AODA Alliance Asks Federal Party Leaders For a New Bill to Strengthen the Accessible Canada Act – 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 Asks Federal Party Leaders For a New Bill to Strengthen the Accessible Canada Act

November 18, 2019

          SUMMARY

We today kick off the next phase in our campaign for accessibility at the federal level in Canada.

The AODA Alliance today wrote the leaders of the federal parties in Canada’s newly-elected Parliament. We have asked them to pass a proposed new bill that we have outlined to strengthen the Accessible Canada Act that Parliament passed last June. We set out that letter below. It includes our framework for the new short but punchy bill that we are proposing and explains why we need it. In summary, we want this bill to:

  1. a) ensure that enforceable accessibility standards are enacted under the Accessible Canada Act within five years;
  1. b) remove an unfair and discriminatory provision So that passengers with disabilities who are the victims of accessibility barriers in federally-regulated travel (like air travel) are always able to seek monetary compensation when they deserve it;
  1. c) ensure that the Accessible Canada Act never reduces the rights of people with disabilities, and that in any conflict between laws, the one that provides the highest level of accessibility prevails;
  1. d) ensure that federal laws never create or permit accessibility barriers;
  1. e) ensure that federal public money is never used to create or perpetuate barriers against people with disabilities;
  1. f) simplify the Accessible Canada Act‘s unnecessarily confusing and complicated enforcement process;
  1. g) eliminate the Federal Government’s power to exempt itself from some of its duties under the Accessible Canada Act, and
  1. h) require the Federal Government to apply a disability lens when it makes decisions or policies.

As our letter to the party leaders explains, it is good that Parliament unanimously passed the Accessible Canada Act. However, it needs to be strengthened to ensure that it fulfils its goal of making Canada barrier-free for over six million people with disabilities by 2040. While the Act’s commendable goal is a barrier-free Canada, it does not require any disability accessibility barriers to ever be removed or prevented.

The recent federal election has opened the door to a tremendous new opportunity for us to advocate for this proposed new bill. Canada now has a minority government. All parties supported the goal of a barrier-free Canada and recognized the need for strong legislation to achieve this. The opposition Conservatives, NDP and Greens have all supported amendments to strengthen this bill. However, because our last government was a majority government, the opposition parties did not have the ability to make this happen.

The new minority government situation changes all that, and creates a new window of opportunity for us. However, minority governments typically only last for two or, at most, three years. We must move quickly. We are eager to work with any and all parties on this issue, in our well-known tradition of non-partisanship.

As our framework for this bill shows, our proposals for this bill are intentionally short and limited. They are the most high-impact changes with the best chance of getting them through Parliament. They reflect concerns that disability organizations repeatedly pressed for over the past year during public hearings in the House of Commons and the Senate on Bill C-81. Our experience with provincial disability accessibility legislation amply shows that these are top priorities.

Some might think it will be an uphill battle to get Parliament to amend the Accessible Canada Act now, so soon after it was enacted. We are used to uphill battles, including very daunting ones! For example, just one year ago, many thought it would be impossible to get the Senate to strengthen Bill C-81, especially so close to an election, and then to get the House of Commons to ratify any Senate amendments. Yet we and many others from the disability community tenaciously persisted. As a result, the Senate passed some amendments to strengthen Bill C-81 last spring. After that, the House of Commons approved all the Senate’s amendments.

We have nothing to lose in presenting this new proposal, and a lot to gain! Please urge your Member of Parliament to support this proposal for a new bill. Help us get all parties to make this a priority in the forthcoming session of Canada’s new Parliament.

Stay tuned for more on this issue. For more background on the non-partisan campaign for a strong and effective Accessible Canada Act, visit www.aodaalliance.org/Canada

We welcome your feedback. Email us at [email protected]

          MORE DETAILS — AODA Alliance Letter to Federal Party Leaders on a New ACA Bill

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

1929 Bayview Avenue,

Toronto, Ontario M4G 3E8

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

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

November 18, 2019

To:

The Right Honourable Justin Trudeau

Via email: [email protected]

Office of the Prime Minister of Canada

80 Wellington Street

Ottawa, ON K1A 0A2

Twitter: @JustinTrudeau

The Hon. Andrew Scheer, Leader of the Loyal Opposition and of the Conservative Party

Via email: [email protected]

Leader of the Conservative Party

House of Commons

Ottawa, ON K1A 0A6

Twitter: @AndrewScheer

The Hon. Yves-François Blanchet, Leader of the Bloc Québécois

Via email: [email protected]

House of Commons

Ottawa, Ontario K1A 0A6

3750 boul. Crémazie Est, bureau 402

Montréal Quebec H2A 1B6

Twitter: @yfblanchet

The Hon. Jagmeet Singh, Leader of the NDP

Via email: [email protected]

300 – 279 Laurier West

Ottawa, Ontario K1P 5J9

Twitter: @theJagmeetSingh

The Hon. Jo-Ann Roberts, Interim Leader of the Green Party; MP, Saanich-Gulf Islands

Via email: [email protected]

House of Commons

Ottawa, Ontario K1A 0A6

Twitter: @JoAnnRobertsHFX

Dear Federal Party Leaders,

Re: Strengthening the Accessible Canada Act to Achieve a Barrier-Free Canada for Over Six Million People with Disabilities

As the new Parliament prepares to meet, we ask your parties to ensure that its agenda includes a new short, but vital bill to strengthen the Accessible Canada Act. This is important for over six million people with disabilities who face too many accessibility barriers every day. It is also important for everyone else in Canada, since everyone is bound to get a disability as they grow older.

At the end of this letter we set out a framework detailing what this new bill should include. In summary, this new bill should:

  1. a) ensure that enforceable accessibility standards are enacted under the Accessible Canada Act within five years;
  1. b) remove an unfair and discriminatory provision So that passengers with disabilities who are the victims of accessibility barriers in federally-regulated travel (like air travel) are always able to seek monetary compensation when they deserve it;
  1. c) ensure that the Accessible Canada Act never reduces the rights of people with disabilities, and that in any conflict between laws, the one that provides the highest level of accessibility prevails;
  1. d) ensure that federal laws never create or permit accessibility barriers;
  1. e) ensure that federal public money is never used to create or perpetuate barriers against people with disabilities;
  1. f) simplify the Accessible Canada Act‘s unnecessarily confusing and complicated enforcement process;
  1. g) eliminate the Federal Government’s power to exempt itself from some of its duties under the Accessible Canada Act, and
  1. h) require the Federal Government to apply a disability lens when it makes decisions or policies.

Founded in 2005, the AODA Alliance is a non-partisan community coalition that advocates for accessibility for people with disabilities in Ontario and Canada. We presented to the House of Commons and Senate to ask for amendments to strengthen Bill C-81. During debates in Parliament, MPs and Senators quoted and relied on our submissions.

In June, before rising for the election, Parliament unanimously passed Bill C-81, the Accessible Canada Act. We appreciate and commend its unanimous passage. Many people with disabilities were encouraged by Parliament’s unanimity in recognizing that Canada has too many barriers impeding people with disabilities, and that the needed legislative solution to this problem must be based on the principle of “Nothing about us without us!”

It is good that the Accessible Canada Act sets the goal of Canada becoming barrier-free by 2040, and that it gives the Federal Government a range of important powers to achieve that goal. However, there was also commendable recognition from many in Parliament that the bill needs to include more to achieve its goal. Even though the Accessible Canada Act has the goal of ensuring that Canada becomes barrier-free by 2040, it does not require that a single disability barrier ever be removed.

In the House of Commons Standing Committee hearings, many disability advocates identified ways Bill C-81 needed to be strengthened. During clause-by-clause debate in the House last fall, the Conservatives and NDP presented a substantial number of proposed amendments at the request of disability organizations. The Federal Government presented a shorter package of amendments. The Federal Government’s amendments were passed.

After that, the bill came to the Senate last spring. A Senate Standing Committee held a second round of public hearings. The Senate heard that there was ample support for the need for this legislation, but that the bill still needed strengthening.

Commendably, the Senate passed a short package of improvements to the bill, before returning it to the House of Commons. Senators saw that the bill needed improvements. They were reluctant to pass more than a bare number of amendments, because they did not want to risk the bill dying on the order paper when the imminent election was called.

The Senate did what little it could to strengthen the bill within these substantial constraints. However, it did not fix all the key deficiencies with Bill C-81. When the bill was returned to the House of Commons last spring, it was commendable that the House unanimously passed the Senate’s improvements.

The job of coming up with an Accessible Canada Act that meets the needs of over six million people with disabilities in Canada is therefore still unfinished. We urge Parliament to now finish this important work, by strengthening the Accessible Canada Act. We propose amendments. Set out below, these amendments echo key requests from the disability community to the House of Commons and later to the Senate before the election. For Parliament to now act on them is true to the parties’ commitment to the principle “Nothing about us without us.”

To past a modest bill now to strengthen the Accessible Canada Act is consistent with the calls last year by the Conservative, NDP and Green Parties for Bill C-81 to be strengthened. During Third Reading debates on Bill C-81 in the House of Commons, the Conservatives promised, if elected, to make the strengthening of this bill a priority. The NDP promised specific amendments to this bill during the 2019 federal election. The Liberals promised that this new law would be historic and would ensure that Canada becomes accessible to people with disabilities. The Liberals also promised during the recent election to apply a disability lens to all government decisions. When a disability lens is applied to the Accessible Canada Act itself, it brings into sharp focus the fact that the amendments we seek are needed now.

These amendments would not delay the Federal Government’s current activity on implementing the Accessible Canada Act. Parliamentary debate over this short amendments package need not hold up other pressing Parliamentary business.

We anticipate that some within the Federal Public Service may push back that this should all await an Independent Review of the Accessible Canada Act’s operations. Yet people with disabilities cannot wait the seven or more years for that review to begin. The need for these amendments is clear and present now. Any delay in making them will only slow Canada’s progress towards the goal of full accessibility.

In the new minority Parliament that voters elected, your parties have committed to work together. Our proposed bill is an excellent opportunity for this. It reflects what your parties have said about accessibility for people with disabilities and to what many disability advocates told Parliament.

We would welcome the opportunity to speak to any of your parties’ officials about this. Please let us know with whom we should speak within your party.

We urge you to support the bill we seek, and to make this a priority on Parliament’s agenda. We are eager to work together with you on this positive proposal in the spirit of non-partisanship that is the hallmark of our many years of grassroots disability advocacy.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act 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

Framework of a Proposed Federal Bill to Strengthen the Accessible Canada Act

November 18, 2019

Introduction

We call on Canada’s Parliament to pass a new bill to strengthen the Accessible Canada Act. The Accessible Canada Act is federal legislation that has the purpose of ensuring that Canada becomes barrier-free for over six million people with disabilities by 2040. This framework explains the amendments to the Accessible Canada Act that we seek via a new bill.

A. Enforceable Accessibility Standard Regulations Should Be Enacted Within Five Years

The Accessible Canada Act’s centerpiece is the enactment and enforcement of accessibility standard regulations. These regulations will specify what an organization must do, and by when to become accessible. The Act lets the Federal Cabinet, the Canadian Radio, Television and Telecommunication Commission (CRTC) and the Canadian Transportation Agency (CTA) enact these regulations. However, it does not require them ever to be enacted. If they are not enacted, the Act will fail.

Our proposed bill would amend the Accessible Canada Act to require the Federal Government, the CTA and the CRTC to enact regulations to set accessibility standards in all the areas that the Act covers within five years. We therefore propose:

  1. The Accessible Canada Act should be amended to add this subsection to section 117:

“Obligation

(1.2) The Governor in Council must make all the regulations under paragraphs 1(c) and (d) necessary to achieving the purposes of this Act, and, without limiting the generality of the foregoing, must make at least one regulation under paragraphs (1c) and (d) in each of the areas referred to in section 5 within the period of five years that begins on the day on which this subsection comes into force.”

B. The Accessible Canada Act Should Never Reduce the Rights of People with Disabilities

The Accessible Canada Act includes insufficient protections to ensure that nothing under the Act reduces the rights of people with disabilities and that if there is a conflict between two laws regarding accessibility, the stronger one will prevail.

Our proposed bill would amend the Accessible Canada Act to provide that if a provision of that Act or of a regulation enacted under it conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility shall prevail, and that nothing in the Accessible Canada Act or in any regulations enacted under it or actions taken under it shall reduce any rights which people with disabilities otherwise enjoy under law. We therefore propose:

  1. Section 6 of the Accessible Canada Act should be amended to add the following to the principles set out in it that govern the Act:

“(2) (a) If a provision of this Act or of any regulation under this Act conflicts with or guarantees a different level of accessibility for people with disabilities 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 shall prevail.

(b) Nothing in or under this Act or regulations enacted under it may be construed or applied to reduce the rights of people with disabilities enjoyed at law.”

C. An Unfair and Discriminatory Provision of the Accessible Canada Act Should Be Removed So that Passengers with Disabilities Who Are the Victims of Accessibility Barriers in Federally-Regulated Travel (Like Air Travel) are Always Able to Seek Monetary Compensation When They Deserve It

An unfair and discriminatory provision, section 172, was included in the Accessible Canada Act. It is helpful that the Senate somewhat softened it, after tenacious pressure from disability advocates. However, it should be repealed altogether.

Specifically, section 172(3) of the Accessible Canada Act unfairly takes away important rights from people with disabilities in a discriminatory way. It bars the CTA from awarding justly-deserved monetary compensation to a passenger with a disability, even if the CTA finds that an airline or other federally-regulated transportation-provider imposed an undue barrier against them, so long as a federal transportation accessibility regulation says that the airline did not have to provide the passenger with that accommodation.

This unfairly protects huge, well-funded airlines and railways from having to pay monetary compensation in situations where they should have to pay up. Our proposed bill would repeal the offending portion of section 172(3). We therefore propose:

  1. To ensure that the Canadian Transportation Agency can decide whether there is an undue barrier that makes federal transportation inaccessible for persons with disabilities and can always order the full range of remedies to remove and prevent such barriers, and to ensure that s. 172(3) of the Canada Transportation Act does not reduce rights of persons with disabilities, subsection 172(3) of the Accessible Canada Act and the corresponding s. 172(3) of the Canada Transportation Act should be amended to remove the words “but if it does so, it may only require the taking of appropriate corrective measures.”

Section 172(3) of the Canada Transportation Act currently reads:

“Compliance with regulations

(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter but if it does so, it may only require the taking of appropriate corrective measures.”

With this amendment, section 172(3) would read:

“Compliance with regulations

(3) If the Agency is satisfied that regulations made under subsection 170(1) that are applicable in relation to a matter have been complied with or have not been contravened, the Agency may determine that there is an undue barrier in relation to that matter.”

D. No Federal Laws Should Create or Permit Disability Barriers

The Accessible Canada Act does not ensure that federal laws never impose or permit the creation of barriers against people with disabilities.

Our proposed bill would amend the Accessible Canada Act’s definition of “barrier” to include laws that create or permit disability barriers. We therefore propose:

  1. Section 2 of the Accessible Canada Act’s definition of “barrier” should be amended to add the words “a law”, so that it will read in material part:

“barrier means anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a law, a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation. (obstacle)”

E. Federal Public Money Should Never Be Used to Create or Perpetuate Barriers

The Accessible Canada Act does not require the Federal Government to ensure that federal money is never used by any recipient of those funds to create or perpetuate disability barriers. For example, the Act doesn’t require the Federal Government to attach accessibility strings when it gives money to a municipality, college, university, local transit authority or other organization to build new infrastructure. Those recipients are left free to use federal public money to design and build new infrastructure that is not fully accessible to people with disabilities. Also, the Act doesn’t require the Federal Government to attach any federal accessibility strings when it gives business development loans or grants to private businesses.

It is helpful that the Act lets the Federal Government impose accessibility requirements when it buys goods or services. However, it doesn’t require the Federal Government to ever do so.

This allows for a wasteful and harmful use of public money. The Senate’s Standing Committee on Social Affairs that held hearings on Bill C-81 made this important observation in its May 7, 2019 report to the Senate:

“Your committee heard concerns that despite this legislation, federal funding may continue to be spent on projects that do not always meet accessibility standards. Therefore, we encourage the federal government to ensure that when public money is spent or transferred, the funding should never be used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided.”

Our proposed bill would amend the Accessible Canada Act to require that no one may use public money distributed by the Government of Canada in a manner that creates or perpetuates barriers, including e.g., payments by the Government of Canada to any person or entity to purchase or rent any goods, services or facilities, or to contribute to the construction, expansion or renovation of any infrastructure or other capital project, or to provide a business development loan or grant to any person or entity. We therefore propose:

  1. The Accessible Canada Act should be amended to add the following provision:

11.1.

(1) No one shall use public money distributed by the Government of Canada or any agency thereof by loan, grant, or other like payment in a manner that creates or perpetuates barriers.

(2) Without limiting the generality of the foregoing, subsection 1 includes payments by the Government of Canada to any person or entity to purchase or rent any goods, services or facilities, or to contribute to the construction, expansion or renovation of any infrastructure or other capital project, or to provide a business development loan or grant to any person or entity.

(3) Within the period of two years that begins on the day on which this subsection comes into force, the minister must establish and make public policies and procedures to implement, monitor compliance with, and report to the public on compliance with subsections 1 and 2.

(4) The power to make regulations under clauses 117 (1) (c) and (d) includes the power to make regulations to implement this section.

F. The Confusing and Complicated Implementation and Enforcement of the Accessible Canada Act Should be Simplified

The lengthy Accessible Canada Act is very complicated and confusing. It will be hard for people with disabilities to navigate it. It 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 CTA, and the CRTC.

This 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 have 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.

Our proposed bill would require that the CRTC, CTA and the Federal Public Sector Labour Relations and Employment Board, within six months, establish policies, practices and procedures for expeditiously receiving, investigating, considering and deciding upon complaints under this Act which are the same as or as reasonably close as possible to those that the Accessible Canada Act sets out for the Accessibility Commissioner. We therefore propose:

  1. The following provision should be added to the Accessible Canada Act:

“Section 123.1.

(1) The Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, and the Federal Public Sector Labour Relations and Employment Board must within the period of six months that begins on the day on which this subsection comes into force, establish policies, practices and procedures for expeditiously receiving, investigating, considering and deciding upon complaints under this Act which are the same as or as reasonably close as possible to, those set out for the Accessibility Commissioner in sections 94 to 110 of the Act.”

G. The Accessible Canada Act’s Power to Exempt the Federal Government from Some of the Act’s Requirements Should be Eliminated

The Accessible Canada Act has too many loopholes. For example, it lets the Federal Government exempt itself from some of its duties under the Act. The Government should not ever be able to exempt itself.

Our proposed bill would eliminate the Federal Government’s power to exempt itself from some of its duties under the Accessible Canada Act. We therefore propose:

  1. Section 72(1) of the Accessible Canada Act should be amended to add the words “except any entity referred to in paragraphs 7(1) (a), (b) and (c) (the Government of Canada, or a department or agency of the Government of Canada)”, so that the provision will read in material part:

“72 (1) The Minister may, by order, exempt any regulated entity or class of regulated entities except the any entity referred to in paragraphs 7(1) (a), (b) and (c) (the Government of Canada, or a department or agency of the Government of Canada) from the application of all or any part of sections 69 to 71, on any terms that the Minister considers necessary. The order ceases to have effect on the earlier of the end of the per­iod of three years that begins on the day on which the order is made and the end of any shorter period specified in the order.”

H. The Federal Government Should Be Required to Apply a Disability Lens to All Its Decisions

 

In the 2019 election campaign, the Liberal Party of Canada promised that it would apply a disability lens to all Federal Government decisions. Proposed opposition amendments to Bill C-81 last year would have made this a permanent legal requirement, not a voluntary practice that future governments could ignore.

Our proposed bill would amend the Accessible Canada Act to entrench in law a disability lens, that must be applied to all Government policies and decisions and would make it binding on both the current Government and future governments. We therefore propose:

 

  1. The following provision should be added to the Accessible Canada Act:

In order to systemically entrench the full inclusion of people with disabilities in all opportunities available in Canada, the government shall implement a disability lens whereby:

(a) Within two years the government shall have reviewed all existing policies to ensure that they do not exclude or adversely affect persons with disabilities.

(b) within 3 months of completing this review, the Minister shall submit a report to Parliament on the findings of the review and corrective measures taken.

(c) the government shall review all new policies and decisions to ensure that they do not exclude or adversely affect persons with disabilities.

(d) Before the Government of Canada adopts any new policies or makes any new decisions, the Minister shall certify that the policy has been reviewed to ensure that it does not exclude or adversely affect persons with disabilities, and shall annually report to Parliament on the reviews conducted and corrective measures taken



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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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We’re In the Media Two Days in a Row! A Globe and Mail Article on our January 30, 2019 Joint News Conference on School Principals Excluding Students from School and a Toronto Star Letter to the Editor from the 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

We’re In the Media Two Days in a Row! A Globe and Mail Article on our January 30, 2019 Joint News Conference on School Principals Excluding Students from School and a Toronto Star Letter to the Editor from the AODA Alliance

February 1, 2019

          SUMMARY

We’re starting 2019 with great media coverage early in the New Year:

* Below, check out an excellent January 31, 2019 Globe and Mail article. It reports on our January 30, 2019 joint Queen’s Park news conference with the unstoppable Ontario Autism Coalition. We there called on The Ford Government to act now to rein in the troubling excesses in the sweeping power of a school principal to block a student from coming to school, without justifying this by suspending or expelling the student under the law’s process for administering discipline. This article provides a good summary of the key points we made at that news conference, as spelled out in our January 3, 2019 joint news release.

We also set out below the January 30, 2019 statement by Ontario’s New Democratic Party. It supports our position presented at the AODA Alliance/Ontario Autism Coalition news conference. We very much appreciate that support.

You also might wish to check out the media coverage of this issue earlier this month in the Globe and Mail.

It is a step forward that the Globe article shows some potential interest in our proposal that the Ontario Government convene a summit to explore reforming the sweeping power of school principals to refuse to allow a student to come to school.

* We also set out below the letter to the editor by AODA Alliance Chair David Lepofsky that ran in the January 30, 2019 Toronto Star on a broader and equally important topic. Back on January 20, 2019, the Toronto Star ran a guest column by Ms. Karen Stintz. In it, she questioned the need for and the usefulness of accessibility legislation. Ms. Stintz is the CEO of Variety Village. Our letter to the editor refutes her position and emphasizes the importance of accessibility legislation.

Below we set out the fuller version of our letter to the editor which appears in the online edition of the Toronto Star. A slightly shorter version ran in the print version of the newspaper on January 30, 2019.

A disturbing 225 days have now passed since the Ontario Government shut down the work of the AODA Standards Development Committees that were hard at work, developing recommendations for the Government on measures needed to tear down barriers that impede students with disabilities in Ontario’s education system, and patients with disabilities in Ontario’s health care system. The weather is cold enough! We don’t need any more of the Government’s freeze on the important work of those Standards Development Committees.

David Onley was scheduled to deliver his final report of his Independent Review of the AODA’s implementation and enforcement to The Ford Government yesterday. The Ford Government has said it is awaiting that report before deciding what to do about its freeze on the work of those Standards Development Committees. We are hoping that Mr. Onley will recommend that the Government immediately end that freeze. Once the Government has seen what he recommends on this subject, it should act immediately.

          MORE DETAILS

The Globe and Mail January 31, 2019

Originally posted at https://www.theglobeandmail.com/canada/article-advocates-call-on-ford-government-to-help-special-needs-children-who/ News

Groups call on Ford PCs to curb schools’ exclusion of special-needs children

By VICTORIA GIBSON

Staff

Disability advocates congregated at Queen’s Park on Wednesday morning demanding that the provincial government rein in the power of principals to exclude students with complex needs from schools across the province.

Both the Ontario Autism Coalition (OAC) and the Accessibility for Ontarians with Disabilities Act Alliance (AODA) called on Education Minister Lisa Thompson to hold a summit of key stakeholders – including parents, teachers, principals, school boards and students – where they can discuss possible legislation and policy changes surrounding exclusions of students with disabilities who are presenting behavioural issues. The groups also asked the minister to issue a policy directive to school boards imposing interim restrictions on when exclusions can be used.

“What is the Ford government going to do to rein in the excessive, unfair and arbitrary power of school principals to exclude students from school?” OAC president Laura Kirby McIntosh asked.

“We just can’t leave the status quo in place,” AODA Alliance chair David Lepovsky said.

The minister’s office responded Wednesday afternoon, with staff member Kayla Iafelice saying the government is aware of the issues cited by the OAC and AODA Alliance and looks forward to providing an update on them “in the near future.”

The Wednesday call to action comes after a story by The Globe and Mail this month that found families with children who have intellectual and developmental disabilities are increasingly being asked to pick up children early, start their school day later or keep them home for days. Most school districts don’t formally track these kinds of exclusions or shortened days. Parent and advocacy groups have informally documented school exclusions, and have seen them rise in frequency. In December, the OAC wrote a letter to Ms. Thompson asking to meet about the issue, which it says has gone unanswered.

“I want to emphasize how incredibly vulnerable a family feels in the face of the might and the resources of a publicly funded school board and all of their lawyers,” Ms. KirbyMcIntosh said. “They are terrified and they are distressed. This is not a new problem, but until recent coverage sparked by The Globe and Mail … it’s now a subject finally getting public attention.”

The Globe’s January story highlighted the plight of Grayson Kahn, a seven-year-old boy with autism and behavioural issues who was expelled from his school in Guelph, Ont. The expulsion followed an incident where the boy struck an educational assistant, leaving her with bruises, scrapes and a concussion. Expulsions such as Grayson’s are rare – they involve a principal’s report and a hearing by a school board committee. Advocates for students with disabilities say exclusions are far more common and are typically informal; parents will be given oral notice of a decision made at a principal’s discretion.

Luke Reid, a lawyer at ARCH Disability Law Centre, said there is no formal legislative or policy limit on how long exclusions can last, and that there is often an absence of due process. “It’s sort of the Wild West in some ways,” he said.

Ms. Kirby-McIntosh added there was “an appalling lack of data” chronicling the frequency at which such exclusions are occurring. “Each principal is essentially allowed to be a law unto themselves,” she said. “We are not saying principals are bad people. They are working with an antiquated funding formula, a shortage of qualified staff and an increasingly complex student population.”

Sam Hammond, president of the Elementary Teachers’ Federation of Ontario (ETFO), said he agrees that long-term exclusions are “extremely problematic,” and endorsed the idea of a stakeholders meeting. The ETFO has been calling for an increase in direct funding for students with special educational needs, he said. “I say this with all due respect to parents of autistic children and autistic children: What are teachers and administrators supposed to do when they have gotten to the end of the supports and the resources that are available to them?” Mr. Hammond asked.

The OAC and the AODA Alliance didn’t ask for additional resources Wednesday; Mr. Lepovsky said that “especially in the current economic situation and the current discretions in terms of funding,” he thought such a request would slow down their potential progress. “This government’s got fiscal constraints. It’s not a big expenditure to just get us to the table and get us talking, and for them to listen. And it’s not a big constraint to impose the policy directive,” he said.

The Ontario Principals’ Council disputes the idea that decisions on exclusions are made exclusively by a principal, and says it has logged an “unfortunate increase” in incidents involving violent or aggressive student behaviour in recent years. It said on Wednesday that exclusions were used only after other strategies proved unsuccessful.

January 30, 2019 Statement by the Ontario New Democratic Party

Originally posted at https://www.ontariondp.ca/news/its-time-real-action-address-school-exclusions-ndp-mpps January 30th, 2019

It’s time for real action to address school exclusions: NDP MPPs

QUEEN’S PARK — Ontario NDP MPPs Joel Harden (critic for Accessibility and Persons with Disabilities), Marit Stiles (Education critic) and Monique Taylor (critic for Child and Youth Services) released the following statement:

“More than half of all students with an intellectual disability have been excluded from school at least once, impacting the quality of their education and placing a burden on parents who have to stay home with them.

It should never have come to this, and Doug Ford’s cuts to education will only take the problem of exclusions from bad to worse. Instead of cutting back on special education that was already neglected by the previous government, we need new investment in classroom supports so the horrible option of exclusion is not exercised.

We also need to strengthen, not eliminate, class size caps so that students with disabilities get the one-on-one attention they require.

The Ford government must also immediately reconvene the AODA standards development committees that have been frozen since the June election, including one on K-12 education, to address barriers affecting students with disabilities.

It’s time for this government to stop neglecting accessibility in our education system, and start working with disability advocates to make sure students with disabilities can thrive.”

Contact

2069 Lakeshore Blvd West, Suite 201

Toronto, Ontario. M8V 3Z4

Toll free phone: 1-866-390-6637

Phone: 416-591-8637

Fax: 416-599-4820

Email: [email protected]

Toronto Star Online January 30, 2019

Letters to the Editor

Originally posted at https://www.thestar.com/opinion/letters_to_the_editors/2019/01/30/legislation-vital-to-improving-accessibility.html

Legislation vital to improving accessibility

The limits to legislating workplace accessibility, Jan. 20

Karen Stintz has great intentions, but the wrong idea. She’s proud of progress on accessibility for people with disabilities at Variety Village, where she’s CEO, but she’s wrong to blast the need for laws to tear down the many accessibility barriers impeding people with a physical, mental, sensory or other disability when trying to get a job or education, ride public transit, use public services, shop in stores or eat in restaurants.

Legislation alone isn’t the entire solution, but it’s proven here and abroad to be a vital and indispensable part. Stintz wrongly invents a false dilemma, claiming: “Accessibility and inclusion aren’t about legislation; they are about a social and cultural shift and deep understanding of community.” Countries lacking strong accessibility laws, or which don’t effectively enforce those laws, simply make far less progress on accessibility.

There was great promise when Ontario’s legislature unanimously passed the Accessibility for Ontarians with Disabilities Act, 2005. We people with disabilities campaigned tirelessly for it for a decade. Where its impact has fallen short, is not because we don’t need a good law, it’s because the previous government did a poor job implementing and enforcing it. So far, the Doug Ford government hasn’t done any better.

Do you like TTC’s audible announcements of all route stops, for blind people like me? These didn’t come from a culture change at TTC. Those announcements exist because I used the law. I successfully sued under the Human Rights Code. The TTC fought me every step of the way. Thankfully we had laws on accessibility.

When Variety Village commendably offers accessibility training to others around Ontario, it will find audiences more receptive, because accessibility is the law. I encourage Stintz to give this a serious re-think and learn from those of us who’ve battled at the front lines of Ontario’s non-partisan campaign for over two decades, before claiming that accessibility laws have no role to play at all.

David Lepofsky, Chair of the Accessibility for Ontarians with Disabilities Act Alliance, Toronto

Toronto Star   January 20, 2019

Originally posted at https://www.thestar.com/opinion/contributors/2019/01/20/the-limits-to-legislating-workplace-accessibility.html

The limits to legislating workplace accessibility

Karen Stintz Opinion

Accessibility and inclusion aren’t about legislation, they are about a social and cultural shift and deep understanding of community.

The Ontario government tried to legislate change when it passed the Accessibility for Ontarians with Disabilities Act in 2005. The act is intended to identify and break down barriers for people with a disability and is multi-faceted.

The legislation covers areas such as customer service, information and communication, employment standards, transportation standards and design of public spaces. Ultimately, the goal is to create a culture of inclusion in government, education and in workplaces.

Although the act has heightened our collective awareness of inclusion as a worthy goal, no government can legislate culture change within any organization.

In spite of the best efforts of governments and employers across the province, the culture of inclusion remains elusive to many.

At Variety Village, we have achieved a culture of inclusion; however, our success was not determined because we are better at implementing legislation.

Our success hinges on the fact that 50 per cent of the population we serve has a disability so we are already ahead of the curve. Since we have a critical

mass of individuals involved in the organization that either have a disability, or are knowledgeable about disabilities, we are constantly evolving and

responding to the changing needs of our environment.

Variety Village is a leader in inclusion and, now, our organization is taking what it has learned and is bringing that knowledge to communities across

Ontario.

We create agents of change for inclusion through programming that is designed so every child can participate.

Our programs are integrated, which means all participants have the opportunity to become the best version of themselves.

It takes resources and understanding but our programs teach children how to participate in, and create, a barrier-free environment.

Our staff are trained in a culture of inclusion and many go on to other occupations where they become the agents of change in those workplaces. For example,

many camp councillors at Variety Village have become special educational assistants for the school board.

If any organization wants to undertake major organizational change, there needs to be a critical mass of support. Very few organizations are going to have

50 per cent of their employees, students or customers with a disability but every organization needs to have a critical mass of individuals who truly understand

the importance of accessibility if there is going to be a culture of inclusion.

Anyone in an organization can become an agent of change for inclusion by believing the benefits of inclusion are not for the individuals who are accommodated

but for everyone in the community.

Karen Stintz is CEO of Variety, the Children’s Charity, and Variety Village.



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Disability Advocates Call for Action Limiting When Principal Can Exclude Student from School – AODA Alliance


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

ONTARIO AUTISM COALITION

NEWS RELEASE – FOR IMMEDIATE RELEASE

Disability Advocates Call for Action Limiting When Principal Can Exclude Student from School

January 30, 2019 Toronto: At a news conference in the Queen’s Park Media Studio today at 10:30 a.m., disability advocates will unite to demand that the Ford Government rein in the sweeping power of school principals to exclude a student from school. The Ford Government has so far announced nothing on this. It hasn’t answered the Ontario Autism Coalition’s December 13, 2018 letter to Education Minister Lisa Thompson, which asks the minister to meet about exclusions. It hasn’t publicly responded to recent media focusing on this issue. See e.g. the Globe and Mail.

“School principals have a sweeping, unmonitored discretion to exclude students from school. It’s an especially unfair barrier for students with disabilities, who are too often forced to stay home because the school is failing to provide appropriate supports,” said Laura Kirby McIntosh, President of the Ontario Autism Coalition, a non-profit political advocacy group for people with autism and their families. The principal just has to think that the student “would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils;” (Education Act s. 265)

“In over 5,000 Ontario schools, each principal is allowed to be a law unto themselves. They are not required to keep track of how many students they exclude, or for how long, or for what reason, or to report this information to anyone. They don’t have to tell the student and their family the reason for their exclusion from school or to advise them of their right to appeal,” said David Lepofsky, visiting professor at Osgoode Hall Law School and chair of the non-partisan AODA Alliance (which campaigns for disability accessibility, including in Ontario’s education system.)

“Many families have contacted ARCH Disability Law Centre when their child has been denied access to school via formal exclusions or otherwise. It is not unusual in these circumstances that the ultimate problem is that the school has failed to meet its duty to accommodate the student’s disability. With legal assistance, students are more likely to receive appropriate accommodations to facilitate their return to school. Without this assistance, there are many cases where students have endured many months of exclusion,” said Luke Reid, Staff Lawyer at ARCH.

At the news conference, the AODA Alliance and Ontario Autism Coalition will jointly call on the Ford Government to take these immediate actions:

  1. The Minister of Education should now convene a summit of key stakeholders to get input on legislation and policy changes to fix this festering mess.
  2. In the interim, the Minister of Education should immediately issue a policy direction to school boards, imposing restrictions on when and how a principal may exclude a student from school.

Contact:

Background Facts

* There are at least 340,000 students with special education needs in Ontario or 1 out of every 6 students in Ontario-funded schools. That figure does not include all students with disabilities. Therefore at least one-third of a million students with disabilities are exposed to the principal’s arbitrary power to refuse to admit them to school.

* Section 265 of the Education Act requires each school principal to refuse to admit ‘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.’

* In the absence of proper oversight of school boards by the Ministry of Education, it is hard to find out whether a school board has a policy on the use of the principal’s power to exclude a student from school, or how often students are excluded from school, or for how long they are kept out. The AODA Alliance has a team of Osgoode Hall Law School law students now surveying the boards and their websites.

* It is wrong to confuse the issue of exclusions from school with the issue of when students with special education needs should be included in the regular classroom. When a principal refuses to admit a student to school, that means that the student is entirely shut out from school, pure and simple. They are excluded from any and all classrooms, be it inclusion in the regular classroom or taking part in a separate or special education class. Any discussion over whether a student should be placed in the regular classroom (inclusion or integration) or in a special education classroom cannot even begin when the principal forbids that student from even coming to school at all.

* In January 2018, the Special Education Advisory Committee of the Toronto District School Board submitted a detailed recommendation to the school board trustees. It recommended that the TDSB place clear limits on when a principal can refuse to admit a student to school. One year later, the TDSB just circulated a draft procedure on exclusions from school, which incorporates some of SEAC’s recommendations.

* In a January 7, 2019 article, the Globe and Mail reported that:

“A Globe and Mail analysis found that families with children who have intellectual and developmental disabilities are increasingly being asked to pick up kids early, start the school day later or simply keep them home for days. Most school districts don’t formally track these exclusions or shortened days. Informally, parent and advocacy groups have documented the problem and have seen a rise in the incidence of these events.”

* “People for Education, an Ontario advocacy group, has reported an increase in the number of elementary and secondary school principals who report recommending a special-education student stay home for at least part of a day. The organization found 58 per cent of elementary school heads and 48 per cent of high school principals made the request, up from 48 per cent and 40 per cent, respectively, in 2014.”

* A recent report by ARCH Disability Law Centre and its partners found that more than half of all students with intellectual disabilities experienced a “shortened day,” losing on average, almost 4 hours out of a 6 hour school day. Almost half of all parents surveyed reported that they had to keep their child home at one time or another as a result of accommodation issues. Finally, the report stated that 25% of parents reported that they had been “told” not to bring their child to school that day, with many of them stating that no reasons were given or that when they were given, they often related to staffing shortages or other accommodation issues.

* The Ministry of Education’s policy directive to school boards PPM-145, available at http://www.edu.gov.on.ca/extra/eng/ppm/145.pdf  states:

“In Part X of the Education Act, clause 265(1)(m) permits a principal to “refuse to admit” to the school or to a class someone whose presence in the school would be “detrimental to the physical or mental well-being of the pupils”. This provision is frequently referred to as the “exclusion provision.” Exclusion is not to be used as a form of discipline. If a principal does decide that it is necessary to exclude a student from the school, the principal is expected to notify the student’s parents of the exclusion as soon as possible in the circumstances, and to inform them of their right to appeal under clause 265(1)(m).”

* Last September, the Ontario Human Rights Commission released a policy on accessible education for students with disabilities. Its recommendations to the Ontario Government included, among other things:

  1. Identify and end the practice of exclusion wherein principals ask parents to keep primary and secondary students with disabilities home from school for part or all of the school day (and the role that an improper use of section 265(1)(m) of the Education Act may be playing in this practice).

* The AODA Alliance survey of school boards, still in progress, has yielded the following partial and interim results so far:

* Based on results so far, only about 10% of boards, or 9 boards, have provided a policy that addresses refusals to admit. Four school boards told the AODA Alliance that they wouldn’t say if they had a policy until research approval was obtained from a Research Advisory Committee.

* Before the 2018 Ontario election, a Government-appointed committee was investigating disability barriers in Ontario’s school system, in order to recommend reforms under the Accessibility for Ontarians with Disabilities Act. AODA Alliance Chair David Lepofsky is a member of the Government-appointed K-12 Education Standards Development Committee. He planned to put the problem of exclusions from school on that committee’s agenda. However, the work of that committee has been frozen for the past 7 months in the wake of last June’s Ontario election. This is so despite the fact that the Conservative Party, while in opposition, had demanded that the former Ontario Government establish that very committee. For more on that issue, visit www.aodaalliance.org/education

* If each school board used a unique attendance code to mark the absence of a student due to the principal’s refusing to admit the student to school, school boards and the Ontario Government would have instant access to comprehensive data on the amount of time that students are kept from attending school on this ground. However, the province does not direct that a unique attendance code be used for that purpose. The Ministry of Education’s policy direction entitled

Enrolment Register Instructions for Elementary and Secondary Schools” for 2018-2019 states: the following on the duty of school boards to keep records on the refusal to admit a student to school: (which, as far as we have ascertained, is not provincially monitored and enforced)

“Excluded Pupils

Pupils excluded under clause 265(1)(m) of the Education Act should not be demitted from the enrolment register as the school board is actively working to re-integrate the pupil back into the education system.

During the exclusion period, the pupil’s absence is recorded with a “G” on the Daily Attendance Record. An excluded student can remain on the enrolment register until the end of the current school year if the board is actively working to re-integrate the pupil back into the education system.

Retain the following for audit purposes:

  • Documentation that shows the reason for the exclusion.
  • Documentation of successful notification of exclusion and the response between the school board and the pupil (if the pupil is an adult) or the pupil’s parent or guardian
  • Documentation of the plan (signed by the principal) to re-integrate the pupil into the education system.
  • Documentation of communication with other parties involved with re-engaging the pupil (e.g. social agencies.)
  • Data on the number of students who have been excluded during the school year (including the name of the student, OEN, length of exclusion, and the reason for exclusion.)”



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The Ford Government Continues Its Freeze on the Work to Remove Barriers in Ontario’s Education System Against Hundreds of Thousands of Students With Disabilities, While the Media Shines A Much-Needed Spotlight on One Troubling Barrier – The Sweeping Power of School Principals to Exclude a Student from 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

The Ford Government Continues Its Freeze on the Work to Remove Barriers in Ontario’s Education System Against Hundreds of Thousands of Students With Disabilities, While the Media Shines A Much-Needed Spotlight on One Troubling Barrier – The Sweeping Power of School Principals to Exclude a Student from School

January 24, 2019

          SUMMARY

There have been 216 days since work on developing a new Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act was frozen in the wake of the election of Ontario’s new Government. The work of the two Education Standards Development Committees, appointed to recommend reforms in Ontario’s school system (the K-12 Education Standards Development Committee) and in Ontario’s colleges and universities (the Post-Secondary Education Standards Development Committee), still remains on hold. School boards, colleges and universities continue to leave disability barriers in place. They spend public money to create new barriers, without an AODA Education Accessibility Standard in place to stop that from continuing.

In the meantime, It is great that the Globe and Mail recently focused attention on one of the troubling and recurring barriers in Ontario’s school system that we have wanted to raise at the K-12 Education Standards Development Committee – one which the Ontario Human Rights Commission has identified as a human rights issue. It is the sweeping and arbitrary power of any school principal to exclude a student from school. The outdated 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; …”

We have been concerned that this power can be and is misused, especially to keep some students with special education needs away from school. Below we set forth a powerful article in the January 9, 2019 edition of the Globe and Mail focusing on this issue. An earlier January 5, 2019 Globe and Mail article also addresses this issue.

This unfair power is sometimes called the power to exclude a student from school and at other times is called the power to refuse to admit a student to school. It needs to be substantially reined in.

The status quo is unacceptable. Principals have a sweeping discretion to exclude students from school, without any real accountability. Students and their families need not be given proper notice, reasons or due process. Refusals to admit can go on for days, weeks or months. A school board need never track how often students are excluded from school, or for how long, or for what reason.

Last September, the Ontario Human Rights Commission released a new policy on accessible education for students with disabilities. Its recommendations to the Ontario Government included, among other things:

“9. Identify and end the practice of exclusion wherein principals ask parents to keep primary and secondary students with disabilities home from school for part or all of the school day (and the role that an improper use of section 265(1)(m) of the Education Act may be playing in this practice).”

There is a much better way to deal with this issue. The Special Education Advisory Committee (SEAC) of the Toronto District School Board passed a detailed motion over one year ago, in January 2018. It called for TDSB to adopt a policy that will ensure that this power is not abused or misused. It includes great ideas on how to deal with this issue.

We support that TDSB SEAC recommendation, which we set out below. AODA Alliance Chair David Lepofsky led the development of that recommendation while he served as chair of TDSB’s SEAC. All are still awaiting a new TDSB policy or procedure on refusals to admit a student to school. Earlier this month, TDSB staff told the TDSB SEAC that a draft policy would be shared with them shortly. We do not yet know how much, if any, of the SEAC recommendation will be adopted.

We offer two important observations on the January 9, 2019 Globe and Mail article that is set out below. First, the article, which is otherwise very commendable, incorrectly confuses the issue of exclusions from school or refusals to admit a student to school, on the one hand, with issues surrounding inclusion of students with disabilities in a regular classroom on the other. This can be a distraction from the problems with the use of the power to exclude a student from school.

When a principal refuses to admit a student to school, that means that the student is entirely shut out from school, pure and simple. They are excluded from any and all classrooms, be it inclusion in the regular classroom or taking part in a separate or special education class. Any discussion over whether a student should be placed in the regular classroom (inclusion or integration) or in a special education classroom does not even arise when the principal forbids that student from even coming to school at all. It is wrong to confuse the issue of exclusions from school with the issue of when students with special education needs should be included in the regular classroom.

Second, the Globe article focuses in part on situations where a principal excludes a student from school due to violence. Yet the concern has been raised that principals don’t only refuse students from school due to violence.

When will the Ford Government let us know what it is going to do with the Education Standards Development Committees? As we announced in the January 20, 2019 AODA Alliance Update, the Government now says it is awaiting the report of the David Onley AODA Independent Review before it decides what to do with these Standards Development Committees. The same goes for the Health Care Standards Development Committee, whose work has also been frozen since the June 2018 Ontario election. CBC asked the Ford Government about this freeze on the work of Standards Development Committees  in August and November 2018. Back then, the Ford Government did not say it was awaiting David Onley’s report. Had it done so, we would have pressed Mr. Onley to immediately issue an interim report addressing the need to lift that freeze.

We urge one and all to send David Onley a short email as soon as possible. Please tell him if you support the AODA Alliance’s January 15, 2019 brief on how to strengthen the AODA’s implementation and enforcement, including our call for the Ford Government to immediately lift its freeze on the Education and Health Care Standards Development Committees . You can email David Onley at [email protected]

          MORE DETAILS

 Globe and Mail,  January 7, 2019

Originally posted at https://www.theglobeandmail.com/canada/article-advocates-for-students-with-disabilities-call-on-ontario-to-stop/

Autism advocates push Ontario to ban school exclusions

By CAROLINE ALPHONSO

Staff

Autism advocates in Ontario are calling on the province to remove a principal’s power to exclude students from school for an indefinite period, saying it is being misused as a disciplinary measure that disproportionately targets children with special needs.

A Globe and Mail analysis found that families with children who have intellectual and developmental disabilities are increasingly being asked to pick up kids early, start the school day later or simply keep them home for days.

Most school districts don’t formally track these exclusions or shortened days. Informally, parent and advocacy groups have documented the problem and have seen a rise in the incidence of these events.

The Ontario Autism Coalition (OAC) wrote in a recent letter to Education Minister Lisa Thompson that principals are using what it deemed an “outdated” provision in the Education Act to exclude children from school. The group said it violates the rights of children to an inclusive education and has requested a meeting with the minister.

On Saturday, The Globe highlighted the story of Grayson Kahn, a seven-year-old boy diagnosed with autism who was expelled in November from his school in Guelph, Ont., after an incident in which he struck an educational assistant, leaving her with bruises, scrapes and a concussion. Expulsions such as Grayson’s are rare and involve a report by the principal and a hearing by a committee of the school board.

Advocates for students with disabilities say exclusions are much more common and are generally informal: Parents are often given verbal notice; it is usually done at a principal’s discretion; and it can last for months.

Laura Kirby-McIntosh, president of the OAC, said in an interview on Sunday that her parentrun group understands that principals are struggling to support children with very complex needs, but refusing to admit them to school is problematic. She said she’s seen one child being excluded from school for a year. Her own son was excluded for six months.

“We recognize as an organization that our kids are challenging to educate. The solution to that is complex. But the solution that’s being used now is we’ll just throw the kids out,” she said.

“Our kids are not disposable.

They’re not easy to educate. And for some of them, it may be that full inclusion is not the solution.

But neither is full exclusion.”

A spokeswoman for Ms. Thompson did not address the question of how the minister plans to address the situation.

In an e-mail statement, Kayla Iafelice said that exclusions are not to be used as a form of discipline. She added: “Our government’s top priority will always be to ensure that every student in Ontario has access to a meaningful education in safe and supportive school environments.”

Including special-needs students with behavioural issues in regular classrooms has become a matter of debate in many parts of the country, and some educators wonder if it’s gone too far without a rethinking of how children with diverse needs are taught.

Teachers report an increase in violence in schools, from threats to physical attacks, that they say makes teaching more difficult.

Glen Hansman, president of the British Columbia Teachers’ Federation, said there has been some good work over the past few years to recognize and address the issue of violence in classrooms. But “we still have a long way to go because … the supports in the classrooms aren’t necessarily as they should be to make sure that people are safe,” he said.

People for Education, an Ontario advocacy group, noted an increase in the number of elementary and secondary school principals who report recommending a special-education student stay home for at least part of a day. The organization found 58 per cent of elementary school heads and 48 per cent of high school principals made the request, up from 48 per cent and 40 per cent, respectively, in 2014.

Similarly, a survey of parents of children with special needs released in November, 2017, by the BC Confederation of Parent Advisory Councils found that children with special needs were missing anywhere from half an hour to three hours of school a day, or being told to stay home because of staff shortages. A number of children, the survey found, were sent home because of behavioural incidents at school and these exclusions, which were undocumented, would continue for days or weeks.

The North Vancouver and Greater Victoria school districts passed motions this fall to record how many children with special needs are being asked to stay home, or are sent home early or dropped off late and being excluded from field trips.

“It is useful, for the school district and for parents, to have formally tracked information about modified instructional schedules. This can help to provide the best possible educational programs for all students,” said Deneka Michaud, a spokeswoman for the North Vancouver School District.

Toronto District School Board Special Education Advisory Committee (SEAC)

Motion #6 Need for TDSB to Establish A Policy on “Refusals to Admit”

BACKGROUND

At its February 2017 meeting, SEAC received a presentation by the ARCH Disability Law Centre. It raised concerns that school boards, including TDSB, at times inappropriately use “refusals to admit” students to school. This issue can significantly affect students with special education needs and all students with disabilities. A school or principal may tell a their family to keep the student at home for hours, days, or longer, without giving reasons or following safeguards required when a student is suspended or expelled.

ARCH told SEAC it learned that TDSB did not then centrally collect statistics on how often these exclusions occur. ARCH expressed concerns (not limited to TDSB) for example, that a school may tell a family to keep a student with a disability at home, either because proper accommodations have not yet been arranged at school, or because supports, such as a Special Needs Assistant, were away. ARCH said when ARCH lawyers intervene, these situations are more likely corrected (again, not limited to TDSB).

TDSB staff made presentations to SEAC at its May, June and November 2017 meetings. TDSB staff said TDSB has no policy on the use of refusals to admit. Practices can vary from school to school. TDSB has a procedure (not a policy) regarding appeals from a refusal to admit. TDSB staff  have been working on draft reforms after SEAC raised this.

Recommendation

SEAC recommends as follows:

TDSB Needs a Refusal to Admit Policy
  1. TDSB should promptly adopt a comprehensive, mandatory policy on when TDSB will exercise any power to refuse to admit a student to school.
What is a Refusal to Admit?
  1. The refusal to admit policy should have no loopholes that would let a principal or teacher exclude a student informally without complying with the policy.
  2. a) A “refusal to admit” should include any time TDSB 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
  3. b) A refusal to admit includes a TDSB request or direction that a student only attend school for part of the regular school day.
  4. c) A refusal to admit 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 TDSB is willing to let the student attend school.
Ensuring Alternative Education to Student Whom TDSB Refuses to Admit to School
  1. The “refusal to admit” policy should require TDSB to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program, and that TDSB keeps record of and publicly accounts for its doing so.
When a Refusal to Admit is Allowed
  1. The policy should specifically spell out the situations when TDSB can consider refusing to admit a student, including:
  2. a) A refusal to admit should only be imposed when necessary to protect health and safety.
  3. b) A refusal to admit should go no further and last no longer than is necessary.
  4. c) 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.
  5. d) 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. TDSB should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school.
  6. e) The policy should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.
  7. f) A refusal to admit should not be allowed to last more than five consecutive school days.
  8. g) TDSB should 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.
  9. h) When TDSB 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.
  10. i) TDSB should not refuse to admit a student with a disability on the ground that TDSB staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.
Extension of Refusal to Admit
  1. The policy should set these terms:
  2. a) If after a refusal to admit expires, TDSB wants to extend it, TDSB staff must justify it.
  3. b) The student’s family need not prove why the student should be allowed to return.
  4. c) 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.
  5. d) An extension should not be permitted if TDSB has not put in place an effective alternative option for the student to receive education.
Fair Procedure
  1. The “refusal to admit” policy should set out fair procedures that TDSB must follow when refusing to admit a student. These procedures should ensure accountability of TDSB and its employees, including:
  2. a) A student and their families should have all the procedural protections that are required when TDSB is going to impose discipline such as a suspension or expulsion.
  3. b) The principal should be required to notify the school superintendent in writing that the principal is going to refuse to admit a student and the reasons for this.
  4. c) The prior review and approval of the superintendent should be required. 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.
  5. d) The superintendent should independently assess whether TDSB has sufficient grounds to refuse to admit, and has met all the requirements of the TDSB refusal to admit policy (including ensuring alternative education programming is in place for the student).
  6. e) 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 TDSB 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.
  7. f) 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 TDSB is taking to expedite the student’s return to school and time lines for those steps, the TDSB’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.
  8. g) These procedures should again be followed any time TDSB extends a refusal to admit.
  9. h) 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 the executive superintendent of the Learning Centre where that student ordinarily attends.
  10. i) 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.
Appeals
  1. The refusal to admit policy should include a fair and prompt appeal process which includes:
  2. a) The appeal should be to officials at TDSB who had no involvement with the initial decision to refuse to admit or any extensions of it.
  3. b) TDSB 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.
  4. c) The appeal should include an in-person meeting with the student and family.
  5. d) The appeal should be heard and decided very promptly.
  6. e) On the appeal, the TDSB 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.
  7. f) A decision on the appeal should promptly be provided in writing with reasons.
Accountability and Transparency of TDSB’s Refusals to Admit
  1. The policy should include:
  2. a) TDSB 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.
  3. g) 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 special education needs or otherwise 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.
  4. c) TDSB should centrally collect these reports.
  5. d) TDSB 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 , students with special education needs or any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.
Funding for Emergency Disability Accommodation Needs
  1. 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, the TDSB 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.

Interim Safeguards

Starting immediately, and until a new refusal to admit policy is approved, TDSB should require that any formal or informal refusal to admit a student be in writing, with reasons for it, and with the student’s family being told of their right to appeal under the existing TDSB appeal procedure. TDSB should require that any refusals to admit during this period be centrally reported in writing, with statistics reported quarterly to the Board, the public and SEAC.



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