What regulatory power should a strong disability accessibility law include? David Lepofsky, chair, accessibility for Ontarians with disabilities act alliance, delivered at the Osgoode Hall Law School, January 15, 2014 as a Roy McMurtry clinical fellow. Thank you very much. It's always great to come back to Osgood and it's especially delightful to have been honored by Osgood as having been selected as the Roight McMurtury clinical fellow, I'll be here for four weeks giving lectures in various courses and available to students on an informal basis.

Twenty years ago this November on 29th November 1994, about 20 of us interested in disability human rights accessibility they like ended up through an odd chain of events in a room together at the Ontario legislature Queens Park. When we went in the room we each knew that we needed something new to be done to change our society, to make it one in which people with disabilities could fully participate.

We knew we needed a new law, but we had no idea what that law would be. And we had no reasonable expectation that we'd ever win it. We went in that room just to talk about what to do. We came out of that room an hour and a half later having formed a new coalition.

Weeks later I became its co-chair and then its chair. And the next 20 years were history. A decade after that event the Ontario legislature unanimously passed the Accessibility for Ontarian with Disabilities Act 2005 with all party approval, unanimously. Four years earlier it had passed the Ontarians with disabilities act 2001 but two opposition parties, the liberals and NDP voted against it as being grossly inadequate.

What I'd like to do today is not to talk to you about the political process of, of advocating for this kind of legislation, or the community organization strategy that brought people with disabilities from one end of this province to the other together, together, to fight for it, nor do I propose to review the substance of the gains on accessibility we've won in the eight years since the AODA 2005 was passed.

They will be the subject of other lectures that I'll be giving while I'm here at Osgood and we hope will be available for longer term use through YouTube. What I'd like to do with you over the the next few minutes we have together. Is to talk very specifically about the regulatory strategy, the policy, the contents, the guts of the AODA.

What we decided to see, how we decided to, to to map that out, how we figured out what to see. What we got in 2005 and since then, what changes we've been able to get to seek and to get and how that regime is implemented. This is all about process.

The substance is, of course, critically important, I'll be addressing that later, in the end I will tell you through the totality of the lectures I'll be giving. We've come a long way in terms of getting this legislation on the books, as a community organizing strategy. And I believe we've come a significant distance, since the enactment of the legislation and moving us forward, but we are way behind schedule at achieving the goal of full accessibility.

Before I jump into how we crafted our proposals for this legislation and what the government did with those proposals, it's important for me to just take a moment or two to tell you about the social problem that this law aims to fix. Put simply, the, at least 18, 17 or 18% of the population of Ontario, over 1.8 million Ontarians, right now have a physical, or a mental, or a sensory disability.

That might be, young folks or, children born with a disability, older folks who acquire one through the aging process, or, or through accident or injury. However, our numbers are not static, they're growing. The proportion of Ontario's public, and Canada's public, and even the world's population that has a disability is growing because the greatest cause of disability is aging.

And our population is disproportionately getting older. So we will have more and more, or a greater proportion of our study will have disabilities in the next ten years, than do right now. These folks, people with a physical, or a mental, or a sensory disability face barriers every day of their lives, whether they're trying to get a job, or an education, or use public transit, or buy goods or services, or take part in any other aspect of, of our society that other folks take for granted.

Some of those barriers are physical, like steps to get into a, a bus or a, a building. Some of them are information barriers, like the lack of braille on some elevator buttons. Some of those, barriers are communication barrios, the lack of, communication supports, like sign language interpretation for people with hearing loss.

In situations were they needed to be able to benefit from a good or a service, or employment. Some of the barriers are, are, bureaucratic, some are legal, some are attitudinal. So, in a nutshell people with disabilities face too many barriers. And as a result, they're excluded, disproportionately, from so much of our society, and what it has to offer.

And they end up disproportionately over-represented among the poor and the welfare defen-, dependent. And under-represented among the educated and the employed. That's the problem. The barriers we face ultimately hurt everybody, because everybody either has a disability now or will get one eventually. We are the minority of everyone.

Everyone has a disability, has someone near to them, dear to them who has a disability or will get one. Now, it happens that these barriers are all illegal. They're all illegal. They violate in the case of the public or private sector, the Human Rights Codes guarantees of non-discrimination and access to employment, housing, goods and services, and facilities.

And in the case of government, the guarantee of equality to people with disabilities in section 15 of the Charter of Rights and Freedoms. The problem that led 20 people to end up in that room in Queens Park, on November 29, 1994, was even though they're all illeg-,they're, they're pretty much all illegal, they too often, far too often, a vast majority of the time, those barriers remain.

And as quickly as old barriers might be torn down, new ones are popping up. Why is that? There are two reasons. This underpins everything I'll be talking to you about. The first is that those laws, the Human Rights Code and the Charter, while wonderfully interpreted by our courts for the most part, after some bumpy starts, are way too vague.

They don't tell an organization what to do. If you walked up to a restaurant owner and said: "You don't have a braille menu here so you are, violating the human rights code", they'd look at you probably like you were crazy. They wouldn't have the first idea, that they're violating the human rights code.

Same with many, if not most of the barrier. And the second problem, so the first problem is that organizations for the most part don't know what they have to do or don't know they're in breach of the law. The charter and the human rights code speak in very broad terms, don't discriminate, do accommodate.

But they don't tell people the specifics of what they've gotta do and when they gotta do them by. The second problem is, whether or not an organization knows they've got to, they're, they're violating the law. The fact is, if you want to enforce your rights, you've gotta bring individual cases or complaints, either under the human rights code, or under the charter to fight barriers one at a time.

Most people with disabilities are poor, unemployed, disproportionately underrepresented by the legal profession, or not likely to be able to avail themselves of that process. I've used it myself. I had to bring that one to two cases to get, under the human rights code, to force the TTC audibly announce all bus and subway stops.

It's not a fun process. many, most won't vote themselves for that, undertaking that hardship. So, that's the problem. This led to 20 people to come into a room, say, we need a new law to fix it. Initially, the name we wanted for that law was the Ontarians with Disabilities Act.

The named changed over time for reasons that don't matter for purposes of our present discussion. But when we enter that room we didn't have the slightest idea what we wanted the law to contain or to do. We didn't know about any of the detail, we hadn't figured out any of the details.

That came later. We made a strategic decision early on when we formed our coalition, which I ended up starting out as co-chair and as I said to this date end up in, in a chair role. First, the original coalition, the Ontarians with Disabilites Act Committee up to 2005 and then, it's successor, the Accessibility for Ontarians with Disabilities Act Alliance, from 2000, formed that year and I became it's chair in 2009 to the present.

But in any event, we decided early on that we weren't gonna get involved in the details of what the legislation would contain until we had a government at the table who really wanted to talk business with us. Let me jump forward to 2003. In 2003, the Ontario Liberal Party, by the way, we're non-partisan, we'll work with anyone.

But the Ontario Liberal Party was elected on an election commitment to us to enact a disabilities act that would cover disabil, barriers in the public and private sector that would be effectively enforced and would, involve key principles that we put forward. That was when we realized that we now have to be ready in a serious way to get into detail.

We'd done some policy development up 'til then. But 2003 is when we especially had to turn our attention to the question of, of how this legislation, or what regime or compliance and enforcement we would use, in this legislation. What I'd like to do now is to tell you about the process we use for coming up with our ideas, what we got from the government, and the specific, some of the specific changes that we've had made to it since the law was passed in 2005, in order to correct problems that we've identified.

So, 2003 rolls around. We knew what the goal of our legislation was: removing and preventing these barriers, achieving a fully accessible society. We ultimately knew that we wanted to, not to change the rights guaranteed in the charter of the Human Rights Code to people with disabilities, but simply to come up with a way to have them effectively implemented in the public and private sectors without having to litigate barriers one at a time.

So, we need to figure out how to do this. I had a problem which is, as the chair of the coalition, I didn't have all the answers. I happened to be a, part-time faculty at Os, at UT, teaching a course on freedom of expression. So I approached some faculty members there, including a fellow named Lauren Saulson, and a couple of other faculty members and we pulled together, essentially a team, I called it the brains trust, to come up with ideas.

We worked together over weeks, and these folk were, well, dedicated and generous with their time and extremely creative. As a result, we developed a discussion paper which we put up on our website and emailed out, in June of 2004. It tackled a series of issues. The issues we identified, included these.

First. What exact model for compliance are we gonna use? Are we gonna require organizations to develop accessibility plans, and then just police the quality of those plans? Or are we going to develop a system of accessibility standards or are we gonna use both? Well, we have some experience to draw on 'cause in 2001 a couple years before when the Conservative Party was in power in Ontario and Mike Harris was the Premier, they' d committed to pass a Disabilities Act, but were very reluctant to, include any teeth in it.

Excuse me. They passed a law in 2001, a very weak one, called the Ontarians With Disabilities Act in 2001. It only applied to the public sector. It did not require the private sector to do anything. And in the public sector, all it required organizations to do, whether government ministries, universities, colleges, hospitals, public transit authorities and the like, all it required them to do was to annually develop and make public an accessibility plan of the barriers they were prepared to address.

It didn't require to be, the plans to be any good and it didn't require these organization to ever implement their plans. They just had to make a plan, whatever it was, and make it public. We learned from that experience, that planning alone wasn't enough. And indeed, organizations that were bound to provi-, develop these plans agreed in a number of cases that they didn't want to each have to reinvent the accessibility wheel, organization by organization.

And, interestingly, we ended up having a common view from our coalition, then called the Ontarians with Disabilities Committee, in some of the obligated sectors, that the way to solve this was to set some common standard. That would tell organizations exactly what they gotta do and when they gotta do it by in order to achieve accessibility.

Now we could have had a law, that both set a requirement for accessibility planning and, required accessibility standards. And in fact, that's what we ended up asking for. But we mapped out both options in our discussion paper. In coming up with these ideas, like, where do you get these kind of ideas from?

There isn't sort of an off-the-shelf, no other province had a disabilities act that we could look to. And other legislation around the world, we did look to it. But other legislature around the world had often had parts of law, of legislation, we already had. There was a law called the Americans with Disabilities Act passed in 1990.

It's got a lot of good things in it, it's got some limitations. It included, and, and we stole the name from that, Ontarians with Disabilities Act came from Americans with Disabilities Act. But, we that law, a key part of it is just the right to sue for discrimination based on disability.

Well, we've had that since 1982 in Ontario. But we found that it does, it did include some useful features. Especially the requirement, or the power of the state, of the federal government to develop and implement accessibility standards in different sectors and to tell organizations what they've got to do.

That was helpful, but it only got you a certain distance. The, the Americans with Disabilities Act was, there was some controversy about it, how effective it is, did it really work and so on. So, when I sat down with our, with with then Professor Saucin and our brains trust, I said well does anybody sort of study comparative regulatory regimes in an administrative law to find out what works?

And the answer was no, we don't really do that. We have different people who study principles and judicial review or look at specific areas, like environmental law, or securities regulation or whatever. But we couldn't find anyone who had been looking across the board at different regulatory sectors, or regulatory regimes, to tell us which ones work and which ones work better than others.

So that wasn't gonna be a solution. And if you talk to individual private sector or even public sector administrative lawyers, they will litigate individual cases under Administrative Law Principle. And they, they don't look at the big picture. They, they tend to, I don't mean that as a criticism, they focus on an individual dispute under a law they've already got a deal with, whether it's a labor law or whatever it may be.

So they weren't really in a position to help us too much either. And, human rights scholars spent most of their time, studying what the human rights code says and how it should be interpreted or analyzing the outcomes of individual cases. And we didn't find from them a lot of guidance on how to design a new system.

So what our brains trust came up with as an idea is let's, let's just try to figure out what regulatory systems, or laws deal, with a similar problem. And the two that, that then Professor Saucin, before he got elevated to his current lofty height as Dean, they came up with this idea of two regimes to look at.

One was environmental laws, and the other was occupational health and safety laws. And the reason that those two came up was because they're not identical to the issue we're talking about here, but they cut across a lot of businesses, a lot of organizations, public and private sector, and between the two of them, they deal with relatively complicated issues.

That effect real people. It may be complicated to deal with different kind of pollutions but toxins hurt real people. An occupational health and safety you can also get into complicated issues of what type of machinery is being used and what kind of safety re measures are in place and all that stuff.

But ultimately, you're trying to ensure that workers don't get hurt, so we had both real, real people problems, and complex business settings. And it was from those two regimes that we cobbled together, our ideas. We put out an options paper, a discussion paper, in the summer of 2004, and well time doesn't permit me to get into this here, I, I'll just tell you in a, in a, in a nutshell.

I continue constantly to be, impressed and delighted, at how many disability community organization, how many individuals with disabilities, and individuals without disabilities, will review this stuff that lawyers would think of as being dry boring and technical. Would dig into it, come up with interesting ideas based on it and make really good recommendations.

And they did, drawing on this discretion paper when it came time to get submissions to interior government. So. We worked together, came up with this discussion paper and circulate it. In terms and two of the main ideas that we were proposing, there are others, but the two that main ideas was the idea of developing and implementing accessibility standards.

And having a regime for accessibility planning. Standards address the need by saying it. Organizations don't know what they have to do or when they got to do it by, a standard will tell them. Organizations often, if you point out a barrier in an organization, typically their answer is, oh, we never thought of that.

A restaurant that doesn't have a braille menu in't s 'cause they sat down and said, let's make sure we never have braille menus. And we want to make sure blind people can't, read our menu. They never thought of it before. So if the answer was, if the common experience was, we didn't think of it, accessibility planning is designed to require them to think about it.

That's how we crafted sort of the, the, the, the guts of our proposal. Now, when it came time for the government to develop it's lie it took our discussion paper, and got input from the public, and it came with proposals, which it introduced in a bill in the interial legislature, a proposed accessibility for Ontarians with disabilities act because they gave it a new name.

Because the, the conservatives passed the Onatarians with Disabilities Act, and so they wanted a new name, so they called it the Accessibility for Ontarians with Disabilities Act, that's why we have these two different laws by two different names. And then they held public hearings where we again, could have input.

And we used the, the, the guts of the proposals we used, we developed in that discussion paper that summer to inform the proposals that we came forward with for amending that legislation, which ultimately, passed in May of 2005. So, what did we get? What came out in the law?

What, what is the essence of this legislative regime? Well it has a number of key components. I summarize. Number one, the goal of the legislation, stated in the law, is that Ontario is to become fully accessible to people with disabilities by or before 2025. I wanna tell you, the idea of a deadline was not our idea.

I'd love to claim credit, say wasn't that brilliant of us. We never thought of it. It was actually an idea that came from within the government, and it was a superb idea. It's had a dramatic impact since,'cause the moment this law passed, we said the clock started ticking, and our constant refrain is, are we on schedule?

Accessibility standards. What is an accessibility standard? It's a regulation that will see, speak to either one sector of the economy, transportation or something like that, or one swathe of human activity that cuts across all organizations, like employment. Tell them what barriers to remove, when they have to remove them by, and so on.

The law provided that, different, that, that standards didn't have to be one size fits all. It wasn't simply saying everybody must accomplish X by this date. It could take into account whether an organization's public sector or private sector, whether it's large or small, and it can set different requirements, and different time line.

We agreed with all of those. How were the standards to be developed? This is really an important thing. Usually regulations are just things that public servants work on, develop, they go to cabinet, they are approved, and that's that. We, in our discussions with the government, and arising from the, the excellent assistance that we got from our Brains Trust at leading up to this.

We said that these should not just be invented at Queens Park. We need a system in place for how these standards are made. Here's how the system goes. First, the government has a mandate to decide which standards will be developed. And it has a free hand to do this, but it has an obligation in the legislation to make all the standards needed to get to the law's goal, the statute's goal.

And that goal is full accessibility by 2025. So, we could turn to the government at any time and say," Have you made all the standards needed to get us to that goal?" Or, in turn,if every organization complies with all the standards you've made, will we achieve that goal of full accessibility by 2025?"

It's in the law, it's where typically Legislation says government may make regulations, here it said it must. And it put a test forward. Well, how are the standards gonna be made? Well, our discussions with government, we said that, really there are two sources of wisdom the government should draw on.

People who know the most about people with disabilities. And that's people with disability. And people who know the most about how to run an organization and that's people who run organizations. So we said why don't you set up a committee for each standard, then call it a standards development committee?

And on it there'll be representatives from the obligated sectors, from the public sector, from business and so on. And from people with disabilities. They'll put their heads together, put together proposals, submit them to government and the government will be, and then decide whether it wants to enact the proposals in whole or in part.

Once enacted it's a law. And under this regime, the government, the standards development committees. After five years are to review the standard that was first made so that we can see if changes need to be made to make sure that we get to that goal of full accessibility by 2025.

That was the basic regime, well next comes an important policy question. How are you gonna make sure this is the works? You don't wanna end up on Christmas Eve 2024 and find out, oh shucks, we kind of haven't, we're nowhere near there. So there were several accountability mechanisms built into the law.

first, when standards of committees meet they have to keep minutes and they have to make the minutes public, so we can know what's going on there. We wanted them to actually meet in public. The government wouldn't agree with that. So the secondary their, their fallback was to have these minutes.

Second, when is standards committee makes a recommendation, it makes it first a preliminary recommendation. That's made public. We give input. They then review our input. They make final recommendation. That's made public, and before the government can enact a regulation, it's gotta make a draft regulation public, as well.

And we can give input on that. On one level, you may say, man that's a lot of giving input, but through this process, we can see what's being considered. And we can give input as can the obligated sectors. And if the government is widdling or wittling things down we can track that.

And see how much they are prepared to do compared to how much they were urged to do by the very people they appointed to develop these standards. The next accountablity mechanism that's built in, is that the minister responsible for this legislagsion has to make an annual report to legislature on how things are going.

By the way by the way we didn't hold our breathe on that one because they tend to write these self serving aren't we doing a wonderful job statements. Which is basically what's happened, every year. But there was one other accountability mechanism that was built into this law and it's a really important one.

There's a requirement in this law that every few years After, first after three years after the law was enacted, and then every four years after that. The government has to appoint an independent person to review how the law's working and make recommendations. Essentially to see if we're on track and on schedule.

The first independent review took place in 2010 and the second one as what I mentioned is going on right now under the hospices of Dean Mayo Moran of the UOFT faculty of law. So that was the basic framework of the law. How's it going to be enforced? Well, if you go back to our discussion paper we relayed out a whole range of options, like the human rights commission.

Or by the government or by an independent agency. We ended up urging that the government appoint an independent arms length enforcement agency with powers to audit, inspect, issue compliance orders and, and so on. And then have an independent tribunal that the the complaints could be appealed to. The government agreed to incorporate in the law powers of, compliance orders, inspections, pardon me, audits, and monetary penalties including a potentially a very steep one.

But did not make this independent. Rather it's managed by a body called the Accessibility Director of Ontario. Statutorily created, but part of a government ministry. Excuse me, accountable to a cabinet minister. So that's the regime. Well, 2005 passed unanimously. We all celebrate. How did it go? Let me take, break this into different chunks of time.

2005 to 2007. It starts out, actually very well, the government quickly decided that there were five accessibility standards that need to be made first. The five they picked were very good choices. Customer service, transportation, employment. The built environment in information and communications. Top grades for their choice. And they appointed standards development committees to do each, and got them up and running, relatively quickly given that this was a very new initiative.

By the way, the government acted very quickly in developing this law. The government took power and O-, October of 2003, they had a bill introduced by October of 2004 and it got third reading in May of 2005 after province-wide televised public hearings. That's actually quite, prompt action by a government, much less one that's just newly, taken power.

After that, we came to realize fairly quickly, when the experience of the first two standards development committees that hit the ground running, the one dealing with customer service and the one dealing with transportation, that there were a number of significant problems happening from a disability perspective at the standards development table.

This led us to go to the three political parties in the 2007 election and actually ask them to make election commitment, not for legislative amendments, but for very specific actions on how they implement these laws. Interestingly, all three parties, while they don't agree on much, agreed on many of our proposals.

What were the problems, what were our proposals and what did we get? First. We found out, early on, that the government, appointed, when it selected who it would appoint to these standards development committee, people with disabilities were always the minority. That the number of public and private sector representation, representatives, outnumbered them.

So on any vote, if there was a debate about how far the standard would go or should go, the disability community always lost. So we urged that 50% of the standards development committees should each always be made up of people with disabilities. And the government agreed. And by the way, it did make a significant difference, looking at what happened afterward.

Second, the way these standards of committees were working, at one side of the table, you had representatives, of public and private sector organizations who often had access to a lot of resources. Government agencies and the Transportation Standards Development Committee, in came all these public transit authorities paid for by you and me a by the tax payer, who can hire lawyers and policy people and someone.

And the disability sector was not only outnumbered, they were, outgunned in terms of access to expertise. And we, they were often volunteers. They didn't have access to the supports they needed. We asked the government in 2007 to provide support to the disability sector so they could at least be in a position to have an equal playing, a level playing field when they debate these things in terms of research and support.

the, the liberal party, for their part, promised to provide one staff person to provide research support. And they did. Not sure that was enough, but at least it was a start. The third thing that we found out that was wrong, this is all learning by doing, by the way.

Like you can't, we, we didn't have a play book to work from. We were just figuring this out as we were going along, and to the government's credit, so were they. But the third problem that we found out with these standards of development committees, is that they weren't consulting with the community other than where they statutorily had to and we thought that there might be times there was a dispute or an issue coming up that was worth them inviting people in.

They had the statutory authority to but let me give you a classic example. I was in the middle of litigation against the Toronto Transit Commission personally. The forest of new announced subway stopped. And later bus stops. And I had found out from some members of the transportation standards committee that they were having a real debate.

The transit authorities didn't want to require their drivers to call route stops. That may sound a little crazy. It was. But they were putting up a fight there, just like TTC was putting up a huge legal fight at the human rights tribunal against me. So I wrote the committee and asked, can I come to a meeting and at least pitch to you what our concerns are?

And they refused. I mean, I got in writing that they would not allow me to come to a meeting, personally, to a meeting of Transportation Standards Development Committee as a blind person to explain why it's important For us to have drivers to call route stops, this seemed like something was really seriously broken in their deliberative processes.

And remember this was taking place at the point where the disability sector was outnumbered so they could never, they'd lose every vote where there's a contest. And the other major problem that we found out took place was that the way these committees were working. They were ultimately voting on proposals all or nothing.

So they would discuss a bunch of proposals but eventually, the question would come up, basically, here's our proposal for an entire standard, do you vote for it, or do you vote against it. And this put the disability sector in a real bind, because they might think the proposal is absolutely weak and appalling.

But if they vote against it, and it's defeated, then nothing goes out for public comment, and the process dies. So in the end, they end up having to vote for it just so it moves forward after which the proposal is released publicly with the statement, everybody voted for it, so it makes it sound like they were unanimous, in supporting a proposal that the disability sector actually thought was way too weak.

The transportation example is a good one. When it came to calling route stops, they ended up in their initial proposal, recommending that yes, public authority transit authority should be required to call all route stops, but they should be given 18 years to start doing it. I can't make this stuff up.

So, the disability sector, reps came to us and said this is not right. So we went to the government and we said, "They should be able, why don't you change the way you do this? Why don't they vote clause by clause like you do in the legislature?" And if people oppose something let them give their reasons.

So when a recommendation comes out from the committee. So the government, let's make public both the recommendation and if people vote against it, what, what the vote against it was and what their reasons were. And this works for both sides. If something comes out, that some business representatives think was too aggressive or the timelines were too onerous let them vote against it and say, you know, it passed 12 to 5.

And the five could give their reasons why they thought, so the government, and we the public could read the results, and con-, and, and, decide, what to recommend the government actually do with their proposal. So. The good news is, all these, the government committed, to pretty much all of that.

And implemented, I would say, most of it. Ironically, after the 2007 election, the chair of the Transportation Standards Development Committee on behalf of what was still a majority of non- disability representatives, wrote the cabinet minister, asking them to break their election promise to us. Which, after election usually politicians say yes I'll take my election promise.

And they, they carried on under the new regime. So that was our huge and interesting process in learning how to fix it. Interestly-, troubling, though, was the fact that the fix had to come from us during an election, going to the Premiere and the two leaders of the opposition.

When we made these proposals with the government, they didn't, at lower levels, they didn't, they didn't go anywhere. So that's 2007. Let me take you from 2007 to, to 2010. What happened next? Well, then these standard develpoment committees toiled away, worked very hard, came up with a series of proposals, actually between then and 2011, and pardon me, 2010; that's correct, released various proposals, interim proposals, got input from the community, And came back you know with final proposals and the government had them on their plate to develop standard.

The government enacted one standard in 2007 the first customer service. In 2011 in June it enacted another three dealing with employment, information communication In transportation, all one comprehensive or integrated regulation. In the end of 2012, they enacted part of the built environment proposals, those that deal with public spaces outside like, parking spots, sidewalks, recreational paths and a few other things.

Things that deal with inside the building, they've just passed a couple weeks ago, some amendment to building code, but nothing under the nothing in the form of a, an actual standard under the Accessibility Frontiers of Disability Act. But, for your purposes let's not deal with the substance of what they pass but what more did we learn and what more has developed in terms of how to, how this regulatory regime works.

Well nine, the next critical date is 2009 to 2010. 'Cause while all this work was going on the magic data rose in June of 2009. That was four years after the disability act was passed, and the government had to appoint its first independent review, and that independent reviewer, who was appointed is a gentleman named Charles Beer, a former Provincial Cabinet minister from the eighties, and widely recognized from all perspectives as a, a wise, thoughtful, attentive and fair individual, he went out and held consultations talking to the business community, this building community, and government and so on.

The message that he got from both the disability sector and the, the obligated sectors, was that while the government had made a good effort at making the standards development process work, there was some real problems. There were four or five different committees working on different problems, and there was no coordination between any of them.

A lot of them didn't quite understand what it was they were supposed to be doing. Even after the changes in the process that we wanted in 2007 election, a number of them found that they, a process was convoluted. There were also big committees, it was hard to develop consensus and so on.

We in turn when to the Behr. Charles Bier, independent review, and said, In addition, we're concerned that this whole process is not even trying to develop accessibility standards that will live up to the requirements of the Human Rights Code or the Charter of Rights. Now at that point, Charles Bier only had one standard that had been passed to look at, the 2007, customer service accessibility standards.

Remember, he's doing this in 2009. And the other standards weren't first enacted, weren't, weren't enacted until two years later. So he was dealing with process. The subject we're dealing with here. He also found that throughout all of this there was very little understanding about the Disabilities Act or awareness of it among the obligated sectors, business and so on.

And he ended up rendering a report that was tabled, the Charles Beer report. It's available, by the way, on on our website, aodalliance.org. As well as our analysis of it. You read a report to the government in February of 2010, which the government studied and made public on May 31st 2010.

You basically reached the following conclusion. You said the government means well, but they dropped the ball. You said that really the government celebrated the passage of this fund in 2005, then went back to business as usual. And he said there was a real need for the government to revitalize the implementation of this law and to show new leadership on it.

He echoed the concerns that people had about how the standards were being developed and recommended some significant changes. First, he said the government should appoint one minister responsible for all accessibility issues. And the lead public servant on this file in the Ontario government was the assistant deputy administer.

They should be made a deputy. In other words they profile this within the public service should be ratcheted up. He also proposed that the standards should be harmonized. They shouldn't be dealt with in little silos. They should be done in a coordinated, so business could all know, and, and, the broad, and the public sector, broader public sector could know what they gotta do with timelines that are coordinated among themselves rather than scattergun.

Which actually makes a good load of sense. But he also said that the process of how these standards are being developed should be consolidated, instead of having five different standards development committee, he was impressed from the, by the United States model under the Americans with Disabilities act, where they have a central access board, to develop a number of proposal, he said the province, should amend the disabilities act, to create a single body, arm's length from the government with its own staff.

That will develop accessibility standard proposals. Won't enact them, but will develop them. We rec-, we supported pretty much everything he recommended, except a couple things that I haven't covered and that don't matter and that are secondary. And we didn't hear anyone in the broader public, discussion of this issue from any side who opposed what he proposed.

So the next question is what's the government done about it? Well they took their time. I will tell you that they to this day have not appointed a single minister responsible for all accessibility issues. And we still have a problem in the Ontario government, the largest employer, the largest service provider, the organization that describes itself as being the wanting to, lead by example, in how to do accessibility.

We still have accessibility dealt with in silos. Uncoordinated across the Ontario government. There are some efforts to deal with it. There's been some progress, but there's some unbelievable problems, within the public sector that could've been easily fixed. They have not elevated the assistant deputy minister to be a deputy minister.

Essentially business has been as usual. Subject to one change that just took place a year ago. And is not one he recommended but we are delighted with. They moved the accessibility directorate from the Ministry of Communications, Community and Social Services to the Ministry of Economic Development and Trade, Trade Unemployment.

We were happy the government decided that accessibility would be seen as an issue of economic development. Not as an issue of social assistance. They haven't done a very much of a good job of integrating it in their economic development strategy but at least they, they took this step that was symbolic.

What did he, what have they done with his proposal for how to reform the access, the process for developing accessibility standards. Well the government, has done what it could, within the confines of the statute as drafted. We have made it clear publicly that we did not want the Disabilities Act reopened.

We don't want amendments to it at all. We don't want any fiddling with it. We want it to remain, sacrosanct. So the government looked at the disabilities and they said well can we how can we do what Charles Bier recommended as much as possible without altering the statue?

So what they did is that they decided that there was a body that already exists under the statue that had very little, major role. And they made it the new standards development body. The body is called these government names, the accessibility standards advisement council. It was created under the disabilities act or extended under the disabilities act in 2005 basically as a body that would give the minister general advice on accessibility.

I will tell you that governments often have the accessibility, or pardon me, advisory bodies to deal with various issues of social concern. My own lay, uninformed, and perhaps speculative view that most of them don't get much real opportunity to have much impact, no matter how good the people are who are on them.

And there were really good people on this body, but up until last, this past year, that council I don't think, was used to its full advantage. And I'm not aware of, and we're not aware of it having a substantial impact on the, efforts of the government to achieve accessibility.

Well the government says, well we got this counsel anyway, why don't we use, next time we're gonna make any access standards, let's appoint them to be the standards deveopment committee. It'll be one body, it'll be all under one roof. It'll be harmonized. It'll be together. It'll be ongoing, it'll be, it'll be a consistent, process.

We said great. The good news is that a year ago the government made, announced that they were gonna do this, but they took fully five months to appoint anybody, maybe even six months to appoint anybody other that their, the Chair, and they haven't given them any new standards to develop.

So, they've got the body ready to go. They haven't given him the work. In fact, the only thing that this counsel has on its, on its RADAR right now, is that the 2007 customer service accessibility standard came up for its five year review last year and they've got to do that review.

We've not seen. Any sort of significant public action on it, but we've been told it's on their, their agenda. There are good people on that council. But, we're very critical of the government for not actually giving the the work the, they need to do, once they were given the mandate to do that work.

Let me just spend a couple of minutes, so that's where we are now. Now we have an-, let me, let me spend the last, couple of minutes just taking you through a bit of where we are now in this overall regime. Not, which barriers are fixed or which ones need to be fixed, that's hugely important, we are dealing with that in other lectures.

But in terms of the perspective you folks are taking which is looking at different regulatory regimes for solving social problems. Number one, we have an independent review. And this is going to be right on that reviewer's plate, you know, The independent review is in a sense, illustrative of the kinds of problems we've been facing as as of late.

We believe we're way behind schedule, we are not gonna rechieve full acc-, accessibility by 2025 or, anywhere near then. The government was actually statutorily obliged, to appoint the independent review by May 31st of this, of last year. And they didn't. Actually ran an op-ed in the Toronto Star, online, about the fact that they were actually in breach of their own law and they remained in breach of their own law.

We ran a daily count on Twitter for over a hundred days. The government itself, not complying with its own timelines, is hardly setting a good example for our business and other public sector organizations should do in obeying timelines they're supposed to comply with. Under the disabilities act. That's a huge, issue.

Second, just to give you the sort of current situation. What about enforcement of this law? What about enforcement? So remember I told you that in 2005 the government included powers of inspection, audit, compliance orders and so on, but kept them in-house within the government, not assigning them to an independent agency.

Well, starting in 2010, there was something to enforce, the customer service standard relative to the public sector. And starting, last year, the start of 2013, the customer service standard, obligations were enforceable is against the private sector. Well the government did some work with the broader public sector but we chased them for all of last year to find out what they were doing to enforce, in the private sector.

And we were able to do this focusing on, one major question. Under the Disabilities Act Customer Service Standard, any organization with 20 or more employees that provides goods or services to the public, had to file by the start of 2013 with the government, e-file, a compliance report, just saying are you in compliance?

So we wrote the government in the end of January last year saying: how many files, how many didn't, and what are you doing about it? They didn't answer. They didn't answer, they kept not answering. We kept raising it and they kept not answering. So finally in August of last year, I filed a Freedom of Information request.

The government told me eventually, that I'd have to pay $2,300 and some odd dollars, to get them to answer that request. I knew there would be, or I believed, that you'd only have to push a button to get the information off the computer, of how many were in compliance, or not.

And as for producing their plans for enforcement, if they needed to spend $2,300 on public service to find that plan. It mustn't be on the top of their desk. Eventually, questions in the legislature, and a an a, an editorial slamming the government on the Toronto Star led them to hand over the documents, we were seeking.

What did we find out? This was reported in the media last Fall. Of those private sector organizations with 20 or more employees, in Ontario, fully 70% had still not filed an Accessibility Compliance Report. By November of 2013, over ten months after the legal deadline fro doing so, after having been given five full years to prepare for compliance with what is a relatively simple regulation to me.

We also found out through that, freedom informational request that the government were conduct, had conducted no inspections of any private sector organizations. No audits, they'd issued no compli-, compliance orders, and not issued, imposed one dime of monetary penalties.
>> Now apart from that, they were doing
>> Other than that they were doing a great job.


>> We just have, maybe five minutes, before the break. Does that work?
>> The break. Yeah, yep, absolutely. So, we, we, needless to say, enforcement is a huge issue. I can't leave this topic, however, by, leaving you to, with the, image of this being solely about regulations, and about, compliance and enforcement.

There are a number of other fronts to complete the picture, and I'm gonna just list them quickly, and then we wrap up. To achieve the goal of full accessibility while the standards, development, enactment, enforcement regime is critical. We have believed throughout that there are a number of other parallel strategies that need to be pursued.

Let me list them and tell you what's going on really quickly. And they're really interesting. Number one, government money talks. Government spends a fortune every year on infrastructure, on capital, and on procuring goods and services. We've called on the government to, comprehensibly require that no public money can be used to create barriers or perpetuate or exacerbate barriers.

We've gotten some progress, but lever of power has largely been substantially unutilized or under utilized. Number two. We believe from day one that it was important for the government to review all its own legislation and regulations. To make sure they are, that they don't themselves impose barriers or authorize the creation of barriers.

And, in 2007, Premier Dalton McGuinty promised that such a review would be done, said it was the next order of business. The government didn't even start doing it for at least three or three and a half years. It's still under way now. Number three. There's some areas where individual barrier er, some environments where this regulatory regime just sort of won't fit, but where action is needed.

Courts are a good example. You can't develop a standard for telling judges how to deal with accessibility to the court room. It's just not gonna, it just doesn't work in the judicial environment. In 20 and, 05, our then Chief Justice, Roy McMurtry after whom the fellowship I, I, I, have the honor of having this name.

He called on the judiciary to do their part to achieve accessibility. He appointed a committed of the bench, the bar of the government to develop a road map to make the courts accessible. That report was submitted. I had the privilege of serving on the committee that developed it under the leadership of Ontario Court of Appeal Justice Karen Wiler.

The Wiler Committee Report available on the Ontario Court of Appeals Web site was tabled in 2007 and a permanent joint committee of the bench foreign government of Ontario. The Ontario Courts Accessibility Committee has been working since then, I'm a member of that committee, as well, on working on strategies to address barriers in our court system.

We, also need a comprehensive strategy, for education. And really wanna target two groups. The natural thing you think of is educating businesses and all, of course you gotta do that. But we've called on the government to develop a strategy for ensuring that schoolkids get education on accessibility so that the next generation will know better.

And also, for professionals like architects, doctors, nurses, and you bet, lawyers, who provide services to individuals to know about, the barrier, the need to provide barrier-free, services as well. At the very least, somebody who gets a license to be an architect should know how to design an accessible building.

That ought to be pretty rudimentary. So far we have gotten far too little action on that front. And finally, we believe that voters with disabilities need to have full and equal access to the ballot if our political clout is to be heard, and if governments are to be truly held accountable on this issue.

We estimate there's over a million voters with disabilities. But too often, they face barriers in voting: either getting in the polling station, or in the case of people who are blind or dyslexic, independently marking your ballot. One solution we've been urging, is telephone and internet voting, not only for us, but for everyone.

So far, Elections Ontario has been extremely slow, and, unreceptive to this proposal. Let me conclude by saying that the 20 people who got together in that room, back 20 years ago this November, who started the movement that became the cross disability, Ontarians With Disabilities Act Committee and later the Accessibility for Ontarians With Disabilities Act Alliance, our community started out not knowing about anything that I've just spent the past hour talking to you about, including me.

None of us did. We've learned by doing. We've learned by having wonderful people to advise us along the way. And we will continue to learn by doing. If you want to learn more about this, I encourage you to consider a couple of options. One is we provide regular email updates.

Just send a request to sign up to AODAfeedback@gmail.com, or follow us on Twitter at @AODAalliance. Either way, you can find out a lot about this. We are, a new source of unaccessability here, and around the world. Anyway, I welcome the chance to take your questions, and I thank you so much for the opportunity to speak to you this afternoon.