Feds can improve accessibility legislation

The federal government should learn from Ontario’s mistakes when it comes to accessibility legislation, according to advocates who practise in the burgeoning area of disability law.

The federal government should learn from Ontario’s mistakes when it comes to accessibility legislation, according to advocates who practise in the burgeoning area of disability law.

Ontario became the first Canadian province to pass a law on the subject in 2005, when the Accessibility for Ontarians with Disabilities Act set standards designed to remove barriers for disabled people in the realms of employment, goods, services, buildings and more within two decades.

Manitoba passed its own version in 2013, while Nova Scotia’s Accessibility Act received Royal Assent just this spring.

Justin Trudeau’s Liberal government pledged to follow suit following its election victory in 2015, when the prime minister instructed former Paralympic swimmer Carla Qualtrough, his minister of Sport and Persons with Disabilities, to draw up a federal law following nationwide consultations.

Brendon Pooran, founder of Toronto firm PooranLaw, remains only cautiously optimistic about the federal developments, explaining that the AODA has not lived up to his expectations more than a decade on from its passage.  

“I’m not sure how impactful Ontario’s law has been. I would question how many people are really compliant with it, and unless that piece gets addressed when the federal platform is rolled out, I don’t think it’s going to be very successful,” says Pooran, whose five-lawyer firm is directed toward individuals with disabilities, as well as the friends, family and community groups that support them.

He says symbolic laws without teeth are not worth the distraction they cause from other pressing matters for people with disabilities.  

“The laws are a positive trend, and I do spend about a quarter of my time on law reform. But I also worry that a lot of issues are being overlooked because of the focus on legislation,” Pooran says.

“There are massive systemic problems with income support, legal capacity, housing and employment that get much less attention than they deserve.”

In its submission to the federal government, ARCH Disability Law Centre, a Toronto-based community legal aid clinic, also cited the AODA’s shortcomings as a source of concern.

Although the Act contains a number of enforcement tools, ARCH said that the provincial government “has largely relied upon voluntary compliance and reporting,” requiring businesses and non-profits to file accessibility reports every three years.

The approach has failed to deliver widescale accessibility, the clinic concluded, noting that in 2015, the government acknowledged that around 65 per cent of companies had still failed to submit their 2012 reports.

“Given Ontario’s experience, ARCH recommends that the Government of Canada commit to active and proactive implementation and enforcement of the proposed federal accessibility legislation, rather than relying upon voluntary compliance and reporting,” the ARCH submission reads.

Robert Lattanzio, the clinic’s executive director, tells Law Times that the United Nations’ Convention on the Rights of Persons with Disabilities provides a better template for the federal government to base its own efforts on.

Canada ratified the convention in 2010, and recently took the first steps toward acceding to its “optional protocol,” which provides a mechanism for individuals or groups to complain about rights violations under the agreement.  

“Robust, effective enforcement of the federal accessibility legislation should include a process by which persons and groups can complain about public and private organizations that fail to comply” and achieve meaningful remedies, the ARCH submission reads, suggesting an administrative tribunal with expertise in the area would do the job.  

In a recent interview with the Canadian Press, Qualtrough acknowledged that requests for the creation of an independent body to oversee compliance were a common theme in feedback from her consultations on the new law.

“We shouldn’t have to wait until someone’s discriminated against to help them,’’ she told the news service. “It’s not enough. Loud and clear I heard that it’s not enough.’’

Despite the AODA’s imperfections, Lattanzio says, it has helped transform the view of disability law in the province.

“It has put a spotlight on the many barriers people with disabilities face,” he says.

In May, Canada’s substitute decision-making practices were criticized by the UN in its first review of the country’s disability law landscape.

The authors expressed alarm at the increasing number of guardianship orders for people with disabilities and urged Canada to come up with a mechanism for “supported decision-making” that allows people to exercise legal capacity.    

“It has given us an opportunity to shine another spotlight on what we’re trying to accomplish,” says Lattanzio.

In a statement to Law Times, Andreas Kyprianou, a spokesman for the Accessibility Directorate of Ontario, said it takes a “proactive approach to assuring compliance” by auditing a sample of reports and “emphasizing the provision of tools, resources and one on-one-assistance.”

“If organizations do not come into compliance, the directorate can take more stringent enforcement actions including inspections or Director’s Orders, with or without financial penalties,” he added.

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