concept of sensible is most
appropriate and why? What power dynamics are at play? And will any regulatory
avenue promote and preserve dynamics that counter the pursuit of equality for
persons with disabilities? I argue that it is more effective to capture
qualitatively diverse goods and then to focus on the deeper foundational
question of why any one choice or preference may be the most appropriate.
Promoting further discussion on the very nature of why any one preference
should be chosen over another should be at the heart of the regulatory process.
To provide an
example, consider another discussion that ensued at the public consultation
hearings over the proposed Manitoba customer service standard. An individual
from a postsecondary institution raised the question of who should fall within
the definition of “customer” in the context of educational institutions. She
indicated that it was quite clear that customer service is offered to the
students being taught in class. She did not have an issue with that. She
wondered, though, whether the definition of “customer” had a particular
geographic reach. For instance, would the definition apply to students using
gym facilities? She wondered also whether the standard would regulate the
post-secondary institution’s interaction with any person who entered the campus
(a connection in personam).
An approach
based on Valuing Life would strive to
assign an economic value to each of what I have termed the geographic and in personam options.
The valuation may be based on a percentage of the total wages of staff at the
post-secondary institution who would serve persons
with disabilities in these two contexts. It may also bring into account any
extra time that assisting might take, translating that extra time into a
monetary value as well.
By contrast,
the approach that I suggest would invite all stakeholders to a further
discussion over what an appropriate interpretation of “customer” should be.
Already, a couple of key concepts can be seen from the hearing. For instance,
another member of the public who was at the hearing spoke up in order to
emphasize that the customer service standard was about equal access. A second
individual shared a story illustrating the barrier presented by inaccessible
recreation facilities for parents with disabilities who want to participate in
watching their children play sports so that they can support their children
along with the other parents. If substantive equality is to be taken seriously,
then an argument that favours a broader view of equal
access, particularly one that allows children at a school to receive support
from their parents with disabilities as visitors to the campus should be
promoted. A monetary approach would not have caught or addressed these nuances,
leading to a result that may not resonate with those affected.
Sunstein’s theory highlights the importance of
having a broad range of views that extends past the public service informing
regulatory choices. There is no doubt that the regulatory processes for the
development of accessible legislation in Canada reflect this approach. The
terms of reference for the AODA Customer Service Accessibility Standards
Development Committee, for example, state that the committee must: “Consider the full range of disabilities in
identifying barriers in the provision of customer service in Ontario and
develop a proposed Customer Service Accessibility Standard to address those
barriers. Appreciate and advance, in a balanced and fair way, the views and
interests of the diverse Ontario sectors, industries, organizations, groups,
communities and persons with disabilities. […] Accommodate persons with disabilities on the committee in all parts of
the committee process. […]”[94]
A similar
approach has been taken with respect to the reviews of the statute required to
take place every four years.[95]
These reviews have come with terms of reference that allow the appointed
reviewer to decide on the method of consultation. Reviewers who pay attention
to diversity have been appointed. For example, the most recent reviewer paid
attention to ensuring that there was regional diversity and made a place for
tools such as webinars in order to enable persons with disabilities, and those
in remote areas etc. to attend.[96]
Sunstein argues that the above-mentioned regulatory
approach ( i) taking account
of values that are difficult or impossible to quantify; ii) capturing
qualitatively diverse goods and promoting sensible trade-offs among them; and iii) attempting to benefit from the
dispersed information of a wide variety of human beings) will provide a
disciplined analysis and sensible regulatory choices, so long as economic
valuation is incorporated in the balancing equation. It will also limit
regulatory choices that are based on intuitive responses as to what is most
appropriate, moral or just.[97]
The Manitoba public hearing on the proposed customer service standard
presents a number of illustrations where the proposed standard had been founded
on some element of intuition. In these examples, further dialogue led to a more
disciplined analysis. In much the same way, deepening dialogue can promote
sensible trade-offs among qualitatively diverse goods.
Take the question of what counts as “disruptions of service” as an
example. Manitoba’s proposed customer service standard indicated that
disruptions should be brought to the attention of persons with disabilities.
One might assume intuitively that both disruptions in disabled access to the
actual goods and services (for example, a store is shut down temporarily) and
disruptions in services on which persons with disabilities rely (for example
elevators) would trigger action under this provision. Indeed, both
interpretations were raised at the public hearing. However, discussions at the
public hearings revealed that only disruptions of services that are relied on
by persons with disabilities seemed to be caught by the literal words of the
standard. Again, this is an area that requires clarification, a discussion of what
the trade-offs are and how they should be made. Some clarification began at the
hearing with stakeholders highlighting some of the values they saw as central
to the definition. As with defining who is a “customer”, the concept of equal
access was again raised. The discussion of service disruption also brought in
the perspectives of elevator service technicians and store owners discussing
the on-the-ground practicality of putting up notices when such disruptions can
sometimes be very quickly fixed. Quantification would have put a very different
spin on the discussion – one that would have moved the discussion to a more
utilitarian realm, eclipsing the equality debate.
In conclusion,
Sunstein offers a useful framework for beginning to
understand whether regulatory process has been efficient, especially when
dealing with qualitative, and intangible human values that profoundly affect
people’s lives. The development of disability access standards to concretize,
protect and, frankly, act as a vehicle for persons with disabilities to have
fuller connections with society, are precisely the types of issues that fit
within Sunstein’s theoretical framework. However, in
light of on-the-ground examples, there are still very significant issues that
require more guidance before the effectiveness of any such framework can be
fully determined. These are the harder questions such as how to establish what
a “sensible” trade-off might be when one considers qualitatively diverse goods,
whose definition of sensible should count, and what to do if a blended
compromise is not possible. Using what we can of the Sunstein
analytical framework, this discussion has shown that the consultative
regulatory process associated with the development of disability access
legislation in Canada is fairly successful in:
i) capturing qualitatively diverse goods and
promotes sensible trade-offs among them, ii) taking account of values that are
difficult or impossible to quantify, and iii) attempting to benefit from the
dispersed information of a wide variety of human beings. The legislative
wording and consultation documents reveal that there may be room for intuition
rather than a disciplined analysis to inform the ultimate development of the
regulations. When values that are difficult or impossible to quantify are taken
into account, there must be an additional way of determining which path is
appropriate. In such cases, I suggest furthering and deepening the dialogue to
identify and consider questions that relate to issues such as the power dynamics
and implicit negative repercussions to equality.
– « I was aware of the fact that this issue touches people's
lives so profoundly and yet there are very few venues for input. »[98]
In conclusion,
how does one legislate for social change? This has been the central
preoccupation of the movement towards disability access standards legislation.
It is also still a concern as Canadian federal and sub-national governments
move forward through the consultation processes and development of the actual
standards.
It is clear that citizen participation has a significant and important
role in gathering the perspectives of stakeholders who will be affected by the
legislation. This is a positive step as it allows for greater deliberation in
the development of regulations. Stakeholders or their representatives
deliberate and then prepare the proposed first draft of the standards
(eventually to be passed as regulations). Further and broader public input is
brought through the notice and comment period before the regulation is
finalized and enacted. Of course, further research could be done on how
effective these consultations are in giving voice to persons with disabilities.
Challenges certainly exist on the ground with respect to the
consultation process itself – for example, in determining when adequate
consensus has been reached. Additional challenges have also been manifest in
the enforcement of the standards in Ontario. However, from the time of the
first standards legislation in 2001 to the Accessibility
for Manitobans Act enacted in 2013, one sees a consistent strengthening in
the legislative language in terms of guaranteeing citizen participation,
ensuring more consultation, and with respect to the very concepts of what it
means to be a person with a disability and the humanistic reasons for providing
accessibility.
Finally, this
Canadian case study shows that Sunstein’s approach to
humanizing the regulatory process offers limited utility as an evaluation tool.
The qualitatively distinct social goods relating to disability access do not
lend themselves to the economic analysis underlying Sunstein’s
framework. Deepening the dialogue to ensure disciplined analysis would be more
appropriate and useful for making it difficult regulatory choices than a
reversion to economic valuation in such cases. Legislating for social change is
challenging, but the Canadian case study shows promise for equality and citizen
inclusion to all involved in the long run.
[1] Member of the head table hosting the Manitoba Customer Service
Standard Public Consultation-June 17, 2014 (Winnipeg, Manitoba).
[2] Canada’s 2007
Cabinet Directive on Streamlining
Regulation (available online at: http://publications.gc.ca/collections/Collection/BT22-110-2007E.pdf), specifies
that federal regulations will be made in an inclusive and transparent manner
and that all departments and agencies are responsible for ensuring that there
are “open, meaningful, and balanced consultations at all stages of the
regulatory process”. The federal government currently runs a consultation
website where the public can learn of the consultations taking place:
http://www1.canada.ca/consultingcanadians/. Some
provinces run similar websites -- see,
for example, the province of Ontario’s Consultations
Directory website:
https://www.ontario.ca/page/consultations-directory .
[3]SO 2001,
CHAPTER 32 [ODA].
[4] Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, CHAPTER 11. [AODA].
Though
there are indications that an earlier and much less widespread instance of
using consultation to develop standards existed several decades earlier in
Toronto municipal government. (Interview with a former public servant of
Toronto municipal government, notes on file with author.)
[5] France Houle, Analyses d’impact
et consultations réglementaires au Canada (Éditions
Yvon Blais, 2012).
[6] Accessibility for Manitobans
Act, CCSM c A1.7. [AMA]. The first standard (Customer Service Standard Regulation, Regulation 171/2015) came
into effect on November 1, 2015. The Accessible Employment Standard Development
Committee met between October, 2015 and March, 2016 to
prepare the draft of the second standard under the AMA.
[7] The
constitutional and statutory legal tools protecting human rights and freedoms
in Canada, including equality rights for persons with disabilities include the
Canadian Charter of Rights and Freedoms
(Part I of the Constitution Act,
1982, being Schedule B to the Canada Act
1982 (UK), 1982, c 11. [Charter])
and statutory human rights codes. The UN Convention on the Rights of Persons with
Disabilities, (13 December 2006, United Nations, Treaty Series, vol. 2515, p. 3;
online: http://www.un.org/disabilities/convention/conventionfull.shtml ) has also
been signed and ratified by Canada and is said to be reflected in many of the
laws already existing. A concise overview of these laws as they relate to
persons with disabilities may be found in Second
Legislative Review of the Accessibility for Ontarians with Disabilities Act,
2005 at 4-8 (Mayo Moran,
Reviewer) (Queen's Printer for Ontario: 2014). [Moran Review]
[8] But, note
that even if the goal of accessibility standards is to provide blanket minimum
protection from equality infringing activity, those who are bound by the
standard have an obligation to provide the highest level of human rights
protection in the province (See eg AODA, supra, at § 38). This may mean accommodating individuals with
disabilities to the point of undue hardship, which is the standard under
Canadian statutory human rights law. For an interesting account of discontent
and confusion caused by the existence of two contemporaneous equality rights
instruments see Moran Review id. at 51-53.
[9] See Canada (Canadian Human Rights Commission) v
Canada (Attorney General) 2011 SCC 53 (Mowat) which held that courts and tribunals should strictly interpret
legislative wording allowing for the awarding of costs.
[10] See As a Matter of Fact: Poverty and Disability
in Canada, Council of Canadians with Disabilities,
[11] See Julie
Macfarlane, The New Lawyer: How Settlement Is Transforming the Practice
of Law (University of British Columbia Press, 2008).
[12] Part I of the
Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK),
1982, c 11. [Charter]
[13] Id. at §
15.
[14] In
particular, the federal government delayed considerably in implementing
mandatory interpreter services for the Deaf despite a Supreme Court of Canada
decision requiring that this be done. See Eldridge
v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. See the
concise review of events in Sarah Armstrong, “Disability Advocacy in the
Charter Era” (2003) 2 Journal of Law & Equality 33 at 62-65.
[15] The second
question is addressed in my forthcoming book (in progress).
[16] Cass Sunstein, Valuing
Life: Humanizing the Regulatory State (Chicago: University of Chicago
Press, 2014) [Valuing Life].
[17] With respect
to Nova Scotia, the Minister of Community Services’ Advisory Panel on
Accessibility Legislation was established on June 24, 2014. Its report and
recommendations for accessibility legislation were published in 2015. See: Access and Fairness for All Nova Scotians: The
Minister’s Advisory Panel
on Accessibility Legislation. Report and
Recommendations, (2015)
http://novascotia.ca/coms/accessibility/docs/Accessibility-Leg_Eng_Accessible.pdf.
[18] See
Government of British Columbia, Accessibility
2024: Making B.C. the most progressive province in Canada for people with
disabilities by 2024, (2015)
[19] Id.
[20] Shortly after
being elected to office in October, 2015, Prime
Minister Justin Trudeau stated that one of the "top priorities" of
the newly established Minister of Sport and Persons with Disabilities would be
to "lead an engagement process with provinces, territories,
municipalities, and stakeholders that will lead to the passage of a Canadians with Disabilities Act”. See
Prime Minister of Canada, Minister of
Sport and Persons with Disabilities Mandate Letter (letter to Minister
Carla Qualtrough) (2015) http://pm.gc.ca/eng/minister-sport-and-persons-disabilities-mandate-letter#sthash.ZH3rG4cy.dpuf. Consultations
on the Canadians with Disabilities Act
are scheduled to take place between July, 2016 and February, 2017; see:
http://www.esdc.gc.ca/en/consultations/disability/legislation/index.page
[21] CCSM c. A1.7 (2013).
[22] ODA, supra, § 21 was repealed on December 31, 2011.
[23] Id. § 3, 5, 6, 7,
10, 11, 12, 13, 16, 18, 20 and 22 were repealed (see SO, 2005, c 11, § 42).
[24] ODA, supra, at Preamble.
[25] See, for
example, the website of the Ministry of Economic Development, Trade and
Employment (January 13, 2014)
[26] ODA, supra, at Preamble.
[27] Id.
[28] Id. at § 3, which reads:
“3. Nothing in this Act,
the regulations or the standards or guidelines made under this Act diminishes
in any way the existing legal obligations of the Government of Ontario or any
person or organization with respect to persons with disabilities.”
[29] Id. at §
1.
[30] Id. at §
2 and §§
14-16.
[31] Id. §§ 4-10.
Some of these provisions have now been repealed. See supra note 23 and accompanying text.
[32] See ODA § 4. The
provision indicates that the barrier-free design guidelines must be created for
buildings that the Government of Ontario has purchased, leased, or
significantly renovated. A common criticism of the ODA, and later, the AODA, is
that there is no obligation on the government to retrofit buildings to ensure
their accessibility. See also P Gordon et al, An Analysis of the ‘Ontarians with Disabilities Act, 2001,’ 24-25
(2002) 17 Journal of Law and Social Policy 15 [Gordon] at 24-25.
[33] ODA, supra, at §
5 (repealed).
[34] See Gordon id. and D Lepofsky, The Long,
Arduous Road to a Barrier-Free Ontario for People with Disabilities: The
History of the ‘Ontarians with Disabilities Act’ -- The First Chapter”
(2004) 15 Nat'l J. Const. L., 125. [Lepofsky,
“Arduous”]
[35] ODA, supra, at §
4(1).
[36] Id. § 10(1)(b)
(provision now repealed).
[37] Id. § 20
(repealed). The Accessibility Directorate of Ontario has been continued under AODA, supra, at § 32.
[38] Id. § 12
(repealed).
[39] Id. § 11(1)(b)
(repealed).
[40] Id. § 12(repealed).
[41] Id. §
20(1)(f)(repealed). This section also provided that, in addition to
consulting with persons with disabilities, the Accessibility Directorate of
Ontario could also be directed by the Minister to consult with the
Accessibility Advisory Council of Ontario. [This Council was established and
defined by the now repealed §19].
[42] Id. § 7(repealed).
[43] Accessibility for Ontarians with Disabilities Act, 2005, § 1, SO 2005, chapter 11. [AODA]
[44] Id.
[45] AODA, supra, at §§ 2, 6(a).
[46] RSO 1990, CHAPTER H.19.
[47] AODA, supra, § 6(a).
[48] Id. § 2
(“barrier”).
[49] Id. § 6(b).
[50] See Charting A Path Forward: Report of the
Independent Review of the Accessibility for Ontarians with Disabilities Act,
2005, 13 (Charles Beer: Reviewer, Toronto: Queen’s Printer for Ontario,
2010).
[51] AODA, supra, §
1(a). The minister may create standards in additional areas under the
Act.
[52] See Laurie Monsebraaten, Ontario
vows to enforce accessibility law: Businesses flout requirements to report on
how they are meeting needs of customers with disabilities, while enforcement
strategy lags, (Toronto Star, February 20, 2014). The AODA provides for a
director to order an administrative penalty if there is a lack of compliance (§ 21(6)). There
are also fines for offences. Offences represent more serious actions such as
filing false or misleading information, or failing to comply with an order made
by a director or the License Appeal Tribunal on review. A person found guilty
of an offence under the AODA may be required to pay a maximum fine of $50,000 a
day or, if the person is a corporation, a maximum fine of $100,000 a day during
the time over which the offence occurs or continues to occur (§ 37).
[53] The
responsible tribunal is the Licensing Appeal Tribunal. Two decisions are
reported, see 8750 v Director under the Accessibility for Ontarians with Disabilities
Act, 2005, 2014 CanLII 46587 (ON LAT); 8635 v Director under the Accessibility for
Ontarians with Disabilities Act, 2005, 2014 CanLII
53673 (ON LAT); the other two cases are unreported.
[54] AODA, supra, at §
8.
[55] Id. § 8(4).
[56] Id. § 9(6).
[57] See AODA
Customer Service Accessibility Standards Development Committee, Terms of
Reference (October 14, 2005):
https://web.archive.org/web/20060513201642/http://www.mcss.gov.on.ca/accessibility/en/news/reference/customerService.htm. [AODA
Customer Service Terms of Reference]
[58] Id. § 2 states:
“All standards development committees will be required to
achieve consensus on committee decisions that fulfill the Terms of Reference
for each committee.
Consensus means substantial agreement of members, without
persistent opposition, by a process taking into account the views of all
members in the resolution of disputes. Unanimous decisions are not necessarily
required to achieve consensus.”
[59] Id. §7. The section reads in part: "7. Member Roles
and Responsibilities
In addition to contributing to the fulfillment of the
roles and responsibilities assigned to the committee as a whole, individual
members will:
[…]
c) during all committee meetings
and activities, present their respective views and interests and, to the best
of their abilities, present the views and interests of those organizations,
industries, sectors of the economy or other classes of individuals or
organizations or communities of interest which have endorsed members for the
purpose of representing or presenting such views or interests; […]”.
[60] Id. §
9.
[61] Accessibility for Manitobans
Act, CCSM c A1. 7, § 2 (1)
(c)(ii).
[62] Id. § 2(1)(d).
[63] Id. § 3 (2)(c).
[64] The ODA does
not have a purpose section, making comparison with the ODA's purpose section
not possible.
[65] The only
difference is that the AMA speaks of barriers established by enactment in
addition to those caused by policy or practice. See ODA, § 2 (“barrier”); AODA, § 2 (“barrier”) and AMA, § 3(2).
[66] On the theory
of the social model and for critiques of it, see, generally, Tom Shakespeare, The Family of Social Approaches in Disability Rights and Wrongs, 9-28 (New York: Routledge,
2006), and Anita Silvers, An Essay on
Modeling: The Social Model of Disability
in Christopher D Ralston, and Justin Ho, (eds.), Philosophical Reflections on Disability, 19-36 (New York: Springer, 2010).
[67] AMA, supra, at Preamble.
[68] Id. § 2(2) which reads:
“Principles
2(2) In achieving accessibility, regard must be had for
the following principles:
Access: Persons should have barrier-free access to
places, events and other functions that are generally available in the
community;
Equality: Persons should have barrier-free access to
those things that will give them equality of opportunity and outcome;
Universal design: Access should be provided in a manner
that does not establish or perpetuate differences based on a person's
disability;
Systemic responsibility: The responsibility to prevent
and remove barriers rests with the person or organization that is responsible
for establishing or perpetuating the barrier.”
[69] Charter, supra at § 15, for example, provides that:
“Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of the
law without discrimination…”.
[70] The use of
guiding principles occurs in at least one accessibility
standard. See Ontario’s Customer Service Regulation, O. Reg. 429/07, §§ 3(2) which
indicates that the provider of goods and services must provide them in an
integrated fashion unless that is not possible, a manner that respects the
dignity and independence of persons with disabilities, and provide an equal
opportunity to obtain use or benefit from the goods
or services.
[71] Manitoba Human Rights Code,
SM 1987-88, c 45, CCSM c H175.
[72] See Convention on the Rights of Persons with
Disabilities, United Nations,
Treaty Series, vol.
2515, p. 3;
(New York, December 13, 2006):
http://www.un.org/disabilities/convention/conventionfull.shtml.
[73] See Discussion Paper for Made-in-Manitoba
Accessibility Legislation (2010):
http://www.gov.mb.ca/dio/discussionpaper/pdf/discussionpaper.docx.
[Manitoba 2010 Discussion Paper];
and Government
Response to Recommendations of the Accessibility Advisory Council for a
Made-in-Manitoba Accessibility Act,
[74] Manitoba 2010 Discussion Paper, id.
at 6.
[75] AMA, supra, §§
6(1) and 6(2).
[76] Id. § 34.
[77] Id.
[78] Id. § 5(1).
[79] AODA, supra, at § 32(3).
[80] Contrast
AODA, § 8(6) with AMA
§ 8(2).
[81] See AMA § 15(1) and
15(2).
[82] See AMA § 9(5).
[83] The process has been
laid out by the Manitoba government at:
http://www.accessibilitymb.ca/how-standards-are-created.html.
[84] See Valuing Life, supra.
[85] Id. at 1.
[86] Id.
[87] Id.
[88] Id. at chapter 3.
[89] Id. at 67.
[90] This is
nicely summarized in the Epilogue of Valuing
Life, supra.
[91] See Marcia H. Rioux,
Towards a Concept of Equality of
Well-Being: Overcoming the Social and Legal Construction of Inequality 127
(7 Can. J.L. & Juris.,
1994).
[92] These
observations are taken from the public consultation hearing relating to the
proposed Customer Service Standard, held in Winnipeg, Manitoba on June 17,
2014; video archive available online: http://archive.isiglobal.ca/govmb/2014-06-17-live.html.
[93] Valuing Life, supra at 70.
[94] See AODA Customer
Service Terms of Reference, supra
at § 5.
[95] See AODA, supra, § 41.
[96] Interview
with 2014 AODA Reviewer, Mayo Moran, July 3, 2015
(notes on file with author).
[97] See Epilogue of Valuing Life, supra.
[98] Interview
with 2014 AODA Reviewer, Mayo Moran, July 3, 2015
(notes on file with author).