^1. Introduction - aodaalliance.org · Web viewThe AODA Alliance has extensive experience with the design, implementation and enforcement of accessibility legislation in Canada.

Accessibility for Ontarians with Disabilities Act Alliance United for a Barrier-Free Ontario for All People with Disabilities www.aodaalliance.org [email protected] Twitter: @aodaalliance

Draft Only

Brief to the Parliament of Canada on Bill C-81, the Proposed Accessible Canada Act

August 3, 2018

Note:This is only a draft and does not constitute the position of the AODA Alliance. Please send feedback on this brief to help us finalize our position. Email us by Friday, August 24, 2018, at: [email protected]

mailto:[email protected]

^1. Introduction

This is the AODA Alliance's brief to the Parliament of Canada on Bill C-81, the proposed Accessible Canada Act. Bill C-81 was introduced into the House of Commons for First Reading on June 20, 2018.

The AODA Alliance welcomes this opportunity to offer its input into Bill C-81. Thirty-eight years ago, people with disabilities advocated for and ultimately won an amendment to the proposed Canadian Charter of Rights and Freedoms, to include in it a constitutional ban on discrimination because of a physical or mental disability. Now, 38 years later, we are campaigning to get a law passed that will make those rights, and the rights conferred on people with disabilities by the Canada Human Rights Act, a reality, without individuals with disabilities having to fight disability barriers, one at a time.

At the end of this brief, Appendix 1 lists all of the 93 recommendations that this brief makes. Because Bill C-81 is so long and detailed, we offer this number of recommendations to ensure that all of the bill's many provisions are made effective. We thank everyone who has given us feedback and input to assist with the preparation of this brief.

To download the text of Bill C-81 at First Reading in an MS Word document, click on https://www.aodaalliance.org/whats-new/new2018/click-here-to-download-in-ms-word-the-text-at-first-reading-june-20-2018-of-bill-c-81-the-proposed-accessible-canada-act/

^2. Who Are We?

The AODA Alliance has extensive experience with the design, implementation and enforcement of accessibility legislation in Canada. We are a voluntary non-partisan coalition of individuals and organizations. Our mission is:

"To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act."

To learn about us, visit: http://www.aodaalliance.org.

Our coalition is the successor to the non-partisan grassroots Ontarians with Disabilities Act Committee. The ODA Committee advocated for more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee's broad, grassroots base. To learn about the ODA Committee's history, visit: http://www.odacommittee.net.

Beyond its work at the provincial level in Ontario, over the past three years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. We have been consulted by the Federal Government and some federal opposition parties on this issue. In 2016, AODA Alliance chair David Lepofsky made public a Discussion Paper on what

http://www.odacommittee.net/

http://www.aodaalliance.org/

https://www.aodaalliance.org/whats-new/new2018/click-here-to-download-in-ms-word-the-text-at-first-reading-june-20-2018-of-bill-c-81-the-proposed-accessible-canada-act/

https://www.aodaalliance.org/whats-new/new2018/click-here-to-download-in-ms-word-the-text-at-first-reading-june-20-2018-of-bill-c-81-the-proposed-accessible-canada-act/

this legislation should include (which this brief calls "our discussion Paper). That Discussion Paper is now published in the National Journal of Constitutional Law at (2018) NJCL 169-207.

The AODA Alliance has spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on the topic of designing and implementing provincial accessibility legislation. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have also been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that legislation.

We have also been consulted outside Canada on this topic, most particularly, in Israel and New Zealand. In June 2016, we also presented on this topic at the UN annual conference of state parties to the Convention on the Rights of Persons with Disabilities.

^3. Summary of this Brief

â) General

The Federal Government is congratulated for committing in 2015 to pass a national accessibility law, and for introducing Bill C-81 in Parliament in June 2018 for First Reading. This bill is quite a good start. It contains a number of important ingredients. It reflects a number of the ideas that we shared with the Federal Government during its two-year public consultation. It reflects a serious effort by the Federal Government to craft constructive legislation.

However, the bill has substantial deficiencies that need significant improvement. These improvements are all readily achievable within the bill's overall framework. We certainly don't need or ask the Federal Government to start again from scratch.

With the amendments proposed in this brief, this bill can be turned into good legislation. Without those amendments it will not be sufficient to meet its important goals. The need for these improvements to this bill does not take away from the fact that the Federal Government is to be commended for bringing this bill forward, and for including in it a number of the core components that it did.

We look forward to working with the Federal Government and with all parties in Parliament to get the bill improved through the debates and hearings process. We strongly urge Parliament to hold robust, open nation-wide travelling legislative hearings on this bill, where people with disabilities and all Canadians can offer ideas for improvements.

^b) Helpful Features in the Bill

This bill's good and promising features include the following:

It is good that by its title, this bill aims to create an accessible and barrier-free Canada for people with disabilities.

The bill endeavours to broadly define the key terms "disability" and "barrier."

The bill establishes several important new officials and agencies to achieve its goal. This includes a new Accessibility Commissioner to enforce the bill in part, a new federal Canadian Accessibility Standards Development Organization (CASDO) to create model accessibility standards that the Federal Government can choose to enact as enforceable federal regulations, a new Chief Accessibility Officer to advise and report on progress and needed improvements, and a minister to be responsible for certain key functions under the bill.

The bill allows for the development of non-binding accessibility standards, which can guide federally or provincially regulated organizations. It empowers the Federal Cabinet to enact these standards, as is or with modifications, as enforceable regulations, that are binding on organizations that the Federal Government can regulate.

The bill aims to provide effective enforcement and for the public accountability of obligated organizations for accessibility efforts, including a formal complaint process. It also provides for Independent Reviews of the bill's effectiveness over a period of years.

The bill includes a regime for federally-related organizations to create multi-year accessibility plans and to update these over a period of years.

^c) Areas Where the Bill Needs Improvement

The bill's deficiencies, needing correction by amendments, include the following:

The bill's "purpose clause" is too weak. It falls well short of the goal proclaimed in the bill's title. The purpose clause only seeks the "progressive realization," of a barrier-free Canada. It does not set a much-needed specific deadline for reaching full accessibility, which is something the Accessibility for Ontarians with Disabilities Act commendably has. This means that people with disabilities could face the prospect of disability accessibility barriers for the indefinite future.

The bill's well-intended definitions of "disability" and "barrier" are too narrow.

The bill gives the Federal Government and various accessibility agencies a set of helpful powers to promote accessibility. However, it does not impose any duty on them to use those powers, or any mandatory time lines for the major implementation steps that the Government must take to get this bill effectively implemented. For example, the bill commendably empowers the Government to create accessibility standards or regulations. However, it wrongly does not require the Government to ever do so.

The bill wrongly splinters enforcement and implementation in a confusing way over a number of different public enforcement agencies, rather than providing people with disabilities with the simple one-stop enforcement they need. This wasteful duplication will slow and weaken the bill's

effective implementation, and risks inconsistent and unpredictable enforcement. It unfairly makes the burden on people with disabilities to get effective enforcement harder, being shuffled back and forth from one federal enforcement agency to another.

For example, the bill wrongly leaves enforcement for broadcasting and telecommunications to the Canadian Radio, Television and Telecommunications Commission (CRTC) and for transportation to the Canada Transportation Agency (CTA). It does so despite the CRTC's and CTA's long and inadequate track records on enforcing accessibility over many years.

Each of the Accessibility Commissioner, the CRTC and the CTA will have to get regulations enacted to cover very similar topics. This duplication again risks inconsistencies, even further delays, and the real possibility that some sectors of the economy will have these regulations ready for them before other sectors. It unfairly burdens the disability community to lobby each of these different public oversight agencies on the same issues in these duplicative regulations.

The bill unjustifiably gives various public bodies sweeping, unnecessary, unjustified and unaccountable powers to exempt any or all obligated organizations from a number of important of their accessibility obligations under the bill.

The bill helpfully requires obligated organizations to establish accessibility plans, but does not require them to be good plans. It does not require an obligated organization to implement its accessibility plan.

The bill unnecessarily delays some important duties of obligated organizations, and rights of people with disabilities, until certain technical regulations are passed. Thus, the disability community would have to lobby various federal entities, possibly for years, to get all those regulations passed.

The bill does not effectively ensure that the Federal Government will use all its levers of readily-available power to promote accessibility across Canada. For example, it does not require the Federal Government to ensure that federal money is never used by any recipient of those funds, to create or perpetuate disability barriers, e.g. when federal money contributes to new or renovated infrastructure, or when it is used for federal loans, grants or transfer payments.

While the bill commendably has some public accountability requirements, these are too weak. Both the Federal Government's accessibility agencies and obligated organizations should have broader public accountability requirements regarding accessibility.

The bill assigns too much power to regulations that the Federal Cabinet can make. This allows a future Government to effectively weaken or gut this bill by mere amendments to regulations, without ever having to bring a bill before Parliament and publicly debate such plans.

Several needed ingredients are missing from the bill, such as provisions on the Federal Government in relation to Indigenous People, and federal duties to review all federal laws for accessibility issues, to ensure federal elections are accessible to voters and candidates with

disabilities, and to ensure that the Federal Government itself operates as a model of an accessible employer and service-provider.

^d) Recommended Amendments

This brief therefore recommends that the bill be amended to do such things as the following:

1. Set the bill's purpose as achieving a barrier-free Canada by a date the bill will fix, in so far as the Federal Government and Parliament can do so.

2. Specify that the Federal Government as a whole is responsible for leading Canada to the goal of accessibility, in so far as the Federal Government has constitutional authority to do so.

3. Ensure that the bill's definitions of "disability" and "barrier" are broad and inclusive.

4. Ensure that the bill reaches all organizations that the Federal Government and Parliament can reach, including any recipients of federal money and all operations within Parliament.

4. Impose specific duties and implementation time lines on the Federal Government, and on specified public officials and agencies, regarding their roles to implement and enforce the bill. For example, the Federal Government should have a duty to enact and enforce all the accessibility standard regulations needed to achieve the bill's purpose.

5. Consolidate all of the bill's enforcement in the Accessibility Commissioner, rather than it being splintered among several federal regulatory agencies. If not consolidated, then remove duplicative regulation-making requirements to ensure consistent implementation and enforcement across all accessibility enforcement agencies.

6. Ensure that key bodies responsible for the bill's oversight, such as CASDO and the Chief Accessibility Officer, are fully independent of the Government.

7. Strengthen the mandates of CASDO, the Accessibility Commissioner and the Chief Accessibility Officer.

8. Strengthen the openness of the standards development process under the bill, while ensuring that people with disabilities have effective input into accessibility regulations that the Federal Cabinet can enact.

9. Remove from the bill, or drastically reduce and constrain the sweeping and unnecessary powers to exempt obligated organizations from certain of their obligations under the bill.10. Ensure that the accessibility plan that obligated organizations must establish are good plans, and ensure that they are implemented and enforceable.

11. Remove preconditions in the bill that delay specified duties of an obligated organization until regulations are passed.

12. Increase duties to make public key information on accessibility on a timely basis.

13. Reduce the power of the Federal Cabinet and key accessibility enforcement agencies to make regulations, especially where regulations could weaken or gut the bill.

14. Speed up the requirements for future reviews of this bill by Parliament and by an Independent Review which the Federal Government will appoint.

15. Require the Federal Government to focus specific efforts to address its special responsibilities in relation to Indigenous People with disabilities.

16. Guarantee that in the case of conflicting legal provisions, the strongest accessibility always prevails

17. Ensure that Nothing in the Act, in its regulations or in any actions taken under it shall reduce in any way any rights which people with disabilities enjoy under law.

18. Require the Federal Government to review all its statutes and regulations for accessibility barriers.

19. Enforceably require that no public money can be used to create or perpetuate barriers against people with disabilities, e.g. money spent on procurement, infrastructure, grants, loans or transfer payments.

20. Require the Federal Government to use all other readily-available levers of power to advance the goal of accessibility.

21. Require that whenever a federal statute or regulation confers a discretionary power on any federal public official, department or agency, that decision-maker shall take into account, in its exercise, the impact on accessibility for people with disabilities.

22. Require the Federal Government to ensure that federal elections become barrier-free for voters and candidates with disabilities.

23. Include strong measures to ensure that the Federal Government becomes a model accessible workplace and service-provider.

24. Require the Federal Government to develop and implement a plan to ensure that all federally controlled courts (e.g. the Supreme Court of Canada and Federal Courts) become accessible.

^4. Definition of "Barrier" and "Disability"

The two most important terms that the bill defines are "barrier" and "disability”. Our Discussion Paper states:

The terms “disability” and “barrier” largely map out the bill's reach. Their definitions must be clear, broad and inclusive."

â) Disability Definition

Section 2 of the bill defines "disability" as follows:

"disability means a physical, mental, intellectual, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, that, in interaction with a barrier, hinders a person’s full and equal participation in society."

Bill C-81 should make it clear to everyone reading it that it applies to all persons with any kind of disabilities, whether they have a physical, mental, sensory, communication, neurological learning and/or intellectual disability or mental health condition, or are regarded as having one, and whether their disability is visible or invisible to others. It appears that the bill means to provide a broad definition of "disability". Nevertheless, as now worded, it does not assure this. By listing the kinds of disabilities that are covered, it risks inadvertently excluding others.

Section 2 of the Accessibility for Ontarians with Disabilities Act 2005 (AODA) has a commendable disability definition:

“(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,

(b) a condition of mental impairment or a developmental disability,

(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,

(d) a mental disorder, or

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.”

It is desirable for the disability definition to list conditions which the bill will cover as disabilities, without that list being controlling or exhaustive. Many if not most who will apply and implement this bill will not be lawyers and will not be getting legal advice on a regular basis. The bill should make it clear to them that commonly-known disabilities are all included.

We therefore recommend that:

#1 Section 2 of the bill, and any consequential amendments to other legislation that the bill makes, should be amended to ensure a definition of disability that is broad and inclusive, that reaches as far as the term "disability" in the Canadian Charter of Rights and Freedoms and in the Canada Human Rights Act, and that does not risk excluding any disability, e.g. by:

a) providing that "disability" includes any kind of disability, including, without limiting the generality of the foregoing, the kinds and categories of disabilities that the bill now lists.

b) explicitly adding commonly-known disabilities by name, and ensuring that this list includes neurological impairments, environmental sensitivities and mental health conditions.

c) clarifying that "disability" includes any degree of one or more of these conditions, and

d) adding being regarded as having one or more of these conditions.

^b) Barrier Definition

Section 2 of the bill defines "barrier" as follows:

"barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with a physical, mental, intellectual, learning, communication or sensory impairment or a functional limitation."

Here again, the bill commendably attempts to establish a broad definition of barrier. However, it needs fine-tuning to ensure that this goal is achieved.

Section 2 of the AODA 2005 has a helpful, broad and effective definition of barrier, that has worked well:

“barrier” means anything that prevents a person with a disability from fully participating in all aspects of society because of his or her disability, including a physical barrier, an architectural barrier, an information or communications barrier, an attitudinal barrier, a technological barrier, a policy or a practice.”


#2 The definition of "barrier" in s. 2 of the bill, and any consequential amendments to other legislation that the bill makes (e.g. amendments that list the kinds of barriers to be addressed), such as s. 170(1)), should be amended to:

a) make it clear that "barrier" includes barriers imposed by or under a law.

b) track the definition of "barrier" in the Accessibility for Ontarians with Disabilities Act 2005 s. 2.

^5. Purpose of Bill C-81

It is very good that the bill is called "the Accessible Canada Act" and An Act to Ensure a Barrier-Free Canada. This conveys the positive message that Canada commits to be an accessible and barrier-free country for people with disabilities.

However, section 5, the bill's purpose clause, is far narrower. Section 5 of the bill sets the weak goal of "the progressive realization, within the purview of matters coming within the legislative authority of Parliament, of a Canada without barriers". Section 5 of the bill provides:

"5 The purpose of this Act is to benefit all persons, especially persons with disabilities, through the progressive realization, within the purview of matters coming within the legislative authority of Parliament, of a Canada without barriers, particularly by the identification and removal of barriers, and the prevention of new barriers, in the following areas:

(a) employment;

(b) the built environment;

(c) information and communication technologies;

(d) the procurement of goods and services;

(e) the delivery of programs and services;

(f) transportation; and

(g) areas designated under regulations made under paragraph 117(1) (b)."

One new ramp per year, installed somewhere in Canada, would entirely fulfil that narrow purpose. As well, the bill's purpose provision does not set a specific deadline for reaching full accessibility. With no end date in this bill for reaching accessibility, people with disabilities are expected to face the real and likely prospect of disability accessibility barriers for the indefinite future.

In contrast, the AODA has a much stronger purpose clause that sets a deadline for Ontario to become accessible – 2025, which was twenty years after the AODA was enacted. Section 1 of the AODA provides:

"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."

As our Discussion Paper states:

"In 2005, Ontario’s AODA commendably set 2025 as the full accessibility deadline. That is pivotal to the AODA’s implementation and to assessing its effectiveness.

The Ontario Government, obligated organizations, people with disabilities, the public and the media can ask if Ontario is on schedule for full accessibility by 2025. They can ask whether a proposed AODA accessibility standard ensures that full accessibility in the area it regulates will be achieved by 2025. If it doesn’t, it is clear that more is needed."


#3 Section 5 of the bill should be amended to set the bill's purpose as achieving an accessible Canada, in so far as Parliament and the Federal Government can achieve this, by a specified deadline, which Parliament should set in the bill.

It is good that the bill includes, in its purpose clause, accessibility in the areas of employment, the built environment, information and communication technologies, the procurement of goods and services, transportation; and any other areas that may later be designated in future regulations that the Federal Cabinet can make under this bill. However, these do not cover all the areas and activities that we need the bill to cover.

For example, the bill should cover any facilities (not just goods and services). It should cover all technologies (not just information technology). It should cover the full range of areas where federal funding can be applied, such as infrastructure, as well as loans or grants (not just procurement spending).

It is not good enough that regulations can be later enacted to extend the scope of s. 5, and thereby, the scope of the bill. To get such regulations passed would shift an unfair burden on people with disabilities to have to lobby for those regulations. The Federal Government may well be reluctant to pass such regulations for the next few years, when the bill was just enacted. Moreover, such regulations can later be repealed by a successor government, without requiring any vote in Parliament.


#4 Section 5 of the bill should be amended to include all facilities (not just goods and services), all technology (not just information technology), all federal spending (not just spending on procurement), and all activity that can be reached by Parliament and the Federal Government.

^6. Section 4 Designation of Minister of Accessibility, To Be Responsible for the Bill

Section 4 of the bill lets the federal cabinet designate a minister to be responsible for this Act. However, the bill does not require that any minister ever be designated. Section 4 of the bill provides:

"4 The Governor in Council may, by order, designate a member of the Queen’s Privy Council for Canada as the Minister for the purposes of this Act."

The appointment of a minister is critical to this bill's effective operation.


#5 Section 4 of the bill should be amended to require the Cabinet to appoint a minister at all times, to be responsible for this bill and to be called the Minister Responsible for Accessibility.

It is very important that this minister not also be the minister with lead responsibility for the federal public service. These are conflicting roles. The same minister cannot lead the law's regulatory activity and also be the voice of the largest obligated organization that will have to comply with this law. We learned this lesson in Ontario between January 2017 and June 2018, when the former Ontario Government unwisely assigned both roles to the same minister.


#6 Section 4 of the bill should be amended to require that the minister who has lead responsibility for this Act to not also be the minister with lead responsibility for the Federal Public Service.

^7. Section 6 Principles to Govern the Act

It is good that s. 6 sets out principles to govern the Act's operations, and that these principles endeavour to ensure full participation in Canadian life for people with disabilities. However there are some problems with its wording. These can be easily addressed. Section 6 of the bill provides:

"6 This Act is to be carried out in recognition of, and in accordance with, the following principles:

(a) all persons must be treated with dignity regardless of their abilities or disabilities;

(b) all persons must have the same opportunity to make for themselves the lives that they are able and wish to have regardless of their abilities or disabilities or of how their disabilities interact with their personal and social characteristics;

(c) all persons must have barrier-free access to full and equal participation in society, regardless of their abilities or disabilities;

(d) all persons must have meaningful options and be free to make their own choices, with support if they desire, regardless of their abilities or disabilities; and

(e) laws, policies, programs, services and structures must take into account the abilities and disabilities of persons and the different ways that persons interact with their environments, and persons with disabilities must be involved in their development or design."

The section repeatedly uses the phrase: "regardless of their abilities or disabilities." It is very good that the provision says "regardless of their disabilities". However, the addition of "abilities" invites claims by people with no disability that they are being treated disadvantageously because they have no disability. This provision's adding the words "abilities or" does not provide any further protection for people with disabilities. As such, they add nothing beneficial from the disability prospective. Yet they threaten to create problems from the disability perspective.

It is insufficient for laws, policies, programs, services and structures to simply "take into account disabilities”. Section 6(e) provides in part:

"(e) laws, policies, programs, services and structures must take into account the abilities and disabilities of persons and the different ways that persons interact with their environments…"

A Government or other regulated organization could try to claim that they met this requirement by simply thinking about disability needs, without having actually met those needs. Several provisions in Ontario AODA accessibility standards use this kind of weak, problematic "take into account" language. It has fallen well short of what people with disabilities need. They need disability needs to be effectively addressed, accounted for and accommodated in the design and operation of laws, policies, programs, services and structures.


#7 Section 6 of the bill should be amended to remove the words "abilities or" in each instance where it appears in the principles set out in this section, and

*3 Subsection 6(e)of the bill should be revised to read:

"(e) laws, policies, programs, services and structures must be designed and operated in a manner that effectively addresses, accounts for and accommodates the needs of people with disabilities, and the different ways that persons interact with their environments…"

Section 7 Who Must Obey This Law

Section 7 is also a very important provision. It directs which organizations must obey this law, by specifying to whom this law applies. Section 7 provides:

"7 (1) This Act applies to the following entities and persons:

(a) each entity named or set out in any of Schedules I to V to the Financial Administration Act;

(b) each Crown corporation, as defined in subsection 83(1) of the Financial Administration Act that is not referred to in Schedule III to that Act;

(c) every portion of the federal public administration that is designated under subsection (3);

(d) the Canadian Forces;

(e) any person, partnership or unincorporated organization that operates a work or carries on an undertaking or business that is within the legislative authority of Parliament, other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut; and

(f) any entity or person — including a trustee, executor, administrator, liquidator of the succession, guardian, curator or tutor — that acts in the name of, or for the benefit of, any entity or person in the operation of a work or carrying on of an undertaking or business that is within the legislative authority of Parliament, other than a work, undertaking or business of a local or private nature in Yukon, the Northwest Territories or Nunavut.

Parliamentary entities(2) This Act also applies, to the extent provided for in Part 9, to the entities referred to in the definition of parliamentary entity in section 134.

Designation(3) For the purposes of paragraph (1)(c), the Governor in Council may, by order, designate any portion of the federal public administration that is not named or set out in any of Schedules I to V to the Financial Administration Act."

This provision appears to aim to broadly apply the bill to federally regulated organizations. However, it requires two amendments for it to be fully effective.

First, it should make it clear that the bill applies to any organization which is the recipient of federal money, through payments for procurement, infrastructure, loans, grants, transfer payments, or any other kind of payment. Without this, the bill won't be able to fully and effectively leverage one of the Federal Government's greatest levers of power to make positive change, its spending power.


#8 Section 7 of the bill should be amended to make it clear that the bill applies to any organization or entity that is the recipient of federal payments, including, without limiting the generality of the foregoing, any federal contributions, loans or grants for procurement of goods, services or facilities, for infrastructure, for research, business development or any other purpose, and for transfer payments, and includes any organization or entity that enters into a contract with the Federal Government or its related entities.

Second, the bill only makes the bill applicable to Parliament itself to a limited degree. Section 7(2) of the bill provides:

"(2) This Act also applies, to the extent provided for in Part 9, to the entities referred to in the definition of parliamentary entity in section 134."

Section 134 provides:

"134 In this Part, parliamentary entity means

(a) the Senate, as represented by any committee or person that the Senate by its rules or orders designates for the purposes of this Part;

(b) the House of Commons, as represented by the Board of Internal Economy of the House of Commons;

(c) the Library of Parliament;

(d) the office of the Senate Ethics Officer;"

The bill should fully apply to all aspects of Parliament and to the offices of all Members of Parliament and of the Senate. If anything, Parliament should be a flagship institution in Canada that practices what it commendably preaches in this bill.


#9 Section 7(2) of the bill be amended to ensure that the entire bill applies fully to all aspects and operations of Parliament, including, as examples, the offices of all Members of Parliament and all Senators.

^8. Need for the Bill to Impose Mandatory Duties and Time Lines on the Federal Government and Key Accessibility Agencies

A fundamental problem with the bill which will dramatically impair its effectiveness is that it does not impose much-needed specific duties and mandatory time lines for implementation action by the Federal Government and by key accessibility agencies that it creates or mandates to lead the bill's implementation and enforcement. It gives the Federal Government and these

various accessibility agencies powers to act, but no duty to act, nor time lines within which they must act.

This could let the bill's start-up and early implementation drag on for years. During the lifetime of this bill, a series of different ministers and governments can be expected to take power. The bill needs to let each of them and all those who will successively lead the bill's accessibility agencies know in clear terms what they must do, and by when they must act, when it comes to key implementation measures.

We have learned from experience with provincial accessibility legislation that spelling out such mandatory duties and specific time lines for action is essential. Governments celebrate such legislation when it is being debated and enacted. Shortly afterwards and over time, other priorities capture the Government's attention. As has been witnessed in Ontario, over time, implementation and enforcement can slow to a crawl. Public officials are more likely to act when the legislation clearly tells them they must act, and by when they must act.

For example, as further discussed later in this brief, it is very good that the bill creates the Canadian Accessibility Standards Development Organization CASDO, a new federal departmental corporation. The bill gives CASDO power to create model national accessibility standards. These only become enforceable laws when the Federal Government enacts them as a federal regulation under the bill.

However, as a major flaw, the bill does not require the Federal Government to ever enact any accessibility standards or regulations. It only permits the Federal Government to enact accessibility standards, if and when it wishes. Under this bill, the Federal Government would be entitled to never enact any accessibility regulations at any time in the future.

In sharp contrast, Ontario's AODA is far superior in this regard. It requires the Ontario Government to enact all the accessibility standards that are needed to achieve the AODA's purpose i.e. the achievement of an accessible Ontario by 2025. Section 7 of the AODA provides:

"7. The Minister is responsible for establishing and overseeing a process to develop and implement all accessibility standards necessary to achieving the purposes of this Act."

We know from experience under Ontario's AODA's predecessor law, the Ontarians with Disabilities Act 2001, that it is insufficient to merely give a Government the power to enact accessibility standards or regulations, without requiring that Government to do so. The Ontarians with Disabilities Act 2001 permitted the Ontario Government to enact accessibility standards, but that Government never enacted any under that legislation. That in part is why Ontario later enacted the stronger AODA.

Ontario's AODA commendably has some other mandatory provisions. We set out several here.

For example, s. 8 of the AODA requires:

"8. (1) As part of the process referred to in section 7, the Minister shall establish standards development committees to develop proposed accessibility standards which shall be considered for adoption by regulation under section 6…."

"8(4) (4) The Minister shall invite the following persons or entities to participate as members of a standards development committee:

1. Persons with disabilities or their representatives.2. Representatives of the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.3. Representatives of ministries that have responsibilities relating to the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.

4. Such other persons or organizations as the Minister may consider advisable."

Section 8 of the AODA also requires:

" (6) The Minister shall fix terms of reference for each standards development committee and shall establish in the terms of reference the deadlines that each committee must meet throughout the various stages of the standards development process…."" (8) After fixing the terms of reference under subsection (6), the Minister shall make the terms of reference available to the public by posting them on a government internet site and by such other means as the Minister considers advisable."

Section 9 of the AODA requires:

" (6), the Minister shall decide whether to recommend to the Lieutenant Governor in Council that the proposed standard be adopted by regulation under section 6 in whole, in part or with modifications."

Same (8) On making a decision under subsection (7), the Minister shall inform, in writing, the standards development committee that developed the proposed standard in question of his or her decision.

(7) No later than 90 days after receiving a proposed accessibility standard under subsection (6), the Minister shall decide whether to recommend to the Lieutenant Governor in Council that the proposed standard be adopted by regulation under section 6 in whole, in part or with modifications.

Same (8) On making a decision under subsection (7), the Minister shall inform, in writing, the standards development committee that developed the proposed standard in question of his or her decision.

Development of subsequent proposed standards

(9) Within five years after an accessibility standard is adopted by regulation or at such earlier time as the Minister may specify, the standards development committee responsible for the industry, sector of the economy or class of persons or organizations to which the standard applies shall, (a) re-examine the long-term accessibility objectives determined under subsection (2);

(b) if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025 and the time-frame for their implementation;

(c) develop another proposed accessibility standard containing such additions or modifications to the existing accessibility standard as the standards development committee deems advisable and submit it to the Minister for the purposes of making the proposed standard public and receiving comments in accordance with section 10; and

(d) make such changes it considers advisable to the proposed accessibility standard developed under clause (c) based on the comments received under section 10 and provide the Minister with the subsequent proposed accessibility standard.


"18. (1) The Deputy Minister shall appoint one or more inspectors for the purposes of this Act and the regulations within a reasonable time after the first accessibility standard is established under section 6. 2005, c. 11, s. 18 (1).

Certificate of appointment(2) The Deputy Minister shall issue to every inspector a certificate of appointment

bearing his or her signature or a facsimile of his or her signature."

Section 26 of the AODA includes:

" 26. (1) The Lieutenant Governor in Council shall, by regulation, designate one or more tribunals for the purposes of this Act and of the regulations within a reasonable time after the first accessibility standard is established under section 6."

Section 30 of the AODA includes:

"30. (1) The Deputy Minister shall appoint one or more directors for the purposes of this Act and the regulations."


" 31. (1) The Minister shall establish a council to be known in English as the Accessibility Standards Advisory Council and in French as Conseil consultatif des normes d’accessibilité. 2005, c. 11, s. 31 (1).

Members (2) A majority of the members of the Council shall be persons with disabilities."


#10 the bill should be amended to impose clear and strong mandatory duties on the minister, the Federal Government, the federal Cabinet, and key accessibility agencies, with time lines for action. For example, this should include:

a) a duty on cabinet to make all the accessibility standard regulations needed to achieve the purpose of the Act by the deadline for Canada to become accessible that the Act, once amended, will require.

b) duties and deadlines to create or appoint the key implementation agencies such as the Accessibility Commissioner, CASDO and the Chief Accessibility Officer.

^9. Splintering the Bill's Enforcement Among Multiple Federal Agencies, Rather Than Ensuring a Single One-Stop Federal Accessibility Enforcement Agency

A serious deficiency in this bill is that it wrongly splinters the regulatory oversight of enforcement and implementation across a number of different public agencies. For example, it empowers the Canadian Radio, Television and Telecommunications Commission (CRTC) to oversee implementation and enforcement in the broadcasting and telecommunication sectors, like TV and radio, cable, phone companies and mobile service providers. It mandates the Canada Transportation Agency (CTA) to oversee the bill's implementation and enforcement in the area of federally-regulated transportation (such as air travel and inter-provincial bus and train travel). It assigns the Federal Public Sector Labour Relations and Employment Board to oversee enforcement in some aspects of employment in the Federal Public Service. It directs the new Accessibility Commissioner, addressed later in this brief, to oversee implementation and enforcement for all other obligated organizations.

This splintering of the implementation and enforcement mandate very substantially weakens the bill. It will cause a great deal of confusion among many, including public servants, obligated organizations, and people with disabilities who come to the Federal Government seeking justice. It will force people with disabilities to run from enforcement agency to enforcement agency, chasing their tales. It will empower obligated organizations to throw procedural obstacles in the path of people with disabilities who are seeking accessibility, by arguing that a complainant has brought their complaint to the wrong agency.

The bill seriously risks inconsistent implementation and enforcement, from enforcement agency to enforcement agency. It wastes public money by requiring multiple oversight organizations to try to develop identical expertise and duplicative procedures. It forces people with disabilities to have to try to advocate to and educate multiple agencies on the same issues, in hopes that they

will all equally accept the message. This is all a formula for progress on accessibility that is unnecessarily slower and more costly.

The bill entrusts this issue to two existing public agencies, the CRTC and CTA. Those agencies' many prior years of having a mandate in this area show them to be unreliable and ineffective on this issue. Giving them more mandate and powers will not fix that. No doubt the obligated organizations on which these regulatory agencies have been too soft for years regarding accessibility, will be delighted that this bill leaves those agencies in charge.

One example illustrates the point. The CRTC has not to date ensured that cable and digital TV providers make available an accessible PVR to customers with disabilities who cannot operate an inaccessible PVR. US law has required cable companies to provide accessible PVRs. There is no excuse for CRTC's failing to require this.

This bill is so long in part because it has duplicative provisions and procedures for each of these multiple regulatory agencies. The bill would be simpler to read and implement, without this unnecessary duplication.

Implementation of this bill will take longer and require more training due to the splintering of enforcement authority among multiple agencies. Moreover, appeal/judicial review rights may be rendered incoherently inconsistent and hence more complicated, depending on which public agency is addressing the accessibility issue.

To instead place all this enforcement mandate in one agency, the Accessibility Commissioner, would not lose out on the accumulated regulatory expertise of the CTA and CRTC. It is open to Parliament to include in the bill a provision that gives all the enforcement mandate to the Accessibility Commissioner, but which also invites the Accessibility Commissioner to consult with the CTA and CRTC on enforcement where appropriate.


#11 the bill should be amended to eliminate the duplicative enforcement mandates of the Canada Transportation Agency, the Canadian Radio, Television and Telecommunication Commission and the Federal Public Sector Labour Relations and Employment Board. All enforcement responsibility should be consolidated in the Accessibility Commissioner. If not, then the need for multiple duplicative regulations on the bill's implementation and enforcement should be eliminated.

^10. Section 11 Minister's Mandate

Section 11 sets out the powers of the minister who is responsible for this Act's implementation. It sets too weak an objective for the minister. Section 11(1) of the bill provides:

"11 (1) The Minister’s mandate is the progressive realization of a Canada without barriers."

This objective suffers from the same deficiencies as this brief earlier identified in s. 5, which sets the same weak objective for the bill as a whole.


#12 Section 11(1) of the bill should be amended to set the minister's objective as achieving an accessible Canada by the bill's specified deadline.

Similarly, section 12 too narrowly sets the minister's mandate. Section 12 provides:

"12 The Minister’s powers, duties and functions extend to and include all matters relating to accessibility over which Parliament has jurisdiction and that are not by law assigned to any other Minister or to any department, board or agency of the Government of Canada."

The minister's mandate should extend to all areas that the Federal Government can reach, whether or not some other law assigns some aspect of accessibility to some other minister or federal agency. Parliament, the Prime Minister and the public need one elected public official in cabinet with full responsibility. Splintered responsibility leads to incoherent and disconnected silos in an organization as huge as the Federal Government.


#13 Section 12 of the bill should be amended to remove the words "and that are not by law assigned to any other Minister or to any department, board or agency of the Government of Canada", so that it will read:

"The Minister's powers, duties and functions extend to and include all matters relating to accessibility over which Parliament has jurisdiction."

Section 16 commendably lets the minister work with provinces and territories on accessibility issues. However it does not require the minister to ever do so. Section 16 provides:

"16 The Minister may work with provincial or territorial authorities with a view to coordinating efforts in relation to matters relating to accessibility."


#14 Section 16 of the bill should be amended to require the minister to work with provincial and territorial governments on accessibility, and not merely to permit the minister to do so.

^11. Part 2 Canadian Accessibility Standards Development Organization CDSO

It is very good that the bill creates the Canadian Accessibility Standards Development Organization (CASDO) to develop recommendations for accessibility standards under the bill. It is similarly very good that the bill gives CASDO a wide mandate. It does not try to limit the scope of accessibility standards that it recommends.

The bill is a substantial improvement upon the approach to the standards development process in Ontario's AODA. The creation of CASDO is in part, responsive to recommendations in our Discussion Paper. We make recommendations here to ensure that CASDO is fully effective, and build upon the good ideas found in the bill.

It is unhelpful that the bill does not require CASDO to create any accessibility standards, or to make it the prime focus of its work. Moreover it does not impose any time lines on its work. The bill does not identify the first accessibility standards that should be developed. This will lead to delays after the bill is enacted, while CASDO deliberates on this. We know now about key accessibility standards that are needed. The bill should identify these, as being among the first round of accessibility standards that CASDO should develop.


#15 Part 2 of the bill should be amended to:

a) make it clear that the predominant time and work of CASDO will be to create accessibility standards, and

b) specify that the first accessibility standards it will create should include, among others, accessibility standards in the areas of the built environment, accessible customer service, accessible information and communication, accessible transportation, and accessible employment.

c) set time lines by which CASDO will have identified the first set of accessibility standards to be created, and by when it will have completed the development of its first round of accessibility standards.

The bill's mandate for CASDO is too narrow. Section 18 of the bill provides CASDO's mandate as follows:

"18 The Standards Organization’s mandate is to contribute to the progressive realization of a Canada without barriers by, among other things,

(a) the development and revision of accessibility standards;

(b) the recommendation of accessibility standards to the Minister;

(c) the provision of information, products and services in relation to the accessibility standards that it has developed or revised;

(d) the promotion, support and conduct of research into the identification and removal of barriers and the prevention of new barriers; and

(e) the dissemination of information, including information about best practices, in relation to the identification and removal of barriers and the prevention of new barriers."

This provision needs to be strengthened in the same way as this brief recommends for s. 5 of the bill, for the bill's overall purpose. It suffers from the same weakness as this brief earlier identified for s. 5.

The lack of a specified deadline for reaching accessibility in Canada, in so far as the Federal Government can achieve this, will especially hurt the standards development process. In Ontario, people with disabilities argue under the AODA that an AODA accessibility standard must ensure accessibility in the sector to be regulated by 2025. Without that deadline, the position of people with disabilities is much weaker when trying to get an accessibility standard to be strong and effective.


#16 The opening words of s. 18 of the bill should be amended to provide as follows:

"18 The Standards Organization’s mandate is to contribute to the realization of a Canada without barriers by the bill's specified deadline by…"

It is important that any accessibility standards at least meet the accessibility requirements in the Canada Human Rights Act and, where applicable, the Canadian Charter of Rights and Freedoms. Otherwise an organization that complies with the accessibility standard will still fall short of their primary constitutional and quasi-constitutional duties.


#17 the bill should be amended to require that CASDO, when developing accessibility standards, and the Federal Government, when developing accessibility regulations, should, to the extent then known, set requirements that at least fulfil the accessibility requirements in the Canada Human Rights Act and, where applicable, the Canadian Charter of Rights and Freedoms.

Section 19 empowers CASDO to charge a fee for an accessibility standard that it creates. Section 19(e) provides:

"(e) charge a fee for any accessibility standard that it develops or revises and any information, product or service that it provides under this Act;"

Any accessibility standard that CASDO develops should always be made available to the public for free. No fee should ever be charged. A fee will be a barrier for people with disabilities who want to get a copy and spread the word in advocacy efforts. A fee will be a disincentive to obligated organizations. This is the wrong way to try to generate revenues.

We know of problems in the past. At times, the Ontario Government has charged for a hard copy of the Ontario Building Code, although we understand that an online electronic copy of it is available for free. Similarly, the Canadian Standards Association, a private organization, at least at some times in the past has charged for its accessibility standards.

The purposes of this legislation are best promoted by ensuring that any accessibility standard is easily available, can be acquired for free, and is widely distributed.


#18 Section 19(e) of the bill should be amended to prohibit the Canadian Accessibility Standards Development Organization from charging a fee to obtain a copy of an accessibility standard that it has developed.

It is very important for CASDO to operate in a way that is fully independent of the Federal Government. The Federal Government is the largest obligated organization under this bill. From our experience in Ontario with the AODA, it is very clear that the Federal Public service will have a strong interest in watering down accessibility standards. Some politicians may have a similar interest. In Ontario we have witnessed how the Accessibility Directorate of Ontario has tried to directly or subtly influence the work of Standards Development Committees. This had worked to the detriment of the standards development process.

Of course, the Federal Cabinet will get the final say on which accessibility standards will be enacted into law as regulations under the bill. However, it is important for the bill to substantially and pro-actively insulate CASDO from Federal Government or Federal Public Service interference with its work, and with its recommendations.

The bill goes some distance to this end. However it would be far better if CASDO were to report directly to Parliament, rather than to a minister.


#19 Part 2 of the bill should be amended to make CASDO fully independent of the Federal Government, and to make it report directly to Parliament, rather than to a minister of the government of the day.

Giving rise to the same concerns s, 21(1) of the bill lets the minister issue "general directions" to CASDO about its work. Section 21(1) provides:

"21 (1) The Minister may issue general directions to the Standards Organization respecting the carrying out of its mandate."

At first blush, this might seem neutral and harmless. However, as written, it raises potential concerns, as we have learned in Ontario's standards development process over the past 13 years.

If a minister wants to have CASDO develop an accessibility standard in a particular area, the minister should of course be able to make that request. However, if CASDO has decided to develop an accessibility standard in a particular area that it considers important for accessibility for people with disabilities, a minister should not, by their directions under this provision, be able to shut that down, or to impose restrictions on the scope of that accessibility standard.

It is significant here that an accessibility standard that CASDO creates is not binding law, until and unless the Federal Government enacts it as a regulation. Therefore, no harm is done if CASDO proceeds to work on an accessibility standard in an area with which the Federal Government or the minister does not agree.

For example, the previous Ontario Government commendably decided in 2015 to develop a Health Care Accessibility Standard. However the relevant Ontario ministry wrongly tried to impose restrictions on what its Health Care Standards Development Committee could consider. In the 2016 summer, it tried to substantially limit what the Standards Development Committee could consider, even before appointing it, leaving out such important things as the built environment in which health care services are provided. In 2017 the former Ontario Government appointed a Health Care Standards Development Committee under the AODA, but attempted in its Mandate Letter to that Committee to restrict its work to the hospital sector. This would leave out the rest of the health care system, where most health care services are delivered.


#20 Section 21(1) of the bill should be amended to empower the minister to make non-binding recommendations to CASDO regarding its work on developing accessibility standards.

It is important for CASDO to be able to get right to work, once appointed. It may be helpful for CASDO to create by-laws under s. 27 of the bill. However, it should not be necessary to do so, for CASDO to get right to the important work of developing accessibility standards. Otherwise, the implementation of this bill could be delayed, as CASDO's board of directors struggles with what to include in its by-laws. Section 27(1) of the bill provides:

"27 (1) The board of directors may make by-laws respecting the carrying out of its activities and the conduct of its affairs."

Public sector organizations can at times get tied up and distracted by such procedural technicalities. As such, it is important for the bill to make it clear that CASDO need not enact by-laws, and that the development of its by-laws should not delay or distract from its work.


#21 Section 27(1) of the bill should be amended to make it clear that CASDO need not create any by-laws, and that the creation of by-laws should not delay its getting to work as soon as possible on developing accessibility standards.

Section 29 creates the position of Chair of CASDO. However, it does not make this a full-time position. It should be a full-time position, given the substantial work involved.


#22 Section 29 of the bill should be amended to empower the CASDO Chair as a full-time position.

It is good that the bill creates a full-time position of CASDO chief executive officer. However, it limits that person's term in office to 5 years, unless renewed. Section 30(1) of the bill provides:

"30 (1) The Chief Executive Officer of the Standards Organization is to be appointed by the Governor in Council to hold office on a full-time basis during pleasure for a term of up to five years."

To secure talented candidates, they should be able to have an assurance of a longer term in office. moreover, especially in the early years, the new CEO can acquire expertise that Canada won't want to lose. Of course, because they serve at pleasure, they don't have a guarantee of a job.


#23 Section 30(1) of the bill should be amended to provide that the CASDO chief executive officer's term, subject to renewal, is 8 years.

The bill lets the minister appoint someone to fill in for up to 90 days at a time, in case the CASDO CEO is absent or incapacitated. However, the bill doesn't require the minister to ever do so. this could leave a long vacancy in this key position, seriously impairing the bill's operations. Section 31(3) provides:

" (3) In the event of the absence or incapacity of the Chief Executive Officer, or a vacancy in that office, the Minister may authorize any person to act as Chief Executive Officer, but no person so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval."


#24 Section 31(3) of the bill should be amended to require the minister to designate an acting replacement for the CEO within 90 days of the CEO's absence or incapacity, unless the CEO is known to be returning to their office within 90 days.

It is good that section 32(1) of the bill empowers the CASDO CEO to create advisory committees to help with the standards development process. Section 32(1) provides:

"32 (1) The Chief Executive Officer may establish committees to assist in the development and revision of accessibility standards."

The makeup of the membership of these committees will be very important. The CASDO board should be consulted in this choice, rather than simply leaving it to the CEO. We therefore recommend that:

#25 Section 32(1) of the bill should be amended to require the CASDO CEO to consult with the CASDO board when selecting membership of an advisory committee to assist CASDO with developing accessibility standards.

The bill does not require that members of CASDO advisory committees be paid for their time, and that their reasonable expenses be covered. Such compensation has been especially important under Ontario's AODA for disability sector representation.


#26 Section 32 of the bill should be amended to require compensation and reasonable expenses for members of CASDO advisory committees, and particularly, for those from the community or non-profit and voluntary sectors.

In Part 2 of the bill, the Federal Government is proposing to go a different route than did Ontario in the design of its standards development process. Unlike Ontario, the bill is entirely flexible and non-prescriptive on how CASDO is to go about creating an accessibility standard. It does not require a Standards Development Committee to be appointed. It does not set out the mandate or functions of a Standards Development Committee.

The bill does not specify what sorts of people should be on an advisory committee. In contrast the AODA is more detailed and prescriptive on point. Section 8(4) of the AODA provides:

“(4) The Minister shall invite the following persons or entities to participate as members of a standards development committee

1. Persons with disabilities or their representatives.

2. Representatives of the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.

3. Representatives of ministries that have responsibilities relating to the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.

4. Such other persons or organizations as the Minister may consider advisable. 2005, c. 11, s. 8 (4)."

As a matter of Ontario Government policy, each Ontario Standards Development Committee has at least 50% of its membership coming from the disability sector.

From the Ontario experience, we had recommended to the Federal Government that the bill create a formal Standards Development Committee process. however, it may be that the bill's more flexible approach may be faster and more effective. This is subject to one major deficiency in the bill.

The bill does not ensure enough public information and public accountability during CASDO's work on developing an accessibility standard. It is good that s. 34 of the bill requires CASDO to make public any accessibility standard it recommends to the minister. However, it does not require anything to be public about CASDO's work on developing an accessibility standard during the entire process leading up to its finalizing a recommendation for the minister. The CASDO annual report, required under s. 36 of the bill, may not give the kind of timely public information that is needed.

In contrast, Ontario's AODA requires the terms of reference of a Standards Development Committee to be made public, as well as the Committee's required progress reports that it submits to the relevant minister. It requires the Standards Development Committee to make public its initial or draft recommendations, and for the public to have a chance to give input on these. The Standards Development Committee then is expected to consider this feedback before finalizing its recommendations. Of significance, each Standards Development Committee is required to keep and make public its minutes.

In a very different regime Under the bill, people with disabilities could wake up one morning to suddenly find that CASDO has submitted a new accessibility standard to the minister, and posted it publicly for all to see and use, even before the Federal Government enacts it in a regulation. It could be deeply flawed. For example, in recent years, a federal agency with no known procedural safeguards proposed a national standard on service dogs for people with disabilities that would have created enormous problems, e.g. for people with vision loss who use a trained guide dog from a recognized guide dog school. This secured international attention and criticism. It required a vigourous effort from the disability community to advocate against it.

In addition, the bill does not require CASDO to consult the disability sector, or to ensure that they have sufficient representation on any advisory committee. The best safeguard against such problems is to ensure that CASDO's process is very open throughout, and not just at the end, that it has proper disability sector representation and consultation built into the process. It is not good enough to include people with disabilities on the CASDO board or advisory committees. If an obligated organization such as Air Canada or Bell Canada sends an employee with a disability to such a body, to represent Air Canada's or Bell Canada's interests, this does not ensure effective inclusion of the disability sector's perspective in the process.


#27 part 2 of the bill should be amended to:

a) require CASDO to consult the public, including people with disabilities, along specified time lines, on which accessibility standards it should create.

b) require CASDO to make public, along specified time lines, the accessibility standards it has decided to start to develop, and the work in progress on these standards.

c) require CASDO to make public, immediately on their appointment, the names and affiliations if any of any members of a CASDO advisory committee.

d) require CASDO to promptly make public minutes of CASDO advisory committees and of the CASDO board, which should be required to be kept. These minutes should identify any draft recommendations under consideration, so the public knows what CASDO is considering.

f) require CASDO to consult the public, including the disability community, on the contents of accessibility standards it is considering adopting.

Our Discussion Paper makes an important point regarding the development of accessibility standards. It states:

"The CDA should avoid an Ontario mistake. Ontario accessibility standards proceeded on the basis that no private sector organizations should have to comply with accessibility requirements until the Ontario Government complied first, because the Ontario Government must lead by example. This caused years of unjustified delay on accessibility in the private sector.

Under human rights law, the public and private sectors have a simultaneous duty to remove and prevent disability accessibility barriers and to accommodate people with disabilities. A private sector organization cannot justify a failure to meet this duty, on the grounds that the Government has not yet met its duty. Timelines in accessibility standards for taking action should be geared to an organization's capacity, but not to time lines for progress in other organizations."

There are circumstances when smaller organizations can make more progress on accessibility much more quickly than can a huge government or government department. For example, a small organization with a small website can far more quickly and easily fix accessibility issues in their website than a huge government organization with a huge and complicated website with far more web pages to remediate.


#28 Part 2 of the bill should be amended to provide that time lines for accessibility standards or accessibility regulations should be geared to the time an organization needs to make progress on accessibility, and not to the time that other unrelated organizations need to achieve progress on accessibility.

The previous Ontario Government had a practice of trying to require members of a Standards Development Committee to sign a non-disclosure agreement regarding their work on an accessibility standard with the Standards Development Committee. The AODA Alliance has opposed this. It works against the effective operations of these committees. Any advisory

committee member should be free to let others know what is being discussed, to help gather input and to ensure proper accountability. Given the unfortunate prevalence of such non-disclosure agreements among some Government bodies, it is important for the bill to preclude this secrecy from being attempted here.


#29 Part 2 of the bill should be amended to provide that CASDO may not impose non-disclosure agreements on members of its board or advisory committees.

It is good that s. 36 of the bill requires CASDO to produce an annual report, and that s. 36(2) requires the minister to table the report with Parliament. However it need not be made public until the next session when a House of Parliament is sitting. Section 36(2) of the bill provides:

" (2) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister."

Ontario experience shows that this can create undue delays in making this kind of information public. CASDO should be required to make this report public immediately upon its being prepared. This is not disrespectful of Parliament. Our approach follows along the same lines as s. 38(2) of the bill, which commendably permits the Accessibility Commissioner to make public any report they give the minister, 60 days after providing it to the minister. We propose amendments later in this brief to strengthen s. 38(2). Section 38(2) of the bill provides:

"(2) The Accessibility Commissioner may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister."


#30 section 36(2) of the bill should be amended to require CASDO to make its annual report public immediately upon adopting it.

^12. Part 3 The Accessibility Commissioner

It is very good that the bill creates the new position of Accessibility Commissioner, with an important role in the bill's implementation and enforcement. This is to a real extent responsive to our Discussion Paper.

It is important for the Accessibility Commissioner to be, and to be seen to be fully independent of the Federal Government. We therefore recommend that:

#31 the bill should be amended to provide that the Accessibility Commissioner reports directly to parliament.

It is good that s. 38(2) allows the Accessibility Commissioner to make public any report they give to the minister, 60 days after delivering it to the minister. Section 38(2) provides:

"(2) The Accessibility Commissioner may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister."

However, public disclosure of any report by the Accessibility Commissioner to the minister should be mandatory. There is no justification for secrecy here. There is ample justification for openness and transparency. The public, including people with disabilities, should not have to undertake a Freedom of Information application to get prompt access to such information.


#32 Section 38(2) of the bill should be amended to require the Accessibility Commissioner to make public any report to the minister 60 days after delivering the report to the minister.

Later in this brief, we deal with the bill's specific requirements to report on certain enforcement activities.

Section 40 lets the Accessibility Commissioner delegate certain of their powers to certain other persons. However it does not require these delegations to be made public. Making these delegations public would be important for the public to be able to monitor how this bill is being implemented and enforced.


#33 Section 40 of the bill should be amended to require the Accessibility Commissioner to make public the specifics of any delegation of their authority to any other persons.

Earlier in this brief we addressed the need to consolidate all of the bill's enforcement powers in the Accessibility Commissioner.

^13. Part 4 Duties of Regulated Entities – the Accessibility Planning Requirement

It is helpful that the bill requires obligated organizations (which the bill calls "regulated entities) to create accessibility plans. An organization is more likely to become accessible if it plans for accessibility.

However, several important changes to the bill are needed for this to be effective. We have learned from the Ontario experience that requiring an obligated organization to make public an annual accessibility plan, of itself, risks accomplishing little in the way of actual accessibility improvements. It can create the incorrect impression that action on accessibility is taking place, when little or no improvement is occurring. It risks unnecessary duplication of efforts from one

obligated organization to the next, and imposing repetitive burdens on people with disabilities. Well-crafted amendments to the bill can remove these problems.

We learned under the Ontarians with Disabilities Act 2001 that under similar legislated accessibility plan requirements, obligated organizations simply can write in their plan what they were already doing on accessibility, without changing or improving on their accessibility efforts or outcomes. In other words, it can become busy-work rather than making a difference for people with disabilities. The centerpiece of the discredited and repealed Ontarians with Disabilities Act 2001 (precursor to the AODA) was a requirement for such annual accessibility plans.

We have also learned from the Ontario experience that such weak accessibility planning requirements, while well-intended, wastefully drive obligated organizations to each have to re-invent the accessibility wheel. Each is expected to look for the same disability barriers, but potentially without any guidance from accessibility standards. Each obligated organization considers hiring a consultant to tell them the same thing, organization after organization. The better, lower cost, faster and more efficient solution is to get strong and effective accessibility standards in place as soon as possible, so that obligated organizations don't have to replicate each other's work and effort.

Under the bill, there is a potentially long or even indefinite delay before the duty to make an accessibility plan would even begin. Section 42(1) of the bill provides that the duty to make an accessibility plan, in the case of broadcasting organizations, does not arise until the CRTC makes certain regulations under s. 45 of the bill. Section 42(1) of the bill provides in material part:

"42 (1) A regulated entity that carries on a broadcasting undertaking must, before the expiry of one year after the day fixed or determined by regulations made under subsection 45(1) that apply to that regulated entity, prepare and publish, in accordance with this Act and regulations made under that subsection, an accessibility plan…"

Yet section 45 of the bill does not require the CRTC to ever make those regulations, nor does it impose a deadline on the CRTC for making those regulations. Section 45 of the bill provides:

"45 (1) The Canadian Radio-television and Telecommunications Commission may make regulations

(a) fixing or determining, for the purposes of subsection 42(1), a day in respect of a regulated entity referred to in that subsection;

(b) specifying the form in which accessibility plans required by subsections 42(1) and (2) are to be prepared and the manner in which they are to be published;

(c) specifying the form and manner in which descriptions of the feedback process required by subsection 43(1) are to be published;

(d) specifying the form in which progress reports required by subsection 44(1) are to be prepared and the time and manner in which they are to be published; and

(e) prescribing anything that is to be prescribed by any of subsections 42(3), (7) and (8), 43(3) and 44(2), (6) and (7)."

Other provisions in the bill create the same problem for telecommunications organizations, transportation organizations and for other obligated organizations. (See s. 51, 56, 61, 65 and 69) The disability community will have to lobby multiple Government organizations and agencies to get those regulations passed before all obligated organizations will have to make an accessibility plan. The duty to make an accessibility plan may end up going into effect at different times for different categories of obligated organizations, for no good policy reason, and simply because different regulations may get passed regarding different sectors at different times. This threatens the kind of inconsistency, complexity and confusion to which this brief earlier referred.


#34 Section 42(1) and other related provisions of the bill (s. 51, 56, 61, 65 and 69) should be amended to impose a single hard deadline for all obligated organizations on when the duty to prepare an accessibility plan will arise, with no precondition that any regulations first must have been enacted under the bill.

The bill's provisions on accessibility plans are very process-heavy. Yet they are much lighter on ensuring that the plans are effective at identifying, removing and preventing barriers. For people with disabilities, what matters is for barriers to be removed and prevented.

The bill's requirements for the contents of the accessibility plan are far too slim and weak. They are similar to the weak accessibility plan requirements in the discredited and now-repealed Ontarians with Disabilities Act 2001. Under this bill, just as under the Ontarians with Disabilities Act 2001, an obligated organization can fully comply with the bill, by having an accessibility plan that ignores major known disability barriers within that organization and that commits to do nothing about any accessibility barriers in that organization. For example, for broadcasting organizations, s. 42(1)(a) provides a list of the areas an accessibility plan shall address, the most important of which is:

"(a)its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(c) to (e) and, if it is not subject to the Employment Equity Act, employment equity; …"

If an organization has no policies, practices or procedures on point, it need not list anything in the plan.

Moreover, the accessibility plan should have the aim of ensuring that the obligated organization will become accessible and barrier-free by the deadline that the Act sets for Canada.


#35 section 42 of the bill and related provisions that define the required contents of accessibility plans for any obligated organizations should be amended to require obligated organizations to include in their accessibility plan:

a) measures needed to ensure that the obligated organization will become barrier-free and accessible by the deadline that the Act sets for Canada.

b)a) the steps the organization has taken in the past year and will take in the subsequent years that the plan covers, to identify, remove and prevent disability barriers in its goods, services, facilities, employment, its built environment, and in anything it procures;

c) The organization's long-term plans for identifying, removing and preventing such barriers beyond the period of the plan, and the assignment of responsibility among senior managers.

d) the specific barriers the organization has found, including e.g. in the areas of employment, customer service, the goods, services or facilities that the obligated organization provides, and the built environment in which the obligated organization operates;

e) the measures it has taken and the measures it will take in the next two years to remove those barriers;f) The organization's strategies for preventing the creation of new barriers in any of those areas;

g) requirements and procedures for ensuring that procurement spending, infrastructure spending, and any other use of public money will ensure that it is not used to create or perpetuate disability barriers.

h) In the case of updated accessibility plans, and explanation if any barrier has not been removed as had been planned in an earlier plan.

Section 42(4) requires each obligated broadcasting organization to consult people with disabilities in the preparation of its accessibility plan. Similar provisions are repeated in the bill for other categories of obligated organizations. Section 42(4) provides:

" (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan."

At first, this would seem to be a positive step. It reflects the maxim "Nothing about us without us."

The concerns with this provision are twofold: First, it again engages each obligated organization in having to repeat the same consultations, over and over, to hear the same thing. Bell Canada, Rogers and Shaw Cable, among others, must ask people with disabilities about the same barriers.

Some accessibility standards under Ontario's AODA make this mistake, rather than creating the detailed accessibility standards that people with disabilities need. As one illustration, the Integrated Accessibility Standards Regulation, enacted under the AODA, addresses the need for

accessibility in playgrounds. However, it does not spell out what needs to be included. Instead, it obliges each relevant obligated organization to consult people with disabilities one playground at a time. Section 80 of the Integrated Accessibility Standards Regulation includes:

" 80.19 When constructing new or redeveloping existing outdoor play spaces, obligated organizations, other than small organizations, shall consult on the needs of children and caregivers with various disabilities and shall do so in the following manner:

1. The Government of Ontario, the Legislative Assembly, designated public sector organizations and large organizations must consult with the public and persons with disabilities.

2. Municipalities must also consult with their municipal accessibility advisory committees, where one has been established in accordance with subsection 29 (1) or (2) of the Act.

Outdoor play spaces, accessibility in design 80.20 When constructing new or redeveloping existing play spaces that they intend to maintain, obligated organizations, other than small organizations, shall,(a) incorporate accessibility features, such as sensory and active play components, for children and caregivers with various disabilities into the design of outdoor play spaces; and

(b) ensure that outdoor play spaces have a ground surface that is firm, stable and has impact attenuating properties for injury prevention and sufficient clearance to provide children and caregivers with various disabilities the ability to move through, in and around the outdoor play space."

The very same accessibility features are needed on a new set of swings, in any playground, anywhere in Ontario. Yet, rather than telling obligated organizations what these are, this regulation requires people with disabilities from one community to the next to each figure this out, and then tell each obligated organization about it, over and over. This is wastefully burdensome on people with disabilities, and wasteful for obligated organizations. It does not ensure that any new set of swings will actually be accessible. An effective detailed accessibility standard that specifies what a new set of swings needs to include is a far better solution.

The second problem with the bill's consultation provision is that it requires people with disabilities to become free accessibility consultants for each obligated organization. This includes their providing this free service for large for-profit organizations like the airlines, banks and phone/cable companies. This becomes even more frustrating, because those obligated organizations don't need to listen to the advice given. Under the bill, they do not need to give reasons for declining to act on the advice given.

It would make sense to consolidate this consultation activity as much as possible, at least across a major industry which offers clearly comparable goods, services and facilities. For example, the airlines could hold one joint consultation, at which people with disabilities can relate the

recurring barriers they experience. As well, there should always be an opportunity for people with disabilities to give individualized feedback, even if they don't take part in a major industry-wide consultation.

The information that would be garnered in such industry-wide consultations would also be very informative for the standards development process under the bill. It would therefore be very constructive to mandate CASDO to facilitate the holding of such industry-wide consultations.


#36 Part 4 of the bill should be amended to

a) require major industries, such as banks, airlines, or cable/mobile/telephone providers, to hold sector-wide consultations on the disability barriers in their organizations, services, facilities, goods, employment, or built environment, as part of their process of developing their accessibility plans, where they offer the same or comparable goods, services or facilities;

b) mandate CASDO to facilitate the holding of these sectoral consultations, in order to use information provided as part of the standards development process.

c) ensure that beyond these industry-wide consultations, the obligated organizations have an ongoing process in place to get feedback on disability barriers from people with disabilities.

d) require large obligated organizations to make public the feedback they received through these consultations, and the action on barriers they plan to take as a result. Where the obligated organization does not plan to act on barrier feedback received, it should give a reason for this.

A major deficiency in the bill is that it does not provide a way for people with disabilities or others to complain about the sufficiency of an obligated organization's accessibility plan. An obligated organization is far more likely to create an effective plan if there is a legal process available for others to challenge the plan's sufficiency.



a) Mandate the Accessibility Commissioner to investigate and conduct audits and inspections of the sufficiency of an obligated organization's accessibility plan on its own behalf, and to take enforcement action before the Canadian Human Rights Tribunal if insufficient.

b) enable a member of the public to file a complaint with the Accessibility Commissioner about the sufficiency of an obligated organization's accessibility plan, .

c) mandate the Accessibility Commissioner to investigate such individual complaints and, where appropriate, to litigate them before the Canadian Human Rights tribunal, which should have power to impose effective remedies.

Even the best accessibility plan is only effective if an obligated organization has a duty to implement it. it does not appear that the bill requires an obligated organization to implement its accessibility plan. It only requires the organization to have an accessibility plan.

The Ontarians with Disabilities Act 2001 suffered from this serious deficiency. In contrast, the Integrated Accessibility Standards Regulation, later enacted under the AODA, requires an organization both to have an accessibility plan and to implement it. Section 4 of the Integrated Accessibility Standards Regulation includes:

" 4. (1) The Government of Ontario, Legislative Assembly, designated public sector organizations and large organizations shall, (a) establish, implement, maintain and document a multi-year accessibility plan, which outlines the organization’s strategy to prevent and remove barriers and meet its requirements under this Regulation;…"


#38 Part 4 of the bill should be amended to require an obligated organization to implement its accessibility plan, with this duty subject to enforcement through Accessibility Commissioner audits and inspections and individual complaints. It is good that the bill aims to ensure that the public can have access to an obligated organization's accessibility plan. However, the bill now requires a person to apply to the organization for its plan. The bill even stipulates that these requests must be made in a form that are prescribed in regulations. Section 42 includes:

"40 (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 45(1), make its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request.

(8) The request must be made in the form and manner prescribed by regulations made under subsection 45(1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request."

This means that the public right of access to must await new regulations on these forms. There is no duty to make those regulations at all, much less by a specified deadline. Here again, people with disabilities will have to lobby for these regulations to be made.

It is far faster, cheaper and more effective for the bill to simply require the obligated organizations to post their accessibility plan on their website. This bill aims at large Government organizations and private companies. Each has a website. by making these plans immediately public online, it allows for easier crowd-sourced monitoring and accountability.

This would make it much easier for any enforcement agency to enforce some of these requirements. If an enforcement official cannot find an obligated organization's required accessibility plan on the organization's website, this should be per se ample foundation for further investigatory and enforcement action under Part 5 of the Act.

By comparison, under the AODA, a range of obligated organizations must file accessibility compliance self-reports. If an organization has not done so, the Ontario Government has per se proof of a contravention of the AODA. That can support further investigatory and enforcement action. It is because of this AODA filing requirement that people with disabilities and the public has known since 2013 of five years of ongoing massive AODA violations in the private sector.

For the bill to require that accessibility plan must be posted on line also signals to obligated organizations that they should ensure that their accessibility plan is a good one. This is because it will be open for all to see at a glance or click.


#39 Section 42 of the bill should be amended to remove the requirement that a member of the public must request disclosure of an accessibility plan in a form that the regulations will prescribe. Instead it should require obligated organizations to post their accessibility plan online in an accessible format.

Obligated organizations should also be required to submit their accessibility plan in an electronic form to the Accessibility Commissioner. Obligated organizations are more likely to ensure that their accessibility plan is a good one if they know it must be filed with this enforcement agency. Here again, as noted above, such a filing requirement would help with enforcement efforts. If it is an online filing requirement, this can be done with no significant cost to obligated organizations. It will be easy for the Government to provide the IT support for receiving these filings. As well, the Accessibility Commissioner should be required to make these plans available as of right online on a searchable data base. that will also help with crowd-sourced enforcement and monitoring.



a) require obligated organizations to electronically file their accessibility plan with the Accessibility Commissioner, and

b) require the Accessibility Commissioner to make these accessibility plans available to the public as of right, in a public online searchable data base.

It is good that section 43 of the bill requires an obligated organization to have a feedback process. Section 43(1) includes:

"43 (1) A regulated entity referred to in subsection 42(1) must establish a process for receiving feedback about the following and for dealing with that feedback:

(a) the manner in which the regulated entity is implementing its accessibility plan; and

(b) the barriers encountered by persons that deal with the regulated entity."

However, section 43 does not require the obligated organization to actually fix those barriers identified via such feedback. it does not require an obligated organization explain why it did not fix the reported barrier. It does not require the obligated organization to report to the public or the enforcement agencies on why it did not act.


#41 Section 43 of the bill should be amended to require the obligated organization to give reasons in writing to a person who has submitted feedback about a barrier in that obligated organization, if the obligated organization will not rectify that barrier.

It is good that section 43 requires an obligated organization to publicize its feedback process. however, this duty is tied to regulations that may or may not ever be enacted. Section 43(2) provides:

" (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 45(1)."


#42 section 43 of the bill should be amended to specify how an obligated organization must publicize its feedback process, even in the absence of regulations on point.

It is good that s. 44 requires an obligated organization to make progress reports on implementing its accessibility plan. However, here again, certain obligations are contingent upon certain regulations later being enacted, including regulations on the report's preparation and publication (s. 44(1)), on filing the report with the enforcement agency (s. 44(2)), and on the form that a person must use to seek a copy of the obligated organization's progress report. There should be no need for these regulations to be created before an obligated organization has the duty to make or disclose its progress report. there should be no mandatory form for asking for a progress report. For example, a member of the public's simple request by phone, in person or in writing e.g. via email should be sufficient.


#43 section 44 of the bill should be amended to:

a) remove the need for regulations before progress reports need to be prepared.

b) remove the requirement that a request for disclosure of a progress report be made in a prescribed written form.

c) require the obligated organization's progress report to be posted online, where the organization has a website, and to be electronically filed with the Accessibility Commissioner, which should maintain these in a publicly-accessible searchable data base.

As a matter of very serious concern, section 46 of the bill gives power to the CRTC to totally exempt any obligated organization it wishes within its mandate, from any or all of the accessibility plan requirements. Other Parts of the bill that mandate the other enforcement agencies give comparable exemption powers. Section 46(1) provides:

"46 (1) The Canadian Radio-television and Telecommunications Commission may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 42 to 44, on any terms that the Commission considers necessary."

It is very important that this section and its counterparts across the bill be removed. There is no good reason why any obligated organization should be exempted from these requirements, or any others under the bill. Moreover, this arbitrary power is entirely unfettered. It gives no opportunity to people with disabilities to be heard before a decision is made to grant an exemption.

The bill does not set out any criteria for this power to be exercised. It imposes no duty on the enforcement agency to give any reasons for granting such an exemption. An exemption need never be made public, other than notifying the Accessibility Commissioner. An exemption can be requested in secret, decided on in secret, for reasons that are kept secret.


#44 the power to exempt an obligated organization from any or all accessibility plan obligations, vested in enforcement agencies like CRTC in s. 46 of the bill, and in related provisions throughout the bill, should be repealed. If not repealed, then these powers should be amended to severely restrict them, e.g.

a) by requiring the enforcement agency or minister to make public the fact that it is considering granting an exemption to an obligated organization, and the potential reason for such an exemption;

b) requiring the enforcement agency or minister to invite and receive public input from the public, including people with disabilities, on whether an exemption is to be granted, with the obligated organization covering the reasonable costs of people with disabilities providing such input;

c) providing that an exemption can only be granted where the obligated organization proves through clear and convincing evidence that it is impossible to fulfil the accessibility plan

requirements to be exempted, without undue hardship, and only where the exemption is the least in degree, and for the shortest time, necessary to that end;

d) requiring the enforcement agency or minister to give reasons for granting an exemption;

e) Making the grant of an exemption appealable by any people with disabilities to the Federal Court of Canada on any error of fact, law or mixed fact and law.

^14. Part 5 Administration and Enforcement

It is very good that the bill includes a Part addressing enforcement of the bill, which includes powers to inspect and issue compliance orders and to impose monetary penalties relative to an obligated organization. It is helpful that it provides for compliance agreements and important, needed, investigatory powers.

The bill gives the federal Cabinet sweeping powers to make regulations that would set criteria on what size a monetary penalty should be. Section 91 provides:

"91 (1) The Governor in Council may make regulations

(a) classifying each violation as a minor violation, a serious violation or a very serious violation;

(b) fixing a penalty, or a range of penalties, in respect of each violation;

(c) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;

(d) respecting the determination of a lesser amount for the purposes of subparagraph 79(1)(b)(iii) and the time and manner in which it is to be paid;

(e) respecting the circumstances under which, the criteria by which and the manner in which a penalty for a violation may be reduced under the terms of a compliance agreement entered into under subsection 82(1);

(f) respecting the circumstances under which reviews under section 84 are to be oral or in writing; and

(g) specifying information for the purposes of section 93.

(2) The maximum penalty in respect of a violation that may be fixed under regulations made under paragraph (1)(b) is $250,000."

Superficially, this might seem reasonable, if not routine. However, this provision is quite troubling. Ontario enacted similar regulations under the AODA. Section 39 of the AODA includes:

" 39. (1) The Lieutenant Governor in Council may make regulations,…

… (i) governing the administrative penalties that a director may require a person or organization to pay under this Act and all matters necessary and incidental to the administration of a system of administrative penalties under this Act;…

… (2) A regulation under clause (1) (i) may,(a) prescribe the amount of an administrative penalty or provide for the determination of the amount of the penalty by prescribing the method of calculating the amount and the criteria to be considered in determining the amount;(b) provide for different amounts to be paid, or different calculations or criteria to be used, depending on the circumstances that gave rise to the administrative penalty or the time at which the penalty is paid;(c) provide for the payment of lump sum amounts and of daily amounts, prescribe the circumstances in which either or both types of amounts may be required; (d) prescribe the maximum amount that a person or organization may be required to pay, whether a lump-sum amount or a daily amount, and, in the case of a daily amount, prescribe the maximum number of days for which a daily amount may be payable;(e) specify types of contraventions or circumstances in respect of which an administrative penalty may not be ordered;(f) prescribe circumstances in which a person or organization is not required to pay an administrative penalty ordered under this Act;(g) provide for the form and content of an order requiring payment of an administrative penalty and prescribe information to be included in the order;(h) provide for the payment of administrative penalties, prescribe the person or entity to which the penalty is to be paid and provide for the investment of money received from administrative penalties, including the establishment of a special fund, and the use of such money and interest earned thereon;

(i) prescribe procedures relating to administrative penalties."

However, under this seemingly non-descript power, the Ontario Cabinet made regulations which have resulted in trivial penalties. The only monetary penalties we have been able to discover under the AODA have been for such trifling sums that they create no incentive for an obligated organization to comply. With the way the Ontario regulation sets criteria for those penalties, and the limited enforcement deployed in Ontario, obligated organizations need not seriously fear a serious penalty.

It is far better for the discretion over monetary penalties to be unencumbered, especially in the bill's earliest years. Moreover, under the bill, a subsequent Federal Government could in effect gut the bill through the back door, by passing regulations on monetary penalties that ensure that they will be trivial.


#45 Section 91 of the bill should be eliminated or substantially narrowed.

The bill should ensure that the public will be kept properly informed about the steps taken to enforce the bill, and the violations of the bill of which the Federal Government and its enforcement agencies are aware. Extensive experience in Ontario shows that there is a pressing need for the bill's enforcement to be very open, public and transparent. Over and over from 2013 to 2018, the AODA Alliance had to resort to Freedom of Information legislation to find out what the Government was doing to enforce the AODA. In the 2014 Ontario election, the former Ontario Government committed to make public annual reports on its enforcement activities and plans. Yet these turned out too often to be superficial and insufficiently informative.

It is good that s. 39 of the bill requires the Accessibility Commissioner to make an annual report on enforcement efforts. Section 39 provides:

"39 (1) The Accessibility Commissioner must, within three months after the end of each fiscal year, submit a report on his or her activities under this Act during that year to the Minister and provide the Minister of Justice with a copy of the report.

Contents

(2) The report must include

(a) information about the following in respect of the fiscal year, including their number:

(i) inspections conducted under section 73,

(ii) orders made under section 74,

(iii) orders made under section 75,

(iv) notices of violation issued under section 79, and(v) complaints filed under subsection 94(1);

(b) the Accessibility Commissioner’s observations about whether the information referred to in paragraph (a) discloses any systemic or emerging accessibility issues; and

(c) information prescribed in regulations made under subsection 117(1).

Tabling(3) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister."

It is good that s. 39 requires the Accessibility Commissioner to make an annual report, to submit it to the minister, and then to submit it to Parliament. However, it is inappropriate to delay its disclosure to Parliament, and hence, to the public under s. 39(3).


#46 Section 39(3) of the bill should be amended to require the Accessibility Commissioner's annual report to be made public immediately upon its being finalized and submitted to the minister.

The bill also permits the Accessibility Commissioner to make some enforcement information public. it does not require that this information be made public. Section 93 of the bill provides:

" 93 The Accessibility Commissioner may make public

(a) the name of a regulated entity or person that is determined under section 84, or that is deemed by this Act, to have committed a violation;

(b) the nature of the violation;

(c) the amount of the penalty imposed, if any; and

(d) any other information specified in regulations made under subsection 91(1)."


#47 Section 93 of the bill should be amended to require, and not just permit, the Accessibility Commissioner to make public all the information detailed in that provision.

#48 Section 93 of the bill should be amended to also require the Accessibility Commissioner to make public any compliance orders or other orders against an obligated organization that it makes, and any compliance agreements into which it enters with an obligated organization.

#49 Part 5 of the bill should be amended to require the relevant enforcement agency under the bill to make public an annual report on levels of compliance with the Act and efforts made to enforce the legislation, broken down on a sector by sector basis.

It is also important for the public to be effectively informed about how to seek enforcement of the bill. The most elaborate enforcement regime will have limited impact if people with disabilities and obligated organizations don't know about it. the Federal Government should have an affirmative duty to widely publicize this. This will be much easier to do if all enforcement is concentrated in the Accessibility Commissioner, rather than being splintered among several federal agencies, as we have urged earlier in this brief.


#50 Part 5 of the bill should be amended to require the Federal Government to periodically and effectively publicize to the public, including obligated organizations, how to seek enforcement under the bill.

^15. Part 6 Remedies and Individual Complaints

It is very good that Part 6 creates a regime for people to file complaints under the bill against obligated organizations. This is a substantial improvement over the AODA, which makes no such provision. Under the AODA, it would be open to the Ontario Government to establish and administrative process for enforcement that is complaint-based, without needing such provisions in the AODA. However for the past decade, the former Ontario Government wrongly used the lack of such explicit provisions in the AODA as an excuse for deflecting individuals when they attempt to lodge complaints under the AODA with the Ontario Government.

However, there are problems with Part 6 which need to be fixed, if this complaints process is to be an effective and dependable one for victims of accessibility barriers. As explained earlier in this brief, there should be one enforcement agency which will handle all complaints and all enforcement under this legislation. Contrary to this, Part 6 splinters the complaints process among the Accessibility Commissioner (where it should belong), and certain other federal agencies, such as the CRTC and CTA.

Making this worse, s. 95 of the bill requires the Accessibility Commissioner to decline to investigate a complaint for several reasons, which include, among others, these problematic ones:

"95 The Accessibility Commissioner may conduct an investigation into a complaint filed under subsection 94(1) unless it appears to him or her that

(a) the complainant ought to exhaust grievance or review procedures otherwise reasonably available;

(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act; …"

By this provision, people with disabilities who are the victims of disability barriers will only have access to the Accessibility Commissioner for relief after they have exhausted all other avenues for relief. This is the antithesis of the one-stop-shopping for which we have called in this legislation. Obligated organizations will undeservedly benefit from the predictable run-around that complainants will face. Using the example offered earlier, a person needing an accessible PVR won't be able to come to the Accessibility Commissioner until and unless they have spent years trying to get relief either under the Canada Human Rights Act and/or the CRTC. This is a huge gift to any organization that wants to put procedural roadblocks and delays in the path of those seeking accessibility.


#51 Section 95 of the bill should be amended to ensure that victims of disability barriers can have one-stop investigation and enforcement of their complaints by the Accessibility Commissioner, if they choose that route for enforcement.

For the same reason, s. 101 of the bill is problematic where it lets the Accessibility Commissioner stop an investigation if he or she believes the case should be dealt with through some other legislation. Section 101 includes, among other things:

"100 (1) The Accessibility Commissioner may discontinue the investigation of a complaint if he or she is of the opinion that

(b) any of the circumstances mentioned in paragraphs 95(a) to (e) applies; or…"


#52 Section 101 of the bill should be amended to remove the Accessibility Commissioner's power to stop an investigation if he or she believes it should be dealt with under other legislation.

It is good that section 102 gives the Accessibility Commissioner power to grant a range of remedies to a victim of an accessibility barrier, including financial compensation. In so far as non-monetary remedies are concerned, s. 102 provides:

"102 (1) If, at the conclusion of an investigation, the Accessibility Commissioner finds that the complaint is substantiated, he or she may order the regulated entity to do one or more of the following:

(a) take the appropriate corrective measures specified in the order;

(b) make available to the complainant, on the first reasonable occasion, the rights, opportunities or privileges that were denied to the complainant as a result of the contravention to which the complaint relates;…"

It would better achieve the bill's objectives if the Accessibility Commissioner were clearly given the mandate to make orders that would direct an obligated organization to take any steps needed to prevent a recurrence of the barrier, and to prevent similar future barriers.


#53 Section 102 of the bill should be amended to make it clear that in granting remedies, the Accessibility Commissioner can order that actions be taken by the obligated organization to prevent recurrences of the barrier, and to prevent similar barriers.

Section 102(1) (f) of the bill empowers the Accessibility Commissioner to include in a monetary compensation order an amount for pain and suffering, but only if the violation was willful or reckless. Section 102(1) includes:

"(f) pay to the complainant an amount that is not more than the amount referred to in subsection (2), if the Accessibility Commissioner determines that the contravention is the result of a wilful or reckless practice."

There is no good reason why such compensation should only be available when a willful or reckless practice is shown. In 1981, the Ontario Human Rights Code had a similar restriction on similar damages. It was commendably repealed in 2006, in an effort to make remedies more effective for human rights violations. The same should be the case here. An accessibility barrier is an accessibility barrier regardless of the intent of the obligated organization that left it in place. Pain and suffering is pain and suffering regardless of the obligated organization's intent.


#54 Section 102(1)(f) of the bill should be amended to remove the requirement that a contravention be willful or reckless in order to get compensation for pain and suffering.

While it is good that monetary penalties are available, this will have a limited deterrence effect in government departments and large private sector organizations. The individuals in positions of authority in those organizations who create barriers, or leave existing barriers in place, won't have to pay a thing. In the case of Government officials, it will be the public that pays the monetary penalty. In the case of private sector corporations, it will be a large airline or phone company that typically will pay the monetary penalty.

It is important that effective findings and remedies also focus on the management officials who are in a position to address accessibility barriers. That will create a much greater incentive for them to take action, and feel accountable for their actions.


#55 Part 6 of the bill should be amended to direct the Accessibility Commissioner or other enforcement agency or adjudicator to include, where possible, in any findings and remedial orders, specific findings identifying those officials within an obligated organization who caused or contributed to the violation of the bill, and remedies (beyond remedies directed at the obligated organization as a whole) that also address those specific officials.

The bill is quite unclear on an important point of procedure. When the Accessibility Commissioner receives and investigates a complaint, must he or she hold a hearing, before deciding if there was a violation of the Act, and before holding a penalty? All the bill says on point is in s, 109, which provides:

"109 The Accessibility Commissioner must deal with complaints filed under subsection 94(1) and applications made under subsection 103(1) as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit."

This provision does not explicitly answer this important question. It is important for the Act itself to answer this question. Otherwise, people with disabilities will face the burdens and delays of unnecessary and costly litigation over such procedural questions.

For example, if the Accessibility Commissioner imposes an order on an obligated organization without first holding a hearing, or by only holding a written hearing and not an oral hearing, an obligated organization can be expected to launch judicial review legal proceedings in Federal Court. The obligated organization can be expected to argue that the Accessibility Commissioner's failure to hold a hearing, or the holding of a written hearing and not an oral hearing, is a violation of the duty of fairness and/or natural justice, as is enshrined in the common law and in s. 109 of the bill. Years of costly appeals will ensue before these questions are resolved.

The bill lets the federal Cabinet make regulations on whether an oral or written hearing will be required, after the Accessibility Commissioner has imposed an order on an obligated organization, and when that obligated organization asks the Accessibility Commissioner to review that order. Section 108 provides:

" 108 The Governor in Council may make regulations(a) prescribing the procedures to be followed by the Accessibility Commissioner when conducting an investigation; and

(b) governing the manner in which complaints are to be investigated by the Accessibility Commissioner."

Section 117(1)) includes:

"117 (1) Subject to sections 118 to 120, the Governor in Council may make regulations…

… (k) respecting the circumstances under which reviews under section 76 are to be oral or in writing;"

There is no requirement for the Federal Cabinet to ever make any such regulations. It is far better for the bill to clarify whether a hearing is required and, if so, whether it is an oral or written hearing, and who are the parties to the hearing. It is better for this to be spelled out in the bill, rather than in regulations. That avoids the risk of delays pending the making of regulations, the need to lobby the Federal Cabinet for regulations to be made, and the uncertainties that all of that would entail. It also avoids the risk of a future Cabinet changing these regulations without sufficient public input.

It is worthwhile for the Accessibility Commissioner to be required to hold a written hearing, not an oral hearing, in order to ensure that this process is swift, unless an oral hearing is needed to accommodate the needs of a complainant with a disability. A party will have access to the Canada Human Rights Tribunal's full oral hearing process if they fail before the, Accessibility Commissioner and wish to lodge an appeal to the Tribunal.


#56 Part 6 of the bill should be amended to require that the Accessibility Commissioner hold a written hearing before imposing an order or remedy on an obligated organization, with the complainant entitled to take full part in that written hearing. An oral hearing should be held if needed to accommodate the needs of a complainant with a disability.

#57 Section 117(1(k) of the bill should be removed, which would have left it to the Federal Cabinet to decide by regulations whether the Accessibility Commissioner would be required to hold an oral or written hearing when reviewing an order or remedy under Part 6 of the Act.

^16. Part 7 Chief Accessibility Officer

It is potentially a positive step that Part 7 of the bill creates the position of Chief Accessibility Officer. If designed properly, this position could be very helpful.

Defining the key duties and powers of the Chief Accessibility Officer, Part 7 of the bill provides in material part:

"Special advisor111 (1) The Governor in Council may appoint, on a full-time basis, a special adviser to the Minister to be called the Chief Accessibility Officer…

…113 The Chief Accessibility Officer may — or, if requested to do so by the Minister, must — advise the Minister in respect of systemic or emerging accessibility issues.

114 (1) The Chief Accessibility Officer may — or, if requested to do so by the Minister, must — report in writing to the Minister in respect of systemic or emerging accessibility issues.

(2) The Chief Accessibility Officer may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister….

…116 (1) The Chief Accessibility Officer must, after the end of each fiscal year but no later than December 31 following the end of that fiscal year, submit to the Minister a report on

(a) the outcomes achieved by this Act during that fiscal year; and

(b) systemic or emerging accessibility issues.

(2) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister."

The bill's design of this position has problems. The role appears confused and confusing. There are three different ways one might design such a position.

a) The position could be a national accessibility champion/watchdog, like Canada's Prison Ombudsman. Such an official would be responsible for publicly holding the Federal Government's feet to the fire. This would include them advocating nationally for ways in which the bill could be more effectively implemented and enforced, and highlighting areas of need, not just areas of progress. This kind of position would need to be clearly and functionally independent of the Federal Government, to be effective.

b) The position could be that of the most senior federal public servant, mandated to ensure that the Federal Government ensures that its own workplaces, goods, services and facilities become fully accessible. That person would need to have both the duty and the authority to direct the needed changes within the Federal Public Service. This position would not need to be independent of the Federal Government. It would need to report to the Government at a very high level, e.g. a deputy minister.

c) The position could be a senior advisor to the Federal Government on accessibility policy. Such advisory positions need not be and typically are not independent of the Government.

The Chief Accessibility Officer created by Part 7 of the bill seems to be confused among these three options. By calling the position the "Chief Accessibility Officer,", it strongly implies it is (Option( b)). Typically within a large organization, that is what a Chief Accessibility Officer is. however, undermining such a position's effectiveness, this official is not given either the duty or the power to ensure that any changes are made in the Federal Government.

The official's duty to make an annual progress report under the bill, which must be made public, as set out in s. 116, makes it seem that the position may be meant to be more in the nature of a national accessibility champion /watchdog, Option (a) above. However, this position lacks the critically-needed independence of the Federal Government. Much to the contrary, it reports to the minister. In the practical realities of government operations, It is likely that any report that this official makes will have to meet the minister's approval. In Government, that means it will tend to be complimentary of the Government, regardless of the facts on the ground.

It seems that in reality, this position is in substance Option (c), a special advisor to the minister. Section 111 is entitled "Special Advisor". Section 111(1) explicitly describes the position as "a special advisor to the minister." Moreover, as noted above, the position is not independent of the Federal Government, or indeed, of the minister.

Of these three options for this position, the special advisor option is the least desirable or useful. Ministers have ample opportunities to get advice. They have the entire Federal Public Service, including the Office of Disability Issues (ODI), to give advice on progress to date and areas of need. The new standards organization, CASDO, and the new Accessibility Commissioner, will have front-line experience with the areas of progress and need, and can advise the minister.

The Federal Government should learn from Ontario's recent experience with the creation of a Special Advisor to the minister responsible for the AODA's implementation and enforcement. From 2014 to 2017, the former Ontario Government created the position of Special Advisor on Accessibility to the minister responsible for the AODA. The AODA did not create that position. No legislation appears to have been needed to create this position. After this 3-year term expired, the former Ontario Government did not renew its Special Advisor or appoint a new one.

The position in Ontario, like that under the bill, was not in any way independent of the Government. There is no indication to us that this position in Ontario led to any improvement of action on accessibility in Ontario. The Ontario position did not operate as an independent watchdog on accessibility issues. Rather, it appeared largely to be a high-profile role for the Government to provide a speaker on the importance of accessibility, for conferences and other public events.

There is real value in having this bill create a National Accessibility Champion/Watchdog. Whether it is called a Chief Accessibility Officer or something else, it is essential, as noted above, that the position must be truly independent of the Federal Government.

This official's reports to the Federal Government should all be made public. This should not await the next sitting of Parliament, or be subject to the discretion of the Chief Accessibility Officer or any other public official. In Ontario we have found that such delays in public disclosure can last months. Yet that intervening pre-disclosure time has not been seen to lead to meaningful progress in the interim.



a) rename the Chief Accessibility Officer as the National Accessibility Watchdog.

b) Make this position independent of the Federal Government, reporting to Parliament, and not to the minister responsible for this Act.

c) require this official to make public any report they submit to the Government.

d) require their annual report to also identify future actions that need to be taken to improve the implementation and enforcement of this Act, and to ensure effective progress towards the Act's goals, including any needed reforms to this Act or its regulations, and

e) Require this official's annual report to be made public immediately, without having to await the next sitting of Parliament, if Parliament is not in session.

As noted above, there is also a need for a senior official within the Federal Public Service to have the duty and authority to ensure that the Federal Public Service becomes accessible to people with disabilities.


#59 Part 7 of the bill should be amended to establish the position of Chief Accessibility Officer of the Federal Public Service, with the status of a deputy minister, who has the duty and authority to ensure that the workplaces, employment, built environment, goods, services and facilities of the Federal Government become accessible to people with disabilities.

^17. Part 8 Regulations

Accessibility Standard Regulations

The bill does not impose any procedural safeguards for people with disabilities when the Federal Government is going to enact or amend an accessibility standard in the form of a regulation under the bill. The bill does not require the Federal Government to consult people with disabilities, or to give notice of its intent to enact or amend such a regulation, or post a draft regulation for comment.

In contrast, Ontario's AODA supplements the openness and public comment provisions regarding AODA Standards Development Committee activities with a requirement that the Ontario Government post a draft regulation for public comment before enacting it.

Section 39 of the AODA includes:" (4) The Lieutenant Governor in Council shall not make a regulation under subsection (1) unless a draft of the regulation is made available to the public for a period of at least 45 days by posting it on a government internet site and by such other means as the Minister considers advisable.

Opportunity for comments(5) Within 45 days after a draft regulation is made available to the public in accordance with subsection (1), any person may submit comments with respect to the draft regulation to the Minister.

Changes to draft regulation(6) After the time for comments under subsection (5) has expired, the Lieutenant Governor in Council may, without further notice, make the regulation with such changes as the Lieutenant Governor in Council considers advisable."



a) require the Federal Government to give notice to the public when it is considering enacting or amending a regulation under the bill, and especially an accessibility standard in the form of a regulation under the bill.

b) require the Federal Government to post online for public comment for at least 45 days the text of a proposed regulation.

c) require the Federal Government to consider the feedback when deciding what final regulation to enact, after which it can enact the regulation either as posted in draft, or with such changes as the Federal Government wishes.

Part 8 of the bill gives the federal Cabinet power to make a wide range of regulations under this bill. Earlier in this brief, we address some aspects of the bill's provisions regarding regulations.

Some key provisions needing further attention are found in s. 117(1), which includes, among other things:

"117 (1) Subject to sections 118 to 120, the Governor in Council may make regulations

(a) defining, for the purposes of this Act, any term that is used but not defined in this Act;…"

This power is far too broad. It would enable the Federal Cabinet to substantially narrow the impact of this legislation, without needing any approval by Parliament or any public discussion and debate. If there are terms that should be defined by regulation, this should be narrowly and precisely specified in the bill.


#61 Section 117(1)(a) of the bill should be removed, and replaced by a list of the specific terms in the bill which the Federal Cabinet should be empowered to define by regulation.

This brief earlier addressed the need to remove s. 117(k) of the bill, which provides that the Federal Cabinet can make regulations:

"(k) respecting the circumstances under which reviews under section 76 are to be oral or in writing;"

Section 117(1)(l) of the bill gives the Federal Cabinet a troubling and sweeping power to make regulations that can exempt any obligated organizations from a wide range of obligations under the Act. Section 117(1)(l) empowers the Federal Cabinet to make regulations:

"(l) exempting, on any terms that are specified in the regulations, in whole or in part, any of the following, or any class of the following, from the application of all or any part of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or all or any provision of regulations made under this subsection:

(i) a regulated entity,

(ii) a built environment,

(iii) an object,

(iv) a work, undertaking or business that is within the legislative authority of Parliament,

(v) an activity conducted by a regulated entity, and

(vi) a location; and…"

None of this should be permitted. For example, the Federal Cabinet should not be able to exempt any or all federal departments from any or all of their accessibility obligations under this bill. There is no duty in the bill on the Federal Cabinet to give reasons, or to make these exemptions time-limited.

Section 120 provides criteria aimed at limiting the circumstances when an exemption can be granted by regulation. Section 120 provides:

"121 (1) On application by a regulated entity, the Minister may, by order and on any terms that he or she considers necessary,

(a) exempt a regulated entity from the application of any provision of regulations made under subsection 117(1) if the Minister is satisfied that the regulated entity has taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities; or

(b) exempt a class of regulated entities from the application of any provision of regulations made under subsection 117(1) if the Minister is satisfied that all the members of the class have taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities.

(2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1).

(3) The Statutory Instruments Act does not apply to an order made under paragraph (1)(a), but the order must be published in the Canada Gazette."

These criteria make no sense. If an organization is prepared to do more on accessibility than the Act or its regulations otherwise require, then that organization will by definition be in full compliance with the Act. if they are in full compliance, they need no exemption.

Moreover, the fact that the obligated organization is prepared to do more than the Act requires at the point in time when an exemption were to be granted does not mean that this organization's attitude or intent will carry on into the indefinite future. The organization may later not live up to that intent. In that situation, an exemption is counter-productive.

Under the bill, the Federal Cabinet need not give any reasons for an exemption. A decision to exempt is not appealable on the merits. People with disabilities are not assured any say in a decision to grant an exemption. An obligated organization might convince the Federal Cabinet to grant an exemption even though people with disabilities are finding that on accessibility, that organization is getting worse, not better.


#62 Sections 117(1)(l) and 120 of the bill should be removed from the bill, and any other similar provisions in the bill respecting other agencies, where they empower a grant of exemptions to obligated organizations from requirements under the bill.

Part 8 of the bill carves out a series of wide areas which regulations cannot address. these serve in effect to immunize certain categories of obligated organizations from some important parts of this bill's regulatory regime. Part 8 includes:

"Limited application — broadcasting118 (1) Subject to subsections (2) and (3), regulations made under subsection 117(1) apply in respect of a regulated entity that carries on a broadcasting undertaking only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g).

Non-application — employment equity(2) Regulations made under subsection 117(1) that are in relation to employment do not apply in respect of a regulated entity that carries on a broadcasting undertaking and that is not subject to the Employment Equity Act.

Non-application — areas specified in regulations(3) Regulations made under subsection 117(1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5(g) do not apply in respect of a regulated entity that carries on a broadcasting undertaking if requirements in relation to the identification, prevention and removal of barriers in that area apply to the regulated entity under

(a) a condition of a licence issued under Part II of the Broadcasting Act;

(b) an order under subsection 9(4) of that Act; or

(c) a regulation made under subsection 10(1) of that Act.

Limited application — telecommunications119 (1) Subject to subsection (2), regulations made under subsection 117(1) apply in respect of a regulated entity that is a Canadian carrier or a telecommunications service provider only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g).

Non-application — areas specified in regulations(2) Regulations made under subsection 117(1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5(g) do not apply in respect of a regulated entity that is a Canadian carrier or telecommunications service provider if requirements in relation to the identification, prevention and removal of barriers in that area apply to the regulated entity under a condition imposed under section 24 or 24.1 of the Telecommunications Act or a regulation made under that Act.

Limited application — transportation120 The only regulations made under subsection 117(1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas:

(a) employment;

(b) the built environment, other than a passenger aircraft, passenger train, passenger bus, passenger vessel, aerodrome passenger terminal, railway passenger station, bus passenger station or marine passenger terminal;

(c) the procurement of goods and services that are not related to the mobility of persons with disabilities; and

(d) areas designated under regulations made under paragraph 117(1)(b)."

None of these carve-outs from the Federal Cabinet's power to make regulations are needed or justified. As earlier addressed in this brief, all obligated organizations should be subject to a single implementation and enforcement regime. People with disabilities should not have to lobby different federal agencies to address the same accessibility needs across the spectrum of obligated organizations. Moreover, this bill should not be subordinate to other federal legislation that imposes lesser accessibility requirements.


#63 Sections 118to 120 of the bill should be removed, and any other similar provisions in the bill, where they limit federal regulations under this Act from reaching all aspects of all obligated organizations under this Act.

^18. Part 8 Future Reviews of and Under Bill C-81

It is very good that Part 8 of the bill requires periodic official reviews of the operations and effectiveness of Bill C-81. It provides for one review of the bill by a committee of Parliament, and periodic reviews of the bill by an independent person, appointed by the Government.

However, the time lines for these reviews are far too long. Section 130 requires a committee of the Senate, or of the House of Commons, or of both, to conduct a review of the Act's effectiveness, starting five years after the first regulation is made under s. 117(1). It must render its report within six months, unless the relevant house or houses of Parliament extend that time. Section 130 provides:

"Review by Senate and House of Commons131 (1) Five years after the day on which the first regulation is made under subsection 117(1), or as soon as feasible after that day, a comprehensive review of the provisions and operation of this Act is to be commenced by a committee of the Senate, of the House of Commons or of both Houses of Parliament that may be designated or established by the Senate, the House of Commons or both Houses of Parliament, as the case may be, for that purpose.

Report(2) Within six months, or any further time that is authorized by the Senate, the House of Commons or both Houses of Parliament, as the case may be, after the day on which the review is commenced, the committee must submit a report on that review to the Senate, the House of Commons or both Houses of Parliament, as the case may be, together with a statement of any changes recommended by the committee."

This review should start earlier. Its start date should not await the passage of a regulation under s. 117(1) of the Act. That might not happen for months, or years, or ever. If no regulations are passed at all, the need for the bill's parliamentary review becomes even more pressing, not less pressing.


#64 Section 103 of the bill should be amended to require that a Parliamentary review of the Act should commence six years after the Act was proclaimed in force, and that subsequent Parliamentary reviews should be held every ten years thereafter.

Section 132 requires the minister to appoint an Independent Review, five years after the completion of the Parliamentary review, referred to above, and then again every ten years after that date. Section 132 provides:

"132 (1) Five years after the first day on which a report is submitted under subsection 131(2) to either House of Parliament and every tenth anniversary of that day, the Minister must cause an independent review of the provisions and operation of this Act to be conducted, and must cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.

Duty to consult

(2) The person conducting the review must consult the public, persons with disabilities, organizations that represent the interests of persons with disabilities, regulated entities and organizations that represent the interests of regulated entities."

Here again, these reviews are a great idea. Ontario experience shows how important they are. However, under the bill, these Independent Reviews are pushed too far off into the future. The first Independent Review won't begin until at least a decade after the first regulation is enacted under s. 117(1) of the Act. If that regulation were not passed for three years, the first Independent Review won't even get started until 13 years after this bill is enacted.

By comparison, in Ontario the third AODA Independent Review is now already underway, 13 years after the AODA was enacted. Had no AODA Independent Review in Ontario taken place until now, Ontario would not have received the decisive advice and warnings that came from the first AODA Independent Review in 2010 and the second AODA Independent Review in 2014. Under the AODA the first Independent Review was required to begin four years after the AODA went into force. The second AODA Independent Review was required to begin three years after the first AODA Independent Review's report. Each successive AODA Independent Review is required to begin three years after the previous AODA Independent Review report was tabled in the Ontario Legislature. Section 41 of the AODA provides:

" 41. (1) Within four years after this section comes into force, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a comprehensive review of the effectiveness of this Act and the regulations and report on his or her findings to the Minister. 2005, c. 11, s. 41 (1).

Consultation(2) A person undertaking a review under this section shall consult with the public and, in particular, with persons with disabilities. 2005, c. 11, s. 41 (2).

Contents of report(3) Without limiting the generality of subsection (1), a report may include recommendations for improving the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (3).

Tabling of report(4) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. 2005, c. 11, s. 41 (4).

Further review(5) Within three years after the laying of a report under subsection (4) and every three years thereafter, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a further comprehensive review of the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (5).

Same

(6) Subsections (2), (3) and (4) apply with necessary modifications to a review under subsection (5)."

It would be better for the first Parliamentary review under the bill to take place around the same time as the first minister-appointed Independent Review. This will enable the public, including people with disabilities, to prepare submissions once for two parallel processes. Processes.


#65 Section 132 of the bill should be amended to provide that the minister shall appoint the first Independent Review of the Act three years after the Act is proclaimed in force and every four years after that.

Canada should learn in an additional way from Ontario’s experience. The bill should include a provision that will trigger the appointment of an Independent Review if the Federal Government fails to do so on time. The bill should permit a member of the public to apply to court to appoint the Independent Review if the Government doesn't do so. Our Discussion Paper explains:

"In 2013, Ontario inexplicably failed to appoint the second AODA Review for over 100 days past the deadline, and acted only after grassroots pressure."


#66 Part 8 of the bill should be amended to provide that if the Federal Government does not appoint a required time, any person can apply to court for an order appointing a person whom the court chooses to conduct the Independent Review. As well, the Federal Government should be required to release an Independent Review's report immediately upon receiving it. The Ontario Government took an unnecessary four months to release each AODA Independent Review Report.


#67 Part 8 of the bill should be amended to should be amended to require the Federal Government to immediately release any Independent Review report upon receiving it.

^19. Part 9 Parliamentary Entities

It is good that Part 9 extends accessibility requirements to "Parliamentary entities" i.e. specified operations within Parliament, including, among other things, MPs' constituency offices (ss. 135-6). . However, in doing so, the bill has two problems.

First, the bill furthers the splintering of responsibility for the bill's enforcement, among other enforcement bodies, rather than assigning all of these to the Accessibility Commissioner. For Parliamentary entities, the Accessibility Commissioner is assigned some but not all of this

responsibility by Part 9. Here again, this will only cause uncertainty, confusion and wasteful duplication.


#68 Part 9 of the bill should be amended to assign all the bill's enforcement regarding Parliamentary entities to the Accessibility Commissioner.

Second, Sections 138 and 142 authorize the Speaker of the Senate or the Speaker of the House of Commons to exempt a Parliamentary entity from certain requirements of the bill. Sections 138 and 142 provide:

"138 (1) Sections 69 to 71 apply with respect to a parliamentary entity as if it were a regulated entity.

Exemption(2) After consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may exempt in writing a parliamentary entity from the application of all or any part of sections 69 to 71, on any terms that the Speaker or Speakers consider necessary.

Amendment or revocation(3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it.

Statutory Instruments Act(4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act….

142 (1) Regulations made under any of paragraphs 117(1)(a) to (l) — and under paragraph 117(1)(m) with respect to sections 69 to 71 — apply with respect to a parliamentary entity as if it were a regulated entity, but only to the extent that the regulations apply generally to regulated entities that are departments named in Schedule I to the Financial Administration Act.

Exemption(2) On application by a parliamentary entity and after consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may, in writing and on any terms that they consider necessary, exempt the parliamentary entity from the application of any provision of the regulations referred to in subsection (1) if the Speaker or Speakers are satisfied that the parliamentary entity will take or has taken

measures that will result in an equivalent or greater level of accessibility for persons with disabilities.

Amendment or revocation(3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it.Statutory Instruments Act

(4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act."

For the same reasons as given earlier in this brief regarding the bill's other exemption powers, there is no good reason for this exemption power. there are strong reasons why it is a bad idea.


#69 Sections 138 and 142 of the bill be removed, where it gives the Speaker of the Senate or the Speaker of the House of Commons the power to exempt a Parliamentary entity from certain of the bill's requirements.

Third, the bill also itself unjustifiably exempts Parliamentary entities from some of the bill's requirements. Section 137 provides that the bill does not limit the "powers, privileges and immunities of the Senate and the House of Commons and their members or as authorizing the exercise of a power or the performance of a function or duty under this Act if the exercise of that power or the performance of that function or duty would interfere, directly or indirectly, with the business of the Senate or the House of Commons." Section 137 provides:

"Powers, privileges and immunities137 For greater certainty, nothing in this Act or in any regulations made under it is to be construed as limiting in any way the powers, privileges and immunities of the Senate and the House of Commons and their members or as authorizing the exercise of a power or the performance of a function or duty under this Act if the exercise of that power or the performance of that function or duty would interfere, directly or indirectly, with the business of the Senate or the House of Commons."

Moreover s. 135 provides that Parts 4 to 8 of the bill only apply to Parliamentary entities to the extent that Part 9 makes them applicable. Yet Parliamentary entities should have to fully obey all of the bill. Part 9 will make it confusing and difficult for people with disabilities and Parliamentary entities to know what Parliamentary entities must do under the bill. No one should be above the law. Of all organizations in society, any operations within Canada's Parliament should be setting a good example by effectively and fully removing and preventing disability barriers.


#70 Part 9 of the bill should be amended to make the bill fully apply to all aspects of any Parliamentary entity.

^20. Part 10 Consequential Amendments that The Bill Makes to Other Federal Legislation

Part 10 of the bill makes changes to various other federal laws, such as the laws governing the CRTC and CTA. It does so to implement the bill's regime for addressing disability barriers. Many of these amendments are designed to implement the bill's overall regime for splintering the bill's enforcement among multiple federal agencies. Except where these are otherwise needed based on recommendations we make elsewhere in this brief, those consequential amendments are not needed.


#71 the consequential amendments to other legislation set out in Part 10 of the bill should be eliminated from the bill, except where they are needed to implement recommendations made elsewhere in this brief.

Under Part 10, some amendments to the CTA legislation refer to "mobility of persons with disabilities." For example, Section 170(1) provides:

" 170 (1) The Agency may, after consulting with the Minister, make regulations for the purpose of identifying or removing barriers or preventing new barriers — particularly barriers in the built environment, information and communication technologies and the delivery of programs and services — in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting…"

It is preferable for any such legislation to use the term "transportation of persons with disabilities" rather than "mobility of persons with disabilities." The term "mobility will be seen as some as referring mainly if not exclusively to those with physical mobility disabilities, such as those who use wheelchairs. The broader term "transportation" rather than "mobility" will ensure that the full spectrum of services related to transportation are covered for the full spectrum of people with disabilities.


#72 Section 170(1) of the bill and any other provisions in the bill using the term "mobility of persons with disabilities" should be amended to replace the term "mobility of persons with disabilities" with the preferred term "transportation of persons with disabilities."

If, over our objection, the Canada Transportation Agency is to be given powers to make regulations addressing disability barriers within the transportation context, these should not be limited to "barriers in the built environment, information and communication technologies and

the delivery of programs and services" as is the case now under s. 170(1). This should include all disability barriers of all kinds. For example, missing from that list is one of the most obvious of barriers in transportation, namely barriers in vehicles and other transportation equipment, such as airplanes, busses and train passenger cars.


#73 if, despite this brief's strong objections, the Canada Transportation Agency is to have authority to make regulations regarding barriers in transportation, section 170(1) should be amended to make it clear that this includes all kinds of barriers, such as barriers in transportation equipment like airplanes, busses and passenger train cars, and not only barriers in the built environment, information and communication technologies and the delivery of programs and services.

Section 172(2) of the bill includes the deeply troubling requirement that if a transportation organization has complied with CTA regulations, that organization cannot be found to have created an "undue barrier" In other words, the regulations are the final word on what a transportation organization must do in this context. Section 172(2) provides:

" 172 ( (2) Subsection 172(2) of the English version of the Act is replaced by the following:

Compliance with regulations(2) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue barrier to the mobility of persons with disabilities."

For people with disabilities, this is an exceedingly harmful provision. At a hearing over a claim of undue barriers, people with disabilities get a chance to have their say. In contrast, they have no comparable right when CTA makes a regulation in this area. If CTA makes a retrogressive regulation, that would be the final word, even if, after a hearing, it would be clear that an undue barrier exists, or if a court, on review, would have interpreted the term "undue barrier" more generously for people with disabilities than did the CTA when it made the regulation. This provision only serves the interests of transportation organizations, which will aim to narrow their duties under Bill C-81. They will seek to get the CTA to help achieve this goal, through these regulations.

In sharp and commendable contrast, any accessibility standards enacted as regulations under Ontario's AODA do not trump the guarantees in the Ontario Human Rights Code. Under the AODA, the stronger accessibility law always prevails. As well, under the AODA, people with disabilities always have access to file a human rights complaint under the Ontario Human Rights Code and to try to have it adjudicated, especially if more accessibility is sought than is required under an AODA accessibility standard.


#74 Section 172(2) of the bill should be removed or amended to ensure that that notwithstanding any regulations enacted under the CTA, it is always open to people with disabilities to allege the existence of an undue barrier in access to transportation services, notwithstanding the contents of any regulations enacted here.

If, despite our objections in this brief, the CTA is to have all the authority that Bill C-81 now confers, it is good that s. 172.4 allows CTA to have funding for people with disabilities to take part in CTA inquiries on accessibility issues. Section 172.4 provides:

" Participant funding program172.4 The Agency may establish a participant funding program to facilitate the participation of persons with disabilities in hearings that are held for the purposes of inquiries made under section 172,172.1 or 172.3."

However, this should be mandatory, not optional. The regulated transportation giants, like the airlines and ViaRail, will have ample resources to take part in such inquiries. It will be essential for people with disabilities to have this funding support.


#75 Section 172.4 of the bill should be amended to make it mandatory for the CTA to have a participant funding program for people with disabilities who take part in CTA accessibility inquiries, if CTA is to have that mandate.

#76 the bill should be amended to require a public funding program for participation of people with disabilities in any comparable inquiries by the Accessibility Commissioner, CASDO, or any other federal agency under the bill.

If the CTA is to retain its mandate as conferred by this bill, despite the objections in this brief, then CTA should be required to make public all information about violations of this bill. Section 181.1 makes this optional, not mandatory. Section 181.1 provides:

"181.1 The Agency may publish information about any violation referred to in section 177, for the purpose of encouraging compliance with this Act and sections 60 to 62 of the Accessible Canada Act."


#77 if the CTA is to have power to make orders regarding accessibility, then s. 181.1 of the bill should be amended to require CTA to make public detailed information about any violations of this bill which it has found or alleged.

It is good that Part 10 gives the Accessibility Commissioner standing before certain other named regulatory bodies, if a proceeding is being heard by one of those bodies under the bill. However, the standing is granted only for the Accessibility Commissioner to make "submissions" i.e.

arguments. The Accessibility Commissioner should also have standing to adduce evidence. For example, regarding certain proceedings before the CRTC, section 156(2) provides:

"156 The Act is amended by adding the following after section 63:

Notice to Accessibility Commissioner63.1 (1) When a grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of any provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

Submissions of Accessibility Commissioner(2) If the Accessibility Commissioner is notified of an issue under subsection (1), he or she may make submissions during the adjudication with respect to that issue."


#78 Section 156(2) of the bill and all other provisions in the bill regarding the Accessibility Commissioner's standing before other regulatory agencies should be amended to give the Accessibility Commissioner the right to standing to adduce evidence, and not just to make submissions.

In the complex and confusing regime for enforcing the bill, it would be wrong to impose duties on a complainant to let one agency know that another agency is being asked to deal with an accessibility issue. people with disabilities will find it hard enough to navigate this system, without any such added burden to figure out who else must be notified of a complaint.

It is therefore wrong for s. 195 to impose such a duty on people with disabilities. Section 195 provides:

"195 Section 65 of the Public Service Employment Act is amended by adding the following after subsection (8):

Notice to Accessibility Commissioner(9) If a complaint raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, the complainant shall, in accordance with the regulations of the Board, notify the Accessibility Commissioner, as defined in section 2 of that Act."


#79 Section 195 and any other similar provision of the bill should be amended so that they do not impose any duty on people with disabilities, when they file a complaint, to notify any other federal regulatory agency or official, such as the Accessibility Commissioner, that they had filed that complaint.

^21. Important Provisions that Need to Be Added to the Bill

The following are important provisions that are not now in Bill C-81, and that need to be added.

â) Addressing the Barriers Affecting Indigenous People with Disabilities

The bill lacks effective provisions needed to ensure that the Federal Government focuses specific tailored measures to address its special responsibilities in relation to Indigenous People with disabilities. The bill makes no reference to Indigenous People at all, nor does it put in place any specific process to deal with their barriers that takes into account the relationship between the Federal Government and the Indigenous Peoples.


#80 the bill should be amended to put in place a process for addressing the circumstances of Indigenous People with disabilities that takes into account the relationship between the Federal Government and Canada's Indigenous People, in consultation with Indigenous People.

^b) Putting the Federal Government in Charge

It is important for the bill to make it clear that the Federal Government is responsible for ensuring that the bill's purpose is achieved. The bill apportions various powers to the designated minister, to the Federal Cabinet, to CASDO, to the Accessibility Commissioner, to the Chief Accessibility Officer and to certain other public and regulatory bodies. However with this power must come the overall duty, vested somewhere accountable, to achieve a fully accessible Canada in so far as the Federal Government can do so.

In a huge governmental structure, individual officials tend to focus on their piece of the pie, but not necessarily with the overall goal. We have learned from the Ontario experience that resting an ultimate accountable responsibility somewhere is a key ingredient to success. That does not mean that the Federal Government must fix every disability barrier in society. It means that the Federal Government has a central leadership role, not only with the various pieces of the bill, but with its overall success as a whole.


#81 the bill should be amended to specify that the Federal Government as a whole is responsible for leading Canada to the goal of full accessibility, in so far as the Federal Government has constitutional authority to do so.

^c) Creating a Duty to Effectively Enforce the Act

Following on the foregoing, the bill creates various enforcement powers. However, it does not explicitly impose a duty on the enforcement bodies to effectively enforce the Act.


#82 the bill should be amended to include an explicit duty on any body charged with enforcement powers, to effectively enforce the bill.

^d) Ensuring the Strongest Accessibility Law Always Prevails

Several federal laws address aspects of accessibility for people with disabilities. This bill and regulations enacted under it will hopefully add more accessibility requirements.

There is no assurance that these laws will all set the same level of accessibility. The bill should ensure that the law which provides the greatest amount of accessibility should prevail. Section 38 of the AODA is instructive. It commendably provides:

" 38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail."

The Act should also make it clear that nothing in the Act, or in regulations or actions taken under it can take away any rights which people with disabilities enjoy. The bill and regulations under it cannot take away accessibility rights which people with disabilities enjoy under the Charter or the Canada Human Rights Act, unless, in the case of the Charter, this can be justified as a reasonable limit on Charter rights under Charter s, 1, or in the case of the Canada Human Rights Act, unless Parliament includes in the bill language showing an intent to override those human rights.

At present, nothing in the bill grants these protections to people with disabilities relative to any other laws that guarantee rights to people with disabilities.


#83 the bill should be amended to provide that:

a) If a provision of the Act or of regulations enacted under it conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.

b) Nothing in the Act or in any regulations enacted under it or in any actions taken under it shall reduce in any way any rights which people with disabilities enjoy under law.

ê) Ensuring that Public Money is Never Used to Create, Perpetuate or Exacerbate Accessibility Barriers

The Federal Government can effectively and significantly cause progress towards accessibility, by making sure that no one uses federal public money to create, perpetuate or exacerbate barriers. Many in society want to receive federal money, as venders, infrastructure builders, businesses, colleges, universities, hospitals, and governmental transfer partners. The bill should attach clear enforced mandatory accessibility strings to that money. Anyone accepting the federal funds should be bound by the strings attached.

Federal spending that should be subject to this requirement should include, for example:

a) Federal spending on procuring goods, services and facilities, for use by the Federal Public Service and the public.

b) Federal spending on capital and infrastructure projects, including projects built by the Federal Government, provinces, municipalities or others.

c) Federal spending on business development grants and loans, and on research grants for universities and other organizations.

d) Federal transfer payments to provinces/territories for programs, like health care.

e) Any other federal contract.

If effectively harnessed, this spending would give the Federal Government substantial leverage to promote accessibility. It is commendable that during the consultation process leading to this bill, the Federal Government held an experts' roundtable in November 2016 on how this bill could use the federal procurement process to leverage more accessibility. At that roundtable, there was a strong consensus that this should be harnessed in the bill, but not just for procurement spending. It should also be harnessed for other federal spending, such as spending on infrastructure.

Widely-viewed AODA Alliance online videos have demonstrated that new construction, including construction on infrastructure using public money, have included serious accessibility problems. These videos have secured significant media coverage. See:

The AODA Alliance's May 2018 video showing serious accessibility problems at new and recently renovated Toronto area public transit stations.

The AODA Alliance's October 2017 video showing serious accessibility problems at the new Ryerson University Student Learning Centre.

The AODA Alliance's November 2016 video, showing serious accessibility problems at the new Centennial College Culinary arts Centre.

Our Discussion Paper expands on what is needed here (the reference to "CDA" is to the Canadians with Disabilities Act, the name which had initially been intended for this bill):

"For example, no federal money should be given to improve a building, if that improvement is located in a part of a building that is inaccessible, unless that part of that building will become accessible. The process for developing the accessibility requirements for these projects should be entirely public, so that designers or contractors cannot block accessibility provisions behind closed doors during a project's development and planning.

When the Federal Government purchases or rents goods, services or facilities for its or the public's use, it should be required to ensure that those goods, services or facilities are accessible to and useable by people with disabilities. Any bid on a procurement project should be required to specify that the goods, services or facilities are accessible, or commit to steps that the vendor will take to make them fully accessible. The Government should give this significant weight, in a procurement competition.

If an organization applies for any other Government grant or loan, or a subsidy for business development, the Government should make it clear that a preference will be given to applicants who ensure that their workplace, goods, services and facilities are accessible, or who commit to accelerated deadlines for achieving accessibility.

Research grants that include public funding should impose a condition that people with disabilities will be properly included in the research. Any research should ensure, where possible, that test subjects are not solely people without disabilities.

When federal public money is used to fund a province's health care system, that provincial health care system must fulfil federal disability accessibility requirements, just as it must meet other federal requirements.

These measures would create a substantial incentive to produce accessible goods, services, facilities and capital projects, and to operate accessible programs and workplaces. Once a recipient ensures that their goods, services or facilities are accessible, they can serve a much larger market. That vendor can also meet the unmet demand across Canada and around the world, for accessible goods, services and facilities. There are an estimated one billion persons with disabilities around the world, a huge untapped market.

Far more organizations compete for federal loans, grants or contracts than the Government ultimately chooses to give federal funds. By making accessibility an important, highly visible factor, applicants will try to out-bid each other on their accessibility commitments.

If the federal government just makes this a policy, rather than an enforced law, it won't be consistently obeyed. If it is just made a policy, a future government can kill or gut it without Parliament’s approval.

Strings attached to federal money mustn't just require that accessibility will be considered or that the CDA will be obeyed. Detailed standards outlining the accessibility requirements attached to federal funding must be developed and enforced under the CDA. Each Federal Government department and agency should not have to reinvent the wheel when setting accessibility conditions for capital, infrastructure, procurement or other like spending.

Ontario experience shows that this must be clearly legislated, monitored and enforced. There has been limited success in getting some new Ontario laws enacted and policies adopted. They lack needed visibility, strength and enforcement. They have not had the impact needed. The Ontario Government has thereby missed out on huge opportunities to generate greater accessibility.

In 2011, the Ontario Government unveiled a Ten-Year Infrastructure Plan, setting policies and principles to govern Ontario infrastructure spending. As a result of grassroots disability advocacy, mandatory accessibility requirements were enshrined in this ten-year plan. However, the Ontario Government has made public no plans to effectively implement, monitor and enforce this requirement.

Unenforceable provisions in the weak Ontarians with Disabilities Act 2001 (ODA), the AODA's precursor, also address accessibility requirements when the Ontario Government spends money on capital projects or procurement. Ontario accessibility standards, enacted under the AODA, include requirements for Ontario public sector organizations to procure accessible goods, services and facilities, including electronic kiosks.

Despite these measures, Ontario public money continues to be used to create, perpetuate or exacerbate accessibility barriers. For example, in 2010, the Ontario government unveiled the Presto Smart Card, for paying public transit fares, replete with accessibility barriers. The machines to check a card balance at transit stations only provided information on a screen. There was no audio output for people with vision loss or dyslexia.

Well after the AODA was enacted, the Ontario Government built huge new courthouses in Durham Region and Kitchener. Fully three quarters of all their courtrooms have inaccessible judicial daises."

It is good that the bill makes some reference to one of these ways for using federal money, namely procurement. There are two brief references to procurement in the bill. Section 5(d) of the bill, in setting out the bill's purposes, includes accessibility in procurement. Section 5 includes:

"5 The purpose of this Act is to benefit all persons, especially persons with disabilities, through the progressive realization, within the purview of matters coming within the legislative authority of Parliament, of a Canada without barriers, particularly by the

identification and removal of barriers, and the prevention of new barriers, in the following areas:

(a) employment;

(b) the built environment;

(c) information and communication technologies;

(d) the procurement of goods and services;

(e) the delivery of programs and services;

(f) transportation; and

(g) areas designated under regulations made under paragraph 117(1)(b)."

Also, regarding federally-regulated transportation organizations, s. 120 of the bill provides:

" 120 The only regulations made under subsection 117(1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas:

(a) employment;




The bill's reference to procurement is not strong enough. Under the bill, there is no requirement that the Federal Government or any of the new accessibility agencies it creates or any of the existing agencies it mandates ever do anything about accessibility in procurement. The bill only addresses procurement of goods and services, and not of facilities, in s. 5(d). As well, the bill does not create any requirements for any other kinds of public spending, beyond procurement spending.


#84 the bill should be amended to:

a) require that federal public money should never be used to create or perpetuate disability barriers.

b) require the Federal Government and the agencies and officials empowered under this bill on accessibility to take action on this requirement.

c) require that CASDO develop accessibility standards and the Federal Cabinet develop accessibility regulations regarding accessible procurement, infrastructure, and other uses of federal money.

d) require the Federal Government to publicize policies and procedures regarding these requirements in the use of public money.

e) provide for the enforcement of these requirements, including through the bill's accessibility planning, complaint and inspection processes, and by the Accessibility Commissioner.

f) amend ss. 5(d) and any other provisions so requiring, to include "facilities", not just goods and services.

g) require this strategy on use of public money to go into effect along prompt time lines so that it can begin before accessibility standards or accessibility regulations are enacted.

^f) Ensuring that No Federal Laws Authorize or Require Disability Barriers

Our Discussion Paper explains:

"Federal statutes and regulations should never require or mandate the creation or perpetuation of disability barriers. The Federal Government must ensure that federal statutes and regulations incorporate measures to ensure the accessibility of the programs, policies, rights and opportunities they provide.

The Federal Government must fully review all its statutes and regulations for accessibility barriers. Where found, these laws must be amended to ensure they are barrier-free. The Federal Government must implement measures to ensure that in the future, new statutes or regulations are carefully screened before they are enacted, to ensure they are barrier-free….

…These duties arise from the Eldridge case and Article 4(1)(b) of the CRPD. Yet there is no public indication that Eldridge or the CRPD have led to a Government review of all federal laws and programs for accessibility barriers, and for Eldridge compliance.

The Federal Government must look for more than federal laws that explicitly single out people with disabilities for worse treatment. It must also investigate whether federal laws ensure that people with disabilities can fully participate in all the rights, privileges benefits and duties that these laws extend.

Federal laws give regulatory agencies powers to make and implement a wide spectrum of policies and decisions. These can inadvertently create new disability barriers, or exacerbate existing ones. No federal agency should implement policies or discretionary decisions that undermine accessibility. Where a board, commission, tribunal, or other public official holds a discretionary power, the granting federal law should provide that an exercise of discretion shall not be permitted to create or perpetuate any accessibility barriers.

The Federal Government has had two decades since Eldridge and one decade since the CRPD to conduct this review. Its not having done so proves the need for a CDA requirement.

…An omnibus bill is the only efficient way to amend many laws at once; for a separate bill to be prepared to amend each deficient law would take an eternity.

Ontario experience also shows the need to legislate this. In the 2007 Ontario election, all parties promised that if elected, they would conduct such an accessibility review of Ontario laws. Nine years later, the Ontario Government has reviewed a mere 55 of its 750 statutes and none of its regulations. …

A Federal legislative accessibility review must include a thorough examination of the Criminal Code and related legislation. While the Criminal Code includes some provisions to accommodate disabilities, a complete accessibility modernization of criminal law is overdue. A significant proportion of persons accused of crime and of alleged crime victims have disabilities.

The legislative review also must examine immigration and refugee legislation. Disability barriers should be remedied in rules on who can immigrate to Canada and the process for assessing immigration/refugee claims."


#85 the bill should be amended to require the Federal Government to:

a) conduct a review of all federal statutes and regulations for accessibility barriers, including any provisions that authorize or require the creation or perpetuation of accessibility barriers, including among all laws, the Criminal Code, and immigration legislation.

b) set a deadline for the completion of this review.

c) mandate which cabinet minister should bring forward an omnibus bill, and time lines for that bill, to correct any accessibility barriers that this internal review finds, and that require correcting legislation.

d) require periodic public reporting on the progress of this review of federal laws.

^g) Requiring all Federal Departments and Agencies to Take Accessibility into Account in their Exercise of Discretionary Powers

All departments of the Federal Government and federal agencies have a range of discretionary powers. It is important for them to take into account the impact on accessibility when those discretionary powers are exercised. That is a requirement of the constitutional guarantee of equality to people with disabilities in s. 15 of the Canadian Charter of Rights and Freedoms. Yet many if not most public officials who exercise those discretionary powers likely have no idea about this and do not do this. We have seen no prior systematic effort by the Federal Government to ensure that they do so. We therefore recommend that:

#86 the bill should be amended to require, as an omnibus requirement, that whenever a federal statute or regulation confers a discretionary power on any federal public official, department or agency, that decision-maker shall take into account, in its exercise, the impact on accessibility for people with disabilities, and shall give weight to discretionary choices that are more effective at preventing and removing accessibility barriers against people with disabilities.

^h) Creating a Broader Duty of the Federal Government to Use Available Levers of Power to Promote Accessibility

More generally, and beyond the foregoing, the bill does not ensure that the Federal Government uses all the levers of power at its disposal to promote full accessibility, beyond the specific measures it now lists. Of course, the Federal Government cannot effectively use these levers of power until it first knows what they are and where they are.


#87 the bill should be amended to

a) require, within a designated time frame, the Office of Disability Issues or other office that the Government designates to make public a list of the Federal Government's programs and other powers or opportunities that might be used to leverage more accessibility in society for people with disabilities, and

b) require each department of the Federal Government to include in its accessibility plan, prepared under this bill, plans for using the levers of power available to it to advance the cause of accessibility for people with disabilities.

î) Ensuring Federal Elections Become Disability Accessible

The bill should require the Federal Government to ensure that federal elections become barrier-free for voters and candidates with disabilities.

Our Discussion Paper explains:

"Barriers continue to recur in federal, provincial and municipal elections. Voters with physical disabilities are not assured that polling stations will be fully accessible. Voters with limited or no vision, or with other print disabilities or motor limitations, are not assured that they can mark their own print ballots independently and in private, and then verify that their ballot was properly marked in accordance with their wishes. Election campaign information is often inaccessible to people with vision loss, dyslexia and/ or hearing loss.

If a polling station or ballot lacks accessibility, a Charter or human rights case, after the fact, cannot restore the rights in an election which is already decided. These barriers are illegal and unfair. The Federal Government’s duty to honour these important accessibility rights has several bases, including Charter s. 3 (right to vote and stand as a federal candidate), and s. 15 (equality rights), the Canada Human Rights Act’s right to equal treatment in services and facilities, and CRPD Article 29 (participation in political and public life).

In 2010, the Canadian Human Rights Tribunal's landmark Hughes v. Elections Canada ruling found that Elections Canada substantially violated the human rights of a voter with a physical disability by failing to ensure the physical accessibility of polling stations.

Ontarians with disabilities have campaigned since at least 1999 for accessibility in provincial and municipal elections. Ontario's Government has implemented insufficient solutions. It left this issue to the discretion of election officials who haven't solved it after two general elections and several by-elections."



a) require the Accessibility Commissioner to appoint, within 12 months of the bill being enacted, an independent person (with no current or prior involvement in administering elections) to conduct an Independent Review of disability barriers in the election process, with a requirement to consult the public, including people with disabilities, and to report within 12 months to the Federal Government. Their report should immediately be made public.

b) require the Federal Government to designate a minister with responsibility to bring forward a bill to reform elections legislation within 12 months after the completion of that Independent Review.

^j) Ensuring a Fully Accessible Federal Government

Our Discussion Paper states:

"The Federal Government must lead by a good accessibility example. If it doesn't take its accessibility duties sufficiently seriously, this would signal to other organizations that they can too.

Large governments can lag behind other organizations on accessibility. The Federal Government led by a poor example by its protracted opposition to ensuring that its websites were disability-accessible."

The bill needs to include strong targeted measures to ensure that the Federal Government becomes a fully accessible workplace and service-provider. If this does not become the mandate of the Chief Accessibility Officer, referred to earlier in this brief, then the bill should require the Federal Government to designate one minister and one full time deputy minister, to be ultimately responsible for ensuring that the Federal Public Service becomes a fully accessible employer and service provider. Both AODA Independent Reviews recommended this for Ontario. Otherwise, no one is in charge.

The bill should also require the Federal Government to implement a comprehensive program to periodically audit its workplaces and goods, services and facilities for accessibility, with audit results to be made public. This should include on-site audits and inspections, not just audits of paper records on accessibility.

As well, the bill should require the Federal Government to implement a program to ensure accountability of Federal Public Servants for accessibility efforts. Among other things, it should require that every employee include in his or her annual performance review, accessibility performance goals. Pay and promotion decisions should effectively take into account the employee's performance on accessibility.

In addition, the bill should require each federal department and agency to designate an accessibility lead official, to be situated in the office of that department's or agency's office of the deputy minister or agency CEO. This official, who can be assigned from among existing staff, should be mandated to ensure that accessibility is embedded throughout the department or agency. Our Discussion Paper states:

"If responsibility for action on accessibility is left splintered among silos across a large department, or left to staff further down the hierarchy, progress is too slow."

The bill should require the Federal Government to maintain a central fund to pay for workplace accommodations for federal public servants with disabilities. The Ontario Government has had such a fund since the mid-1980s. Our Discussion Paper states:

"Legislation must require this fund. In 2011, the Ontario Government wrongly abolished its fund. It restored it only when confronted with the fact that its abolition violated Ontario law."



a) require the Federal Government to designate one minister and one full time deputy minister, who has ultimate responsibility for ensuring that the Federal Public Service becomes a fully accessible employer and service provider, if this is not the mandate of the Chief Accessibility Officer.

b) require the Federal Government to implement a comprehensive program for periodic independent audits of its workplaces and goods, services and facilities for accessibility, with audit results to be made public.

c) require the Federal Government to implement a program to ensure accountability of Federal Public Servants for accessibility efforts, e.g. by requiring that every employee include in his or her annual performance review, accessibility performance goals, the results of which will influence pay and promotion decisions.

d) require each federal department and agency to designate an accessibility lead official, to be situated in the office of that department's or agency's office of the deputy minister or agency CEO, mandated to ensure that accessibility is embedded throughout the department or agency.

e) require the Federal Government to maintain a central fund to pay for workplace accommodations for federal public servants with disabilities.

^k) Ensuring Full Accessibility of All Courts Within Federal Authority

The bill should require the Federal Government to develop and implement a plan to ensure that all federally controlled courts (e.g. the Supreme Court of Canada and Federal Courts) become fully accessible to court participants with disabilities, by the bill's accessibility deadline. Our Discussion Paper explains:

"Court participants with disabilities include judges, lawyers, parties, witnesses, court staff, and members of the public who exercise their constitutional right to observe court proceedings. They too often face barriers. Courts, like other organizations, were historically designed and operated without ensuring that people with disabilities can fully participate.

Ontario has had a commendable initiative since 2005 to make Ontario courts fully accessible by 2025. Ontario experience shows a need for joint leadership and oversight by the government, judiciary and legal profession."

This strategy should incorporate Ontario's ground-breaking 2007 blueprint: “Making Ontario’s Courts Fully Accessible to Persons with Disabilities." The bill should mandate the Federal Government to work with provinces and territories to encourage similar provincial and territorial strategies for their courts, while respecting provincial/territorial authority.


http://www.ontariocourts.ca/accessible_courts/en/report_courts_disabilities.htm


a) require the Minister of Justice, on behalf of the Federal Government, to develop and implement a multi-year plan to ensure that all federally controlled courts (e.g. the Supreme Court of Canada and Federal Courts) become fully accessible to court participants with disabilities, by the bill's accessibility deadline.

b) mandate the Federal Government to work with provinces and territories to encourage similar provincial and territorial strategies for their courts.

^l) Mandating a Strategy to Expand International Trade in Canadian Accessible Goods, Services and Facilities

The Federal Government needs to create and maintain an effective strategy to expand Canadian efforts to serve worldwide markets for accessible goods, services and facilities.

Our Discussion Paper states:

"Up to one billion people with disabilities around the world need accessible products and services. The international trend towards enacting accessibility legislation generates increasing demands on those selling goods and services internationally, to ensure their accessibility.

Canadian businesses will make more money and Canadian employment will increase if Canadian businesses produce accessible products to sell internationally. Canada's private sector could also sell these products in Canada, benefitting Canadians with disabilities….…When Canadian ministers board an airplane to fly Canadian business leaders around the world, to sell our goods/services, they should ensure that private sector leaders, invited on the plane, have striven to ensure the accessibility of their goods/services."


#91 the bill should be amended to designate a federal minister with responsibility to create and maintain an effective strategy to expand Canadian efforts to serve worldwide markets for accessible goods, services and facilities.

^m) Assisting and Encouraging Provincial and Territorial Governments to Enact Comprehensive Accessibility Legislation

Our Discussion Paper includes:

"Many accessibility barriers are within provincial jurisdiction. Parliament's reach is narrower than the US Congress which passed the Americans with Disabilities Act."

Three provinces have enacted accessibility legislation, Ontario in 2005, Manitoba in 2013 and Nova Scotia in 2017. In July 2018, the British Columbia Government was reported in the media as committing to bring forward an accessibility law.

The bill should require the Federal Government to do what it can to address the removal and prevention of provincially-regulated barriers, while fully respecting provincial authority. Only when all Canadian jurisdictions enact and enforce strong accessibility legislation can all people with disabilities be assured that Canada will reach full accessibility, the goal of this bill.

In this regard, it is very good that the mandate for CASDO under the bill can include creating model accessibility standards (which are not of themselves binding) regarding barriers that could appear in the provincial sphere. It would be open to a province to adopt those into provincial law, if it wishes. This is entirely respectful of provincial jurisdiction. Our Discussion Paper also states:

"The Federal Government can assist by encouraging all provinces to pass accessibility legislation within their mandates. …

…Federal efforts at harmonizing accessibility laws across Canada should encourage all provinces and territories, and all obligated organizations to rise to the full accessibility standard set by all human rights legislation across Canada, and by the Charter. This doesn't exceed federal authority. Each province would remain free to decide if it will enact a provincial accessibility law, and what it will include.

When more provincial/territorial governments pass and enforce strong accessibility legislation, more organizations that do business in multiple provinces will meet their human rights accessibility duties, even in provinces that have no accessibility legislation. "


#92 the bill should be amended to designate a federal minister with responsibility to work with the provinces and territories to encourage them to all enact accessibility legislation, it being clearly understood that any harmonization among them should strive to reach the highest level of accessibility, and not dilute to the lowest level of accessibility.

#93 Part 2 of the bill, creating CASDO, should be amended to make it clear that CASDO's mandate includes making its non-binding accessibility standards that address barriers that may fall within provincial jurisdiction, which provinces are free to adopt into provincial law if they wish.

https://www.aodaalliance.org/whats-new/two-major-developments-on-the-accessibility-front-outside-ontario-carla-qualtrough-is-back-as-federal-minister-to-lead-bill-c-81-through-parliament-and-bc-government-commits-to-a-bc-disabilities/

Âppendix 1 List of Recommendations In This Brief

#1 Section 2 of the bill, and any consequential amendments to other legislation that the bill makes, should be amended to ensure a definition of disability that is broad and inclusive, that reaches as far as the term "disability" in the Canadian Charter of Rights and Freedoms and in the Canada Human Rights Act, and that does not risk excluding any disability, e.g. by:

a) providing that "disability" includes any kind of disability, including, without limiting the generality of the foregoing, the kinds and categories of disabilities that the bill now lists.

b) explicitly adding commonly-known disabilities by name, and ensuring that this list includes neurological impairments, environmental sensitivities and mental health conditions.

c) clarifying that "disability" includes any degree of one or more of these conditions, and

d) adding being regarded as having one or more of these conditions

#2 The definition of "barrier" in s. 2 of the bill, and any consequential amendments to other legislation that the bill makes (e.g. amendments that list the kinds of barriers to be addressed), such as s. 170(1)), should be amended to:

a) make it clear that "barrier" includes barriers imposed by or under a law.

b) track the definition of "barrier" in the Accessibility for Ontarians with Disabilities Act 2005 s.

#3 Section 5 of the bill should be amended to set the bill's purpose as achieving an accessible Canada, in so far as Parliament and the Federal Government can achieve this, by a specified deadline, which Parliament should set in the bill.

It is good that the bill includes, in its purpose clause, accessibility in the areas of employment, the built environment, information and communication technologies, the procurement of goods and services, transportation; and any other areas that may later be designated in future regulations that the Federal Cabinet can make under this bill. However, these do not cover all the areas and activities that we need the bill to cover.

For example, the bill should cover any facilities (not just goods and services). It should cover all technologies (not just information technology). It should cover the full range of areas where federal funding can be applied, such as infrastructure, as well as loans or grants (not just procurement spending).

It is not good enough that regulations can be later enacted to extend the scope of s. 5, and thereby, the scope of the bill. To get such regulations passed would shift an unfair burden on people with disabilities to have to lobby for those regulations. The Federal Government may well be reluctant to pass such regulations for the next few years, when the bill was just enacted. Moreover, such regulations can later be repealed by a successor government, without requiring any vote in Parliament.

#4 Section 5 of the bill should be amended to include all facilities (not just goods and services), all technology (not just information technology), all federal spending (not just spending on procurement), and all activity that can be reached by Parliament and the Federal Government.

#5 Section 4 of the bill should be amended to require the Cabinet to appoint a minister at all times, to be responsible for this bill and to be called the Minister Responsible for Accessibility.

It is very important that this minister not also be the minister with lead responsibility for the federal public service. These are conflicting roles. The same minister cannot lead the law's regulatory activity and also be the voice of the largest obligated organization that will have to comply with this law. We learned this lesson in Ontario between January 2017 and June 2018, when the former Ontario Government unwisely assigned both roles to the same minister.

#6 Section 4 of the bill should be amended to require that the minister who has lead responsibility for this Act to not also be the minister with lead responsibility for the Federal Public Service.

#7 Section 6 of the bill should be amended to remove the words "abilities or" in each instance where it appears in the principles set out in this section, and

*3 Subsection 6(e)of the bill should be revised to read:

"(e) laws, policies, programs, services and structures must be designed and operated in a manner that effectively addresses, accounts for and accommodates the needs of people with disabilities, and the different ways that persons interact with their environments…"

#8 Section 7 of the bill should be amended to make it clear that the bill applies to any organization or entity that is the recipient of federal payments, including, without limiting the generality of the foregoing, any federal contributions, loans or grants for procurement of goods, services or facilities, for infrastructure, for research, business development or any other purpose, and for transfer payments, and includes any organization or entity that enters into a contract with the Federal Government or its related entities.

Second, the bill only makes the bill applicable to Parliament itself to a limited degree. Section 7(2) of the bill provides:

"(2) This Act also applies, to the extent provided for in Part 9, to the entities referred to in the definition of parliamentary entity in section 134."

Section 134 provides:

"134 In this Part, parliamentary entity means

(a) the Senate, as represented by any committee or person that the Senate by its rules or orders designates for the purposes of this Part;

(b) the House of Commons, as represented by the Board of Internal Economy of the House of Commons;

(c) the Library of Parliament;

(d) the office of the Senate Ethics Officer;"

The bill should fully apply to all aspects of Parliament and to the offices of all Members of Parliament and of the Senate. If anything, Parliament should be a flagship institution in Canada that practices what it commendably preaches in this bill.

#9 Section 7(2) of the bill be amended to ensure that the entire bill applies fully to all aspects and operations of Parliament, including, as examples, the offices of all Members of Parliament and all Senators.

#10 the bill should be amended to impose clear and strong mandatory duties on the minister, the Federal Government, the federal Cabinet, and key accessibility agencies, with time lines for action. For example, this should include:

a) a duty on cabinet to make all the accessibility standard regulations needed to achieve the purpose of the Act by the deadline for Canada to become accessible that the Act, once amended, will require.

b) duties and deadlines to create or appoint the key implementation agencies such as the Accessibility Commissioner, CASDO and the Chief Accessibility Officer.

#11 the bill should be amended to eliminate the duplicative enforcement mandates of the Canada Transportation Agency, the Canadian Radio, Television and Telecommunication Commission and the Federal Public Sector Labour Relations and Employment Board. All enforcement responsibility should be consolidated in the Accessibility Commissioner. If not, then the need for multiple duplicative regulations on the bill's implementation and enforcement should be eliminated.

#12 Section 11(1) of the bill should be amended to set the minister's objective as achieving an accessible Canada by the bill's specified deadline.

Similarly, section 12 too narrowly sets the minister's mandate. Section 12 provides:

"12 The Minister’s powers, duties and functions extend to and include all matters relating to accessibility over which Parliament has jurisdiction and that are not by law assigned to any other Minister or to any department, board or agency of the Government of Canada."

The minister's mandate should extend to all areas that the Federal Government can reach, whether or not some other law assigns some aspect of accessibility to some other minister or federal agency. Parliament, the Prime Minister and the public need one elected public official in

cabinet with full responsibility. Splintered responsibility leads to incoherent and disconnected silos in an organization as huge as the Federal Government.

#13 Section 12 of the bill should be amended to remove the words "and that are not by law assigned to any other Minister or to any department, board or agency of the Government of Canada", so that it will read:

"The Minister's powers, duties and functions extend to and include all matters relating to accessibility over which Parliament has jurisdiction."

Section 16 commendably lets the minister work with provinces and territories on accessibility issues. However it does not require the minister to ever do so. Section 16 provides:

"16 The Minister may work with provincial or territorial authorities with a view to coordinating efforts in relation to matters relating to accessibility."


#14 Section 16 of the bill should be amended to require the minister to work with provincial and territorial governments on accessibility, and not merely to permit the minister to do so.


a) make it clear that the predominant time and work of CASDO will be to create accessibility standards, and

b) specify that the first accessibility standards it will create should include, among others, accessibility standards in the areas of the built environment, accessible customer service, accessible information and communication, accessible transportation, and accessible employment.

c) set time lines by which CASDO will have identified the first set of accessibility standards to be created, and by when it will have completed the development of its first round of accessibility standards.

The bill's mandate for CASDO is too narrow. Section 18 of the bill provides CASDO's mandate as follows:

"18 The Standards Organization’s mandate is to contribute to the progressive realization of a Canada without barriers by, among other things,

(a) the development and revision of accessibility standards;

(b) the recommendation of accessibility standards to the Minister;

(c) the provision of information, products and services in relation to the accessibility standards that it has developed or revised;

(d) the promotion, support and conduct of research into the identification and removal of barriers and the prevention of new barriers; and

(e) the dissemination of information, including information about best practices, in relation to the identification and removal of barriers and the prevention of new barriers."

This provision needs to be strengthened in the same way as this brief recommends for s. 5 of the bill, for the bill's overall purpose. It suffers from the same weakness as this brief earlier identified for s. 5.

The lack of a specified deadline for reaching accessibility in Canada, in so far as the Federal Government can achieve this, will especially hurt the standards development process. In Ontario, people with disabilities argue under the AODA that an AODA accessibility standard must ensure accessibility in the sector to be regulated by 2025. Without that deadline, the position of people with disabilities is much weaker when trying to get an accessibility standard to be strong and effective.

#16 The opening words of s. 18 of the bill should be amended to provide as follows:

"18 The Standards Organization’s mandate is to contribute to the realization of a Canada without barriers by the bill's specified deadline by…"

It is important that any accessibility standards at least meet the accessibility requirements in the Canada Human Rights Act and, where applicable, the Canadian Charter of Rights and Freedoms. Otherwise an organization that complies with the accessibility standard will still fall short of their primary constitutional and quasi-constitutional duties.

#17 the bill should be amended to require that CASDO, when developing accessibility standards, and the Federal Government, when developing accessibility regulations, should, to the extent then known, set requirements that at least fulfil the accessibility requirements in the Canada Human Rights Act and, where applicable, the Canadian Charter of Rights and Freedoms.

Section 19 empowers CASDO to charge a fee for an accessibility standard that it creates. Section 19(e) provides:

"(e) charge a fee for any accessibility standard that it develops or revises and any information, product or service that it provides under this Act;"

Any accessibility standard that CASDO develops should always be made available to the public for free. No fee should ever be charged. A fee will be a barrier for people with disabilities who want to get a copy and spread the word in advocacy efforts. A fee will be a disincentive to obligated organizations. This is the wrong way to try to generate revenues.

We know of problems in the past. At times, the Ontario Government has charged for a copy of the Ontario Building Code. Similarly, the Canadian Standards Association, a private organization, at least at some times in the past has charged for its accessibility standards.

The purposes of this legislation are best promoted by ensuring that any accessibility standard is easily available, can be acquired for free, and is widely distributed.

#18 Section 19(e) of the bill should be amended to prohibit the Canadian Accessibility Standards Development Organization from charging a fee to obtain a copy of an accessibility standard that it has developed.

It is very important for CASDO to operate in a way that is fully independent of the Federal Government. The Federal Government is the largest obligated organization under this bill. From our experience in Ontario with the AODA, it is very clear that the Federal Public service will have a strong interest in watering down accessibility standards. Some politicians may have a similar interest. In Ontario we have witnessed how the Accessibility Directorate of Ontario has tried to directly or subtly influence the work of Standards Development Committees. This had worked to the detriment of the standards development process.

Of course, the Federal Cabinet will get the final say on which accessibility standards will be enacted into law as regulations under the bill. However, it is important for the bill to substantially and pro-actively insulate CASDO from Federal Government or Federal Public Service interference with its work, and with its recommendations.

The bill goes some distance to this end. However, it would be far better if CASDO were to report directly to Parliament, rather than to a minister.

#19 Part 2 of the bill should be amended to make CASDO fully independent of the Federal Government, and to make it report directly to Parliament, rather than to a minister of the government of the day.

Giving rise to the same concerns s, 21(1) of the bill lets the minister issue "general directions" to CASDO about its work. Section 21(1) provides:

"21 (1) The Minister may issue general directions to the Standards Organization respecting the carrying out of its mandate."

At first blush, this might seem neutral and harmless. However, as written, it raises potential concerns, as we have learned in Ontario's standards development process over the past 13 years.

If a minister wants to have CASDO develop an accessibility standard in a particular area, the minister should of course be able to make that request. However, if CASDO has decided to develop an accessibility standard in a particular area that it considers important for accessibility for people with disabilities, a minister should not, by their directions under this provision, be able to shut that down, or to impose restrictions on the scope of that accessibility standard.

It is significant here that an accessibility standard that CASDO creates is not binding law, until and unless the Federal Government enacts it as a regulation. Therefore, no harm is done if CASDO proceeds to work on an accessibility standard in an area with which the Federal Government or the minister does not agree.

For example, the previous Ontario Government commendably decided in 2015 to develop a Health Care Accessibility Standard. However the relevant Ontario ministry wrongly tried to impose restrictions on what its Health Care Standards Development Committee could consider. In the 2016 summer, it tried to substantially limit what the Standards Development Committee could consider, even before appointing it, leaving out such important things as the built environment in which health care services are provided. In 2017 the former Ontario Government appointed a Health Care Standards Development Committee under the AODA, but attempted in its Mandate Letter to that Committee to restrict its work to the hospital sector. This would leave out the rest of the health care system, where most health care services are delivered.

#20 Section 21(1) of the bill should be amended to empower the minister to make non-binding recommendations to CASDO regarding its work on developing accessibility standards.

It is important for CASDO to be able to get right to work, once appointed. It may be helpful for CASDO to create by-laws under s. 27 of the bill. However, it should not be necessary to do so, for CASDO to get right to the important work of developing accessibility standards. Otherwise, the implementation of this bill could be delayed, as CASDO's board of directors struggles with what to include in its by-laws. Section 27(1) of the bill provides:

"27 (1) The board of directors may make by-laws respecting the carrying out of its activities and the conduct of its affairs."

Public sector organizations can at times get tied up and distracted by such procedural technicalities. As such, it is important for the bill to make it clear that CASDO need not enact by-laws, and that the development of its by-laws should not delay or distract from its work.

#21 Section 27(1) of the bill should be amended to make it clear that CASDO need not create any by-laws, and that the creation of by-laws should not delay its getting to work as soon as possible on developing accessibility standards.

Section 29 creates the position of Chair of CASDO. However, it does not make this a full-time position. It should be a full-time position, given the substantial work involved.

#22 Section 29 of the bill should be amended to empower the CASDO Chair as a full-time position.

It is good that the bill creates a full-time position of CASDO chief executive officer. However, it limits that person's term in office to 5 years, unless renewed. Section 30(1) of the bill provides:

"30 (1) The Chief Executive Officer of the Standards Organization is to be appointed by the Governor in Council to hold office on a full-time basis during pleasure for a term of up to five years."

To secure talented candidates, they should be able to have an assurance of a longer term in office. Moreover, especially in the early years, the new CEO can acquire expertise that Canada won't want to lose. Of course, because they serve at pleasure, they don't have a guarantee of a job.

#23 Section 30(1) of the bill should be amended to provide that the CASDO chief executive officer's term, subject to renewal, is 8 years.

The bill lets the minister appoint someone to fill in for up to 90 days at a time, in case the CASDO CEO is absent or incapacitated. However, the bill doesn't require the minister to ever do so. this could leave a long vacancy in this key position, seriously impairing the bill's operations. Section 31(3) provides:

" (3) In the event of the absence or incapacity of the Chief Executive Officer, or a vacancy in that office, the Minister may authorize any person to act as Chief Executive Officer, but no person so authorized has authority to act for a term of more than 90 days without the Governor in Council’s approval."

#24 Section 31(3) of the bill should be amended to require the minister to designate an acting replacement for the CEO within 90 days of the CEO's absence or incapacity, unless the CEO is known to be returning to their office within 90 days.

It is good that section 32(1) of the bill empowers the CASDO CEO to create advisory committees to help with the standards development process. Section 32(1) provides:

"32 (1) The Chief Executive Officer may establish committees to assist in the development and revision of accessibility standards."

The makeup of the membership of these committees will be very important. The CASDO board should be consulted in this choice, rather than simply leaving it to the CEO. We therefore recommend that:

#25 Section 32(1) of the bill should be amended to require the CASDO CEO to consult with the CASDO board when selecting membership of an advisory committee to assist CASDO with developing accessibility standards.

The bill does not require that members of CASDO advisory committees be paid for their time, and that their reasonable expenses be covered. Such compensation has been especially important under Ontario's AODA for disability sector representation.

#26 Section 32 of the bill should be amended to require compensation and reasonable expenses for members of CASDO advisory committees, and particularly, for those from the community or non-profit and voluntary sectors.

In Part 2 of the bill, the Federal Government is proposing to go a different route than did Ontario in the design of its standards development process. Unlike Ontario, the bill is entirely flexible and non-prescriptive on how CASDO is to go about creating an accessibility standard. It does not require a Standards Development Committee to be appointed. It does not set out the mandate or functions of a Standards Development Committee.

The bill does not specify what sorts of people should be on an advisory committee. In contrast the AODA is more detailed and prescriptive on point. Section 8(4) of the AODA provides:

" (4) The Minister shall invite the following persons or entities to participate as members of a standards development committee:1. Persons with disabilities or their representatives. 2. Representatives of the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.3. Representatives of ministries that have responsibilities relating to the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply.4. Such other persons or organizations as the Minister may consider advisable. 2005, c. 11, s. 8 (4)."

As a matter of Ontario Government policy, each Ontario Standards Development Committee has at least 50% of its membership coming from the disability sector.

From the Ontario experience, we had recommended to the Federal Government that the bill create a formal Standards Development Committee process. however, it may be that the bill's more flexible approach may be faster and more effective. This is subject to one major deficiency in the bill.

The bill does not ensure enough public information and public accountability during CASDO's work on developing an accessibility standard. It is good that s. 34 of the bill requires CASDO to make public any accessibility standard it recommends to the minister. However, it does not require anything to be public about CASDO's work on developing an accessibility standard during the entire process leading up to its finalizing a recommendation for the minister. The CASDO annual report, required under s. 36 of the bill, may not give the kind of timely public information that is needed.

In contrast, Ontario's AODA requires the terms of reference of a Standards Development Committee to be made public, as well as the Committee's required progress reports that it submits to the relevant minister. It requires the Standards Development Committee to make public its initial or draft recommendations, and for the public to have a chance to give input on these. The Standards Development Committee then is expected to consider this feedback before

finalizing its recommendations. Of significance, each Standards Development Committee is required to keep and make public its minutes.

In a very different regime Under the bill, people with disabilities could wake up one morning to suddenly find that CASDO has submitted a new accessibility standard to the minister, and posted it publicly for all to see and use, even before the Federal Government enacts it in a regulation. It could be deeply flawed. For example, in recent years, a federal agency with no known procedural safeguards proposed a national standard on service dogs for people with disabilities that would have created enormous problems, e.g. for people with vision loss who use a trained guide dog from a recognized guide dog school. This secured international attention and criticism. It required a vigorous effort from the disability community to advocate against it.

In addition, the bill does not require CASDO to consult the disability sector, or to ensure that they have sufficient representation on any advisory committee. The best safeguard against such problems is to ensure that CASDO's process is very open throughout, and not just at the end, that it has proper disability sector representation and consultation built into the process. It is not good enough to include people with disabilities on the CASDO board or advisory committees. If an obligated organization such as Air Canada or Bell Canada sends an employee with a disability to such a body, to represent Air Canada's or Bell Canada's interests, this does not ensure effective inclusion of the disability sector's perspective in the process.

#27 part 2 of the bill should be amended to:

a) require CASDO to consult the public, including people with disabilities, along specified time lines, on which accessibility standards it should create.

b) require CASDO to make public, along specified time lines, the accessibility standards it has decided to start to develop, and the work in progress on these standards.

c) require CASDO to make public, immediately on their appointment, the names and affiliations if any of any members of a CASDO advisory committee.

d) require CASDO to promptly make public minutes of CASDO advisory committees and of the CASDO board, which should be required to be kept. These minutes should identify any draft recommendations under consideration, so the public knows what CASDO is considering.

f) require CASDO to consult the public, including the disability community, on the contents of accessibility standards it is considering adopting.

Our Discussion Paper makes an important point regarding the development of accessibility standards. It states:

"The CDA should avoid an Ontario mistake. Ontario accessibility standards proceeded on the basis that no private sector organizations should have to comply with accessibility requirements until the Ontario Government complied first, because the Ontario

Government must lead by example. This caused years of unjustified delay on accessibility in the private sector.

Under human rights law, the public and private sectors have a simultaneous duty to remove and prevent disability accessibility barriers and to accommodate people with disabilities. A private sector organization cannot justify a failure to meet this duty, on the grounds that the Government has not yet met its duty. Timelines in accessibility standards for taking action should be geared to an organization's capacity, but not to time lines for progress in other organizations."

There are circumstances when smaller organizations can make more progress on accessibility much more quickly than can a huge government or government department. For example, a small organization with a small website can far more quickly and easily fix accessibility issues in their website than a huge government organization with a huge and complicated website with far more web pages to remediate.

#28 Part 2 of the bill should be amended to provide that time lines for accessibility standards or accessibility regulations should be geared to the time an organization needs to make progress on accessibility, and not to the time that other unrelated organizations need to achieve progress on accessibility.

The previous Ontario Government had a practice of trying to require members of a Standards Development Committee to sign a non-disclosure agreement regarding their work on an accessibility standard with the Standards Development Committee. The AODA Alliance has opposed this. It works against the effective operations of these committees. Any advisory committee member should be free to let others know what is being discussed, to help gather input and to ensure proper accountability. Given the unfortunate prevalence of such non-disclosure agreements among some Government bodies, it is important for the bill to preclude this secrecy from being attempted here.

#29 Part 2 of the bill should be amended to provide that CASDO may not impose non-disclosure agreements on members of its board or advisory committees.

It is good that s. 36 of the bill requires CASDO to produce an annual report, and that s. 36(2) requires the minister to table the report with Parliament. However it need not be made public until the next session when a House of Parliament is sitting. Section 36(2) of the bill provides:

" (2) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister."

Ontario experience shows that this can create undue delays in making this kind of information public. CASDO should be required to make this report public immediately upon its being prepared. This is not disrespectful of Parliament. Our approach follows along the same lines as s. 38(2) of the bill, which commendably permits the Accessibility Commissioner to make public

any report they give the minister, 60 days after providing it to the minister. We propose amendments later in this brief to strengthen s. 38(2). Section 38(2) of the bill provides:

"(2)? The Accessibility Commissioner may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister."

#30 section 36(2) of the bill should be amended to require CASDO to make its annual report public immediately upon adopting it.

#31 the bill should be amended to provide that the Accessibility Commissioner reports directly to parliament.

It is good that s. 38(2) allows the Accessibility Commissioner to make public any report they give to the minister, 60 days after delivering it to the minister. Section 38(2) provides:

"(2)?The Accessibility Commissioner may, after the sixtieth day after the day on which it was provided, publish any report that he or she provided to the Minister."

However, public disclosure of any report by the Accessibility Commissioner to the minister should be mandatory. There is no justification for secrecy here. There is ample justification for openness and transparency. The public, including people with disabilities, should not have to undertake a Freedom of Information application to get prompt access to such information.

#32 Section 38(2) of the bill should be amended to require the Accessibility Commissioner to make public any report to the minister 60 days after delivering the report to the minister.

Later in this brief, we deal with the bill's specific requirements to report on certain enforcement activities.

Section 40 lets the Accessibility Commissioner delegate certain of their powers to certain other persons. However it does not require these delegations to be made public. Making these delegations public would be important for the public to be able to monitor how this bill is being implemented and enforced.

#33 Section 40 of the bill should be amended to require the Accessibility Commissioner to make public the specifics of any delegation of their authority to any other persons.

Earlier in this brief we addressed the need to consolidate all of the bill's enforcement powers in the Accessibility Commissioner.

#34 Section 42(1) and other related provisions of the bill (s. 51, 56, 61, 65 and 69) ) should be amended to impose a single hard deadline for all obligated organizations on when the duty to prepare an accessibility plan will arise, with no precondition that any regulations first must have been enacted under the bill.

The bill's provisions on accessibility plans are very process-heavy. Yet they are much lighter on ensuring that the plans are effective at identifying, removing and preventing barriers. For people with disabilities, what matters is for barriers to be removed and prevented.

The bill's requirements for the contents of the accessibility plan are far too slim and weak. They are similar to the weak accessibility plan requirements in the discredited and now-repealed Ontarians with Disabilities Act 2001. Under this bill, just as under the Ontarians with Disabilities Act 2001, an obligated organization can fully comply with the bill, by having an accessibility plan that ignores major known disability barriers within that organization and that commits to do nothing about any accessibility barriers in that organization. For example, for broadcasting organizations, s. 42(1)(a) provides a list of the areas an accessibility plan shall address, the most important of which is:

"(a)its policies, programs, practices and services in relation to the identification and removal of barriers, and the prevention of new barriers, in the areas referred to in paragraphs 5(c) to (e) and, if it is not subject to the Employment Equity Act, employment equity; …"

If an organization has no policies, practices or procedures on point, it need not list anything in the plan.

Moreover, the accessibility plan should have the aim of ensuring that the obligated organization will become accessible and barrier-free by the deadline that the Act sets for Canada.

#35 section 42 of the bill and related provisions that define the required contents of accessibility plans for any obligated organizations should be amended to require obligated organizations to include in their accessibility plan:

a) measures needed to ensure that the obligated organization will become barrier-free and accessible by the deadline that the Act sets for Canada.

b)a) the steps the organization has taken in the past year and will take in the subsequent years that the plan covers, to identify, remove and prevent disability barriers in its goods, services, facilities, employment, its built environment, and in anything it procures;

c) The organization's long-term plans for identifying, removing and preventing such barriers beyond the period of the plan, and the assignment of responsibility among senior managers.

d) the specific barriers the organization has found, including e.g. in the areas of employment, customer service, the goods, services or facilities that the obligated organization provides, and the built environment in which the obligated organization operates;

e) the measures it has taken and the measures it will take in the next two years to remove those barriers;f) The organization's strategies for preventing the creation of new barriers in any of those areas;

g) requirements and procedures for ensuring that procurement spending, infrastructure spending, and any other use of public money will ensure that it is not used to create or perpetuate disability barriers.

h) In the case of updated accessibility plans, and explanation if any barrier has not been removed as had been planned in an earlier plan.

Section 42(4) requires each obligated broadcasting organization to consult people with disabilities in the preparation of its accessibility plan. Similar provisions are repeated in the bill for other categories of obligated organizations. Section 42(4) provides:

" (4) The regulated entity must consult persons with disabilities in the preparation of its accessibility plan and every updated version of its accessibility plan."

At first, this would seem to be a positive step. It reflects the maxim "Nothing about us without us."

The concerns with this provision are twofold: First, it again engages each obligated organization in having to repeat the same consultations, over and over, to hear the same thing. Bell Canada, Rogers and Shaw Cable, among others, must ask people with disabilities about the same barriers.

Some accessibility standards under Ontario's AODA make this mistake, rather than creating the detailed accessibility standards that people with disabilities need. As one illustration, the Integrated Accessibility Standards Regulation, enacted under the AODA, addresses the need for accessibility in playgrounds. However, it does not spell out what needs to be included. Instead, it obliges each relevant obligated organization to consult people with disabilities one playground at a time. Section 80 of the Integrated Accessibility Standards Regulation includes:

" 80.19 When constructing new or redeveloping existing outdoor play spaces, obligated organizations, other than small organizations, shall consult on the needs of children and caregivers with various disabilities and shall do so in the following manner: 1. The Government of Ontario, the Legislative Assembly, designated public sector organizations and large organizations must consult with the public and persons with disabilities. 2. Municipalities must also consult with their municipal accessibility advisory committees, where one has been established in accordance with subsection 29 (1) or (2) of the Act.

Outdoor play spaces, accessibility in design 80.20 When constructing new or redeveloping existing play spaces that they intend to maintain, obligated organizations, other than small organizations, shall,(a) incorporate accessibility features, such as sensory and active play components, for children and caregivers with various disabilities into the design of outdoor play spaces; and(b) ensure that outdoor play spaces have a ground surface that is firm, stable and has impact attenuating properties for injury prevention and sufficient clearance to provide

children and caregivers with various disabilities the ability to move through, in and around the outdoor play space."

The very same accessibility features are needed on a new set of swings, in any playground, anywhere in Ontario. Yet, rather than telling obligated organizations what these are, this regulation requires people with disabilities from one community to the next to each figure this out, and then tell each obligated organization about it, over and over. This is wastefully burdensome on people with disabilities, and wasteful for obligated organizations. It does not ensure that any new set of swings will actually be accessible. An effective detailed accessibility standard that specifies what a new set of swings needs to include is a far better solution.

The second problem with the bill's consultation provision is that it requires people with disabilities to become free accessibility consultants for each obligated organization. This includes their providing this free service for large for-profit organizations like the airlines, banks and phone/cable companies. This becomes even more frustrating, because those obligated organizations don't need to listen to the advice given. Under the bill, they do not need to give reasons for declining to act on the advice given.

It would make sense to consolidate this consultation activity as much as possible, at least across a major industry which offers clearly comparable goods, services and facilities. For example, the airlines could hold one joint consultation, at which people with disabilities can relate the recurring barriers they experience. As well, there should always be an opportunity for people with disabilities to give individualized feedback, even if they don't take part in a major industry-wide consultation.

The information that would be garnered in such industry-wide consultations would also be very informative for the standards development process under the bill. It would therefore be very constructive to mandate CASDO to facilitate the holding of such industry-wide consultations.


a) require major industries, such as banks, airlines, or cable/mobile/telephone providers, to hold sector-wide consultations on the disability barriers in their organizations, services, facilities, goods, employment, or built environment, as part of their process of developing their accessibility plans, where they offer the same or comparable goods, services or facilities;

b) mandate CASDO to facilitate the holding of these sectoral consultations, in order to use information provided as part of the standards development process.

c) ensure that beyond these industry-wide consultations, the obligated organizations have an ongoing process in place to get feedback on disability barriers from people with disabilities.

d) require large obligated organizations to make public the feedback they received through these consultations, and the action on barriers they plan to take as a result. Where the obligated organization does not plan to act on barrier feedback received, it should give a reason for this.

A major deficiency in the bill is that it does not provide a way for people with disabilities or others to complain about the sufficiency of an obligated organization's accessibility plan. An obligated organization is far more likely to create an effective plan if there is a legal process available for others to challenge the plan's sufficiency.


a) Mandate the Accessibility Commissioner to investigate and conduct audits and inspections of the sufficiency of an obligated organization's accessibility plan on its own behalf, and to take enforcement action before the Canadian Human Rights Tribunal if insufficient.

b) enable a member of the public to file a complaint with the Accessibility Commissioner about the sufficiency of an obligated organization's accessibility plan, .

c) mandate the Accessibility Commissioner to investigate such individual complaints and, where appropriate, to litigate them before the Canadian Human Rights tribunal, which should have power to impose effective remedies.

Even the best accessibility plan is only effective if an obligated organization has a duty to implement it. it does not appear that the bill requires an obligated organization to implement its accessibility plan. It only requires the organization to have an accessibility plan.

The Ontarians with Disabilities Act 2001 suffered from this serious deficiency. In contrast, the Integrated Accessibility Standards Regulation, later enacted under the AODA, requires an organization both to have an accessibility plan and to implement it. Section 4 of the Integrated Accessibility Standards Regulation includes:

" 4. (1) The Government of Ontario, Legislative Assembly, designated public sector organizations and large organizations shall,(a) establish, implement, maintain and document a multi-year accessibility plan, which outlines the organization’s strategy to prevent and remove barriers and meet its requirements under this Regulation;…"


#38 Part 4 of the bill should be amended to require an obligated organization to implement its accessibility plan, with this duty subject to enforcement through Accessibility Commissioner audits and inspections and individual complaints. It is good that the bill aims to ensure that the public can have access to an obligated organization's accessibility plan. However, the bill now requires a person to apply to the organization for its plan. The bill even stipulates that these requests must be made in a form that are prescribed in regulations. Section 42 includes:

"40 (7) If a person makes a request in accordance with subsection (8), the regulated entity must, within the time prescribed by regulations made under subsection 45(1), make

its accessibility plan available to the person in the format prescribed by regulations made under that subsection that is indicated in the request.

(8) The request must be made in the form and manner prescribed by regulations made under subsection 45(1) and must indicate the format prescribed by regulations made under that subsection in which the accessibility plan is to be made available to the person making the request."

This means that the public right of access to must await new regulations on these forms. There is no duty to make those regulations at all, much less by a specified deadline. Here again, people with disabilities will have to lobby for these regulations to be made.

it is far faster, cheaper and more effective for the bill to simply require the obligated organizations to post their accessibility plan on their website. this bill aims at large Government organizations and private companies. Each has a website. by making these plans immediately public online, it allows for easier crowd-sourced monitoring and accountability.

This would make it much easier for any enforcement agency to enforce some of these requirements. If an enforcement official cannot find an obligated organization's required accessibility plan on the organization's website, this should be per se ample foundation for further investigatory and enforcement action under Part 5 of the Act.

By comparison, under the AODA, a range of obligated organizations must file accessibility compliance self-reports. If an organization has not done so, the Ontario Government has per se proof of a contravention of the AODA. That can support further investigatory and enforcement action. It is because of this AODA filing requirement that people with disabilities and the public has known since 2013 of five years of ongoing massive AODA violations in the private sector.

For the bill to require that accessibility plan must be posted on line also signals to obligated organizations that they should ensure that their accessibility plan is a good one. This is because it will be open for all to see at a glance or click.

#39 Section 42 of the bill should be amended to remove the requirement that a member of the public must request disclosure of an accessibility plan in a form that the regulations will prescribe. Instead it should require obligated organizations to post their accessibility plan online in an accessible format.

Obligated organizations should also be required to submit their accessibility plan in an electronic form to the Accessibility Commissioner. Obligated organizations are more likely to ensure that their accessibility plan is a good one if they know it must be filed with this enforcement agency. Here again, as noted above, such a filing requirement would help with enforcement efforts. If it is an online filing requirement, this can be done with no significant cost to obligated organizations. It will be easy for the Government to provide the IT support for receiving these filings. As well, the Accessibility Commissioner should be required to make these plans available as of right online on a searchable data base. that will also help with crowd-sourced enforcement and monitoring.


a) require obligated organizations to electronically file their accessibility plan with the Accessibility Commissioner, and

b) require the Accessibility Commissioner to make these accessibility plans available to the public as of right, in a public online searchable data base.

It is good that section 43 of the bill requires an obligated organization to have a feedback process. Section 43(1) includes:

"43 (1) A regulated entity referred to in subsection 42(1) must establish a process for receiving feedback about the following and for dealing with that feedback:

(a) the manner in which the regulated entity is implementing its accessibility plan; and

(b) the barriers encountered by persons that deal with the regulated entity."

However, section 43 does not require the obligated organization to actually fix those barriers identified via such feedback. it does not require an obligated organization explain why it did not fix the reported barrier. It does not require the obligated organization to report to the public or the enforcement agencies on why it did not act. We therefore recommend that:

#41 Section 43 of the bill should be amended to require the obligated organization to give reasons in writing to a person who has submitted feedback about a barrier in that obligated organization, if the obligated organization will not rectify that barrier.

It is good that section 43 requires an obligated organization to publicize its feedback process. however, this duty is tied to regulations that may or may not ever be enacted. Section 43(2) provides:

" (2) The regulated entity must publish a description of its process in accordance with regulations made under subsection 45(1)."

#42 section 43 of the bill should be amended to specify how an obligated organization must publicize its feedback process, even in the absence of regulations on point.

It is good that s. 44 requires an obligated organization to make progress reports on implementing its accessibility plan. However, here again, certain obligations are contingent upon certain regulations later being enacted, including regulations on the report's preparation and publication (s. 44(1)), on filing the report with the enforcement agency (s. 44(2)), and on the form that a person must use to seek a copy of the obligated organization's progress report. There should be no need for these regulations to be created before an obligated organization has the duty to make or disclose its progress report. there should be no mandatory form for asking for a progress

report. For example, a member of the public's simple request by phone, in person or in writing e.g. via email should be sufficient.

#43 section 44 of the bill should be amended to:

a) remove the need for regulations before progress reports need to be prepared.

b) remove the requirement that a request for disclosure of a progress report be made in a prescribed written form.

c) require the obligated organization's progress report to be posted online, where the organization has a website, and to be electronically filed with the Accessibility Commissioner, which should maintain these in a publicly-accessible searchable data base.

As a matter of very serious concern, section 46 of the bill gives power to the CRTC to totally exempt any obligated organization it wishes within its mandate, from any or all of the accessibility plan requirements. Other Parts of the bill that mandate the other enforcement agencies give comparable exemption powers. Section 46(1) provides:

"46 (1) The Canadian Radio-television and Telecommunications Commission may, by order, exempt any regulated entity or class of regulated entities from the application of all or any part of sections 42 to 44, on any terms that the Commission considers necessary."

It is very important that this section and its counterparts across the bill be removed. There is no good reason why any obligated organization should be exempted from these requirements, or any others under the bill. Moreover, this arbitrary power is entirely unfettered. It gives no opportunity to people with disabilities to be heard before a decision is made to grant an exemption.

The bill does not set out any criteria for this power to be exercised. It imposes no duty on the enforcement agency to give any reasons for granting such an exemption. An exemption need never be made public, other than notifying the Accessibility Commissioner. An exemption can be requested in secret, decided on in secret, for reasons that are kept secret.

#44 the power to exempt an obligated organization from any or all accessibility plan obligations, vested in enforcement agencies like CRTC in s. 46 of the bill, and in related provisions throughout the bill, should be repealed. If not repealed, then these powers should be amended to severely restrict them, e.g.

a) by requiring the enforcement agency or minister to make public the fact that it is considering granting an exemption to an obligated organization, and the potential reason for such an exemption;

b) requiring the enforcement agency or minister to invite and receive public input from the public, including people with disabilities, on whether an exemption is to be granted, with the

obligated organization covering the reasonable costs of people with disabilities providing such input;

c) providing that an exemption can only be granted where the obligated organization proves through clear and convincing evidence that it is impossible to fulfil the accessibility plan requirements to be exempted, without undue hardship, and only where the exemption is the least in degree, and for the shortest time, necessary to that end;

d) requiring the enforcement agency or minister to give reasons for granting an exemption;

e) Making the grant of an exemption appealable by any people with disabilities to the Federal Court of Canada on any error of fact, law or mixed fact and law.

#45 Section 91 of the bill should be eliminated or substantially narrowed.

The bill should ensure that the public will be kept properly informed about the steps taken to enforce the bill, and the violations of the bill of which the Federal Government and its enforcement agencies are aware. Extensive experience in Ontario shows that there is a pressing need for the bill's enforcement to be very open, public and transparent. Over and over from 2013 to 2018, the AODA Alliance had to resort to Freedom of Information legislation to find out what the Government was doing to enforce the AODA. In the 2014 Ontario election, the former Ontario Government committed to make public annual reports on its enforcement activities and plans. Yet these turned out too often to be superficial and insufficiently informative.

It is good that s. 39 of the bill requires the Accessibility Commissioner to make an annual report on enforcement efforts. Section 39 provides:

"39 (1) The Accessibility Commissioner must, within three months after the end of each fiscal year, submit a report on his or her activities under this Act during that year to the Minister and provide the Minister of Justice with a copy of the report.

Contents

(2) The report must include

(a) information about the following in respect of the fiscal year, including their number:

(i) inspections conducted under section 73,

(ii) orders made under section 74,

(iii) orders made under section 75,

(iv) notices of violation issued under section 79, and

(v) complaints filed under subsection 94(1);

(b) the Accessibility Commissioner’s observations about whether the information referred to in paragraph (a) discloses any systemic or emerging accessibility issues; and

(c) information prescribed in regulations made under subsection 117(1).

Tabling(3) The Minister must cause the report to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister."

It is good that s. 39 requires the Accessibility Commissioner to make an annual report, to submit it to the minister, and then to submit it to Parliament. However, it is inappropriate to delay its disclosure to Parliament, and hence, to the public under s. 39(3).

#46 Section 39(3) of the bill should be amended to require the Accessibility Commissioner's annual report to be made public immediately upon its being finalized and submitted to the minister.

The bill also permits the Accessibility Commissioner to make some enforcement information public. it does not require that this information be made public. Section 93 of the bill provides:

" 93? The Accessibility Commissioner may make public

(a) the name of a regulated entity or person that is determined under section 84, or that is deemed by this Act, to have committed a violation;

(b) the nature of the violation;

(c) the amount of the penalty imposed, if any; and

(d) any other information specified in regulations made under subsection 91(1)."

#47 Section 93 of the bill should be amended to require, and not just permit, the Accessibility Commissioner to make public all the information detailed in that provision.

#48 Section 93 of the bill should be amended to also require the Accessibility Commissioner to make public any compliance orders or other orders against an obligated organization that it makes, and any compliance agreements into which it enters with an obligated organization.

#49 Part 5 of the bill should be amended to require the relevant enforcement agency under the bill to make public an annual report on levels of compliance with the Act and efforts made to enforce the legislation, broken down on a sector by sector basis.

It is also important for the public to be effectively informed about how to seek enforcement of the bill. The most elaborate enforcement regime will have limited impact if people with disabilities and obligated organizations don't know about it. The Federal Government should have an affirmative duty to widely publicize this. This will be much easier to do if all enforcement is concentrated in the Accessibility Commissioner, rather than being splintered among several federal agencies, as we have urged earlier in this brief.#50 Part 5 of the bill should be amended to require the Federal Government to periodically and effectively publicize to the public, including obligated organizations, how to seek enforcement under the bill.

#51 Section 95 of the bill should be amended to ensure that victims of disability barriers can have one-stop investigation and enforcement of their complaints by the Accessibility Commissioner, if they choose that route for enforcement.

For the same reason, s. 101 of the bill is problematic where it lets the Accessibility Commissioner stop an investigation if he or she believes the case should be dealt with through some other legislation. Section 101 includes, among other things:

"100 (1) The Accessibility Commissioner may discontinue the investigation of a complaint if he or she is of the opinion that

(b) any of the circumstances mentioned in paragraphs 95(a) to (e) applies; or…"

#52 Section 101 of the bill should be amended to remove the Accessibility Commissioner's power to stop an investigation if he or she believes it should be dealt with under other legislation.

It is good that section 102 gives the Accessibility Commissioner power to grant a range of remedies to a victim of an accessibility barrier, including financial compensation. In so far as non-monetary remedies are concerned, s. 102 provides:

"102 (1) If, at the conclusion of an investigation, the Accessibility Commissioner finds that the complaint is substantiated, he or she may order the regulated entity to do one or more of the following:

(a) take the appropriate corrective measures specified in the order;

(b) make available to the complainant, on the first reasonable occasion, the rights, opportunities or privileges that were denied to the complainant as a result of the contravention to which the complaint relates;…"

It would better achieve the bill's objectives if the Accessibility Commissioner were clearly given the mandate to make orders that would direct an obligated organization to take any steps needed to prevent a recurrence of the barrier, and to prevent similar future barriers.

#53 Section 102 of the bill should be amended to make it clear that in granting remedies, the Accessibility Commissioner can order that actions be taken by the obligated organization to prevent recurrences of the barrier, and to prevent similar barriers.

Section 102(1) (f) of the bill empowers the Accessibility Commissioner to include in a monetary compensation order an amount for pain and suffering, but only if the violation was willful or reckless. Section 102(1) includes:

"(f) pay to the complainant an amount that is not more than the amount referred to in subsection (2), if the Accessibility Commissioner determines that the contravention is the result of a willful or reckless practice."

There is no good reason why such compensation should only be available when a willful or reckless practice is shown. In 1981, the Ontario Human Rights Code had a similar restriction on similar damages. It was commendably repealed in 2006, in an effort to make remedies more effective for human rights violations. The same should be the case here. An accessibility barrier is an accessibility barrier regardless of the intent of the obligated organization that left it in place. Pain and suffering is pain and suffering regardless of the obligated organization's intent.

#54 Section 102(1)(f) of the bill should be amended to remove the requirement that a contravention be willful or reckless in order to get compensation for pain and suffering.

While it is good that monetary penalties are available, this will have a limited deterrence effect in government departments and large private sector organizations. The individuals in positions of authority in those organizations who create barriers, or leave existing barriers in place, won't have to pay a thing. In the case of Government officials, it will be the public that pays the monetary penalty. In the case of private sector corporations, it will be a large airline or phone company that typically will pay the monetary penalty.

It is important that effective findings and remedies also focus on the management officials who are in a position to address accessibility barriers. That will create a much greater incentive for them to take action, and feel accountable for their actions.

#55 Part 6 of the bill should be amended to direct the Accessibility Commissioner or other enforcement agency or adjudicator to include, where possible, in any findings and remedial orders, specific findings identifying those officials within an obligated organization who caused or contributed to the violation of the bill, and remedies (beyond remedies directed at the obligated organization as a whole) that also address those specific officials.

The bill is quite unclear on an important point of procedure. When the Accessibility Commissioner receives and investigates a complaint, must he or she hold a hearing, before deciding if there was a violation of the Act, and before holding a penalty? All the bill says on point is in s, 109, which provides:

"109 The Accessibility Commissioner must deal with complaints filed under subsection 94(1) and applications made under subsection 103(1) as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit."

This provision does not explicitly answer this important question. It is important for the Act itself to answer this question. Otherwise, people with disabilities will face the burdens and delays of unnecessary and costly litigation over such procedural questions.

For example, if the Accessibility Commissioner imposes an order on an obligated organization without first holding a hearing, or by only holding a written hearing and not an oral hearing, an obligated organization can be expected to launch judicial review legal proceedings in Federal Court. The obligated organization can be expected to argue that the Accessibility Commissioner's failure to hold a hearing, or the holding of a written hearing and not an oral hearing, is a violation of the duty of fairness and/or natural justice, as is enshrined in the common law and in s. 109 of the bill. Years of costly appeals will ensue before these questions are resolved.

The bill lets the federal Cabinet make regulations on whether an oral or written hearing will be required, after the Accessibility Commissioner has imposed an order on an obligated organization, and when that obligated organization asks the Accessibility Commissioner to review that order. Section 108 provides:

" 108 The Governor in Council may make regulations(a) prescribing the procedures to be followed by the Accessibility Commissioner when conducting an investigation; and

(b) governing the manner in which complaints are to be investigated by the Accessibility Commissioner."

Section 117(1)) includes:

"117 (1) Subject to sections 118 to 120, the Governor in Council may make regulations…

… (k) respecting the circumstances under which reviews under section 76 are to be oral or in writing;"

There is no requirement for the Federal Cabinet to ever make any such regulations. It is far better for the bill to clarify whether a hearing is required and, if so, whether it is an oral or written hearing, and who are the parties to the hearing. It is better for this to be spelled out in the bill, rather than in regulations. That avoids the risk of delays pending the making of regulations, the need to lobby the Federal Cabinet for regulations to be made, and the uncertainties that all of that would entail. It also avoids the risk of a future Cabinet changing these regulations without sufficient public input.

It is worthwhile for the Accessibility Commissioner to be required to hold a written hearing, not an oral hearing, in order to ensure that this process is swift, unless an oral hearing is needed to accommodate the needs of a complainant with a disability. A party will have access to the Canada Human Rights Tribunal's full oral hearing process if they fail before the, Accessibility Commissioner and wish to lodge an appeal to the Tribunal.

#56 Part 6 of the bill should be amended to require that the Accessibility Commissioner hold a written hearing before imposing an order or remedy on an obligated organization, with the complainant entitled to take full part in that written hearing. An oral hearing should be held if needed to accommodate the needs of a complainant with a disability.

#57 Section 117(1(k) of the bill should be removed, which would have left it to the Federal Cabinet to decide by regulations whether the Accessibility Commissioner would be required to hold an oral or written hearing when reviewing an order or remedy under Part 6 of the Act.


a) rename the Chief Accessibility Officer as the National Accessibility Watchdog.

b) Make this position independent of the Federal Government, reporting to Parliament, and not to the minister responsible for this Act.

c) require this official to make public any report they submit to the Government.

d) require their annual report to also identify future actions that need to be taken to improve the implementation and enforcement of this Act, and to ensure effective progress towards the Act's goals, including any needed reforms to this Act or its regulations, and

e) Require this official's annual report to be made public immediately, without having to await the next sitting of Parliament, if Parliament is not in session.

As noted above, there is also a need for a senior official within the Federal Public Service to have the duty and authority to ensure that the Federal Public Service becomes accessible to people with disabilities.

#59 Part 7 of the bill should be amended to establish the position of Chief Accessibility Officer of the Federal Public Service, with the status of a deputy minister, who has the duty and authority to ensure that the workplaces, employment, built environment, goods, services and facilities of the Federal Government become accessible to people with disabilities.


a) require the Federal Government to give notice to the public when it is considering enacting or amending a regulation under the bill, and especially an accessibility standard in the form of a regulation under the bill.

b) require the Federal Government to post online for public comment for at least 45 days the text of a proposed regulation.

c) require the Federal Government to consider the feedback when deciding what final regulation to enact, after which it can enact the regulation either as posted in draft, or with such changes as the Federal Government wishes.

Part 8 of the bill gives the federal Cabinet power to make a wide range of regulations under this bill. Earlier in this brief, we address some aspects of the bill's provisions regarding regulations.

Some key provisions needing further attention are found in s. 117(1), which includes, among other things:

"117 (1) Subject to sections 118 to 120, the Governor in Council may make regulations

(a) defining, for the purposes of this Act, any term that is used but not defined in this Act;…"

This power is far too broad. It would enable the Federal Cabinet to substantially narrow the impact of this legislation, without needing any approval by Parliament or any public discussion and debate. If there are terms that should be defined by regulation, this should be narrowly and precisely specified in the bill.

#61 Section 117(1)(a) of the bill should be removed, and replaced by a list of the specific terms in the bill which the Federal Cabinet should be empowered to define by regulation.

This brief earlier addressed the need to remove s. 117(k) of the bill, which provides that the Federal Cabinet can make regulations:

"(k) respecting the circumstances under which reviews under section 76 are to be oral or in writing;"

Section 117(1)(l) of the bill gives the Federal Cabinet a troubling and sweeping power to make regulations that can exempt any obligated organizations from a wide range of obligations under the Act. Section 117(1)(l) empowers the Federal Cabinet to make regulations:

"(l) exempting, on any terms that are specified in the regulations, in whole or in part, any of the following, or any class of the following, from the application of all or any part of sections 47 to 49, 56 to 58, 65 to 67 and 69 to 71 or all or any provision of regulations made under this subsection:

(i) a regulated entity,

(ii) a built environment,

(iii) an object,

(iv) a work, undertaking or business that is within the legislative authority of Parliament,

(v) an activity conducted by a regulated entity, and

(vi) a location; and…"

None of this should be permitted. For example, the Federal Cabinet should not be able to exempt any or all federal departments from any or all of their accessibility obligations under this bill. There is no duty in the bill on the Federal Cabinet to give reasons, or to make these exemptions time-limited.

Section 120 provides criteria aimed at limiting the circumstances when an exemption can be granted by regulation. Section 120 provides:

"121 (1) On application by a regulated entity, the Minister may, by order and on any terms that he or she considers necessary,

(a) exempt a regulated entity from the application of any provision of regulations made under subsection 117(1) if the Minister is satisfied that the regulated entity has taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities; or

(b) exempt a class of regulated entities from the application of any provision of regulations made under subsection 117(1) if the Minister is satisfied that all the members of the class have taken or will take measures that will result in an equivalent or greater level of accessibility for persons with disabilities.

(2) The Minister must provide the Accessibility Commissioner with a copy of every order made under subsection (1).

(3) The Statutory Instruments Act does not apply to an order made under paragraph (1)(a), but the order must be published in the Canada Gazette."

These criteria make no sense. If an organization is prepared to do more on accessibility than the Act or its regulations otherwise require, then that organization will by definition be in full compliance with the Act. if they are in full compliance, they need no exemption.

Moreover, the fact that the obligated organization is prepared to do more than the Act requires at the point in time when an exemption were to be granted does not mean that this organization's attitude or intent will carry on into the indefinite future. The organization may later not live up to that intent. In that situation, an exemption is counter-productive.

Under the bill, the Federal Cabinet need not give any reasons for an exemption. A decision to exempt is not appealable on the merits. People with disabilities are not assured any say in a decision to grant an exemption. An obligated organization might convince the Federal Cabinet to

grant an exemption even though people with disabilities are finding that on accessibility, that organization is getting worse, not better.

#62 Sections 117(1)(l) and 120 of the bill should be removed from the bill, and any other similar provisions in the bill respecting other agencies, where they empower a grant of exemptions to obligated organizations from requirements under the bill.

Part 8 of the bill carves out a series of wide areas which regulations cannot address. These serve in effect to immunize certain categories of obligated organizations from some important parts of this bill's regulatory regime. Part 8 includes:

"Limited application — broadcasting118 (1) Subject to subsections (2) and (3), regulations made under subsection 117(1) apply in respect of a regulated entity that carries on a broadcasting undertaking only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g).

Non-application — employment equity(2) Regulations made under subsection 117(1) that are in relation to employment do not apply in respect of a regulated entity that carries on a broadcasting undertaking and that is not subject to the Employment Equity Act.

Non-application — areas specified in regulations(3) Regulations made under subsection 117(1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5(g) do not apply in respect of a regulated entity that carries on a broadcasting undertaking if requirements in relation to the identification, prevention and removal of barriers in that area apply to the regulated entity under

(a) a condition of a licence issued under Part II of the Broadcasting Act;

(b) an order under subsection 9(4) of that Act; or

(c) a regulation made under subsection 10(1) of that Act.

Limited application — telecommunications119 (1) Subject to subsection (2), regulations made under subsection 117(1) apply in respect of a regulated entity that is a Canadian carrier or a telecommunications service provider only if the regulations relate to the identification, prevention and removal of barriers in the areas referred to in paragraphs 5(a), (b), (f) and (g).

Non-application — areas specified in regulations(2) Regulations made under subsection 117(1) that are in relation to the identification, prevention and removal of barriers in an area referred to in paragraph 5(g) do not apply in respect of a regulated entity that is a Canadian carrier or telecommunications service provider if requirements in relation to the identification, prevention and removal of

barriers in that area apply to the regulated entity under a condition imposed under section 24 or 24.1 of the Telecommunications Act or a regulation made under that Act.

Limited application — transportation120 The only regulations made under subsection 117(1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas:

(a) employment;




None of these carve-outs from the Federal Cabinet's power to make regulations are needed or justified. As earlier addressed in this brief, all obligated organizations should be subject to a single implementation and enforcement regime. People with disabilities should not have to lobby different federal agencies to address the same accessibility needs across the spectrum of obligated organizations. Moreover, this bill should not be subordinate to other federal legislation that imposes lesser accessibility requirements.

#63 Sections 118to 120 of the bill should be removed, and any other similar provisions in the bill, where they limit federal regulations under this Act from reaching all aspects of all obligated organizations under this Act.

#64 Section 103 of the bill should be amended to require that a Parliamentary review of the Act should commence six years after the Act was proclaimed in force, and that subsequent Parliamentary reviews should be held every ten years thereafter.

Section 132 requires the minister to appoint an Independent Review, five years after the completion of the Parliamentary review, referred to above, and then again every ten years after that date. Section 132 provides:

"132 (1) Five years after the first day on which a report is submitted under subsection 131(2) to either House of Parliament and every tenth anniversary of that day, the Minister must cause an independent review of the provisions and operation of this Act to be conducted, and must cause a report on the review to be laid before each House of

Parliament on any of the first 15 days on which that House is sitting after the review is completed.

Duty to consult(2) The person conducting the review must consult the public, persons with disabilities, organizations that represent the interests of persons with disabilities, regulated entities and organizations that represent the interests of regulated entities."

Here again, these reviews are a great idea. Ontario experience shows how important they are. However, under the bill, these Independent Reviews are pushed too far off into the future. The first Independent Review won't begin until at least a decade after the first regulation is enacted under s. 117(1) of the Act. If that regulation were not passed for three years, the first Independent Review won't even get started until 13 years after this bill is enacted.

By comparison, in Ontario the third AODA Independent Review is now already underway, 13 years after the AODA was enacted. Had no AODA Independent Review in Ontario taken place until now, Ontario would not have received the decisive advice and warnings that came from the first AODA Independent Review in 2010 and the second AODA Independent Review in 2014. Under the AODA the first Independent Review was required to begin four years after the AODA went into force. The second AODA Independent Review was required to begin three years after the first AODA Independent Review's report. Each successive AODA Independent Review is required to begin three years after the previous AODA Independent Review report was tabled in the Ontario Legislature. Section 41 of the AODA provides:

" 41. (1) Within four years after this section comes into force, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a comprehensive review of the effectiveness of this Act and the regulations and report on his or her findings to the Minister. 2005, c. 11, s. 41 (1).

Consultation(2) A person undertaking a review under this section shall consult with the public and, in particular, with persons with disabilities. 2005, c. 11, s. 41 (2).

Contents of report(3) Without limiting the generality of subsection (1), a report may include recommendations for improving the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (3).

Tabling of report(4) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. 2005, c. 11, s. 41 (4).

Further review(5) Within three years after the laying of a report under subsection (4) and every three years thereafter, the Lieutenant Governor in Council shall, after consultation with the

Minister, appoint a person who shall undertake a further comprehensive review of the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (5).

Same(6) Subsections (2), (3) and (4) apply with necessary modifications to a review under subsection (5)."

It would be better for the first Parliamentary review under the bill to take place around the same time as the first minister-appointed Independent Review. This will enable the public, including people with disabilities, to prepare submissions once for two parallel processes. #65 Section 132 of the bill should be amended to provide that the minister shall appoint the first Independent Review of the Act three years after the Act is proclaimed in force and every four years after that.

Canada should learn in an additional way from Ontario’s experience. The bill should include a provision that will trigger the appointment of an Independent Review if the Federal Government fails to do so on time. The bill should permit a member of the public to apply to court to appoint the Independent Review if the Government doesn't do so. Our Discussion Paper explains:

"In 2013, Ontario inexplicably failed to appoint the second AODA Review for over 100 days past the deadline, and acted only after grassroots pressure."

#66 Part 8 of the bill should be amended to provide that if the Federal Government does not appoint a required time, any person can apply to court for an order appointing a person whom the court chooses to conduct the Independent Review. As well, the Federal Government should be required to release an Independent Review's report immediately upon receiving it. The Ontario Government took an unnecessary four months to release each AODA Independent Review Report.

#67 Part 8 of the bill should be amended to should be amended to require the Federal Government to immediately release any Independent Review report upon receiving it.

#68 Part 9 of the bill should be amended to assign all the bill's enforcement regarding Parliamentary entities to the Accessibility Commissioner.

Second, Sections 138 and 142 authorize the Speaker of the Senate or the Speaker of the House of Commons to exempt a Parliamentary entity from certain requirements of the bill. Sections 138 and 142 provide:

"138 (1) Sections 69 to 71 apply with respect to a parliamentary entity as if it were a regulated entity.

Exemption(2) After consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the

Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may exempt in writing a parliamentary entity from the application of all or any part of sections 69 to 71, on any terms that the Speaker or Speakers consider necessary.

Amendment or revocation(3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it.

Statutory Instruments Act(4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act….

142 (1) Regulations made under any of paragraphs 117(1)(a) to (l) — and under paragraph 117(1)(m) with respect to sections 69 to 71 — apply with respect to a parliamentary entity as if it were a regulated entity, but only to the extent that the regulations apply generally to regulated entities that are departments named in Schedule I to the Financial Administration Act.

Exemption(2) On application by a parliamentary entity and after consulting with the Accessibility Commissioner, the Speaker of the Senate or the Speaker of the House of Commons — or, in the case of the Library of Parliament, the Parliamentary Protective Service and the office of the Parliamentary Budget Officer, both Speakers acting jointly — may, in writing and on any terms that they consider necessary, exempt the parliamentary entity from the application of any provision of the regulations referred to in subsection (1) if the Speaker or Speakers are satisfied that the parliamentary entity will take or has taken measures that will result in an equivalent or greater level of accessibility for persons with disabilities.

Amendment or revocation(3) The Speaker or Speakers who gave an exemption under subsection (2) must consult with the Accessibility Commissioner before amending it but need not do so before revoking it.Statutory Instruments Act

(4) For greater certainty, an exemption, amendment or revocation referred to in this section is not a statutory instrument for the purposes of the Statutory Instruments Act."

For the same reasons as given earlier in this brief regarding the bill's other exemption powers, there is no good reason for this exemption power. There are strong reasons why it is a bad idea.

#69 Sections 138 and 142 of the bill be removed, where it gives the Speaker of the Senate or the Speaker of the House of Commons the power to exempt a Parliamentary entity from certain of the bill's requirements.

Third, the bill also itself unjustifiably exempts Parliamentary entities from some of the bill's requirements. Section 137 provides that the bill does not limit the "powers, privileges and immunities of the Senate and the House of Commons and their members or as authorizing the exercise of a power or the performance of a function or duty under this Act if the exercise of that power or the performance of that function or duty would interfere, directly or indirectly, with the business of the Senate or the House of Commons." Section 137 provides:

"Powers, privileges and immunities137 For greater certainty, nothing in this Act or in any regulations made under it is to be construed as limiting in any way the powers, privileges and immunities of the Senate and the House of Commons and their members or as authorizing the exercise of a power or the performance of a function or duty under this Act if the exercise of that power or the performance of that function or duty would interfere, directly or indirectly, with the business of the Senate or the House of Commons."

Moreover s. 135 provides that Parts 4 to 8 of the bill only apply to Parliamentary entities to the extent that Part 9 makes them applicable. Yet Parliamentary entities should have to fully obey all of the bill. Part 9 will make it confusing and difficult for people with disabilities and Parliamentary entities to know what Parliamentary entities must do under the bill. No one should be above the law. Of all organizations in society, any operations within Canada's Parliament should be setting a good example by effectively and fully removing and preventing disability barriers.

#70 Part 9 of the bill should be amended to make the bill fully apply to all aspects of any Parliamentary entity.

#71 the consequential amendments to other legislation set out in Part 10 of the bill should be eliminated from the bill, except where they are needed to implement recommendations made elsewhere in this brief.

Under Part 10, some amendments to the CTA legislation refer to "mobility of persons with disabilities." For example, Section 170(1) provides:

" 170 (1) The Agency may, after consulting with the Minister, make regulations for the purpose of identifying or removing barriers or preventing new barriers — particularly barriers in the built environment, information and communication technologies and the delivery of programs and services — in the transportation network under the legislative authority of Parliament to the mobility of persons with disabilities, including regulations respecting…"

It is preferable for any such legislation to use the term "transportation of persons with disabilities" rather than "mobility of persons with disabilities." The term "mobility will be seen as some as referring mainly if not exclusively to those with physical mobility disabilities, such as those who use wheelchairs. The broader term "transportation" rather than "mobility" will ensure

that the full spectrum of services related to transportation are covered for the full spectrum of people with disabilities.

#72 Section 170(1) of the bill and any other provisions in the bill using the term "mobility of persons with disabilities" should be amended to replace the term "mobility of persons with disabilities" with the preferred term "transportation of persons with disabilities."

If, over our objection, the Canada Transportation Agency is to be given powers to make regulations addressing disability barriers within the transportation context, these should not be limited to "barriers in the built environment, information and communication technologies and the delivery of programs and services" as is the case now under s. 170(1). This should include all disability barriers of all kinds. For example, missing from that list is one of the most obvious of barriers in transportation, namely barriers in vehicles and other transportation equipment, such as airplanes, busses and train passenger cars.

#73 if, despite this brief's strong objections, the Canada Transportation Agency is to have authority to make regulations regarding barriers in transportation, section 170(1) should be amended to make it clear that this includes all kinds of barriers, such as barriers in transportation equipment like airplanes, busses and passenger train cars, and not only barriers in the built environment, information and communication technologies and the delivery of programs and services.

Section 172(2) of the bill includes the deeply troubling requirement that if a transportation organization has complied with CTA regulations, that organization cannot be found to have created an "undue barrier" In other words, the regulations are the final word on what a transportation organization must do in this context. Section 172(2) provides:

" 172 ( (2) Subsection 172(2) of the English version of the Act is replaced by the following:

Compliance with regulations(2) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue barrier to the mobility of persons with disabilities."

For people with disabilities, this is an exceedingly harmful provision. At a hearing over a claim of undue barriers, people with disabilities get a chance to have their say. In contrast, they have no comparable right when CTA makes a regulation in this area. If CTA makes a retrogressive regulation, that would be the final word, even if, after a hearing, it would be clear that an undue barrier exists, or if a court, on review, would have interpreted the term "undue barrier" more generously for people with disabilities than did the CTA when it made the regulation. This provision only serves the interests of transportation organizations, which will aim to narrow their duties under Bill C-81. They will seek to get the CTA to help achieve this goal, through these regulations.

In sharp and commendable contrast, any accessibility standards enacted as regulations under Ontario's AODA do not trump the guarantees in the Ontario Human Rights Code. Under the AODA, the stronger accessibility law always prevails. As well, under the AODA, people with disabilities always have access to file a human rights complaint under the Ontario Human Rights Code and to try to have it adjudicated, especially if more accessibility is sought than is required under an AODA accessibility standard.

#74 Section 172(2) of the bill should be removed or amended to ensure that that notwithstanding any regulations enacted under the CTA, it is always open to people with disabilities to allege the existence of an undue barrier in access to transportation services, notwithstanding the contents of any regulations enacted here.

If, despite our objections in this brief, the CTA is to have all the authority that Bill C-81 now confers, it is good that s. 172.4 allows CTA to have funding for people with disabilities to take part in CTA inquiries on accessibility issues. Section 172.4 provides:

" Participant funding program172.4 The Agency may establish a participant funding program to facilitate the participation of persons with disabilities in hearings that are held for the purposes of inquiries made under section 172,172.1 or 172.3."

However, this should be mandatory, not optional. The regulated transportation giants, like the airlines and Via Rail, will have ample resources to take part in such inquiries. It will be essential for people with disabilities to have this funding support.

#75 Section 172.4 of the bill should be amended to make it mandatory for the CTA to have a participant funding program for people with disabilities who take part in CTA accessibility inquiries, if CTA is to have that mandate.

#76 the bill should be amended to require a public funding program for participation of people with disabilities in any comparable inquiries by the Accessibility Commissioner, CASDO, or any other federal agency under the bill.

If the CTA is to retain its mandate as conferred by this bill, despite the objections in this brief, then CTA should be required to make public all information about violations of this bill. Section 181.1 makes this optional, not mandatory. Section 181.1 provides:

"181.1 The Agency may publish information about any violation referred to in section 177, for the purpose of encouraging compliance with this Act and sections 60 to 62 of the Accessible Canada Act."

#77 if the CTA is to have power to make orders regarding accessibility, then s. 181.1 of the bill should be amended to require CTA to make public detailed information about any violations of this bill which it has found or alleged.

It is good that Part 10 gives the Accessibility Commissioner standing before certain other named regulatory bodies, if a proceeding is being heard by one of those bodies under the bill. However, the standing is granted only for the Accessibility Commissioner to make "submissions" i.e. arguments. The Accessibility Commissioner should also have standing to adduce evidence. For example, regarding certain proceedings before the CRTC, section 156(2) provides:

"156 The Act is amended by adding the following after section 63:

Notice to Accessibility Commissioner63.1 (1) When a grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of any provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

Submissions of Accessibility Commissioner(2) If the Accessibility Commissioner is notified of an issue under subsection (1), he or she may make submissions during the adjudication with respect to that issue."

#78 Section 156(2) of the bill and all other provisions in the bill regarding the Accessibility Commissioner's standing before other regulatory agencies should be amended to give the Accessibility Commissioner the right to standing to adduce evidence, and not just to make submissions.

In the complex and confusing regime for enforcing the bill, it would be wrong to impose duties on a complainant to let one agency know that another agency is being asked to deal with an accessibility issue. People with disabilities will find it hard enough to navigate this system, without any such added burden to figure out who else must be notified of a complaint.

It is therefore wrong for s. 195 to impose such a duty on people with disabilities. Section 195 provides:

"195 Section 65 of the Public Service Employment Act is amended by adding the following after subsection (8):

Notice to Accessibility Commissioner(9) If a complaint raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, the complainant shall, in accordance with the regulations of the Board, notify the Accessibility Commissioner, as defined in section 2 of that Act."

#79 Section 195 and any other similar provision of the bill should be amended so that they do not impose any duty on people with disabilities, when they file a complaint, to notify any other federal regulatory agency or official, such as the Accessibility Commissioner, that they had filed that complaint.

#80 the bill should be amended to put in place a process for addressing the circumstances of Indigenous People with disabilities that takes into account the relationship between the Federal Government and Canada's Indigenous People, in consultation with Indigenous People.

#81 the bill should be amended to specify that the Federal Government as a whole is responsible for leading Canada to the goal of full accessibility, in so far as the Federal Government has constitutional authority to do so.

#82 the bill should be amended to include an explicit duty on anybody charged with enforcement powers, to effectively enforce the bill.

#83 the bill should be amended to provide that:

a) If a provision of the Act or of regulations enacted under it conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.

b) Nothing in the Act or in any regulations enacted under it or in any actions taken under it shall reduce in any way any rights which people with disabilities enjoy under law.


a) require that federal public money should never be used to create or perpetuate disability barriers.

b) require the Federal Government and the agencies and officials empowered under this bill on accessibility to take action on this requirement.

c) require that CASDO develop accessibility standards and the Federal Cabinet develop accessibility regulations regarding accessible procurement, infrastructure, and other uses of federal money.

d) require the Federal Government to publicize policies and procedures regarding these requirements in the use of public money.

e) provide for the enforcement of these requirements, including through the bill's accessibility planning, complaint and inspection processes, and by the Accessibility Commissioner.

f) amend ss. 5(d) and any other provisions so requiring, to include "facilities", not just goods and services.

g) require this strategy on use of public money to go into effect along prompt time lines so that it can begin before accessibility standards or accessibility regulations are enacted.

#85 the bill should be amended to require the Federal Government to:

a) conduct a review of all federal statutes and regulations for accessibility barriers, including any provisions that authorize or require the creation or perpetuation of accessibility barriers, including among all laws, the Criminal Code, and immigration legislation.

b) set a deadline for the completion of this review.

c) mandate which cabinet minister should bring forward an omnibus bill, and time lines for that bill, to correct any accessibility barriers that this internal review finds, and that require correcting legislation.

d) require periodic public reporting on the progress of this review of federal laws.

#86 the bill should be amended to require, as an omnibus requirement, that whenever a federal statute or regulation confers a discretionary power on any federal public official, department or agency, that decision-maker shall take into account, in its exercise, the impact on accessibility for people with disabilities, and shall give weight to discretionary choices that are more effective at preventing and removing accessibility barriers against people with disabilities.


a) require, within a designated time frame, the Office of Disability Issues or other office that the Government designates to make public a list of the Federal Government's programs and other powers or opportunities that might be used to leverage more accessibility in society for people with disabilities, and

b) require each department of the Federal Government to include in its accessibility plan, prepared under this bill, plans for using the levers of power available to it to advance the cause of accessibility for people with disabilities.


a) require the Accessibility Commissioner to appoint, within 12 months of the bill being enacted, an independent person (with no current or prior involvement in administering elections) to conduct an Independent Review of disability barriers in the election process, with a requirement to consult the public, including people with disabilities, and to report within 12 months to the Federal Government. Their report should immediately be made public.

b) require the Federal Government to designate a minister with responsibility to bring forward a bill to reform elections legislation within 12 months after the completion of that Independent Review.


a) require the Federal Government to designate one minister and one full time deputy minister, who has ultimate responsibility for ensuring that the Federal Public Service becomes a fully

accessible employer and service provider, if this is not the mandate of the Chief Accessibility Officer.

b) require the Federal Government to implement a comprehensive program for periodic independent audits of its workplaces and goods, services and facilities for accessibility, with audit results to be made public.

c) require the Federal Government to implement a program to ensure accountability of Federal Public Servants for accessibility efforts, e.g. by requiring that every employee include in his or her annual performance review, accessibility performance goals, the results of which will influence pay and promotion decisions.

d) require each federal department and agency to designate an accessibility lead official, to be situated in the office of that department's or agency's office of the deputy minister or agency CEO, mandated to ensure that accessibility is embedded throughout the department or agency.

e) require the Federal Government to maintain a central fund to pay for workplace accommodations for federal public servants with disabilities.


a) require the Minister of Justice, on behalf of the Federal Government, to develop and implement a multi-year plan to ensure that all federally controlled courts (e.g. the Supreme Court of Canada and Federal Courts) become fully accessible to court participants with disabilities, by the bill's accessibility deadline.

b) mandate the Federal Government to work with provinces and territories to encourage similar provincial and territorial strategies for their courts.

#91 the bill should be amended to designate a federal minister with responsibility to create and maintain an effective strategy to expand Canadian efforts to serve worldwide markets for accessible goods, services and facilities.

#92 the bill should be amended to designate a federal minister with responsibility to work with the provinces and territories to encourage them to all enact accessibility legislation, it being clearly understood that any harmonization among them should strive to reach the highest level of accessibility, and not dilute to the lowest level of accessibility.

#93 Part 2 of the bill, creating CASDO, should be amended to make it clear that CASDO's mandate includes making its non-binding accessibility standards that address barriers that may fall within provincial jurisdiction, which provinces are free to adopt into provincial law if they wish.

^1. Introduction - aodaalliance.org · Web viewThe AODA Alliance has extensive experience with the design, implementation and enforcement of accessibility legislation in Canada.

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