Federal Accessibility Law Tabled in Parliament

On June 20, 2018, the federal government introduced Bill C-81, An Act to ensure a barrier-free Canada, the long-awaited national accessibility legislation which will enable the government of Canada to take a proactive approach to end systemic discrimination of people with disabilities.

The Bill also known as the Accessible Canada Act would establish a model to eliminate accessibility barriers and lead to more consistent accessibility in areas covered by federally regulated sectors such as banking, inter-provincial and international transportation, telecommunications and government-run services such as Canada Post and federally funded organizations. Moreover, the Bill aims to “identify, remove and prevent” barriers for an estimated four million Canadians with physical, sensory, mental, intellectual, learning, communication or other disabilities.

In 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), pledging to address the exclusion and accessibility barriers that people with disabilities face in Canada. This legislation is a step toward making this a lived reality for Canadians with disabilities.

The Bill was introduced following extensive consultations with Canadians with disabilities by the Minister of Sport and Persons with Disabilities.

As stated in the summary of the Bill,

The Bill if passed will enact the Accessible Canada Act in order to enhance the full and equal participation of all persons, especially persons with disabilities, in society. This is to be achieved 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, removal and prevention of barriers.

• Part 1 of the Act establishes the Minister’s mandate, powers, duties and functions.
• Part 2 of the Act establishes the Canadian Accessibility Standards Development Organization and provides for its mandate and structure and its powers, duties and functions.
• Part 3 of the Act authorizes the Accessibility Commissioner to provide the Minister with information, advice and written reports in respect of the administration and enforcement of the Act. It also requires the Accessibility Commissioner to submit an annual report on his or her activities under the Act to the Minister for tabling in Parliament.
• Part 4 of the Act imposes duties on regulated entities that include the duty to prepare accessibility plans and progress reports in consultation with persons with disabilities, the duty to publish those plans and reports and the duty to establish a feedback process and to publish a description of it.
• Part 5 of the Act provides for the Accessibility Commissioner’s inspection and other powers, including the power to make production orders and compliance orders and the power to impose administrative monetary penalties.
• Part 6 of the Act provides for a complaints process for, and the awarding of compensation to, individuals that have suffered physical or psychological harm, property damage or economic loss as the result of-or that have otherwise been adversely affected by-the contravention of provisions of the regulations.
• Part 7 of the Act provides for the appointment of the Chief Accessibility Officer and sets out that officer’s duties and functions, including the duty to advise the Minister in respect of systemic or emerging accessibility issues.
• Part 8 of the Act authorizes the Governor in Council to make regulations, including regulations to establish accessibility standards and to specify the form of accessibility plans and progress reports. It also provides, among other things, for the designation of the week starting on the last Sunday in May as National AccessAbility Week.
• Part 9 of the Act provides for the application of certain provisions of the Act to parliamentary entities, without limiting the powers, privileges and immunities of the Senate, the House of Commons and the members of those Houses.
• Parts 10 and 11 of the Act make related and consequential amendments to certain Acts.

The government has earmarked $290 million over six years to implement the legislation, which includes fines of up to $250,000 for violations.

What does this all mean?

Purpose of Bill C-81

The Accessible Canada Act would strengthen the existing rights and protections for people with disabilities, under the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and Canada’s approval of the United Nations Convention on the Rights of Persons with Disabilities. It will do this through the development, implementation and enforcement of accessibility standards, as well as the monitoring of outcomes in priority areas.

Accessibility standards

In general, these standards would set out how organizations can identify, remove, and prevent barriers. The accessibility standards would only create legal obligations for organizations when they are made into regulations by the Government of Canada.

Accessibility standards include:

• the built environment (buildings and public spaces);
• employment (job opportunities and employment policies and practices);
• information and communication technologies (digital content and technologies used to access it);
• the procurement of goods and services;
• the delivery of programs and services; and
• transportation (by air as well as by rail, ferry and bus carriers that operate across provincial, territorial or international borders).

The Bill also allows the government to identify other standards in the future.

Enforcement

The Act will see the creation of three new bodies to bolster the new law. The new Accessibility Commissioner will enforce the law. A new Canadian Accessibility Standards Development Organization will create model accessibility standards that the Government can enact as regulations, and the new Chief Accessibility Officer will advise and report on progress and needed improvements. However, the Minister of Sport and Persons with Disabilities would be responsible for accessibility along with the Minister of Transport and the Canadian Transportation Agency to ensure accessible transportation in the federal transportation network, with an enhanced mandate, responsibilities and powers. The Canadian Radio-television and Telecommunications Commission would continue to be responsible for accessibility with respect to broadcasting and telecommunications services, with new responsibilities for accessibility plans and progress reports.

The Bill aims to provide effective enforcement and effective public accountability for accessibility efforts, including a formal complaint process. It also provides for Independent Reviews of the Bill’s effectiveness over time.

However, there are no timelines for the federal government to achieve accessibility nationwide.

Definitions

Barrier as defined in the Act 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.

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.

Responsibilities of regulated entities

Those that fall under the purview of the new law will be responsible:

• For outlining detailed accessibility plans that must be drafted in consultation with persons with disabilities and revisited every three years. These plans would describe the strategies for improving accessibility and meeting the legal duties. They would have to be publicly available.
• For setting up tools to gather feedback on their efforts, including setting up ways to receive and respond to feedback from their employees and customers. Feedback could include complaints about how the organization is fulfilling its accessibility plan or barriers encountered by individuals.
• Produce regular progress reports and the degree to which persons with disabilities were consulted. Moreover, regulated entities, in consultation with people with disabilities, would have to prepare and publish progress reports that detail how they fulfill their accessibility plans. In the reports, they would also have to explain how they consulted people with disabilities. Progress reports must describe the main concerns of the feedback they received and how they responded to it.

Future regulations would detail how regulated entities must implement these requirements.

Application of the law

The Act would apply broadly to organizations under federal responsibility:

• Parliament, including the Senate, the House of Commons, the Library of Parliament and the Parliamentary Protective Service (with some tailoring of compliance and enforcement provisions to respect parliamentary privilege);
• the Government of Canada, including government departments, Crown Corporations and agencies;
• the federally regulated private sector, including organizations in the transportation sectors, broadcasting and telecommunications services, and the banking and financial sectors; and
• the Canadian Forces and the Royal Canadian Mounted Police (RCMP), while allowing for considerations related to bona fide occupational requirements, such as certain physical requirements necessary in order to carry out certain jobs.

Parliament would be obliged to undertake a review of this Act five years after the first regulation is made under the Act.

Coming into force

The proposed Act would come into force (or effect) on a day or days set by the Governor in Council.

Last words

Everybody in Canada including interested stakeholders and advocates are hailing this Bill as the first national accessibility law in Canada. However, how can this be, when the law only applies to organizations under federal responsibility, and a mismatch of provincial laws in Ontario, Manitoba and Nova Scotia have already been implemented to deal with accessibility in these provinces. Further, the proposed law will not apply or require the other provinces and territories that do not regulate accessibility to do so.

The other thing I noticed is, this Bill is almost a replica of what Ontario has already implemented and was copied in Manitoba and is being copied in Nova Scotia. So no great achievement there. It would have been better to ensure with all the provinces and territories, that a set standard and common timeline to achieve accessibility throughout Canada are addressed through the new Bill.

In my opinion, the Bill does not set the tone that was called for, to better achieve accessibility or improve accessibility, for those with disabilities across Canada.