Mayo Moran, Dean of the Faculty of Law of the University of Toronto, was mandated to lead the scheduled independent review of the Accessibility for Ontarians with Disabilities Act(AODA). She tabled her report and recommendations to the Ontario government in November 2014.
Brad Duguid, Minister of Economic Development, Employment and Infrastructure released the 79-page report to the public on February 13, 2015. Overall, the report indicates that although the government and public and private sectors have shown strong support and commitment to accessibility, the slow implementation of the AODA has resulted in rather modest improvements for persons with disabilities in the areas of jobs and access to goods or services. Many concrete examples from persons with disabilities were given, and they are listed beginning on page 21 of the report.
One of the more important example is the issue of awareness of the AODA. The message was that government efforts to raise awareness have fallen short because 1) the general public often is unaware of the existence of the AODA and what it stands for; 2) persons with disabilities do not understand what the AODA can do for them to improve their lives; and 3) what organizations must actually do to comply with the AODA as opposed to the information they must communicate to the public.
Key statements from the report
The report aims to provide advice and feedback that will guide the government in the task of making Ontario accessible by 2025. Ten years have passed since the implementation of the Act, and there are 10 to go. To meet this goal, the province needs bold leadership on accessibility from the Ontario government under Premier Wynne.
The report states:
“[…] the Premier should explicitly and prominently direct all ministries to treat accessibility as a key government-wide priority. With strong government leadership by example and a renewed commitment to progress, Ontario can lead the way in creating an inclusive society.”
Substantial compliance challenges
The review was told that implementation of the AODA has proven challenging for many obligated organizations. “The Review repeatedly heard about ‘fatigue’—implementation fatigue, training fatigue and review fatigue.” Organizations feel that the AODA standards are too complex, hard to understand and difficult to interpret and follow, because they lack specifics.
“The fact that the standards have been framed very generally means that it is hard to know when they have been met. […] the standards do not offer reference points for several general obligations, such as what it means to provide accessible formats or incorporate accessibility features into procurement. This leaves organizations to depend on guesswork or expensive consultants and lawyers to determine what compliance entails.”
“The most confusing standards of all are those concerning accessible websites—even lawyers are said to have trouble with them. […] the interpretation of where meeting a requirement is ‘not practicable’ should be clarified—specifically concerning the need to convert all documents to accessible formats when a website is refreshed. Advice is also needed on what constitutes a ‘significant refresh’ of a website. As well, it was suggested that the exclusion of intranets (with the exception of the government intranet) seems inconsistent with the Employment Standard that requires accessible formats and communication supports for employees.”
In addition, the review heard that the:
“Government’s failure to effectively enforce the AODA contributed to the province falling behind schedule for full accessibility by 2025. This failure undermined the efforts of those who try to persuade and motivate obligated organizations to comply with the AODA. It is unfair to obligated organizations who comply with the AODA, especially if their competitors do not. It creates a harmful disincentive against investing a person’s or organizations limited time and scarce resources to take part in the development of accessibility standards, or other consultations vital to the AODA’s effective implementation.”
Recommendations to the government
The government has indicated it will adopt one of the recommendations of the report in the near future, and develop a new accessibility standard to address barriers in health care. The other recommendations will be studied and new measures announced at a later date. Some of these recommendations include:
- Enforcing the AODA: “A dominant theme in many of the submissions to the Review was the critical importance of enforcing the AODA and of making known the results of that enforcement.” The report calls for the government to prepare and make public an enforcement plan; to build transparency into the enforcement plan by, for example, posting the number of inspections, investigations and prosecutions as well as lists of organizations convicted, nature of offences and fines; and to incorporate feedback into compliance and enforcement efforts.
- Fund and empower the Accessibility Directorate of Ontario to provide robust compliance support: The report recommends the government provide authoritative guidance to organizations on AODA requirements, for example, by clarifying key requirements, reviewing current standards and sharing best practices and models as is common under the Americans with Disabilities Act in the United States. This would also entail partnering to develop a certification program for training that would ensure portability for workers and volunteers. “Portability was frequently raised with the Review because retraining is expensive, especially for smaller organizations as well as for organizations like hospitals (which have high turnover and many volunteers). In addition to certification, portability would also require standardizing content requirements—something that obligated organizations repeatedly asked for during this Review.”
- Clarify the relationship between the Human Rights Code and the AODA: The report states that “The relationship between the Human Rights Code and the AODA remains an area of significant confusion.” One solution would be for the Ontario Human Rights Commission to play a role in the AODA standards development process, and by co-developing communications material.
- Plan for new standards: The report recommends that the ADO begin a process of identifying the most significant gaps in the current regime with a view to developing supplementary regulated standards to address those gaps in a timely way. This process should include public input. The review already identified a need for new standards covering the health care and education sectors. Other potential standards include building retrofits to ensure that more businesses incorporate accessibility features into their built environment, and website extranets in the scope of the website accessibility requirements.
- Encourage, support and celebrate accessibility planning beyond the AODA: This includes emphasizing barrier removal in multi-year accessibility plans and recognizing organizations that exceed expectations, as well as introducing accessibility tax incentives for small business.
- Improve AODA processes: This means amending the law and regulations to include exactly what the government expects from organizations, thus removing the guesswork and interpretation from the current standards. This will help organizations meet their implementation and enforcement challenges. This recommendation also includes aligning the accessibility provisions of the Ontario Building Code with the AODA. The main problem is that the Building Code accessibility amendments that will take effect in 2015 are not regulations under the AODA and are therefore not subject to the AODA process for standards review every five years or less. One proposed solution is to re-enact the Building Code amendments as a regulation under the AODA. Under this recommendation, the review also calls for the repeal the Ontarians with Disabilities Act to reduce duplication for the public sector.
I find it interesting that stakeholders are calling for more standards when organizations are having great difficulty complying with the existing ones. Public sector organizations have the added challenge of obtaining the funding necessary to meet the standards, yet the first new standard the government has decided to develop and implement will apply to the health care sector.
In my opinion, it is more important for the government of Ontario to develop a plan to help organizations reach compliance with the current standards before creating further obligations. With 10 years to go before the AODA’s goal of an accessible Ontario by 2025, and little progress, expanding this web of accessibility regulations will only multiply the existing challenges.
We will keep you abreast on how the government intends to deal with the other recommendations and the report as a whole.