Help Us Make Information and Communication Accessible to Ontarians with Disabilities — Please Tell the Ford Government If You Support the AODA Alliance’s Finalized Brief to the Information and Communication Standards Development Committee on that Committee’s Draft Recommendations to Improve the 2011 Information and Communication Accessibility Standard


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Help Us Make Information and Communication Accessible to Ontarians with Disabilities — Please Tell the Ford Government If You Support the AODA Alliance’s Finalized Brief to the Information and Communication Standards Development Committee on that Committee’s Draft Recommendations to Improve the 2011 Information and Communication Accessibility Standard

November 26, 2019

          SUMMARY

It’s finished and delivered! The AODA Alliance has submitted its final brief to the Information and Communication Standards Development Committee. In that brief we give that Committee our feedback on its July 24, 2019 draft recommendations for improving Ontario’s 2011 Information and Communication Accessibility Standard that was enacted under the (AODA).

Our detailed brief, which we set out below, includes all the content that was in our draft brief that we circulated for public comment on November 5, 2019. There has been minor editing and a small amount of additional material, thanks to the helpful feedback we received on that draft. Thanks to all who read our draft and offered their feedback.

Let’s build support for our cause. Help in a snap, by notifying the Information and Communication Standards Development Committee if you support the AODA Alliance’s brief. We encourage individuals and disability organizations to do so. Even though the deadline for submitting feedback to the Committee has passed, nothing stops you from sending a short email stating your support. Write the Information and Communication Standards Development Committee at [email protected]

You could simply say: “I support the November 25, 2019 brief on the Information and Communication Accessibility Standard.”

Here is a short summary of what we say in this brief. This is the summary that is also included in the brief itself.

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committee s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

If you want more background on this issue, you can explore the time line of our efforts to get a strong Information and Communication Accessibility Standard enacted in Ontario by visiting https://www.aodaalliance.org/category/infoandcom/

Now 299 days have passed since the Ford Government received the blistering final report of the Independent Review of the AODA’s implementation and enforcement conducted by former Lieutenant Governor David Onley. The Onley Report found that the Government’s implementation and enforcement of the AODA has been too weak. The Ford Government has announced no plan to implement that report.

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Brief to the Ontario Information and Communication Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Information and Communication Accessibility Standard

November 25, 2019

Via email to: [email protected]

A. Introduction

1. Overview

This is the AODA Alliance’s brief to the Information and Communication Standards Development Committee on its draft recommendations for revisions to the 2011 Information and Communication Accessibility Standard.

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for action.

In 2011, the Ontario Government passed the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions on the accessibility of information and communication. That is usually referred to in this brief as the Information and Communication Accessibility Standard. At other points, this brief at times refers to the IASR, of which that Standard is a part.

In 2016, the Ontario Government appointed the Information and Communication Standards Development Committee under the Accessibility for Ontarians with Disabilities Act (AODA) to review the 2011 Information and Communication Accessibility Standard, enacted under the AODA, and to recommend any revisions needed so that this accessibility standard would best achieve the AODA’s purposes.

The Information and Communication Standards Development Committee has developed draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them. The Ontario Government was required to do this under the AODA. The feedback which the Government receives is to be submitted to the Information and Communication Standards Development Committee. That committee is then required to consider that feedback, as it finalizes its recommendations to the Government.

This brief provides the Information and Communication Standards Development Committee with our feedback on the Committee’s draft recommendations. Our 49 recommendations throughout this brief are also gathered together in one place in Appendix 1. We hope that this feedback will assist the Committee as it finalizes its recommendations to the Government.

This brief embodies the accumulated input that we have received over the years from a broad and diverse spectrum of sources across the disability community. That includes feedback both disability organizations and individuals with disabilities. Over the years, we have found that many from within the disability community have come to rely on the AODA Alliance’s work formulating briefs such as this.

^The AODA Alliance welcomes this opportunity to offer our input. We ask that the Accessibility Ministry ensure that all members of the Information and Communication Standards Development Committee receive this brief as a whole, and not just a summary of it that the Accessibility Directorate of Ontario prepares. We have received informal word that in the past, at least some Standards Development Committees only receive a summary of feedback from such mandatory public consultations. That summary was evidently prepared by the Accessibility Directorate of Ontario. To fulfil the spirit and purposes of the AODA’s public consultation provisions, it is important for all Standards Development Committee members to hear directly from the public, including the AODA Alliance, without having their input filtered by the Ontario Government.

We have offered to make an in-person presentation directly to the Information and Communication Standards Development Committee on our feedback. We thank the Information and Communication Standards Development Committee for accepting this offer, and look forward to presenting to the Committee on January 22, 2020. Given the extensive detail in this brief, we would appreciate it if the Committee was able to give us more than 15 minutes to present. The Transportation Standards Development Committee and Employment Standards Development Committee each gave us 30 minutes to present. We realize that the Committee’s time is limited, and welcome whatever time can be provided. We would also welcome guidance from the Committee on which topics, covered in this brief, would be most helpful for us to concentrate on during our presentation.

When it comes time for the Information and Communication Standards Development Committee to vote on the recommendations that it will present to the Ontario Government, we ask the Committee to vote separately on each of the recommendations that we present in this brief.

We thank the members of the Information and Communication Standards Development Committee for their commendable efforts to strengthen the Information and Communication Accessibility Standard. We also acknowledge with thanks the feedback and input that we regularly receive from our supporters that enable us to provide informed feedback to the Government and the public in areas such as this. For example, we publicly circulated a draft of this brief on November 5, 2019 for comment. We have incorporated the feedback received into this finalized brief.

2. Who Are We?

The AODA Alliance is 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: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated 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.

We have been widely recognized by the Ontario Government, by all political parties in the Ontario Legislature, within the disability community and by the media, as a key voice leading the non-partisan campaign for accessibility in Ontario. In every provincial election since 2005, parties that made election commitments on accessibility did so in letters to the AODA Alliance.

Our efforts and expertise on accessibility for people with disabilities have been recognized in MPPs’ speeches on the floor of the Ontario Legislature, and beyond. Our website and Twitter feed are widely consulted as helpful sources of information on accessibility efforts in Ontario and elsewhere. We have achieved this as an unfunded volunteer community coalition.

Beyond our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. Our efforts influenced the development of the Accessible Canada Act. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue.

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. 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 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 desired legislation.

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

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the information and communication context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these kinds of issues.

As but one example, the AODA Alliance played a leading role in campaigning to enable the Information and Communication Standards Development Committee to get back to work in 2018 after the work of all Standards Development Committees was frozen in the wake of the 2018 Ontario election. We were happy and relieved when the Ontario Government lifted that freeze on the Information and Communication Standards Development Committee in the fall of 2018 and allowed it to go back to work.

3. Summary of this Brief

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations.

Our feedback set out in this brief is summarized as follows:

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, this would not ensure that information and communication would be accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all the known recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. There are too many exemptions that are too broad, and that fall below requirements of the Ontario Human Rights Code.
  1. We agree with many, if not most or all of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most of the Committee’s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we agree with them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication. We aim to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the Standard’s excessively broad exemptions.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We strongly oppose any effort to re-open the AODA in the Ontario Legislature or any effort to amend it. This is because we do not want to risk the Legislature weakening the AODA.
  1. Some of the Committee’s suggestions in its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

Here are three important themes which we ask the Committee to bear in mind as it reviews our recommendations.

a) A Commendable Start

First, we strongly commend and congratulate the Committee for its efforts and for the draft recommendations. As will become evident, we agree with many if not most of the Committee’s Phase 1 draft recommendations. We urge adjustments to several of those recommendations to further strengthen them. These are in a number of cases minor adjustments or refinements to the Committee’s work. We also point out several additional improvements to the Information and Communication Accessibility Standard, to supplement those which the Committee suggested.

Based on its work so far, the Information and Communication Standards Development Committee has done by far the best job of any Standards Development Committee that has been appointed to review an existing AODA accessibility standard. It prepared far stronger draft recommendations for reform than did the Accessibility Standards Advisory Council (ASAC) when it reviewed the 2007 Customer Service Accessibility Standard or the Transportation Standards Development Committee when it reviewed the 2011 Transportation Accessibility Standard.

b) Committee’s Job Not Merely to Assess if the Information and Communication Accessibility Standard Has Been Working “As Intended”

Second, it appears that several Standards Development Committees that reviewed an existing AODA accessibility standard got substantially erroneous advice from the Accessibility Directorate of Ontario. The Transportation Standards Development Committee, Employment Standards Development Committee and the current Information and Communication Standards Development Committee, each stated that its job, when reviewing an existing AODA accessibility standard, is to determine if the standard is working “as intended”. The Information and Communication Standards Development Committee’s draft recommendations state in the introduction:

“The Act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required.”

Substantially the same erroneous language was included in the initial draft recommendations of the Transportation Standards Development Committee that were circulated in 2017 for public comment and the draft recommendations of the Employment Standards Development Committee which were circulated earlier this year for public comment.

For a Standards Development Committee to merely look to see if the standard is working “as intended” seriously and substantially understates the goal of this mandatory review of the 2011 Information and Communication Accessibility Standard. The AODA does not limit a Standards Development Committee to inquiring on such a review to see if the standard is working “as intended”.

Rather, this mandatory review’s purpose is to ascertain whether the Information and Communication Accessibility Standard is working sufficiently to ensure that information and communication will become fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend any improvements needed to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Information and Communication Accessibility Standard is working “as intended.” By that lesser and palpably weak approach, the Information and Communication Accessibility Standard would be fine, and would need no improvements, if it led obligated organizations to merely do whatever the original 2011 Information and Communication Accessibility Standard spelled out. That would leave information and communication in Ontario full of disability barriers long after 2025.

As this brief documents, the 2011 Information and Communication Accessibility Standard, while helpful, was not capable of ensuring that information and communication will become fully accessible by 2025, or ever. We have publicly shared our strong disagreement with the Accessibility Directorate’s substantial dilution of the aim of these five year reviews of AODA accessibility standards. We have alerted the Directorate about our concerns. Despite this, and with no explanation or justification, that Directorate appears to have persisted in pressing Standards Development Committees to adopt this incorrect and unduly restrictive understanding of their mandate. We identified this concern in our briefs to the Transportation and Employment Standards Development Committees. We also identified it in Chapter 5 of our January 15, 2019 brief to the Third AODA Independent Review conducted by David Onley. It appears under the heading: “Inappropriate Government Attempts to Unduly Restrict the Work of Standards Development Committees”.

Even though the Information and Communication Standards Development refers to this erroneous “working as intended” approach to its review, it is clear from the draft recommendations that the Committee did not allow itself to be improperly hog-tied by the Directorate’s erroneous advice or direction. We congratulate the Committee for this.

c) Committee Should Use the Findings in the Moran and Onley Reports As Its Starting Point

Third, we agree with the Standards Development Committee’s draft recommendations’ general assessment of the 2011 Information and Communication Accessibility Standard, as summarized in this paragraph:

“The Committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The Committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, Committee members agreed that the standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.”

However, it is vital for the Committee to proceed from the starting point that the Information and Communication Accessibility Standard is substantially more deficient than that, even though it is the strongest of the accessibility standards enacted to date. The Committee should work from the starting point established by the second AODA Independent Review conducted by Mayo Moran and the third AODA Independent Review conducted by David Onley. The key findings in the reports of those reviews appear to come directly from the detailed briefs that the AODA Alliance submitted to those reviews.

In 2014, the second mandatory Independent Review of the AODA, conducted by Mayo Moran, found that there are very serious deficiencies in the accessibility standards enacted to date. These included the 2011 Information and Communication Accessibility Standard. Nothing in that accessibility Standard has been changed since that report to address those concerns. Appendix 1 to this brief sets out key excerpts from the Moran Report.

The third Independent Review of the AODA, conducted by David Onley, reinforced and supplemented the Moran Report’s overall findings. It did not disagree with the Moran Report’s findings regarding the IASR’s deficiencies. In 2019, the third AODA Independent Review conducted by David Onley accepted the earlier Moran Report as a correct starting point. It did not contradict any of the Moran Report’s findings about the problems with the accessibility standards enacted to date. It did not find that in the intervening four years, the Ontario Government had done anything to reduce those serious deficiencies.

To the contrary, the Onley Report made even more pointed and blistering findings about the AODA’s overall implementation. It did not exempt the Information and Communication Accessibility Standard from those blistering findings.

Based on public feedback, Onley’s report found that the pace of change regarding accessibility since 2005 for people with disabilities has been “glacial.” With then under six years left before 2025, the report found that “…the promised accessible Ontario is nowhere in sight.” He concluded that progress on accessibility under this law has been “highly selective and barely detectable.”

David Onley found “…this province is mostly inaccessible.” The Onley report correctly concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley report had damning things to say about years of the Ontario Government’s implementation and enforcement of the AODA. It in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership. The Onley Report recommended:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

Since the Onley Report was received some ten months ago, the Ontario Government has announced no comprehensive plan to implement it, nor has it publicly said that it will do so in the future. Ontario keeps slipping further behind the goal of full accessibility, while the 2025 deadline looms closer.

d) The Bottom Line for This Committee

As such, the Information and Communication Standards Development Committee’s job is pivotal. It should recommend fixes to the Information and Communication Accessibility Standard that will rectify the substantial deficiencies in the AODA’s implementation in so far as they pertain to the accessibility of information and communication. This brief aims to help the Committee with that task.

If the Information and Communication Accessibility Standard is to be strengthened in order to ensure that the AODA’s goal is achieved by 2025 in relation to information and communication, this must happen now. The next mandatory review of the Information and Communication Accessibility Standard does not have to be appointed until the eve of the 2025 deadline. By then, if Ontario is not back on schedule for the 2025 deadline in connection with the accessibility of information and communication, it will be too late to meet that deadline.

Substantial progress on accessibility is easier to achieve in the area of information and communication than in many other areas like the built environment. Information technology is rapidly evolving and replacing earlier products. The inaccessible technology, websites or mobile apps of last year will often be superceded in the next months or years.

In the following discussion, our recommendations track the sequence of the Committee’s draft recommendations. We insert additional topics where they best fit, following the structure of the Information and Communication Accessibility Standard itself.

B. Our Specific Feedback on the Draft Recommendations’ Phase 1 Proposals

1. Accessibility Standard’s Long Term Objective

We commend the Committee for reviewing the Information and Communication Accessibility Standard’s long term objective, and for trying to simplify it. We believe that all that needs to be added to the Committee’s proposed simplified language is the AODA’s 2025 deadline.

We therefore recommend that:

#1. The Standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

2. Section 2 – Definitions

The term “accessible formats” should be clarified so that organizations know that digital formats are an option, but only if they are in a format that is screen-reader-friendly.

We therefore recommend that:

#2. The Committee’s recommendations should recommend that the definition of “accessible formats” in s. 2 of the Standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

3. Definition of Electronic Self-Serve Kiosks

The IASR’s definition of an electronic self-serve kiosk is far too narrow.

We therefore recommend that:

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

4. Committee’s Recommendation 1 Consolidating the Regulation’s Feedback Requirements

We agree with the Committee’s Recommendation 1 that it would be good to immediately consolidate in one place in the IASR all feedback requirements, in language that makes them clear and consistent as long as this makes it clear that this that does not reduce any existing obligations.

5. Section 9 – Definitions and Exceptions

The Standard’s definition of “conversion-ready” information is too loose. Section 9 provides:

“conversion ready” means an electronic or digital format that facilitates conversion into an accessible format;”

That definition does not ensure that the material is capable of ready conversion into an accessible format.

We therefore recommend that:

#4. The Committee should recommend that section 9(1) of the Standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

Section 9(4) of the IASR defines unconvertible information in a manner that is far too broad. It weakens the rights of people with disabilities. Section 9(4) provides:

“For the purposes of this Part, information or communications are unconvertible if,

(a) it is not technically feasible to convert the information or communications; or

(b) the technology to convert the information or communications is not readily

available.”

That provision dramatically reduces obligations of organizations below what they are required to do under the Human Rights Code, and, where applicable, the Charter of Rights. Our proposal for amending s. 9(2) makes s. 9(4) unnecessary.

We therefore recommend that:

#5. The Committee should recommend that either:

(a) Section 9(4) should be deleted, or

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

6. Committee’s Draft Recommendation 2 PDF Documents

We agree with the Committee’s draft recommendations where they conclude that PDF documents are often inaccessible and that the required expertise to make them accessible is seldom present in obligated organizations.

The Committee’s draft recommendations indicate that they do not propose banning PDF formats. We have never proposed banning anyone from creating a PDF document. It has always been our position, which we urge here, that if an obligated organization creates a pdf document in connection with activities to which this accessibility standard would apply, an accessible alternate format document, such as an MS Word, txt or HTML document should also be posted and made available at the same time.

The Committee’s draft recommendations state that the Committee considered non-regulatory measures such as education for Government employees, but did not vote on this. We do not believe that such non-regulatory measures are sufficient. They would not solve this persistent but easily-remedied problem.

As an example, we have been struggling for well over a decade to get the Ontario Government to change its own practices with PDFs, so that it will always simultaneously post an accessible format for a document whenever it publicly posts a PDF. This has too often been a frustrating and futile effort, even after we repeatedly raised this at the highest levels within the Ontario Public Service. We still continue to face serious problems.

The Ontario Government has repeatedly claimed to be leading Ontario by its example on accessibility. Yet its poor example in this context is not one by which we would want Ontario to be led. For example, the Ontario Government even released in inaccessible PDF documents such important things as the 2014 final report of Mayo Moran’s Independent Review of the AODA, and the previous Government‘s long-awaited anti-poverty strategy. Years after being told that PDFs present an accessibility problem, the Ministry of Education continues to make important publicly-facing documents regarding Ontario’s education system available via PDF documents.

A simple, clear enforceable rule in the Information and Communication Accessibility Standard is the only effective measure that will have a hope of success, not only for the Ontario Government, but for other obligated organizations as well.

Some may think that a PDF can be made fully accessible. With such a view, we strongly and respectfully disagree, based on years of ample experience. However, this is a moot point.

First, as the Committee correctly recognizes, obligated organizations mostly do not have the expertise to make a PDF accessible, even if it is assumed that this goal can be accomplished. Second, when a person receives a PDF, there is no way to know from the file name whether anyone has even attempted to incorporate accessibility features in it, and if so, how many such features. Third, it makes no sense to ask obligated organizations to divert their resources into trying in vain to remediate a new PDF, when they could instead quickly, easily and at no cost simply post the document in an accessible format like MS Word, whenever they post a PDF.

It would take enormous resources to try to persuade obligated organizations to voluntarily change their practices. It is far more effective to set a simple rule which obligated organizations can readily understand and which is easy to enforce.

Documents are not written in PDF. They are written in another application like MS Word. Typically, they are accessible when initially created. After they are written, accessibility is stripped from that document when it is converted to a PDF.

We therefore recommend that:

#6. The Committee should recommend the addition to the standard of a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

7. Committee’s Draft Recommendation 4: Products and Product Labels

We agree with the Committee’s Draft Recommendation 4 that the loophole in the 2011 Information and Communication Accessibility Standard must be closed which exempts products and product labels from information and communication accessibility. Section 9(2) of the Standard states:

“(2) The information and communications standards do not apply to the following:

  1. Products and product labels, except as specifically provided by this Part.”

We commend the Committee for attempting to address this. However the draft recommendations do not go far enough to address this. The Committee’s draft recommendations call on the Ontario Government to try to work out a shared regulatory solution with the Federal Government and/or in the interim, that the Ontario Government explore non-regulatory solutions with obligated organizations.

Here again, an enforceable mandatory and specific standard is needed to change practices on the ground. Almost 15 years into the AODA, Ontarians with disabilities do not have time to hope that non-regulatory voluntary measures will change practices that have not substantially changed. In this context, we re-emphasize the finding in the Onley Report that progress on accessibility has been far too slow, and that Ontario remains a province full of “soul-crushing barriers.”

To hold off any regulatory action on this pending Ontario working out a coordinated action by the Federal Government would, we regret, indefinitely delay any regulatory action. Getting agreement with the Federal Government will predictably take years. The Federal Government will no doubt want to try to work out a common approach for all the provinces. While that might at first seem appealing, it will take even longer. It will risk the standard being diluted down to the lowest common denominator among the provinces. Ontario should lead with the strongest standard, and not follow others to the weakest standard.

In the recent federal election, most of the federal parties were not prepared to make any commitments at all on new measures they would take to promote accessibility for people with disabilities. Only one party was prepared to make commitments with any detail or that embodied real change for disability accessibility. After the election, there is little reason to expect that they will become more eager to make accessibility a priority.

There is no compelling reason to await federal regulatory action in this sphere, as the Committee’s draft recommendations propose. The Committee is worried about the possible overlap between federal and provincial jurisdiction. Yet in any area of public regulation of economic activity, there are innumerable situations where there may be an overlap between federal and provincial jurisdiction. Ontario nevertheless regularly takes action, without waiting for the Federal Government. We have a federal labour board and a provincial labour board. We have a national building code and the Ontario Building Code. The list goes on.

Our constitution fully accommodates this without a province having to withhold regulatory action. In 2011, it is commendable that the Ontario Government did not withhold enacting regulatory standards for the accessibility of websites. For the same reason, it can and should act now in the area of the accessibility of product labels. If the Federal Government later decides to take action in this area, Ontario can then of course discuss ways to harmonize their requirements. However this should not reduce Ontario’s accessibility protections.

While it would be helpful for the Ontario Government to work with industries to come up with creative new solutions in this area as the Committee proposes, that too is no reason to withhold the enactment now of a regulatory requirement. Indeed, the presence of a mandatory Ontario regulatory accessibility requirement would help motivate industries to develop creative new solutions, including harnessing new technologies.

We therefore recommend that:

#7. The Committee’s Draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable accessibility standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

8. Committee’s Draft Recommendation 5 Alternative Formats and Communication Supports

We agree with the Committee’s concern with s. 12 of the Information and Communication Accessibility Standard. It requires an obligated organization to consult with a person with a disability on a needed accessible document format. It leaves the ultimate decision to the obligated organization in unilateral terms. The Committee’s draft recommendation commendably found:

“The Committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.”

We agree with the Committee that this provision needs to be strengthened. We also agree with the Committee’s proposal that the obligated organization should endeavour to get the agreement of the person requesting the alternative format. However, we are concerned that this does not go far enough.

The Supreme Court of Canada has held that obligated organizations have a duty to investigate alternative solutions in “duty to accommodate” cases. (See D. Lepofsky “Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic School Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School” to be published in 2020 40.1 National Journal of Constitutional Law) We anticipate that many obligated organizations do not know of their existing procedural duty to accommodate that includes investigating alternative solutions up to the point of undue hardship.

We therefore recommend that:

#8. The Committee’s Draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

9. Committee’s Draft Recommendation 6 and 7

We agree with the Committee where it states that s. 12 of the Information and Communication Accessibility Standard is unduly vague, where it requires that an alternative format document must be provided in a timely manner. We also agree with the Committee’s Draft Recommendation 6 that the obligated organization and the requesting individual should endeavour to reach an agreement on the time frame for this.

However we do not agree with the Committee’s Draft Recommendation 5 through 7 where these propose to refer to the Accessibility Standards Advisory Council (ASAC) the task of developing an alternative dispute resolution mechanism for addressing situations where the obligated organization and requesting individual cannot reach an agreement. We commend the Committee here for trying to be creative. Yet we fear that it might take years to develop that new mechanism.

Moreover, it is not clear to us that ASAC even now exists. At the time of writing, the Government’s website only lists one person as a member of ASAC. We do not know if ASAC has been meeting since the 2018 Ontario election, much less that it has been meeting with sufficient frequency to do this work in a timely way. ASAC’s membership has, in the past, not been selected based on its expertise in designing alternative dispute resolution mechanisms.

The creation of the required legal machinery to which the Committee’s draft recommendations refer might require a legislative amendment, if there is to be an enforceable requirement and monetary penalties for non-compliance. We have not had a chance to investigate that complex question. As further addressed later in this brief, we do not want the Government to re-open the AODA’s provisions in the Legislature.

The development of recommendations for the content of an element of an accessibility standard should not be sub-delegated to ASAC. The AODA requires that the development of such ideas and recommendations for accessibility standards be developed initially through a Standards Development Committee which is subject to the AODA’s procedural safeguards and openness requirements (including requirements for public input). ASAC is not bound by any of those safeguards, for which we fought so hard. For example, its meeting minutes are not required to be made public. In contrast, the minutes of meetings of a Standards Development Committee must be made public, according to the AODA.

To strengthen requirements in this area to address the shortcomings which the Information and Communication Standards Development Committee commendably identified, it would be helpful for the Information and Communication Accessibility Standard to be amended to set clear timelines, or presumptive timelines for an organization to respond to a request. This could vary depending on the organization’s size and the importance of the requested information. For example, if the information is to come from a hospital and relates to a patient’s medical condition, then the required response time should be very short. Given the readily-available availability of technology to produce alternative formats for documents, and the low cost for doing so, there is no reason for such timelines to ever be lengthy. If the Ontario Government were to post online helpful information on how to convert documents to accessible formats, and a list of venders who can be retained to do this, then an obligated organization should easily be able to act quickly when a request is received.

We therefore recommend that:

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive timelines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non-compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and/or where the requested information relates to important matters such as health, safety, or other vital services. Otherwise, nothing longer than a 7-day timeline should apply.

10. Committee’s Draft Recommendation 8

We agree with the aim of the Committee’s Draft Recommendation 8. It calls for the IASR’s requirements to provide accessible formats and communication supports to be brought together in one place in the IASR, as long as nothing is done to weaken them. We would want to screen the proposed wording of any regulatory changes to be sure that they do not reduce any rights of people with disabilities.

 11. Committee’s Draft Recommendation 9: On-Demand Conversion Ready Formats

We agree with the Committee’s Draft Recommendation 9. It would require the Ontario Government and the Legislature to immediately ensure that all publicly-facing documents are available in an accessible format. If this is required for new documents, this is not a major burden for the Ontario Government. As noted earlier, documents are typically first created in an accessible format like MS Word, and then are counterproductively rendered inaccessible by converting them to formats such as PDF.

12. Committee’s Draft Recommendation 10: On-Demand ASL and LSQ Translations

The Committee’s Draft Recommendation 10 commendably aims to find a creative way to address the need for on-demand Government information in ASL and LSQ. We share the intent of that proposal. We believe it should be strengthened.

We therefore recommend that:

#10. The Committee’s Draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

13. Other Deficiencies with Section 12 that the Committee’s Draft Recommendations Do Not Fix

Section 12(1)(a) of the Standard sets the obligation too low. It states:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a) in a timely manner that takes into account the person’s accessibility needs due to disability; and

(b) at a cost that is no more than the regular cost charged to other persons.”

It is not sufficient for an obligated organization to take “into account” the needs of people with disabilities. The requirement should be to provide supports that meet the needs of people with disabilities unless to do so is shown to cause the organization undue hardship.

We therefore recommend that:

#11. The Committee should recommend that section 12(1) of the Standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)   in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)   at a cost that is no more than the regular cost charged to other persons.”

It is commendable that section 12(3) requires organizations to notify the public about the availability of accessible formats and communication supports. However the provision is too vague. It requires more detail to make it effective. Section 12(3) provides:

“(3) Every obligated organization shall notify the public about the availability of accessible formats and communication supports.”

We therefore recommend that:

#12. Section 12(3) of the Standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

Unlike the clear language used in a number of other parts of the IASR, section 12(4) is unintelligible. An organization needs a lawyer to figure it out. It states:

“(4) Every obligated organization that is required to provide accessible formats or accessible formats and communication supports by section 3, 4, 11, 13, 19, 26, 28, 34, 37, 44 or 64 shall meet the requirements of subsections (1) and (2) but shall do so in accordance with the schedule set out in the referenced section and shall do so only to the extent that the requirements in subsections (1) and (2) are applicable to the requirements set out in the referenced section.”

We do not know what this provision means. We fear others will also not know what it means. Whatever it means to say, it should be said in much clearer language – language that lets an organization and persons with disabilities understand it without needing to pay a lawyer to decipher it.

We therefore recommend that:

#13. Section 12(4) of the Standard should be re-written in plain language to make it intelligible.

We commend and endorse the concerns and advice that Communication Disabilities Access Canada CDAC provided to Accessibility Minister Raymond Cho in its January 19, 2019 letter to the minister. CDAC is an amazing and well-respected expert in its field. It has cutting-edge knowledge and good ideas on how to make progress.

We quote from the key part of that letter here:

“Communication Disabilities Access Canada (CDAC) is a national and provincial, non-profit organization that addresses accessibility for people who have speech, language and communication disabilities. Over 165,000 Ontarians have disabilities that affect their communication, that are not caused primarily by deafness or significant hearing loss. Diverse disabilities such as physical, neurological, cognitive, learning, hearing, vision, and linguistic disabilities can affect one or more areas of a person’s speech, comprehension, reading and writing.

Communication access to goods and services is as important as physical access for people who have little or no speech and who use picture, symbol, letter boards and devices to convey their messages.

The current integrated standards do not provide sufficient directives for businesses and organizations on ways to make their services accessible for people with speech, language and communication disabilities. For example, most people with speech and language disabilities experience significant barriers to services in face-to-face and telephone interactions, group meetings and forums and written communication. These contexts are not adequately or comprehensively addressed in any of the standards. They are either oversimplified or omitted.

At this time, the Information and Communications Standard primarily focuses on making written information (print and digital) accessible. Examples of accessible formats cited on the Accessibility Directorate’s website, include human assistance, large print, text transcripts of audio or visual information, handwritten notes instead of speech, plain language and electronic documents.

Many of these accessibility accommodations are extremely useful and appropriate for people who have speech and language disabilities. However, the accessibility needs of people with speech and language disabilities go beyond access to written information and occur in face-to-face and telephone interactions, group meetings and written communication. Many of these contexts are critical communication situations, such as police, legal and justice services, where communication barriers can have serious consequences.

To address this significant gap in the standards, we propose that the Information and Communications (IC) Standard expand its mandate to include regulations that address two-way, interactive communication for people who have disabilities that affect their communication.

We are recommending:

  • The IC Standards Development Committee should include people who have a thorough knowledge and proven track record to represent the communication access needs of people with diverse speech and language disabilities.
  • The mandate of this committee should go beyond “processes that businesses and organizations must follow to create, provide, and receive information and communications that are accessible to people with disabilities” to include “processes, and resources to ensure effective two-way communication in face-to-face, telephone and group interactions and written communication.
  • Development of regulations, guidelines and resources for: Face-to-face, telephone and group interactions. Standards and guidelines are required for all service providers who interact with the public within these contexts, so that they have the knowledge, skills and resources to interact with people who communicate in ways other than speech. They need to know how-to make telephone services accessible and how to make meetings and public forums inclusive for people who have communication disabilities.
  • Communication supports: Service providers need information about how and when to provide and work with communication assistants, communication intermediaries, Sign Language interpreters and other formal communication support services. Formal communication assistance services are essential in critical communication contexts such as health care, police, legal and justice services. In these situations, appropriate communication support services must be mandatory.
  • Communication accommodations: Service providers need information about simple, non-technical communication tools that they may provide when a person has no effective means to communicate. They need clarification on the use of communication devices that people may use.
  • Writing: Regulations are required to address writing activities for people who cannot physically write or who cannot write due to learning or linguistic disabilities. Writing includes accessible forms, procedures for note taking and signatures.
  • Environmental accommodations: Services need guidelines on creating and designing accessible signage and wayfaring, counter spaces, and elevators with a communication access lens.
  • Policies are required for communication procedures in emergency evacuation situations, as well as authentic assistance in critical contexts, including medical assistance in dying, police, legal and justice settings.

We believe that many of these accessibility features could be included in the IC Standard to provide a foundation upon which sector-specific communication standards could be developed, such as transportation, healthcare, education and employment. An example of a generic baseline communication standard would-be mandatory training for all service providers on how to communicate with a person who has unclear speech or who uses a communication device. An example of a sector-specific communication standard would be that health care providers must ensure that a communication assistant is authorized by a patient when supporting them in the provision of informed consent to treatment.

Existing resources:

CDAC has developed a range of free guidelines and resources on ways to make services communication accessible. These resources are available for the Accessibility Directorate to promote and use across the province, resources include:

  1. A database of qualified Communication Intermediaries to assist people with speech and language disabilities communicating in police, legal and justice situations

http://www.cdacanada.com/communication-assistance-database/.

We have information about making justice services accessible at

http://www.access-to-justice.org/

  1. A database of communication assistants who are available to support people with speech and language disabilities communicating at meetings, forums and on committees at http://www.cdacanada.com/communication-assistance-database/
  1. A webinar on making services accessible at

Making your services accessible for people with communication disabilities

  1. Written guidelines on communication access at

http://www.communication-access.org/wp-content/uploads/2018/12/Guidelines-for-Communication-Access-1.pdf”

We therefore recommend that:

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the Standard.

14. Part 3: Section 13 Emergency Plans Generally

We share the Committee’s commendable call for greater action to ensure the accessibility of information regarding emergency plans and procedures.

15. Committee’s Draft Recommendation 11: Emergency Requirements

We agree with the Committee’s Draft Recommendation 11 that all the IASR’s various provisions regarding emergency plans and procedures should be consolidated in one part of the regulation. We add that nothing should be done to weaken these provisions.

16. Committee’s Draft Recommendation 12: Unacceptable Emergency Outcomes and Preparedness

The Committee concluded that “the preparedness of all levels of Government for emergencies involving people with disabilities is unacceptable.” We share this concern.

The Committee commendably recommended that the Government should review overall emergency preparedness measures from a disability perspective. However, it did not recommend anything to strengthen s. 13 of the Information and Communication Accessibility Standard. We turn attention to that here.

Section 13 does not spell out a most obvious and important aspect of emergency procedures in this area. It does not explicitly require an organization to incorporate in any emergency procedure, a process for ensuring that it makes emergency announcements in an accessible format or manner during an emergency or crisis. Even if it is implicitly covered by earlier provisions in the IASR, it is very important to have a specific, clear and strong requirement here.

We therefore recommend that:

#15. Section 13 of the Standard should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are provided in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

17. Part 4: Section 14 Website and Web Content Accessibility Generally

We share the Committee’s view that the Standard’s website accessibility provisions need to be strengthened.

18. Committee’s Recommendation 15: Differentiating Organizations/High Impact Organizations

We strongly and heartily endorse the Committee’s proposal that an organization’s number of employees should not be the sole determinant of an organization’s accessibility obligations. We have been urging that view upon the Ontario Government for over a decade without success.

The Committee’s idea of defining high impact organizations for purposes of defining their accessibility obligations has merit. We would add a few refinements.

First, the Information and Communication Accessibility Standard, as now constituted, has an erroneous upside-down approach to organizations’ duties and timelines. As in all other areas of the IASR, the Information and Communication Accessibility Standard starts from a mechanistic approach whereby the bigger the organization, the more it must do, and the sooner it must do it.

That is inappropriate here. In the case of small organizations, such as smaller businesses, website and mobile app accessibility should be attainable more quickly than by larger organizations, especially where the measures are required on a go-forward basis. A small company with a small website can ensure the accessibility of its entire web footprint much more quickly than the Ontario Government. Yet the Information and Communication Accessibility Standard erroneously places the least obligations on that small company and gives it the longest timelines. It places the greatest obligations on the Ontario Government and gives it the shortest timelines. This makes no sense.

The Information and Communication Accessibility Standard should be revised where needed to correct this incorrect approach. It is irrelevant for those timelines that have already expired.

Second, the measure of what constitutes a high impact organization should include more than does the Committee’s Draft Recommendation 15.

We therefore recommend that:

#16. The Committee’s Draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

19. Extending the Information and Communication Accessibility Standard to Require WCAG 2.1, Not the Current 2.0

At present, the specific standard for website accessibility that the Information and Communication Accessibility Standard sets is Web Content Accessibility Group (WCAG) 2.0. That was established by the W3C consortium at least a decade ago. Since then, we understand that it has been updated much more recently to WCAG 2.1. As we read it, the Committee’s recommendations merely refer to the old WCAG 2.0. They do not recommend updating the Information and Communication Accessibility Standard to require WCAG 2.1. The Committee’s draft recommendations do not explain this. It is critically important.

We therefore recommend that:

#17. Section 14 of the Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

As well, it is entirely unjustifiable in late 2019 for the standard to lead any organization to think that it is sufficient in the interim to only meet WCAG 2.0 Level A, and not, as a bare minimum, Level AA. Yet s. 14(3) still provides as follows, with an end date of 2021:

“(2) Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA, and shall do so in accordance with the schedule set out in this section.”

No organization should now waste its efforts at merely meeting Level A as an interim goal, when it makes more sense to set Level AA as its goal from the outset.

We therefore recommend that:

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

20. Committee’s Draft Recommendation 13: Mobile Applications & New Technologies

We agree with the Committee’s Draft Recommendation 13. It would extend the Information and Communication Accessibility Standard’s website accessibility requirements to mobile applications. However we do not agree that all small organizations should be exempted from this requirement, just as we do not believe that all small organizations should be categorically exempted from the Information and Communication Accessibility Standard’s website accessibility requirements.

If anything, a well-resourced small organization could at least in some cases find it easier to make its website and mobile apps accessible than can a larger organization. The IASR arbitrarily defines the size of an organization solely by its number of employees, regardless of the organization’s resources or its impact on the market. If for example a small organization has a broadly-selling app, there is no reason why it should not meet accessibility requirements. The Ontario Human Rights Code does not grant any such exemption for small organizations.

We therefore recommend that:

#19. The Committee’s Draft Recommendation 13 should recommend that section 14 of the Standard should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

21. Committee’s Recommendation 16: Significant Refresh

The Committee’s draft recommendations correctly identify another serious deficiency with s. 15 of the Information and Communication Accessibility Standard, namely that key requirements are only triggered by an obligated organization creating a new website or undertaking a significant refresh of an existing site. We agree with the Committee that this vague threshold provides obligated organizations with an easy, undeserved and unacceptable end-run around the provision.

We also agree with the Committee’s Draft Recommendation 16 to fix this, and the stated intent underlying it, namely:

“•    Any content that is new or which an obligated organization changes, updates or adds to a web site must meet the accessibility requirements of Section 14

  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The Committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that Section 14 include examples for the sake of clarity
  • Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.”

22. Committee’s Recommendation 17: Practicability

We agree with the Committee’s concern that s. 14(5) includes too broad an exemption to its website accessibility requirements, by only requiring obligated organizations to take the required action to make websites accessible “where practicable”. We agree with the Committee that

“…this term is too vague and might allow some organizations to avoid doing something they are actually able to do.”

We encourage the Committee to fortify and further reinforce this serious concern. The sweeping “where practicable” exemption is far broader than the relevant Human Rights Code exemption from the duty to accommodate people with disabilities, which is only available where it is impossible to provide more accessibility without undue hardship. “Undue hardship” is a much more exacting requirement than mere practicability. Moreover the Standard’s failure to use the stronger undue hardship terminology sends a harmful and erroneous signal to obligated organizations that they need not meet this higher undue hardship test. It misleads obligated organizations. This is a disservice to obligated organizations and people with disabilities.

To define the existing term “practicable” in s. 14(5) to mean the same as undue hardship, as the Committee is contemplating, risks confusing obligated organizations or suggesting to them that undue hardship means the same as merely not practicable. It is neater and cleaner, and less risk-prone, to simply replace the term “not practicable” in the Standard with the correct “undue hardship”.

We would prefer if no “exception” clause was included. Compliance with well-established international standards for new web postings simply does not create an undue hardship. At the very least, if there is to be an exemption clause, the exemption should be no broader than that provided under the Human Rights Code.

We therefore recommend that:

#20. The Committee’s Draft Recommendation 17 should be replaced with a recommendation that the Standard’s not practicable exception from website accessibility is removed from section 14. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

It is important for the Standard to make it clear that all organizations covered by this provision have a clear duty to promptly provide people with disabilities, on request, in an accessible format, with any information on their website that is inaccessible. This would include, for example, any information that need not yet be made accessible because of the timelines in the regulation, or any archival material that need never be made accessible on the website.

We therefore recommend that:

#21. Section 14 of the Standard should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

23. Part 4, Subpart 1: Section 14 Exemptions Generally

We agree that the Standards’ exemptions are too broad and need to be narrowed.

24. Committee’s Recommendation 19: Extranet Exemption

We agree with the intent and content of the Committee’s Draft Recommendation 19 that the exemption for public-facing websites with a log-in should be removed and that these types of websites should be required to comply with the Information and Communication Accessibility Standard. We however believe that the proposed 2023 deadline for all publicly-facing websites, other than new ones, is too long a timeline, especially where meeting it would not provably pose an undue hardship.

We therefore recommend that:

#22. The Committee’s Draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

25. Committee’s Recommendation 20: Intranet Exemption

We agree with the Committee’s important finding that “technology has advanced to the point where all organizations should be able to make their websites accessible under Section 14.” We therefore agree with extending this requirement to the broader public sector and large organizations, including employee-facing websites. As such, we agree with the Committee that “all definitions related to a type of website be removed and that Section 14 simply apply to all websites, internet or intranet for all obligated organizations”. Indeed this is a critical reform to strengthen the current weak Employment Accessibility Standard. As indicated earlier, we would go further and urge that it be extended to at least some small organizations, even if they do not fit within the proposed definition of a high impact organization.

26. Committee’s Recommendation 21: Pre-2012 Exemption

We agree with the Committee’s view that the Information and Communication Accessibility Standard’s exemption for pre-2012 web content is overbroad and should be narrowed. The Committee’s Draft Recommendation 21 seems on first examination to be sensible. We would add that where historic, archived content is available on the web, and where a customer or employee needs it in an accessible format for purposes of seeking or using an obligated organization’s goods, services or facilities, or for purposes of their employment, the obligated organization should be required to make that content available on request in an accessible format.

We therefore recommend that:

#23. The Committee’s Draft Recommendation 21 should be expanded to require an obligated organization to provide an item of pre-2012 inaccessible online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

27. Committee’s Recommendation 22: Live Captioning and Audio Description

We agree with the Committee’s Draft Recommendation 22 that sets out requirements so that by 2025, the Standard’s live captioning and audio description exemptions will be eliminated. We would add that by 2021, this exemption should be lifted for the city of Toronto, a public sector organization which is larger and more resourced than a number of entire provinces in Canada.

We therefore recommend that:

#24. The Committee’s Draft Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

28. Committee’s Recommendation 23: Web Hosting Location

We agree with the Committee’s Draft Recommendation 23 which would clarify that s. 14 obligations apply to a website whether or not it is hosted in Ontario. This is a loophole that should not be permitted to remain.

29. Chief Information Officer

A number of larger organizations in the public and private sector now have a senior executive position often called the Chief Information Officer (CIO) or Chief Technology Officer (CTO). This is a critical position that could be decisive in enhancing the accessibility of information, especially digital information.

At present, there is nothing in place in the Standard to help ensure that a CIO or CTO has sufficient knowledge and training on digital accessibility, or that requires them to have lead responsibility for digital accessibility or that ensures that they know that they have that lead responsibility. There is similarly nothing in place to require that a CIO or CTO is held accountable within the organization for the organization’s efforts at ensuring digital accessibility.

We therefore recommend that:

#25. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer or Chief Technology Officer position or their equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility in the organization’s internal and external digital communications.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s or CTO’s performance contract that the CIO or CTO is responsible and accountable for ensuring digital information accessibility and for ensuring that Accessibility is an integrated component of Performance and Security design requirements.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s or CTO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO or CTO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility and assistive technology.

30. Teleconference Platforms Used by Public Sector Organizations

Increasingly, organizations use web-based teleconferencing and meeting platforms for internal meetings of their employees or officials, and for public-facing meetings, such as electronic town hall meetings. Some of these platforms are more accessible than others. It is critical that organizations only use the most accessible ones. A requirement to this effect in the Standard would help pressure all such platforms to become accessible.

We therefore recommend that:

#26. The Standard should be amended to require that when any public sector organization, large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform that is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The Standard should provide key criteria for assessing the accessibility of such platforms.

31. Digital Information Accessibility Statement

The Standard does not require any obligated organization to prepare and make public a comprehensive statement of the status of the accessibility of its website or related mobile apps. This might be covered to some extent in an accessibility plan or progress report on accessibility that the organization must prepare under the IASR. However, there is no assurance that the needed information will be included and will be comprehensive.

Excellent research provided to the AODA Alliance by Emily Prosser, an Osgoode Hall Law School, which she prepared at the ARCH Disability Law Centre, includes the following:

“The United Kingdom Statutory Instrument 2018 No.952, entitled The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the “Regulation”) is comparable to certain provisions within the AODA Information and Communication Accessibility Standard. There is also a Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (the “Directive”) which is relevant.

 

Both the Regulation and the Directive require public organizations to create an “Accessibility Statement”.[1]

That research also stated:

“An Accessibility Statement as defined by the Regulation and Directive is: “a detailed, comprehensive and clear statement produced by a public sector body on the compliance of its website or mobile application with these Regulations”.[2] The Accessibility Statement is a useful tool especially where an organization determines it is unable to meet accessibility standards. The Regulation requires a public sector body to explain in its Accessibility Statement any instances where it cannot comply with the accessibility requirement and provide accessible alternatives where appropriate.[3]

Under the AODA Information and Communication Accessibility Standard, obligated organizations are required to provide a requesting party with an explanation when it determines that it is unable to convert information and communications to an accessible format.[4] This requirement is similar to the Accessibility Statement required under the Regulation and Directive. However, Accessibility Statements are more robust. Accessibility Statements outline both an organization’s compliance and lack thereof meaning they go beyond simply addressing instances where an organization cannot comply with standards. Additionally, Accessibility Statements are required whether or not there is a ‘requesting party’ who has been denied accessible/convertible information. Further, the term ‘explanation’ is undefined in the Information and Communication Standard and so it lacks the formal requirements of an Accessibility Statement. As a result, there is no guarantee as to the quality of an explanation given to a requesting party under the Information and Communication Accessibility Standard.”

We therefore recommend that:

#27. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organization’s website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

32. Committee’s Recommendation 14: Procurement

We agree with the Committee’s draft recommendations that the IASR’s general provisions regarding procurement of accessible goods, services and facilities “…are not strong enough to result in accessible digital procurement.” We also agree with the general thrust of the ideas in the Committee’s Draft Recommendation 14 on the substantive requirements to add to the IASR regarding procurement of accessible information technology. We need the Information and Communication Accessibility Standard to go further. It should spell out specifics of what kinds of accessibility features or functionality should be required. These should be expressed in terms of end-user-usability, and not the specific technology to include. This is so because technology in this area is so rapidly evolving. In other words, these amendments to the Standard should not only set process requirements, but also requirements for end results in terms of functional end-user experience. We anticipate that obligated organizations often know little or nothing about this and need as much regulatory direction as possible.

We therefore recommend that:

#28. Beyond the measures in the Committee’s Draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

We agree with the Committee that beyond the specific context of procuring information technology, the IASR’s general provisions regarding procurement need to be strengthened. We do not agree with the Committee’s suggestion that this be referred to ASAC. As noted earlier, under the AODA, the review of any accessibility standard must be conducted at least every five years by a Standards Development Committee that is appointed for that purpose.

The members of the Standards Development Committee appointed to conduct that review should be chosen based on their expertise and experience in this specific area. No Standards Development Committee has been appointed since 2011 to review any of the IASR’s general provisions, such as its procurement provisions. It would be open to the Government to assign that review to an existing Standards Development Committee that was already appointed to review any other parts of the IASR or to recommend new accessibility standards.

The Government is in violation of the AODA for not having done so. That review was required to have been started in 2016. As noted earlier, the Standards Development Committee that conducts such a review should comply with all the procedural safeguards in the AODA that involve conducting a review of an accessibility standard.

We therefore recommend that:

#29. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review all the general provisions in the IASR, sections 1 through 8.

We agree that the Government and public sector organizations need to be given some time to implement any changes in the area of procurement. However, we do not agree that this should extend out to 2021, as the Committee’s draft recommendations propose. This is so for several reasons.

First, public sector organizations have had accessible procurement duties under the AODA for years. They are not starting from scratch.

Second, their duty not to create new barriers is enshrined in pre-existing human rights law. It is not a new creation of the AODA or the IASR.

Third, 2025 is not far away. We cannot afford any delays, especially on the part of public sector organizations that are supposed to be leading by example.

Fourth, any such delay inappropriately suggests to public sector organizations that it is okay for them to continue to use public money to create new disability barriers. Yet that harmful use of public money must stop.

This is especially so as it applies to the Ontario Government that is the very body that is creating this regulation. As noted earlier, the Ontario Government has claimed for years to be leading Ontario by example in the area of accessibility. The Ontario Government is hardly caught by surprise by new regulatory provisions in this area.

For the same reasons, we respectfully disagree with the Committee’s Draft Recommendation 14 where it proposes that an obligated organization should be exempt from any of this new requirement if it has entered into a contract regarding the matter before January 1, 2021. That would let an obligated organization disregard this new requirement even if it was amply aware that it was coming e.g. because it was earlier posted in a draft regulation.

We therefore recommend that:

#30. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

We propose further measures to strengthen the IASR procurement provisions, whether they apply to information technology or other goods, services or facilities.

Section 5 of the IASR falls well short of the duty to prevent the creation of new barriers that the Supreme Court of Canada recognized years ago in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650.

This section of the Standard unjustifiably exempts any organization from even having to ask for accessible goods, services or facilities when seeking to procure them, “where it is not practicable to do so.” We know of no situation where it is impracticable to even ask vendors for accessible goods, services or facilities, as part of procurement. Moreover, the “not practicable” standard erroneously falls substantially short of the “without undue hardship” standard in the Human Rights Code. It is counterproductive and harmful for the Standard to point obligated organizations to a test that is transparently lower than the Human Rights Code.

If there were to be any exemption clause in this part of the IASR at all, it should be considerably narrowed. We here draw on the Committee’s commendable recommendation, further addressed later in this brief, that the Standard should also be amended to create a class of “high impact” private sector organizations.

We therefore recommend that:

#31. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#32. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

The duty to procure accessible goods, services and facilities should be extended to large or high impact private sector organizations. This is important for ensuring accessibility of goods, services, facilities and employment.

We therefore recommend that:

#33. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and high-impact private sector organizations.

Moreover, these procurement requirements should be extended to apply to any private sector organization when engaging in a project or contract for the Ontario Government. The Government should not be able to get around these procurement requirements by contracting out some of its work to the private sector.

We therefore recommend that:

#34. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

33. Section 6 – Self-Service Kiosks

Related to the issue of procurement, the IASR’s section regarding electronic kiosks, s.6, remains far too weak. Its requirements should be strengthened. Features of the Information and Communication Accessibility Standard bear on such kiosks, just as they can apply to other customer-facing technology. These requirements should extend further in the private sector than at present.

We therefore recommend that:

#35. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities.”

It is also important for private sector organizations with less than 50 employees to take serious action on this front, especially where they offer technology for use by the public during point-of-sale transactions.

We therefore recommend that:

#36. Section 6(2) of the IASR should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#37. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

34. Committee’s Recommendation 18: Harmonization and Application across Requirements

We agree with the Committee’s Draft Recommendation 18 that the IASR should be amended to make it clear that its website accessibility provisions in s. 14 apply to all websites that are referred to across the IASR. We go further. The IASR should be refined to make it clear that these website accessibility requirements apply to any website specified in any provincial legislation or regulations, such as any provincial law that requires anything to be posted on a website.

We therefore recommend that:

#38. The Committee’s Draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or regulations apply, such as a provincial law that requires specified information to be posted on a website.

35. Part 5: Sections 15, 16, 17 and 18 Generally

It is inexcusable that in 2019, over 14 years after the AODA was enacted, students continue to face difficulties in getting timely access to needed educational materials in an accessible format that they can read.

The AODA Alliance has released a proposed Framework for the Education Accessibility Standard and has submitted it to the K-12 Education Standards Development Committee. We set out the relevant passages below. We do however urge the Information and Communication Standards Development Committee to press forward with its recommendations in this area, as elaborated upon below. If the K-12 Education Standards Development Committee or the post-Secondary Education Standards Development Committee opt to make further recommendations on point, that can only enrich the discussion. However, we ask the Information and Communication Standards Development Committee not to hold off proceedings on these recommendations due to the forthcoming work of the two Education Standards Development Committees.

In the key part of the AODA Alliance’s proposed Framework for the Education Accessibility Standard, a vision is offered of what an accessible education system would look like. This vision includes, among other things:

“2.5 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them and would be available in accessible formats when needed.

2.6 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and would fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.”

Among the recommendations in that proposed Framework for the contents of the Education Accessibility Standard is the following:

“8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and internal or external websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

8.1 Each school board should ensure that:

Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.

  1. a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  1. b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  1. c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.
  1. d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  1. e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

8.2 The Ministry of Education and each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased either by a school board, or by the Ministry for use by school boards, unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board or the Ministry.”

The proposed Framework also includes:

“12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other instructional materials and teaching resources that are not provided at the same time in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this provision has not been effective and sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

12.1 To ensure that instructional materials are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  1. b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  1. c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.”

We therefore recommend that:

#39. Sections 15 to 18 of the Standard should be amended to ensure the accessibility of instructional and other information in Ontario’s education system, in accordance with Recommendations 8.1, 8.2, 12.1 and 12.2 of the AODA Alliance’s October 10, 2019 proposed framework for the contents of the K-12Education Accessibility Standard.

36. Committee’s Recommendation 24: Purchase of Accessible Teaching/Training Materials

We agree with the Committee’s Draft Recommendation 24 that “obligated organizations that are educational or training institutions be required to order textbooks or other printed curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print copies.” This should apply to both print and electronic teaching materials.

We therefore recommend that:

#40. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic textbooks or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

37. Section 15 – Educational and Training Resources and Materials

Beyond this, s. 15, on providing accessible educational and training materials, while helpful, needs to be strengthened. It now provides:

“15. (1) Every obligated organization that is an educational or training institution shall do the following, if notification of need is given:

  1. Provide educational or training resources or materials in an accessible format that takes into account the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by,
  2. Procuring through purchase or obtaining by other means an accessible or conversion ready electronic format of educational or training resources or materials, where available, or
  3. Arranging for the provision of a comparable resource in an accessible or conversion ready electronic format, if educational or training resources or materials cannot be procured, obtained by other means or converted into an accessible format.
  4. Provide student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

(2) For the purposes of this section and sections 16, 17 and 18, an obligated organization is an educational or training institution if it falls into one of the following categories:

  1. It is governed by the Education Act or the Private Career Colleges Act, 2005.
  2. It offers all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000.
  3. It is a designated public sector organization described in paragraph 3 or 4 of Schedule 1.
  4. It is a public or private organization that provides courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act.
  5. It is a private school within the meaning of the Education Act.”

We therefore recommend that:

#41. Section 15 of the Standard should be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.   Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as textbooks are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the timelines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

38. Section 17 – Producers of Educational or Training Material

It is helpful that s. 17 requires publishers to make accessible educational textbooks and certain other printed instructional materials available on request, in an accessible format. It however needs to be expanded. It now only applies to textbooks. Section 17 provides:

“17. (1) Every obligated organization that is a producer of educational or training textbooks for educational or training institutions shall upon request make accessible or conversion ready versions of the textbooks available to the institutions. O. Reg. 191/11, s. 17 (1).

(2) Every obligated organization that is a producer of print-based educational or training supplementary learning resources for educational or training institutions shall upon request make accessible or conversion ready versions of the printed materials available to the institutions. O. Reg. 191/11, s. 17 (2).”

It should also apply to any other course materials produced in printed form, as well as course materials and books produced in electronic form. With the spread of e-books, this is increasingly important.

We therefore recommend that:

#42. Section 17(1) and (2) of the Standard should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

39. Committee’s Recommendation 25: Definition of Educational and Training Institutions

We agree that the Standard’s requirements for educational organizations should extend to any organization that provides any education or training programs, whether or not they meet the Standard’s current definition of an education organization.

We therefore recommend that:

#43. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

40. Section 18 – Libraries of Educational and Training Institutions

Section 18 is a helpful provision addressing accessibility at public libraries. However, it has an exception for “special collections” that, if not defined, could sweep away much-needed protections. Section 18 provides:

“18. (1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.

(2) Special collections, archival materials, rare books and donations are exempt from the requirements of subsection (1).

(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:

  1. In respect of print-based resources or materials, January 1, 2015.
  2. In respect of digital or multimedia resources or materials, January 1, 2020.”

A law school at a university might argue that its entire law library is a “special collection”, that is thus exempt from any accessibility requirements. We do not anticipate that this was what the Government meant to achieve here.

We therefore recommend that:

#44. Section 18(2) of the Standard should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

41. Committee’s Recommendation 26: Increasing Captionist Capacity

We share the Committee’s concern that there is a limited number of trained captionists in Ontario. We agree with the need for new efforts to increase their numbers. The Committee appears to make a non-regulatory recommendation.

We add that technology exists now to facilitate off-site captioning from distant locations. The captionist can be anywhere in the world. An audio hookup is set up via the web so the captionist can hear the spoken words to transcribe.

The Government can further facilitate this by either creating or funding a start-up that would crowdsource these services, so that captionists around Ontario, or indeed around the world, could get quick and easy access to customers in Ontario. This could be part of an economic development strategy. A well-run Ontario-based service could sell its services around the world, bringing in new revenues to Ontario.

We therefore recommend that:

#45. The Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

42. Committee’s Recommendation 27: Accessibility in Education

We agree with the Committee’s advice that the disability accessibility curriculum should be included at all levels of Ontario’s education system.

We therefore recommend that:

#46. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

“11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

43. Committee’s Recommendation 28: Accessibility in Information and Communications Tools and Systems

We agree with the Committee that:

“There is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communications tools and systems, and this leads to a lack of accessibility in these products.”

We also agree with the Committee’s Draft Recommendation 28 where it proposes that “all obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of people with disabilities…” We see value in this recommendation being further refined.

We therefore recommend that:

#47. The Committee’s Draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some specific examples of the needed training, including differently affected disabilities, beyond its reference to Sign Language.

The Ontario Government’s economic development strategy has tried to promote the development of the information technology sector in Ontario, to serve both the Ontario market and markets around the world. However, as far as we can tell, the Ontario Government has never acted on our advice in this area, which we repeatedly gave over several years. We had recommended to the Ontario Government that it should attach strings to its funding in that sector that require that sector to develop expertise in accessible information technology design. That would promote the expansion of Ontario’s technology sector so that it has more accessible design expertise to offer organizations around the world.

We therefore recommend that:

#48. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development efforts, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

44. Committee’s Recommendation 29: Accessibility in Provincially Regulated Professions

We endorse the Committee’s Draft Recommendation 29. It provides:

“Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers.”

The AODA Alliance’s proposed Framework for the Education Accessibility Standard points in a similar direction. It includes:

“Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities. Teacher’s colleges and other programs that are publicly funded to train professionals who will work with students in Ontario schools are therefore creating new generations of barriers that will impede students with disabilities.”

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are already working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.”

Section 16 of the Standard commendably requires training organizations to provide for their teachers, training on the needs of students with disabilities. However, it does not require any of their employees to ever take that training.

Regarding teacher training, we therefore recommend that:

#49. Section 16(1) of the Standard should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

It is essential that the Committee’s proposal take the form of a mandatory regulation, and not merely a policy or “best practice”. Too many professions need this reform to try to convince them voluntarily, one profession at a time.

Moreover, the AODA Alliance has been trying without success to secure voluntary action by the Ontario Government for over a decade. In the 2007 Ontario election, the AODA Alliance asked the parties to commit to ensure that relevant professions require their members to have sufficient accessibility training. In that election, the McGuinty Government promised to advocate to self-governing professions on this. In the ensuing 11 years that the Liberal Government was in power, we repeatedly asked it to keep this promise. We never saw or were shown any Government action to act on this promise.

45. Committee’s Recommendation 30: Education Standards

This recommendation only deals with where to locate certain requirements within the IASR. We take no issue with this as a pure housekeeping matter.

C. Our Feedback on The Committee’s Proposed Phase 2

In Phase 2 of the Committee’s draft recommendations, it proposes a major overhaul of how accessibility barriers should be regulated under the AODA. We commend the Committee for trying to take a broad and creative look at how progress is going under the AODA, and for trying to come up with innovative solutions, thinking beyond the regulatory status quo. Any effort in that regard should be encouraged.

Below we offer a few general responses to the Committee’s proposed reforms to the AODA’s overall design. These are only preliminary thoughts. A fuller response requires substantially more time and research than is currently available. The Committee’s Phase 2 proposal goes far beyond the scope of the Information and Communication Accessibility Standard.

The Committee’s Phase 2 reforms call, among other things, for the creation of a new public authority. The Committee calls it the “Trusted Authority”. That new public agency would have a series of new powers, including powers which bear directly on the AODA’s interpretation, implementation and enforcement.

These reforms would require the Legislature to amend the AODA itself. These are not measures which can be enacted as accessibility standard regulations under the AODA, as it is now written.

As noted earlier, we are opposed to the Ontario Legislature re-opening the AODA and considering making any amendments to it at this time. We don’t want there to be any risk that the Government would try to weaken or reduce any provisions in the AODA. Re-opening the legislation would create such a risk. We would react very strenuously against any Government effort to re-open the AODA’s terms in any way.

Even if we had wanted the Government to re-open the legislation, the likelihood of it doing so now is extremely low. Throughout the first third of its mandate the current Government treated the AODA as a very low priority. It took months and months for the Government just to unfreeze the work of existing AODA Standards Development Committees, including the Information and Communication Standards Development Committee. It took more months after that to get the Government to re-start the important work of the Education and Health Care Standards Development Committees. This was so even though while in opposition, the Conservatives criticized the former Ontario Government for dragging its feet on appointing an Education Standards Development Committee.

Over two thirds of a year has passed since the Government received the blistering report of David Onley’s AODA Independent Review. Despite our pressure, the Government has announced no comprehensive plan to implement the Onley Report.

As such, we would not agree to the Government proceeding with the Committee’s Phase 2 proposal, in so far as it requires legislative amendments. There is a second important reason why the Committee’s Phase 2 proposal should not proceed at this time. The Committee’s Phase 2 proposal contemplates delegation of certain powers to the proposed Trusted Authority which itself raises a number of significant legal concerns, beyond any policy discussion over the proposal’s pros and cons. We have not had the time or opportunity to explore those issues in preparation for this brief. They would have to be resolved before a profitable discussion of the proposal’s pros and cons should be undertaken.

There are other important avenues and arenas for such proposals regarding reform of the AODA to be presented. For example, there have been three successive Government-appointed Independent Reviews of the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018-19. Another AODA Independent Review will have to be appointed by March 7, 2022. Those are but one appropriate place to present such suggestions. We do not know if the Information and Communication Standards Development Committee or any of its members presented these ideas to any of the three AODA Independent Reviews for their consideration.

As a visible player on the provincial front regarding the AODA, the AODA Alliance would want to be a major player in any such discussions. For our part, we pointed out serious problems with the way the AODA has been operating, in our proposals to the Federal Government regarding the design of the new Accessible Canada Act. See for example our Discussion Paper on what Canada’s national accessibility law should include, published in the National Journal of Constitutional Law and available at https://www.AODAalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

The same goes for our recent proposals to the BC Government on what the promised BC accessibility law should include, available at https://www.AODAalliance.org/whats-new/the-british-columbia-government-commits-to-provincial-accessibility-legislation-and-seeks-public-input-on-a-proposed-framework-for-a-bc-disabilities-act-read-the-AODA-alliances-submission-to-the-b/

Despite the foregoing concerns, some parts of the Committee’s Phase 2 proposal can be undertaken now, without needing any reforms to the AODA or to any accessibility standards. For example, the Committee raises concerns about the use of the term “obligated organization.” The term “obligated organization” can be changed, in the Government’s communications on the AODA. The term “obligated organization” does not itself appear in the AODA.

Similarly, the Government could do a far better job of outreach to and inclusion of people with disabilities in its ongoing AODA consultation and implementation efforts, including in its consultation on the Information and Communication Standards Development Committee’s draft recommendations which are the focus of this brief. That too requires no amendment to the AODA.

The Government could now create far better resources to guide obligated organizations. At least two of the AODA Independent Reviews have called for that very action. We strongly support the need for that.

Finally, it is open to the Government to review the Information and Communication Accessibility Standard more frequently than every five years, in order to keep it up to date in connection with new developments, such as new developments in the world of information technology or the creation of new international standards for the accessibility of information technology.

We also want to alert the Committee that we respectfully disagree with some of the key points in its Phase 2 discussion. We agree that the AODA’s implementation has fallen far short of what we all expected, what we all need and what the AODA promised. Our 450-page January 15, 2019 brief to the David Onley Independent Review may be the most detailed documentation of this failure. It explores in detail the causes of this failure and offers constructive proposals to get the AODA back on track. The Onley Report echoes our analysis in key ways, as did the 2015 Moran AODA Independent Review Report that proceeded it and on which it built.

The Committee’s Phase 2 discussion seems in no small part to be constructed on the premise that the AODA has failed because it has been undertaken as an exercise of a regulator compelling compliance through enforcement, rather than by trying to get obligated organizations to understand that it is in their self-interest to ensure that their goods, services, facilities, and employment are accessible. For example, the Committee’s Phase 2 discussion states:

“In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.”

As our brief to the Onley AODA Independent Review and our website amply documents, the opposite has in fact been the case. We have demonstrated over and over that the Ontario Government has throughout this decade taken an extremely weak and minimalist approach to AODA enforcement. For years, it would barely if ever even utter the word “enforcement” in public in connection with the AODA. It conducts “audits” of very few organizations each year.

These are only paper audits. We have only seen documentation of one on-site AODA audit or inspection from the day the AODA was passed up to at least 2017. That was a pre-announced inspection of one Government ministry by another Government ministry. In that case, the deputy minister of the inspecting ministry gave written prior notice to the deputy minister of the ministry to be inspected, that an inspection would be upcoming.

Despite knowing year after year about rampant AODA violations since 2013, the Government has only imposed a tiny number of monetary penalties. In 2015, 2016 and 2017 combined, for the thousands of private sector organizations known to have violated this legislation, the Government only imposed a total of five monetary penalties. That’s less than two monetary penalties for each of those years. That conveys the clear message to violators that their risk of a monetary penalty is extremely slim.

The Toronto Star has run editorials that support our concern in this regard. It has slammed the Ontario Government for its weak AODA enforcement. Contrary to the Committee’s characterization of events, Minister after Minister responsible for the AODA has publicly said that their primary focus is on doing exactly what the Committee proposed in the passage quoted above, i.e. showing businesses the business case for accessibility. A good example of this is the following passage from the February 26, 2015 interview on CBC Radio Toronto’s flagship Metro Morning program by the previous Liberal Government’s Economic Development Minister Brad Duguid (then responsible for AODA implementation and enforcement):

“[Matt Galloway] But her, her real, her real thrust in this, in the report, is that Ontario’s not moving quickly enough to reach the 2025 goal of full accessibility. I wanna read something to you that one of your predecessors put together, which was Marie Bountrogianni, who, uh, when the legislature passed the disabilities act said, “What was missing in the previous act was enforcement compliance.

When you leave it to the good will of the people, it doesn’t get done.” What’s changed since then?

[Brad Duguid] Well, there- there’s two things. Number one, you can’t enforce that if the businesses aren’t aware of what their responsibilities are. So, the first thing we need to do is make businesses more aware, and we’re doing that through a number of different initiatives. There’s the advertising campaign. We also have a partnership with the Ontario Chamber of Commerce where we’re reaching out to businesses an- and educating them on what they need to do.

Secondly, and this is the key, and when you, and I, I just recently appointed David Onley as our special advisor, and this is something we’re working very, very closely on. We need to make sure that businesses are, are aware of why there’s a competitive advantage for them to become accessible.

We don’t want businesses just to reach a standard, we want them to go beyond the standard and there’s every- there’s a really good business case for businesses across this province to do this. In fact, the Martin Institute indicates that there’s 7.9 billion dollars in our economy if we can become more accessible.

So, that- what I’m saying there is, I don’t want to come in and, and take a really hard approach on businesses and turn them off. What I wanna do is get businesses to embrace what this will do to their bottom line. There’s a really good business case.”

No minister responsible for this legislation has publicly proclaimed a contrary approach to AODA enforcement. No minister coming after Mr. Duguid has ever disagreed with his view, criticized it, or proclaimed a different approach. Certainly, the new Ford Government has not repudiated it.

The Committee’s Phase 2 discussion addresses a criticism at the AODA itself, which should instead be directed at the Accessibility Directorate of Ontario and the Ontario Government. The Committee’s Phase 2 discussion includes:

“The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • Students, many of whom participate in projects such as “mapathons”, design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • Non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • Persons with disabilities and their families or support communities
  • Professional organizations
  • Community volunteers
  • Civil society”

Similarly the Committee’s Phase 2 discussion later states:

“Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the Act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.”

The Committee has commendably identified a legitimate area for improvement, but is identifying the wrong culprit. Under the AODA as now written, it is open to the Government to do a far more inclusive job of consulting and including the diverse voices to which the Committee points, in its work on the AODA’s implementation and enforcement. For example, Standards Development Committees could readily engage more such voices in their work developing standards. The Accessibility Directorate of Ontario can and should do much more of this within the ample mandate that the AODA gives it. Nothing in the AODA prohibits the Ontario Government from doing so.

As well, the Committee presents a very good series of suggestions for reform in its Appendix B. No Trusted Authority or other amendments to the AODA or to its current overall structure are needed to implement them. The IASR can and should be amended, such as in ss. 5 and 6, to incorporate the very helpful requirements that the Committee formulated in its Appendix B. With such a revision to the IASR we would be in clear support.

Appendix 1 Excerpts from the Mayo Moran Second Independent Review of the AODA

The 2014 Moran Report included;

“However, the Review also heard considerable discussion about the content of the standards. In particular, members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever. They identified two problems. First, the current standards have serious gaps and deficiencies. And second, important aspects of everyday life fall entirely outside the scope of the current requirements. At the same time, obligated organizations also provided valuable feedback about the content of the current standards and some of the challenges that they pose. Below, I summarize the central themes of the feedback on these issues, including both suggestions about where there may be gaps in the existing standards as well as recommendations for additional standards.

Proposed Revisions to Current Standards

The Review heard many comments that suggested revisions to existing standards. Various disability groups advocated specific changes to the standards to better reflect the needs of their members and clients. More generally, many participants believed that timelines in the standards are too long, several requirements are weak, little is being done to remove existing barriers, and exemptions and exceptions are too broad. One disability stakeholder considered the deficiencies in the IASR so serious that the mandatory review of the Transportation, Employment and Information and Communications standards should begin in 2015 instead of 2016 as currently planned. Many obligated organizations in both the public and private sectors had other concerns, emphasizing that the overall AODA regime is too complex and should be simplified as much as possible.

Members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever.

IMPACT ON SPECIFIC DISABILITIES

The Review was told by some participants that they do not believe that the AODA has been effective in addressing non-visible disabilities, such as mental illness, autism, learning disabilities, traumatic brain injuries and others. They suggested that more extensive training requirements to recognize and respond to the needs of people with these disabilities were essential.

The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards. For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.

Groups supporting people who are deaf or have hearing loss pointed out that the vagueness about support persons leaves doubt about an organization’s responsibility to provide interpreters or other communication facilitators. Individuals with speech and language disabilities not caused by hearing loss believe standards should more fully outline requirements for communications assistance, especially in essential services.

People with environmental sensitivities and multi-chemical sensitivities want to see these conditions explicitly included in the definition of disability. Participants with episodic or fluctuating disabilities likewise urged a direct reference to their type of disability in the definition. Representatives of people with bowel disorders called for a network of open, accessible public toilets to be established through the Customer Service, Transportation and Design of Public Spaces standards.

The Review was told that the AODA has not been effective in addressing non-visible disabilities.

EXEMPTIONS AND EXCEPTIONS

The existing regulations set different requirements based on the size of the organization. Where the line should be drawn between small and large businesses was a major source of contention in the feedback received by this Review. In fact, some felt it was a mistake to create any exemptions on the basis of the number of employees, as very small organizations can have huge revenue streams.

At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.

The Customer Service standard currently sets the threshold for certain requirements at 20 employees rather than 50. Currently, organizations with under 20 employees are exempt from requirements to prepare documents on their accessibility policies – including policies on service animals and support persons and the handling of service disruptions – and to produce copies on request, as well as from obligations to document training policies, keep training records and file accessibility reports. In its review of the Customer Service standard – which coincided with this Review – ASAC proposed to raise that threshold to 50 employees instead of 20 to align with the IASR, and several disability groups voiced their concerns about this proposal to this Review.

In addition to the exemptions based on organizational size, the Review also received some feedback on several other provisions that were questioned including the following:

  • Exemption of owner-operated sole proprietorships from the entire IASR as they have no employees.
  • Exclusion of the entire private sector from the duty to incorporate accessibility criteria and features when acquiring goods, service and facilities.
  • Exclusion of products and product labels from the Information and Communications standard.
  • Exclusion of unconvertible information from accessible format requirements, which some described as a loophole that should be closed.
  • Exemptions for all organizations except the provincial Government from the website provisions on live captioning and pre-recorded audio descriptions.

As well, disability stakeholders took issue with various exceptions that are less exacting than undue hardship under the Human Rights Code. This issue will be addressed later in the section on the AODA’s Relationship with Other Legislation.

GAPS IN STANDARDS

Beyond exemptions and the impact on certain disability groups, participants highlighted a host of gaps in existing standards and put forward numerous suggestions to close them.

Information and Communications

One of the gaps identified that was among the most serious sources of concern was the exclusion of extranets from the website standards. An extranet is a controlled extension of an organization’s internal network that allows access to outside users over the internet. It was pointed out that the standards development committee expected everything behind the log-in to be covered. The fact that this was not done is seen as a step backward.

Unless Ontario keeps standards in line with evolving information technology, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

The importance of keeping the Information and Communications standards in line with evolving international standards was also stressed. Unless a mechanism is created to do this, the Review was told, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

Some participants raised concerns about the provision of accessible formats for various purposes “on request”. They proposed that all educational resources should be accessible, with no need for a request. On the other hand, some post-secondary stakeholders pointed out that this might not be a wise use of resources as there may turn out to be no demand for many of the materials.”

Appendix 2 List of the AODA Alliance’s Recommendations in this Brief

#1. The Standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

#2. The Committee’s recommendations should recommend that the definition of “accessible formats” in s. 2 of the Standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

#4. The Committee should recommend that section 9(1) of the Standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

#6. The Committee should recommend the addition to the standard of a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

#7. The Committee’s Draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable accessibility standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

#8. The Committee’s Draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive timelines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and or where the requested information relates to important matters such as health or safety or other vital services. Otherwise nothing longer than a 7 day timeline should apply.

#10. The Committee’s Draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

#11. The Committee should recommend that section 12(1) of the Standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)   in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)   at a cost that is no more than the regular cost charged to other persons.”

#12. Section 12(3) of the Standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

#13. Section 12(4) of the Standard should be re-written in plain language to make it intelligible.

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the Standard.

#15. Section 13 of the Standard should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are provided in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

#16. The Committee’s Draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

#17. Section 14 of the Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

#19. The Committee’s Draft Recommendation 13 should recommend that section 14 of the Standard should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

#20. The Committee’s Draft Recommendation 17 should be replaced with a recommendation that the Standard’s not practicable exception from website accessibility is removed from section 14. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

#21. Section 14 of the Standard should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

#22. The Committee’s Draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

#23. The Committee’s Draft Recommendation 21 should be expanded to require an obligated organization to provide an item of pre-2012 inaccessible online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

#24. The Committee’s Draft Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

#25. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer or Chief Technology Officer position or their equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility in the organization’s internal and external digital communications.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s or CTO’s performance contract that the CIO or CTO is responsible and accountable for ensuring digital information accessibility and for ensuring that Accessibility is an integrated component of Performance and Security design requirements.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s or CTO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO or CTO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility and assistive technology.

#26. The Standard should be amended to require that when any public sector organization, large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform which is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The Standard should provide key criteria for assessing the accessibility of such platforms.

#27. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organization’s website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

#28. Beyond the measures in the Committee’s Draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

#29. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review all the general provisions in the IASR, sections 1 through 8.

#30. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

#31. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#32. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

#33. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and high-impact private sector organizations.

#34. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

#35. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities.”

#36. Section 6(2) of the IASR should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#37. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

#38. The Committee’s Draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or regulations apply, such as a provincial law that requires specified information to be posted on a website.

#39. Sections 15 to 18 of the Standard should be amended to ensure the accessibility of instructional and other information in Ontario’s education system, in accordance with Recommendations 8.1, 8.2, 12.1 and 12.2 of the AODA Alliance’s October 10, 2019 proposed framework for the contents of the K-12Education Accessibility Standard.

#40. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic textbooks or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

#41. Section 15 of the Standard should be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.   Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as textbooks are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the timelines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

#42. Section 17(1) and (2) of the Standard should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

#43. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

#44. Section 18(2) of the Standard should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

#45. The Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

#46. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

“11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

#47. The Committee’s Draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some specific examples of the needed training, including differently affected disabilities, beyond its reference to Sign language.

#48. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development efforts, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

#49. Section 16(1) of the Standard should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

[1] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, S.8(1). Retrieved at http://www.legislation.gov.uk/uksi/2018/952/made#f00004; Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, S.7(1). Retrieved at http://www.legislation.gov.uk/eudr/2016/2102/contents

[2] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, s.3; Directive (EU) 2016/2102 of the European Parliament and of the Council, Article 7(1).

[3] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, section 4(a)(b).

[4] Integrated Accessibility Standards, s.9(3)(a).



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Send Us Your Feedback on the AODA Alliance’s Draft Brief to the Information and Communication Standards Development Committee on Needed Improvements to the 2011 Information and Communication Accessibility Standard


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Send Us Your Feedback on the AODA Alliance’s Draft Brief to the Information and Communication Standards Development Committee on Needed Improvements to the 2011 Information and Communication Accessibility Standard

November 5, 2019

          SUMMARY

Today we are making public a draft of our proposed brief to Ontario’s Information and Communication Standards Development Committee. We want your input. We set that brief out below. It is very detailed.

Back in 2011, the Ontario Government enacted the Information and Communication Accessibility Standard under the AODA. It addresses barriers to accessibility in information and communication that face people with disabilities.

In 2016, the Ontario Government appointed a new Information and Communication Standards Development Committee to review that standard, and to make recommendations on where it needs to be strengthened.

On July 24, 2019, the Information and Communication Standards Development Committee made public its draft recommendations. It invited feedback from the public on those draft recommendations. The AODA Alliance has been hard at work, preparing a brief to provide our feedback to the Standards Development Committee. We are here giving you a draft of our brief. We welcome your feedback before we finalize this brief.

Here’s the problem! The Government’s deadline for sending in public feedback to the Standards Development Committee was October 25, 2019. We are late! We have to get this brief finalized very fast. Therefore, rushed as it sounds, we need your feedback no later than November 11, 2019.

We apologize for this rush. Our volunteer efforts have been spread over so many important issues, like the recent federal election.

You can be relieved to know that this draft brief reflects a lot of research. It also incorporates lots of feedback that we have received over the years on the issue of barriers to information and communication.

Send your feedback to us by emailing us at [email protected]

We know that this draft brief is quite long and detailed. Some may not have the time to read it all. Here is a short summary of what we propose to say in this brief. This is the summary that is also included in the brief itself.

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committee s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

There have now been 279 days since the Ford Government received the Onley Report. It called for strong new Government action to implement and enforce the AODA. The Ford Government has still announced no comprehensive plan to implement that report.

Draft Only

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

Brief to the Ontario Information and Communication Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Information and Communication Accessibility Standard

November 5, 2019

Via email to: [email protected]

Note: This is only a draft and has not been finalized as the position of the AODA Alliance.

A. Introduction

1. Overview

This is the AODA Alliance’s brief to the Information and Communication Standards Development Committee on its draft recommendations for revisions to the 2011 Information and Communication Accessibility Standard.

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for this action.

In 2011, the Ontario Government passed the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions on the accessibility of information and communication. That is referred to in this brief as the Information and Communication Accessibility Standard. At other points, this brief generally refers to the IASR, of which that standard is a part.

In 2016, the Ontario Government appointed the Information and Communication Standards Development Committee under the Accessibility for Ontarians with Disabilities Act (AODA) to review the 2011 Information and Communication Accessibility Standard, enacted under the AODA, and to recommend any revisions needed so that this , accessibility standard would best achieve the AODA’s purposes.

The Information and Communication Standards Development Committee has developed draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them, the Ontario Government was required to do this under the AODA. The feedback which the Government receives is to be submitted to the Information and Communication Standards Development Committee. That committee is then required to consider that feedback, as it finalizes its recommendations for the Government.

This brief provides the Information and Communication Standards Development Committee with our feedback on the committee’s draft recommendations. We hope that this feedback will assist the committee as it finalizes its recommendations for the Government.

The AODA Alliance welcomes this opportunity to offer our input. We ask that the Accessibility Ministry ensure that all members of the Information and Communication Standards Development Committee receive this brief as a whole, and not just a summary of it prepared by the Accessibility Directorate of Ontario. We have received informal word that in the past, at least some Standards Development Committees only receive a summary of feedback from such mandatory public consultations. That summary was evidently prepared by the Accessibility Directorate of Ontario. To fulfil the spirit and purposes of the AODA’s public consultation provisions it is important for all Standards Development Committee members to hear directly from the public, without having their input filtered by the Ontario Government.

We also offer to make an in-person presentation directly to the Information and Communication Standards Development Committee on our feedback. The Transportation Standards Development committee and the Employment Standards Development Committee each took us up on that offer. We hope this Standards Development Committee will do the same.

When it comes time for the Information and Communication Standards Development Committee to vote on the recommendations that it will present to the Ontario Government, we ask the committee to vote separately on each of the recommendations that we present in this brief.

We acknowledge with thanks the feedback and input that we regularly receive from our supporters that enable us to provide informed feedback to the Government and the public in areas such as this. We also thank the members of the Information and Communication Standards Development Committee for their commendable efforts to strengthen the Information and Communication Accessibility Standard.

2. Who Are We?

The AODA Alliance is 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: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated 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.

We have been widely recognized by the Ontario Government, by all political parties in the Ontario Legislature, within the disability community and by the media, as a key voice leading the non-partisan campaign for accessibility in Ontario. In every provincial election since 2005, any party that has made election commitments on accessibility has done so in letters to the AODA Alliance.

Our efforts and expertise on accessibility for people with disabilities have been recognized in speeches on the floor of the Ontario Legislature, and beyond. Our website and Twitter feed are widely consulted as helpful sources of information on accessibility efforts in Ontario and elsewhere. We have achieved this as an unfunded volunteer community coalition.

Beyond our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. Our efforts influenced the development of the Accessible Canada Act. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue.

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. 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 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 desired legislation.

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

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the information and communication context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these issues.

As but one example, the AODA Alliance played a leading role in campaigning to enable the Information and Communication Standards Development Committee to get back to work after the work of all Standards Development Committees was frozen in the wake of the 2018 Ontario election. We were happy and relieved when the Ontario Government lifted that freeze on the Information and Communication Standards Development Committee in the fall of 2018 and allowed it to go back to work.

3. Summary of this Brief

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations.

Our feedback set out in this brief is summarized as follows:

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the ‘Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committees draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

Here are three important themes which we ask the Committee to bear in mind as it reviews our recommendations.

a) A Commendable Start

First, we strongly commend the Committee for its efforts and for the draft recommendations. As will become evident, we agree with many if not most of the Committee’s Phase 1 recommendations. We urge adjustments to several of the Committee’s recommendations to further strengthen them. These are in a number of cases request from us for minor adjustments or refinements to the Committee’s work. We also point out several additional improvements to the Information and Communication Accessibility Standard, to supplement those which the Committee has prepared.

Based on its work so far, the Information and Communication Standards Development Committee has done by far the best job of any Standards Development Committee that has been appointed to review an existing AODA accessibility standard. It has prepared far stronger draft recommendations for reform than did ASAC when it reviewed the 2007 Customer Service Accessibility Standard or the Transportation Standards Development Committee when it reviewed the 2011 Transportation Accessibility Standard.

b) Committee’s Job Not Merely to Assess if the Information and Communication Accessibility Standard Has Been Working “As Intended”

Second, it appears obvious that several of the Standards Development Committees that have been reviewing an existing AODA accessibility standard has been working under substantially erroneous advice from the Accessibility Directorate of Ontario. Each such Standards Development Committee, including the current Information and Communication Standards Development Committee, has stated that it understood its job, when reviewing an existing AODA accessibility standard, is to determine if the standard is working “as intended”. The Information and Communication Standards Development Committee’s draft recommendations state in the introduction:

“The Act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required.”

Substantially the same erroneous language was included in the initial draft recommendations of the Transportation Standards Development committee that were circulated in 2017 for public comment and the draft recommendations of the Employment Standards Development Committee which were circulated earlier this year for public comment.

To simply see if the standard is working “as intended” seriously and substantially understates the goal of this mandatory review of the 2011 Information and Communication Accessibility Standard. The AODA does not limit a Standards Development Committee to inquiring on such a review to see if the standard is working “as intended”.

Rather, this review’s purpose is to ascertain whether the Information and Communication Accessibility Standard is working sufficiently to ensure that information and communication become fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend improvements to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Information and Communication Accessibility Standard is working “as intended.” By that lesser and palpably weak approach, the Information and Communication Accessibility Standard would be fine, and would need no improvements, if it led obligated organizations to merely do whatever the original 2011 Information and Communication Accessibility Standard spelled out. That would be sufficient, even if that left information and communication in Ontario full of disability barriers, now and even long after 2025. If the original intent of the 2011 Information and Communication Accessibility Standard fell below what the AODA requires for information and communication accessibility by 2025, neither we nor the Standards Development Committee should be locked into or handcuffed by that insufficient goal.

As this brief documents, the 2011 Information and Communication Accessibility Standard, while helpful, was not capable of ensuring that information and communication will become fully accessible by 2025, or indeed, ever. We have publicly shared our strong disagreement with the Accessibility Directorate‘s substantial dilution of the aim of these five year reviews of AODA accessibility standards, and have alerted the Directorate about our concerns. Despite this, and with no explanation or justification, that Directorate appears to have persisted in pressing Standards Development Committees to adopt this incorrect and unduly restrictive understanding of their mandate. We identified this concern in our briefs to the Transportation and Employment Standards Development Committees. We also identified it in Chapter 5 of our January 15, 2019 brief to the Third AODA Independent Review conducted by David Onley. It was there explained under the heading: “Inappropriate Government Attempts to Unduly Restrict the Work of Standards Development Committees”.

Even though the Information and Communication Standards Development refers to this erroneous “working as intended” approach to its review, it is clear from its draft recommendations that the Committee did not allow itself to be improperly hog-tied by the Directorate’s erroneous advice or direction. We congratulate the Committee for doing so.

c) Committee Should Use the Findings in the Moran and Onley Reports As Its Starting Point

Third, we agree with the Standards Development Committee‘s draft recommendations’ general assessment of the 2011 Information and Communication Accessibility Standard, as summarized in this paragraph:

“The Committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The Committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, Committee members agreed that the Standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.”

However, it is vital for the Committee to proceed from the starting point that the Information and Communication Accessibility Standard is substantially more deficient than that, even though it is the strongest of the accessibility standards enacted to date. The Committee should work from the starting point established by the second AODA Independent Review conducted by Mayo Moran and the third AODA Independent Review conducted by David Onley. The key findings in the reports of those reviews appear to come directly from the detailed briefs that the AODA Alliance submitted to those reviews.

In 2014, the second mandatory Independent Review of the AODA, conducted by Mayo Moran, found that there are very serious deficiencies in the accessibility standards enacted to date. These included the 2011 Information and Communication Accessibility Standard. Nothing in that accessibility standard has been changed since that report to address those concerns. Appendix 1 to this brief sets out key excerpts from the Moran Report.

The third Independent Review of the AODA, conducted by David Onley, reinforced and supplemented the Moran Report’s overall findings. It did not disagree with the Moran Report’s findings regarding the IASR’s deficiencies. Because the Information and Communication Accessibility Standard’s provisions had remained unchanged over the five years between the Moran Report and the Onley Report, there was no basis to revise the earlier report’s concerns.

In 2019, the third AODA Independent Review conducted by David Onley accepted the Moran Report as a correct starting point. It did not contradict any of the Moran Report’s findings about the problems with the accessibility standards enacted to date. It did not find that in the intervening four years, the Ontario Government had done anything to reduce those serious deficiencies.

To the contrary, the Onley Report made even more pointed and blistering findings about the AODA’s overall implementation. It did not exempt the Information and Communication Accessibility Standard from those blistering findings.

Based on public feedback, Onley’s report found that the pace of change regarding accessibility since 2005 for people with disabilities has been “glacial.” With then under six years left before 2025, the report found that “…the promised accessible Ontario is nowhere in sight.” He concluded that progress on accessibility under this law has been “highly selective and barely detectable.”

David Onley found “…this province is mostly inaccessible.” The Onley report correctly concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley report had damning things to say about years of the Ontario Government’s implementation and enforcement of the AODA. It in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership. He recommended:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

Since the Onley Report was received over nine months ago, the Ontario Government has announced no comprehensive plan to implement it, nor has it publicly said that it will do so in the future. As such, Ontario keeps slipping further and further behind the goal of full accessibility, while the 2025 deadline looms closer and closer.

d) The Bottom Line for This Committee

As such, we urge the Information and Communication Standards Development Committee to see its job as pivotal. It should recommend fixes to the Information and Communication Accessibility Standard that will rectify the substantial deficiencies in the AODA’s implementation in so far as they pertain to the accessibility of information and communication. This brief aims to help the Committee with that task.

If the Information and Communication Accessibility Standard is to be strengthened in order to ensure that the AODA’s goal is achieved by 2025 in relation to information and communication, this must happen now. The next mandatory review of the Information and Communication Accessibility Standard does not have to be appointed until the eve of the 2025 deadline. By then, if Ontario has not yet been put back on schedule for the 2025 deadline in connection with the accessibility of information and communication, it will be too late.

In the following discussion, our recommendations track the sequence of the Committee’s draft recommendations. We insert additional topics where they best fit, following the structure of the Information and Communication Accessibility Standard itself.

B. Our Specific Feedback on the Draft Recommendations’ Phase 1 Proposals

1. Accessibility Standard’s Long Term Objective

We commend the Committee for reviewing the Information and Communication Accessibility Standard’s long term objective, and its effort to simplify it. We believe that all that needs to be added to the Committee’s proposed simplified language is the AODA’s 2025 deadline.

We therefore recommend that:

#1. The standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

2. Section 2 – Definitions

The term “accessible formats” should be clarified so that organizations know that digital formats are an option, but only if they are in a format that is screen-reader-friendly.

We therefore recommend that:

#2. The Committee’s recommendations should be expanded to recommend that the definition of “accessible formats” in s. 2 of the standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

3. Definition of Electronic Self-Serve Kiosks

The IASR’s definition of an electronic self-serve kiosk is far too narrow.

We therefore recommend that:

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

4. Committee’s Recommendation 1 Consolidating the Regulation’s Feedback Requirements

We agree with the committee’s Recommendation 1 to immediately consolidate in one place in the IASR all feedback requirements, in language that makes them clear and consistent as long as this makes it clear that this that does not reduce any existing obligations.

5. Section 9 – Definitions and Exceptions

The standard’s definition of “conversion-ready” information is too loose. Section 9 provides:

“conversion ready” means an electronic or digital format that facilitates conversion into an accessible format;”

That definition does not ensure that the material is capable of ready conversion into an accessible format.

We therefore recommend that:

#4. The Committee should expand its recommendations to recommend that section 9(1) of the standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

Section 9(4) defines unconvertible information in a manner that is far too broad. This would weaken the rights of people with disabilities. Section 9(4) provides:

“For the purposes of this Part, information or communications are unconvertible if,

(a)        it is not technically feasible to convert the information or communications; or

(b)       the technology to convert the information or communications is not readily available.”

That provision dramatically reduces obligations of organizations below what they are required to do under the Human Rights Code, and, where applicable, the Charter of Rights. Our proposal for amending s. 9(2) makes s. 9(4) unnecessary.

We therefore recommend that:

#5. The committee’s recommendations should be expanded to recommend that either:

(a) Section 9(4) should be deleted, or

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

6. Committee’s Draft Recommendation 2 PDF Documents

We agree with the Committee’s draft recommendations where they conclude that PDF documents are often inaccessible and that the required expertise to make them accessible is seldom present in obligated organizations.

The Committee’s draft recommendations indicate that they do not propose banning PDF formats. We have never proposed banning anyone from creating a PDF document. It has always been our position, which we urge here, that if an obligated organization creates a pdf document in connection with activities to which this accessibility standard would apply, an accessible alternate format document, such as an MS Word, txt or HTML document should also be posted and made available at the same time.

The Committee’s draft recommendations state that the Committee considered non-regulatory measures such as education for Government employees, but did not vote on this. We do not believe that such non-regulatory measures are sufficient. They would not solve this persistent but easily-remedied problem.

We have been struggling for well over a decade to get the Ontario Government to change its own practices with PDFs, so that it will always simultaneously post an accessible format for a document whenever it publicly posts a PDF. This has too often been a frustrating and futile effort, even after we repeatedly raised this at the highest levels within the Ontario Public Service. We still continue to face serious problems. The Ontario Government has repeatedly claimed to be leading Ontario by its example on accessibility. Yet its example in this context is not one by which we would want Ontario to be led. For example, the Ontario Government even released in inaccessible PDF documents such important things as the 2014 final report of Mayo Moran’s Independent Review of the AODA, and the previous Government‘s long-awaited anti-poverty strategy. Years after being told that PDFs present an accessibility problem, the Ministry of Education continues to make important publicly-facing documents regarding Ontario’s education system available via PDF documents.

A simple, clear enforceable rule in the Information and Communication Accessibility Standard is the only effective measure that will have a hope of success, not only for the Ontario Government, but for other obligated organizations as well.

Some may think that a PDF can be made fully accessible. With such a view, we strongly and respectfully disagree, based on years of ample experience. However, this is a moot point.

First, as the committee correctly recognizes, obligated organizations mostly do not have the expertise to make a PDF accessible, even if it is assumed that this goal can be accomplished. Second, when a person receives a PDF, there is no way to know from the file name whether anyone has even attempted to incorporate accessibility features in it, and if so, how many such features. Third, it makes no sense to ask obligated organizations to divert their resources into trying in vain to remediate a new PDF, when they could instead quickly, easily and at no cost simply post the document in an accessible format like MS Word, whenever they post a pdf.

It would take enormous resources to try to persuade obligated organizations to voluntarily change their practices. It is far more effective to set a simple rule which obligated organizations can readily understand and which is easy to enforce.

Documents are not written in PDF. They are written in another application like MS Word. After they are written, accessibility is stripped from that document when it is converted to a PDF.

We therefore recommend that:

#6. The draft recommendations should be revised to include a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

7. Committee’s Draft Recommendation 4: Products and Product Labels

We agree with the Committee’s draft recommendation 4 that the loophole in the 2011 Information and Communication Accessibility Standard must be closed which exempts products and product labels from information and communication accessibility. Section 9(2) of the standard states:

“      (2) The information and communications standards do not apply to the following:

  1. Products and product labels, except as specifically provided by this Part.”

We commend the Committee for attempting to address this. However the draft recommendations do not go far enough to address this. The Committee’s draft recommendations call on the Ontario Government to try to work out a shared regulatory solution with the Federal Government and/or in the interim, that the Ontario Government explore non-regulatory solutions with obligated organizations.

Here again, an enforceable mandatory and specific standard is needed to change practices on the ground. Almost 15 years into the AODA, Ontarians with disabilities do not have time to hope that non-regulatory voluntary measures will change practices that have not substantially changed. In this context, we re-emphasize the finding in the Onley Report that progress on accessibility has been far too slow, and that Ontario remains a province full of “soul-crushing barriers.”

To hold off any regulatory action on this pending Ontario working out a coordinated action by the Federal Government would, we regret, indefinitely delay any regulatory action. Getting agreement with the Federal Government will predictably take years. The Federal Government will no doubt want to try to work out a common approach for all the provinces. While that would be ideal, it will take even longer. It will also lead to Ontario risking its being driven down to the lowest common denominator among the provinces. Ontario should lead with the strongest standard, and not follow others to the weakest standard.

In the recent federal election, most of the federal parties were not prepared to make any commitments at all on new measures they would take to promote accessibility for people with disabilities. Only one party was prepared to make commitments with any detail or that embodied real change for disability accessibility. After the election, there is little reason to expect that they will become more eager to make this a priority.

There is no compelling reason to await federal regulatory action in this sphere, as the Committee’s draft recommendations propose what Ontario should do. The committee is worried about the possible overlap between federal and provincial jurisdiction. In any area of public regulation of economic activity, there are innumerable situations where there may be an overlap between federal and provincial jurisdiction. Ontario nevertheless takes action, without waiting for the Federal Government. We have a federal labour board and a provincial labour board. We have a national building code and the Ontario Building Code. The list goes on.

Our constitution fully accommodates this without a province having to simply withhold regulatory action. In 2011, it is commendable that the Ontario Government did not withhold enacting regulatory standards for the accessibility of websites. For the same reason, it can and should act now in the area of the accessibility of product labels. If the Federal Government later decides to take action in this area, Ontario can of course discuss ways to harmonize their requirements, should the Federal Government at last decide to act in this area. However this should only be done so long as this does not lead to any reduction in Ontario’s accessibility protections.

While it would be helpful for the Ontario Government to work with industries to come up with creative new solutions in this area as the committee proposes, that too is no reason to withhold the enactment now of a regulatory requirement. Indeed, the presence of a mandatory Ontario regulatory accessibility requirement would help motivate industries to develop creative new solutions, including harnessing new technologies.

We therefore recommend that:

#7. The Committee’s draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

8. Committee’s Draft Recommendation 5 Alternative Formats and Communication Supports

We agree with the Committee’s concern with s. 12 of the Information and Communication Accessibility Standard. It requires an obligated organization to consult with a person with a disability on a needed accessible document format. It leaves the ultimate decision to the obligated organization in unilateral terms. The Committee’s draft recommendation commendably found:

“The Committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.”

We agree with the Committee that this provision needs to be strengthened. We also agree with the Committee’s proposal that the obligated organization should endeavour to get the agreement of the person requesting the alternative format. However, we are concerned that this does not go far enough.

The Supreme Court of Canada has held that obligated organizations have a duty to investigate alternative solutions in “duty to accommodate” cases. (See D. Lepofsky “Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic Scho  ol Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School” to be published in 2020 40.1 National Journal of Constitutional Law)

We anticipate that many obligated organizations do not know of their existing procedural duty to accommodate by investigating alternative solutions up to the point of undue hardship.

We therefore recommend that:

#8. The Committee’s draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

9. Committee’s Draft Recommendation 6 and 7

We agree with the Committee where it states that s. 12 of the Information and Communication Accessibility Standard is unduly vague, by providing that an alternative format document must be provided in a timely manner. We also agree with the Committee’s draft Recommendation 6 that the obligated organization and the requesting individual should endeavour to reach an agreement on the time frame for this.

However we do not agree with the Committee’s draft Recommendation 5 through 7 where they propose to refer to the Accessibility Standards Advisory Council (ASAC) the task of developing some sort of alternative dispute resolution mechanism for addressing situations where the obligated organization and requesting individual cannot reach an agreement. We commend the Committee here for trying to be creative. Yet we fear that it might take years to develop that new mechanism. Moreover, ASAC’s membership was presumably not selected based on its expertise in designing alternative dispute resolution mechanisms.

The creation of the required legal machinery to which the committee’s draft recommendations refer might well require legislative amendment, if there is to be an enforceable requirement and monetary penalties for non-compliance. We have not had a chance to investigate that complex question. As further addressed later in this brief, we do not want the Government to re-open the AODA’s provisions in the Legislature.

Moreover, the AODA requires that the development of such ideas for accessibility standards be done initially through a Standards Development Committee which is subject to the AODA’s procedural safeguards and openness requirements (including requirements for public input). ASAC is not subject to any of those procedures and safeguards, for which we fought so hard. For example, its meeting minutes are not required to be made public. In contrast, the minutes of meetings of a Standards Development Committee must be made public according to the AODA. The development of recommendations for the content of an element of an accessibility standard should not be sub-delegated to ASAC.

Instead to strengthen requirements in this area to address the shortcoming which the Information and Communication Standards Development Committee commendably identified, it would be helpful for the Information and Communication Accessibility Standard to be amended to set clear timelines, or presumptive timelines for an organization to respond to a request. This could vary depending on the organizations size and the importance of the requested information. If the information is to come from a hospital and relates to a patient’s medical condition, then the response time should be very short. Given the readily-available availability of technology to produce alternative formats for documents, and the low cost for doing so, there is no reason for such timelines to be lengthy. If the Ontario Government were to post online helpful information on how to convert documents to accessible formats, and a list of venders who can be retained to do this, then an obligated organization should be able to act quickly when a request is received.

We therefore recommend that:

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive time lines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and or the requested information relates to important matters such as health or safety or other vital services. Otherwise nothing longer than a 7 day time line should apply.

10. Committee’s Draft Recommendation 8

We agree with the aim of the Committee’s draft Recommendation 8. It calls for the IASR’s various requirements to provide accessible formats and communication supports to be brought together in one place in the IASR, as long as nothing is done to weaken these in any way. Our only concern will be to screen the proposed wording of any regulatory changes to be sure that they do not have the effect of reducing any rights of people with disabilities.

 11. Committee’s Draft Recommendation 9: On-Demand Conversion Ready Formats

We agree with the Committee’s draft Recommendation 9. It would require the Ontario Government and the Legislature to immediately ensure that all publicly facing documents are available in an accessible format. If this is required for new documents, this is not a major burden for the Ontario Government. As noted earlier, documents are typically first created in an accessible format, and then counterproductively rendered inaccessible by converting them to formats such as PDF.

12. Committee’s Draft Recommendation 10: On-Demand ASL and LSQ Translations

The Committee’s draft Recommendation 10 commendably aims to find a creative way to address the need for on-demand Government information in ASL and LSQ. We share the intent of that proposal, but believe it should be strengthened.

We therefore recommend that:

*10. The Committee’s draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to implement and require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

13. Other Deficiencies with Section 12 that the Committee’s Draft Recommendations Do Not Fix

Section 12(1)(a) sets the obligation here too low. It states:

“      12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)        in a timely manner that takes into account the person’s accessibility needs due to disability; and

(b)       at a cost that is no more than the regular cost charged to other persons.”

It is not sufficient for an obligated organization to take “into account” the needs of people with disabilities. The requirement should be to provide supports that meet the needs of people with disabilities unless to do so would cause the organization undue hardship.

We therefore recommend that:

#11. The Committee should recommend that section 12(1) of the standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)        in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)       at a cost that is no more than the regular cost charged to other persons.”

It is commendable that section 12(3) requires organizations to notify the public about the availability of accessible formats and communication supports. However the provision is too vague. It requires more detail to make it effective. Section 12:3) provides:

“      (3) Every obligated organization shall notify the public about the availability of accessible formats and communication supports.”

We therefore recommend that:

#12. Section 12(3) of the standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

Unlike the clear language used in a number of other parts of the IASR, section 12(4) is unintelligible. An organization will need a lawyer to figure it out. It states:

“      (4) Every obligated organization that is required to provide accessible formats or accessible formats and communication supports by section 3, 4, 11, 13, 19, 26, 28, 34, 37, 44 or 64 shall meet the requirements of subsections (1) and (2) but shall do so in accordance with the schedule set out in the referenced section and shall do so only to the extent that the requirements in subsections (1) and (2) are applicable to the requirements set out in the referenced section.”

We do not know what this provision means. We fear others will also not know what it means. Whatever it means to say, it should be said in much clearer language – language that lets an organization and persons with disabilities understand it without needing to hire and pay a lawyer to decipher it.

We therefore recommend that:

#13. Section 12(4) should be re-written in plain language to make it intelligible.

As a general matter, we also commend and endorse the concerns and advice that Communication Disabilities Access Canada CDAC provided to Accessibility Minister Raymond Cho in its January 19, 2019 letter to the minister. CDAC is an amazing and well-respected expert in its field. It has cutting-edge knowledge and good ideas on how to make progress.

We quote from the key part of that letter here:

“Communication Disabilities Access Canada (CDAC) is a national and provincial, non-profit organization that addresses accessibility for people who have speech, language and communication disabilities. Over 165,000 Ontarians have disabilities that affect their communication, that are not caused primarily by deafness or significant hearing loss. Diverse disabilities such as physical, neurological, cognitive, learning, hearing, vision, and linguistic disabilities can affect one or more areas of a person’s speech, comprehension, reading and writing.

Communication access to goods and services is as important as physical access for people who have little or no speech and who use picture, symbol, letter boards and devices to convey their messages.

The current integrated standards do not provide sufficient directives for businesses and organizations on ways to make their services accessible for people with speech, language and communication disabilities. For example, most people with speech and language disabilities experience significant barriers to services in face-to-face and telephone interactions, group meetings and forums and written communication. These contexts are not adequately or comprehensively addressed in any of the Standards. They are either oversimplified or omitted.

At this time, the Information and Communications Standard primarily focuses on making written information (print and digital) accessible. Examples of accessible formats cited on the Accessibility Directorate’s website, include human assistance, large print, text transcripts of audio or visual information, handwritten notes instead of speech, plain language and electronic documents.

Many of these accessibility accommodations are extremely useful and appropriate for people who have speech and language disabilities. However, the accessibility needs of people with speech and language disabilities go beyond access to written information and occur in face-to-face and telephone interactions, group meetings and written communication. Many of these contexts are critical communication situations, such as police, legal and justice services, where communication barriers can have serious consequences.

To address this significant gap in the Standards, we propose that the Information and Communications (IC) Standard expand its mandate to include regulations that address two-way, interactive communication for people who have disabilities that affect their communication.

We are recommending:

  • The IC Standards Development Committee should include people who have a thorough knowledge and proven track record to represent the communication access needs of people with diverse speech and language disabilities.
  • The mandate of this committee should go beyond “processes that businesses and organizations must follow to create, provide, and receive information and communications that are accessible to people with disabilities” to include “processes, and resources to ensure effective two-way communication in face-to-face, telephone and group interactions and written communication.
  • Development of regulations, guidelines and resources for: Face-to-face, telephone and group interactions. Standards and guidelines are required for all service providers who interact with the public within these contexts, so that they have the knowledge, skills and resources to interact with people who communicate in ways other than speech. They need to know how-to make telephone services accessible and how to make meetings and public forums inclusive for people who have communication disabilities.
  • Communication supports: Service providers need information about how and when to provide and work with communication assistants, communication intermediaries, sign language interpreters and other formal communication support services. Formal communication assistance services are essential in critical communication contexts such as health care, police, legal and justice services. In these situations, appropriate communication support services must be mandatory.
  • Communication accommodations: Service providers need information about simple, non-technical communication tools that they may provide when a person has no effective means to communicate. They need clarification on the use of communication devices that people may use.
  • Writing: Regulations are required to address writing activities for people who cannot physically write or who cannot write due to learning or linguistic disabilities. Writing includes accessible forms, procedures for note taking and signatures.
  • Environmental accommodations: Services need guidelines on creating and designing accessible signage and wayfaring, counter spaces, and elevators with a communication access lens.
  • Policies are required for communication procedures in emergency evacuation situations, as well as authentic assistance in critical contexts, including medical assistance in dying, police, legal and justice settings.

We believe that many of these accessibility features could be included in the IC Standard to provide a foundation upon which sector-specific communication standards could be developed, such as transportation, healthcare, education and employment. An example of a generic baseline communication standard would-be mandatory training for all service providers on how to communicate with a person who has unclear speech or who uses a communication device. An example of a sector-specific communication standard would be that health care providers must ensure that a communication assistant is authorized by a patient when supporting them in the provision of informed consent to treatment.

Existing resources:

CDAC has developed a range of free guidelines and resources on ways to make services communication accessible. These resources are available for the Accessibility Directorate to promote and use across the province, resources include:

  1. A database of qualified Communication Intermediaries to assist people with speech and language disabilities communicating in police, legal and justice situations

http://www.cdacanada.com/communication-assistance-database/.

We have information about making justice services accessible at

http://www.access-to-justice.org/

  1. A database of communication assistants who are available to support people with speech and language disabilities communicating at meetings, forums and on committees at http://www.cdacanada.com/communication-assistance-database/
  1. A webinar on making services accessible at

Making your services accessible for people with communication disabilities

  1. Written guidelines on communication access at

http://www.communication-access.org/wp-content/uploads/2018/12/Guidelines-for-Communication-Access-1.pdf”

We therefore recommend that:

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the standard.

14. Part 3: Section 13 Emergency Plans Generally

We share the Committee’s commendable call for greater action to ensure the accessibility of information regarding emergency plans and procedures.

15. Committee’s Draft Recommendation 11: Emergency Requirements

We agree with the Committee’s draft recommendation 11 that all the IASR’s various provisions regarding emergency plans and procedures should be consolidated in one part of the regulation. We add that nothing should be done to weaken these provisions.

16. Committee’s Draft Recommendation 12: Unacceptable Emergency Outcomes and Preparedness

The Committee concluded that “the preparedness of all levels of Government for emergencies involving people with disabilities is unacceptable.” We share this concern.

The Committee commendably recommended that the Government should review overall emergency preparedness measures from a disability perspective. However, it did not recommend anything to strengthen s. 13 of the Information and Communication Accessibility Standard. We turn attention to that need here.

Section 13 does not spell out the most obvious and important aspect of emergency procedures in this area. It does not explicitly require an organization to incorporate in any emergency procedure, a process for ensuring that it makes emergency announcements in an accessible format or manner during an emergency or crisis. Even if it is implicitly covered by earlier provisions in the IASR, it is very important to have a specific, clear and strong requirement here.

We therefore recommend that:

#15. Section 13 should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are available in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

17. Part 4: Section 14 Website and Web Content Accessibility Generally

We share the Committee’s view that the standard’s website accessibility provisions need to be strengthened.

18. Committee’s Recommendation 15: Differentiating Organizations/High Impact Organizations

We strongly and heartily endorse the Committee’s proposal that an organization’s number of employees should not be the sole determinant of an organization’s accessibility obligations. We have been urging that view upon the Ontario Government for over a decade without success.

We agree as well that the Committee’s idea of defining high impact organizations for purposes of defining their accessibility obligations has merit. We would add, however, a few variations. First, the Information and Communication Accessibility Standard, as now constituted, has had an upside-down approach to organizations ‘ duties and time lines. As in all other areas of the IASR, the Information and Communication Accessibility Standard starts from a mechanistic approach whereby the bigger the organization, the more it must do, and the sooner it must do it. In the case of small organizations, such as smaller businesses, website and mobile app accessibility should be attainable more quickly than by larger organizations, especially where the measures are required on a go-forward basis. A small company with a small website can ensure that the accessibility of its entire web footprint much more quickly than can the Ontario Government. Yet the Information and Communication Accessibility Standard erroneously places the least obligations on that small company and gives it the longest time lines. It places the greatest obligations on the Ontario Government and gives it the shortest time lines. This makes no sense. The Information and Communication Accessibility Standard should be revised where needed to correct this incorrect approach. It is of course irrelevant for those time lines that have already expired.

Second, the measure of what constitutes a high impact organization should include more than does the Committee’s Recommendation 15.

We therefore recommend that:

#16. The Committee’s draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) That will measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

19. Extending the Information and Communication Accessibility Standard to Require WCAG 2.1, Not the Current 2.0

At present, the specific standard for website accessibility that the Information and Communication Accessibility Standard sets is Web Content Accessibility Group (WCAG) 2.0. That was established by the W3C consortium at least a decade ago. Since then, we understand that it has been updated much more recently to WCAG 2.1. As we read it, the Committee’s recommendations merely refer to the old WCAG 2.0. They and do not recommend updating the Information and Communication Accessibility Standard to require WCAG 2.1. The Committee’s draft recommendations do not explain this. It is critically important.

We therefore recommend that:

#17. Section 14 of the Information and Communication Accessibility Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

As well, it is entirely unjustifiable in late 2019 for the standard to lead any organization to think that it is sufficient in the interim to only meet WCAG 2.0 Level A, and not, as a bare minimum, Level AA. Yet s. 14(3) still provides as follows, with an end date of 2021:

“      (2) Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA, and shall do so in accordance with the schedule set out in this section.”

No organization should now waste its efforts at merely meeting Level A as an interim goal, when it makes more sense to set Level AA as its goal from the outset.

We therefore recommend that:

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

20. Committee’s Draft Recommendation 13: Mobile Applications & New Technologies

We agree with the Committee’s draft Recommendation 13. It would extend the Information and Communication Accessibility Standard’s website accessibility requirements to mobile applications. However we do not agree that all small organizations should be exempted from this requirement, just as we do not believe that all small organizations should be categorically exempted from the Information and Communication Accessibility Standard’s website accessibility requirements. If anything, a well-resourced small organization could at least in some cases find it easier to make its website and mobile apps accessibility than can a larger organization. The IASR arbitrarily defines the size of an organization solely by its number of employees, regardless of the organization’s resources or its impact on the market. If for example a small organization has a broadly-selling app, there is no reason why it should not meet accessibility requirements. The Ontario Human Rights Code does not grant any such exemption for small organizations.

We therefore recommend that:

#19. The Committee’s draft Recommendation 13 should be expanded to recommend that section 14 should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

21. Committee’s Recommendation 16: Significant Refresh

The Committee’s draft recommendations correctly identify another serious deficiency with s. 15 of the Information and Communication Accessibility Standard, namely that key requirements are only triggered by an obligated organization creating a new website or undertaking a significant refresh of an existing site. We agree with the Committee that this vague threshold provides obligated organizations with an easy and unacceptable end-run around the provision.

We also agree with the Committee’s draft Recommendation 16 to fix this, and the stated intent underlying it, namely:

“•    Any content that is new or which an obligated organization changes, updates or adds to a web site must meet the accessibility requirements of Section 14

  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The Committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that Section 14 include examples for the sake of clarity
  • Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.”

22. Committee’s Recommendation 17: Practicability

We agree with the Committee’s concern that s. 14(5) includes too broad an exemption to its website accessibility requirements, by only requiring obligated organizations to take the required action to make websites accessible “where practicable”. We agree with the Committee that

“…this term is too vague and might allow some organizations to avoid doing something they are actually able to do.”

We encourage the Committee to fortify and further reinforce this serious concern. The sweeping “where practicable” exemption is far broader than the relevant Human Rights Code exemption from the duty to accommodate people with disabilities, which is only available where it is impossible to provide more accessibility without undue hardship. “Undue hardship “is a much more exacting requirement than mere practicability. Moreover the failure to use the stronger undue hardship terminology sends a harmful and erroneous signal to obligated organizations that they need not meet this higher undue hardship test. It misleads obligated organizations. This is a disservice both to obligated organizations and to people with disabilities.

To define the existing term “practicable” in s. 14(5) to mean the same as undue hardship, as the Committee is contemplating, risks confusing obligated organizations or suggesting to them that undue hardship means the same as merely not practicable. It is neater and cleaner, and less risk-prone, to simply replace the term “not practicable” in the standard with the correct “undue hardship”.

We would prefer if no “exception” clause was included. Compliance with well-established international standards for new web postings simply does not create an undue hardship. At the very least, if there is to be an exemption clause, the exemption should be no broader than that provided under the Human Rights Code.

We therefore recommend that:

#20. The Committee’s draft Recommendation 17 should be replaced with a recommendation that the exception for not practicable is removed. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

It is important for the regulation to make it clear that all organizations covered by this provision have a clear duty to promptly provide people with disabilities, on request, in an accessible format, with any information that is inaccessible on their website. This would include, for example, any information that need not yet be made accessible because of the time lines in the regulation, or any archival material that need never be made accessible on the website.

We therefore recommend that:

#49. Section 14 should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

23. Part 4, Subpart 1: Section 14 Exemptions Generally

We agree that the standards’ exemptions are too broad and need to be narrowed.

24. Committee’s Recommendation 19: Extranet Exemption

We agree with the intent and content of the Committee’s Draft Recommendation 19 that the exemption for public-facing websites with a log-in should be removed and that these types of websites should be required to comply with the Information and Communication Accessibility Standard. We however believe that the proposed 2023 deadline for all publicly-facing websites, other than new ones, should be 2023. This is too long a time line, especially where meeting it would not provably pose an undue hardship.

We therefore recommend that:

#21. The Committee’s draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

25. Committee’s Recommendation 20: Intranet Exemption

We agree with the Committee’s important finding that “technology has advanced to the point where all organizations should be able to make their websites accessible under Section 14.” We therefore agree with extending this requirement to the broader public sector and large organizations, including employee-facing websites. As such, we agree that “all definitions related to a type of website be removed and that Section 14 simply apply to all websites, internet or intranet for all obligated organizations”. Indeed this is a critical reform to strengthen the current weak Employment Accessibility Standard. As indicated earlier, we would go further, and urge that it be extended to at least some small organizations, even if they do not fit within the proposed definition of high impact organization.

26. Committee’s Recommendation 21: Pre-2012 Exemption

We agree with the Committee’s view that the Information and Communication Accessibility Standard’s exemption for pre-2012 web content is overbroad and should be narrowed. The Committee’s draft Recommendation 21 seems on first examination to be sensible. We would add that where historic, archived content is available on the web, and where a customer or employee needs it in an accessible format for purposes of seeking or using an obligated organization’s goods, services or facilities, or for purposes of their employment, the obligated organization should be required to make that content available on request in an accessible format.

We therefore recommend that:

#22. The Committee’s Recommendation 21 should be expanded to require an obligated organization to provide an item of online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

27. Committee’s Recommendation 22: Live Captioning and Audio Description

We agree with the Committee’s draft Recommendation 22 that sets out requirements so that by 2025, the standard’s live captioning and audio description exemptions will be eliminated. We would add that by 2021, this exemption should be lifted for the city of Toronto, a public sector organization which is larger and more resourced than a number of entire provinces in Canada.

We therefore recommend that:

#23. The Committee’s Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

28. Committee’s Recommendation 23: Web Hosting Location

We agree with the Committee’s draft Recommendation 23 which would clarify that s. 14 obligations apply to a website whether or not it is hosted in Ontario. This is a loophole that should not be permitted to remain.

29. Chief Information Officer

A number of larger organizations in the public and private sector now have a position often called the Chief Information Officer (CIO). This is a critical position which could be decisively in enhancing accessibility of information and especially digital information.

At present, there is nothing in place in the standard to help ensure that a CIO has sufficient knowledge and training on digital accessibility, or even knows that they have lead responsibility for the organization‘s digital accessibility. There is similarly nothing in place to require that a CIO is held accountable within the organization for the organization’s efforts at ensuring digital accessibility.

We therefore recommend that:

#24. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer position or its equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s performance contract that the CIO is responsible and accountable for ensuring digital information accessibility.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility.

30. Teleconference Platforms Used by Public Sector Organizations

Increasingly, organizations use web-based teleconferencing and meeting platforms for internal meetings of their employees or officials, and for public-facing meetings, such as electronic town hall meetings. Some of these platforms are more accessible than others. It is critical that organizations only use the most accessible ones. A requirement to this effect in the Standard would help get all such platforms to become accessible.

We therefore recommend that:

#25. The standard should be amended to require that when any public sector or large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform which is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The standard should provide key criteria for assessing the, accessibility of such platforms.

31. Digital Information Accessibility Statement

The standard does not now require any obligated organization to prepare and make public a comprehensive statement of the status of the accessibility of its website or related mobile apps. This might be covered to some extent in an accessibility plan or progress report on accessibility that the organization must prepare under the existing IASR. However, there is no assurance that the needed information will be included and will be comprehensive.

Helpful research provided to the AODA Alliance by the ARCH Disability Law Centre includes the following:

“The United Kingdom Statutory Instrument 2018 No.952, entitled The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the “Regulation”) is comparable to certain provisions within the AODA Information and Communication Accessibility Standard. There is also a Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (the “Directive”) which is relevant.

 

Both the Regulation and the Directive require public organizations to create an “Accessibility Statement”.[1]

That research also stated:

“An Accessibility Statement as defined by the Regulation and Directive is: “a detailed, comprehensive and clear statement produced by a public sector body on the compliance of its website or mobile application with these Regulations”.[2] The Accessibility Statement is a useful tool especially where an organization determines it is unable to meet accessibility standards. The Regulation requires a public sector body to explain in its Accessibility Statement any instances where it cannot comply with the accessibility requirement and provide accessible alternatives where appropriate.[3]

Under the AODA Information and Communication Accessibility Standard, obligated organizations are required to provide a requesting party with an explanation when it determines that it is unable to convert information and communications to an accessible format.[4] This requirement is similar to the Accessibility Statement required under the Regulation and Directive. However, Accessibility Statements are more robust. Accessibility Statements outline both an organization’s compliance and lack thereof meaning they go beyond simply addressing instances where an organization cannot comply with standards. Additionally, Accessibility Statements are required whether or not there is a ‘requesting party’ who has been denied accessible/convertible information. Further, the term ‘explanation’ is undefined in the Information and Communication Standard and so it lacks the formal requirements of an Accessibility Statement. As a result, there is no guarantee as to the quality of an explanation given to a requesting party under the Information and Communication Accessibility Standard.”

We therefore recommend that:

#26. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organizations website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

32. Committee’s Recommendation 14: Procurement

We agree with the Committee’s draft recommendations that the IASR’s general provisions regarding procurement of accessible goods, services and facilities “…are not strong enough to result in accessible digital procurement.” We also agree with the general thrust of the ideas in the Committee’s draft Recommendation 14 on the substantive requirements to add to the IASR in so far as accessible procurement of information technology is concerned. We would however like to see the Information and Communication Accessibility Standard go further. It should include specifics of what kinds of accessibility features or functionality should be required. These should be expressed in terms of end-user-usability, and not the specific technology to include. This is so because technology in this area is so rapidly evolving. In other words, these amendments to the standard should not only set process requirements, but also requirements for end results in terms of functional end-user experience. We anticipate that obligated organizations generally know little or nothing about this and need as much regulatory direction as possible.

We therefore recommend that:

#27. Beyond the measures in the Committee’s draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

We agree with the Committee that beyond the specific context of procuring information technology, the IASR’s general provisions regarding procurement need to be strengthened. We however, do not agree with the Committee’s suggestion that this be referred to ASAC. As noted earlier, under the AODA, the review of any accessibility standard must be conducted at least every five years by a Standards Development Committee that is appointed for that purpose.

The members of the Standards Development Committee appointed to conduct that review should be chosen based on their expertise and experience in this specific area. No Standards Development Committee has been appointed since 2011 to review the IASR’s general provisions, such as the procurement provisions. It would be open to the Government to assign that review to an existing Standards Development Committee that was already appointed to review any other parts of the IASR or to recommend new accessibility standards.

The Government is in violation of the AODA for not having done so. That review was required to have been started in 2016. As noted earlier, the Standards Development Committee that conduct such a review should comply with all the procedural safeguards in the AODA conducting a review of an accessibility standard.

We therefore recommend that:

#28. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review the general provisions in the IASR, sections 1 through 8.

We agree that the Government and public sector organizations need to be given some time to implement any changes in the area of procurement. However, we do not agree that this should extend out to 2021, as the Committee’s draft recommendations propose. This is so for several reasons.

First, public sector organizations have had accessible procurement duties under the AODA for years. They are not starting from scratch. Second, their duty not to create new barriers is enshrined in pre-existing human rights law. It is not a new creation of the AODA or of the IASR.

Third, 2025 is not far away. We cannot afford any delays, especially on the part of public sector organizations that are supposed to be leading by example.

Fourth, any such delay inappropriately suggests to public sector organizations that it is okay for them to continue to use public money to create new disability barriers. Yet that harmful use of public money must stop.

Fifth, especially as it applies to the Ontario Government that is the very body that is creating this regulation. As noted earlier, the Ontario Government has claimed for years to be leading Ontario by example in the area of accessibility. The Ontario Government is hardly caught by surprise by new regulatory requirements in this area.

For the same reasons, we respectfully disagree with the Committee’s draft Recommendation 14 where it proposes that an obligated organization can be exempt from any of this new requirement if it has entered into a contract regarding the matter before January 1, 2021. That would let an obligated organization disregard this new requirement even if it was amply aware that it was coming e.g. because it was earlier posted in a draft regulation.

We therefore recommend that:

*29. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

We propose further measures to strengthen the IASR procurement provisions, whether they apply to information technology or other goods, services or facilities.

Section 5 of the IASR falls well short of the duty to prevent the creation of new barriers that the Supreme Court of Canada mandated years ago in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650.

This section unjustifiably exempts any organization from even having to ask for accessible goods, services or facilities when seeking to procure them, “where it is not practicable to do so.” We know of no situation where it is impracticable to even ask vendors for accessible goods, services or facilities, as part of a procurement endeavour. Moreover, the “not practicable” standard falls substantially short of the “without undue hardship” standard in the Human Rights Code. It is counterproductive and harmful to try to get organizations to meet standards that are transparently lower than the Human Rights Code. If there were to be any exemption clause in this part of the IASR at all, it should be considerably narrowed. We here draw on the Committee’s commendable recommendation, further addressed later in this brief, that the standard should also be amended to create a class of “high impact” private sector organizations.

We therefore recommend that:

#30. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Shall acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#31. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

The duty to procure accessible goods, services and facilities should be extended to large or high impact private sector organizations. This is important for ensuring accessibility of goods, services, facilities and employment.

We therefore recommend that:

#32. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and to high impact private sector organizations.

Moreover, these procurement requirements should be extended to any private sector organization when engaging in a project or contract for the Ontario Government. The Government should not be able to get around these procurement requirements by contracting out some of its work to the private sector.

We therefore recommend that:

#33. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

33. Section 6 – Self-Service Kiosks

Related to the issue of procurement, the IASR’s section regarding electronic kiosks, s.6, remains far too weak. Its requirements should be strengthened. Features of the Information and Communication Accessibility Standard bear on such kiosks, just as they can apply to other customer-facing technology. These requirements should extend further in the private sector than at present.

We therefore recommend that:

#34. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities. “

It is also important for private sector organizations with less than 50 employees to take serious action on this front especially where they offer technology for use by the public during point-of-sale transactions.

We therefore recommend that:

#35. Section 6(2) should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#36. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

34. Committee’s Recommendation 18: Harmonization and Application across Requirements

We agree with the Committee’s draft Recommendation 18 that the IASR should be amended to make it clear that its website accessibility provisions in s.14 apply to all websites that are referred to across the IASR. We would go further. The IASR should be refined to make it clear that these website accessibility requirements apply to any website specified in any provincial legislation or regulations, such as any provincial law that requires anything to be posted on a website.

We therefore recommend that:

#37. The Committee’s draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or apply, such as a provincial law that requires specified information to be posted on a website.

35. Part 5: Sections 15, 16, 17 and 18 Generally

It is inexcusable in 2019, over 14 years after the AODA was enacted, that students continue to face difficulties in getting timely access to needed educational materials in an accessible format.

The AODA Alliance has released a proposed Framework for the Education Accessibility Standard and has submitted it to the K-12 Education Standards Development Committee. We set out the relevant passages below. We do however urge the Information and Communication Standards Development Committee to press forward with its recommendations in this area, as elaborated upon below in our more specific submissions. If the K-12 Education Standards Development Committee or the post-Secondary Education Standards Development Committee opt to make further recommendations on point, that can only enrich the discussion. However, we ask the Information and Communication Standards Development Committee not to hold off proceedings on these recommendations due to the forthcoming work of the two Education Standards Development Committees.

In the key part of the AODA Alliance’s proposed Framework for the Education Accessibility Standard, a vision is offered of what an accessible education system would look like. This vision includes, among other things:

“2.5 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them and would be available in accessible formats when needed.

2.6 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and would fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.”

Among the recommendations in that proposed Framework for the contents of the Education Accessibility Standard is the following:

“8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and internal or external websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

8.1 Each school board should ensure that:

Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.

  1. a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  1. b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  1. c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.
  1. d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  1. e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

8.2 The Ministry of Education and each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased either by a school board, or by the Ministry for use by school boards, unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board or the Ministry.”

The proposed Framework also includes:

“12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other instructional materials and teaching resources that are not provided at the same time in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this provision has not been effective and sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

12.1 To ensure that instructional materials are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  1. b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  1. c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.”

36. Committee’s Recommendation 24: Purchase of Accessible Teaching/Training Materials

We agree with the Committee’s draft Recommendation 24 that “obligated organizations that are educational or training institutions be required to order text books or other printed curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print copies.” This should apply to both print and electronic teaching materials.

We therefore recommend that:

#38. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic text books or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

37. Section 15 – Educational and Training Resources and Materials

Beyond this, s. 15, on providing accessible educational and training materials, while helpful, needs to be strengthened. It now provides:

“      15. (1) Every obligated organization that is an educational or training institution shall do the following, if notification of need is given:

  1. Provide educational or training resources or materials in an accessible format that takes into account the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by,
  2. Procuring through purchase or obtaining by other means an accessible or conversion ready electronic format of educational or training resources or materials, where available, or
  3. Arranging for the provision of a comparable resource in an accessible or conversion ready electronic format, if educational or training resources or materials cannot be procured, obtained by other means or converted into an accessible format.
  4. Provide student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

(2) For the purposes of this section and sections 16, 17 and 18, an obligated organization is an educational or training institution if it falls into one of the following categories:

  1. It is governed by the Education Act or the Private Career Colleges Act, 2005.
  2. It offers all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000.
  3. It is a designated public sector organization described in paragraph 3 or 4 of Schedule 1.
  4. It is a public or private organization that provides courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act.
  5. It is a private school within the meaning of the Education Act.”

We therefore recommend that:

#39. Section 15 be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.       Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as text books are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the time lines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

38. Section 17 – Producers of Educational or Training Material

It is helpful that s. 17 requires publishers to make accessible educational textbooks and certain other printed instructional materials available on request, in an accessible format. It however needs to be expanded. It now only applies to textbooks. Section 17 provides:

“      17. (1) Every obligated organization that is a producer of educational or training textbooks for educational or training institutions shall upon request make accessible or conversion ready versions of the textbooks available to the institutions. O. Reg. 191/11, s. 17 (1).

(2) Every obligated organization that is a producer of print-based educational or training supplementary learning resources for educational or training institutions shall upon request make accessible or conversion ready versions of the printed materials available to the institutions. O. Reg. 191/11, s. 17 (2).”

It should also apply to any other course materials produced in printed form, as well as course materials and books produced in electronic form. With the spread of e-books, this is increasingly important.

We therefore recommend that:

#40. Section 17(1) and (2) should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

39. Committee’s Recommendation 25: Definition of Educational and Training Institutions

We agree that the standard’s requirements for educational organizations should extend to any organization that provides any education or training programs, whether or not they meet the standard’s current definition of education organization.

We therefore recommend that:

#41. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

40. Section 18 – Libraries of Educational and Training Institutions

Section 18 is a helpful provision addressing accessibility at public libraries. However, it has an exception for “special collections” that, if not defined, could sweep away much-needed protections. Section 18 provides:

“      18. (1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.

(2) Special collections, archival materials, rare books and donations are exempt from the requirements of subsection (1).

(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:

  1. In respect of print-based resources or materials, January 1, 2015.
  2. In respect of digital or multimedia resources or materials, January 1, 2020.”

A law school at a university might argue that its entire law library is a “special collection”, that is thus exempt from any accessibility requirements. We do not anticipate that this was what the Government meant to achieve here.

We therefore recommend that:

#42. Section 18(2) should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

41. Committee’s Recommendation 26: Increasing Captionist Capacity

We share the Committee’s concern that there is a limited number of trained captionists in Ontario. We agree with the need for new efforts to increase their numbers. The Committee appears to make a non-regulatory recommendation.

We add that technology exists now to facilitate off-site captioning from distant locations. The captionist can be anywhere in the world. An audio hookup is set up via the web so the captionist can hear the spoken words to transcribe.

The Government can further facilitate this by either creating or funding a start-up that would crowd source these services, so that captionists around Ontario, or indeed around the world, could get quick and easy access to customers in Ontario. This could be part of an economic development strategy. A well-run Ontario-based service could sell its services around the world, bringing in new revenues to Ontario.

We therefore recommend that:

#43. the Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

42. Committee’s Recommendation 27: Accessibility in Education

We share the Committee’s advice that disability accessibility curriculum should be included at all levels of Ontario’s education system.

We therefore recommend that:

#44. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

”11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

43. Committee’s Recommendation 28: Accessibility in Information and Communications Tools and Systems

We agree with the Committee that:

“There is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communications tools and systems, and this leads to a lack of accessibility in these products.”

We also agree with the Committee’s draft Recommendation 28 where it proposes that “all obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of people with disabilities…” We see value in this recommendation being further refined.

We therefore recommend that:

#45. The Committee’s draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some examples of the needed training, including differently affected disabilities, beyond its reference to Sign language.

The Ontario Government’s economic development strategy has tried to promote the development of the information technology sector in Ontario, to serve both the Ontario market and markets around the world. However, as far as we can tell, the Ontario Government has never acted on our advice, which we gave over several years, that it should incorporate in that effort a strategy, including funding strings, to promote the expansion of Ontario’s technology sector so that it has more accessibility design expertise to offer organizations around the world.

We therefore recommend that:

#46. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development program, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

44. Committee’s Recommendation 29: Accessibility in Provincially Regulated Professions

We endorse the Committee’s draft Recommendation 29. It provides:

“Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers.”

The AODA Alliance’s proposed Framework for the Education Accessibility Standard points in a similar direction. It includes:

“Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities. Teacher’s colleges and other programs that are publicly funded to train professionals who will work with students in Ontario schools are therefore creating new generations of barriers that will impede students with disabilities.”

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are already working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.”

Section 16 of the standard commendably requires training organizations to provide for their teachers, training on the needs of students with disabilities. However, it does not require any of their employees to ever take that training.

Regarding teacher training, we therefore recommend that:

#47. Section 16(1) should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

It is essential that the Committee’s proposal take the form of a mandatory regulation, and not merely a policy or “best practice”. Too many professions need this reform to try to convince them voluntarily, one profession at a time.

Moreover, the AODA Alliance has been trying without success to secure voluntary action by the Ontario Government for over a decade. In the 2007 Ontario election, the AODA Alliance asked the parties to commit to ensure that relevant professions require their members to have sufficient accessibility training. In that election, the McGuinty Government promised to advocate to self-governing professions on this. In the ensuing 11 years that the Liberal Government was in power, we repeatedly asked it to keep this promise. We never saw or were shown any Government action to act on this promise.

45. Committee’s Recommendation 30: Education Standards

This recommendation only deals with where to locate certain requirements within the IASR. We take no issue with this as a pure housekeeping matter.

C. Our Feedback on The Committee’s Proposed Phase 2

In Phase 2 of the Committee’s draft recommendations, it proposes a major overhaul of how accessibility barriers should be regulated under the AODA. We commend the Committee for trying to take a broad and creative look at how progress is going under the AODA, and for trying to come up with innovative solutions, thinking beyond the regulatory status quo. Any effort in that regard should be encouraged.

Below we offer a few general responses to the Committee’s proposed reforms to the AODA’s overall design. These are only preliminary thoughts. A fuller response requires substantially more time and research than is currently available. The Committee’s Phase 2 proposal goes far beyond the scope of the Information and Communication Accessibility Standard.

The Committee’s Phase 2 reforms call, among other things, for the creation of a new public authority. The Committee calls it the “Trusted Authority”. That new public agency would have a series of new powers, including powers which bear directly on the AODA’s interpretation, implementation and enforcement.

These reforms would require the Legislature to amend the AODA itself. These are not measures which can be enacted as accessibility standard regulations under the AODA, as it is now written.

As noted earlier, we are opposed to the Ontario Legislature re-opening the AODA and considering making any amendments to it at this time. We don’t want there to be any risk that The Government would try to weaken or reduce any provisions in the AODA. Re-opening the legislation would create such a risk. We would react very strenuously against any Government effort to re-open the AODA’s terms in any way.

Even if we had wanted The Government to re-open the legislation, the likelihood of it doing so now is extremely low. Throughout the first third of its mandate the current Government treated the AODA as a very low priority. It took months and months for the Government just to unfreeze the work of existing AODA Standards Development Committees, including the Information and Communication Standards Development Committee. It took more months after that to get the Government to re-start the important work of the Education and Health Care Standards Development Committees. This was so even though while in opposition, the Conservatives criticized the former Ontario Government for dragging its feet on appointing an Education Standards Development Committee.

Over two thirds of a year has passed since The Government received the blistering report of David Onley’s AODA Independent Review. Despite our pressure, The Government has announced no comprehensive plan to implement the Onley Report.

As such, we would not agree to the Government proceeding with the Committee’s Phase 2 proposal, in so far as it requires legislative amendments. There is a second important reason why the Committee’s Phase 2 proposal should not proceed at this time. The Committee’s Phase 2 proposal contemplates delegation of certain powers to the proposed Trusted Authority which itself raises a number of significant legal concerns, beyond any policy discussion over the proposal‘s pros and cons. We have not had the time or opportunity to explore those issues in preparation for this brief. They would have to be resolved before a profitable discussion of the proposal’s pros and cons should be undertaken.

There are other important avenues and arenas for such proposals regarding reform of the AODA to be presented. For example, there have been three successive Government-appointed Independent Reviews of the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018-19. Another AODA Independent Review will have to be appointed by March 7, 2022. Those are but one appropriate place to present such suggestions. We do not know if the Information and Communication Standards Development Committee or any of its members presented these ideas to the any of the three AODA Independent Reviews for their consideration.

As a visible player on the provincial front regarding the AODA, the AODA Alliance would want to be a major player in any such discussions. For our part, we pointed out serious problems with the way the AODA has been operating, in our proposals to the Federal Government regarding the design of the new Accessible Canada Act. See for example our Discussion Paper on what Canada’s national accessibility law should include, published in the National Journal of Constitutional Law and available at https://www.AODAalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

The same goes for our recent proposals to the BC Government on what the promised BC accessibility law should include, available at https://www.AODAalliance.org/whats-new/the-british-columbia-government-commits-to-provincial-accessibility-legislation-and-seeks-public-input-on-a-proposed-framework-for-a-bc-disabilities-act-read-the-AODA-alliances-submission-to-the-b/

Despite the foregoing concerns, some parts of the Committee’s Phase 2 proposal can be undertaken now, without needing any reforms to the AODA or to any accessibility standards. For example, the Committee raises concerns about the use of the term “obligated organization.” The term “obligated organization” can be changed, in The Government’s communications on the AODA. The term “obligated organization” does not itself appear in the AODA.

Similarly, The Government could do a far better job of outreach to and inclusion of people with disabilities in its ongoing AODA consultation and implementation efforts, including in its consultation on the Information and Communication Standards Development Committee’s draft recommendations which are the focus of this brief. That too requires no amendment to the AODA.

The Government could now create far better resources to guide obligated organizations. At least two of the AODA Independent Reviews have called for that very action. We strongly support the need for that.

Finally, it is open to the Government to review the Information and Communication Accessibility Standard more frequently than every five years, in order to keep it up to date in connection with new developments, such as new developments in the world of information technology or the creation of new international standards for the accessibility of information technology.

We also want to alert the Committee that we respectfully disagree with some of the key points in its Phase 2 discussion. We agree that the AODA’s implementation has fallen far short of what we all expected, what we all need and what the AODA promised. Our 450-page January 15, 2019 brief to the David Onley Independent Review is perhaps the most detailed documentation of this failure. It explores in detail the causes of this failure and offers constructive proposals to get the AODA back on track. The Onley Report echoes our analysis in key ways, as did the 2015 Moran AODA Independent Review Report that proceeded it and on which it built.

The Committee’s Phase 2 discussion seems in no small part to be constructed on the premise that the AODA has failed because it has been undertaken as an exercise of a regulator compelling compliance through enforcement, rather than by trying to get obligated organizations to understand that it is in their self-interest to ensure that their goods, services, facilities and employment are accessible. For example, the Committee’s Phase 2 discussion states:

“In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.”

As our brief to the Onley AODA Independent Review and our website amply documents, the opposite has in fact been the case. We have demonstrated over and over that the Ontario Government has throughout this decade taken an extremely gentle and minimalist approach to AODA enforcement. For years, it would barely if ever even utter the word “enforcement” in public in connection with the AODA. It conducts “audits” of very few organizations each year.

These are only paper audits. We have only seen documentation of one on-site AODA audit or inspection from the day the AODA was passed up to at least 2017. That was a pre-announced inspection of one Government ministry by another Government ministry. In that case, the deputy minister of the inspecting ministry gave written prior notice to the deputy minister of the ministry to be inspected, that an inspection would be upcoming.

Despite knowing year after year about rampant AODA violations since 2013, the Government has imposed a tiny number of monetary penalties. In 2015, 2016 and 2017 combined, for the thousands of private sector organizations known to have violated this legislation, the Government only imposed a total of five monetary penalties. That’s less than two monetary penalties for each of those years. That conveys the clear message to violators that their risk of a monetary penalty is extremely slim.

The Toronto Star has run editorials that support our concern in this regard. It has slammed the Ontario Government for its weak AODA enforcement. Contrary to the Committee’s characterization of events, Minister after Minister responsible for the AODA has publicly said that their primary focus is on doing exactly what the Committee proposed in the passage quoted above, i.e. showing businesses the business case for accessibility. A good example of this is the following passage from the February 26, 2015 interview on CBC Radio Toronto’s flagship Metro Morning program by the previous Liberal Government’s Economic Development Minister Brad Duguid (then responsible for AODA implementation and enforcement):

“[Matt Galloway] But her, her real, her real thrust in this, in the report, is that Ontario’s not moving quickly enough to reach the 2025 goal of full accessibility. I wanna read something to you that one of your predecessors put together, which was Marie Bountrogianni, who, uh, when the legislature passed the disabilities act said, “What was missing in the previous act was enforcement compliance.

When you leave it to the good will of the people, it doesn’t get done.” What’s changed since then?

[Brad Duguid] Well, there- there’s two things. Number one, you can’t enforce that if the businesses aren’t aware of what their responsibilities are. So, the first thing we need to do is make businesses more aware, and we’re doing that through a number of different initiatives. There’s the advertising campaign. We also have a partnership with the Ontario Chamber of Commerce where we’re reaching out to businesses an- and educating them on what they need to do.

Secondly, and this is the key, and when you, and I, I just recently appointed David Onley as our special advisor, and this is something we’re working very, very closely on. We need to make sure that businesses are, are aware of why there’s a competitive advantage for them to become accessible.

We don’t want businesses just to reach a standard, we want them to go beyond the standard and there’s every- there’s a really good business case for businesses across this province to do this. In fact, the Martin Institute indicates that there’s 7.9 billion dollars in our economy if we can become more accessible.

So, that- what I’m saying there is, I don’t want to come in and, and take a really hard approach on businesses and turn them off. What I wanna do is get businesses to embrace what this will do to their bottom line. There’s a really good business case.”

No minister responsible for this legislation has publicly proclaimed a contrary view. No minister coming after Mr. Duguid has ever disagreed with his view, criticized it, or proclaimed a different approach. Certainly, the new Ford Government has not repudiated it.

The Committee’s Phase 2 discussion addresses a criticism at the AODA itself, which should instead be directed at the Accessibility Directorate of Ontario and the Ontario Government. The Committee’s Phase 2 discussion includes:

“The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • Students, many of whom participate in projects such as “mapathons”, design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • Non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • Persons with disabilities and their families or support communities
  • Professional organizations
  • Community volunteers
  • Civil society”

Similarly the Committee’s Phase 2 discussion later states:

“Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the Act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.”

The Committee has commendably identified a legitimate area for improvement, but is identifying the wrong culprit. It is open to the Government to do a far more inclusive job of consulting and including the diverse voices to which the Committee points, in its work on the AODA’s implementation and enforcement. For example, Standards Development Committees could readily engage more such voices in their work developing standards. The Accessibility Directorate of Ontario can and should do much more of this within the ample mandate that the AODA gives it. Nothing in the AODA prohibits the Ontario Government from doing so.

As well, the Committee presents a very good series of suggestions for reform in its Appendix B. No Trusted Authority or other amendments to the AODA or to its current overall structure are needed to implement them. The IASR can and should be amended, such as in ss. 5 and 6, to incorporate the very helpful requirements that the Committee formulated in its Appendix B. With such a revision to the IASR we would be in clear support.

Appendix 1 Excerpts from the Mayo Moran Second Independent Review of the AODA

The 2014 Moran Report included;

“However, the Review also heard considerable discussion about the content of the standards. In particular, members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever. They identified two problems. First, the current standards have serious gaps and deficiencies. And second, important aspects of everyday life fall entirely outside the scope of the current requirements. At the same time, obligated organizations also provided valuable feedback about the content of the current standards and some of the challenges that they pose. Below, I summarize the central themes of the feedback on these issues, including both suggestions about where there may be gaps in the existing standards as well as recommendations for additional standards.

Proposed Revisions to Current Standards

The Review heard many comments that suggested revisions to existing standards. Various disability groups advocated specific changes to the standards to better reflect the needs of their members and clients. More generally, many participants believed that timelines in the standards are too long, several requirements are weak, little is being done to remove existing barriers, and exemptions and exceptions are too broad. One disability stakeholder considered the deficiencies in the IASR so serious that the mandatory review of the Transportation, Employment and Information and Communications standards should begin in 2015 instead of 2016 as currently planned. Many obligated organizations in both the public and private sectors had other concerns, emphasizing that the overall AODA regime is too complex and should be simplified as much as possible.

Members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever.

IMPACT ON SPECIFIC DISABILITIES

The Review was told by some participants that they do not believe that the AODA has been effective in addressing non-visible disabilities, such as mental illness, autism, learning disabilities, traumatic brain injuries and others. They suggested that more extensive training requirements to recognize and respond to the needs of people with these disabilities were essential.

The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards. For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.

Groups supporting people who are deaf or have hearing loss pointed out that the vagueness about support persons leaves doubt about an organization’s responsibility to provide interpreters or other communication facilitators. Individuals with speech and language disabilities not caused by hearing loss believe standards should more fully outline requirements for communications assistance, especially in essential services.

People with environmental sensitivities and multi-chemical sensitivities want to see these conditions explicitly included in the definition of disability. Participants with episodic or fluctuating disabilities likewise urged a direct reference to their type of disability in the definition. Representatives of people with bowel disorders called for a network of open, accessible public toilets to be established through the Customer Service, Transportation and Design of Public Spaces standards.

The Review was told that the AODA has not been effective in addressing non-visible disabilities.

EXEMPTIONS AND EXCEPTIONS

The existing regulations set different requirements based on the size of the organization. Where the line should be drawn between small and large businesses was a major source of contention in the feedback received by this Review. In fact, some felt it was a mistake to create any exemptions on the basis of the number of employees, as very small organizations can have huge revenue streams.

At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.

The Customer Service standard currently sets the threshold for certain requirements at 20 employees rather than 50. Currently, organizations with under 20 employees are exempt from requirements to prepare documents on their accessibility policies – including policies on service animals and support persons and the handling of service disruptions – and to produce copies on request, as well as from obligations to document training policies, keep training records and file accessibility reports. In its review of the Customer Service standard – which coincided with this Review – ASAC proposed to raise that threshold to 50 employees instead of 20 to align with the IASR, and several disability groups voiced their concerns about this proposal to this Review.

In addition to the exemptions based on organizational size, the Review also received some feedback on several other provisions that were questioned including the following:

  • Exemption of owner-operated sole proprietorships from the entire IASR as they have no employees.
  • Exclusion of the entire private sector from the duty to incorporate accessibility criteria and features when acquiring goods, service and facilities.
  • Exclusion of products and product labels from the Information and Communications standard.
  • Exclusion of unconvertible information from accessible format requirements, which some described as a loophole that should be closed.
  • Exemptions for all organizations except the provincial Government from the website provisions on live captioning and pre-recorded audio descriptions.

As well, disability stakeholders took issue with various exceptions that are less exacting than undue hardship under the Human Rights Code. This issue will be addressed later in the section on the AODA’s Relationship with Other Legislation.

GAPS IN STANDARDS

Beyond exemptions and the impact on certain disability groups, participants highlighted a host of gaps in existing standards and put forward numerous suggestions to close them.

Information and Communications

One of the gaps identified that was among the most serious sources of concern was the exclusion of extranets from the website standards. An extranet is a controlled extension of an organization’s internal network that allows access to outside users over the internet. It was pointed out that the standards development committee expected everything behind the log-in to be covered. The fact that this was not done is seen as a step backward.

Unless Ontario keeps standards in line with evolving information technology, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

The importance of keeping the Information and Communications standards in line with evolving international standards was also stressed. Unless a mechanism is created to do this, the Review was told, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

Some participants raised concerns about the provision of accessible formats for various purposes “on request”. They proposed that all educational resources should be accessible, with no need for a request. On the other hand, some post-secondary stakeholders pointed out that this might not be a wise use of resources as there may turn out to be no demand for many of the materials.”

[1] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, S.8(1). Retrieved at http://www.legislation.gov.uk/uksi/2018/952/made#f00004; Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, S.7(1). Retrieved at http://www.legislation.gov.uk/eudr/2016/2102/contents

[2] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, s.3; Directive (EU) 2016/2102 of the European Parliament and of the Council, Article 7(1).

[3] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, section 4(a)(b).

[4] Integrated Accessibility Standards, s.9(3)(a).



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AODA Alliance Finalizes and Makes Public Its Proposed Framework for the Promised Education Accessibility Standard – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

AODA Alliance Finalizes and Makes Public Its Proposed Framework for the Promised Education Accessibility Standard

October 10, 2019

          SUMMARY

It’s done, and it’s public! Below we set out our finished product, the AODA Alliance’s Proposed Framework for the Promised AODA Education Accessibility Standard. We are now submitting it to the K-12 Education Standards Development Committee of which AODA Alliance Chair David Lepofsky is a member.

We are encouraging that Standards Development Committee to use this Framework to help with its work, as it prepares recommendations to the Ontario Government on what the Education Accessibility Standard should include. In the next few months, that Standards Development Committee will make public the draft recommendations that it is now preparing. That Committee is finally back at work after the Ford Government left it frozen for well over a year. The AODA Alliance led the campaign to get that committee and all Standards Development Committees unfrozen and back to work.

We and the public will be able to give our input on them. We hope that by offering this proposed Framework now, we can help the Standards Development Committee with its important work.

We thank all of those who took the time to give us their helpful and thoughtful feedback and suggestions after they took the time to read our draft of this proposed Framework. This finished product includes all the ideas that were in the draft. A number of great new ideas were added, thanks to the excellent and extremely helpful feedback that we received.

We were so gratified to receive such warm and supportive feedback for the draft that we circulated for public comment. This finished product reflects feedback we have received and research we have conducted over quite a stretch of time.

We always welcome your feedback. Email us at [email protected]

Today, as we make this important proposed Framework, we are sadly reminded that there have now been 253 days since the Ford Government received the final report of the independent review of the AODA’s implementation prepared by former Ontario Lieutenant Governor David Onley. We are still awaiting a plan from the Government on how it will implement that report.

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Proposed Framework for the K-12 Education Accessibility Standard

October 10, 2019

Prepared by the Accessibility for Ontarians with Disabilities Act Alliance

Introduction — What is This Proposed Framework?

In Ontario, over a third of a million students with disabilities face too many barriers at all levels of Ontario’s education system. For years, the AODA Alliance led a campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act (AODA). In 2018, two committees were appointed by the Ontario Government to make recommendations on what the Education Accessibility Standard should include: The K-12 Education Standards Development Committee is responsible for making recommendations on what that accessibility standard should include to address barriers in Ontario’s publicly-funded schools from Kindergarten to Grade 12. The Post-Secondary Education Standards Development Committee was appointed to make recommendations for what that accessibility standard should include to address barriers in Ontario’s post-secondary education institutions, e.g. colleges and universities.

Under the AODA, an accessibility standard is supposed to spell out the barriers that are to be removed or prevented, what must be done to remove or prevent them, and the time lines required for these actions.

In this Framework, the AODA Alliance outlines the key ingredients and aims for the promised Education Accessibility Standard. Where we state that “A school board should…” or similar wording, we mean by this that the Education Accessibility Standard should include a provision that requires the school board to take the step that we describe.

We hope that this Framework will assist the two Standards Development Committees. It predominantly focuses on the K-12 school context. However, its contents are readily transferrable to the post-secondary education context.

It is essential that the promised Education Accessibility Standard include the key ingredients that the AODA requires. It must identify the barriers to be removed and the actions required to remove them. It must set out deadlines for an obligated organization to take the steps set out in it.

To do this, it must do much more than to require organizations to have a policy on accessibility and to train its employees on that policy.

Ultimately, it is hoped that the promised Education Accessibility Standard will achieve a change in the culture regarding accessibility within education organizations, including a shift from a more traditional special education mentality to one of inclusion and accessibility. To achieve such a change within an organization, it is first necessary to change its practices on accessibility. From those changes in the organization’s actions on accessibility will flow a change in its culture regarding accessibility. Therefore, the Education Accessibility Standard should be directed to change actions on accessibility.

The job of a Standards Development Committee is to recommend the contents of an AODA accessibility standard. If a Standards Development Committee chooses to also recommend some non-regulatory measures, that is beyond the Committee’s core mandate and should not detract from fulfilling that core mandate. For example, the 2018 final recommendations of the Transportation Standards Development Committee largely focused on recommendations of other measures, outside the revision of the 2011 Transportation Accessibility Standard that that Committee was assigned to review. Recommended practices that are not enshrined in an accessibility standard as a regulation, are not binding on school boards and cannot be enforced as an AODA standard.

1. What Should the Long-Term Objectives of the Education Accessibility Standard Be?

#1 The purpose of the Education Accessibility Standard should be to ensure that Ontario’s education system becomes fully accessible to all students with all kinds of disabilities by 2025, the AODA’s deadline, by requiring the removal and prevention of the accessibility barriers that impede students with disabilities. It should aim to ensure that students with disabilities can fully participate in, fully benefit from and be fully included in all aspects of Ontario’s education system on a footing of equality in the least restrictive environment consistent with a student’s and their parents’ wishes. It should provide a prompt, accessible, fair, effective and user-friendly process to learn about and seek individual placements, programs, services, supports and accommodations tailored to the individual needs of each student with disabilities. It should aim to eliminate the need for students with disabilities and their families to have to fight against education accessibility barriers, one at a time, and the need for educational organizations to have to re-invent the accessibility wheel one school board, college, university or educational program at a time.

2. A Vision of An Accessible Education System

The Education Accessibility Standard should begin by setting out a vision of what an accessible education system should include. An accessible education system at the K-12 level should include the following:

#2.1 It would be designed and operated from top to bottom for all of its students, including students with all kinds of disabilities, as protected by the Ontario Human Rights Code and/or the Canadian Charter of Rights and Freedoms. It would not in any way restrict its programs, services, supports, accommodations or other opportunities only to those students whose disability falls within the outdated and narrow definition of “exceptionality” in Ontario’s Education Act and regulations. Students with low-incidence disabilities would not be relegated to a second-class status within the administration of Ontario’s education system as compared to those with high-incidence disabilities.

#2.2 The education system would no longer be designed and operated from the starting point of aiming to serve the fictional “average” student. It would not treat or label students with disabilities as “exceptions” or “exceptional”. It would not call their needs “special” or their disabilities “exceptionalities.” Their services, supports and needs would not be conflated with or funded from the same budget pot as the services and needs of gifted students who have no disability.

#2.3 The built environment in the education system, such as schools themselves, their yards, playgrounds etc., and the equipment on those premises (such as gym and playground equipment) would all be fully accessible to people with disabilities and would be designed based on the principle of universal design. Where school programs or trips take place outside the school, these will be held at locations that are disability-accessible.

#2.4 Courses taught to students, including the curriculum and lesson plans, as well as informal learning activities, would fully incorporate principles of Universal Design in Learning (UDL), and where needed, differential instruction, so that they are inclusive for students with disabilities.

#2.5 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them and would be available in accessible formats when needed.

#2.6 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and would fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.

#2.7 Inclusion and Universal Design in Learning would extend beyond formal classroom learning to other activities connected with education or the school more generally, such as the playground at recess, social and recreational activities, field trips, extra-curricular activities, and experiential learning opportunities.

#2.8 Students with disabilities would have prompt access to the up-to-date adaptive technology and specialized supports they need, and training on how to use it, to best enable them to fully take part in and benefit from education and other school-related programming. Students with disabilities would be able to bring to school and take home the accessibility technology and supports from which they benefit. For example, they would have the right to bring a qualified service animal to school with them.

#2.9 Teachers and other educational staff would be fully trained to serve all students, and not just students who have no disabilities. They would be fully trained in such things as Universal Design in Learning and differential instruction. “Special Education” teachers and departments would not serve as a silo for those who would teach students with disabilities.

#2.10 Options for placement and programming at school would be sufficiently diverse and flexible to accommodate a wide spectrum of learning needs and styles, rather than tending to be one-size-fits-all for students with specified kinds of disabilities.

#2.11 Tests and other forms of evaluation in school education would be designed based on principles of universal design and Universal Design in Learning, so that they will be barrier-free for students with disabilities and will provide a fair and accurate assessment of their progress.

#2.12 Classroom teachers and other front-line teaching staff would be provided sufficient staff support, and, where needed, additional specialized training, to enable them to effectively serve students with disabilities in their classes.

#2.13 Students with disabilities would be assured the opportunity to receive an equal education in the least restrictive environment, consistent with the student’s/parents’ wishes.

#2.14 Students with disabilities would encounter a welcoming environment at school and in class to facilitate their full participation, and a welcoming environment in which they can seek and receive accommodations for their disabilities. Students without disabilities, teaching staff and other school staff, as well as other parents in the school context, would be welcoming and inclusive towards students with disabilities. To achieve this, among other things, all students will receive positive curriculum content on the importance of inclusion and accessibility for students with disabilities. Bullying, teasing, stereotyping, patronization and the soft bigotry of low expectations will be eliminated from the school environment.

#2.15 Admission criteria, admission tests or other admission screening to get into any specialized education programming would be barrier-free for students with disabilities.

#2.16 Students with disabilities and their parents/guardians would have prompt, effective and easy access to user-friendly information in multiple languages about the educational options, programs, services, supports and accommodations available for them and their disability, and about the process for them to seek these. Students with disabilities and their parents would be given a timely opportunity to observe options for placement, programming and other educational services and supports, when considering which would be most suitable for that student, and before they need to make any decisions about this.

#2.17 Students with disabilities and their families would be kept regularly informed about the effectiveness of the placement, program, services, supports and accommodations that the student is receiving.

#2.18 The school board’s process for deciding on the placement, programming, services, supports and accommodations for students with disabilities would be fair, open, transparent and collaborative, in which the student and their family can fully participate. For example, before an Individual Education Plan (IEP) is written, the student and parents/guardians would be able and invited to take part in an Individual Education Plan meeting with school officials, at which the Individual Education Plan would be jointly written. At each stage of the process, the student and parents would be given clear user-friendly “rights advice” on how the process works, and on their rights in the process.

#2.19 Once a student has an established Individual Education Plan at one school, that plan would be portable, and would carry forward should that student move to another school at the same or a different school board.

#2.20 A decision about a student’s placement would not be made until assessments and decisions are reached about the needs and most appropriate program, services, supports and accommodations for that student with disabilities.

#2.21 Where a student with a disability or their family believes that the school or school board is not effectively meeting the student’s disability-related needs, (e.g. by not including a desired item in the Individual Education Plan), or if the student or family believes that the school board is not providing an educational program, service, support or accommodation which it had agreed to provide, the student and family would have access to a prompt, fair, open and arms-length review process, including an offer of a voluntary Alternative Resolution Process if needed. It would be conducted by someone with expertise in the education of students with disabilities who was not involved in the original decision or activity, and who does not oversee the work of those involved in the student’s direct education.

#2.22 The mandatory minimum qualifications and required training for specialized support educators (such as teachers of the visually impaired) would be modernized and upgraded where needed to ensure that they are qualified to meet the specialized needs of their students and of the other teachers whom they support.

#2.23 There would be no bureaucratic, procedural or policy barriers that would impede the effective placement and accommodation of individual students with disabilities at all levels of Ontario’s education system.

#2.24 Students with disabilities would have a right to attend school for the entire school day, and the right to not be excluded from school by their school or school board for all or part of a school day, directly or indirectly because of their disability. Schools would not systemically or disproportionately exclude students with disabilities from school for either all or part of the school day (e.g. because a special needs assistant is away from school).

#2.25 Major new Government strategies in Ontario’s education system would be proactively designed from the start to fully include the needs of students with disabilities. For example, if the Ontario Government were to announce a new math strategy for Ontario’s schools, it would, among other things, include an effective strategy to address disability barriers that students with disabilities face in math education.

#2.26 Those responsible at the provincial and local school board levels for leading, overseeing and operating Ontario’s education system would have strong and specific requirements to address disability accessibility and inclusion in their mandates and would be accountable for their work on this. This responsibility will not be relegated to and segregated in special education bureaucratic silos.

#2.27 The education system would provide disability-related funding to a school board based on the actual number of students with disabilities at that board, and not on a provincial formula that merely tries to estimate how many should be at that school board.

3. General Provisions that the Education Accessibility Standard Should Include

#3.1 This proposed accessibility standard should cover and apply to all education programs and opportunities for students at any school board that receives public funding in Ontario.

#3.2 Where this accessibility standard refers to “students with disabilities “, this should include any student who has any kind of disability, including, for example, any kind of physical, mental, sensory, learning, intellectual, mental health, communication, neurological, neurobehavioural or other kind of disability within the meaning of the Ontario Human Rights Code or the Accessibility for Ontarians with Disabilities Act . It should not be limited to the much more restricted definition of an “exceptional pupil” or a student with an “exceptionality” in the Education Act and regulations and policy related to them, or who is therefore treated under Ontario’s Education Act, regulations, or policy as a “student with special education needs”.

#3.3 Each school board should be required to establish a permanent committee of its trustees to be called the “Accessibility Committee”. Other members should include the school board’s chair or vice chair. The chair and vice chair of the school board’s Special Education Advisory Committee should sit as ex officio members of this committee, whether or not they are trustees of the school board. The school board’s Accessibility Committee should have responsibility for overseeing the school board’s compliance with the Accessibility for Ontarians with Disabilities Act and with the requirements of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms in so far as they guarantee the right of students with disabilities to fully participate in and fully benefit from the education programs and opportunities that the school board provides.

#3.4 Each school board should be required to establish in each school or related cluster of adjacent schools, a School Accessibility Committee. It should include representatives from the school’s teachers, management, staff, students and parents/guardians, including representation where possible of people with disabilities from these groups. Its mandate should be to identify barriers in the school and its programs and to make recommendations for accessibility improvements to be shared with the school board administration and with the trustees’ Accessibility Committee.

#3.5 Each school board should be required to establish or designate the position of Chief Accessibility/Inclusion Officer, reporting to the Director of Education, with a mandate and responsibility to ensure proper leadership on the school board’s accessibility and inclusion obligations under the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Accessibility for Ontarians with Disabilities Act, including the requirements set by this accessibility standard. This responsibility may be assigned to an existing senior management official.

#3.6 Each school board should set up and maintain a network of teachers and other staff with disabilities, and a network of students with disabilities, to get input on accessibility issues at the school board.

#3.7 Beyond the specific measures on removing and preventing barriers set out in this accessibility standard and in other AODA accessibility standards, each school board should be required to systematically review its educational programming, services, facilities and equipment to identify recurring accessibility barriers within that school board that can impede the effective participation and inclusion of students with disabilities. A comprehensive plan for removing and preventing these accessibility barriers should be developed, implemented and made public with clear time lines, clear assignment of responsibilities for action, monitoring for progress, and reporting to the school board’s trustees , the school board’s accessibility committee, and to the school board’s Special Education Advisory Committee. It should include actions on barriers identified by the local School Accessibility Committees established under this standard. This plan should aim at all accessibility barriers that can impede students with disabilities from full inclusion in the education and other programs and activities at that school board, whether or not they are specifically identified in the Education Accessibility Standard or in any other specific accessibility standards enacted under the AODA.

#3.8 Each school board should be required to develop, implement and monitor a comprehensive new Inclusion Strategy for students with disabilities, whether or not their disability is identified as an “exceptionality” under Ontario’s special education laws. Under this strategy, where a school board proposes to refuse to provide a placement for a student with a disability in a regular class setting with needed accommodations, supports or services, over the objections of the student or of their family, on the grounds that the school board believes that it cannot serve that student in a regular classroom setting, the principal should be required to give written notice of this to the family, with reasons, and to tell the family that it has the right to promptly receive the principal’s reasons in writing. But this should not be reason to stop or withdraw any services or support from the student until a meeting has been held to discuss this issue.

#3.9 Each school board should have an explicit duty to create a welcoming environment for students with disabilities and their families, including other family members with disabilities, to seek accommodations for their disabilities.

4. The Right of Parents, Guardians and Students with Disabilities to Know About Disability-Related Programs, Services, and Supports, and How to Access Them

Barrier: Parents, including parents with disabilities, too often find it difficult to get easily accessed and accessible information from their school board and from the Ontario Government on education options, services and supports available for students with disabilities and how to access them.

#4.1 Each school board should provide parents of students with disabilities, and where applicable, students with disabilities themselves, with timely and effective information, in accessible formats, on the available services, programs and supports for students with disabilities (whether or not they are classified as students with special education needs under the Education Act and regulations). Each school board should ensure that parents, guardians, and where practicable, students are informed, as early as possible, in a readily-accessible and understandable way, about important information such as:

  1. a) What “special education” is and who is entitled to receive it.
  1. b) That the school board has a duty to ensure that a student with a disability has the right to full participation in and full inclusion in all the school board’s education and other programming, and to be accommodated in connection with those programs under the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms, whether or not the student is classified as a student with special education needs under Ontario’s Education Act and regulations.
  1. c) The menu of options, placements, programs, services, supports and accommodations available at the school board for students with disabilities, whether or not they are classified as students with special education needs under the Education Act and regulations.
  1. d) What persons and what office to approach at the school board to get this information, to request placements, programs, supports, services or accommodations for students with disabilities, whether or not they are classified as students with special education needs, or to raise concerns about whether the school board is effectively meeting the student’s education needs.
  1. e) The processes and procedures at the school board for a parent, guardian or student to request or change placements, programs, services, supports or accommodations for students with disabilities, whether or not they are classified as students with special education needs. This includes formal legislated processes like the Identification and Placement Review Committee (IPRC) and the development and implementation of the students Individual Education Plan (IEP). It also includes other informal processes like requests for programs, services, supports and accommodations that are not covered in an IPRC or IEP.

#4.2 Without restricting the important information that must be made readily available, each school board should ensure, among other things, that:

  1. a) Parents and guardians of students with disabilities can easily find out and, where necessary, visit different placement, program, service and support options for a student with a disability, whether or not they are classified as a student with special education needs, before the parent, guardian or, where practicable, the student must take a position on what placement, program or services should be provided to that student.
  1. b) Parents and guardians of students with disabilities, and, where practicable, students with disabilities themselves, should be given clear, understandable explanations of their rights in the school system, including but not limited to the special education process. For example, when a school board presents parents or guardians with a proposed IEP, the school board should explain to them that they need not agree to and sign the proposed IEP, that the school board is open to consider the family’s suggestions for changes to the proposed IEP, and the avenues by which parents or guardians can seek to get the school board to make changes to the proposed IEP.

#4.3 Each school board should develop, implement and make public an action plan to substantially improve its provision of the important information, described above, to all parents and guardians of that school board’s students, and to all students where practicable, and especially to parents and guardians of students with disabilities:

  1. a) This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational and other opportunities available at the school board.
  1. b) A school board should not simply leave it to each principal or teacher to make sure that this important information is effectively provided. Each school board should instead have an effective system in place to ensure that this information actually reaches all parents and guardians, and where applicable, students.
  1. c) Each school board should ensure that all of this important information is fully and readily accessible in a prompt and timely way to all parents, guardians and students, in accessible formats and in jargon-free plain language, in a diverse range of languages. It should be easy to find this information. Among other things, this information should be posted on the school board’s website, in a prominent place that is easy to find, with a link on the school board’s home page. A school board should not simply rely on its website to share this information since this will not serve those families that do not have internet access.
  1. d) Among other things, each school board should send home an information package to all families at the start of each school year, and not merely to families of those students who are already being identified or served as having special education needs or disabilities. This package should include, among other things, a Question and Answer format to help families see how this information could relate to the student in their family.
  1. e) Each school board should also create a user-friendly package of information to be provided to families who first approach a school board about the possibility of enrolling a child at that school board, e.g. when they register for kindergarten. This should help enable a family to know whether they should be trying to access disability-related services and supports.
  1. f) Each school board should periodically host events at local schools to help families learn how to navigate disability-related school board processes like the Individual Education Plan and the Identification and Placement Review Committee processes. Where possible these should be streamed online and archived online as a resource for families to watch online.

5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns About a School Board’s Accommodation of the Education Needs of Students with Disabilities

Barrier: Lack of sufficient, easily-accessed and fair processes at each school board to enable students with disabilities and families to have effective input into the placement and accommodation of the student, and for raising disability-related concerns.

The procedures required by the Education Act and regulations for identifying and accommodating the needs of students with disabilities are out-of-date. They are insufficient to ensure that the needs of students with disabilities are effectively met.

#5.1 Each school board should establish and maintain an effective process for parents and guardians of students with disabilities, and where applicable, the student themselves, to effectively take part in the development and implementation of a student’s plans for meeting and accommodating their disability-related needs, including (but not limited to) their Individual Education Plan (IEP).

#5.2 As part of this process, parents and guardians of students with disabilities, and where practicable, the student, should be invited to take part in a joint school team student accommodation/IEP development meeting, where accommodation plans will be made and where the IEP will be written. The school board should bring to the table all key professionals who can contribute to this. The family should be invited to bring to the table any supports and professionals that can assist the family. Parents should have the right to bring with them anyone who can assist them in advocating for their child. Parents/families should be given a wide range of options for participating e.g. in person or by phone. They should be told in advance who will attend from the school board. Any proposal for accommodations including a draft IEP should include a summary of key points to assist families in understanding them.

#5.3 If a school board refuses to provide an accommodation, service, or support for a child’s disability that a parent, guardian, or where appropriate, the student requests, or if the school board does not provide an accommodation or support that it has agreed to provide, the school board should, on request, promptly provide written reasons for that refusal. It should let the family and student know that they can request written reasons.

#5.4 If parents and guardians of students with disabilities, and where applicable, the student, disagree with any aspect of the proposed supports, services or accommodations including (but not limited to) the proposed IEP, or if the student or their family believe that the school board has not provided a service, accommodation or support that the school board has agreed to provide, the school board should make available a respectful, non-adversarial internal review process for hearing and deciding on the family’s concerns. The K-12 Education Accessibility Standard should set out the specifics of this review process. This school board review process should include the following:

  1. a) It should be very prompt. Arrangements for a student’s accommodations, including an IEP, should be finalized as quickly as possible, so that the student’s needs are promptly met.
  1. b) No proposed services, supports or accommodations that the school board is prepared to offer should be withheld from a student pending a review. The family should not feel pressured not to seek this review, lest the child be placed in a position of educational disadvantage during the review process. In other words, a family should not fear that if they launch a review, the student will suffer because the school board will not provide an accommodation or service that the school board has offered, while the review is pending.
  1. c) The review process should be fair. The school board should let the family know all of its issues or concerns with a family’s proposal regarding the student’s accommodations, including the contents of the IEP. The family should be given a fair chance to express its concerns and recommendations regarding the student’s accommodations’, including in the IEP.
  1. d) The review should be by a person or persons who are independent and impartial. They should have expertise in the education of students with disabilities. They should not have taken part in any of the earlier discussions or decisions at that school board regarding the services, supports or accommodations or IEP for that child.
  1. e) At the review, every effort should be made to mediate and resolve any disagreements between the family and the school board. If the matter cannot be resolved by agreement, there should be an option for the school board or the Ministry of Education to appoint a person or persons who are outside the school board to consider the review, along prompt time lines.
  1. f) At the review, written reasons should be given for the decision, especially if any of the family’s requests or concerns are not accepted.
  1. g) If, after receiving the review’s decision and reasons, the family wishes to present any new information, they should be able to ask for the review to be reconsidered. This should be along short time lines.
  1. H) After the review is decided, if the family is not satisfied, they should be able to bring their concerns regarding the proposed accommodations including any IEP to a designated senior official at the school board with authority to approve the requested accommodations, for a further review.

#5.5 Each school board should notify parents and guardians who themselves have a disability that they have a right to have their disability-related needs accommodated in these processes, so that they can fully participate in them. For example, they should be notified that they have a right to receive any information or documents to be used in any such meeting or process in an accessible format.

#5.6 Where a student with a disability is being accommodated in a school covered by this accessibility standard, and the student transfers to another school in that school board or to another school board, that student should have a right to have the same accommodations maintained at the new school or school board. If the school board of the school to which the student transfers proposes to reduce those accommodations or supports, they should be maintained until and unless, through the procedures set out in this accessibility standard, the school board has justified a reduction of those accommodations.

6. Expediting the Early Identification and Assessment of Students with Disabilities’ Needs

Barrier: Students with disabilities can face delays and bureaucratic impediments to early and timely professional assessment, where needed, of their disability-related needs.

#6.1 The Education Accessibility Standard should require measures to tear down administrative, bureaucratic and other barriers to reduce delays for getting psychological and other educational assessments for the identification of disability related needs.

7. Ensuring a Fully Accessible Built Environment at Schools

Barrier: Too often, the built environment where education programming is offered have physical barriers that partially or totally impede some students with disabilities from being able to enter or independently move around.

The Ontario Building Code and existing accessibility standards do not set out modern and sufficient accessibility requirements for the built environment in Ontario. Moreover, the Ontario Building Code is largely if not entirely designed to address the needs of adults, not children. The Ontario Government has no accessibility standard for the built environment in schools, whether old or new schools. The Ontario Government has not agreed to develop a Built Environment Accessibility Standard or to substantially strengthen the accessibility provisions in the Ontario Building Code.

It is thus left to each school board to come up with its own designs to address accessibility in the built environment in schools and other school board locations. This is highly inefficient and wasteful. It allows public money to be used to create new barriers against people with disabilities and to perpetuate existing barriers.

#7.1 The K-12 Education Accessibility Standard should set out specific requirements for accessibility in the built environment in schools and other locations where education programs are to be offered. These should meet the accessibility requirements of the Ontario Human Rights Code and the Charter of Rights. They should meet the needs of all disabilities, and not only mobility disabilities. These should include:

  1. a) Specific requirements to be included in a new school to be built.
  1. b) Requirements to be included in a renovation of or addition to an existing school, and
  1. c) Retrofit requirements for an existing school that is not slated for a major renovation or addition.

#7.2 Each school board should develop a plan for ensuring that the built environment of its schools and other educational facilities becomes fully accessible to people with disabilities as soon as reasonably possible, and in any event, no later than 2025. As part of this:

  1. a) As a first step, each school board should develop a plan for making as many of its schools disability-accessible within its current financial context. Accessibility does not only include the needs of people with mobility disabilities. It includes the needs of people with all disabilities, for example people with vision and/or hearing loss, autism, or mental health disabilities.
  1. b) Each school board should identify which of its existing schools can be more easily made accessible, and which schools would require substantially more extensive action to be made physically accessible. An interim plan should be developed to show what progress towards full physical accessibility can be made by first addressing schools that would require less money to be made physically accessible, taking into account the need to also consider geographic equity of access across the school board.
  1. c) When designing a new school or managing an existing school, wherever possible, a quiet room should be assigned in a school facility to assist with learning by those students with disabilities who require such an environment. For example, when a school board is deciding what to do with excess building capacity, it should allocate unused or under-used rooms as quiet rooms whenever possible.

#7.3 When a school board seeks to retain or hire design professionals, such as architects, interior designers or landscape architects, for the design of a new school or a existing school’s retrofit or renovation, or for any other school board construction or other infrastructure project, the school board should include in any Request for Proposal (RFP) a mandatory requirement that the design professional must have sufficient demonstrated expertise in accessibility design, and not simply knowledge about compliance with the Ontario Building Code or the AODA. This includes the accessibility needs of people with all kinds of disabilities, and not just those with mobility impairments. It includes the accessibility needs of students and not just of adults.

#7.4 When a school board is planning a new school, or expanding or renovating an existing school or other infrastructure, a qualified accessibility consultant should be retained by the school board (and not by a private architecture firm) to advise on the project from the outset, with their advice being transmitted directly to the school board and not only to the private design professionals who are retained to design the project. Completing the 8-day training course on accessibility offered by the Rick Hansen Foundation should not be treated as either necessary or sufficient for this purpose, as that course is substantially inadequate and has significant problems.

#7.5 A committee of the school board’s trustees and the school board’s Special Education Advisory Committee should be required to review design decisions on new construction or renovations to ensure that accessibility of the built environment is effectively addressed. A schools School Accessibility Committee should also be involved in this review.

#7.6 Where possible, a school board should not renovate an existing school that lacks disability accessibility, unless the school board has a plan to also make that school accessible. For example, a school board should not spend public money to renovate the second storey of a school which lacks accessibility to the second storey, if the school board does not have a plan to make that second storey disability-accessible. Very pressing health and safety concerns should be the only reason for any exception to this.

#7.7 When a school board decides which schools to close due to reduced enrollment, a priority should be placed on keeping open schools with more physical accessibility, while a priority should be given to closing schools that are the most lacking in accessibility, or for which retrofitting is the most costly.

#7.8 Each school board should only hold off-site educational events at venues whose built environment is accessible.

8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and internal or external websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

#8.1 Each school board should ensure that:

Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.

  1. a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  1. b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  1. c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.
  1. d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  1. e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

#8.2 The Ministry of Education and each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased either by a school board, or by the Ministry for use by school boards, unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board or the Ministry.

9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning

Barrier: Too often, the curricula and lesson plans used in Ontario schools were not designed based on principles of accessibility and Universal Design in Learning.

#9.1 The Education Accessibility Standard should require that the Ministry of Education and each school board, when setting requirements for or designing school curriculum, shall ensure that it incorporates universal design in learning to make it accessible to students with disabilities.

Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities. Teacher’s colleges and other programs that are publicly funded to train professionals who will work with students in Ontario schools are therefore creating new generations of barriers that will impede students with disabilities.

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are already working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

#9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.

#9.3 Each school board should ensure that all teachers and teaching staff understand, and effectively and consistently use, principles of Universal Design in Learning (UDL), and differentiated instruction, when preparing and implementing lesson plans and other educational programming, to effectively address the spectrum of different learning needs and styles. For example:

  1. a) This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
  1. b) Each school board should develop, implement and monitor a comprehensive plan to train its teachers, other teaching staff, teaching coaches and principals on using UDL and differentiated instruction principles when preparing lesson plans and teaching, in order to effectively meet the spectrum of different learning needs and styles. The Ontario Government should be required to provide a model program for this training which each school board can use.
  1. c) Each school board should include knowledge of UDL and differentiated instruction principles as an important criterion when recruiting or promoting teachers, other teaching staff and principals.
  1. d) Each school board should ensure that teachers are provided with appropriate resources and support to successfully implement the UDL training. Each school board should monitor how effectively UDL and differentiated instruction are incorporated into lesson plans and other teaching activities on the front lines.
  1. e) Each school board should review any curriculum, textbooks and other instructional materials and learning resources used in its schools to ensure that they incorporate principles of UDL.
  1. f) Each school board should create and implement a plan to ensure that teachers in the areas of science, technology, engineer and math (STEM) have resources and expertise to ensure the accessibility of STEM courses and learning resources.
  1. g) Each school board should provide teaching coaches with expertise in UDL to support teachers and other teaching staff.
  1. h) Similarly, specialized training should be included for those who teach sex education to ensure that it includes disability-related sex education.
  1. i) The Ministry of Education should create templates or models for the foregoing training so that each school board does not have to reinvent the wheel in this context.

#9.4 Concentrated requirements to require the removal and prevention of workplace barriers at school boards impeding teachers and other school staff with disabilities would have the side-benefit of removing and preventing barriers that impede students with disabilities, such as specific measures to ensure that accessible student placements are provided in Ontario schools for teachers and other teaching staff with disabilities during their training in teacher’s college and other post-secondary programs.

10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities

Barrier: Lack of sufficient training requirements for some education professionals who specialize in supporting the education needs of students with disabilities.

Ontario does not currently ensure that all professionals who are employed to support the education of students with disabilities will have sufficient qualifications to do so. For example, Ontario’s leading organization of parents of children with vision loss, Views for the Visually Impaired, has pointed out to the Ontario Government and the Ontario College of Teachers that the requirements to qualify to serve as a “teacher of the visually impaired” (TVI) in Ontario are substantially inadequate. They are much lower than in some other places in Canada and elsewhere. A teacher employed to teach braille to a blind child in Ontario need have no prior hands-on experience ever training a blind child to read braille. They need not ever previously even have observed another TVI teaching braille to a blind child.

#10.1 The Education Accessibility Standard should require sufficient training for professionals who support the education of students with disabilities.

11. Removing Attitudinal Barriers Against Students with Disabilities

Barrier: Stereotypes, lack of knowledge and other attitudes among some teachers, principals, other school staff, other students and some families, that do not recognize the right and benefits of students with disabilities to get a full and equal education.

#11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.

#11.2 Each school board should develop and implement human resources policies targeted at full accessibility and inclusion, such as:

  1. a) Making knowledge and experience on implementing inclusion an important hiring and promotions criterion especially for principals, vice-principals and teaching staff.
  1. b) Emphasizing accessibility and inclusion knowledge and performance in any performance management and performance reviews.

12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other instructional materials and teaching resources that are not provided at the same time in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this provision has not been effective and sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

#12.1 To ensure that instructional materials are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  1. b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  1. c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

#12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.

13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities

Barrier: Schools or school boards that have gym, playground or other equipment that is not designed based on principles of universal design, and that some students with disabilities therefore cannot use, as well as gym, sports and other activities in which students with disabilities can fully participate.

Section 80.18 of the Integrated Accessibility Standards Regulation, as amended in 2012, requires accessibility features to be considered when new outdoor play spaces are being established or existing ones are redeveloped. However, those provisions do not set the spectrum of detailed requirements that should be included. They do not require any action if an existing play space is not being redeveloped. They ultimately leave it to each school board or each school to re-invent the accessibility wheel each time they build or redevelop an outdoor play space. They do not require anything of indoor play spaces or gyms.

#13.1 To ensure that gym equipment, playground equipment and other like equipment and facilities are accessible for students with disabilities, the Education Accessibility Standard should set out specific technical accessibility requirements for new or existing outdoor or indoor play spaces, gym and other like equipment, drawing on accessibility standards and best practices in other jurisdictions, if sufficient, so that each school board does not have to re-invent the accessibility wheel.

#13.2 Each school board should:

  1. a) Take an inventory of the accessibility of its existing indoor and outdoor play spaces and gym and playground equipment, and make this public, including posting it online.
  1. b) Adopt a plan to remediate the accessibility of new gym or playground equipment, in consultation with the school board’s Special Education Advisory Committee and Accessibility Committee, and widely with families of students with disabilities.
  1. c) Ensure that a qualified accessibility expert is engaged to ensure that purchase of new equipment or remediation of existing playground is properly conducted, with their advice being given directly to the school board.

#13.3 Where playground or other school equipment or facilities to be deployed on school property for use by students is funded and/or purchased by anyone other than the school board, the school board should remain responsible for approving the purchases and ensuring that only accessible equipment and facilities are placed on school property for use by students or the public. Decisions over whether accessibility features will be included, or which will be included, should not be left to community groups which may fund-raise for such equipment or facilities.

Barrier: Gym and other physical activity programming at schools may not be designed or operated in a way that allows students with disabilities to fully participate.

#13.4 Each school board should be required to ensure that its gym and other physical activity teachers and coaches have training and access to support information on how to include students with disabilities in these programs.

#13.5 The Ministry of Education should be required to make available to school boards resources and training material on effectively including students with disabilities in gym and other physical activity programming.

14. Ensuring Student Testing/Assessment is Free of Disability Barriers

Barrier: Tests or other performance assessments of students that are not designed in a way that ensures that students with disabilities are fairly and accurately assessed.

Throughout the education system, students take tests and other assessments of their academic performance, whether in specific courses or via system-wide standardized tests. There have been no mandatory provincial requirements of which we are aware to ensure that the ways students’ performance is tested or assessed are barrier-free for students with disabilities, and to ensure a fair and accurate assessment of their performance.

#14.1 The Education Accessibility Standard should set requirements for proper approaches to ensuring tests provide a fair, accurate and barrier-free assessment of students with disabilities, and on when and how to provide an alternative evaluation method.

#14.2 To ensure that a school board fairly and accurately assesses the performance of students with disabilities, each school board should:

  1. a) Have a policy that commits to ensure that testing and other assessments of students’ performance and learning are designed to be barrier-free for students with disabilities.
  1. b) Give its teachers and principals training resources on how to ensure a test is a fair, accurate and barrier-free assessment for students with disabilities in their class, and where needed, how to provide an alternative evaluation method.
  1. c) Monitor implementation of these guidelines.

#14.3 The Ministry of Education should ensure that any provincial standardized testing is fully accessible to and barrier-free for students with disabilities and will provide a fair and accurate assessment of their knowledge and abilities.

15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School

Barrier: Policy and bureaucratic impediments to students with disabilities getting the adaptive technology and other supports they need for school.

There are inconsistent practices around Ontario for making available to students with disabilities the adaptive technology and support services they need, and the training required to be able to effectively use that equipment. For example, the Toronto District School Board does not at all support students with vision loss using Apple products such as the iPhone or iPad. Those products come with leading accessibility features and are widely used by people with vision loss around the world. There are also inconsistent practices on whether a student can take such equipment home for use there or can bring their own adaptive equipment from home for use at school.

#15.1 The Education Accessibility Standard should require that procedural, bureaucratic and other barriers to the acquisition, training and use of needed adaptive equipment and technology at school should be eliminated. It should require the establishment of a prompt, standardized and consistent provincial system for the procurement and deployment of accessible technology that ensures access to the most appropriate and up-to-date technology that is available on the market.

Barrier: Some school boards or schools do not let students with disabilities bring a sufficiently trained service animal to school as an accommodation to their disability, either because the school board or school does not allow for this or lacks a proper policy to allow for this.

Some students on the autism spectrum and their families in Ontario have reported having difficulties at some school boards with being allowed to bring a service animal to school and have even had to take action before the Human Rights Tribunal against a school board. Others have been able to succeed without barriers in bringing their service animal to school.

#15.2 The Education Accessibility Standard should provide that each school board should ensure that students with disabilities are able to bring a sufficiently trained service animal to school as a disability accommodation. Each school board should respect the student’s rights under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

#15.3 The Education Accessibility Standard should set specific requirements for school board practices in relation to a student bringing a service animal to school. The recent Ministry of Education policy directive to school boards on this topic did not include the important specifics that are needed. Here again, each school board should not have to reinvent the wheel.

#15.4 The Education Accessibility Standard should ensure that there should be no bureaucratic or policy barriers to students with disabilities bringing a sufficiently trained service animal to school. The fair process procedures described in this Framework should apply to such requests.

#15.5 If the school board does not accept at first the sincerity or legitimacy of the student’s request, or the training of the service animal, the school board should immediately notify the student and their family of any and all concerns. The school board should investigate the request, including the student’s benefits from the service animal outside school and in the home, or any other concerns, as well as the experience of other schools or school boards that have allowed students with disabilities to bring service animals to school, before acting on any potential board reluctance or unwillingness to grant the student’s request. If a school board is not prepared to accept a request to be able to bring a service animal to school at first, the school board should undertake a test period of allowing the service animal at school, unless the school board can demonstrate that it would be impossible to conduct such a test period without causing the school board undue hardship. A school board should not refuse a request to bring a service animal to school based on no test period and based on speculative assumptions or stereotypes.

#15.6 The question when dealing with such requests should not be whether the student is doing adequately at school without the service animal. The question should be whether the student could do better at reaching their potential at school if assisted by their service animal. Similarly, the question is not whether the service animal will assist the student in accessing the curriculum. Rather the relevant question is whether the service animal could assist the student with any aspect of student life in the school environment, such as social interaction, independence and self-regulation. In its May 2, 2019 letter to Ontario’s Education Minister, the Ontario Human Rights Commission stated: “We believe that limiting disability accommodation to only “learning needs” is not a proper interpretation of the Code.”

#15.7 Each school board should ensure that principals, teachers, school office staff and families of students with disabilities know about this policy and that no attitudinal barriers impede this accommodation.

#15.8 The preference of some other students or staff with no disability not to have a service animal in class is not a justification for refusing to allow this accommodation for a student with a disability. Such concerns of other students, or of staff should be addressed by making arrangements that allow the student with a disability to bring their service animal to school, while situating any objecting student or staff with no disability at an acceptable distance from them. Notwithstanding anything in such school board policies, nothing may restrict a person with vision loss, student, staff, and parent or otherwise, from being a qualified guide dog with whom they have trained to school.

16. Removing Barriers to Participation in Experiential Learning

Barrier: Experiential learning programs that do not ensure that accessible experiential and inclusive experiential learning placements are made available to students with disabilities, and insufficient supports to help organizations, providing experiential learning placements, to facilitate the placement of students with disabilities.

#16.1 To ensure that students with disabilities can fully participate in a school board’s experiential learning programs, each school board should:

  1. a) Review its experiential learning programs to identify and remove any accessibility barriers.
  1. b) Put in place a process to affirmatively reach out to potential placement organizations in order to ensure that there will be a range of accessible placement opportunities in which students with disabilities can participate.
  1. c) Ensure that its partner organizations that accept its students for experiential learning placements are effectively informed of their duty to accommodate the learning needs of students with disabilities.
  1. d) Create and share supports and advice for placement organizations who need assistance to ensure that students with disabilities can fully participate in their experiential learning placements.
  1. e) Monitor placement organizations to ensure they have someone in place to ensure that students with disabilities are effectively accommodated, and to ensure that effective accommodation was provided during each placement of a student with a disability who needed accommodation.
  1. f) Survey students with disabilities and experiential learning placement organizations at the end of any experiential learning placements to see if their disability-related needs were effectively accommodated.

#16.2 The Ministry of Education should provide templates for these policies and measures. It should also prepare and make available training videos for school boards and organizations offering experiential learning programs to guide them on accommodating students with disabilities in experiential learning placements.

17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities

Barrier: A potential combination of different barriers reviewed in this Framework.

#17.1 The Education Accessibility Standard should set a province-wide standard for ensuring that French immersion programs and other specialized programs are accessible to and effectively accommodate students with disabilities. These programs should be offered in accessible locations. Their instructional materials should be available in accessible formats. Their admission criteria should be screened for any disability barriers.

#17.2 Each school board should develop, implement and monitor a strategy to ensure that French Immersion and other specialized programs are open and accessible to and barrier-free for students with disabilities, including:

  1. a) Identifying what percentage of the students in these programs are students with disabilities, to document any patterns of under-participation.
  1. b) Reviewing the admission process for gaining entry to these programs, to identify possible accessibility barriers.
  1. c) Reviewing the choice of the buildings and classrooms where these programs are to be delivered to ensure that students with disabilities will be able to physically attend these programs.
  1. d) Identifying what efforts the school board now makes to ensure that students with disabilities are included in and accommodated in these programs, and the extent to which UDL and differentiated instruction principles are used in the teaching in these programs.
  1. e) Developing an action plan to address any accessibility and inclusion shortfalls.
  1. f) Actively publicizing to students with disabilities and their families about the opportunities to take part in these programs, and the school board’s readiness to ensure that their accommodation needs will be met.
  1. g) Monitoring the effectiveness of efforts to ensure inclusion and accessibility of these programs for students with disabilities, and report publicly on this, including to school board trustees, to the trustees’ accessibility committee and to the school board’s Special Education Advisory Committee, on an annual basis.

18. Substantially Reducing the Shuffling of Students with Special Education Needs From School to School over Their school Years

Barrier: The school board’s choice of in which schools to locate special education classes or programs for students with disabilities can force too many of these students to have to change the school they attend over their years at school much more than do other students, causing disruption and hardships for the students and their families. This can also make it harder for flexible placements that straddle more than one of these programs or classes.

#18.1 Each school board should be required to develop and implement a strategy to substantially reduce the shuffling of students with disabilities from one school to another over their school years. For example:

  1. a) If a student, attending a school other than their home school, for a special education program or class, is prepared to shift to inclusion in a fulltime regular classroom, then consistent with parental agreement, the student should have the option of remaining at the same school as the special education class, and treating it as their home school.
  1. b) Where possible, the school board should locate in the same school a combination of two special education classes that involve different levels of support. This would enable a student to gradually progress through different levels of special education classes towards a regular class setting in that school, without having to switch schools in order to switch to a different level of special education class. It would also enable a student, where appropriate, to spend part of a school day in one program and another part of the school day in another program, to best and most flexibly meet the student’s needs.
  1. c) Where feasible, if a student with a disability is required to attend a different school than his or her home school in order to take part in special education programming, the family should have the option of having that students’ siblings also attend that school, especially where this will help the student with a disability. Whenever possible, siblings, including those with disabilities, should be able to attend the same school.

19. Transportation for Students with Disabilities

Barrier: Barriers to accessibility of the education programming offered at a student’s local school that necessitates the provision of bus transportation to more distant schools, combined with the failure to ensure that students with disabilities are consistently, reliably and safely bussed to and from school.

The provisions on bus transportation for students with disabilities in s. 75 of the Integrated Accessibility Standards Regulation 2011 (IASR) have not been sufficient to effectively remove transportation barriers facing students with disabilities. Stronger provisions are required. The 2018 recommendations for revisions to the transportation provisions in the IASR do not address or meet this need.

#19.1 The Education Accessibility Standard should provide that where a school board provides bussing or other transportation to students with disabilities in order to enable them to attend school, the school board shall ensure, and shall monitor to ensure that:

  1. a) The school board has individually consulted with each family to identify the accessibility and accommodation needs of the student with disabilities in relation to transportation, and the bus company and driver have been properly trained to accommodate that need.
  1. b) Where the school board or its bussing contractor changes the driver assigned to transport the student, the replacement driver is given the same information and training prior to driving the student, or, in the case of an emergency replacement, as soon as possible.
  1. c) The school board and, where applicable, any contractor it hires, shall retain records of the training provided, including when it was provided and shall make this information public.
  1. d) The school board should have a readily available and reachable official, especially during periods when a student is being transported, to receive and address phone calls, emails and text messages from a family about problems regarding the student’s transportation.
  1. e) The school board should document all complaints reported on transportation services, and the company to which it applies. A summary of these should be provided to all members of the school board including its Special Education Advisory Committee and its Accessibility Committee on a quarterly basis and shall make this public on the school board’s website.
  1. f) The Education Accessibility Standard should make it clear that the fact that the school board has contracted for a private company to provide the student transportation does not remove or reduce the school board’s duties under this accessibility standard or otherwise under the AODA, the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms to ensure that the student has been provided with barrier-free participation in the school board’s educational programs and opportunities. In any contract for bussing, the school board should be required to monitor the bus company for compliance with all obligations regarding bussing, such as the duty to properly train each bus driver on the specific disability-related needs of each passenger with a disability, and to document this training. Each school board should periodically audit the bus companies with whom they contract for compliance, and publicly report on the audit’s results. A bus company’s failure to consistently and reliably meet its obligations should trigger substantial monetary penalties and termination of the contract.

Barrier: Some school boards do not ensure that pick-up/drop locations for student bussing are accessible for parents with disabilities.

#19.2 The Education Accessibility Standard should require that the school board and, where applicable, a bus company with which it contracts, will ensure that pick-up and drop-off locations for a student’s bussing are accessible when needed to accommodate the parents or guardians of students with disabilities.

20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

Barrier: The arbitrary power of school principals to exclude students from school, outside the disciplinary suspension and expulsion power, that disproportionately impacts on students with disabilities.

The Ontario Human Rights Commission has identified as a human rights issue the sweeping and arbitrary power of any school principal to exclude a student from school. Section 265(1) (m) of Ontario’s Education Act provides:

“265. (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher…

… (m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils; …”

This power can be and is misused, especially to keep some students with disabilities away from school. This is made worse by the school board’s power under Ontario regulations to shorten the length of the school day for students with disabilities, even over a parent’s objection. This Framework addresses together the school board’s power to exclude a student from school for an entire day as well as the school board’s power to reduce the length of the school day, whether or not they emanate from the same provisions under Ontario’s Education Act.

#20.1 The Education Accessibility Standard should set specific comprehensive, mandatory requirements on when a school board can exercise any power to refuse to admit a student to school for all or part of a school day. It should have no loopholes that would let a principal or teacher exclude a student informally without complying with these requirements.

  1. a) This should include any time a school board formally or informally asks or directs that a student not attend school, or that the student be removed from school, whether in writing or in a discussion
  1. b) This should include a school board request or direction that a student only attend school for part of the regular school day.
  1. c) This does not include a situation where a family requests that a student be absent from school for all or part of a school day, but the school board is willing to let the student attend school.

#20.2 The school board should be required to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program while away from school. The school board should keep records of and publicly account for its doing so.

#20.3 A refusal to admit should only be imposed when it is demonstrably necessary to protect the health and safety of students at school, and only after all relevant accommodations for the student up to the point of undue hardship have been explored or attempted.

#20.4 A refusal to admit should go no further and last no longer than is necessary. A principal should only resort to a refusal to admit if the principal can demonstrate that the student presents an imminent risk to health or safety which cannot be addressed by lesser measures, such as suspension.

#20.5 If a refusal to admit is to take place, the first resort should be to exclude the student from a specific class, accommodating that student in another class. Only if that can’t be sufficient, should a principal consider excluding the student from that school, accommodating the student at another school. A school board should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school at that school board.

#20.6 The Education Accessibility Standard and policy directives from the Ministry of Education should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.

#20.7 A refusal to admit should not be allowed to last more than five consecutive school days, unless extended by the school board in accordance with this accessibility standard.

#20.8 The burden should be on the school board to justify the refusal to admit. It should not be for the student or the student’s family to justify why the student should be allowed to attend school.

#20.9 When school board staff decide whether to refuse to admit a student, they should take into account all mitigating considerations that are considered when deciding whether to suspend or expel a student.

#20.10 A school board should not refuse to admit a student with a disability on the ground that school board staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.

#20.11 If, when a refusal to admit is to expire, the school board wants to extend it, the school board must justify it. The student’s family need not prove why the student should be allowed to return to school.

#20.12 An extension of a refusal to admit must first consider excluding the student from a single class, and then the option of excluding the student from that entire school, and only as a last resort, excluding the student from all schools at that school board.

#20.13 An extension of the refusal to admit should not be permitted if the school board has not put in place an effective alternative option for the student to receive their education while excluded from school.

#20.14 The Education Accessibility Standard should establish a mandatory fair procedure that the school board must follow when refusing to admit a student. These procedures should ensure accountability of the school board and its employees, including:

  1. a) A student and their families should have all the procedural protections that are required when a school board is going to impose discipline such as a suspension or expulsion.
  1. b) The prior review and approval of the superintendent should be required, before a refusal to admit is imposed. If it is an emergency, then the superintendent should be required to review and approve this decision as quickly afterwards as possible, or else the refusal to admit should be terminated.
  1. c) The superintendent should independently assess whether the school board has sufficient grounds to refuse to admit the student, and has met all the requirements of the school board’s refusal to admit policy (including ensuring alternative education programming is in place for the student).
  1. d) The principal should be required to immediately notify the student and his or her family in writing of the refusal to admit, the reasons for it, and the duration. That should include outlining steps that the school board has taken or will be taking to expedite a student’s return to school and provide an expected timeline for the completion of these steps.
  1. e) The principal should immediately tell the student and the student’s family, in clear and plain language, in writing, what a refusal to admit is, its duration, the reasons for it, the steps the school board is taking to expedite the student’s return to school and time lines for those steps, the school board’s process for reviewing that decision, and the family’s right to appeal it (including how to use that right of appeal). This should be provided in a language that the family speaks. These procedures should again be mandatory any time the school board extends a refusal to admit a student to school.
  1. f) A refusal to admit a student to school should not be extended for an accumulated total of more than 15 days (within a surrounding 30 day period) without the independent review and written approval of an executive superintendent of the school board.
  1. g) No refusal to admit a student to school should be extended for an accumulated total of more than 20 days (within a surrounding 45 day period) without the independent review and written approval of the Director of Education.

#20.15 A fair and prompt appeal process should be provided to the parents/guardian and, where appropriate, the student who was refused admission to school, which includes:

  1. a) The appeal should be to school board officials who had no involvement with the initial decision to refuse to admit that student to school or any extensions of it.
  1. b) The school board should promptly inform the student and the student’s family about how to start an appeal, who decides the appeal, the procedures for the appeal, that the student and family can present reports, support people or experts or any other information they wish, and can have a representative, either a lawyer or other person, to speak for them or assist them with the appeal.
  1. c) The appeal should include an in-person meeting with the student and family.
  1. d) The appeal should be heard and decided very promptly along time lines that the Education Accessibility Standard should set.
  1. e) On the appeal, the school board should have the burden to prove that the refusal to admit was justified, that it went no further and lasted no longer than was necessary, and that proper alternative education programming was provided or offered.
  1. f) A decision on the appeal should promptly be provided in writing with reasons along time lines that the Education Accessibility Standard should set.

#20.16 The Ministry of Education or the school board should set a unique code for marking attendance for a student who is absent from school for all or part of a day due to a refusal to admit.

#20.17 Each principal should be required to immediately report to their superiors in writing whenever a student is excluded from school, including the student’s name, whether the student has a disability, the reason for the exclusion, the intended duration of the exclusion, and the substitute educational programming that will be provided to the student while excluded from school The school board should centrally collect these reports and should make public quarterly aggregated data (without any names or identifying information) on the number of refusals to admit, reasons for them, percentage that involve any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.

#20.18 To help ensure that refusals to admit are not used due to a failure to accommodate a

student’s disability up to the point of undue hardship, each school board should create an emergency fund for accelerating education disability accommodations needed to facilitate a student’s remaining at or promptly returning to school, in connection with an actual or contemplated refusal to admit.



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The British Columbia Government Commits to Provincial Accessibility Legislation and Seeks Public Input on A Proposed Framework for a BC Disabilities Act – Read the AODA Alliance’s Submission to the BC Government


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

The British Columbia Government Commits to Provincial Accessibility Legislation and Seeks Public Input on A Proposed Framework for a BC Disabilities Act – Read the AODA Alliance’s Submission to the BC Government

October 1, 2019

          SUMMARY

The grassroots movement for enacting comprehensive disability accessibility legislation has spread to British Columbia and is making important progress. The BC Government has committed to bring forward a provincial accessibility law, and is now seeking public input on a proposed Framework for this legislation. Below we set out the input that the AODA Alliance has just submitted to the BC Government based on our experience in Ontario and on the federal scene. The Framework for the BC legislation, which the BC Government has posted for public comment, is permanently available on the AODA Alliance website as well at https://www.aodaalliance.org/wp-content/uploads/2019/09/BC-Framework-for-Accessibility-Legislation.pdf .

Anyone can send input to the BC Government from September 16 to November 29, 2019, by emailing [email protected] or by using the other avenues for input that the BC Framework specifies.

In summary, we commend the BC Government for committing to bring forward a provincial disability accessibility law, for its proposed Framework for this law, and for consulting the public on it. However, the Framework’s proposal, while helpful, is missing key ingredients. As written, and unless strengthened in accordance with our 12 recommendations, it risks running into the same serious problems as have been experienced in Ontario, Manitoba and Nova Scotia. These same problems are predicted for the new Accessible Canada Act.

We congratulate Barrier-Free BC’s tireless grassroots efforts over the past four years that have led to this important development. The AODA Alliance is proud to have played a small part in the launch of the grassroots movement that has brought BC to this point. Four years ago this month, on October 28, 2015, a meeting of grassroots activists was held in Vancouver. It led to the birth of Barrier-Free BC. Barrier-Free BC is BC’s counterpart to the AODA Alliance. At that kick-off meeting, the keynote speaker was AODA Alliance Chair David Lepofsky. We congratulate Barrier-Free BC on their excellent work over the past four years, and continue to be available to offer our advice whenever asked.

Today, the topic of BC disability accessibility legislation is expected to be the focus of CBC’s provincial radio call-in program in BC. AODA Alliance Chair David Lepofsky has been invited to be one of that program’s guests. If the program goes ahead as scheduled, the broadcast can be streamed live at this link https://www.cbc.ca/listen/live-radio/1-4-bc-today It should then be available as a podcast, at least for a few days. Search for the program “BC Today” on your favourite smart phone podcasting app, or via your computer, on the web.

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Submission of the AODA Alliance to the Government of British Columbia on the BC Framework for New Provincial Accessibility Legislation

October 1, 2019

Sent to: [email protected]

Introduction

This is the AODA Alliance’s submission to the BC Government on its proposed Framework for a new BC disability accessibility law. We welcome this opportunity to share our experience in this area. We would be delighted to do whatever we can to assist the BC Government with this endeavour.

The BC Government’s proposed Framework for disability accessibility is available at ##

We heartily commend the BC Government for committing to bringing forward a provincial disability accessibility law, for posting its proposed Framework for this law, and for consulting the public on it. We call for all provincial governments in provinces lacking accessibility legislation to show this kind of commendable leadership.

This submission shows that the BC Framework, while helpful, is missing key ingredients. As written, and unless strengthened in accordance with our recommendations, it risks running into the same serious problems as have been experienced in Ontario, Manitoba and Nova Scotia. These same problems are also predicted for the new Accessible Canada Act.

Below we provide 12 practical suggestions on what to add to the BC Framework to make this legislation effective. What is needed is both clear and readily doable. We want to help BC learn from both the accomplishments and the problems experienced with existing legislation. BC has the chance to lead Canada by coming up with the best accessibility law developed to date. The Appendix at the end of this submission lists all our 12 recommendations in one place.

In addition to the specific recommendations below, we ask the BC Government to read the AODA Alliance’s September 27, 2018 brief to Parliament on Bill C-81, the proposed Accessible Canada Act. It is among the most extensive analyses of that bill at First Reading. Some of our recommendations were eventually incorporated into the Accessible Canada Act. They were also incorporated into amendments which the federal NDP and Conservatives tried to get the Federal Government to agree to as amendments to the bill. However, the analysis is almost entirely applicable to the provincial context that the BC Government will be addressing. You can download the September 27, 2018 AODA Alliance brief to Parliament on Bill C-81 by visiting https://www.aodaalliance.org/whats-new/click-here-to-download-in-ms-word-format-the-aoda-alliances-finalized-september-27-2018-brief-to-the-parliament-of-canada-requesting-amendments-to-bill-c-81-the-proposed-bill-c-81/

Who Are We?

What does the AODA Alliance have to offer BC? The AODA Alliance has extensive experience with the design, implementation and enforcement of accessibility legislation in Canada. Founded in 2005, we are a voluntary, non-partisan, grassroots coalition of individuals and community 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 our open filing cabinet at https://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, from 1994 to 2005, 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 our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. We have been formally and informally 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 federal accessibility legislation should include. That widely-read Discussion Paper is now published in the National Journal of Constitutional Law at (2018) NJCL 169-207. Its contents can provide a great deal of guidance to BC, even though it was written to address the federal legislative sphere. You can download our Discussion Paper on what the promised national accessibility law should include by visiting https://www.aodaalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

We presented on Bill C-81, the proposed Accessible Canada Act, to both the House of Commons and the Senate. Our recommendations played a role in improvements to the Accessible Canada Act. Both the Government of Canada and opposition parties referred to the AODA Alliance and its proposals during parliamentary debates over that legislation.

The AODA Alliance has also 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 been consulted by the previous BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that legislation. AODA Alliance Chair David Lepofsky was the keynote speaker at the October 28, 2015 meeting in Vancouver where Barrier-Free BC was established.

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

Our Recommendations

Purpose of the BC Legislation

The BC Framework proposes that the BC accessibility law should have these purposes, and asks what the public thinks of them:

“1. To support Canada’s ratification of the UNCRPD by promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and by promoting respect for their inherent dignity.

  1. To identify, remove, and prevent barriers encountered by people with disabilities in their daily lives through the development, implementation, and enforcement of accessibility standards.
  2. To allow persons with disabilities and other impacted stakeholders in the public and private sectors to work collaboratively towards the timely development of accessibility standards.
  3. To ensure there are adequate mechanisms in place to track progress on accessibility.
  4. To promote compatibility with the Accessible Canada Act and between federal and provincial accessibility standards.”

The proposed purposes of the BC accessibility law set out in the BC Framework, while helpful, are far too weak. It is very important to substantially strengthen the proposed purposes for the BC disabilities legislation. We have learned that the goal must be the achievement of an accessible or barrier-free society, or both, pure and simple. Nothing short of that will do.

We have also learned that an end date must be set in the legislation. Ontario’s AODA has both the goal of accessibility, and nothing less, and an end date. These are real strengths in that legislation. The Accessible Canada Act has both the goal of a barrier-free Canada and an end date. We and others fought long and hard to get this goal enshrined in the Accessible Canada Act. The Senate added the end date of 2040 to Bill C-81 last May. At the last minute, when Bill C-81 came back to the House of Commons this past June, on the eve of its rising for the federal election, the Federal Government finally withdrew its objection to enshrining an end date for accessibility in the bill.

We therefore recommend that:

#1. The BC accessibility law should have the purpose of achieving a barrier-free and accessible BC by an end date to be set in the legislation, using the definitions of “disability” and “barrier” proposed in the AODA Alliance’s Discussion Paper on national accessibility legislation.

Do Not Let the Accessible Canada Act Serve as a Constraint or Limit on BC Accessibility Legislation

The BC Framework includes the following, among other things, in its discussion of the proposed purposes of the BC accessibility law:

” To promote compatibility with the Accessible Canada Act and between federal and provincial accessibility standards.”

At first, that may seem sensible. However, it risks having BC measures on accessibility sink to the lowest common denominator. BC should never feel constrained to follow or imitate anything done at the federal level if it is too weak. BC should not commit in advance to be compatible with a federal accessibility measure that is insufficient.

For example, the Canadian Transportation Agency has recently adopted new federal transportation regulations on accessibility. They are helpful in part, but have serious problems. BC should not tie its hands in such circumstances.

We therefore recommend that:

#2. BC legislation should not commit to ensure that it or measures under it will be compatible with the Accessible Canada Act if this will lead to insufficient protections for people with disabilities.

 Nothing Should Ever Reduce the Rights of People with Disabilities

It is important that nothing be done under the new BC accessibility law that reduces the rights or opportunities of people with disabilities.

We therefore recommend that:

#3. Nothing in the BC disability accessibility law, or in its regulations or in any actions taken under it should be able to reduce in any way any rights which people with disabilities enjoy under law.

Several provincial laws address aspects of accessibility for people with disabilities. A new BC accessibility law 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 new BC accessibility law should ensure that the law which provides the greatest amount of accessibility should always 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.”

We therefore recommend that:

#4. If a provision of the BC accessibility law or of a regulation enacted under it conflicts with or sets a different accessibility standard than 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 should prevail.

Setting Mandatory Timelines for Enacting Accessibility Regulations

A central and fundamentally important part of the BC accessibility legislation would be the Government enacting new accessibility regulations. These would specify in detail what obligated organizations must do to become accessible to people with disabilities. The BC Framework states:

“Accessibility standards would provide guidance about best practices for accessibility including desired accessibility outcomes.”

The BC Framework suggests at one point that it would be permissible for the Government to enact accessibility regulations that are enforceable. However, it does not there make it clear that the Government would have a duty to do so. The Framework states:

“Government envisions accessibility legislation that allows for the creation of both voluntary accessibility standards as well as mandatory accessibility regulations. Accessibility legislation would allow the Government of British Columbia to adopt standards as binding regulations in part or in whole.”

Yet elsewhere the BC Framework states:

“To ensure progress, accessibility legislation could require timelines to achieve the timely development, implementation and revision of accessibility standards.”

It is essential that the law impose a clear and strong duty on the Government to create these standards, and for it to set enforceable timelines for creating these standards. Otherwise, they may never be created, or they may take excessive amounts of time to be created.

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 ever 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.

One of the major criticisms of the Accessible Canada Act is that it gives the Federal Government a number of helpful powers, such as the power to enact accessibility regulations, but for the most part does not require that these powers be used. it also does not for the most part set timelines for their deployment. That is why we and so many others said that the Accessible Canada Act is strong on good intentions but weak on implementation.

We therefore recommend that:

#5. The BC accessibility law should require the Government to create all the accessibility standards as enforceable regulations that are needed to achieve the law’s goal, and should set timelines for enacting these regulations.

Areas for Accessibility Standards to Cover

The BC Framework states:

“Accessibility standards could cover a variety of areas including:

Service Delivery

Employment

Built Environment

Information and Communication

Transportation”

These are all helpful areas. However, we know from extensive Ontario experience that this list is insufficient. It is helpful if the bill lists some of the areas that enforceable accessibility regulations can cover, so long as it is clear that they are not the only areas that these regulations can cover.

Moreover, the list that the law spells out should be expanded. It should include enforceable accessibility regulations to address disability accessibility barriers in education, health care, housing, and ensuring public money is never used to create or perpetuate disability accessibility barriers. This last area is addressed further below.

In Ontario, after years of campaigning, accessibility regulations are now under development in the areas of education and health care. The AODA Alliance led the fight for these to be included. We have been asking for almost a decade for an accessibility regulation to be created to address accessibility in residential housing. British Columbians with disabilities should not have to endure the hardship of having to wage similar multi-year battles just to get these topics on the regulatory agenda.

We therefore recommend that:

#6. The BC accessibility law should include requirements to enact accessibility standards in the areas of education, health care, housing and ensuring that public money is never used to create or perpetuate disability barriers. It should make it clear that its list of accessibility regulations is not exhaustive.

Adopting Other Pre-existing Accessibility Standards

The BC Government is contemplating the possibility of adopting some pre-existing accessibility standards that are in place elsewhere, as part of its efforts under this legislation. The BC Framework states:

“The Government of British Columbia could seek to expedite the development of accessibility standards by adopting or building on existing standards, policies and practices developed elsewhere in Canada or around the world.”

It is desirable to avoid re-inventing the wheel. However, we caution that pre-existing accessibility standards can be seriously deficient. For example, those enacted to date in Ontario are fraught with problems, as earlier Independent Reviews of the AODA have documented on our urging. We can provide ample details on this.

We therefore recommend that:

#7. The BC accessibility law should only allow BC to adopt an accessibility standard created in another jurisdiction “as is” if it is satisfied that that standard is sufficient as is.

Governance, Compliance and Enforcement

We strongly commend to BC our recommendations for governance, compliance and enforcement that are set out in our published Discussion Paper on what a national accessibility law should include, and our September 27, 2018 brief to Parliament on Bill C-81, both referred to above.

The BC Framework considers as a possible feature of its implementation/enforcement regime the following:

“Reduced reporting requirements for individuals and organizations that show accessibility leadership.”

We disagree. It is of course commendable for an obligated organization to show leadership on accessibility. However, that should not lead to any reduction in that organization’s reporting obligations. Just because an organization has done well on accessibility in the past does not mean that it will continue to do so in the future and need only have reduced accountability. Reporting requirements are always needed to help monitor and motivate compliance.

We therefore recommend that:

#8. The BC accessibility law should include the compliance, monitoring and enforcement features recommended in the AODA Alliance Discussion Paper on national accessibility legislation, and in its September 27, 2018 brief to Parliament on Bill C-81.

#9. The BC accessibility law should not provide for reduced reporting requirements for an obligated organization that has shown leadership on accessibility.

How Often Should There Be an Independent Review of the BC Accessibility Law’s Implementation?

It is good that the BC Framework contemplates including in the law a requirement for the Government to periodically appoint an Independent Review of the new accessibility law’s implementation. These have been very important in Ontario.

The BC Framework asks how often these should take place. Ontario’s legislation got it right.

The AODA required the first Independent Review to begin three years after the AODA was passed. It requires each successive Independent Review to be appointed four years after the previous one was completed. Each Independent Review takes one year to conduct, once appointed. Therefore, the interval between the first and second AODA Independent Review, and between the second and third AODA Independent Review, have in each case been in the range of 5 years, not four. Nothing shorter would be appropriate.

The recommendations from each of the three AODA Independent Reviews came at important times. It would have been harmful to Ontarians with disabilities had they been delayed any longer. We only regret that the Ontario Government has not acted promptly on any of those reports’ helpful findings and recommendations.

In contrast, the Federal Government set too long a period in the Accessible Canada Act. The first Independent Review won’t begin under federal legislation til almost twice as long a period as was the case in Ontario. That will work to the substantial disadvantage of people with disabilities across Canada. This is especially troubling since under the Accessible Canada Act, the Federal Government need not create any enforceable accessibility standard regulations in that period.

We therefore recommend that:

#10. The BC accessibility law should require the first Independent Review of that legislation to be appointed within three years after that law goes into effect, and thereafter, every four years after the previous Independent Review delivered its report.

Key Features Needed in the BC Accessibility Law that the BC Framework Does Not Identify

While the BC Framework includes several helpful key ingredients for a new BC accessibility law, there are additional features that are very important, and that were not identified in that Framework. We summarize these here. They are discussed in greater length in our Discussion Paper on national accessibility legislation, and in our September 27, 2018 brief to Parliament on Bill C-81.

We therefore recommend that:

#11. The BC accessibility law should

  1. a) Specify that the BC Government as a whole is responsible for leading Canada to the goal of accessibility, in so far as the BC Government has constitutional authority to do so.
  1. b) Impose specific duties and implementation time lines on the BC Government, and on specified public officials and agencies, regarding their roles to implement and enforce the law.
  1. c) Require the BC Government to review all its statutes and regulations for accessibility barriers.
  1. d) 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.
  1. e) Require the BC Government to use all other readily-available levers of power to advance the goal of accessibility.
  1. f) Require that whenever a BC 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, its impact on accessibility for people with disabilities.
  1. g) Require the BC Government to ensure that provincial and municipal elections become barrier-free for voters and candidates with disabilities.
  1. h) Include effective measures to ensure that the BC Government becomes a model accessible workplace and service-provider.
  1. i) Require the BC Government to develop and implement a plan to ensure that all provincially-operated courts and federally operated regulatory tribunals become accessible.

We especially focus on one of these needed additions. The BC Government can bring about significant progress towards accessibility by making sure that no one uses public money to create, perpetuate or exacerbate disability barriers. Many in society want to receive provincial public money, as venders, infrastructure builders, businesses, colleges, universities, hospitals, and governmental transfer partners. The law should attach clear monitored, enforced mandatory accessibility strings to that money. Anyone accepting those funds should be bound by the strings attached.

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

  1. a) spending on procuring goods, services and facilities, for use by the BC Public Service and the public.
  1. b) BC spending on capital and infrastructure projects, including projects built by the BC Government, municipalities or others.
  1. c) BC spending on business development grants and loans, and on research grants for universities and other organizations.
  1. d) BC transfer payments to transfer agencies for programs, like health care.
  1. e) Any other BC Government contract.

This spending would give the BC Government substantial leverage to promote accessibility. 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 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.

Ontario experience shows that this must be specifically 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.

The Federal Government has similarly missed out on a huge opportunity here. It declined to include the needed measures to address this in the Accessible Canada Act. The Accessible Canada Act allows the Government to make accessibility standards in the area of procurement, but does not require these to be made.

Canada’s Senate made a formal “observation” on Bill C-81 when it passed other amendments to strengthen the bill. It called for federal action to ensure that federal public money is not used to create disability barriers.

Don’t Make the Same Mistakes in the Accessible Canada Act

We commended the Federal Government for committing to national accessibility legislation, and have identified several helpful features in the Accessible Canada Act. However despite the efforts and recommendations of many from the disability including the AODA Alliance, there are several shortcomings in that law. BC should avoid these. These are extensively identified on the Canada page of the AODA Alliance website and in our September 27, 2018 brief to Parliament.

Apart from deficiencies already discussed above are the following major problems, identified in our March 29, 2019 brief to the Senate on Bill C-81:

* “The bill gives the Federal Government and federal accessibility agencies/officials helpful powers to promote accessibility. However, the bill imposes no duty on them to ever use those powers, with one inconsequential exception.

The bill also sets no deadlines for taking many of the major implementation steps that the Government must take to implement this bill. The Government could drag its feet for years if not indefinitely.

For example, the bill lets the Government enact accessibility standards as enforceable regulations. However, the bill does not require the Government to ever enact any. Without them, the bill is a hollow shell.

The bill gives the Federal Government enforcement powers. However it doesn’t require the bill to be effectively enforced.

During the first five years after this bill goes into effect, the Federal Government’s only mandatory duty under the bill is for Cabinet, the CRTC and Canada Transportation agency to enact one regulation within two years after the bill comes into force. However that regulation could be an inconsequential one on minor procedural matters, without ever requiring that any disability barriers be removed or prevented.”

* “The 105-page bill is far too complicated and confusing. It will be hard for people with disabilities and others to navigate it. This is because the bill splinters the power to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the Canada Transportation Agency (CTA) and the Canadian Radio, Television and Telecommunications Commission (CRTC).

This makes the bill’s implementation and enforcement less effective, more confusing, more complicated and more costly. It will take longer to get accessibility regulations enacted. It risks weak, contradictory or unnecessarily complex regulations.

This splintering makes it much harder for people with disabilities to navigate the system, to find out what rights they have, and to get violations fixed. People with disabilities are burdened to learn to navigate as many as three or four different sets of accessibility rules, enforcement agencies, procedures, forms and time lines for presenting an accessibility complaint. That weakens the rights and voices of people with disabilities.

This splintering only helps existing federal bureaucracies that want more power, and any large obligated organizations that want to dodge taking action on accessibility. Those organizations will relish exploiting the bill’s confusing complexity to delay and impede its implementation and enforcement.

It is wrong for the bill to give almost exclusive powers over accessibility to federally-regulated transportation organizations (like airlines) to the CTA, and almost exclusive powers over broadcasters and telecommunication companies (like Bell Canada and Rogers Communications) to the CRTC. The CTA and CRTC have had powers in this area for years. Their record on accessibility is not good.

The CTA and CRTC are too close to the industries they regulate. They lack expertise in disability accessibility. The industries the CTA and CRTC regulate would love to have those agencies stay largely in control of their accessibility obligations, given their inadequate regulatory track records on accessibility.

We ask for the bill to be simplified, to get rid of its harmful splintering of federal accessibility oversight responsibilities. Only the Federal Cabinet should make accessibility regulations. Only the new federal Accessibility Commissioner should enforce the bill. This ensures clearer, smoother, lower-cost, easier-to-access one-stop-shopping for people with disabilities, and easier implementation for the Federal Government and obligated organizations.

Under the bill, transportation organizations, broadcasters and telecommunication companies must make two concurrent accessibility plans, one supervised by the Accessibility Commissioner and the other supervised either by the CTA or CRTC. That also makes compliance and enforcement more costly and confusing. We ask for the bill to be amended so that all obligated organizations will only have to make one accessibility plan, not two, all supervised by the new federal Accessibility Commissioner.

It is no solution to the bill’s “splintering” problem for the Federal Government to say that there will be “no wrong door” for a person to file a complaint. The problem is not just the four different doors that a person with a disability must choose to enter. There are also as many as three or four different procedures they must figure out, even after they enter the right door. That is a formula for confusion, and for tripping up people with disabilities.”

* “The bill has too many loopholes. As one example, the bill gives the Federal Government the power to exempt itself from some of its duties under the bill. The Government should not be able to exempt itself. We request an amendment to close the bill’s loopholes, such as the Federal Government’s power to exempt itself from some of its duties under the bill.”

Concerns with Public Funding of the Rick Hansen Foundation Private Accessibility Certification Program

The BC Framework notes that the BC Government has given the Rick Hansen Foundation 10 million dollars in connection with its private accessibility certification program. When the Ontario Government recently announced its intention to give public money to the Rick Hansen Foundation for this purpose, we raised serious concerns. Our investigation of this process resulted in our making public two reports. These amply document our serious concerns.

Among other things, we are concerned that there is no assurance that those who conduct the RHF’s private accessibility certification assessments are qualified to do so. The RHF 8-day training course is woefully inadequate. As well, the RHF process for assessing a building’s accessibility itself has serious problems. It also lacks proper safeguards against conflicts of interest on the part of its assessors or the RHF itself.

As a result, there can be no assurance that a building that the RHF certifies as “accessible” is in fact accessible. Moreover, a government should not delegate to an unaccountable private organization any responsibility to decide what standard for accessibility should be used.

Any BC accessibility legislation should not involve any such private accessibility certification process. Any accessibility standards should be publicly set, publicly monitored and publicly enforced.

Feedback from the disability community has echoed and reinforced our concerns in this area. Our concerns have garnered media attention and coverage.

The AODA Alliance’s July 3, 2019 report on the RHF private accessibility certification program is available at https://www.aodaalliance.org/category/whats-new/

The AODA Alliance’s August 15, 2019 supplement report on the RHF private accessibility certification program is available at https://www.aodaalliance.org/whats-new/the-doug-ford-governments-controversial-plan-to-divert-1-3-million-into-the-rick-hansen-foundations-private-accessibility-certification-program-is-plagued-with-even-more-problems-than-earlier-rev/

We therefore recommend that:

#12. The BC accessibility law should ensure that the making and enforcing of accessibility standards are exclusively done by public officials. It should not provide for any public funding of any private accessibility certification programs.

Appendix – List of Recommendations

#1. The BC accessibility law should have the purpose of achieving a barrier-free and accessible BC by an end date to be set in the legislation, using the definitions of “disability” and “barrier” proposed in the AODA Alliance’s Discussion Paper on national accessibility legislation.

#2. BC legislation should not commit to ensure that it or measures under it will be compatible with the Accessible Canada Act if this will lead to insufficient protections for people with disabilities.

#3. Nothing in the BC disability accessibility law , or in its regulations or in any actions taken under it should be able to reduce in any way any rights which people with disabilities enjoy under law.

#4. If a provision of the BC accessibility law or of a regulation enacted under it conflicts with or sets a different accessibility standard than 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 should prevail.

#5. The BC accessibility law should require the Government to create all the accessibility standards as enforceable regulations that are needed to achieve the law’s goal, and should set timelines for enacting these regulations.

#6. The BC accessibility law should include requirements to enact accessibility standards in the areas of education, health care, housing and ensuring that public money is never used to create or perpetuate disability barriers. It should make it clear that its list of accessibility regulations is not exhaustive.

#7. The BC accessibility law should only allow BC to adopt an accessibility standard created in another jurisdiction “as is” if it is satisfied that that standard is sufficient as is.

#8. The BC accessibility law should include the compliance, monitoring and enforcement features recommended in the AODA Alliance Discussion Paper on national accessibility legislation, and in its September 27, 2018 brief to Parliament on Bill C-81.

#9. The BC accessibility law should not provide for reduced reporting requirements for an obligated organization that has shown leadership on accessibility.

#10. The BC accessibility law should require the first Independent Review of that legislation to be appointed within three years after that law goes into effect, and thereafter, every four years after the previous Independent Review delivered its report.

#11. The BC accessibility law should

  1. a) specify that the BC Government as a whole is responsible for leading Canada to the goal of accessibility, in so far as the BC Government has constitutional authority to do so.
  1. b) impose specific duties and implementation timelines on the BC Government, and on specified public officials and agencies, regarding their roles to implement and enforce the law.
  1. c) require the BC Government to review all its statutes and regulations for accessibility barriers.
  1. d) 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.
  1. e) require the BC Government to use all other readily-available levers of power to advance the goal of accessibility.
  1. f) require that whenever a BC 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, its impact on accessibility for people with disabilities.
  1. g) require the BC Government to ensure that provincial and municipal elections become barrier-free for voters and candidates with disabilities.
  1. h) include effective measures to ensure that the BC Government becomes a model accessible workplace and service-provider.
  1. i) require the BC Government to develop and implement a plan to ensure that all provincially-operated courts and federally operated regulatory tribunals become accessible.

#12. The BC accessibility law should ensure that the making and enforcing of accessibility standards are exclusively done by public officials. It should not provide for any public funding of any private accessibility certification programs.



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University Launches New Six-Year Disability Inclusion Action Plan


24 September 2019
Supporting people with disability to succeed

The University of Sydney has reached an important milestone in inclusion and access for people with disability, with today’s launch of its Disability Inclusion Action Plan 2019-24 during Disability Inclusion Week.

The Disability Inclusion Action Plan 2019-24 strengthens our commitment to protect staff, students and visitors with disability from discrimination and support all members of our community to succeed at the University.

The new six-year plan aligns with our core values of inclusion and diversity, and community expectations that people with disability are included in all areas of public life.

The University of Sydney is recognised as one of Australia’s higher education leaders in disability inclusion, with our previous Disability Action Plan (2013-18) being recognised as an example of best practice and used as a model for the development of the NSW Government’s own plan.

At today’s launch the University’s Vice-Chancellor and Principal, Dr Michael Spence, welcomed the new plan the fourth of its kind. Several esteemed speakers joined him for the launch, including Disability Discrimination Commissioner, Dr Ben Gauntlett, and Ms Carly Findlay, an award-winning writer, speaker and appearance activist who regularly writes about disability issues.

Dr Spence called for a united effort to implement the plan’s objectives.

“If we are to be a university in which the brightest researchers and the most promising students can thrive and realise their full potential, we must ensure that we provide a learning and working environment which is inclusive and accessible to all our students, staff and visitors,” Dr Spence said.

“I welcome the University’s Disability Inclusion Action Plan 201924 and urge the whole University community to commit to working towards the achievement of its objectives.”

” My disability services officer provided me with empathy and incredible support. Because of my new academic plan, I feel that I can get the most out of my studies while not being completely overwhelmed. ” International student

The plan builds on the University’s proud track record of progress and achievements in disability inclusion across almost two decades, and supports our aspirations to become an employer and higher education provider of choice.

Thousands of students and staff with disability are actively using the University’s support services. One international student, who asked to remain anonymous, said his “disability services officer provided me with empathy and incredible support. Because of my new academic plan, I feel that I can get the most out of my studies while not being completely overwhelmed.”

Zoe Stawyskyj, who recently graduated with a Bachelor of Science (Advanced) (Honours in Physics) and is now a casual teacher at the University, said she would have had to study part time without the assistance she received from Disability Services.

Zoe, who has a chronic illness, said the new plan’s promotion of the legal requirements that support people with disability were critical for her, because she can “draw on that information to be empowered and know my rights”.

The new plan reflects the experience of staff and students with disability. They contributed substantially to the plan’s creation during an extensive consultation and development process. There are a number of initiatives that will be implemented during the life of the plan, including the following.
Implement accessible wayfinding and navigation on our campuses, including technology-driven solutions.
Ensure our curriculum demonstrates application of the principles of Universal Design for Learning.
Enhance strategic employment of people with disability, including the creation of an employment fund to support hiring managers in recruiting people with a disability.

Find out more about the University’s 2019-24 Disability Inclusion Action Plan at https://sydney.edu.au/about-us/vision-and-values/diversity/disability-action-plan.html.

Original at https://sydney.edu.au/news-opinion/news/2019/09/24/university-of-sydney-launches-disability-action-plan.html




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Send Us Your Feedback on Our Draft Framework for what the Promised K-12 Education Accessibility Standard Should Include – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Send Us Your Feedback on Our Draft Framework for what the Promised K-12 Education Accessibility Standard Should Include

September 18, 2019

          SUMMARY

Today, the AODA Alliance is making public a draft Framework for what the promised Education Accessibility Standard should include for students in schools between kindergarten and Grade 12. We set it out below and invite your feedback. Let us know what you think we should do to improve this Framework before we finalize it and submit it to the K-12 Education Standards Development Committee. Please email us your feedback by October 2, 2019 by replying to this email, or by addressing an email to [email protected]

After months and months of our advocacy, we are delighted and relieved that the Ford Government has finally let the three AODA Standards Development Committees go back to work, which had remained frozen since the June 2018 Ontario election,. Those are the Standards Development Committees working in the areas of K-12 education, post-secondary education, and health care. The K-12 Standards Development Committee held its first resuming meeting by a telephone conference call on September 10, 2019. AODA Alliance Chair David Lepofsky  is a member of that committee. The Post-Secondary Education Standards Development Committee did so on September 12, 2019.

We are preparing this Framework to help the K-12 Education Standards Development Committee go about its work developing recommendations for the Ford Government of what to include in the promised Education Accessibility Standard. Once we get your feedback, we will finalize this Framework, make it public and submit it to the K-12 Education Standards Development Committee.

Time-permitting, we also hope to prepare a Framework to submit to the Post-Secondary Education Standards Development Committee, to supplement this one. If you have ideas of what we should include, beyond the parts of this Framework that are relevant at the post-secondary phase of education, please send us your ideas.

This draft framework is the result of lots of feedback that we have gathered over the past several years, as we campaigned to get commitments to create an Education Accessibility Standard under the AODA. It substantially builds and expands on the Discussion Paper on this topic that we made public almost three years ago, on November 21, 2016. We thank all those who have given us feedback in the past and who will do so now.

It is because we have gotten so much helpful feedback that this 27 page draft Framework is so detailed and thorough.

We understand that it can take some time to read through and think about all the detailed information in this draft Framework. For those who have the time to do so, we really appreciate your doing so. For those who don’t have the time, you can just look over this list of headings in the Framework:

Introduction — What is This Proposed Framework?

  1. What Should the Long-term Objectives of the Education Accessibility Standard Be?
  2. A Vision of An Accessible Education system
  3. General provisions that the Education Accessibility Standard Should Include
  4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them
  5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a school board’s Accommodation of the Education Needs of Students with Disabilities.
  6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs
  7. Ensuring a Fully Accessible Built Environment at Schools
  8. Ensuring Digital Accessibility at School
  9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning
  10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities
  11. Removing Attitudinal Barriers against Students with Disabilities
  12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use
  13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities
  14. Ensuring Student Testing/Assessment is Free of Disability Barriers
  15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School
  16. Removing Barriers to Participation in Experiential Learning
  17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities
  18. Substantially Reducing the Shuffling of Students with Special Education Needs From School to School over Their school Years
  19. Transportation for Students with Disabilities
  20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

As we make this draft Framework public, we are sadly reminded that 231 days have now passed since the Ford Government received the final report of the Independent Review of the AODA’s implementation and enforcement which was conducted by former Ontario Lieutenant Governor David Onley. The Ford Government has still not released a comprehensive plan to implement its recommendations, nor has it publicly promised to ever do so. Over 2 million Ontarians with disabilities suffer the ongoing consequences of that foot-dragging. New disability barriers continue to be created, while old barriers too often remain in place.

          MORE DETAILS

 Proposed Framework for the K-12 Education Accessibility Standard

Prepared by the Accessibility for Ontarians with Disabilities Act Alliance

Note: This is only a draft. It is still a work in progress. Feedback on it is welcomed. Send feedback to [email protected]

Introduction — What is This Proposed Framework?

In Ontario, over a third of a million students with disabilities face too many barriers at all levels of Ontario’s education system. For years, the AODA Alliance led a campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act (AODA). Two committees have been appointed by the Ontario Government to make recommendations on what the Education Accessibility Standard should include: The K-12 Education Standards Development Committee is responsible for making recommendations on what that accessibility standard should include to address barriers in Ontario’s publicly-funded schools from Kindergarten to Grade 12. The Post-Secondary Education Standards Development Committee was appointed to make recommendations for what that accessibility standard should include to address barriers in Ontario’s post-secondary education institutions, e.g. colleges and universities.

Under the AODA, an accessibility standard is supposed to spell out the barriers that are to be removed or prevented, what must be done to remove or prevent them, and the time lines required for this action.

In this Framework, the AODA Alliance outlines the key ingredients and aims for the promised Education Accessibility Standard. Where we state that “A school board should…” or similar wording, we mean by this that the Education Accessibility Standard should include a provision that requires the school board to take the step that we describe.

We hope this will assist the two Standards Development Committees. It predominantly focuses on the K-12 context, but its contents are readily transferrable to the post-secondary education context.

1.     What Should the Long-term Objectives of the Education Accessibility Standard Be?

The purpose of the Education Accessibility Standard should be to ensure that Ontario’s education system becomes fully accessible to all students with disabilities by 2025, the AODA’s deadline, by requiring the removal and prevention of accessibility barriers that impede students with disabilities. It should aim to ensure that students with disabilities can fully participate in, fully benefit from and be fully included in Ontario’s education system on a footing of equality, in the least restrictive environment consistent with a student’s and their parents’ wishes. It should provide a prompt, accessible, fair, effective and user-friendly process to learn about and seek individual placements, programs, services, supports and accommodations tailored to the individual needs of each student with disabilities. It should aim to eliminate the need for students with disabilities and their families to have to fight against education accessibility barriers, one at a time, and the need for educational organizations to have to re-invent the accessibility wheel one school board, college, university or educational program at a time.

2. A Vision of An Accessible Education system

The Education Accessibility Standard should begin by setting out a vision of what an accessible education system should include. An accessible education system at the K-12 level should include the following:

#2.1 It would be designed and operated from top to bottom for all of its students, including students with all kinds of disabilities, as protected by the Ontario Human Rights Code and/or the Canadian Charter of Rights and Freedoms. It would not in any way restrict its programs, services, supports or accommodations only to those students whose disability falls within the outdated and narrow definition of “exceptionality” in Ontario’s Education Act and regulations. The education system would no longer be designed and operated from the starting point of aiming to serve the fictional “average” student. It would not treat or label students with disabilities as “exceptions” or “exceptional”. It would not call their needs “special.” Their services, supports and needs would not be conflated with the services and needs of gifted students who have no disability.

#2.2 The built environment in the education system, such as schools themselves, their yards, playgrounds etc., and the equipment on those premises (such as gym and playground equipment) would all be fully accessible to people with disabilities, and would be designed based on the principle of universal design.

#2.3 Courses taught to students, including the curriculum and lesson plans, as well as informal learning activities, would fully incorporate principles of Universal Design in Learning (UDL), so that they are inclusive for students with disabilities.

#2.4 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them, and would be available when needed.

#2.5 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.

#2.6 Inclusion and Universal Design in Learning would extend beyond formal classroom learning to other activities connected with education, such as the playground at recess, social and recreational activities, field trips, extra-curricular activities, and experiential learning opportunities.

#2.7 Students with disabilities would have prompt access to the adaptive technology and specialized supports they need for their education and needed training on how to use it. Students with disabilities would be able to bring to school and take home the accessibility technology and supports from which they benefit. For example, they would have the right to bring a qualified service animal to school with them.

#2.8 Teachers and other direct educational staff, would be fully trained to serve all students, and not just students who have no disabilities. They would be fully trained in such things as Universal Design in Learning. “Special education” teachers should not serve as a silo for those who will teach students with disabilities.

#2.9 Students with disabilities would have timely access to up-to-date adaptive technology and to effective training on how to use it, to enable them to best take part in and benefit from education programming.

#2.10 Options for placement and programming at school would be sufficiently diverse and flexible to accommodate a wide spectrum of learning needs and styles, rather than tending to be one-size-fits-all.

#2.11 Tests and other forms of evaluation in school education would be designed based on principles of universal design and Universal Design in Learning, so that they will be barrier-free for students with disabilities.

#2.12 Classroom teachers and other front-line teaching staff would be provided sufficient staff support, and, where needed, additional specialized training, to enable them to effectively serve students with disabilities in their classes.

#2.13 Students with disabilities would be assured the opportunity to receive an equal education in the least restrictive environment, consistent with the student’s/parents’ wishes.

#2.14 Students with disabilities would encounter a welcoming environment at school and in class to facilitate their full participation, and a welcoming environment in which they can seek and receive accommodations for their disabilities. Students without disabilities, teaching staff and other school staff, as well as other parents in the school context, will be welcoming and inclusive towards students with disabilities. To achieve this, among other things, all students will receive positive curriculum content on the importance of inclusion and accessibility for students with disabilities. Bullying, teasing, stereotyping, patronization and the soft bigotry of low expectations will be absent from the school environment.

#2.15 Admission criteria, admission tests or other admission screening to get into any specialized education programming would be barrier-free for students with disabilities.

#2.16 Students with disabilities and their parents/guardians would have prompt, effective and easy access to user-friendly information in multiple languages on the educational options, programs, services, supports and accommodations available for their disability, and on the process for seeking these. Students with disabilities and their parents would be given a timely opportunity to observe options for placement, programming and other educational services and supports, when considering which would be most suitable for that student.

#2.17 Students with disabilities and their families would be kept regularly posted on the effectiveness of the placement, program, services, supports and accommodations that the student is to receive.

#2.18 The process for deciding on the placement, programming, services, supports and accommodations for students with disabilities would be fair, open and transparent in which the student and their family can fully participate. For example, before an Individual Education Plan (IEP) is written, the student and parents/guardians would be able and invited to take part in an Individual Education Plan meeting with school officials, at which the Individual Education Plan can be jointly written. At each stage of the process, the student and parents will be given clear user-friendly “rights advice” on how the process works, and on their rights in the process.

#2.19 Once a student has an established Individual Education Plan at one school, that plan would be portable, and would carry forward should that student move to another school at the same or a different school board.

#2.20 A decision about a student’s placement would not be made until assessments and decisions are reached about the needs and most appropriate program, services, supports and accommodations for that student with disabilities.

#2.21 Where a student with disabilities or their family believe that the school is not effectively meeting the student’s disability-related needs, (e.g. by not including a desired item in the Individual Education Plan), or if the student or family believe that the school is not providing an educational program, service, support or accommodation to which it had agreed, the student and parents would have access to a prompt, fair, open and arms-length review process, including an offer of a voluntary Alternative Resolution Process if needed, conducted by someone who was not involved in the original decision or activity, and who does not oversee the work of those involved in the student’s direct education.

#2.22 The qualifications and required training for specialized support educators (such as teachers of the visually impaired) would be modernized and upgraded where needed to ensure that they are qualified to meet the specialized needs of their students and the other teachers whom they support.

#2.23 There would be no bureaucratic, procedural or policy barriers that would impede the effective accommodation of individual students with disabilities at all levels of Ontario’s education system.

#2.24 Students with disabilities would have a right to attend school for the entire school day, and to not be excluded from school for all or part of a school day directly or indirectly because of their disability. Schools would not systemically or disproportionately exclude students with disabilities from school for either all or part of the school day e.g. because a special needs assistant is away from school.

#2.25 Major new Government strategies in Ontario’s education system would be proactively designed from the start to fully include the needs of students with disabilities. For example, if the Ontario Government were to announce a new math strategy for Ontario’s schools, it would, among other things, include an effective strategy to address disability barriers that students with disabilities face in math education.

#2.26 Those responsible at the provincial and local school board levels for leading, overseeing and operating Ontario’s education system would have strong and specific requirements to address disability accessibility and inclusion in their mandates, and would be accountable for their work in that connection. This will not be relegated to special education bureaucratic silos.

#2.27 The education system would provide disability-related funding to a school board based on the actual number of students with disabilities at that board, and not on a formula that merely tries to estimate how many should be at that school board.

3. General provisions that the Education Accessibility Standard Should Include

#3.1 This proposed accessibility standard should cover and apply to all education programs and opportunities for students at any school board that receives public funding in Ontario.

#3.2 Where this accessibility standard refers to “students with disabilities “, this should include any student who has any kind of physical, mental, sensory, learning, intellectual, mental health, communication, neurological or other kind of disability within the meaning of the Ontario Human Rights Code or the Accessibility for Ontarians with Disabilities Act . It should not be limited to the much more restricted definition of an “exceptional pupil” or a student with an “exceptionality” in the Education Act and regulations and policy related to them, or who is therefore treated under Ontario’s Education Act, regulations, or policy as a student with special education needs.

#3.3 Each school board should be required to establish a permanent committee of its trustees to be called the “Accessibility Committee.”, and other members should include the school board’s chair or vice chair. The chair and vice chair of the school board’s Special Education Advisory Committee should sit as ex officio members of this committee, whether or not they are trustees of the school board. The school board’s Accessibility Committee should have responsibility for overseeing the school board’s compliance with the Accessibility for Ontarians with Disabilities Act and with the requirements of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms in so far as they guarantee the right of students with disabilities to fully participate in and fully benefit from the education programs and opportunities that the school board provides.

#3.4 Each school board should be required to establish or designate the position of Chief Accessibility/Inclusion Officer, reporting to the Director of Education, with a mandate and responsibility to ensure proper leadership on the school board’s accessibility and inclusion obligations under the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Accessibility for Ontarians with Disabilities Act, including the requirements of this accessibility standard. This responsibility may be assigned to an existing senior management official.

#3.5 Beyond the specific measures to remove and prevent barriers set out in this accessibility standard and in other accessibility standards enacted under the AODA, each school board should be required to systematically review its educational programming, services, facilities and equipment to identify recurring accessibility barriers within that school board that can impede the effective participation and inclusion of students with disabilities. A comprehensive plan for removing and preventing these accessibility barriers should be developed, implemented and made public with clear time lines, clear assignment of responsibilities for action, monitoring for progress, and reporting to the school board’s trustees , the school board’s accessibility committee, and to the school board’s Special Education Advisory Committee. This plan should aim at all accessibility barriers that can impede students with disabilities from full inclusion in the education programs and activities at that school board, whether or not they are specifically identified in the Education Accessibility Standard or in any other specific accessibility standards enacted under the AODA.

#3.6 Each school board should be required to develop, implement and monitor a comprehensive new Inclusion Strategy for students with disabilities, whether or not their disability is identified as an “exceptionality” under Ontario’s special education laws. Under this strategy, where a school board proposes to refuse to provide a student with a disability in a regular class setting with needed accommodations, supports or services, over the objections of the student or of their family, on the grounds that the school board believes that it cannot serve that student in a regular classroom setting, the principal should be required to give written notice of this to the family, with reasons, and to tell the family that it has the right to promptly receive the principal’s reasons in writing. But this should not be reason to stop or withdraw services or support until a meeting has been held to discuss progress of have a review meeting of some kind.

#3.7 Each school board should have an explicit duty to create a welcoming environment for students with disabilities and their families to seek accommodations for their disabilities.

4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them

Barrier: Parents too often find it difficult to get easily accessed information from their school board and the Ontario Government on education options available for students with disabilities and how to access them.

#4.1 Each school board should provide parents of students with disabilities with timely and effective information on the available services, programs and supports for students with disabilities (whether or not they are classified as students with special education needs under the Education Act and regulations). Each school board should ensure that parents, guardians, and where practicable, students are informed, as early as possible, in a readily-accessible and understandable way, about such important information as:

  1. What “special education” is and who is entitled to receive it.
  2. That the school board has a duty to ensure that a student with a disability has the right to full participation in and full inclusion in all the school board’s education programming, and to be accommodated in connection with those programs under the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms, whether or not the student is classified as a student with special education needs under Ontario’s Education Act and regulations.
  3. The menu of options, placements, programs, services, supports and accommodations available at the school board for students with disabilities, whether or not they are classified as students with special education needs under the Education Act and regulations.
  4. What persons and what office to approach at the school board to get this information, to request placements, programs, supports, services or accommodations for students with disabilities, whether or not they are classified as students with special education needs, or to raise concerns about whether the school board is effectively meeting the student’s education needs.
  5. The processes and procedures at the school board for a parent, guardian or student to request or change placements, programs, services, supports or accommodations for students with disabilities, whether or not they are classified as students with special education needs. This includes formal legislated processes like the Identification and Placement Review Committee (IPRC) and the development and implementation of the students Individual Education Plan (IEP). It also includes other informal processes like requests for programs, services, supports and accommodations in the classroom that are not covered in an IPRC or IEP.

#4.2 Without restricting the important information that must be made readily available, each school board should ensure, among other things, that:

  1. Parents and guardians of students with disabilities can easily find out and, where necessary, visit different placement, program, service and support options for a student with a disability, whether or not they are classified as a student with special education needs, before the parent, guardian or, where practicable, the student must take a position on what placement, program or services should be provided to that student.
  2. Parents and guardians of students with disabilities, and, where practicable, students with disabilities themselves, should be given clear, understandable explanations of their rights in the school system, including but not limited to the special education process. For example, when a school board presents parents or guardians with a proposed IEP, the school board should explain to them that they need not agree to and sign the proposed IEP, that the school board is open to consider the family’s suggestions for changes to the proposed IEP, and the avenues by which parents or guardians can seek to get the school board to make changes to the proposed IEP.

#4.3 Each school board should develop, implement and make public a plan to substantially improve its provision of the important information, described above, to all parents and guardians of that school board’s students, and to all students where practicable, and especially to parents and guardians of students with disabilities:

  1. This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
  2. A school board should not simply leave it to each principal or teacher to make sure that this important information is effectively provided. Each school board should instead have an effective system in place to ensure that this information actually reaches all parents and guardians, and where applicable, students.
  3. Each school board should ensure that all of this important information is fully and readily accessible in a prompt and timely way to all parents, guardians and students, in accessible formats and in jargon-free plain language, in a diverse range of languages. It should be easy to find this information. Among other things, this information should be posted on the school board’s website, in a prominent place that is easy to find, with a link on the school board’s home page. A school board should not simply rely on its website to share this information since this will not serve those families that do not have internet access.
  4. Among other things, each school board should send home an information package to all families at the start of each school year, and not merely to families of those students who are already being identified or served as having special education needs or disabilities. This package should include, among other things, a Question and Answer format to help families see how this information could relate to the student in their family.
  5. Each school board should also create a user-friendly package of information to be provided to families who first approach a school board about the possibility of enrolling a child at that school board, e.g. when they register for kindergarten. This should help enable a family to know whether they should be trying to access disability-related services and supports.
  6. Each school board should periodically host events at local schools to help families learn how to navigate disability-related school board processes like the Individual Education Plan and the Identification and Placement Review Committee processes. Where possible these should be streamed online and archived as a resource for families to watch online.

5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a School Board’s Accommodation of the Education Needs of Students with Disabilities

Barrier: Lack of sufficient, easily-accessed and fair processes at each school board to enable students with disabilities and families to have effective input into the placement and accommodation of the student, and for raising disability-related concerns.

The procedures in place under the Education Act and regulations for identifying and accommodating the needs of students with disabilities are out-of-date, and insufficient to ensure that the needs of students with disabilities are effectively met.

#5.1 Each school board should establish and maintain an effective process for parents and guardians of students with disabilities to effectively take part in the development and implementation of a student’s plans for meeting and accommodating their disability-related needs, including (but not limited to) their Individual Education Plan (IEP).

#5.2 As part of this process, parents and guardians of students with disabilities , and where practicable, the student, should be invited to take part in a joint school team student accommodation/IEP development meeting, where accommodation plans will be made and where the IEP will be written. The school board should bring to the table all key professionals who can contribute to this. The family should be invited to bring to the table any supports and professionals that can assist the family. Parents should have the right to bring with them anyone who can assist them in advocating for their child. Parents/families should be given a wide range of options for participating e.g. in person or by phone. They should be told in advance who will attend from the school board. Any proposal for accommodations including a draft IEP should include a summary of key points to assist families in understanding them.

#5.3 If a school board refuses to provide an accommodation, service, or support for a child’s disability that a parent, guardian, or where appropriate, the student requests, or if the school board fails to provide an accommodation or support that it has agreed to provide, the school board should, on request, promptly provide written reasons for that refusal, and let the family and student know that they can request written reasons.

#5.4 If parents and guardians of students with disabilities, and where practicable, the student, disagree with any aspect of the proposed accommodations including (but not limited to) the proposed IEP, or if the student or their family believe that the school board has not provided an accommodation or support that the school board has agreed to provide, the school board should make available a respectful, non-adversarial internal review process for hearing and deciding on the family’s concerns. The K-12 Education Accessibility Standard should set out the specifics of this review process. This school board review process should include the following:

  1. It should be very prompt. Arrangements for a student’s accommodations, including An IEP, should be finalized as quickly as possible, so that the students’ learning needs are promptly met.
  2. No proposed accommodations should be withheld from a student pending a review. The family should not feel pressured not to seek this review, lest the child be placed in a position of educational disadvantage during the review process. In other words, a family should not fear that if they launch a review, the student will suffer because the school board will not provide an accommodation or service the school board has offered, while the review is pending.
  3. The review process should be fair. The school board should let the family know all of its issues or concerns with a family’s proposal regarding the student’s accommodations, including the contents of the IEP. The family should be given a fair chance to express its concerns and recommendations regarding the student’s accommodations’, including IEP.
  4. The review should be by a person or persons who are independent and impartial. They should have expertise in education of students with disabilities. They should not have taken part in any of the earlier discussions or decisions at that school board regarding the accommodations or IEP for that child.
  5. At the review, every effort should be made to mediate and resolve any disagreements between the family and the school board. If the matter cannot be resolved by agreement, there should be an option for the school board to appoint a person or persons who are outside the school board to consider the review, along prompt time lines.
  6. At the review, written reasons should be given for the decision, and especially if any of the family’s requests or concerns are not accepted.
  7. If, after receiving the review’s decision and reasons, the family wishes to present any new information, it should be able to ask for the review to be reconsidered. This should be along short time lines.
  8. After the review is decided, if the family is not satisfied, it should be able to bring its concerns regarding the proposed accommodations including any IEP to a designated senior official at the school board with authority to approve the requested accommodations, for a further review.

#5.5 Where a student with a disability is being accommodated in a school in a school board covered by this accessibility standard, and the student transfers to another school in that school board or in another school board, that student should have a right to have the same accommodations put in in place in the new school or school board. If the school board of the school to which the student transfers proposes to reduce those accommodations or supports, they should be maintained until and unless, through the procedures set out in this accessibility standard, the school board has justified a reduction of those accommodations.

6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs

Barrier: Students with disabilities can face delays and bureaucratic impediments to early and timely professional assessment, where needed, of their disability-related needs.

#6.1 The Education Accessibility Standard should require measures to tear down administrative, bureaucratic and other barriers to reduce delays for getting psychological and other educational assessments for the identification of disability related learning needs.

7. Ensuring a Fully Accessible Built Environment at Schools

Barrier: Too often, the built environment where education programming is offered have physical barriers that partially or totally impede some students with disabilities from being able to enter or independently move around.

The Ontario Building Code and existing accessibility standards do not set out modern, sufficient accessibility requirements for the built environment in Ontario. Moreover, the Ontario Building Code is largely if not entirely designed to address the needs of adults, not children. The Ontario Government has no accessibility standard for the built environment in schools, whether old or new schools. The Ontario Government has not agreed to develop a Built Environment Accessibility Standard or to substantially strengthen the accessibility provisions in the Ontario Building Code.

As such, it is left to each school board to come up with its own designs to address, accessibility in the built environment in schools. This is highly inefficient and wasteful. It allows public money to be used to create new barriers against people with disabilities.

#7.1 The K-12 Education Accessibility Standard should set out specific requirements for accessibility in the built environment in schools and other locations where education programs are to be offered. This should meet the accessibility requirements of the Ontario Human Rights Code and the Charter of Rights. It should meet the needs of all disabilities, and not only those of people with mobility disabilities. This should include:

  1. Specific requirements to be included in a new school to be built.
  2. Requirements to be included in a renovation of or addition to an existing school, and
  3. Retrofit requirements for an existing school that is not slated for a major renovation or addition.

#7.2 Each school board should develop a plan for ensuring that the built environment of its schools and other educational facilities becomes fully accessible to people with disabilities as soon as reasonably possible, and in any event, no later than 2025. As part of this:

  1. As a first step, each school board should develop a plan for making as many of its schools disability-accessible within its current financial context. Accessibility does not only include the needs of people with mobility disabilities. It includes the needs of people with all disabilities, for example people with vision and/or hearing loss, autism, or mental health disabilities.
  2. Each school board should identify which of its existing schools can be more easily made accessible, and which schools would require substantially more extensive action to be made physically accessible. An interim plan should be developed to show what progress towards full physical accessibility can be made by first addressing schools that would require less money to be made physically accessible, taking into account the need to also consider geographic equity of access across the school board.

#7.3 When a school board seeks to retain or hire design professionals, such as architects, , interior designers or landscape architects, for the design of a new school or a existing school’s retrofit or renovation, or for any other school board construction project, the school board should include in any Request for Proposal (RFP) a mandatory requirement that the design professional must have sufficient demonstrated expertise in accessibility design, and not simply compliance with the Ontario Building Code or the AODA. This includes the accessibility needs of people with all kinds of disabilities, and not just those with mobility impairments. It includes the accessibility needs of students and not just adults. A qualified accessibility consultant should be retained to advise on the project from the outset, with their advice being transmitted directly to the school board and not only the design professionals.

#7.4 A committee of the school board’s trustees and the school board’s Special Education Advisory Committee should be required to review design decisions on new construction or renovations to ensure that accessibility of the built environment is effectively addressed.

#7.5 Where possible, a school board should not renovate an existing school that lacks disability accessibility, unless the school board has a plan to also make that school accessible. For example, a school board should not spend public money to renovate the second storey of a school which lacks accessibility to the second storey, if the school board does not have a plan to make that second storey disability-accessible. Health and safety concerns should be the only reason for any exception to this.

#7.6 When a school board decides which schools to close due to reduced enrollment, a priority should be placed on keeping open schools with more physical accessibility, while a priority should be given to closing schools that are the most lacking in accessibility, or for which retrofitting is the most costly.

#7.7 Each school board should only hold off-site educational events at venues whose built environment is accessible.

8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and other and websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

#8.1 Each school board should ensure that:

  1. Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.
  2. A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  3. Each school board’s websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  4. Electronic documents created at the school board for use in education programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be provided and posted in an accessible Microsoft Word or HTML format.
  5. Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  6. Textbooks and learning software should only be procured which include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. PDF should not be used unless an accessible alternative format such as MS Word is also available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

#8.2 Each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board.

9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning

Barrier: Too often, the curriculum used in Ontario schools was not designed based on accessibility and universal design in learning.

#9.1 The Education Accessibility Standard should require that the Ministry of Education and each school board, when setting requirements for or designing school curriculum, shall ensure that it incorporates universal design in learning to make it accessible to students with disabilities.

Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities.

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

#9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.

#9.3 Each school board should ensure that all teachers and teaching staff understand, and effectively and consistently use, principles of Universal Design in Learning (UDL), and differentiated instruction, when preparing and implementing lesson plans and other educational programming. For example:

  1. This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
  2. Each school board should develop, implement and monitor a comprehensive plan to train its teachers, other teaching staff, teaching coaches and principals on using UDL and differentiated instruction principles when preparing lesson plans and teaching. The Ontario Government should be required to provide a model program for this training which each school board can use.
  3. Each school board should include knowledge of UDL and differentiated instruction principles as an important criterion when recruiting or promoting teachers, other teaching staff and principals.
  4. Each school board should ensure that teachers are provided with appropriate resources and support to successfully implement the UDL training. Each school board should monitor how effectively UDL and differentiated instruction are incorporated into lesson plans and other teaching activities on the front lines.
  5. Each school board should review any curriculum, text books and other instructional materials and learning resources used in its schools to ensure that they incorporate principles of UDL.
  6. Each school board should create and implement a plan to ensure that teachers in the areas of science, technology, engineer and math (STEM) have resources and expertise to ensure the accessibility of STEM courses and learning resources.
  7. Each school board should provide teaching coaches with expertise in UDL to support teachers and other teaching staff.
  8. Similarly specialized training should be included for those who teach sex education to ensure that it includes disability-related sex education.

10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities

Barrier: Lack of sufficient training requirements for some education professionals who specialize in supporting the education needs of students with disabilities.

Ontario does not now ensure that any professional who is employed to support the education of students with disabilities will have sufficient qualifications to do so. For example, Ontario’s leading organization of parents of children with vision loss has pointed out that the requirements to qualify to serve as a “teacher of the visually impaired” (TVI) in Ontario are substantially inadequate, and are much lower than in some other places in Canada and elsewhere. A teacher employed to teach braille to a blind child need have no prior hands-on experience ever training a blind child to read braille, and need not ever have observed another TVI teaching braille to a blind child.

#10.1 The Education Accessibility Standard should require sufficient training for professionals who support the education of students with disabilities.

11. Removing Attitudinal Barriers against Students with Disabilities

Barrier: Stereotypes and other attitudes among some teachers, principals, other school staff, other students and some families that do not recognize the right and benefits of students with disabilities to get a full and equal education.

#11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  2. Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  3. Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  4. Implement Human Resources Policies and Practices to Expand School Board Staff Knowledge and Skills Regarding Inclusion

#11.2 Each school board should develop and implement human resources policies targeted at full accessibility and inclusion, such as:

  1. Making knowledge and experience on implementing inclusion an important hiring and promotions criterion especially for principals, vice-principals and teaching staff.
  2. Emphasizing accessibility and inclusion knowledge and performance in any performance management and performance reviews.

12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other such teaching resources that are not provided in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this has not been sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

#12.1 To ensure that instructional materials used are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  2. Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  3. Review its procurement practices to ensure that any new instructional material that is acquired is fully accessible or conversion-ready, and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

#12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.

13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities

Barrier: Schools or school boards that have gym, playground or other equipment that is not designed based on principles of universal design, and that some students with disabilities therefore cannot use, as well as gym, sports and other activities in which students with disabilities can fully participate.

Section 80.18 of the Integrated Accessibility Standards Regulation, as amended in 2012, require accessibility features to be considered when new outdoor play spaces are being established or existing ones are redeveloped. However, those provisions do not set the spectrum of detailed requirements that should be included. They do not require any action if an existing play space is not being redeveloped. They ultimately, leave it to each school board or each school to re-invent the accessibility wheel each time they build or redevelop an outdoor play space. They do not require anything of indoor play spaces or gyms.

#13.1 To ensure that gym equipment, playground equipment and other like equipment and facilities are accessible for students with disabilities, the Education Accessibility Standard should set out specific technical accessibility requirements for new or existing outdoor or indoor play spaces, gym and other like equipment, drawing on accessibility standards and best practices in other jurisdictions, so that each school board does not have to re-invent the accessibility wheel.

#13.2 Each school board should:

  1. a) Take an inventory of the accessibility of its existing indoor and outdoor play spaces and gym and playground equipment.
  2. b) Adopt a plan to remediate the accessibility of new gym or playground equipment, in consultation with the school board’s Special Education Advisory Committee and Accessibility Committee, and widely with families of students with disabilities.

Barrier: Gym and other physical activity programming at schools may not be designed or operated in a way that allows students with disabilities to fully participate.

#13.3 Each school board should be required to ensure that its gym and other physical activity teachers and coaches have training and access to support information on how to include students with disabilities in these programs.

#13.4 The Ministry of Education should be required to make available to school boards resources and training material on effectively including students with disabilities in gym and other physical activity programming.

14. Ensuring Student Testing/Assessment is Free of Disability Barriers

Barrier: Tests or other performance assessments of students that are not designed in a way that ensures that students with disabilities are fairly and accurately assessed.

Throughout the education system, students take tests and other assessments of their academic performance, whether in specific courses or system-wide standardized tests. There have been no mandatory provincial requirements of which we are aware to ensure that the ways students’ performance is tested or assessed are barrier-free for students with disabilities, and to provide a fair and accurate assessment of their performance.

#14.1 The Education Accessibility Standard should   set requirements for proper approaches to ensuring tests provide a fair, accurate and barrier-free assessment of students with disabilities, and on when and how to provide an alternative evaluation method.

#14.2 To ensure that a school board fairly and accurately assesses the performance of students with disabilities, each school board should:

  1. Have a policy that commits to ensure that testing and other assessments of students’ performance and learning are designed to be barrier-free for students with disabilities.
  2. Give its teachers and principals training resources on how to ensure a test is a fair, accurate and barrier-free assessment for students with disabilities in their class, and where needed, how to provide an alternative evaluation method.
  3. Monitor implementation of these guidelines.

15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School

Barrier: Policy and bureaucratic impediments to students with disabilities being able to get the adaptive technology and supports they need for school.

There are inconsistent practices around Ontario for acquiring needed adaptive technology and the training required to be able to effectively use that equipment. There are also inconsistent practices on whether a student can take such equipment home for use there, or can bring their own adaptive equipment from home for use at school. TDSB does not at all support students with vision loss using Apple products such as the iPhone or iPad, which come with leading accessibility features.

#15.1 The Education Accessibility Standard should require that procedural, bureaucratic and other such barriers to the acquisition, training and use of needed adaptive equipment and technology at school should be eliminated. It should require the establishment of a prompt, standardized provincial system for the procurement and deployment of accessible technology that ensures access to the most appropriate technology that is available on the market.

Barrier: Some school boards or schools do not let students with disabilities bring a sufficiently trained service animal to school as an accommodation to their disability, either because the school board or school does not allow for this, or lacks a proper policy to allow for this.

Some students on the autism spectrum and their families in Ontario have reported having difficulties at some school boards with being allowed to bring a service animal to school, and have even had to take action before the Human Rights Tribunal against a school board. Others have been able to succeed without barriers in bringing their service animal to school.

#15.2 The Education Accessibility Standard should provide that each school board should ensure that students with disabilities are able to bring a sufficiently trained service animal to school as a disability accommodation. Each school board should respect the student’s rights under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

#15.3 The Education Accessibility Standard should set specific requirements for school board practices in relation to a student bringing a service animal to school. The recent Ministry of Education policy directive to school boards on this topic did not include the specifics that are needed.

#15.4 The Education Accessibility Standard should ensure that there should be no bureaucratic or policy barriers to students with disabilities bringing a sufficiently trained service animal to school. The fair process procedures described in this Framework should apply to such requests.

#15.5 If the school board does not accept at first the sincerity or legitimacy of the student’s request, or the training of the service animal, the school board should immediately notify the student and their family of any and all concerns. The school board should investigate the request, including the student’s benefits from the service animal outside school and in the home, or any other concerns, as well as the experience of other schools or school boards that have allowed students with disabilities to bring service animals to school, before acting on any potential unwillingness to grant the student’s request. If a school board is not prepared to accept a request to be able to bring a service animal to school at first, the school board should undertake a test period of allowing this practice, unless the school board can demonstrate that to conduct such a test period would cause the school board an undue hardship. A school board should not refuse a request to bring a service animal to school based on no test period and based on speculative assumptions or stereotypes.

#15.6 The question when dealing with such requests should not be whether the student is doing adequately at school without the service animal. The question should be whether the student could do better at reaching their potential at school if assisted by their service animal. Similarly, the question is not whether the service animal will assist the student in accessing the curriculum. Rather the relevant question is whether the service animal could assist the student with any aspect of student life in the school environment, such as social interaction, independence and self-regulation. In its May 2, 2019 letter to Ontario’s Education Minister, the Ontario Human Rights Commission stated: “We believe that limiting disability accommodation to only “learning needs” is not a proper interpretation of the Code.”

#15.7 Each school board should ensure that principals, teachers, school office staff and families of students with disabilities know about this policy and that no attitudinal barriers impede this accommodation.

#15.8 The preference of some other students or staff with no disability not to have a service animal in class is not a justification for refusing to allow this accommodation for a student with a disability. Such concerns of other students, or of staff should be addressed by making arrangements that allow the student with a disability to bring their service animal to school, while situating any objecting student or staff with no disability at an acceptable distance from them. Notwithstanding anything in such school board policies, nothing may restrict a person with vision loss, student, staff, and parent or otherwise, from being a qualified guide dog with whom they have trained to school.

16. Removing Barriers to Participation in Experiential Learning

Barrier: Experiential learning programs that do not ensure that accessible experiential and inclusive experiential learning placements are made available to students with disabilities, and insufficient supports to help organizations, providing experiential learning placements, to facilitate the accommodation of students with disabilities.

#16.1 To ensure that students with disabilities can fully participate in a school board’s experiential learning programs, each school board should:

  1. Review its experiential learning programs to identify and remove any accessibility barriers.
  2. Ensure that its partners who accept its students for experiential learning placements are effectively informed of their duty to accommodate the learning needs of students with disabilities.
  3. Create and share supports and advice for placement organizations who need assistance to ensure that students with disabilities can fully participate in their experiential learning opportunities.
  4. Monitor placement organizations to ensure they have someone in place to ensure that students with disabilities are effectively accommodated, and to ensure that effective accommodation was provided during each placement of a student with a disability who needed accommodation.
  5. Survey students with disabilities and experiential learning placement organizations at the end of any experiential learning placements to see if disability-related needs were effectively accommodated.

#16.2 The Ministry of Education should provide templates for these policies and measures. It should also prepare and make available training videos for organizations offering experiential learning programs to guide them on accommodating students with disabilities.

17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities

Barrier: A potential combination of different barriers reviewed in this Framework.

#17.1 The Education Accessibility Standard should set a province-wide standard for ensuring that French immersion programs are accessible to and effectively accommodate students with disabilities. These programs should be offered in accessible locations. Their instructional materials should be available in accessible formats. Their admission criteria should be screened for any disability barriers.

#17.2 Each English language school board should develop, implement and monitor a strategy to ensure that French Immersion and other specialized programs are accessible to and barrier-free for students with disabilities, including:

  1. Identifying what percentage of the students in these programs are students with disabilities, to document any under-participation.
  2. Review the admission process for gaining entry to these programs, to identify possible accessibility barriers.
  3. Review the choice of the buildings where these programs are to be delivered to ensure that students with disabilities will be able to physically attend these programs.
  4. Identify what efforts the school board now makes to ensure that students with disabilities are accommodated in these programs, and the extent to which UDL and differentiated instruction principles are used in the teaching in these programs.
  5. Develop an action plan to address any accessibility and inclusion shortfalls.
  6. Actively publicize to students with disabilities and their families about the opportunities to take part in these programs, and the school board’s readiness to ensure that their accommodation needs will be met.
  7. Monitor the effectiveness of efforts to ensure inclusion and accessibility of these programs for students with disabilities, and report publicly on this, including to school board trustees, to the trustees’ accessibility committee and to the school board’s Special Education Advisory Committee, on an annual basis.

18. Substantially Reducing the Shuffling of Students with Special Education Needs from School to School over Their school Years

Barrier: The situating of programs for students with disabilities can force too many of these students to have to change the school they attend during their years at school much more than do other students, causing disruption and hardships for the students and their families.

#18.1 Each school board should be required to develop and implement a strategy to substantially reduce the shuffling of students with disabilities from one school to another over their school years. For example:

  1. If a student, attending a school other than their home school, for a special education program or class, is prepared to shift to inclusion in a fulltime regular classroom, then consistent with parental agreement, the student should have the option of remaining at the same school as the special education class, and treating it as their home school.
  2. Where possible, the school board should locate in the same school a combination of two special education classes that involve different levels of support. This would enable a student to gradually progress through different levels of special education classes towards a regular class setting in that school, without having to switch schools in order to switch to a different level of special education class. It would also enable a student, where appropriate, to spend part of a school day in one program and another part of the school day in another program, to best meet the student’s needs.
  3. Where feasible, if a student with a disability is required to attend a different school than his or her home school, in order to take part in special education programming, the family should have the option of having that students’ siblings also attend that school, especially where this will help the student with disabilities. Whenever possible, siblings, including those with disabilities, should be able to attend the same school.

19. Transportation for Students with Disabilities

Barrier: Barriers to accessibility of the education programming offered at a student’s local school that necessitates the provision of bus transportation to more distant schools, combined with the failure to ensure that students with disabilities are consistently, reliably and safely bussed to and from school.

The provisions on the provision of bus transportation to students with disabilities in s. 75 of the Integrated Accessibility Standards Regulation 2011 (IASR) have not been sufficient to effectively remove transportation barriers facing students with disabilities. Stronger provisions are required. The 2018 recommendations for revisions to the transportation provisions in the IASR do not in any way address this need.

#19.1 The Education Accessibility Standard should provide that where a school board provides bussing or other transportation to students with disabilities in order to enable them to attend school, the school board shall ensure and monitor to ensure that:

  1. The school board has consulted with each family to identify the accessibility and accommodation needs of the student with disabilities in relation to transportation, and the bus company and driver has been properly trained to accommodate that need.
  2. Where the school board or its bussing contractor changes the driver assigned to transport the student, the replacement driver is given the same information and training prior to driving the student, or, in the case of an emergency replacement, as soon as possible.
  3. The school board and, where applicable, any contractor it hires, shall retain records of the training provided, including when it was provided and shall make this information public.
  4. The school board should have a readily available official especially during periods when a student is being transported to receive and address phone calls, emails and text messages from a family about problems regarding the student’s transportation.
  5. The school board should document all complaints reported on transportation services, and the company to which it applies. A summary of these should be provided to all members of the school board including its Special Education Advisory Committee and its Accessibility Committee on a quarterly basis and shall make this public on the school board’s website.
  6. The Education Accessibility Standard should make it clear that the fact that the school board has contracted for a private company to provide the student transportation does not remove or reduce the school board’s duties under this accessibility standard or otherwise under the AODA, the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms to ensure that the student has been provided with barrier-free participation in in the school board’s educational programs and opportunities.

Barrier: Some school boards do not ensure that pick-up/drop locations for student bussing are accessible for parents with disabilities.

#19.2 The Education Accessibility Standard should require that the school board and, where applicable, a bus company with which it contracts, will ensure that pick-up and drop-off locations for a student’s bussing are accessible when needed to accommodate the parents or guardians of students with disabilities.

20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

Barrier: The arbitrary power of school principals to exclude students from school, outside the disciplinary suspension and expulsion power, that disproportionately impacts on students with disabilities.

The Ontario Human Rights Commission has identified as a human rights issue the sweeping and arbitrary power of any school principal to exclude a student from school. Section 265(1) (m) of Ontario’s Education Act provides:

“265. (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,…

… (m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils; …”

This power can be and is misused, especially to keep some students with disabilities away from school. This is made worse by the power to shorten the length of the school day for students with disabilities. This Framework addresses together the power to exclude a student from school for an entire day and the power to reduce the length of the school day, whether or not they emanate from the same provisions under Ontario’s Education Act.

#20.1 The Education Accessibility Standard should set specific comprehensive, mandatory requirements on when a school board can exercise any power to refuse to admit a student to school for all or part of a school day. It should have no loopholes that would let a principal or teacher exclude a student informally without complying with these requirements.

  1. This should include any time a school board formally or informally asks or directs that a student not attend school, or that the student be removed from school, whether in writing or in a discussion
  2. This should include a school board request or direction that a student only attend school for part of the regular school day.
  3. This does not include a situation where a family requests that a student be absent from school for all or part of a school day, but the school board is willing to let the student attend school.

#20.2 The school board should be required to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program. The school board should keep records of and publicly account for its doing so.

#20.3 A refusal to admit should only be imposed when it is demonstrably necessary to protect health and safety of students at school, and only after all relevant accommodations for the student, up to the point of undue hardship have been explored or attempted.

#20.4 A refusal to admit should go no further and last no longer than is necessary. A principal should only resort to a refusal to admit if the principal can demonstrate that the student presents an imminent risk to health or safety which cannot be addressed by lesser measures, such as suspension.

#20.5 If a refusal to admit is to take place, the first resort should be to exclude the student from a specific class, accommodating that student in another class. Only if that can’t be sufficient, should a principal consider excluding the student from that school, accommodating the student at another school. A school board should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school at that school board.

#20.6 The Education Accessibility Standard and policy directives from the Ministry of Education should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.

#20.7 A refusal to admit should not be allowed to last more than five consecutive school days, unless extended by the school board in accordance with this accessibility standard.

#20.8 The burden should be on the school board to justify the refusal to admit. It should not be for the student or the student’s family to justify why the student should be allowed to attend school.

#20.9 When a school board staff decide whether to refuse to admit a student, they should take into account all mitigating considerations that are considered when deciding whether to suspend or expel a student.

#20.10 A school board should not refuse to admit a student with a disability on the ground that school board staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.

#20.11 If, when a refusal to admit is to expire, the school board wants to extend it, the school board must justify it. The student’s family need not prove why the student should be allowed to return to school.

#20.12 An extension of a refusal to admit must first consider excluding the student from a single class, and then the option of excluding the student from that school, and only as a last resort, excluding the student from all schools at that school board.

#20.13 An extension of the refusal to admit should not be permitted if the school board has not put in place an effective alternative option for the student to receive their education while excluded from school.

#20.14 The Education Accessibility Standard should establish a mandatory fair procedure that the school board must follow when refusing to admit a student. These procedures should ensure accountability of the school board and its employees, including:

  1. A student and their families should have all the procedural protections that are required when a school board is going to impose discipline such as a suspension or expulsion.
  2. The prior review and approval of the superintendent should be required, before a refusal to admit is imposed. If it is an emergency, then the superintendent should be required to review and approve this decision as quickly afterwards as possible, or else the refusal to admit should be terminated.
  3. The superintendent should independently assess whether the school board has sufficient grounds to refuse to admit, and has met all the requirements of the school board’s refusal to admit policy (including ensuring alternative education programming is in place for the student).
  1. The principal should be required to immediately notify the student and his or her family in writing of the refusal to admit, the reasons for it, and the duration. That should include outlining steps that the school board has taken or will be taking to expedite a student’s return to school and provide an expected timeline for the completion of these steps.
  2. The principal should immediately tell the student and the student’s family, in clear and plain language, in writing, what a refusal to admit is, its duration, the reasons for it, the steps the school board is taking to expedite the student’s return to school and time lines for those steps, the school board’s process for reviewing that decision, and the family’s right to appeal it (including how to use that right of appeal). This should be provided in a language that the family speaks.
  3. These procedures should again be mandatory any time the school board extends a refusal to admit.
  4. A refusal to admit should not be extended for an accumulated total of more than 15 days (within a surrounding 30 day period) without the independent review and written approval of an executive superintendent of the school board.
  5. No refusal to admit should be extended for an accumulated total of more than 20 days (within a surrounding 45 day period) without the independent review and written approval of the Director of Education.

#20.15 A fair and prompt appeal process should be provided to the parents/guardian and, where appropriate, the student who was refused admission to school, which includes:

  1. The appeal should be to school board officials who had no involvement with the initial decision to refuse to admit or any extensions of it.
  2. The school board should promptly inform the student and the student’s family about how to start an appeal, who decides the appeal, the procedures for the appeal, that the student and family can present reports, support people or experts or any other information they wish, and can have a representative, either a lawyer or other person, to speak for them or assist them with the appeal.
  3. The appeal should include an in-person meeting with the student and family.
  4. The appeal should be heard and decided very promptly along time lines that the Education Accessibility Standard should set.
  5. On the appeal, the school board should have the burden to prove that the refusal to admit was justified, that it went no further and lasted no longer than was necessary, and that proper alternative education programming was provided or offered.
  6. A decision on the appeal should promptly be provided in writing with reasons along time lines that the Education Accessibility Standard should set.

#20.16 The Ministry of Education or the school board should set a unique code for marking attendance for a student who is absent from school for all or part of a day due to a refusal to admit.

#20.17 Each principal should be required to immediately report to their superiors in writing whenever a student is excluded from school, including the student’s name, whether the student has a disability, the reason for the exclusion, the intended duration of the exclusion, and the substitute educational programming that will be provided to the student while excluded from school The school board should centrally collect these reports and should make public quarterly aggregated data (without any names or identifying information) on the number of refusals to admit, reasons for them, percentage that involve any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.

#20.18 To help ensure that refusals to admit are not used due to a failure to accommodate a

student’s disability up to the point of undue hardship, each school board should create an emergency fund for accelerating education disability accommodations needed to facilitate a student’s remaining at or promptly returning to school, in connection with an actual or contemplated refusal to admit.



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The Ford Government Issues a Very Weak Policy Directive to Ontario School Boards on Addressing Requests by a Student with a Disability to Bring Their Service Animal to School – There Is No Assurance It Will Make It Easier for Students with Disabilities to Bring a Service Animal to an Ontario School


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The Ford Government Issues a Very Weak Policy Directive to Ontario School Boards on Addressing Requests by a Student with a Disability to Bring Their Service Animal to School – There Is No Assurance It Will Make It Easier for Students with Disabilities to Bring a Service Animal to an Ontario School

September 10, 2019

          SUMMARY

On September 9, 2019, the Ford Government issued a palpably weak policy direction to Ontario school boards on how to handle requests by students with disabilities to permit them to bring a service animal to school. It is good that this policy direction requires every Ontario school board to develop a policy for dealing with such requests. However, it falls far short of what students with disabilities and their families need. It does not require those school board policies to be good. It does not ensure that students with disabilities will be more readily able to bring a service animal to school than has been the case in the past, even though the Tories talked about making that easier, during the 2018 Ontario election campaign.

The Ford Government’s new policy direction to school boards, set out below, reads as if the school boards themselves wrote it, in order to require little of them, while appearing to show provincial leadership. The provincial policy wastefully requires each of over 70 school boards to reinvent the wheel. It burdens students with disabilities and their families with having to once again lobby every one of those school boards. Doug Ford’s policy directive provides no assurance of consistency across the province.

There are several deficiencies with the new provincial policy directive. For example:

* The provincial policy directive ultimately leaves it to over 70 school boards to invent their own rules on when they will permit a student with a disability to bring a service animal to school. In that regard, it largely sets no provincial standards at all. Each school is to decide each case, on a case-by-case basis. That really says nothing new.

* While the new provincial policy directive  refers in brief and summary terms to the duty to accommodate students with disabilities under the Ontario Human Rights Code, Doug Ford’s policy new directive ultimately leaves it to school boards to decide when it is “appropriate” to allow a student to bring a service animal to school. The Ontario Human Rights Code does not, however, make the test a sweeping open-ended and unpredictable one of “appropriateness”.

* The provincial policy erroneously does not direct school boards that they should allow for trial periods with a service animal before refusing this accommodation outright for a student.

* The provincial policy directive erroneously focuses on requiring or considering documentation from “medical professionals.” Of course, it should be open to a student with a disability or their family to bring forward medical documentation if they wish. However, doctors likely have no expertise in this area. People with disabilities have for years battled against the undue medicalization of their disability accessibility and accommodation needs.

Two years ago, the Human Rights Tribunal of Ontario rendered a seriously flawed decision in this area. The Waterloo Catholic District School Board had wrongly refused to let a student with autism bring his autism service dog to school. The family took the case to the Human Rights Tribunal of Ontario. Shockingly, the family lost the case.

In a detailed article to be published in the National Journal of Constitutional Law, AODA Alliance Chair David Lepofsky shows that the human rights ruling is riddled with errors. Doug Ford’s new provincial policy directive does not address and solve those problems. That article can be downloaded by visiting https://www.aodaalliance.org/whats-new/how-ontarios-human-rights-tribunal-went-off-the-rails-in-an-important-disability-accessibility-case-read-the-new-article-by-aoda-alliance-chair-david-lepofsky-on-the-tribunals-ruling-against-an/

Here, the Ford Government had a great opportunity to do much better that it has done. For years, Ontario has had a patchwork of different practices from school board to school board. Some allow service animals. Some do not. Some have no policy. The Ford Government could and should have surveyed the policies of those Ontario school boards that allow service animals, and drawn on the best of them to create a strong, inclusive provincial policy for all school boards to follow, that would be more favourable to meeting the needs of students with disabilities . Instead, the Ford Government dropped the ball and did a tremendous disservice to students with disabilities.

Perhaps the most stunning illustration of the deficiency in this new provincial policy is that under it, the family that fought the Waterloo Catholic District School Board a few years ago in that human rights case could well have ended up with the same refusal from that school board, had this provincial policy been in place at that time. It is a matter of public record that the mother of the student in that case, Ms. Amy Fee, has since won a seat in the Ontario Legislature, as a Conservative MPP. The Ford Government should have been prepared to do better for her and for the other families in her situation.

The Ford Government should quickly issue a supplemental policy to strengthen its weak September 9, 2019 provincial directive to school boards. It will also now be up to the K-12 Education Standards Development Committee to try to set strong provincial accessibility standards in this area. The Ford Government had frozen its work for over one year. It is having its first preliminary conference call this afternoon to initiate the resumption of its work.

MORE DETAILS

New Ford Government Policy Direction to Ontario School Boards on Allowing Students with Disabilities to Bring A Service Animal to School in Ontario

Originally posted at: http://www.edu.gov.on.ca/extra/eng/ppm/ppm163.pdf

Policy/Program Memorandum No. 163

Date of Issue: September 9, 2019

Effective: Subject: Until revoked or modified

Application: School Board Policies on Service Animals

Directors of Education

Supervisory Officers and Secretary-Treasurers of School Authorities Executive Director, Provincial and Demonstration Schools

Principals of Elementary Schools

Principals of Secondary Schools

Purpose

All school boards[1] in Ontario are required to develop, implement, and maintain a policy on student use of service animals in schools.[2] The purpose of this memorandum is to provide direction to school boards on the development and implementation of their policy. The ministry’s expectations regarding the components of a board’s policy are identified in this memorandum as well as the implementation and reporting requirements.

School boards are expected to:

  • allow a student to be accompanied by a service animal in school when doing so would be an appropriate accommodation to support the student’s learning needs and would meet the school board’s duty to accommodate students with disabilities under the Ontario Human Rights Code;
  • make determinations on whether to approve requests for a service animal on a case-by-case basis, based on the individual needs of each student;
  • put in place consistent and transparent processes that allow for meaningful consideration of requests for service animals to accompany students in school.

This memorandum applies to all publicly funded elementary and secondary schools, including extended-day programs operated by school boards. However, this memorandum does not apply to licensed child-care providers, including those operating on the premises of publicly funded schools.

Context

 

The Ministry of Education is committed to supporting school boards in providing appropriate accommodations to all students with demonstrable learning needs, including special education programs and services in Ontario’s schools.

The term “service animal” refers to any animal that provides support to a person with a disability. Traditionally, service animals have been dogs, and dogs remain the most common species of service animal; however, other species may also provide services to individuals with disabilities. The types of functions performed by service animals are diverse, and may or may not include sensory, medical, therapeutic, and emotional support services.

In Ontario, the Accessibility for Ontarians with Disabilities Act, 2005 (the “AODA”) sets out a framework related to the use of service animals by individuals with a disability. The Blind Persons’ Rights Act sets out a framework specifically for the use of guide dogs for individuals who are blind.

People with disabilities who use service animals to assist them with disability-related needs are protected under the ground of “disability” in the Ontario Human Rights Code. Under the Human Rights Code, school boards have a duty to accommodate the needs of students with disabilities up to the point of undue hardship. The Ontario Human Rights Commission’s Policy on Accessible Education for Students with Disabilities (2018) states that: “Depending on a student’s individual needs and the nature of the education service being provided, accommodations may include . . . modifying ‘no pets’ policies to allow guide dogs and other service animals.”[3]

Nothing in this memorandum detracts from other legal obligations of school boards under applicable law, including the Ontario Human Rights Code.

Definition of “Service Animal”

 

In the context of this memorandum, “service animal” means an animal that provides support relating to a student’s disability to assist that student in meaningfully accessing education. Due consideration should be given to any documentation on how the service animal assists with the student’s learning needs, and disability-related needs (e.g., documentation from the student’s medical professionals).

School boards must make a determination, on a case-by-case basis, as to whether a service animal may accompany a student taking into account all the circumstances, including the needs of the student and the school community and a school board’s obligation to provide meaningful access to education.

School boards may also consider including service animals in training in their service animal policies.

Components of School Board Policies on Service Animals

When developing their policy on student use of service animals, school boards must respect their obligations under the Ontario Human Rights Code, the AODA, the Blind Persons’ Rights Act, and collective agreements as well as other applicable laws and government policies. When developing their policies on student use of service animals, school boards are encouraged to consult with local partners, as appropriate.

Each school board policy on student use of service animals must contain, at a minimum, the following components:

Communication Plan. The school board policy should say how the school board will inform the school community about the process by which parents[4] can apply to have their child’s service animal in the school. It should also say how it will inform the school community of the presence of any service animals at the school.

Process. The school board policy should lay out how requests for students to be accompanied by service animals in schools can be made and the steps in the school board decision-making process. School board processes must be timely, equitable, and readily available, and decisions must be based on a student’s individual strengths and needs.

Policies should include the following:

  • a clearly articulated process for a parent to follow when making a request for a student to be accompanied by a service animal in school, including:
    • a primary point of contact;
    • supporting materials for initiating requests(e.g., templates);
  • information around the process through which a determination is made about whether or not a service animal is an appropriate accommodation. This could include:
    • a meeting or meetings for all appropriate parties(e.g., parents, school staff) to discuss the request for a service animal;
    • a list of documentation that a parent must provide;
    • a list identifying who must be consulted in making the determination;
  • information about the factors the board will consider when making a case-by-case determination, including:
    • any documentation on how the service animal supports the student’s learning needs and/or disability-related needs, including documentation from the student’s medical professionals;
    • the disability-related needs and learning needs of the student;
    • other accommodations available;
    • the rights of other students and the needs of the school community;
    • any training or certification of the service animal;
    • any special considerations that may arise if the animal is a species other than a dog;
  • consideration of privacy rights of the student seeking to bring a service animal to school;
  • information about how the school board will document its decision regarding a request. For example, if a school board approves a request, that information could be recorded in the student’s Individual Education Plan (IEP), if one exists;
  • if the school board approves a request for a service animal: a process for developing a plan that addresses:
    • the ongoing documentation required for the animal(e.g., annual vaccination records);
    • the type of support the service animal will provide to the student;
    • who will be the handler of the service animal while at the school;
    • a plan for how the care of the animal will be provided(including supporting the safety and biological needs of the animal);
    • how the animal will be readily identifiable;
    • transportation of the animal to and from school;
    • time line for implementation;
  • if the school board approves a request for a service animal: strategies for sharing information with members of the broader school community who may be impacted by the decision (e.g., other students, parents, educators, school staff, volunteers, Special Education Advisory Committees) and organizations that use the school facilities (e.g., licensed child-care providers operating in schools of the board), while identifying how the student’s privacy will be considered;
  • if the school board denies a request for a service animal: a statement that the school board will provide a written response to the family that made the request in a timely manner.

Health, Safety, and Other Concerns. The school board policy should include a protocol for the board to hear and address concerns from other students and staff who may come in contact with a service animal, and from parents of other students, including health and safety concerns such as allergies and fear or anxiety associated with the animal. Wherever possible, school boards should take steps to minimize conflict through cooperative problem-solving, and/or other supports which may include training for staff and students.

Roles and Responsibilities. The school board policy should clearly outline the roles and responsibilities of students, parents, and school staff regarding service animals at school, taking into account local circumstances.

Training. The school board policy should consider strategies for providing training related to service animals, as appropriate, for school staff who have direct contact with service animals in schools.

Review of School Board Service Animal Policies and Data Collection. The school board policy should be reviewed by the board on a regular basis.

School boards are expected to develop a process for data collection and to collect data regularly, including, but not limited to:

  • total number of requests for students to be accompanied by service animals;
  • whether requests are for elementary or secondary school students;
  • the number of requests approved and denied;
  • if denied, the rationale for the decision, including a description of other supports and/or services provided to the student to support their access to education;
  • species of service animals requested and approved;
  • types of needs being supported (e.g., medical, physical, emotional).

School boards should use this data to inform their cyclical policy reviews.

Implementation

School boards must implement and make publicly available on their websites their newly developed or updated policies and procedures on student use of service animals by January 1, 2020.

School Board Reporting

School boards are required to report to the Ministry of Education, upon request, regarding their activities to achieve the expectations outlined in this memorandum. This could include specific

data collected.

[1] In this memorandum, school board(s) and board(s) refer to district school boards and school authorities. This memorandum also applies to Provincial and Demonstration Schools.

[2] 2. This policy is established under the authority of paragraph 29.5 of subsection 8(1) of the Education Act and school boards are required to develop their policies on service animals in schools in accordance with this policy.

[3] Policy on Accessible Education for Students with Disabilities (Ontario: Ontario Human Rights

Commission, 2018), pp. 59–60.

[4] 4. In this memorandum, parent(s) refers to parent(s) and guardian(s).



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Almost 8 Months After Receiving the Blistering Onley Report, Both Premier Doug Ford and His Accessibility Minister Write the AODA Alliance But Offer Nothing New to Strengthen the Implementation and Enforcement of Ontario’s Beleaguered Disabilities Act


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Almost 8 Months After Receiving the Blistering Onley Report, Both Premier Doug Ford and His Accessibility Minister Write the AODA Alliance But Offer Nothing New to Strengthen the Implementation and Enforcement of Ontario’s Beleaguered Disabilities Act

August 26, 2019

          SUMMARY

Two more letters have come in to the AODA Alliance from the Doug Ford Government. They were sent in response to an open letter which the Government received from us on July 10, 2019. The Government’s new letters offer Ontarians with disabilities simply more of the same foot-dragging on accessibility for people with disabilities. There is no indication of any new plan for a strengthened Government approach to accessibility for Ontarians with disabilities.

In substance these letters just repeat things the Government has already been doing on accessibility. These are measures that are proven to be insufficient to overcome the serious problems that the Onley Report documented in detail.

It is regrettably typical for governments in such a situation to simply regurgitate what it has been doing, instead of offering needed new actions. It is noteworthy that in listing its actions of which it is proud, the Government did not in these letters point to its deeply troubling plan to divert 1.3 million public dollars to the problem-ridden private accessibility certification program offered by the Rick Hansen Foundation. That Government plan has come under heavy criticism over the past months.

You can read both of the Government’s new letters below. You can read the July 10, 2019 open letter to the Doug Ford Government by visiting https://www.aodaalliance.org/whats-new/in-a-compelling-open-letter-21-disability-organizations-unite-to-call-on-the-doug-ford-government-to-announce-a-plan-to-implement-the-report-on-ontarios-disabilities-act-submitted-by-former-lieuten/

Meanwhile, an inexcusable 208 days have now passed since the Doug Ford Government received the final report of the Independent Review of the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act (AODA). Yet Doug Ford’s Government has still announced no plan for implementing its key recommendations that would strengthen the AODA’s implementation and enforcement.

The July 10, 2019 open letter was originally co-signed by an impressive 21 community organizations and groups. The expanded list of signatories, set out later in this Update, has since grown to 27 organizations. If any organizations want to sign on, send us an email at [email protected]

Do you find this frustrating? There’s something you can do to help us! Join in our Dial Doug campaign. Call or email Premier Doug Ford. Ask him where is his plan to get Ontario to become accessible to over 2 million Ontarians with disabilities by 2025?

Doug Ford’s office number is +1 (416) 325-1941. His email address is [email protected]

We are delighted to hear from those who have already taken part in the Dial Doug campaign. Action tips on how to take part are available for you at https://www.aodaalliance.org/whats-new/join-in-our-new-dial-doug-campaign-a-grassroots-blitz-unveiled-today-to-get-the-doug-ford-government-to-make-ontario-open-for-over-1-9-million-ontarians-with-disabilities/

We also invite and encourage you to download, print up and give out our 1-page leaflet on the Dial Doug campaign. Spread the word about it. Email it to friends. Post it on your Facebook page. Our 1-page Dial Doug leaflet is available at https://www.aodaalliance.org/wp-content/uploads/2019/07/dial-doug-leaflet.docx

https://www.aodaalliance.org/wp-content/uploads/2019/07/dial-doug-leaflet.docx

          MORE DETAILS

A Closer Look — The Doug Ford Government’s Response to the July 10, 2019 Open Letter Just Offers Over 2 Million Ontarians with Disabilities More of the Same, Not Strong New Action

The July 10, 2019 open letter called on the Ford Government to announce a plan to implement the final report by former Ontario Lieutenant Governor David Onley, of his Independent Review of the implementation and enforcement of Ontario’s accessibility law, the AODA. The Onley Report found that the AODA’s required goal of becoming a fully accessible province for over 2 million Ontarians with disabilities is nowhere in sight. It concluded that Ontario remains replete with “soul-crushing” barriers against people with disabilities. That report recommended a series of important new measures needed to get Ontario back on schedule for becoming accessible by 2025.

The AODA Alliance led the preparation of this July 10, 2019 open letter. We did so after the Ford Government used its majority in the Legislature on May 30, 2019 to defeat a non-partisan motion by NDP MPP Joel Harden. That motion called on the Doug Ford Government to develop a plan to implement the Onley Report. Several MPPs from the Ford Government, including Accessibility Minister Raymond Cho, disparaged taking the action recommended in that proposed motion as “red tape”.

On that day, the Ford Government gave prepared speeches that sound like they reject the Onley Report’s recommendations as “red tape.” That is an extremely inaccurate and unfair description of the Onley Report. The Doug Ford Government has not retracted those statements in the three months since it made them.

The Ford Government’s two written responses to the July 10, 2019 open letter are deeply disappointing. They embody no plan of effective action, nor any pledge to establish one.

We heard once again in the Accessibility Minister’s August 19, 2019 letter that the Government is still studying the Onley Report. That report is only 81 pages. This is a top responsibility for the Accessibility Minister. David Onley’s key recommendations are ones which we have been presenting to all parties in the Legislature for years. This is not rocket science.

The Ford Government’s Accessibility Minister Raymond Cho had earlier studied this report sufficiently after having it for a little over two months that he publicly declared in the Legislature on April 10, 2019 that David Onley had done a “marvelous job.” As we have noted in the past, the Doug Ford Government has shown itself willing to act quickly, decisively, and vigorously in areas that it considers important. In those areas, it has not taken almost eight months to keep studying a report. This delay of almost eight months is hardly consistent with the Accessibility Minister’s August 19, 2019 letter where the Government says it is taking the Onley Report “very seriously.”

In the Minister’s detailed letter, the Government did not say it would ever bring forward such a plan. We respectfully but profoundly disagree with the Ford Government’s claim in the Minister’s August 19, 2019 letter that the Government is now on the right track on accessibility. Its protracted failure to bring forward a plan to implement the Onley Report is proof positive that it is on the wrong track. The Minister wrote:

“We are on the right track to creating an Ontario where communities offer opportunities instead of barriers.

A place where everyone can be independent, work, and contribute to the economy – wherever they live.”

Both the Minister’s August 19, 2019 letter and the Premier’s July 24, 2019 letter raise a serious concern that the Doug Ford Government is not even trying to ensure that Ontario becomes accessible to over 2 million Ontarians with disabilities, the goal which the AODA requires by 2025. Those letters speak instead about merely trying to “improve accessibility” and about “making Ontario more accessible and preventing barriers for people with disabilities.”

It is not good enough for the Government to merely aim to “improve accessibility.” Just one new ramp, installed somewhere in Ontario, or just one newly-retrofitted website, would fulfil that feeble goal.

In his August 19, 2019 letter, the Minister pointed in support to his Government’s having agreed to resume the work of the Health Care and Education Standards Development Committees. The Minister’s August 19, 2019 letter states:

“Right after tabling the report, we announced that we would be resuming the Health Care and Education Standards Development Committees. As the Minister, I was proud to immediately begin working with the chairs to re-start work on these valuable committees.”

Yet it was the Ford Government itself that left those important Standards Development Committees frozen since the Government took power in June 2019. Moreover, even though the Ford Government announced on March 7, 2019 that it was lifting its freeze on the work of those Standards Development Committees, over five months have passed since then. Those committees have not held a meeting, as far as we can tell. As an initial step, the K-12 Education Standards Development Committee is expected to hold its first re-engagement telephone conference call some time on September 10, 2019. That is a small glimmer of progress, that will take place over six months after the Ford Government lifted this freeze, and over 14 months after this freeze was first imposed.

The rest of the Minister’s August 19, 2019 letter basically rehashes what we had been hearing for years from the Wynne Government. The Onley Report adds up to a stinging indictment of that strategy as far too little and far too slow. For example, the Accessibility Minister’s August 19, 2019 letter summarizes what the Government says it is now doing on accessibility as follows:

“We’ve also taken action through a number of key initiatives, including working across government to take a whole-of-government approach to accessibility, supporting businesses to better understand accessibility and its benefits, and engaging with employers through our Employers’ Partnership Table.”

It is true that the Onley Report recommends that the Ontario Government take a “whole of Government approach” to accessibility. However, all the Minister’s August 19, 2019 letter does is to repeat this phrase without specifying any concrete changes, much less any substantial improvements. The previous Government similarly claimed to be taking a whole of Government approach to accessibility, without demonstrating concrete improvements.

The Minister’s August 19, 2019 letter refers to its strategy within the Government which is very similar to, if not identical to, the internal Government strategy of the Wynne Government (2013-2018, the McGuinty Government before that (2003-2013, and the Mike Harris Government before those two (1995-2003), as follows:

“As Mr. Onley recommended, we are working across ministries to make accessibility a responsibility of all ministries and inform a whole-of-government approach to advancing accessibility.

As part of this work, we are working with ministries to look at their policies, programs and services and identifying areas where we can work together to remove the barriers faced by Ontario’s 2.6 million people with disabilities.”

The Minister’s August 19, 2019 letter focuses predominantly if not entirely on efforts to educate organizations on accessibility, and efforts to get organizations to voluntarily do more. The letter refers to two specific initiatives which the former Wynne Government had been using for years, the Enabling Change Fund and the Government’s Partnership Council on Employment for People with disabilities. As a core Government strategy on accessibility, that is a formula for more progress at a snail’s pace. The Onley Report‘s recommendations call for the Government to do much, much more.

The only tiny glimmer of progress in these letters came where the Minister stated:

“For example, with our ministry partners, we have begun discussions with the Ontario Building Officials Association and the Retail Council of Canada and have been meeting with other stakeholders such as the Ontario Association of Architects.”

To “begin discussions” is very preliminary. We ask the Government to speed up this effort and to now bring us to the table with those organizations and with an ambitious plan for action, so we can work together throughout on progress.

We also again urge the Ford Government to now fulfil its duty under the AODA to appoint a Standards Development Committee to review the 2012 Public Spaces Accessibility Standard, and to mandate that committee to make recommendations for a comprehensive Built Environment Accessibility Standard under the AODA. It’s time the Ontario Government obeyed the AODA. Both the Doug Ford Government and the previous Wynne Government stand together as having violated the requirement to appoint that mandatory review of the Public Spaces Accessibility Standard by the end of 2017. To take these action we seek is consistent with the Onley Report’s recommendations.

Premier Doug ford’s July 24, 2019 letter to us is no more encouraging than is the Accessibility Minister’s August 19, 2019 letter. As he has in all his prior letters to us since taking power, Premier Ford simply punted all our issues back to Accessibility Minister Raymond Cho. There are two powerful reasons why this is insufficient for over 2 million Ontarians with disabilities:

First, the Onley Report itself called for new Government leadership on accessibility, pointing to the premier’s office. The report included the damning heading “Restoring Government Leadership.” The Onley Report found:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this. I am hopeful the current one will.”

Second, key areas where we need action are ones which the Premier himself must take. The Accessibility Minister, acting alone, cannot do so. We listed examples of priority actions in the AODA Alliance’s July 19, 2018 letter to Premier Ford. Premier Ford’s response to that letter was to punt it entirely to Accessibility Minister Cho.

Text of the August 19, 2019 Letter to the AODA Alliance from Ontario Accessibility Minister Raymond Cho

 

Minister for Seniors and Accessibility
Minister

College Park, 5th Floor
777 Bay St.
Toronto ON M7A 1S5

Ministre des Services aux aînés et de l’Accessibilitée Ministre

College Park, 5ème étage
rue 777 Bay
Toronto ON M7A 1S5

August 20, 2019

Mr. David Lepofsky

Dear Mr. Lepofsky:

I would like to respond to your Open Letter to the Premier of Ontario, dated July 10, 2019.

Thank you for sharing your concerns and for continuing to raise this very important issue.

We are taking Mr. Onley’s report on the Third Legislative Review very seriously as we continue to work towards making Ontario more accessible.

In an effort to be open and transparent, we tabled Mr. Onley’s report and made it public as soon as possible, just over a month after receiving it.

Right after tabling the report, we announced that we would be resuming the Health Care and Education Standards Development Committees. As the Minister, I was proud to immediately begin working with the chairs to re-start work on these valuable committees.

We’ve also taken action through a number of key initiatives, including working across government to take a whole-of-government approach to accessibility, supporting businesses to better understand accessibility and its benefits, and engaging with employers through our Employers’ Partnership Table.

As Mr. Onley recommended, we are working across ministries to make accessibility a responsibility of all ministries and inform a whole-of-government approach to advancing accessibility.

As part of this work, we are working with ministries to look at their policies, programs and services and identifying areas where we can work together to remove the barriers faced by Ontario’s 2.6 million people with disabilities.

For example, with our ministry partners, we have begun discussions with the Ontario Building Officials Association and the Retail Council of Canada and have been meeting with other stakeholders such as the Ontario Association of Architects. We will continue to work collaboratively with other ministries to promote accessibility and explore opportunities to develop resources and make it easier to understand how to build using universal design principles.

We continue our outreach with people with disabilities and disability organizations, and consult with businesses, non-profits and industry groups to get their perspectives on how to improve accessibility in Ontario.

On employment, we are working through our Employers’ Partnership Table, which was brought together to support the creation of employment opportunities for people with disabilities. The Table is comprised of 17 members representing a range of small, medium and large businesses, industry associations, non-profit and public organizations, and post-secondary education institutions from across Ontario. It is currently developing business cases to demonstrate that hiring people with disabilities improves the bottom line because productivity goes up.

The table will share their work and experiences with other businesses in Ontario to help them realize the benefits of employing people with disabilities. We will continue to consult with businesses and business associations through the Employers Partnership Table and other forums.

Government alone cannot create a barrier free Ontario.

That is why while all the work on the Onley report is ongoing, I have been hard at work every day meeting with Ontarians and engaging with disability and business stakeholders to make accessibility into a reality in this province.

We work closely with many partners to spread the word about the importance of accessibility.

We partnered with OCAD University’s Inclusive Design Research Centre to develop “Our Doors Are Open: Guide for Accessible Congregations” which was shared and highlighted at the 2018 Parliament of World’s Religions Conference. The guide offers simple, creative ideas for different faith communities in our province to increase accessibility during worship services and community events.

We also support some of these partners through a program called Enabling Change.

Some recent examples of EnAbling Change projects include:

  • A resource guide produced by the Ontario Business Improvement Area Association. The guide gives helpful tips for businesses on how to become more inclusive and accessible including addressing barriers in the built environment such as entrances and exits, space layout and design.
  • A partnership with the Conference Board of Canada to develop: Making Your Business Accessible for People with Disabilities which is a guide that helps small businesses employ and serve people with disabilities, attract customers and improve services.
  • ca which is a free online training portal with modules and videos that businesses can use to train staff on Ontario’s accessibility laws

We will continue to work with businesses and communities to help them better understand the benefits of accessibility. To address the recommendation in the Third Legislative Review on creating a comprehensive website for accessibility resources, we have taken steps to begin re-designing our ministry website to make it a comprehensive one stop shop on accessibility for the public and businesses. In order to make it easier for businesses to access resources on accessibility, we have created a new webpage dedicated to supporting businesses with practical guides and resources to help them understand the benefits of accessibility and break down barriers for people with disabilities.

A business that commits to accessibility sends a strong message that people with disabilities are welcome. For this reason, it is much more likely to attract people with disabilities and their families. This goes for any and all businesses in Ontario that are providing goods and services to the public.

Accessibility is a journey and we are eager to continue to work with all our partners in the disability community, not-for-profit, public and private sector to make change that will have a positive impact on the daily lives of people with disabilities and seniors.

We are on the right track to creating an Ontario where communities offer opportunities instead of barriers.

A place where everyone can be independent, work, and contribute to the economy – wherever they live.

Thank you again for writing and please accept my best wishes.

Sincerely,

(Original signed by)

Raymond Cho

Minister

c: The Honourable Doug Ford

Text of the July 24, 2019 Letter to the AODA Alliance From Premier Doug Ford

Dear Mr. Lepofsky and Colleagues:

Thanks very much for writing to me about the Honourable David C. Onley’s review of the Accessibility for Ontarians with Disabilities Act, 2005. I appreciate hearing your views and concerns.

My team is here for all the people. We are working to make our province a great place for all the people of Ontario today, and every day. Our government remains committed to making Ontario more accessible and preventing barriers for people with disabilities.

I note that you have sent a copy of your email to the Honourable Raymond Cho, Minister for Seniors and Accessibility. As the issue you raised falls in his area of responsibility, I have asked that he respond to you as soon as possible.

Thanks again for contacting me.

Doug Ford

Premier of Ontario

C: The Honourable Raymond Cho

Please note that this email account is not monitored. For further inquiries, kindly direct your online message through https://correspondence.premier.gov.on.ca/en/feedback/default.aspx.

Updated List of Signatories to the July 10, 2019 Open Letter to the Ontario Government As of August 26, 2019

As of August 23, 2019, the following 27 organizations and groups  are signatories to the July 10, 2019 Open Letter to the Ford Government on the need to promptly implement the Onley Report:

  1. AODA Alliance
  2. CNIB
  3. March of Dimes Canada
  4. Older Women’s’ Network
  5. Ontario Autism Coalition
  6. Communication Disabilities Access Canada (CDAC)
  7. StopGap Foundation
  8. BALANCE for Blind Adults
  9. Community Living Ontario
  10. DeafBlind Ontario Services)
  11. Ontario Disability Coalition
  12. Guide Dog Users of Canada
  13. Views for the Visually Impaired
  14. Physicians of Ontario Neurodevelopmental Advocacy (PONDA)
  15. ARCH Disability Law Centre
  16. Easter Seals Ontario
  17. Inclusive Design Research Centre, Ontario College of Art and Design University
  18. Centre for Independent Living in Toronto CILT
  19. Canadian Disability Policy Alliance
  20. Alliance for Equality of Blind Canadians (AEBC)
  21. Citizens With Disabilities – Ontario
  22. Autism Ontario
  23. Electromagnetic Pollution Illnesses Canada Foundation (EPIC)
  24. Holland Bloorview Kids Rehab Centre
  25. Disability Justice Network of Ontario (DJNO)
  26. Unitarian Commons Co-Housing Corporation
  27. Peterborough Council for Person’s with Disabilities [CPD]



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How Ontario’s Human Rights Tribunal Went Off the Rails in an Important Disability Accessibility Case–Read the New Article by AODA Alliance Chair David Lepofsky on the Tribunal’s Ruling Against an 8-Year-Old Student With Autism Who Wanted to Bring His Autism Service Dog to School


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

How Ontario’s Human Rights Tribunal Went Off the Rails in an Important  Disability Accessibility Case–Read the New Article by AODA Alliance Chair David Lepofsky on the Tribunal’s Ruling Against an 8-Year-Old Student With Autism Who Wanted to Bring His Autism Service Dog to School

July 5, 2019

          SUMMARY

Two years ago, the Human Rights Tribunal of Ontario rendered a controversial and deeply troubling decision about the rights of students with disabilities in Ontario schools. An 8-year-old boy with autism wanted to bring his certified autism service dog to school with him. The school board refused. His family filed a human rights complaint with the Human Rights Tribunal of Ontario. The Tribunal ruled in favour of the school board and against the student.

Many reacted with surprise or shock at this ruling. Now you have a chance to delve deeper and see what went wrong. AODA Alliance Chair David Lepofsky has written a 28-page article analyzing this human rights decision. He found that there are several problems with the decision. His article is entitled “Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic School Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School.”

In the fall of 2020, this article will be published in volume 40.1 of the National Journal of Constitutional Law. You don’t need any legal training or background to read this article.

Below we set out this article’s introduction. You can download the entire article in an accessible MS Word format by clicking here https://www.aodaalliance.org/wp-content/uploads/2019/07/ASD-Dog-Article-by-David-Lepofsky-Accepted-for-Publication-in-the-NJCL-dated-july-4-2019.docx

The published text of this article next year may have minor editorial changes.

The AODA Alliance has pressed the Ford Government for over a year to get the Education Standards Development Committee back to work, developing recommendations for what should be included in an Education Accessibility Standard to be enacted under the AODA. Among other things, we plan to propose detailed standards to bind all schools on letting students with autism bring their qualified service animal to school.

AODA Alliance Chair David Lepofsky is a member of the K-12 Education Standards Development Committee. On March 7, 2019, the Ford Government said it was lifting that freeze. Yet no date for the next meeting of that AODA Standards Development Committee is set.

There have been 155 days since the Ford Government received the final report of the Independent Review of the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act by former Lieutenant Governor David Onley. That report found that Ontario is full of “soul-crushing” barriers that impede over 1.9 million Ontarians with disabilities. It calls on the Ontario Government to show new leadership and to take strong action on accessibility for people with disabilities. the Ford Government has not announced a plan to implement the Onley Report.

          MORE DETAILS

Excerpt from the Article ” Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic School Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School” by AODA Alliance Chair David Lepofsky to be Published in Volume 40.1 of the National Journal of Constitutional Law

A child with autism spectrum disorder (ASD) can experience anxiety, challenges in self-regulating their mood and behaviours, and difficulty adjusting to transitions. Helpful measures to address these needs contribute to a child’s developmental progress. An autism service dog can help with these needs.

ASD’s emotional, behavioural and communicational impacts on a child cannot be measured, day-by-day, by a blood test or thermometer. It is typically not possible to isolate and quantify exactly when and how an intervention such as a service dog has helped, any more than an omelet can be unscrambled. This does not derogate from the benefits experienced from using such a service dog. For children with ASD, as with many others, trial and error is so often the best approach.

This article examines a troubling case where a school board, and then Ontario’s Human Rights Tribunal, each got it wrong when it came to accommodating a student with ASD. In J.F. v. Waterloo District Catholic School Board, an eight-year-old boy with ASD benefitted at home from a trained autism service dog. His family asked the school board to let him bring the service dog to school, to help accommodate his ASD. The school board said no. The Tribunal sided with the board.

There was no showing that board employees, addressing this issue, had prior knowledge, experience or expertise with autism service dogs, or that those officials tried to observe the boy outside school when using the autism service dog. There was no indication that the board took any proactive steps to learn about the benefits of these service dogs, or considered a trial period with this boy bringing his autism service dog to school.

In contrast, some other Ontario school boards let students with ASD bring a service dog to school. If other school boards can do so, the Waterloo District Catholic School Board could do the same, rather than putting barriers in the path of a vulnerable student.

The boy’s family filed a human rights complaint against the school board. It alleged a violation of his right to equal treatment in education without discrimination due to his disability, guaranteed by s. 1 of the Ontario Human Rights Code. The family argued that the board failed to fulfil its substantive duty to accommodate (its duty to provide a disability-related accommodation he needed), and its procedural duty to accommodate (its duty to adequately investigate his disability-related needs and the options for accommodating them). In a widely-publicized and erroneous decision, the Tribunal ruled against the boy on both scores.

The school board and the Human Rights Tribunal of Ontario failed to properly apply human rights principles to a vulnerable student with an undisputed disability. This case provides a powerful illustration of a Human Rights Tribunal that failed to properly apply both the human rights procedural duty to accommodate and the substantive duty to accommodate. The school board’s failure to fulfil its procedural duty to accommodate this boy’s disability also serves to substantially weaken the board’s claim that it met its substantive duty to accommodate.

As well, this case illustrates unfair accessibility barriers that students with disabilities too often face in Ontario’s education system. It shows how families must repeatedly fight against the same barriers, at school board after school board. This case also highlights serious flaws in Ontario’s controversial system for enforcing human rights. It shows why Ontario needs a strong and effective Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act, to remove such recurring disability accessibility barriers in Ontario’s education system.

Had this school board redirected more of its effort and public money towards working out a way to let this student bring his autism service dog to school, rather than fighting against him, a more positive outcome here was likely. Instead the Board marshalled its formidable legal resources to fight against this boy.

This article first delineates the case’s largely undisputed facts. It then explores the evolution of the procedural duty to accommodate in human rights law. The importance of the duty to accommodate in the education context is then investigated.

Attention next turns to problems in the Tribunal’s reasoning that led it to find that the school board did not violate the procedural duty to accommodate. After that, serious problems are identified with the Tribunal’s finding that the school board did not violate its substantive duty to accommodate.

This article concludes with a look more broadly at this case’s implications. This case typifies problems since 2008 with the way human rights are enforced in Ontario. This case also illustrates the need for the Ontario Government to adopt a reformed approach to the education of students with disabilities in Ontario schools as well as the need for an Education Accessibility Standard to be enacted under the Accessibility for Ontarians with Disabilities Act.



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