Send Us Feedback on the Draft AODA Alliance Framework for the Health Care Accessibility Standard


And–Results of The December 3 Celebration of the 25th Birthday of the Grassroots AODA Movement

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org [email protected] Twitter: @aodaalliance

December 5, 2019

SUMMARY

After a very busy year, this may be our last AODA Alliance Update until the New Year. It is full of important news for you.

We thank one and all for your ongoing support for and help with our campaign for accessibility for people with disabilities. We wish one and all a safe and happy holiday season and a barrier-free new year!

1. Send Us Feedback on Our Draft of an AODA Alliance Proposed Framework for the Promised Health Care Accessibility Standard

We have made public a draft of an important brief. We want your feedback on it before we finalize it. This time, we are focusing on disability accessibility barriers in the health care system.

The Ontario Government is working on developing a Health Care Accessibility Standard under the AODA. It would address barriers in the health care system that patients with disabilities and their support people with disabilities face in the health care system. The Health Care Standards Development Committee is developing recommendations for the Ontario Government on what the Health Care Accessibility Standard should include.

To help the Health Care Standards Development Committee with this work, we plan to send it an AODA Alliance Proposed Framework for the Health Care Accessibility Standard. We have written a 24-page draft of this Framework. We are eager for your feedback. This draft is the result of a great deal of work. It builds on feedback that our supporters have shared with us. We’ve gotten tremendous help from the ARCH Disability Law Centre and from a wonderful team of volunteers who are law students at the Osgoode Hall Law School.

Please download and read our draft of this Proposed Framework for the Health Care Accessibility Standard. You can download it in an accessible MS Word format by visiting https://www.aodaalliance.org/wp-content/uploads/2019/12/Dec-2-2019-AODA-Alliance-Draft-of-Proposed-Framework-for-Health-Care-Accessibility-Standard.docx

Send us your feedback by December 20, 2019 by emailing us at [email protected]

Also, please encourage your friends and family members to share their feedback with us. We aim to use that feedback to finalize this Proposed Framework for the Health Care Accessibility Standard and submit it to the Ontario Government and the Health Care Standards Development Committee in early January 2020.

Here are the headings in this draft Framework:

1. What Should the Long-term Objectives of the Health Care Accessibility Standard Be?

2. A Vision of An Accessible Health Care System

3. General provisions that the Health Care Accessibility Standard Should Include

4. The Right of Patients with Disabilities and Their Support People with Disabilities to Know about The Health Care Services Available to Them, about Available Disability-Related Supports and Accommodations, about Important Information Regarding Their Diagnosis and Treatment, and How to Access Them

5. The Right of Patients and Their Support People with Disabilities to Get to Health Care Services

6. The Right of Patients and Their Support People with Disabilities to Get into and Around Facilities Where Health Care Services are Provided

7. The Right of Patients and Their Support People with Disabilities to Accessible Furniture and Floor Plans in Health Care Facilities

8. The Right of Patients with Disabilities to Identify their Disability-Related Accessibility Needs in Advance and Request Accessibility/Accommodation from a Health Care Provider or Facility

9. The Right of Patients with Disabilities to Accessible Diagnostic and Treatment Equipment

10. The Right of Patients with Disabilities to the Privacy of Their Health Care Information

11. The Right of Patients with Disabilities and Support People with Disabilities to Accessible Information and Communication in Connection with Health Care

12. The Right of Patients with Disabilities to the Support Services They Need to Access Health Care Services

13. The Right of Patients and their Support People with Disabilities to Health Care Providers Free from Knowledge and Attitude Barriers Regarding Disabilities

14. The Right of Patients and Support People with Disabilities to Accessible Complaint Processes at Health Care Providers’ Self-Governing Colleges and To Have Those Colleges Ensure that the Profession They Regulate Are Trained to Meet the Needs of Patients with Disabilities

15. The Right of Patients with Disabilities to Systemic Action and Safeguards to Remove and Prevent Barriers in Ontario’s Health Care System

16. The Need to Harness the Experience and Expertise of People with Disabilities Working in the Health Care System, To Expedite the Removal and Prevention of Barriers Facing Patients and Their Support People with Disabilities

2. A Very Successful Day to Celebrate the 25th Anniversary of the Grassroots AODA Movement at the Ontario Legislature on December 3, 2019

On Tuesday, December 3, 2019, the International Day of People with Disabilities, we had a very successful day at Queen’s Park to celebrate the 25th anniversary of the birth of the grassroots movement for the enactment and implementation of strong accessibility legislation in Ontario.

Our 10 a.m. news conference went very well. We are working on getting it posted online. It yielded a detailed article in the December 3, 2019 edition of QP Briefing, an influential news publication about issues at Queen’s Park. We set that article out below.

From 4 to 6 pm, the big birthday party for the grassroots AODA movement was a huge success. Some 200 people signed up to attend. There was also a great turnout of MPPs from all the political parties.

Both the 25th anniversary of the AODA movement and the International Day of People with Disabilities were mentioned several times in the Legislature. Below we set out four key excerpts from the Legislature’s official transcript, called “Hansard.”

Meanwhile, the partying is over and the work must continue. As of today, there have now been 308 days since the Ford Government received the final report of the Independent Review of the AODA’s implementation prepared by former Lieutenant Governor David Onley. The Government did not take the opportunity on December 3 to finally announce a comprehensive plan to implement the Onley Report. This is so even though a spokesperson for Premier Ford’s Accessibility Minister is quoted in the QP Briefing article below as stating that accessibility for people with disabilities is a “top priority.” We are still waiting.

MORE DETAILS

QP Briefing December 3, 2019

On International Day of Persons with Disabilities, advocate says Ontario “nowhere near close” to accessibility goal

Sneh Duggal

Disability advocateDavid Lepofskywarned Ontario is “not on schedule” to meet its goal of becoming fully accessible by 2025 as people across the globe marked the International Day of Persons with Disabilities on Dec. 3.

“That was ambitious, but doable,” Lepofsky said of the goal that is outlined in theAccessibility for Ontarians with DisabilitiesAct, legislation that was passed in 2005.”With just over five years left, we’re not on schedule, we’re nowhere near close.”
The legislation called on the province to develop, implement and enforce accessibility standards “in order to achieveaccessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025.”
The province’s former lieutenant governorDavid Onleywas tasked with reviewing the implementation of the AODA and said in a report tabled earlier this year that the “promised accessible Ontario is nowhere in sight.”

“There’s no question we’ve made progress, but nowhere near the progress we need and nowhere near the progress the law guaranteed to us,” said Lepofsky, who is chair of an advocacy group called the AODA Alliance.

Lepofsky was at Queen’s Park on Tuesday to discuss accessibility issues in the province, although his media availability took on a slightly different format. He was joined byLaura Kirby-McIntosh, president of the Ontario Autism Coalition, who fired numerous questions at Lepofsky about his years of work advocating for people with disabilities. The AODA Alliance also marked the 25th anniversary of the movement its chair helped spearhead on the “enactment and effective implementation of accessibility legislation in Ontario” with a celebration at Queen’s Park.

During his fireside chat with Kirby-McIntosh, Lepofsky noted that barriers remain in many areas for people with disabilities.

“This is a province where many of our buildings are ones that are hard to get into and hard to get around, our public transit systems are full of accessibility barriers,” he said. Lepofsky said the education system meant to serve all students “treats students with disabilities as second-class citizens,” and that the health-care system is “full of barriers” such as getting accessible information about a diagnosis, treatment or medication.

Lepofsky said while the provincial government had a good start at trying to implement the legislation after it was passed in 2005 until about 2011, progress started to slow down “to a virtual snail’s pace.”

“And the new government ofDoug Ford, rather than speed things up, slowed things down,” Lepofsky said. He said while he appreciates statements of support from the government, “this province right now has no plan and this current government has no plan to get us to full accessibility by 2025.”

As part of the implementation of the AODA, various committees were struck and tasked with proposing standards that could be turned into regulation in areas like transportation and customer service.

Lepofsky criticized the Progressive Conservative government for “months of delay” in getting some of the committee work underway. He’s involved in one of the committees and said work is being done.

RaymondCho,the minister responsible for seniors and accessibility, said earlier this year that the government had resumed the Employment Standards Development Committee and the Information and Communications Standards Development Committee last fall.

“I am proud to say that these committees have already met and completed their work,” the minister said at the time.

He said the government also resumed the education and health standard development committees in March, and that the chairs “have been engaged with the ministry and are working to develop new work-plans.”

In response to a query during question period from NDP MPPLisa Gretzkyabout when the government would put forward a “comprehensive plan to improve the lives of people living with disabilities,” Cho thanked Onley for his report and pinned some blame on the previous Liberal government.

“The previous government had 14 years to improve the AODA. Mr. Onley said in his report that they did so little,” Cho said on Tuesday.

“The government knows that a lot of work needs to be done to make Ontario accessible for everyone. Making Ontario accessible is a journey. This government will continue to take an all-of-government approach to tearing down barriers,” he said.

Pooja Parekh,Cho’s spokesperson, said the government sees accessibility as a “top priority.” A lot of work needs to be done to make Ontario accessible for everyone, and it cannot be completed overnight,” Parekh said. “A key part of this journey includes recognizing that there are 2.6 million people in the province that have a disability.”

She pointed to provincial initiatives focused on accessibility such as the EnAbling Change Program, which funds not-for-profit disability and industry associations “to develop practical tools and guides to help communities and businesses understand the benefits of accessibility.”

“As well, families will experience clearer and more transparent processes when requesting service animals accompany their children to school, no matter where they live in Ontario,” Parekh noted. “The updated elementary Health and Physical Education curriculum reflects the diversity of Ontario students of all abilities.”

In May, NDP MPPJoel Hardenproposed a motion in the House calling on the government to “release a plan of action on accessibility in response toDavid Onley’s review of theAccessibility for Ontarians with Disabilities Act(AODA) that includes, but is not limited to, a commitment to implement new standards for the built environment, stronger enforcement of the Act, accessibility training for design professionals, and an assurance that public money is never again used to create new accessibility barriers.” The motion was struck down by the government.

Speaking just before question period on Tuesday, Lepofsky said he wants to see the provincial government develop a roadmap “on how to get us to full accessibility” and ensure that the government “doesn’t make things worse.”

“We want them to adopt a strategy now to ensure that public money is never used to create new barriers,” he said.

Lepofsky also raised concerns about policies that he feels could post a threat to the safety of those with disabilities. He pointed to the government’s recent announcement to launch a pilot project that would let municipalities allow the use of electric scooters.

He said a priority for him going forward will be on “making sure that the current provincial government doesn’t create a new series of barriers to our accessibility and our personal safety.”

Meanwhile, earlier on Tuesday, the NDP and disability advocates called on the government to boost funding for adults with disabilities, with Gretzky saying the province is facing a “crisis in developmental services.”

Christine Wood, press secretary for Minister of Children, Community and Social ServicesTodd Smith, said the province is providing $2.57 billion in annual funding for developmental services. Wood previously noted that”adults with developmental disabilities may be eligible for funding from the Ontario Disability Support Program and the Passport program.

The Passport program provides funding to adults with a development disability for community classes, hiring a support worker, respite for caregivers or developing skills. Wood noted that “the maximum annual funding an individual can receive through the Passport program is up to $40,250.”

But Gretzky said many young adults face a wait-list for the program and that not every individual receives the maximum amount of support. She said that individuals “fall through the gap” in terms of services when they turn 18.

“The biggest gap that families are facing now and individuals is the fact that they lose all supports and services once an individual celebrates an 18thbirthday,” said Gretzky, who introduced a private member’s bill about a year ago that aimed to address this issue. The bill passed second reading and was referred to committee in February.

“As soon as a person is deemed eligible for adult developmental services, they are automatically approved for $5000 in direct funding through the Passport program,” Wood said. “This allows people to purchase services and support. Following the completion of the developmental services application package, additional funding may be provided as it becomes available.”
She said Smith’s ministry works with the education ministry to provide “transition planning” for youth with disabilities who are transitioning to adulthood.

She also noted that since he took over this file, Smith has been “talking to families, adults with developmental disabilities and service providers about how our government can better serve those who depend on us.”

Excerpts from Ontario Hansard for December 3, 2019

Excerpt 1

Mr. Joel Harden: Today is the International Day of Persons with Disabilities, and we are very privileged in this House to be joined by some of our country’s leaders on that front. I want to mention the great David Lepofsky, who I just got back from a press conference with, Odelia Bay, and Sarah Jama. Thank you for all the work you do for our country, for our province, and for people with disabilities.

Excerpt 2

Hon. Raymond Sung Joon Cho: Today is the International Day of Persons with Disabilities. I would like to invite members to the reception hosted by the All Disability Network later this afternoon in room 228. More than 160 representatives from the disability community will celebrate the 25th anniversary of Ontario’s provincial accessibility legislation. I encourage all members to join me there.

Excerpt 3

Question Period

Assistance to persons with disabilities
Mr. Joel Harden: My question is to the Premier. Today is the international day for people with disabilities. Living with disabilities in Ontario is getting harder for them. This is a crisis, but the actions of this government so far have been to include a cutin halfto planned increases to the Ontario Disability Support Program, and take $1 billion out of the Ministry of Children, Community and Social Services. That has made life worse.

We know that there are 16,000 people waiting for supportive housing in Ontario. We know that people with disabilities experience higher rates of homelessness, violence, food insecurity and poverty. We know that from the time children with disabilities are born to the time they grow old, we’re failing them. We’re failing them right now, and we are failing their caregivers, who suffer from ritual burnout right across this province.

On this day, for the International Day of Persons with Disabilities, will this Premier keep making things worse, or will he finally turn this around and start making life better for people with disabilities?

Hon. Doug Ford: Minister of Children, Community and Social Services.

Hon. Todd Smith: Thanks to the member opposite for the question. It’s very important, particularly on this day. But every day, my ministry is working to ensure that we’re improving supports for those living with disabilities, including all of the types of disabilities that the member opposite mentioned. When it comes to developmental disabilities, we are looking into how we are delivering services to those in the DS sectorthe developmental services sectorto ensure that we get them what they need.

The previous government, for many, many years, didn’t improve supports for these individuals. That’s why we’re taking an approach where we’re looking across all of the different programs that are available. I’ve met with OASISand I know the members opposite were with OASIS when they were here last weekand Community Living and all those different organizations. As a matter of fact, I had a great meeting on Friday with Terri Korkush in my own riding. She is the executive director of Community Visions and Networking in the Quinte region.

There are many different models out there. We’re going to find the ones that work

The Speaker (Hon. Ted Arnott): Thank you very much.

Supplementary, the member for Windsor West.

Mrs. Lisa Gretzky: Back to the Premier: The fact of the matter is, there have been numerous studies and reports done. You have the Nowhere to Turn report done by the Ombudsman. You have the housing task force report that was put forward. You have the Deputy Premier, who sat on a select committee and made recommendations about the crisis for people with disabilities.

It’s time for you to actually act to help those people. On International Day of Persons with Disabilities, it is important to take stock of how we as a society support those living with a disability to lead full and happy lives. The reality is that living with a disability in Ontario is hard, and the government is not doing nearly enough to make life better for people living with disabilities. Wait times under the Assistive Devices Program, which helps people access things like hearing aids and wheelchairs, have ballooned to as much as six months under this Conservative government, and there is still no response to the Onley report, or any plan for Ontario to achieve full accessibility by 2025. In fact, this government is going backwards when it comes to accessibility.

When will this government put forward a real, comprehensive plan to improve the lives of people living with disabilities?

Hon. Todd Smith: Minister for Seniors and Accessibility.

Hon. Raymond Sung Joon Cho: I would like to thank the member for raising that question. But first of all, I would like to thank the Honourable David Onley once again for his work with the AODA review. The previous government had 14 years to improve the AODA. Mr. Onley said in his report that they did so little. When I tabled Mr. Onley’s report, I was very pleased to announce the return of the health and education SDCs, which was one of his recommendations.

The government knows that a lot of work needs to be done to make Ontario accessible for everyone. Making Ontario accessible is a journey. This government will continue to take an all-of-government approach to tearing down barriers.

Excerpt 4

Statements by the Ministry and Responses
International Day of Persons with Disabilities
Hon. Raymond Sung Joon Cho: I’m honoured to rise today to mark the United Nations International Day of Persons with Disabilities. Since 1992, countries around the world have observed December 3 as a time to raise awareness about accessibility.

In Ontario, 2.6 million people have a disability.

Mr. Speaker, in Ontario we continue on our journey to make our province accessible. Our government is committed to protecting what matters most to people with disabilities and their families. By helping to remove accessibility barriers, we are empowering everyone to drive their own futures on their own terms.

We are taking a cross-government approach towards accessibility. This includes working with partners in the disability community, business, not-for-profit and broader public sectors. Collaboration is key in making this happen. By working together, we’ll make a positive difference that will impact the daily lives of people with disabilities.

We are helping improve understanding and awareness about accessibility. For example, our EnAbling Change program provides funding to not-for-profit disability and industry associations to develop practical tools and guides to help communities and businesses understand the benefits of accessibility. Many of these free resources are available on a convenient web page at ontario.ca/accessiblebusiness.

One of the resources is a handbook called The Business of Accessibility: How to Make Your Main Street Business Accessibility Smart. It includes helpful tips to help businesses be welcoming to all customers.

When communities and businesses are accessible, everyone benefits. People with disabilities can take part in everyday life, and businesses gain potential talent, customers and higher profits.

As part of our government’s commitment to break down barriers in the built environment, we are providing $1.3 million to the Rick Hansen Foundation to help make buildings more accessible. This accessibility certification program will provide free accessibility ratings of 250 building over two years.

Just two months ago, we announced ways that Ontario is making its education system more accessible. For example, the updated elementary health and physical education curriculum reflects the diversity of Ontario students.

The K-12 and Post-Secondary Education Standards Development Committees resumed their work this fall to provide advice to government on addressing education barriers.

Also, the processes for families requesting service animals to accompany their child to school are clearer.

We’re providing $1.4 billion in funding for the 2019-20 school year to help school boards install accessibility features in learning environments.

Ontario is advancing accessibility. However, we know that a lot of work still needs to be done. It requires changing attitudes about disability.

As we recognize the International Day of Persons with Disabilities, I invite my MPP colleagues to join me as we work to bring positive change to the daily lives of people with disabilities.

The Speaker (Hon. Ted Arnott): Responses?

Mr. Joel Harden: This is an important day. This is the International Day for Persons with Disabilities. This is also the 25th anniversary, last Friday, of the accessibility movement in Ontario embodied in the Accessibility for Ontarians with Disabilities Act.

I want to acknowledge at this moment, as the critic for people with disabilities in this province, that that act was created by sympathetic people in this chamber, pushed by disability rights activists in this province and around this country.

I want to salute in particular David Lepofsky, who is here, who is the current chair of the AODA Alliance. I also want to salute my friend Sarah Jama, who is here with the Disability Justice Network of Ontario, and who is one of this country’s tireless campaigners for disability rights.

I also want to salute the legacy of Gary Malkowski, who was part of the NDP government from 1990 to 1995, who was the first deaf parliamentarian in this space, and who championed the case brought in 1994 to have an act that was finally realized in 2005 with the AODA.

I want to salute people like Laura Kirby-McIntosh, her daughter, Clara McIntosh, and her partner, Bruce McIntosh. I want to salute Sherry Caldwell, with the Ontario Disability Coalition. I want to salute Sally Thomas and I want to salute Kenzie McCurdy, folks back in Ottawa Centre who have fought tirelessly to get people in our profession to pay attention to them so that it might get embodied in an act like the AODA.

But let me be perfectly clear: While we celebrate the AODA, we have to acknowledge, as Mr. Onley acknowledged in his latest report, that we are nowhere near meeting our AODA obligations. Let me be very clear: A $1.3-million investment to look into the building infrastructure of 250 buildings in this province is vastly short of what we need.

Speaker, I want us to ask ourselves how we would feel if we showed up for work in this place and there was a sign, real or imagined, that said, “You don’t get to come into this place today”because what Mr. Onley said in his report is that those signs, real or imagined, exist across this province. They exist for the dyslexic child right now who is sitting in a school somewhere in Ontario and who is being asked or compelled to write or learn in a way that is not accessible to her or to him. They exist right now for people who, as Sarah has mentioned so eloquently, cannot get life-essential devices for them for monthsfor monthswith the absolute gong show that is the Assistive Devices Program. Can you imagine, Speaker, what would happen to any one of us if crucial services essential for our lives spun around in circleswhich happens sometimes when power chairs malfunctionor if crucial devices that allow diabetics to live safely and monitor their insulin level weren’t available to us? What would people who are neurotypical or who are the so-called able-bodied have to say? We wouldn’t put up with it.

Let us be honest on this day for the elimination of all barriers: We do not have sufficient urgency. Who are we looking after? Let’s talk about that for a second.

We returned to this sitting of Parliament to find out that there were five new associate ministers created in this government, each of whom got a $22,000 pay increase. We found out that this government set in place an incentive structure for deputy ministers so that if they met their targets, they got a 14% pay increase. We found out that this government is constantly maintaining tax expenditures created under previous Liberal governments that allow people who are affluent to deduct things like Raptors tickets and Maple Leafs tickets as legitimate business expenses.

We are hemorrhaging hundreds of millions of dollars every year lavishing things upon the already affluent. That’s who Ontario currently serves. What can we spare for people with disabilities? Just $1.3 million; platitudes around education while people who are hurting, who are suffering, are not getting the essential things they need in life.

I want to name something as I close my remarks. This government, as were previous governments before it, is stuck in a charity model when they regard people with disabilities. They want to think that they’re compassionate if they do awareness days or if they do boutique announcements. People with disabilities don’t want our charity. They want solidarity. They want an equal opportunity to be themselves. “Free to be,” as the DJNO folks say: That’s what they want, what any of us would want. What it requires is for us to use the resources of this province fairly and make sure that when we talk about people with disabilities, we empower them to be their fullest selves and we do not create a disabling society.

Mr. John Fraser: It’s a pleasure to speak on the International Day of Persons with Disabilities. We’re encouraged to reflect on how persons with disabilities participate in society and how we evaluate the barriers that lay in front of them. It’s an opportunity to examine what we can do better to help integrate everybody to fully participate in our society in this province. We have a responsibility as legislators to better include all people in this province.

I want to stop now and tell a little story about a woman named Linda Smith. Linda Smith died about four years ago. She was an exceptional person. She lived in Ottawa and she touched the lives of many as a volunteer for politicians of every stripeand as you can imagine, in Ottawa, that’s a lot of politicians.

Linda had a developmental disability or, as I like to refer to it, an exceptionality. That exceptionality filled her with love and acceptance in abundance. She would often call our office several times a day just to check in, and more than one person has said to me, “You could be having an awful day, and Linda would call and you’d forget all your troubles.” She had that effect.

Linda was a regular at city council meetings, often sitting in the front row until the mayor recognized her. There’s a plaque at city hall now in honour of her. She loved to have her picture taken with everybody; it didn’t matter who. There are hundreds of pictures of her with all sorts of politicians from all over Canada, actually.

Linda would help out with any mundane task. I was thinking about it this year, because she loved to do Christmas cards, especially because it came with lunch: two slices of pizza, with one to take home, and a Pepsi.

She was great company. She loved strawberry milkshakes and ice cream.

Her exceptionality left her vulnerable, and she struggled with how people could be cruel, mean and thoughtless, although she was resilient and was always quick to forgive.

Linda was our friend, and we are the better for it. She had this ability to bring everybody together. It was really quite incredible, and we all miss her.

When I think of Linda, I try to understand what the world looked like through her eyes. I’ve never quite gotten to that point; I’ve seen some of that. As legislators, it’s not just for the Lindas of the world who have a developmental exceptionalitywhich also gives them a great gift, in another waybut there are people who have disabilities and exceptionalities that are different than that. We need to try to see the world through their eyes and understand the barriers that are in front of themwhether that’s a device they need to be healthy, as the member from Ottawa Centre said, or whether that’s access to a public building, access to a restaurant.

My eyes were opened when my father-in-law became wheelchair-bound and we tried to find a restaurant where we could get him in and out, with an accessible washroom. The definition of “accessible” is definitely different in many different places.

So our job is to see the world through their eyes and then make laws and investments with that in mind.

I really appreciate the opportunity to speak to this today, and all the members’ words in this House.

Let’s remember to try to see the world through their eyes.




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Send Us Feedback on the Draft AODA Alliance Framework for the Health Care Accessibility Standard – and – Results of The December 3 Celebration of the 25th Birthday of the Grassroots AODA Movement


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

Send Us Feedback on the Draft AODA Alliance Framework for the Health Care Accessibility Standard – and – Results of The December 3 Celebration of the 25th Birthday of the Grassroots AODA Movement

December 5, 2019

          SUMMARY

After a very busy year, this may be our last AODA Alliance Update until the New Year. It is full of important news for you.

We thank one and all for your ongoing support for and help with our campaign for accessibility for people with disabilities. We wish one and all a safe and happy holiday season and a barrier-free new year!

1. Send Us Feedback on Our Draft of an AODA Alliance Proposed Framework for the Promised Health Care Accessibility Standard

We have made public a draft of an important brief. We want your feedback on it before we finalize it. This time, we are focusing on disability accessibility barriers in the health care system.

The Ontario Government is working on developing a Health Care Accessibility Standard under the AODA. It would address barriers in the health care system that patients with disabilities and their support people with disabilities face in the health care system. The Health Care Standards Development Committee is developing recommendations for the Ontario Government on what the Health Care Accessibility Standard should include.

To help the Health Care Standards Development Committee with this work, we plan to send it an AODA Alliance Proposed Framework for the Health Care Accessibility Standard. We have written a 24-page draft of this Framework. We are eager for your feedback. This draft is the result of a great deal of work. It builds on feedback that our supporters have shared with us. We’ve gotten tremendous help from the ARCH Disability Law Centre and from a wonderful team of volunteers who are law students at the Osgoode Hall Law School.

Please download and read our draft of this Proposed Framework for the Health Care Accessibility Standard. You can download it in an accessible MS Word format by visiting https://www.aodaalliance.org/wp-content/uploads/2019/12/Dec-2-2019-AODA-Alliance-Draft-of-Proposed-Framework-for-Health-Care-Accessibility-Standard.docx

Send us your feedback by December 20, 2019 by emailing us at [email protected]

Also, please encourage your friends and family members to share their feedback with us. We aim to use that feedback to finalize this Proposed Framework for the Health Care Accessibility Standard and submit it to the Ontario Government and the Health Care Standards Development Committee in early January 2020.

Here are the headings in this draft Framework:

  1. What Should the Long-term Objectives of the Health Care Accessibility Standard Be?
  1. A Vision of An Accessible Health Care System
  1. General provisions that the Health Care Accessibility Standard Should Include
  1. The Right of Patients with Disabilities and Their Support People with Disabilities to Know about The Health Care Services Available to Them, about Available Disability-Related Supports and Accommodations, about Important Information Regarding Their Diagnosis and Treatment, and How to Access Them
  1. The Right of Patients and Their Support People with Disabilities to Get to Health Care Services
  1. The Right of Patients and Their Support People with Disabilities to Get into and Around Facilities Where Health Care Services are Provided
  1. The Right of Patients and Their Support People with Disabilities to Accessible Furniture and Floor Plans in Health Care Facilities
  1. The Right of Patients with Disabilities to Identify their Disability-Related Accessibility Needs in Advance and Request Accessibility/Accommodation from a Health Care Provider or Facility
  1. The Right of Patients with Disabilities to Accessible Diagnostic and Treatment Equipment
  1. The Right of Patients with Disabilities to the Privacy of Their Health Care Information
  1. The Right of Patients with Disabilities and Support People with Disabilities to Accessible Information and Communication in Connection with Health Care
  1. The Right of Patients with Disabilities to the Support Services They Need to Access Health Care Services
  1. The Right of Patients and their Support People with Disabilities to Health Care Providers Free from Knowledge and Attitude Barriers Regarding Disabilities
  1. The Right of Patients and Support People with Disabilities to Accessible Complaint Processes at Health Care Providers’ Self-Governing Colleges and To Have Those Colleges Ensure that the Profession They Regulate Are Trained to Meet the Needs of Patients with Disabilities
  1. The Right of Patients with Disabilities to Systemic Action and Safeguards to Remove and Prevent Barriers in Ontario’s Health Care System
  1. The Need to Harness the Experience and Expertise of People with Disabilities Working in the Health Care System, To Expedite the Removal and Prevention of Barriers Facing Patients and Their Support People with Disabilities

2. A Very Successful Day to Celebrate the 25th Anniversary of the Grassroots AODA Movement at the Ontario Legislature on December 3, 2019

On Tuesday, December 3, 2019, the International Day of People with Disabilities, we had a very successful day at Queen’s Park to celebrate the 25th anniversary of the birth of the grassroots movement for the enactment and implementation of strong accessibility legislation in Ontario.

Our 10 a.m. news conference went very well. We are working on getting it posted online. It yielded a detailed article in the December 3, 2019 edition of QP Briefing, an influential news publication about issues at Queen’s Park. We set that article out below.

From 4 to 6 pm, the big birthday party for the grassroots AODA movement was a huge success. Some 200 people signed up to attend. There was also a great turnout of MPPs from all the political parties.

Both the 25th anniversary of the AODA movement and the International Day of People with Disabilities were mentioned several times in the Legislature. Below we set out four key excerpts from the Legislature’s official transcript, called “Hansard.”

Meanwhile, the partying is over and the work must continue. As of today, there have now been 308 days since the Ford Government received the final report of the Independent Review of the AODA’s implementation prepared by former Lieutenant Governor David Onley. The Government did not take the opportunity on December 3 to finally announce a comprehensive plan to implement the Onley Report. This is so even though a spokesperson for Premier Ford’s Accessibility Minister is quoted in the QP Briefing article below as stating that accessibility for people with disabilities is a “top priority.”  We are still waiting.

          MORE DETAILS

QP Briefing December 3, 2019

On International Day of Persons with Disabilities, advocate says Ontario “nowhere near close” to accessibility goal

Sneh Duggal

Disability advocate David Lepofsky warned Ontario is “not on schedule” to meet its goal of becoming fully accessible by 2025 as people across the globe marked the International Day of Persons with Disabilities on Dec. 3.

“That was ambitious, but doable,” Lepofsky said of the goal that is outlined in the Accessibility for Ontarians with Disabilities Act, legislation that was passed in 2005.”With just over five years left, we’re not on schedule, we’re nowhere near close.”

The legislation called on the province to develop, implement and enforce accessibility standards “in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025.”

The province’s former lieutenant governor David Onley was tasked with reviewing the implementation of the AODA and said in a report tabled earlier this year that the “promised accessible Ontario is nowhere in sight.”

“There’s no question we’ve made progress, but nowhere near the progress we need and nowhere near the progress the law guaranteed to us,” said Lepofsky, who is chair of an advocacy group called the AODA Alliance.

Lepofsky was at Queen’s Park on Tuesday to discuss accessibility issues in the province, although his media availability took on a slightly different format. He was joined by Laura Kirby-McIntosh, president of the Ontario Autism Coalition, who fired numerous questions at Lepofsky about his years of work advocating for people with disabilities. The AODA Alliance also marked the 25th anniversary of the movement its chair helped spearhead on the “enactment and effective implementation of accessibility legislation in Ontario” with a celebration at Queen’s Park.

During his fireside chat with Kirby-McIntosh, Lepofsky noted that barriers remain in many areas for people with disabilities.

“This is a province where many of our buildings are ones that are hard to get into and hard to get around, our public transit systems are full of accessibility barriers,” he said. Lepofsky said the education system meant to serve all students “treats students with disabilities as second-class citizens,” and that the health-care system is “full of barriers” such as getting accessible information about a diagnosis, treatment or medication.

Lepofsky said while the provincial government had a good start at trying to implement the legislation after it was passed in 2005 until about 2011, progress started to slow down “to a virtual snail’s pace.”

“And the new government of Doug Ford, rather than speed things up, slowed things down,” Lepofsky said. He said while he appreciates statements of support from the government, “this province right now has no plan and this current government has no plan to get us to full accessibility by 2025.”

As part of the implementation of the AODA, various committees were struck and tasked with proposing standards that could be turned into regulation in areas like transportation and customer service.

Lepofsky criticized the Progressive Conservative government for “months of delay” in getting some of the committee work underway. He’s involved in one of the committees and said work is being done.

Raymond Cho, the minister responsible for seniors and accessibility, said earlier this year that the government had resumed the Employment Standards Development Committee and the Information and Communications Standards Development Committee last fall.

“I am proud to say that these committees have already met and completed their work,” the minister said at the time.

He said the government also resumed the education and health standard development committees in March, and that the chairs “have been engaged with the ministry and are working to develop new work-plans.”

In response to a query during question period from NDP MPP Lisa Gretzky about when the government would put forward a “comprehensive plan to improve the lives of people living with disabilities,” Cho thanked Onley for his report and pinned some blame on the previous Liberal government.

“The previous government had 14 years to improve the AODA. Mr. Onley said in his report that they did so little,” Cho said on Tuesday.

“The government knows that a lot of work needs to be done to make Ontario accessible for everyone. Making Ontario accessible is a journey. This government will continue to take an all-of-government approach to tearing down barriers,” he said.

Pooja Parekh, Cho’s spokesperson, said the government sees accessibility as a “top priority.” A lot of work needs to be done to make Ontario accessible for everyone, and it cannot be completed overnight,” Parekh said. “A key part of this journey includes recognizing that there are 2.6 million people in the province that have a disability.”

She pointed to provincial initiatives focused on accessibility such as the EnAbling Change Program, which funds not-for-profit disability and industry associations “to develop practical tools and guides to help communities and businesses understand the benefits of accessibility.”

“As well, families will experience clearer and more transparent processes when requesting service animals accompany their children to school, no matter where they live in Ontario,” Parekh noted. “The updated elementary Health and Physical Education curriculum reflects the diversity of Ontario students of all abilities.”

In May, NDP MPP Joel Harden proposed a motion in the House calling on the government to “release a plan of action on accessibility in response to David Onley’s review of the Accessibility for Ontarians with Disabilities Act (AODA) that includes, but is not limited to, a commitment to implement new standards for the built environment, stronger enforcement of the Act, accessibility training for design professionals, and an assurance that public money is never again used to create new accessibility barriers.” The motion was struck down by the government.

Speaking just before question period on Tuesday, Lepofsky said he wants to see the provincial government develop a roadmap “on how to get us to full accessibility” and ensure that the government “doesn’t make things worse.”

“We want them to adopt a strategy now to ensure that public money is never used to create new barriers,” he said.

Lepofsky also raised concerns about policies that he feels could post a threat to the safety of those with disabilities. He pointed to the government’s recent announcement to launch a pilot project that would let municipalities allow the use of electric scooters.

He said a priority for him going forward will be on “making sure that the current provincial government doesn’t create a new series of barriers to our accessibility and our personal safety.”

Meanwhile, earlier on Tuesday, the NDP and disability advocates called on the government to boost funding for adults with disabilities, with Gretzky saying the province is facing a “crisis in developmental services.”

Christine Wood, press secretary for Minister of Children, Community and Social Services Todd Smith, said the province is providing $2.57 billion in annual funding for developmental services. Wood previously noted that “adults with developmental disabilities may be eligible for funding from the Ontario Disability Support Program and the Passport program.

The Passport program provides funding to adults with a development disability for community classes, hiring a support worker, respite for caregivers or developing skills. Wood noted that “the maximum annual funding an individual can receive through the Passport program is up to $40,250.”

But Gretzky said many young adults face a wait-list for the program and that not every individual receives the maximum amount of support. She said that individuals “fall through the gap” in terms of services when they turn 18.

“The biggest gap that families are facing now and individuals is the fact that they lose all supports and services once an individual celebrates an 18th birthday,” said Gretzky, who introduced a private member’s bill about a year ago that aimed to address this issue. The bill passed second reading and was referred to committee in February.

“As soon as a person is deemed eligible for adult developmental services, they are automatically approved for $5000 in direct funding through the Passport program,” Wood said. “This allows people to purchase services and support. Following the completion of the developmental services application package, additional funding may be provided as it becomes available.”

She said Smith’s ministry works with the education ministry to provide “transition planning” for youth with disabilities who are transitioning to adulthood.

She also noted that since he took over this file, Smith has been “talking to families, adults with developmental disabilities and service providers about how our government can better serve those who depend on us.”

Excerpts from Ontario Hansard for December 3, 2019

Excerpt 1

Mr. Joel Harden: Today is the International Day of Persons with Disabilities, and we are very privileged in this House to be joined by some of our country’s leaders on that front. I want to mention the great David Lepofsky, who I just got back from a press conference with, Odelia Bay, and Sarah Jama. Thank you for all the work you do for our country, for our province, and for people with disabilities.

Excerpt 2

Hon. Raymond Sung Joon Cho: Today is the International Day of Persons with Disabilities. I would like to invite members to the reception hosted by the All Disability Network later this afternoon in room 228. More than 160 representatives from the disability community will celebrate the 25th anniversary of Ontario’s provincial accessibility legislation. I encourage all members to join me there.

Excerpt 3

Question Period

Assistance to persons with disabilities

Mr. Joel Harden: My question is to the Premier. Today is the international day for people with disabilities. Living with disabilities in Ontario is getting harder for them. This is a crisis, but the actions of this government so far have been to include a cut—in half—to planned increases to the Ontario Disability Support Program, and take $1 billion out of the Ministry of Children, Community and Social Services. That has made life worse.

We know that there are 16,000 people waiting for supportive housing in Ontario. We know that people with disabilities experience higher rates of homelessness, violence, food insecurity and poverty. We know that from the time children with disabilities are born to the time they grow old, we’re failing them. We’re failing them right now, and we are failing their caregivers, who suffer from ritual burnout right across this province.

On this day, for the International Day of Persons with Disabilities, will this Premier keep making things worse, or will he finally turn this around and start making life better for people with disabilities?

Hon. Doug Ford: Minister of Children, Community and Social Services.

Hon. Todd Smith: Thanks to the member opposite for the question. It’s very important, particularly on this day. But every day, my ministry is working to ensure that we’re improving supports for those living with disabilities, including all of the types of disabilities that the member opposite mentioned. When it comes to developmental disabilities, we are looking into how we are delivering services to those in the DS sector—the developmental services sector—to ensure that we get them what they need.

The previous government, for many, many years, didn’t improve supports for these individuals. That’s why we’re taking an approach where we’re looking across all of the different programs that are available. I’ve met with OASIS—and I know the members opposite were with OASIS when they were here last week—and Community Living and all those different organizations. As a matter of fact, I had a great meeting on Friday with Terri Korkush in my own riding. She is the executive director of Community Visions and Networking in the Quinte region.

There are many different models out there. We’re going to find the ones that work—

The Speaker (Hon. Ted Arnott): Thank you very much.

Supplementary, the member for Windsor West.

Mrs. Lisa Gretzky: Back to the Premier: The fact of the matter is, there have been numerous studies and reports done. You have the Nowhere to Turn report done by the Ombudsman. You have the housing task force report that was put forward. You have the Deputy Premier, who sat on a select committee and made recommendations about the crisis for people with disabilities.

It’s time for you to actually act to help those people. On International Day of Persons with Disabilities, it is important to take stock of how we as a society support those living with a disability to lead full and happy lives. The reality is that living with a disability in Ontario is hard, and the government is not doing nearly enough to make life better for people living with disabilities. Wait times under the Assistive Devices Program, which helps people access things like hearing aids and wheelchairs, have ballooned to as much as six months under this Conservative government, and there is still no response to the Onley report, or any plan for Ontario to achieve full accessibility by 2025. In fact, this government is going backwards when it comes to accessibility.

When will this government put forward a real, comprehensive plan to improve the lives of people living with disabilities?

Hon. Todd Smith: Minister for Seniors and Accessibility.

Hon. Raymond Sung Joon Cho: I would like to thank the member for raising that question. But first of all, I would like to thank the Honourable David Onley once again for his work with the AODA review. The previous government had 14 years to improve the AODA. Mr. Onley said in his report that they did so little. When I tabled Mr. Onley’s report, I was very pleased to announce the return of the health and education SDCs, which was one of his recommendations.

The government knows that a lot of work needs to be done to make Ontario accessible for everyone. Making Ontario accessible is a journey. This government will continue to take an all-of-government approach to tearing down barriers.

Excerpt 4

Statements by the Ministry and Responses

International Day of Persons with Disabilities

Hon. Raymond Sung Joon Cho: I’m honoured to rise today to mark the United Nations International Day of Persons with Disabilities. Since 1992, countries around the world have observed December 3 as a time to raise awareness about accessibility.

In Ontario, 2.6 million people have a disability.

Mr. Speaker, in Ontario we continue on our journey to make our province accessible. Our government is committed to protecting what matters most to people with disabilities and their families. By helping to remove accessibility barriers, we are empowering everyone to drive their own futures on their own terms.

We are taking a cross-government approach towards accessibility. This includes working with partners in the disability community, business, not-for-profit and broader public sectors. Collaboration is key in making this happen. By working together, we’ll make a positive difference that will impact the daily lives of people with disabilities.

We are helping improve understanding and awareness about accessibility. For example, our EnAbling Change program provides funding to not-for-profit disability and industry associations to develop practical tools and guides to help communities and businesses understand the benefits of accessibility. Many of these free resources are available on a convenient web page at ontario.ca/accessiblebusiness.

One of the resources is a handbook called The Business of Accessibility: How to Make Your Main Street Business Accessibility Smart. It includes helpful tips to help businesses be welcoming to all customers.

When communities and businesses are accessible, everyone benefits. People with disabilities can take part in everyday life, and businesses gain potential talent, customers and higher profits.

As part of our government’s commitment to break down barriers in the built environment, we are providing $1.3 million to the Rick Hansen Foundation to help make buildings more accessible. This accessibility certification program will provide free accessibility ratings of 250 building over two years.

Just two months ago, we announced ways that Ontario is making its education system more accessible. For example, the updated elementary health and physical education curriculum reflects the diversity of Ontario students.

The K-12 and Post-Secondary Education Standards Development Committees resumed their work this fall to provide advice to government on addressing education barriers.

Also, the processes for families requesting service animals to accompany their child to school are clearer.

We’re providing $1.4 billion in funding for the 2019-20 school year to help school boards install accessibility features in learning environments.

Ontario is advancing accessibility. However, we know that a lot of work still needs to be done. It requires changing attitudes about disability.

As we recognize the International Day of Persons with Disabilities, I invite my MPP colleagues to join me as we work to bring positive change to the daily lives of people with disabilities.

The Speaker (Hon. Ted Arnott): Responses?

Mr. Joel Harden: This is an important day. This is the International Day for Persons with Disabilities. This is also the 25th anniversary, last Friday, of the accessibility movement in Ontario embodied in the Accessibility for Ontarians with Disabilities Act.

I want to acknowledge at this moment, as the critic for people with disabilities in this province, that that act was created by sympathetic people in this chamber, pushed by disability rights activists in this province and around this country.

I want to salute in particular David Lepofsky, who is here, who is the current chair of the AODA Alliance. I also want to salute my friend Sarah Jama, who is here with the Disability Justice Network of Ontario, and who is one of this country’s tireless campaigners for disability rights.

I also want to salute the legacy of Gary Malkowski, who was part of the NDP government from 1990 to 1995, who was the first deaf parliamentarian in this space, and who championed the case brought in 1994 to have an act that was finally realized in 2005 with the AODA.

I want to salute people like Laura Kirby-McIntosh, her daughter, Clara McIntosh, and her partner, Bruce McIntosh. I want to salute Sherry Caldwell, with the Ontario Disability Coalition. I want to salute Sally Thomas and I want to salute Kenzie McCurdy, folks back in Ottawa Centre who have fought tirelessly to get people in our profession to pay attention to them so that it might get embodied in an act like the AODA.

But let me be perfectly clear: While we celebrate the AODA, we have to acknowledge, as Mr. Onley acknowledged in his latest report, that we are nowhere near meeting our AODA obligations. Let me be very clear: A $1.3-million investment to look into the building infrastructure of 250 buildings in this province is vastly short of what we need.

Speaker, I want us to ask ourselves how we would feel if we showed up for work in this place and there was a sign, real or imagined, that said, “You don’t get to come into this place today”—because what Mr. Onley said in his report is that those signs, real or imagined, exist across this province. They exist for the dyslexic child right now who is sitting in a school somewhere in Ontario and who is being asked or compelled to write or learn in a way that is not accessible to her or to him. They exist right now for people who, as Sarah has mentioned so eloquently, cannot get life-essential devices for them for months—for months—with the absolute gong show that is the Assistive Devices Program. Can you imagine, Speaker, what would happen to any one of us if crucial services essential for our lives spun around in circles—which happens sometimes when power chairs malfunction—or if crucial devices that allow diabetics to live safely and monitor their insulin level weren’t available to us? What would people who are neurotypical or who are the so-called able-bodied have to say? We wouldn’t put up with it.

Let us be honest on this day for the elimination of all barriers: We do not have sufficient urgency. Who are we looking after? Let’s talk about that for a second.

We returned to this sitting of Parliament to find out that there were five new associate ministers created in this government, each of whom got a $22,000 pay increase. We found out that this government set in place an incentive structure for deputy ministers so that if they met their targets, they got a 14% pay increase. We found out that this government is constantly maintaining tax expenditures created under previous Liberal governments that allow people who are affluent to deduct things like Raptors tickets and Maple Leafs tickets as legitimate business expenses.

We are hemorrhaging hundreds of millions of dollars every year lavishing things upon the already affluent. That’s who Ontario currently serves. What can we spare for people with disabilities? Just $1.3 million; platitudes around education while people who are hurting, who are suffering, are not getting the essential things they need in life.

I want to name something as I close my remarks. This government, as were previous governments before it, is stuck in a charity model when they regard people with disabilities. They want to think that they’re compassionate if they do awareness days or if they do boutique announcements. People with disabilities don’t want our charity. They want solidarity. They want an equal opportunity to be themselves. “Free to be,” as the DJNO folks say: That’s what they want, what any of us would want. What it requires is for us to use the resources of this province fairly and make sure that when we talk about people with disabilities, we empower them to be their fullest selves and we do not create a disabling society.

Mr. John Fraser: It’s a pleasure to speak on the International Day of Persons with Disabilities. We’re encouraged to reflect on how persons with disabilities participate in society and how we evaluate the barriers that lay in front of them. It’s an opportunity to examine what we can do better to help integrate everybody to fully participate in our society in this province. We have a responsibility as legislators to better include all people in this province.

I want to stop now and tell a little story about a woman named Linda Smith. Linda Smith died about four years ago. She was an exceptional person. She lived in Ottawa and she touched the lives of many as a volunteer for politicians of every stripe—and as you can imagine, in Ottawa, that’s a lot of politicians.

Linda had a developmental disability or, as I like to refer to it, an exceptionality. That exceptionality filled her with love and acceptance in abundance. She would often call our office several times a day just to check in, and more than one person has said to me, “You could be having an awful day, and Linda would call and you’d forget all your troubles.” She had that effect.

Linda was a regular at city council meetings, often sitting in the front row until the mayor recognized her. There’s a plaque at city hall now in honour of her. She loved to have her picture taken with everybody; it didn’t matter who. There are hundreds of pictures of her with all sorts of politicians from all over Canada, actually.

Linda would help out with any mundane task. I was thinking about it this year, because she loved to do Christmas cards, especially because it came with lunch: two slices of pizza, with one to take home, and a Pepsi.

She was great company. She loved strawberry milkshakes and ice cream.

Her exceptionality left her vulnerable, and she struggled with how people could be cruel, mean and thoughtless, although she was resilient and was always quick to forgive.

Linda was our friend, and we are the better for it. She had this ability to bring everybody together. It was really quite incredible, and we all miss her.

When I think of Linda, I try to understand what the world looked like through her eyes. I’ve never quite gotten to that point; I’ve seen some of that. As legislators, it’s not just for the Lindas of the world who have a developmental exceptionality—which also gives them a great gift, in another way—but there are people who have disabilities and exceptionalities that are different than that. We need to try to see the world through their eyes and understand the barriers that are in front of them—whether that’s a device they need to be healthy, as the member from Ottawa Centre said, or whether that’s access to a public building, access to a restaurant.

My eyes were opened when my father-in-law became wheelchair-bound and we tried to find a restaurant where we could get him in and out, with an accessible washroom. The definition of “accessible” is definitely different in many different places.

So our job is to see the world through their eyes and then make laws and investments with that in mind.

I really appreciate the opportunity to speak to this today, and all the members’ words in this House.

Let’s remember to try to see the world through their eyes.



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


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

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

November 26, 2019

          SUMMARY

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

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

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

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

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

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

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

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

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

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

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

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

November 25, 2019

Via email to: [email protected]

A. Introduction

1. Overview

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

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

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

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

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

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

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

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

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

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

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

2. Who Are We?

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.”

To learn about us, visit: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

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

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

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

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that desired legislation.

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

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

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

3. Summary of this Brief

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

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

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

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

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

a) A Commendable Start

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d) The Bottom Line for This Committee

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

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

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

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

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

1. Accessibility Standard’s Long Term Objective

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

We therefore recommend that:

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

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

2. Section 2 – Definitions

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

We therefore recommend that:

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

3. Definition of Electronic Self-Serve Kiosks

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

We therefore recommend that:

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

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

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

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

5. Section 9 – Definitions and Exceptions

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

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

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

We therefore recommend that:

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

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

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

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

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

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

available.”

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

We therefore recommend that:

#5. The Committee should recommend that either:

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

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

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

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

6. Committee’s Draft Recommendation 2 PDF Documents

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

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

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

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

We therefore recommend that:

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

9. Committee’s Draft Recommendation 6 and 7

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

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

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

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

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

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

We therefore recommend that:

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

10. Committee’s Draft Recommendation 8

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

We therefore recommend that:

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

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

We quote from the key part of that letter here:

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

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

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

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

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

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

We are recommending:

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

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

Existing resources:

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

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

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

We have information about making justice services accessible at

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

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

Making your services accessible for people with communication disabilities

  1. Written guidelines on communication access at

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

We therefore recommend that:

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

14. Part 3: Section 13 Emergency Plans Generally

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

15. Committee’s Draft Recommendation 11: Emergency Requirements

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

21. Committee’s Recommendation 16: Significant Refresh

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

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

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

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

22. Committee’s Recommendation 17: Practicability

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

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

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

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

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

We therefore recommend that:

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

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

We therefore recommend that:

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

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

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

24. Committee’s Recommendation 19: Extranet Exemption

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

We therefore recommend that:

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

25. Committee’s Recommendation 20: Intranet Exemption

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

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

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

We therefore recommend that:

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

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

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

We therefore recommend that:

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

28. Committee’s Recommendation 23: Web Hosting Location

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

29. Chief Information Officer

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

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

We therefore recommend that:

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

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

30. Teleconference Platforms Used by Public Sector Organizations

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

We therefore recommend that:

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

31. Digital Information Accessibility Statement

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

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

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

 

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

That research also stated:

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

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

We therefore recommend that:

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

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

32. Committee’s Recommendation 14: Procurement

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

We therefore recommend that:

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

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

We therefore recommend that:

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

33. Section 6 – Self-Service Kiosks

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

We therefore recommend that:

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

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

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

We therefore recommend that:

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

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

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

“(5) In this section,

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

“8. Ensuring Digital Accessibility at School

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

8.1 Each school board should ensure that:

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

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

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

The proposed Framework also includes:

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

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

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

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

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

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

We therefore recommend that:

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

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

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

We therefore recommend that:

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

37. Section 15 – Educational and Training Resources and Materials

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

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

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

38. Section 17 – Producers of Educational or Training Material

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

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

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

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

We therefore recommend that:

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

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

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

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

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

We therefore recommend that:

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

40. Section 18 – Libraries of Educational and Training Institutions

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

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

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

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

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

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

We therefore recommend that:

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

41. Committee’s Recommendation 26: Increasing Captionist Capacity

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

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

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

We therefore recommend that:

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

42. Committee’s Recommendation 27: Accessibility in Education

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

We therefore recommend that:

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

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

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

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

We agree with the Committee that:

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

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

We therefore recommend that:

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

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

We therefore recommend that:

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

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

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

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

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

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

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

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

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

Regarding teacher training, we therefore recommend that:

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

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

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

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

45. Committee’s Recommendation 30: Education Standards

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Similarly the Committee’s Phase 2 discussion later states:

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

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

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

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

The 2014 Moran Report included;

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

Proposed Revisions to Current Standards

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

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

IMPACT ON SPECIFIC DISABILITIES

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

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

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

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

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

EXEMPTIONS AND EXCEPTIONS

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

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

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

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

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

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

GAPS IN STANDARDS

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

Information and Communications

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“(5) In this section,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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



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


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org [email protected] Twitter: @aodaalliance

November 5, 2019

SUMMARY

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

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

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

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

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

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

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

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

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

1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.

2. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.

3. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committee s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them as is or make recommendations for modest refinements or additions to them.

4. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committees draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.

5. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committees Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.

6. Some of the Committees specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

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

Draft Only
Accessibility for Ontarians with Disabilities Act Alliance
United for a Barrier-Free Ontario for All People with Disabilities www.aodaalliance.org [email protected] Twitter: @aodaalliance

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

November 5, 2019

Via email to: [email protected]

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

A. Introduction

1. Overview

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

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

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

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

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

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

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

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

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

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

2. Who Are We?

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.” To learn about us, visit: http://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committees work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

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

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

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

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that desired legislation.

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

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

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

3. Summary of this Brief

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

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

1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.

2. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.

3. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committees draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them as is or make recommendations for modest refinements or additions to them.

4. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committees draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.

5. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committees Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.

6. Some of the Committees specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

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

a) A Commendable Start

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

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

b) Committees Job Not Merely to Assess if the Information and Communication Accessibility Standard Has Been Working As Intended

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d) The Bottom Line for This Committee

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

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

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

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

1. Accessibility Standards Long Term Objective

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

We therefore recommend that:

#1. The standards long term objective should be:

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

2. Section 2 – Definitions

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

We therefore recommend that:

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

3. Definition of Electronic Self-Serve Kiosks

The IASRs definition of an electronic self-serve kiosk is far too narrow.

We therefore recommend that:

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

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

4. Committees Recommendation 1 Consolidating the Regulations Feedback Requirements

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

5. Section 9 – Definitions and Exceptions

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

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

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

We therefore recommend that:

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

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

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

For the purposes of this Part, information or communications are unconvertible if,
(a) it is not technically feasible to convert the information or communications; or
(b) the technology to convert the information or communications is not readily available.

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

We therefore recommend that:

#5. The committees recommendations should be expanded to recommend that either: (a) Section 9(4) should be deleted, or
(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,
a) It is not possible to convert the information or communications without undue hardship; or
b) The technology to convert the information or communications is not available without undue hardship.”

6. Committees Draft Recommendation 2 PDF Documents

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

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

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

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

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

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

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

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

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

We therefore recommend that:

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

7. Committees Draft Recommendation 4: Products and Product Labels

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

(2) The information and communications standards do not apply to the following:
1. Products and product labels, except as specifically provided by this Part.

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

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

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

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

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

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

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

We therefore recommend that:

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

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

8. Committees Draft Recommendation 5 Alternative Formats and Communication Supports

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

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

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

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

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

We therefore recommend that:

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

9. Committees Draft Recommendation 6 and 7

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

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

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

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

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

We therefore recommend that:

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

10. Committees Draft Recommendation 8

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

11. Committees Draft Recommendation 9: On-Demand Conversion Ready Formats

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

12. Committees Draft Recommendation 10: On-Demand ASL and LSQ Translations

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

We therefore recommend that:

*10. The Committees draft Recommendation 10 should be expanded to:

a) propose an amendment to the Information and Communication Accessibility Standard to implement and require the Committees proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and

b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

13. Other Deficiencies with Section 12 that the Committees Draft Recommendations Do Not Fix

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

12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,
(a) in a timely manner that takes into account the persons accessibility needs due to disability; and
(b) at a cost that is no more than the regular cost charged to other persons.

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

We therefore recommend that:

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

12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,
(a) in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and
(b) at a cost that is no more than the regular cost charged to other persons.

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

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

We therefore recommend that:

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

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

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

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

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

We therefore recommend that:

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

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

We quote from the key part of that letter here:

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

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

The current integrated standards do not provide sufficient directives for businesses and organizations on ways to make their services accessible for people with speech, language and communication disabilities. For example, most people with speech and language disabilities experience significant barriers to services in face-to-face and telephone interactions, group meetings and forums and written communication. These contexts are not adequately or comprehensively addressed in any of the Standards. They are either oversimplified or omitted.
At this time, the Information and Communications Standard primarily focuses on making written information (print and digital) accessible. Examples of accessible formats cited on the Accessibility Directorates website, include human assistance, large print, text transcripts of audio or visual information, handwritten notes instead of speech, plain language and electronic documents.

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

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

We are recommending:

* The IC Standards Development Committee should include people who have a thorough knowledge and proven track record to represent the communication access needs of people with diverse speech and language disabilities.

* The mandate of this committee should go beyond processes that businesses and organizations must follow to create, provide, and receive information and communications that are accessible to people with disabilities to include processes, and resources to ensure effective two-way communication in face-to-face, telephone and group interactions and written communication.

* Development of regulations, guidelines and resources for: Face-to-face, telephone and group interactions. Standards and guidelines are required for all service providers who interact with the public within these contexts, so that they have the knowledge, skills and resources to interact with people who communicate in ways other than speech. They need to know how-to make telephone services accessible and how to make meetings and public forums inclusive for people who have communication disabilities.

* Communication supports: Service providers need information about how and when to provide and work with communication assistants, communication intermediaries, sign language interpreters and other formal communication support services. Formal communication assistance services are essential in critical communication contexts such as health care, police, legal and justice services. In these situations, appropriate communication support services must be mandatory.

* Communication accommodations: Service providers need information about simple, non-technical communication tools that they may provide when a person has no effective means to communicate. They need clarification on the use of communication devices that people may use.

* Writing: Regulations are required to address writing activities for people who cannot physically write or who cannot write due to learning or linguistic disabilities. Writing includes accessible forms, procedures for note taking and signatures.

* Environmental accommodations: Services need guidelines on creating and designing accessible signage and wayfaring, counter spaces, and elevators with a communication access lens.

* Policies are required for communication procedures in emergency evacuation situations, as well as authentic assistance in critical contexts, including medical assistance in dying, police, legal and justice settings.

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

Existing resources:

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

1. A database of qualified Communication Intermediaries to assist people with speech and language disabilities communicating in police, legal and justice situations http://www.cdacanada.com/communication-assistance-database/.

We have information about making justice services accessible at http://www.access-to-justice.org/

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

3. A webinar on making services accessible at
http://courses.cdacanada.com/courses/making-your-services-accessible-for-people-with-communication-disabilities/

4. Written guidelines on communication access at
http://www.communication-access.org/wp-content/uploads/2018/12/Guidelines-for-Communication-Access-1.pdf

We therefore recommend that:

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

14. Part 3: Section 13 Emergency Plans Generally

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

15. Committees Draft Recommendation 11: Emergency Requirements

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

16. Committees Draft Recommendation 12: Unacceptable Emergency Outcomes and Preparedness

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

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

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

We therefore recommend that:

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

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

We share the Committees view that the standards website accessibility provisions need to be strengthened.

18. Committees Recommendation 15: Differentiating Organizations/High Impact Organizations

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

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

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

We therefore recommend that:

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

a) Create criteria that will be easily measured and enforced, where possible.

b) That will measure the number of an organizations users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.

c) Make the threshold revenue as $1 million not $10 million as the Committees draft recommendations propose.

d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

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

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

We therefore recommend that:

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

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

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

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

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

20. Committees Draft Recommendation 13: Mobile Applications & New Technologies

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

We therefore recommend that:

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

21. Committees Recommendation 16: Significant Refresh

The Committee’s draft recommendations correctly identify another serious deficiency with s. 15 of the Information and Communication Accessibility Standard, namely that key requirements are only triggered by an obligated organization creating a new website or undertaking a significant refresh of an existing site. We agree with the Committee that this vague threshold provides obligated organizations with an easy and unacceptable end-run around the provision.
We also agree with the Committee’s draft Recommendation 16 to fix this, and the stated intent underlying it, namely:

Any content that is new or which an obligated organization changes, updates or adds to a web site must meet the accessibility requirements of Section 14
Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
The Committee recommends that content should include all functions, interactions and branding (look and feel) for a site. It is recommended that Section 14 include examples for the sake of clarity
Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.

22. Committees Recommendation 17: Practicability

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

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

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

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

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

We therefore recommend that:

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

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

We therefore recommend that:

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

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

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

24. Committees Recommendation 19: Extranet Exemption

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

We therefore recommend that:

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

25. Committees Recommendation 20: Intranet Exemption

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

26. Committees Recommendation 21: Pre-2012 Exemption

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

We therefore recommend that:

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

27. Committees Recommendation 22: Live Captioning and Audio Description

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

We therefore recommend that:

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

28. Committees Recommendation 23: Web Hosting Location

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

29. Chief Information Officer

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

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

We therefore recommend that:

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

a) The CIO is responsible and accountable for leading the organizations efforts at ensuring digital information accessibility.

b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIOs performance contract that the CIO is responsible and accountable for ensuring digital information accessibility.

c) In any performance review, performance-based pay review or promotion processes, the CIOs performance on digital information accessibility shall be considered as a relevant factor.

d) In considering whom to hire as CIO, a hiring factor or criterion should be a candidates knowledge and experience with respect to digital information accessibility.

30. Teleconference Platforms Used by Public Sector Organizations

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

We therefore recommend that:

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

31. Digital Information Accessibility Statement

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

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

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

Both the Regulation and the Directive require public organizations to create an Accessibility Statement.1

That research also stated:

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

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

We therefore recommend that:

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

a) Specifies in detail the extent to which the organizations website and mobile apps are accessible and specifies where they are not and

b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

32. Committees Recommendation 14: Procurement

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

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

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

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

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

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

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

We therefore recommend that:

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

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

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

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

We therefore recommend that:

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

5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall
(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and
(b) Shall acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.

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

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

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

We therefore recommend that:

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

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

We therefore recommend that:

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

33. Section 6 – Self-Service Kiosks

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

We therefore recommend that:

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

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

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

We therefore recommend that:

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

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

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

(5) In this section,

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

34. Committees Recommendation 18: Harmonization and Application across Requirements

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

We therefore recommend that:

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

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

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

The AODA Alliance has released a proposed Framework for the Education Accessibility Standard and has submitted it to the K-12 Education Standards Development Committee. We set out the relevant passages below. We do however urge the Information and Communication Standards Development Committee to press forward with its recommendations in this area, as elaborated upon below in our more specific submissions. If the K-12 Education Standards Development Committee or the post-Secondary Education Standards Development Committee opt to make further recommendations on point, that can only enrich the discussion. However, we ask the Information and Communication Standards Development Committee not to hold off proceedings on these recommendations due to the forthcoming work of the two Education Standards Development Committees.
In the key part of the AODA Alliances proposed Framework for the Education Accessibility Standard, a vision is offered of what an accessible education system would look like. This vision includes, among other things:

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

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

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

8. Ensuring Digital Accessibility at School

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

8.1 Each school board should ensure that:

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

a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.

b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.

c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.

d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.

e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

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

The proposed Framework also includes:

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

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

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

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

a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.

b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.

c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

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

36. Committees Recommendation 24: Purchase of Accessible Teaching/Training Materials

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

We therefore recommend that:

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

37. Section 15 – Educational and Training Resources and Materials

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

15. (1) Every obligated organization that is an educational or training institution shall do the following, if notification of need is given:
1. Provide educational or training resources or materials in an accessible format that takes into account the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by,
i. Procuring through purchase or obtaining by other means an accessible or conversion ready electronic format of educational or training resources or materials, where available, or
ii. Arranging for the provision of a comparable resource in an accessible or conversion ready electronic format, if educational or training resources or materials cannot be procured, obtained by other means or converted into an accessible format.
2. Provide student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

(2) For the purposes of this section and sections 16, 17 and 18, an obligated organization is an educational or training institution if it falls into one of the following categories:
1. It is governed by the Education Act or the Private Career Colleges Act, 2005.
2. It offers all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000.
3. It is a designated public sector organization described in paragraph 3 or 4 of Schedule 1.
4. It is a public or private organization that provides courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act. 5. It is a private school within the meaning of the Education Act.

We therefore recommend that:

#39. Section 15 be amended to:

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

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

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

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

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

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

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

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

38. Section 17 – Producers of Educational or Training Material

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

17. (1) Every obligated organization that is a producer of educational or training textbooks for educational or training institutions shall upon request make accessible or conversion ready versions of the textbooks available to the institutions. O. Reg. 191/11, s. 17 (1).
(2) Every obligated organization that is a producer of print-based educational or training supplementary learning resources for educational or training institutions shall upon request make accessible or conversion ready versions of the printed materials available to the institutions. O. Reg. 191/11, s. 17 (2).

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

We therefore recommend that:

#40. Section 17(1) and (2) should be amended to provide:

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

39. Committees Recommendation 25: Definition of Educational and Training Institutions

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

We therefore recommend that:

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

40. Section 18 – Libraries of Educational and Training Institutions

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

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

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

(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:
1. In respect of print-based resources or materials, January 1, 2015.
2. In respect of digital or multimedia resources or materials, January 1, 2020.

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

We therefore recommend that:

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

41. Committees Recommendation 26: Increasing Captionist Capacity

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

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

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

We therefore recommend that:

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

42. Committees Recommendation 27: Accessibility in Education

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

We therefore recommend that:

#44. The Committees Recommendation 27 should be expanded to incorporate the AODA Alliances proposed Framework for the Education Accessibility Standard, which includes:

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

a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.

b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.

c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.

d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.

43. Committees Recommendation 28: Accessibility in Information and Communications Tools and Systems

We agree with the Committee that:

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

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

We therefore recommend that:

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

The Ontario Governments economic development strategy has tried to promote the development of the information technology sector in Ontario, to serve both the Ontario market and markets around the world. However, as far as we can tell, the Ontario Government has never acted on our advice, which we gave over several years, that it should incorporate in that effort a strategy, including funding strings, to promote the expansion of Ontarios technology sector so that it has more accessibility design expertise to offer organizations around the world.

We therefore recommend that:

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

44. Committees Recommendation 29: Accessibility in Provincially Regulated Professions

We endorse the Committees draft Recommendation 29. It provides:

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

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

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

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

9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.
Section 16 of the standard commendably requires training organizations to provide for their teachers, training on the needs of students with disabilities. However, it does not require any of their employees to ever take that training.

Regarding teacher training, we therefore recommend that:

#47. Section 16(1) should be amended to provide:

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

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

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

45. Committees Recommendation 30: Education Standards

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

C. Our Feedback on The Committees Proposed Phase 2

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

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

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

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

As noted earlier, we are opposed to the Ontario Legislature re-opening the AODA and considering making any amendments to it at this time. We dont want there to be any risk that The Government would try to weaken or reduce any provisions in the AODA. Re-opening the legislation would create such a risk. We would react very strenuously against any Government effort to re-open the AODAs terms in any way.

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

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

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

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

As a visible player on the provincial front regarding the AODA, the AODA Alliance would want to be a major player in any such discussions. For our part, we pointed out serious problems with the way the AODA has been operating, in our proposals to the Federal Government regarding the design of the new Accessible Canada Act. See for example our Discussion Paper on what Canadas national accessibility law should include, published in the National Journal of Constitutional Law and available at https://www.AODAalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/ The same goes for our recent proposals to the BC Government on what the promised BC accessibility law should include, available at https://www.AODAalliance.org/whats-new/the-british-columbia-government-commits-to-provincial-accessibility-legislation-and-seeks-public-input-on-a-proposed-framework-for-a-bc-disabilities-act-read-the-AODA-alliances-submission-to-the-b/

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:
Students, many of whom participate in projects such as mapathons, design challenges and curriculum-based assignments
Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
Non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law Persons with disabilities and their families or support communities Professional organizations
Community volunteers
Civil society

Similarly the Committees Phase 2 discussion later states:

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

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

As well, the Committee presents a very good series of suggestions for reform in its Appendix B. No Trusted Authority or other amendments to the AODA or to its current overall structure are needed to implement them. The IASR can and should be amended, such as in ss. 5 and 6, to incorporate the very helpful requirements that the Committee formulated in its Appendix B. With such a revision to the IASR we would be in clear support. Appendix 1 Excerpts from the Mayo Moran Second Independent Review of the AODA

The 2014 Moran Report included;

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

Proposed Revisions to Current Standards

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

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

IMPACT ON SPECIFIC DISABILITIES

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

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

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

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

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

EXEMPTIONS AND EXCEPTIONS

The existing regulations set different requirements based on the size of the organization. Where the line should be drawn between small and large businesses was a major source of contention in the feedback received by this Review. In fact, some felt it was a mistake to create any exemptions on the basis of the number of employees, as very small organizations can have huge revenue streams.
At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.

The Customer Service standard currently sets the threshold for certain requirements at 20 employees rather than 50. Currently, organizations with under 20 employees are exempt from requirements to prepare documents on their accessibility policies including policies on service animals and support persons and the handling of service disruptions and to produce copies on request, as well as from obligations to document training policies, keep training records and file accessibility reports. In its review of the Customer Service standard which coincided with this Review ASAC proposed to raise that threshold to 50 employees instead of 20 to align with the IASR, and several disability groups voiced their concerns about this proposal to this Review.

In addition to the exemptions based on organizational size, the Review also received some feedback on several other provisions that were questioned including the following:
Exemption of owner-operated sole proprietorships from the entire IASR as they have no employees.
Exclusion of the entire private sector from the duty to incorporate accessibility criteria and features when acquiring goods, service and facilities.
Exclusion of products and product labels from the Information and Communications standard.
Exclusion of unconvertible information from accessible format requirements, which some described as a loophole that should be closed.
Exemptions for all organizations except the provincial Government from the website provisions on live captioning and pre-recorded audio descriptions.

As well, disability stakeholders took issue with various exceptions that are less exacting than undue hardship under the Human Rights Code. This issue will be addressed later in the section on the AODAs Relationship with Other Legislation.

GAPS IN STANDARDS

Beyond exemptions and the impact on certain disability groups, participants highlighted a host of gaps in existing standards and put forward numerous suggestions to close them.

Information and Communications

One of the gaps identified that was among the most serious sources of concern was the exclusion of extranets from the website standards. An extranet is a controlled extension of an organizations internal network that allows access to outside users over the internet. It was pointed out that the standards development committee expected everything behind the log-in to be covered. The fact that this was not done is seen as a step backward.

Unless Ontario keeps standards in line with evolving information technology, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

The importance of keeping the Information and Communications standards in line with evolving international standards was also stressed. Unless a mechanism is created to do this, the Review was told, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

Some participants raised concerns about the provision of accessible formats for various purposes on request. They proposed that all educational resources should be accessible, with no need for a request. On the other hand, some post-secondary stakeholders pointed out that this might not be a wise use of resources as there may turn out to be no demand for many of the materials.

1 The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, S.8(1). Retrieved at http://www.legislation.gov.uk/uksi/2018/952/made#f00004; Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, S.7(1). Retrieved at http://www.legislation.gov.uk/eudr/2016/2102/contents
2 The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, s.3; Directive (EU) 2016/2102 of the European Parliament and of the Council, Article 7(1).
3 The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, section 4(a)(b). 4 Integrated Accessibility Standards, s.9(3)(a).




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Send Us Your Feedback on the AODA Alliance’s Draft Brief to the Information and Communication Standards Development Committee on Needed Improvements to the 2011 Information and Communication Accessibility Standard


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Send Us Your Feedback on the AODA Alliance’s Draft Brief to the Information and Communication Standards Development Committee on Needed Improvements to the 2011 Information and Communication Accessibility Standard

November 5, 2019

          SUMMARY

Today we are making public a draft of our proposed brief to Ontario’s Information and Communication Standards Development Committee. We want your input. We set that brief out below. It is very detailed.

Back in 2011, the Ontario Government enacted the Information and Communication Accessibility Standard under the AODA. It addresses barriers to accessibility in information and communication that face people with disabilities.

In 2016, the Ontario Government appointed a new Information and Communication Standards Development Committee to review that standard, and to make recommendations on where it needs to be strengthened.

On July 24, 2019, the Information and Communication Standards Development Committee made public its draft recommendations. It invited feedback from the public on those draft recommendations. The AODA Alliance has been hard at work, preparing a brief to provide our feedback to the Standards Development Committee. We are here giving you a draft of our brief. We welcome your feedback before we finalize this brief.

Here’s the problem! The Government’s deadline for sending in public feedback to the Standards Development Committee was October 25, 2019. We are late! We have to get this brief finalized very fast. Therefore, rushed as it sounds, we need your feedback no later than November 11, 2019.

We apologize for this rush. Our volunteer efforts have been spread over so many important issues, like the recent federal election.

You can be relieved to know that this draft brief reflects a lot of research. It also incorporates lots of feedback that we have received over the years on the issue of barriers to information and communication.

Send your feedback to us by emailing us at [email protected]

We know that this draft brief is quite long and detailed. Some may not have the time to read it all. Here is a short summary of what we propose to say in this brief. This is the summary that is also included in the brief itself.

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committee s draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

There have now been 279 days since the Ford Government received the Onley Report. It called for strong new Government action to implement and enforce the AODA. The Ford Government has still announced no comprehensive plan to implement that report.

Draft Only

Accessibility for Ontarians with Disabilities Act Alliance

United for a Barrier-Free Ontario for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Brief to the Ontario Information and Communication Standards Development Committee on Its Draft Recommendations for Revisions to the 2011 Information and Communication Accessibility Standard

November 5, 2019

Via email to: [email protected]

Note: This is only a draft and has not been finalized as the position of the AODA Alliance.

A. Introduction

1. Overview

This is the AODA Alliance’s brief to the Information and Communication Standards Development Committee on its draft recommendations for revisions to the 2011 Information and Communication Accessibility Standard.

The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is a provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for this action.

In 2011, the Ontario Government passed the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions on the accessibility of information and communication. That is referred to in this brief as the Information and Communication Accessibility Standard. At other points, this brief generally refers to the IASR, of which that standard is a part.

In 2016, the Ontario Government appointed the Information and Communication Standards Development Committee under the Accessibility for Ontarians with Disabilities Act (AODA) to review the 2011 Information and Communication Accessibility Standard, enacted under the AODA, and to recommend any revisions needed so that this , accessibility standard would best achieve the AODA’s purposes.

The Information and Communication Standards Development Committee has developed draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them, the Ontario Government was required to do this under the AODA. The feedback which the Government receives is to be submitted to the Information and Communication Standards Development Committee. That committee is then required to consider that feedback, as it finalizes its recommendations for the Government.

This brief provides the Information and Communication Standards Development Committee with our feedback on the committee’s draft recommendations. We hope that this feedback will assist the committee as it finalizes its recommendations for the Government.

The AODA Alliance welcomes this opportunity to offer our input. We ask that the Accessibility Ministry ensure that all members of the Information and Communication Standards Development Committee receive this brief as a whole, and not just a summary of it prepared by the Accessibility Directorate of Ontario. We have received informal word that in the past, at least some Standards Development Committees only receive a summary of feedback from such mandatory public consultations. That summary was evidently prepared by the Accessibility Directorate of Ontario. To fulfil the spirit and purposes of the AODA’s public consultation provisions it is important for all Standards Development Committee members to hear directly from the public, without having their input filtered by the Ontario Government.

We also offer to make an in-person presentation directly to the Information and Communication Standards Development Committee on our feedback. The Transportation Standards Development committee and the Employment Standards Development Committee each took us up on that offer. We hope this Standards Development Committee will do the same.

When it comes time for the Information and Communication Standards Development Committee to vote on the recommendations that it will present to the Ontario Government, we ask the committee to vote separately on each of the recommendations that we present in this brief.

We acknowledge with thanks the feedback and input that we regularly receive from our supporters that enable us to provide informed feedback to the Government and the public in areas such as this. We also thank the members of the Information and Communication Standards Development Committee for their commendable efforts to strengthen the Information and Communication Accessibility Standard.

2. Who Are We?

The AODA Alliance is a voluntary non-partisan coalition of individuals and organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.”

To learn about us, visit: https://www.aodaalliance.org.

Our coalition is the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated more than ten years for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

We have been widely recognized by the Ontario Government, by all political parties in the Ontario Legislature, within the disability community and by the media, as a key voice leading the non-partisan campaign for accessibility in Ontario. In every provincial election since 2005, any party that has made election commitments on accessibility has done so in letters to the AODA Alliance.

Our efforts and expertise on accessibility for people with disabilities have been recognized in speeches on the floor of the Ontario Legislature, and beyond. Our website and Twitter feed are widely consulted as helpful sources of information on accessibility efforts in Ontario and elsewhere. We have achieved this as an unfunded volunteer community coalition.

Beyond our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. Our efforts influenced the development of the Accessible Canada Act. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue.

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on disability accessibility issues. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that desired legislation.

We have also been consulted outside Canada on this topic, most particularly, in Israel and New Zealand. In addition, in June 2016, we presented on this topic at the UN annual international conference of state parties to the Convention on the Rights of Persons with Disabilities.

The AODA Alliance has played a leading and highly-visible role in Ontario in raising a wide range of accessibility issues, including in the information and communication context. We have connections across Canada and internationally with, and are regularly consulted by accessibility advocates and governments as they grapple with how to tackle these issues.

As but one example, the AODA Alliance played a leading role in campaigning to enable the Information and Communication Standards Development Committee to get back to work after the work of all Standards Development Committees was frozen in the wake of the 2018 Ontario election. We were happy and relieved when the Ontario Government lifted that freeze on the Information and Communication Standards Development Committee in the fall of 2018 and allowed it to go back to work.

3. Summary of this Brief

The AODA Alliance has solicited input from its supporters through its website, its mass email list, and on Twitter. Drawing on that feedback and on our extensive involvement in advocacy on accessibility issues in Ontario, this brief provides our feedback on those draft recommendations.

Our feedback set out in this brief is summarized as follows:

  1. The 2011 Information and Communication Accessibility Standard was the strongest of the accessibility standards that the Ontario Government has enacted under the AODA. Despite this, it has several significant deficiencies. If every organization fully complied with it, it would not ensure that information and communication is accessible to people with disabilities by 2025, or ever.
  1. The Information and Communication Accessibility Standard, while helpful, does not address all of the recurring information and communication barriers that people with disabilities face. Where it does address a known recurring accessibility barrier, its guarantees are too often too weak. They have too many exemptions that are too broad, and that fall below requirements in the Ontario Human Rights Code.
  1. We agree with many, if not most or all, of the ‘Information and Communication Standards Development Committees findings of deficiencies in the Information and Communication Accessibility Standard. Many, if not most, of the Committees draft recommendations in its Phase 1 discussion are quite good and commendable. For the most part, we approve them “as is” or make recommendations for modest refinements or additions to them.
  1. We also offer additional recommendations to address deficiencies in the Information and Communication Accessibility Standard that the Committee’s draft recommendations do not fix. Overall, our recommendations aim to ensure that the Information and Communication Accessibility Standard is strengthened so that it addresses the full range of accessibility barriers that people with disabilities face in relation to information and communication, to ensure that it specifies the actions that organizations need to take to ensure that information and communication becomes accessible, and to narrow the excessively broad exemptions in the standard.
  1. In its draft Phase 2 recommendations, the Information and Communication Accessibility Standard Makes a commendable effort to find ways to make the AODA work more effectively. We do not endorse certain parts of the Committee’s Phase 2 recommendations, because they raise legal issues that we have not had time to address, and because they would necessitate amendments to the AODA itself. We would object to any effort to re-open the AODA in the Ontario Legislature or any effort to amend it, as we do not want to risk having the AODA weakened by the Legislature.
  1. Some of the Committee’s specific suggestions that form part of its Phase 2 draft recommendations can be implemented without requiring amendments to the AODA. We identify those that fit this description and with which we agree.

4. Preliminary Thoughts Before Proceeding to Our Specific Recommendations

Here are three important themes which we ask the Committee to bear in mind as it reviews our recommendations.

a) A Commendable Start

First, we strongly commend the Committee for its efforts and for the draft recommendations. As will become evident, we agree with many if not most of the Committee’s Phase 1 recommendations. We urge adjustments to several of the Committee’s recommendations to further strengthen them. These are in a number of cases request from us for minor adjustments or refinements to the Committee’s work. We also point out several additional improvements to the Information and Communication Accessibility Standard, to supplement those which the Committee has prepared.

Based on its work so far, the Information and Communication Standards Development Committee has done by far the best job of any Standards Development Committee that has been appointed to review an existing AODA accessibility standard. It has prepared far stronger draft recommendations for reform than did ASAC when it reviewed the 2007 Customer Service Accessibility Standard or the Transportation Standards Development Committee when it reviewed the 2011 Transportation Accessibility Standard.

b) Committee’s Job Not Merely to Assess if the Information and Communication Accessibility Standard Has Been Working “As Intended”

Second, it appears obvious that several of the Standards Development Committees that have been reviewing an existing AODA accessibility standard has been working under substantially erroneous advice from the Accessibility Directorate of Ontario. Each such Standards Development Committee, including the current Information and Communication Standards Development Committee, has stated that it understood its job, when reviewing an existing AODA accessibility standard, is to determine if the standard is working “as intended”. The Information and Communication Standards Development Committee’s draft recommendations state in the introduction:

“The Act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required.”

Substantially the same erroneous language was included in the initial draft recommendations of the Transportation Standards Development committee that were circulated in 2017 for public comment and the draft recommendations of the Employment Standards Development Committee which were circulated earlier this year for public comment.

To simply see if the standard is working “as intended” seriously and substantially understates the goal of this mandatory review of the 2011 Information and Communication Accessibility Standard. The AODA does not limit a Standards Development Committee to inquiring on such a review to see if the standard is working “as intended”.

Rather, this review’s purpose is to ascertain whether the Information and Communication Accessibility Standard is working sufficiently to ensure that information and communication become fully accessible to people with disabilities by 2025, the AODA’s goal. This Review should recommend improvements to ensure that the Standard will achieve that goal.

It is not sufficient for the Standards Development Committee to just ask if the Information and Communication Accessibility Standard is working “as intended.” By that lesser and palpably weak approach, the Information and Communication Accessibility Standard would be fine, and would need no improvements, if it led obligated organizations to merely do whatever the original 2011 Information and Communication Accessibility Standard spelled out. That would be sufficient, even if that left information and communication in Ontario full of disability barriers, now and even long after 2025. If the original intent of the 2011 Information and Communication Accessibility Standard fell below what the AODA requires for information and communication accessibility by 2025, neither we nor the Standards Development Committee should be locked into or handcuffed by that insufficient goal.

As this brief documents, the 2011 Information and Communication Accessibility Standard, while helpful, was not capable of ensuring that information and communication will become fully accessible by 2025, or indeed, ever. We have publicly shared our strong disagreement with the Accessibility Directorate‘s substantial dilution of the aim of these five year reviews of AODA accessibility standards, and have alerted the Directorate about our concerns. Despite this, and with no explanation or justification, that Directorate appears to have persisted in pressing Standards Development Committees to adopt this incorrect and unduly restrictive understanding of their mandate. We identified this concern in our briefs to the Transportation and Employment Standards Development Committees. We also identified it in Chapter 5 of our January 15, 2019 brief to the Third AODA Independent Review conducted by David Onley. It was there explained under the heading: “Inappropriate Government Attempts to Unduly Restrict the Work of Standards Development Committees”.

Even though the Information and Communication Standards Development refers to this erroneous “working as intended” approach to its review, it is clear from its draft recommendations that the Committee did not allow itself to be improperly hog-tied by the Directorate’s erroneous advice or direction. We congratulate the Committee for doing so.

c) Committee Should Use the Findings in the Moran and Onley Reports As Its Starting Point

Third, we agree with the Standards Development Committee‘s draft recommendations’ general assessment of the 2011 Information and Communication Accessibility Standard, as summarized in this paragraph:

“The Committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The Committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, Committee members agreed that the Standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.”

However, it is vital for the Committee to proceed from the starting point that the Information and Communication Accessibility Standard is substantially more deficient than that, even though it is the strongest of the accessibility standards enacted to date. The Committee should work from the starting point established by the second AODA Independent Review conducted by Mayo Moran and the third AODA Independent Review conducted by David Onley. The key findings in the reports of those reviews appear to come directly from the detailed briefs that the AODA Alliance submitted to those reviews.

In 2014, the second mandatory Independent Review of the AODA, conducted by Mayo Moran, found that there are very serious deficiencies in the accessibility standards enacted to date. These included the 2011 Information and Communication Accessibility Standard. Nothing in that accessibility standard has been changed since that report to address those concerns. Appendix 1 to this brief sets out key excerpts from the Moran Report.

The third Independent Review of the AODA, conducted by David Onley, reinforced and supplemented the Moran Report’s overall findings. It did not disagree with the Moran Report’s findings regarding the IASR’s deficiencies. Because the Information and Communication Accessibility Standard’s provisions had remained unchanged over the five years between the Moran Report and the Onley Report, there was no basis to revise the earlier report’s concerns.

In 2019, the third AODA Independent Review conducted by David Onley accepted the Moran Report as a correct starting point. It did not contradict any of the Moran Report’s findings about the problems with the accessibility standards enacted to date. It did not find that in the intervening four years, the Ontario Government had done anything to reduce those serious deficiencies.

To the contrary, the Onley Report made even more pointed and blistering findings about the AODA’s overall implementation. It did not exempt the Information and Communication Accessibility Standard from those blistering findings.

Based on public feedback, Onley’s report found that the pace of change regarding accessibility since 2005 for people with disabilities has been “glacial.” With then under six years left before 2025, the report found that “…the promised accessible Ontario is nowhere in sight.” He concluded that progress on accessibility under this law has been “highly selective and barely detectable.”

David Onley found “…this province is mostly inaccessible.” The Onley report correctly concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley report had damning things to say about years of the Ontario Government’s implementation and enforcement of the AODA. It in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership. He recommended:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

Since the Onley Report was received over nine months ago, the Ontario Government has announced no comprehensive plan to implement it, nor has it publicly said that it will do so in the future. As such, Ontario keeps slipping further and further behind the goal of full accessibility, while the 2025 deadline looms closer and closer.

d) The Bottom Line for This Committee

As such, we urge the Information and Communication Standards Development Committee to see its job as pivotal. It should recommend fixes to the Information and Communication Accessibility Standard that will rectify the substantial deficiencies in the AODA’s implementation in so far as they pertain to the accessibility of information and communication. This brief aims to help the Committee with that task.

If the Information and Communication Accessibility Standard is to be strengthened in order to ensure that the AODA’s goal is achieved by 2025 in relation to information and communication, this must happen now. The next mandatory review of the Information and Communication Accessibility Standard does not have to be appointed until the eve of the 2025 deadline. By then, if Ontario has not yet been put back on schedule for the 2025 deadline in connection with the accessibility of information and communication, it will be too late.

In the following discussion, our recommendations track the sequence of the Committee’s draft recommendations. We insert additional topics where they best fit, following the structure of the Information and Communication Accessibility Standard itself.

B. Our Specific Feedback on the Draft Recommendations’ Phase 1 Proposals

1. Accessibility Standard’s Long Term Objective

We commend the Committee for reviewing the Information and Communication Accessibility Standard’s long term objective, and its effort to simplify it. We believe that all that needs to be added to the Committee’s proposed simplified language is the AODA’s 2025 deadline.

We therefore recommend that:

#1. The standard’s long term objective should be:

“By no later than 2025 and thereafter, people with disabilities will be able to participate fully and equally in the creation and use of information and communications.”

2. Section 2 – Definitions

The term “accessible formats” should be clarified so that organizations know that digital formats are an option, but only if they are in a format that is screen-reader-friendly.

We therefore recommend that:

#2. The Committee’s recommendations should be expanded to recommend that the definition of “accessible formats” in s. 2 of the standard should be expanded to add “digital accessible formats that are readily readable on computers and portable technologies such as smart phones, using adaptive technology, but does not include documents in PDF format unless also accompanied by other accessible digital formats.”

3. Definition of Electronic Self-Serve Kiosks

The IASR’s definition of an electronic self-serve kiosk is far too narrow.

We therefore recommend that:

#3. Section 5(5) of the IASR should be amended to provide:

“(5) In this section, “kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

4. Committee’s Recommendation 1 Consolidating the Regulation’s Feedback Requirements

We agree with the committee’s Recommendation 1 to immediately consolidate in one place in the IASR all feedback requirements, in language that makes them clear and consistent as long as this makes it clear that this that does not reduce any existing obligations.

5. Section 9 – Definitions and Exceptions

The standard’s definition of “conversion-ready” information is too loose. Section 9 provides:

“conversion ready” means an electronic or digital format that facilitates conversion into an accessible format;”

That definition does not ensure that the material is capable of ready conversion into an accessible format.

We therefore recommend that:

#4. The Committee should expand its recommendations to recommend that section 9(1) of the standard should be amended to define “conversion-ready” as follows:

“conversion ready” means an electronic or digital format that ensures ready conversion into an accessible format that effectively retains the information content that can be read on a computer using widely available adaptive technology, and on hand-held or portable digital technology such as smart phones;”

Section 9(4) defines unconvertible information in a manner that is far too broad. This would weaken the rights of people with disabilities. Section 9(4) provides:

“For the purposes of this Part, information or communications are unconvertible if,

(a)        it is not technically feasible to convert the information or communications; or

(b)       the technology to convert the information or communications is not readily available.”

That provision dramatically reduces obligations of organizations below what they are required to do under the Human Rights Code, and, where applicable, the Charter of Rights. Our proposal for amending s. 9(2) makes s. 9(4) unnecessary.

We therefore recommend that:

#5. The committee’s recommendations should be expanded to recommend that either:

(a) Section 9(4) should be deleted, or

(b) Section 9(4) should be amended to provide as follows:

“(4) For purposes of this Part, information or communications are unconvertible if,

  1. a) It is not possible to convert the information or communications without undue hardship; or
  2. b) The technology to convert the information or communications is not available without undue hardship.”

6. Committee’s Draft Recommendation 2 PDF Documents

We agree with the Committee’s draft recommendations where they conclude that PDF documents are often inaccessible and that the required expertise to make them accessible is seldom present in obligated organizations.

The Committee’s draft recommendations indicate that they do not propose banning PDF formats. We have never proposed banning anyone from creating a PDF document. It has always been our position, which we urge here, that if an obligated organization creates a pdf document in connection with activities to which this accessibility standard would apply, an accessible alternate format document, such as an MS Word, txt or HTML document should also be posted and made available at the same time.

The Committee’s draft recommendations state that the Committee considered non-regulatory measures such as education for Government employees, but did not vote on this. We do not believe that such non-regulatory measures are sufficient. They would not solve this persistent but easily-remedied problem.

We have been struggling for well over a decade to get the Ontario Government to change its own practices with PDFs, so that it will always simultaneously post an accessible format for a document whenever it publicly posts a PDF. This has too often been a frustrating and futile effort, even after we repeatedly raised this at the highest levels within the Ontario Public Service. We still continue to face serious problems. The Ontario Government has repeatedly claimed to be leading Ontario by its example on accessibility. Yet its example in this context is not one by which we would want Ontario to be led. For example, the Ontario Government even released in inaccessible PDF documents such important things as the 2014 final report of Mayo Moran’s Independent Review of the AODA, and the previous Government‘s long-awaited anti-poverty strategy. Years after being told that PDFs present an accessibility problem, the Ministry of Education continues to make important publicly-facing documents regarding Ontario’s education system available via PDF documents.

A simple, clear enforceable rule in the Information and Communication Accessibility Standard is the only effective measure that will have a hope of success, not only for the Ontario Government, but for other obligated organizations as well.

Some may think that a PDF can be made fully accessible. With such a view, we strongly and respectfully disagree, based on years of ample experience. However, this is a moot point.

First, as the committee correctly recognizes, obligated organizations mostly do not have the expertise to make a PDF accessible, even if it is assumed that this goal can be accomplished. Second, when a person receives a PDF, there is no way to know from the file name whether anyone has even attempted to incorporate accessibility features in it, and if so, how many such features. Third, it makes no sense to ask obligated organizations to divert their resources into trying in vain to remediate a new PDF, when they could instead quickly, easily and at no cost simply post the document in an accessible format like MS Word, whenever they post a pdf.

It would take enormous resources to try to persuade obligated organizations to voluntarily change their practices. It is far more effective to set a simple rule which obligated organizations can readily understand and which is easy to enforce.

Documents are not written in PDF. They are written in another application like MS Word. After they are written, accessibility is stripped from that document when it is converted to a PDF.

We therefore recommend that:

#6. The draft recommendations should be revised to include a requirement that if an obligated organization posts a PDF online, it should also simultaneously post the same document in an accessible format such as MS Word, txt or html.

7. Committee’s Draft Recommendation 4: Products and Product Labels

We agree with the Committee’s draft recommendation 4 that the loophole in the 2011 Information and Communication Accessibility Standard must be closed which exempts products and product labels from information and communication accessibility. Section 9(2) of the standard states:

“      (2) The information and communications standards do not apply to the following:

  1. Products and product labels, except as specifically provided by this Part.”

We commend the Committee for attempting to address this. However the draft recommendations do not go far enough to address this. The Committee’s draft recommendations call on the Ontario Government to try to work out a shared regulatory solution with the Federal Government and/or in the interim, that the Ontario Government explore non-regulatory solutions with obligated organizations.

Here again, an enforceable mandatory and specific standard is needed to change practices on the ground. Almost 15 years into the AODA, Ontarians with disabilities do not have time to hope that non-regulatory voluntary measures will change practices that have not substantially changed. In this context, we re-emphasize the finding in the Onley Report that progress on accessibility has been far too slow, and that Ontario remains a province full of “soul-crushing barriers.”

To hold off any regulatory action on this pending Ontario working out a coordinated action by the Federal Government would, we regret, indefinitely delay any regulatory action. Getting agreement with the Federal Government will predictably take years. The Federal Government will no doubt want to try to work out a common approach for all the provinces. While that would be ideal, it will take even longer. It will also lead to Ontario risking its being driven down to the lowest common denominator among the provinces. Ontario should lead with the strongest standard, and not follow others to the weakest standard.

In the recent federal election, most of the federal parties were not prepared to make any commitments at all on new measures they would take to promote accessibility for people with disabilities. Only one party was prepared to make commitments with any detail or that embodied real change for disability accessibility. After the election, there is little reason to expect that they will become more eager to make this a priority.

There is no compelling reason to await federal regulatory action in this sphere, as the Committee’s draft recommendations propose what Ontario should do. The committee is worried about the possible overlap between federal and provincial jurisdiction. In any area of public regulation of economic activity, there are innumerable situations where there may be an overlap between federal and provincial jurisdiction. Ontario nevertheless takes action, without waiting for the Federal Government. We have a federal labour board and a provincial labour board. We have a national building code and the Ontario Building Code. The list goes on.

Our constitution fully accommodates this without a province having to simply withhold regulatory action. In 2011, it is commendable that the Ontario Government did not withhold enacting regulatory standards for the accessibility of websites. For the same reason, it can and should act now in the area of the accessibility of product labels. If the Federal Government later decides to take action in this area, Ontario can of course discuss ways to harmonize their requirements, should the Federal Government at last decide to act in this area. However this should only be done so long as this does not lead to any reduction in Ontario’s accessibility protections.

While it would be helpful for the Ontario Government to work with industries to come up with creative new solutions in this area as the committee proposes, that too is no reason to withhold the enactment now of a regulatory requirement. Indeed, the presence of a mandatory Ontario regulatory accessibility requirement would help motivate industries to develop creative new solutions, including harnessing new technologies.

We therefore recommend that:

#7. The Committee’s draft Recommendation 4 should be revised to recommend that the Information and Communication Accessibility Standard should be amended now to set enforceable standards for products and product labels. This should not await Ontario working out a joint approach to this with the Federal Government, or the Ontario Government working with the private sector on developing non-regulatory innovations in this area. Section 9(2) (should be amended to provide an exemption only for:

“Products and product labels, where compliance with the information and communication requirements would impose an undue hardship on the organization.”

8. Committee’s Draft Recommendation 5 Alternative Formats and Communication Supports

We agree with the Committee’s concern with s. 12 of the Information and Communication Accessibility Standard. It requires an obligated organization to consult with a person with a disability on a needed accessible document format. It leaves the ultimate decision to the obligated organization in unilateral terms. The Committee’s draft recommendation commendably found:

“The Committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.”

We agree with the Committee that this provision needs to be strengthened. We also agree with the Committee’s proposal that the obligated organization should endeavour to get the agreement of the person requesting the alternative format. However, we are concerned that this does not go far enough.

The Supreme Court of Canada has held that obligated organizations have a duty to investigate alternative solutions in “duty to accommodate” cases. (See D. Lepofsky “Ontario’s Human Rights Tribunal Bungles the School Boards’ Human Rights Duty to Accommodate Students with Disabilities – J.F. v Waterloo District Catholic Scho  ol Board – An Erroneous Rejection of A Student’s Request to Bring His Autism Service Dog to School” to be published in 2020 40.1 National Journal of Constitutional Law)

We anticipate that many obligated organizations do not know of their existing procedural duty to accommodate by investigating alternative solutions up to the point of undue hardship.

We therefore recommend that:

#8. The Committee’s draft Recommendation 5 should be expanded to propose that s. 12 of the Information and Communication Accessibility Standard be amended to state that where an obligated organization does not agree to provide the accessible format which the person with a disability requested, the obligated organization must investigate alternative ways to meet this need, up to the point of undue hardship.

9. Committee’s Draft Recommendation 6 and 7

We agree with the Committee where it states that s. 12 of the Information and Communication Accessibility Standard is unduly vague, by providing that an alternative format document must be provided in a timely manner. We also agree with the Committee’s draft Recommendation 6 that the obligated organization and the requesting individual should endeavour to reach an agreement on the time frame for this.

However we do not agree with the Committee’s draft Recommendation 5 through 7 where they propose to refer to the Accessibility Standards Advisory Council (ASAC) the task of developing some sort of alternative dispute resolution mechanism for addressing situations where the obligated organization and requesting individual cannot reach an agreement. We commend the Committee here for trying to be creative. Yet we fear that it might take years to develop that new mechanism. Moreover, ASAC’s membership was presumably not selected based on its expertise in designing alternative dispute resolution mechanisms.

The creation of the required legal machinery to which the committee’s draft recommendations refer might well require legislative amendment, if there is to be an enforceable requirement and monetary penalties for non-compliance. We have not had a chance to investigate that complex question. As further addressed later in this brief, we do not want the Government to re-open the AODA’s provisions in the Legislature.

Moreover, the AODA requires that the development of such ideas for accessibility standards be done initially through a Standards Development Committee which is subject to the AODA’s procedural safeguards and openness requirements (including requirements for public input). ASAC is not subject to any of those procedures and safeguards, for which we fought so hard. For example, its meeting minutes are not required to be made public. In contrast, the minutes of meetings of a Standards Development Committee must be made public according to the AODA. The development of recommendations for the content of an element of an accessibility standard should not be sub-delegated to ASAC.

Instead to strengthen requirements in this area to address the shortcoming which the Information and Communication Standards Development Committee commendably identified, it would be helpful for the Information and Communication Accessibility Standard to be amended to set clear timelines, or presumptive timelines for an organization to respond to a request. This could vary depending on the organizations size and the importance of the requested information. If the information is to come from a hospital and relates to a patient’s medical condition, then the response time should be very short. Given the readily-available availability of technology to produce alternative formats for documents, and the low cost for doing so, there is no reason for such timelines to be lengthy. If the Ontario Government were to post online helpful information on how to convert documents to accessible formats, and a list of venders who can be retained to do this, then an obligated organization should be able to act quickly when a request is received.

We therefore recommend that:

#9. Section 12 of the Information and Communication Accessibility Standard should be amended to set specific fixed or presumptive time lines for an obligated organization to provide an accessible alternative format for a document when requested. If the timeline is to be a presumptive one, rather than a categorical one, it should only be subject to an undue hardship defence for non compliance. The Committee should recommend timelines that are short e.g. 48-72 hours, where the obligated organization is a large one, and or the requested information relates to important matters such as health or safety or other vital services. Otherwise nothing longer than a 7 day time line should apply.

10. Committee’s Draft Recommendation 8

We agree with the aim of the Committee’s draft Recommendation 8. It calls for the IASR’s various requirements to provide accessible formats and communication supports to be brought together in one place in the IASR, as long as nothing is done to weaken these in any way. Our only concern will be to screen the proposed wording of any regulatory changes to be sure that they do not have the effect of reducing any rights of people with disabilities.

 11. Committee’s Draft Recommendation 9: On-Demand Conversion Ready Formats

We agree with the Committee’s draft Recommendation 9. It would require the Ontario Government and the Legislature to immediately ensure that all publicly facing documents are available in an accessible format. If this is required for new documents, this is not a major burden for the Ontario Government. As noted earlier, documents are typically first created in an accessible format, and then counterproductively rendered inaccessible by converting them to formats such as PDF.

12. Committee’s Draft Recommendation 10: On-Demand ASL and LSQ Translations

The Committee’s draft Recommendation 10 commendably aims to find a creative way to address the need for on-demand Government information in ASL and LSQ. We share the intent of that proposal, but believe it should be strengthened.

We therefore recommend that:

*10. The Committee’s draft Recommendation 10 should be expanded to:

  1. a) propose an amendment to the Information and Communication Accessibility Standard to implement and require the Committee’s proposed measures regarding the Ontario Government translating certain information into the Sign Languages ASL and LSQ on demand, and
  1. b) expand that requirement to include captioning for any such video content, for the benefit of people with hearing loss who need captioning and not Sign Language.

13. Other Deficiencies with Section 12 that the Committee’s Draft Recommendations Do Not Fix

Section 12(1)(a) sets the obligation here too low. It states:

“      12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)        in a timely manner that takes into account the person’s accessibility needs due to disability; and

(b)       at a cost that is no more than the regular cost charged to other persons.”

It is not sufficient for an obligated organization to take “into account” the needs of people with disabilities. The requirement should be to provide supports that meet the needs of people with disabilities unless to do so would cause the organization undue hardship.

We therefore recommend that:

#11. The Committee should recommend that section 12(1) of the standard be amended to provide:

“12. (1) Except as otherwise provided, every obligated organization shall upon request provide or arrange for the provision of accessible formats and communication supports for persons with disabilities,

(a)        in a timely manner that meets the person’s accessibility needs due to disability, except where doing so would cause an undue hardship to the organization; and

(b)       at a cost that is no more than the regular cost charged to other persons.”

It is commendable that section 12(3) requires organizations to notify the public about the availability of accessible formats and communication supports. However the provision is too vague. It requires more detail to make it effective. Section 12:3) provides:

“      (3) Every obligated organization shall notify the public about the availability of accessible formats and communication supports.”

We therefore recommend that:

#12. Section 12(3) of the standard should be amended to provide:

“(3) Every obligated organization shall notify the public in an accessible format about the availability of accessible formats and communication supports, and, without limiting the generality of the foregoing, shall post such notification in an accessible format on the organization’s website, if it has one.”

Unlike the clear language used in a number of other parts of the IASR, section 12(4) is unintelligible. An organization will need a lawyer to figure it out. It states:

“      (4) Every obligated organization that is required to provide accessible formats or accessible formats and communication supports by section 3, 4, 11, 13, 19, 26, 28, 34, 37, 44 or 64 shall meet the requirements of subsections (1) and (2) but shall do so in accordance with the schedule set out in the referenced section and shall do so only to the extent that the requirements in subsections (1) and (2) are applicable to the requirements set out in the referenced section.”

We do not know what this provision means. We fear others will also not know what it means. Whatever it means to say, it should be said in much clearer language – language that lets an organization and persons with disabilities understand it without needing to hire and pay a lawyer to decipher it.

We therefore recommend that:

#13. Section 12(4) should be re-written in plain language to make it intelligible.

As a general matter, we also commend and endorse the concerns and advice that Communication Disabilities Access Canada CDAC provided to Accessibility Minister Raymond Cho in its January 19, 2019 letter to the minister. CDAC is an amazing and well-respected expert in its field. It has cutting-edge knowledge and good ideas on how to make progress.

We quote from the key part of that letter here:

“Communication Disabilities Access Canada (CDAC) is a national and provincial, non-profit organization that addresses accessibility for people who have speech, language and communication disabilities. Over 165,000 Ontarians have disabilities that affect their communication, that are not caused primarily by deafness or significant hearing loss. Diverse disabilities such as physical, neurological, cognitive, learning, hearing, vision, and linguistic disabilities can affect one or more areas of a person’s speech, comprehension, reading and writing.

Communication access to goods and services is as important as physical access for people who have little or no speech and who use picture, symbol, letter boards and devices to convey their messages.

The current integrated standards do not provide sufficient directives for businesses and organizations on ways to make their services accessible for people with speech, language and communication disabilities. For example, most people with speech and language disabilities experience significant barriers to services in face-to-face and telephone interactions, group meetings and forums and written communication. These contexts are not adequately or comprehensively addressed in any of the Standards. They are either oversimplified or omitted.

At this time, the Information and Communications Standard primarily focuses on making written information (print and digital) accessible. Examples of accessible formats cited on the Accessibility Directorate’s website, include human assistance, large print, text transcripts of audio or visual information, handwritten notes instead of speech, plain language and electronic documents.

Many of these accessibility accommodations are extremely useful and appropriate for people who have speech and language disabilities. However, the accessibility needs of people with speech and language disabilities go beyond access to written information and occur in face-to-face and telephone interactions, group meetings and written communication. Many of these contexts are critical communication situations, such as police, legal and justice services, where communication barriers can have serious consequences.

To address this significant gap in the Standards, we propose that the Information and Communications (IC) Standard expand its mandate to include regulations that address two-way, interactive communication for people who have disabilities that affect their communication.

We are recommending:

  • The IC Standards Development Committee should include people who have a thorough knowledge and proven track record to represent the communication access needs of people with diverse speech and language disabilities.
  • The mandate of this committee should go beyond “processes that businesses and organizations must follow to create, provide, and receive information and communications that are accessible to people with disabilities” to include “processes, and resources to ensure effective two-way communication in face-to-face, telephone and group interactions and written communication.
  • Development of regulations, guidelines and resources for: Face-to-face, telephone and group interactions. Standards and guidelines are required for all service providers who interact with the public within these contexts, so that they have the knowledge, skills and resources to interact with people who communicate in ways other than speech. They need to know how-to make telephone services accessible and how to make meetings and public forums inclusive for people who have communication disabilities.
  • Communication supports: Service providers need information about how and when to provide and work with communication assistants, communication intermediaries, sign language interpreters and other formal communication support services. Formal communication assistance services are essential in critical communication contexts such as health care, police, legal and justice services. In these situations, appropriate communication support services must be mandatory.
  • Communication accommodations: Service providers need information about simple, non-technical communication tools that they may provide when a person has no effective means to communicate. They need clarification on the use of communication devices that people may use.
  • Writing: Regulations are required to address writing activities for people who cannot physically write or who cannot write due to learning or linguistic disabilities. Writing includes accessible forms, procedures for note taking and signatures.
  • Environmental accommodations: Services need guidelines on creating and designing accessible signage and wayfaring, counter spaces, and elevators with a communication access lens.
  • Policies are required for communication procedures in emergency evacuation situations, as well as authentic assistance in critical contexts, including medical assistance in dying, police, legal and justice settings.

We believe that many of these accessibility features could be included in the IC Standard to provide a foundation upon which sector-specific communication standards could be developed, such as transportation, healthcare, education and employment. An example of a generic baseline communication standard would-be mandatory training for all service providers on how to communicate with a person who has unclear speech or who uses a communication device. An example of a sector-specific communication standard would be that health care providers must ensure that a communication assistant is authorized by a patient when supporting them in the provision of informed consent to treatment.

Existing resources:

CDAC has developed a range of free guidelines and resources on ways to make services communication accessible. These resources are available for the Accessibility Directorate to promote and use across the province, resources include:

  1. A database of qualified Communication Intermediaries to assist people with speech and language disabilities communicating in police, legal and justice situations

http://www.cdacanada.com/communication-assistance-database/.

We have information about making justice services accessible at

http://www.access-to-justice.org/

  1. A database of communication assistants who are available to support people with speech and language disabilities communicating at meetings, forums and on committees at http://www.cdacanada.com/communication-assistance-database/
  1. A webinar on making services accessible at

Making your services accessible for people with communication disabilities

  1. Written guidelines on communication access at

http://www.communication-access.org/wp-content/uploads/2018/12/Guidelines-for-Communication-Access-1.pdf”

We therefore recommend that:

#14. The Information and Communication Standards Development Committee should seek direct input including a face-to-face meeting with Communications Disabilities Access Canada and address its concerns regarding the standard.

14. Part 3: Section 13 Emergency Plans Generally

We share the Committee’s commendable call for greater action to ensure the accessibility of information regarding emergency plans and procedures.

15. Committee’s Draft Recommendation 11: Emergency Requirements

We agree with the Committee’s draft recommendation 11 that all the IASR’s various provisions regarding emergency plans and procedures should be consolidated in one part of the regulation. We add that nothing should be done to weaken these provisions.

16. Committee’s Draft Recommendation 12: Unacceptable Emergency Outcomes and Preparedness

The Committee concluded that “the preparedness of all levels of Government for emergencies involving people with disabilities is unacceptable.” We share this concern.

The Committee commendably recommended that the Government should review overall emergency preparedness measures from a disability perspective. However, it did not recommend anything to strengthen s. 13 of the Information and Communication Accessibility Standard. We turn attention to that need here.

Section 13 does not spell out the most obvious and important aspect of emergency procedures in this area. It does not explicitly require an organization to incorporate in any emergency procedure, a process for ensuring that it makes emergency announcements in an accessible format or manner during an emergency or crisis. Even if it is implicitly covered by earlier provisions in the IASR, it is very important to have a specific, clear and strong requirement here.

We therefore recommend that:

#15. Section 13 should be expanded to impose a requirement that an organization include in any emergency procedures plan, specific measures to ensure that emergency announcements (such as fire alarms) are available in an accessible means (e.g. flashing lights for the benefit of persons with hearing loss).

17. Part 4: Section 14 Website and Web Content Accessibility Generally

We share the Committee’s view that the standard’s website accessibility provisions need to be strengthened.

18. Committee’s Recommendation 15: Differentiating Organizations/High Impact Organizations

We strongly and heartily endorse the Committee’s proposal that an organization’s number of employees should not be the sole determinant of an organization’s accessibility obligations. We have been urging that view upon the Ontario Government for over a decade without success.

We agree as well that the Committee’s idea of defining high impact organizations for purposes of defining their accessibility obligations has merit. We would add, however, a few variations. First, the Information and Communication Accessibility Standard, as now constituted, has had an upside-down approach to organizations ‘ duties and time lines. As in all other areas of the IASR, the Information and Communication Accessibility Standard starts from a mechanistic approach whereby the bigger the organization, the more it must do, and the sooner it must do it. In the case of small organizations, such as smaller businesses, website and mobile app accessibility should be attainable more quickly than by larger organizations, especially where the measures are required on a go-forward basis. A small company with a small website can ensure that the accessibility of its entire web footprint much more quickly than can the Ontario Government. Yet the Information and Communication Accessibility Standard erroneously places the least obligations on that small company and gives it the longest time lines. It places the greatest obligations on the Ontario Government and gives it the shortest time lines. This makes no sense. The Information and Communication Accessibility Standard should be revised where needed to correct this incorrect approach. It is of course irrelevant for those time lines that have already expired.

Second, the measure of what constitutes a high impact organization should include more than does the Committee’s Recommendation 15.

We therefore recommend that:

#16. The Committee’s draft Recommendation 15, to create a category of high-impact private organizations, should be refined to:

  1. a) Create criteria that will be easily measured and enforced, where possible.
  1. b) That will measure the number of an organization’s users, customers or interactions inside or outside Ontario. If for example, the organization has a huge customer base around the world, the fact that a smaller number of users in Ontario should not militate against it being categorized as a high-impact organization.
  1. c) Make the threshold revenue as $1 million not $10 million as the Committee’s draft recommendations propose.
  1. d) Recommend the revision of s. 14 (website accessibility) to make website requirements extend further within the private sector, beyond the proposed new category of high impact organizations.

19. Extending the Information and Communication Accessibility Standard to Require WCAG 2.1, Not the Current 2.0

At present, the specific standard for website accessibility that the Information and Communication Accessibility Standard sets is Web Content Accessibility Group (WCAG) 2.0. That was established by the W3C consortium at least a decade ago. Since then, we understand that it has been updated much more recently to WCAG 2.1. As we read it, the Committee’s recommendations merely refer to the old WCAG 2.0. They and do not recommend updating the Information and Communication Accessibility Standard to require WCAG 2.1. The Committee’s draft recommendations do not explain this. It is critically important.

We therefore recommend that:

#17. Section 14 of the Information and Communication Accessibility Standard should be revised to require websites to comply with the new international standard of WCAG 2.1, not the old WCAG 2.0 which the Information and Communication Accessibility Standard now requires.

As well, it is entirely unjustifiable in late 2019 for the standard to lead any organization to think that it is sufficient in the interim to only meet WCAG 2.0 Level A, and not, as a bare minimum, Level AA. Yet s. 14(3) still provides as follows, with an end date of 2021:

“      (2) Designated public sector organizations and large organizations shall make their internet websites and web content conform with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0, initially at Level A and increasing to Level AA, and shall do so in accordance with the schedule set out in this section.”

No organization should now waste its efforts at merely meeting Level A as an interim goal, when it makes more sense to set Level AA as its goal from the outset.

We therefore recommend that:

#18. As an alternative, section 14(2) should be amended to eliminate WCAG 2.0 Level A, and not Level AA, as a bare minimum for any organization, in the event that WCAG 2.1 is not set as the new standard to meet.

20. Committee’s Draft Recommendation 13: Mobile Applications & New Technologies

We agree with the Committee’s draft Recommendation 13. It would extend the Information and Communication Accessibility Standard’s website accessibility requirements to mobile applications. However we do not agree that all small organizations should be exempted from this requirement, just as we do not believe that all small organizations should be categorically exempted from the Information and Communication Accessibility Standard’s website accessibility requirements. If anything, a well-resourced small organization could at least in some cases find it easier to make its website and mobile apps accessibility than can a larger organization. The IASR arbitrarily defines the size of an organization solely by its number of employees, regardless of the organization’s resources or its impact on the market. If for example a small organization has a broadly-selling app, there is no reason why it should not meet accessibility requirements. The Ontario Human Rights Code does not grant any such exemption for small organizations.

We therefore recommend that:

#19. The Committee’s draft Recommendation 13 should be expanded to recommend that section 14 should be amended to set full accessibility requirements to mobile applications, and to the websites, web applications and mobile applications of small organizations where compliance would not pose an undue hardship.

21. Committee’s Recommendation 16: Significant Refresh

The Committee’s draft recommendations correctly identify another serious deficiency with s. 15 of the Information and Communication Accessibility Standard, namely that key requirements are only triggered by an obligated organization creating a new website or undertaking a significant refresh of an existing site. We agree with the Committee that this vague threshold provides obligated organizations with an easy and unacceptable end-run around the provision.

We also agree with the Committee’s draft Recommendation 16 to fix this, and the stated intent underlying it, namely:

“•    Any content that is new or which an obligated organization changes, updates or adds to a web site must meet the accessibility requirements of Section 14

  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The Committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that Section 14 include examples for the sake of clarity
  • Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.”

22. Committee’s Recommendation 17: Practicability

We agree with the Committee’s concern that s. 14(5) includes too broad an exemption to its website accessibility requirements, by only requiring obligated organizations to take the required action to make websites accessible “where practicable”. We agree with the Committee that

“…this term is too vague and might allow some organizations to avoid doing something they are actually able to do.”

We encourage the Committee to fortify and further reinforce this serious concern. The sweeping “where practicable” exemption is far broader than the relevant Human Rights Code exemption from the duty to accommodate people with disabilities, which is only available where it is impossible to provide more accessibility without undue hardship. “Undue hardship “is a much more exacting requirement than mere practicability. Moreover the failure to use the stronger undue hardship terminology sends a harmful and erroneous signal to obligated organizations that they need not meet this higher undue hardship test. It misleads obligated organizations. This is a disservice both to obligated organizations and to people with disabilities.

To define the existing term “practicable” in s. 14(5) to mean the same as undue hardship, as the Committee is contemplating, risks confusing obligated organizations or suggesting to them that undue hardship means the same as merely not practicable. It is neater and cleaner, and less risk-prone, to simply replace the term “not practicable” in the standard with the correct “undue hardship”.

We would prefer if no “exception” clause was included. Compliance with well-established international standards for new web postings simply does not create an undue hardship. At the very least, if there is to be an exemption clause, the exemption should be no broader than that provided under the Human Rights Code.

We therefore recommend that:

#20. The Committee’s draft Recommendation 17 should be replaced with a recommendation that the exception for not practicable is removed. As a weaker and less desirable alternative, if there is to remain some sort of exemption in s. 14(5), it should provide that an obligated organization need not meet these accessibility requirements only if it can show that it would be impossible to meet such requirements without causing that organization undue hardship, and that the obligated organization has the duty to never less take all accessibility action that is possible up to the point of undue hardship.

It is important for the regulation to make it clear that all organizations covered by this provision have a clear duty to promptly provide people with disabilities, on request, in an accessible format, with any information that is inaccessible on their website. This would include, for example, any information that need not yet be made accessible because of the time lines in the regulation, or any archival material that need never be made accessible on the website.

We therefore recommend that:

#49. Section 14 should be amended to require any organization to promptly make available, on the request of a person with a disability, and in an accessible format that meets his or her needs, any information on the organization’s website that is not accessible to that person because of his or her disability.

23. Part 4, Subpart 1: Section 14 Exemptions Generally

We agree that the standards’ exemptions are too broad and need to be narrowed.

24. Committee’s Recommendation 19: Extranet Exemption

We agree with the intent and content of the Committee’s Draft Recommendation 19 that the exemption for public-facing websites with a log-in should be removed and that these types of websites should be required to comply with the Information and Communication Accessibility Standard. We however believe that the proposed 2023 deadline for all publicly-facing websites, other than new ones, should be 2023. This is too long a time line, especially where meeting it would not provably pose an undue hardship.

We therefore recommend that:

#21. The Committee’s draft Recommendation 19 should be revised to set the deadline for all publicly-facing websites to meet accessibility requirements as 2022, not 2023.

25. Committee’s Recommendation 20: Intranet Exemption

We agree with the Committee’s important finding that “technology has advanced to the point where all organizations should be able to make their websites accessible under Section 14.” We therefore agree with extending this requirement to the broader public sector and large organizations, including employee-facing websites. As such, we agree that “all definitions related to a type of website be removed and that Section 14 simply apply to all websites, internet or intranet for all obligated organizations”. Indeed this is a critical reform to strengthen the current weak Employment Accessibility Standard. As indicated earlier, we would go further, and urge that it be extended to at least some small organizations, even if they do not fit within the proposed definition of high impact organization.

26. Committee’s Recommendation 21: Pre-2012 Exemption

We agree with the Committee’s view that the Information and Communication Accessibility Standard’s exemption for pre-2012 web content is overbroad and should be narrowed. The Committee’s draft Recommendation 21 seems on first examination to be sensible. We would add that where historic, archived content is available on the web, and where a customer or employee needs it in an accessible format for purposes of seeking or using an obligated organization’s goods, services or facilities, or for purposes of their employment, the obligated organization should be required to make that content available on request in an accessible format.

We therefore recommend that:

#22. The Committee’s Recommendation 21 should be expanded to require an obligated organization to provide an item of online content or document in an accessible format on request if needed for purposes of seeking or using that organization’s goods, services or facilities or for purposes of employment.

27. Committee’s Recommendation 22: Live Captioning and Audio Description

We agree with the Committee’s draft Recommendation 22 that sets out requirements so that by 2025, the standard’s live captioning and audio description exemptions will be eliminated. We would add that by 2021, this exemption should be lifted for the city of Toronto, a public sector organization which is larger and more resourced than a number of entire provinces in Canada.

We therefore recommend that:

#23. The Committee’s Recommendation 22 should be revised to provide that the current exemption for live captioning and audio description should be lifted by 2021 for the City of Toronto.

28. Committee’s Recommendation 23: Web Hosting Location

We agree with the Committee’s draft Recommendation 23 which would clarify that s. 14 obligations apply to a website whether or not it is hosted in Ontario. This is a loophole that should not be permitted to remain.

29. Chief Information Officer

A number of larger organizations in the public and private sector now have a position often called the Chief Information Officer (CIO). This is a critical position which could be decisively in enhancing accessibility of information and especially digital information.

At present, there is nothing in place in the standard to help ensure that a CIO has sufficient knowledge and training on digital accessibility, or even knows that they have lead responsibility for the organization‘s digital accessibility. There is similarly nothing in place to require that a CIO is held accountable within the organization for the organization’s efforts at ensuring digital accessibility.

We therefore recommend that:

#24. a) Where a large organization, a high impact organization or a public sector organization has a Chief Information Officer position or its equivalent:

  1. a) The CIO is responsible and accountable for leading the organization’s efforts at ensuring digital information accessibility.
  1. b) If the organization has a performance contract or performance review process for its officers, it shall be a condition of the CIO’s performance contract that the CIO is responsible and accountable for ensuring digital information accessibility.
  1. c) In any performance review, performance-based pay review or promotion processes, the CIO’s performance on digital information accessibility shall be considered as a relevant factor.
  1. d) In considering whom to hire as CIO, a hiring factor or criterion should be a candidate’s knowledge and experience with respect to digital information accessibility.

30. Teleconference Platforms Used by Public Sector Organizations

Increasingly, organizations use web-based teleconferencing and meeting platforms for internal meetings of their employees or officials, and for public-facing meetings, such as electronic town hall meetings. Some of these platforms are more accessible than others. It is critical that organizations only use the most accessible ones. A requirement to this effect in the Standard would help get all such platforms to become accessible.

We therefore recommend that:

#25. The standard should be amended to require that when any public sector or large organization or high impact private sector organization uses a web-based teleconferencing platform, it should only use a platform which is accessible. If no such platforms are fully accessible, then such organizations should be required to use the most accessible platforms of those which are available. The standard should provide key criteria for assessing the, accessibility of such platforms.

31. Digital Information Accessibility Statement

The standard does not now require any obligated organization to prepare and make public a comprehensive statement of the status of the accessibility of its website or related mobile apps. This might be covered to some extent in an accessibility plan or progress report on accessibility that the organization must prepare under the existing IASR. However, there is no assurance that the needed information will be included and will be comprehensive.

Helpful research provided to the AODA Alliance by the ARCH Disability Law Centre includes the following:

“The United Kingdom Statutory Instrument 2018 No.952, entitled The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018 (the “Regulation”) is comparable to certain provisions within the AODA Information and Communication Accessibility Standard. There is also a Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies (the “Directive”) which is relevant.

 

Both the Regulation and the Directive require public organizations to create an “Accessibility Statement”.[1]

That research also stated:

“An Accessibility Statement as defined by the Regulation and Directive is: “a detailed, comprehensive and clear statement produced by a public sector body on the compliance of its website or mobile application with these Regulations”.[2] The Accessibility Statement is a useful tool especially where an organization determines it is unable to meet accessibility standards. The Regulation requires a public sector body to explain in its Accessibility Statement any instances where it cannot comply with the accessibility requirement and provide accessible alternatives where appropriate.[3]

Under the AODA Information and Communication Accessibility Standard, obligated organizations are required to provide a requesting party with an explanation when it determines that it is unable to convert information and communications to an accessible format.[4] This requirement is similar to the Accessibility Statement required under the Regulation and Directive. However, Accessibility Statements are more robust. Accessibility Statements outline both an organization’s compliance and lack thereof meaning they go beyond simply addressing instances where an organization cannot comply with standards. Additionally, Accessibility Statements are required whether or not there is a ‘requesting party’ who has been denied accessible/convertible information. Further, the term ‘explanation’ is undefined in the Information and Communication Standard and so it lacks the formal requirements of an Accessibility Statement. As a result, there is no guarantee as to the quality of an explanation given to a requesting party under the Information and Communication Accessibility Standard.”

We therefore recommend that:

#26. The Standard should be revised to require that public sector organizations, large private sector organizations and high impact private sector organizations shall prepare an annual or biennial accessibility statement and make it public on its website which:

  1. a) Specifies in detail the extent to which the organizations website and mobile apps are accessible and specifies where they are not and
  1. b) Gives reasons for any deficiencies in the accessibility of the website or mobile apps and indicates what the organization plans to do to rectify this, and by when.

32. Committee’s Recommendation 14: Procurement

We agree with the Committee’s draft recommendations that the IASR’s general provisions regarding procurement of accessible goods, services and facilities “…are not strong enough to result in accessible digital procurement.” We also agree with the general thrust of the ideas in the Committee’s draft Recommendation 14 on the substantive requirements to add to the IASR in so far as accessible procurement of information technology is concerned. We would however like to see the Information and Communication Accessibility Standard go further. It should include specifics of what kinds of accessibility features or functionality should be required. These should be expressed in terms of end-user-usability, and not the specific technology to include. This is so because technology in this area is so rapidly evolving. In other words, these amendments to the standard should not only set process requirements, but also requirements for end results in terms of functional end-user experience. We anticipate that obligated organizations generally know little or nothing about this and need as much regulatory direction as possible.

We therefore recommend that:

#27. Beyond the measures in the Committee’s draft Recommendation 14, the IASR’s general procurement provisions should be strengthened to specify end-user functionality requirements that are sufficiently flexible to accommodate emerging technologies.

We agree with the Committee that beyond the specific context of procuring information technology, the IASR’s general provisions regarding procurement need to be strengthened. We however, do not agree with the Committee’s suggestion that this be referred to ASAC. As noted earlier, under the AODA, the review of any accessibility standard must be conducted at least every five years by a Standards Development Committee that is appointed for that purpose.

The members of the Standards Development Committee appointed to conduct that review should be chosen based on their expertise and experience in this specific area. No Standards Development Committee has been appointed since 2011 to review the IASR’s general provisions, such as the procurement provisions. It would be open to the Government to assign that review to an existing Standards Development Committee that was already appointed to review any other parts of the IASR or to recommend new accessibility standards.

The Government is in violation of the AODA for not having done so. That review was required to have been started in 2016. As noted earlier, the Standards Development Committee that conduct such a review should comply with all the procedural safeguards in the AODA conducting a review of an accessibility standard.

We therefore recommend that:

#28. The Government should fulfil its overdue duty under the AODA to appoint a Standards Development Committee to review the general provisions in the IASR, sections 1 through 8.

We agree that the Government and public sector organizations need to be given some time to implement any changes in the area of procurement. However, we do not agree that this should extend out to 2021, as the Committee’s draft recommendations propose. This is so for several reasons.

First, public sector organizations have had accessible procurement duties under the AODA for years. They are not starting from scratch. Second, their duty not to create new barriers is enshrined in pre-existing human rights law. It is not a new creation of the AODA or of the IASR.

Third, 2025 is not far away. We cannot afford any delays, especially on the part of public sector organizations that are supposed to be leading by example.

Fourth, any such delay inappropriately suggests to public sector organizations that it is okay for them to continue to use public money to create new disability barriers. Yet that harmful use of public money must stop.

Fifth, especially as it applies to the Ontario Government that is the very body that is creating this regulation. As noted earlier, the Ontario Government has claimed for years to be leading Ontario by example in the area of accessibility. The Ontario Government is hardly caught by surprise by new regulatory requirements in this area.

For the same reasons, we respectfully disagree with the Committee’s draft Recommendation 14 where it proposes that an obligated organization can be exempt from any of this new requirement if it has entered into a contract regarding the matter before January 1, 2021. That would let an obligated organization disregard this new requirement even if it was amply aware that it was coming e.g. because it was earlier posted in a draft regulation.

We therefore recommend that:

*29. Any changes to the requirements for procurement of goods, services or facilities should go into effect within six months of the new regulation being enacted, and should apply to any procurement thereafter, or for which a contract was signed after the draft of this new regulation was publicly posted for comment, unless the obligated organization can show that to comply would cause it an undue hardship.

We propose further measures to strengthen the IASR procurement provisions, whether they apply to information technology or other goods, services or facilities.

Section 5 of the IASR falls well short of the duty to prevent the creation of new barriers that the Supreme Court of Canada mandated years ago in Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650.

This section unjustifiably exempts any organization from even having to ask for accessible goods, services or facilities when seeking to procure them, “where it is not practicable to do so.” We know of no situation where it is impracticable to even ask vendors for accessible goods, services or facilities, as part of a procurement endeavour. Moreover, the “not practicable” standard falls substantially short of the “without undue hardship” standard in the Human Rights Code. It is counterproductive and harmful to try to get organizations to meet standards that are transparently lower than the Human Rights Code. If there were to be any exemption clause in this part of the IASR at all, it should be considerably narrowed. We here draw on the Committee’s commendable recommendation, further addressed later in this brief, that the standard should also be amended to create a class of “high impact” private sector organizations.

We therefore recommend that:

#30. Section 5(1) of the IASR should be amended to read:

“5. (1) The Government of Ontario, Legislative Assembly and designated public sector organizations shall

(a) Incorporate accessibility criteria and features when procuring or acquiring goods, services or facilities, for purposes of acquiring or procuring goods, services or facilities that are accessible to persons with disabilities, and

(b) Shall acquire or procure goods, services and facilities for use in their organization, or for the benefit of the public, that are accessible to persons with disabilities, except where it is not possible to procure or acquire them without undue hardship.”

#31. Section 5(2) of the IASR should be amended to provide:

“(2) If the Government of Ontario, Legislative Assembly or a designated public sector organization determines that it was not able to acquire or procure accessible goods, services or facilities without undue hardship in accordance with paragraph 5(1) (b), it shall provide, upon request, an explanation in writing.”

The duty to procure accessible goods, services and facilities should be extended to large or high impact private sector organizations. This is important for ensuring accessibility of goods, services, facilities and employment.

We therefore recommend that:

#32. Sections 5(1) and (2) should be amended to extend their requirements to large private sector organizations and to high impact private sector organizations.

Moreover, these procurement requirements should be extended to any private sector organization when engaging in a project or contract for the Ontario Government. The Government should not be able to get around these procurement requirements by contracting out some of its work to the private sector.

We therefore recommend that:

#33. The IASR’s procurement requirements should be amended to apply to any private sector organization in connection with any work it is doing for or on behalf of the Ontario Government.

33. Section 6 – Self-Service Kiosks

Related to the issue of procurement, the IASR’s section regarding electronic kiosks, s.6, remains far too weak. Its requirements should be strengthened. Features of the Information and Communication Accessibility Standard bear on such kiosks, just as they can apply to other customer-facing technology. These requirements should extend further in the private sector than at present.

We therefore recommend that:

#34. Section 6(1) of the IASR should be amended to read:

“6. (1) Without limiting the generality of section 5, the Government of Ontario, Legislative Assembly, designated public sector organizations, large private sector organizations and high impact private sector organizations shall incorporate accessibility features when designing, procuring or acquiring self-service kiosks or any point-of-sale technology for use by the public, to ensure that they are accessible to and usable by persons with disabilities. “

It is also important for private sector organizations with less than 50 employees to take serious action on this front especially where they offer technology for use by the public during point-of-sale transactions.

We therefore recommend that:

#35. Section 6(2) should be amended to read:

“(2) Small organizations shall have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks or any other point-of-sale technology for use by the public, and in any event, shall use accessible point-of-sale equipment when acquiring new point-of-sale equipment for use by customers, or replacing existing point-of-sale equipment.”

#36. Section 5(5) of the IASR should be amended to provide:

“(5) In this section,

“kiosk” means an interactive electronic terminal intended for public use that allows users to access one or more services, facilities, or products or a combination of them, and, without limiting the generality of the foregoing, includes any device used by a member of the public to make in whole or in part a transaction relating to a product, good, service or facility or combination thereof, such as a point of sale device that allows the customer to pay for items with a debit, credit or other electronic funds card.”

34. Committee’s Recommendation 18: Harmonization and Application across Requirements

We agree with the Committee’s draft Recommendation 18 that the IASR should be amended to make it clear that its website accessibility provisions in s.14 apply to all websites that are referred to across the IASR. We would go further. The IASR should be refined to make it clear that these website accessibility requirements apply to any website specified in any provincial legislation or regulations, such as any provincial law that requires anything to be posted on a website.

We therefore recommend that:

#37. The Committee’s draft Recommendation 18 should be amended to call for the website accessibility requirements in s. 14 to apply to any website to which provincial legislation or apply, such as a provincial law that requires specified information to be posted on a website.

35. Part 5: Sections 15, 16, 17 and 18 Generally

It is inexcusable in 2019, over 14 years after the AODA was enacted, that students continue to face difficulties in getting timely access to needed educational materials in an accessible format.

The AODA Alliance has released a proposed Framework for the Education Accessibility Standard and has submitted it to the K-12 Education Standards Development Committee. We set out the relevant passages below. We do however urge the Information and Communication Standards Development Committee to press forward with its recommendations in this area, as elaborated upon below in our more specific submissions. If the K-12 Education Standards Development Committee or the post-Secondary Education Standards Development Committee opt to make further recommendations on point, that can only enrich the discussion. However, we ask the Information and Communication Standards Development Committee not to hold off proceedings on these recommendations due to the forthcoming work of the two Education Standards Development Committees.

In the key part of the AODA Alliance’s proposed Framework for the Education Accessibility Standard, a vision is offered of what an accessible education system would look like. This vision includes, among other things:

“2.5 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them and would be available in accessible formats when needed.

2.6 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and would fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.”

Among the recommendations in that proposed Framework for the contents of the Education Accessibility Standard is the following:

“8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and internal or external websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

8.1 Each school board should ensure that:

Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.

  1. a) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  1. b) Each school board’s internal and external websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  1. c) Electronic documents created at the school board for use in education and other programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be simultaneously provided and posted in an accessible Microsoft Word or HTML format.
  1. d) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  1. e) Textbooks and learning software should be procured only if they include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. Here again, PDF should not be used unless an accessible alternative format such as MS Word is also simultaneously available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

8.2 The Ministry of Education and each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased either by a school board, or by the Ministry for use by school boards, unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board or the Ministry.”

The proposed Framework also includes:

“12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other instructional materials and teaching resources that are not provided at the same time in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this provision has not been effective and sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

12.1 To ensure that instructional materials are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  1. b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  1. c) Review its procurement practices to ensure that any new instructional materials that are acquired is fully accessible or conversion-ready and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.”

36. Committee’s Recommendation 24: Purchase of Accessible Teaching/Training Materials

We agree with the Committee’s draft Recommendation 24 that “obligated organizations that are educational or training institutions be required to order text books or other printed curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print copies.” This should apply to both print and electronic teaching materials.

We therefore recommend that:

#38. The Committee’s Recommendation 24 should be expanded to also require that obligated organizations that are educational or training institutions be required to order electronic text books or other electronic curricula materials from producers who agree to provide accessible or conversion-ready versions, in the same time frame as non-accessible versions.

37. Section 15 – Educational and Training Resources and Materials

Beyond this, s. 15, on providing accessible educational and training materials, while helpful, needs to be strengthened. It now provides:

“      15. (1) Every obligated organization that is an educational or training institution shall do the following, if notification of need is given:

  1. Provide educational or training resources or materials in an accessible format that takes into account the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by,
  2. Procuring through purchase or obtaining by other means an accessible or conversion ready electronic format of educational or training resources or materials, where available, or
  3. Arranging for the provision of a comparable resource in an accessible or conversion ready electronic format, if educational or training resources or materials cannot be procured, obtained by other means or converted into an accessible format.
  4. Provide student records and information on program requirements, availability and descriptions in an accessible format to persons with disabilities.

(2) For the purposes of this section and sections 16, 17 and 18, an obligated organization is an educational or training institution if it falls into one of the following categories:

  1. It is governed by the Education Act or the Private Career Colleges Act, 2005.
  2. It offers all or part of a post-secondary program leading to a degree pursuant to a consent granted under the Post-secondary Education Choice and Excellence Act, 2000.
  3. It is a designated public sector organization described in paragraph 3 or 4 of Schedule 1.
  4. It is a public or private organization that provides courses or programs or both that result in the acquisition by students of a diploma or certificate named by the Minister of Education under paragraph 1 of subsection 8 (1) of the Education Act.
  5. It is a private school within the meaning of the Education Act.”

We therefore recommend that:

#39. Section 15 be amended to:

(a) Amend the opening words of section 15(1) to provide:

“1.       Provide educational or training resources or materials in an accessible format that meet the accessibility needs due to a disability of the person with a disability to whom the material is to be provided by…”

(b) Require each obligated organization that is an educational or training institution to notify their students, applicants for admission and faculty/teachers, via accessible means, of their commitment to provide accessible curriculum and teaching materials;

(c) Post on their website, if any, their commitment to provide accessible teaching and curriculum materials, and an indication of who within the organization is responsible for their provision;

(d) Add to ss. 15(1) and (2) a requirement that these teaching and curriculum materials are to be available at the same time as the same teaching or curriculum materials are provided to students in the same program or course, except in exceptional cases where it is impossible to do so, in which case alternative measures will be immediately taken to enable a person with a disability to fully participate in the course or program.

(e) Add to section 15 a requirement that where curriculum materials such as text books are to be ordered from other sources, the curriculum materials shall be in an accessible format or conversion-ready, except where it can be shown that these cannot be obtained without undue hardship.

(f) Add to section 15 a requirement that notwithstanding the time lines for accessible websites, any information posted to a website for use by students shall be in an accessible format and shall comply forthwith with WCAG 2.0 Level AA unless it can be shown that to do so is impossible without undue hardship, in which case accessible alternative format materials shall be provided immediately on request.

(g) No school, college or university shall provide books or other like materials via paperless technology such as on mobile apps on the iPad or Kindle unless that technology has become accessible for persons with disabilities.

38. Section 17 – Producers of Educational or Training Material

It is helpful that s. 17 requires publishers to make accessible educational textbooks and certain other printed instructional materials available on request, in an accessible format. It however needs to be expanded. It now only applies to textbooks. Section 17 provides:

“      17. (1) Every obligated organization that is a producer of educational or training textbooks for educational or training institutions shall upon request make accessible or conversion ready versions of the textbooks available to the institutions. O. Reg. 191/11, s. 17 (1).

(2) Every obligated organization that is a producer of print-based educational or training supplementary learning resources for educational or training institutions shall upon request make accessible or conversion ready versions of the printed materials available to the institutions. O. Reg. 191/11, s. 17 (2).”

It should also apply to any other course materials produced in printed form, as well as course materials and books produced in electronic form. With the spread of e-books, this is increasingly important.

We therefore recommend that:

#40. Section 17(1) and (2) should be amended to provide:

“17. (1) Every obligated organization that is a producer of education or training textbooks or other teaching materials (whether in printed form or electronic form) for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the textbooks or other teaching materials available to the institutions.

(2) Every obligated organization that is a producer of print-based or electronic educational or training supplementary learning resources for educational or training institutions shall upon request, promptly make accessible or conversion ready versions of the printed or electronic materials available to the institutions.”

39. Committee’s Recommendation 25: Definition of Educational and Training Institutions

We agree that the standard’s requirements for educational organizations should extend to any organization that provides any education or training programs, whether or not they meet the standard’s current definition of education organization.

We therefore recommend that:

#41. The Committee’s Recommendation 25 should be expanded to define the scope of education programs to which its obligations should attach. This should be tied to the nature of the program and the extent to which ensuring accessibility would trigger an undue hardship

40. Section 18 – Libraries of Educational and Training Institutions

Section 18 is a helpful provision addressing accessibility at public libraries. However, it has an exception for “special collections” that, if not defined, could sweep away much-needed protections. Section 18 provides:

“      18. (1) Subject to subsection (2) and where available, the libraries of educational or training institutions that are obligated organizations shall provide, procure or acquire by other means an accessible or conversion ready format of print, digital or multimedia resources or materials for a person with a disability, upon request.

(2) Special collections, archival materials, rare books and donations are exempt from the requirements of subsection (1).

(3) Obligated organizations to which this section applies shall meet the requirements under this section in accordance with the following schedule:

  1. In respect of print-based resources or materials, January 1, 2015.
  2. In respect of digital or multimedia resources or materials, January 1, 2020.”

A law school at a university might argue that its entire law library is a “special collection”, that is thus exempt from any accessibility requirements. We do not anticipate that this was what the Government meant to achieve here.

We therefore recommend that:

#42. Section 18(2) should be amended to include a clear and narrow definition of “special collection”, or that exemption should be removed from this provision.

41. Committee’s Recommendation 26: Increasing Captionist Capacity

We share the Committee’s concern that there is a limited number of trained captionists in Ontario. We agree with the need for new efforts to increase their numbers. The Committee appears to make a non-regulatory recommendation.

We add that technology exists now to facilitate off-site captioning from distant locations. The captionist can be anywhere in the world. An audio hookup is set up via the web so the captionist can hear the spoken words to transcribe.

The Government can further facilitate this by either creating or funding a start-up that would crowd source these services, so that captionists around Ontario, or indeed around the world, could get quick and easy access to customers in Ontario. This could be part of an economic development strategy. A well-run Ontario-based service could sell its services around the world, bringing in new revenues to Ontario.

We therefore recommend that:

#43. the Committee’s Recommendation 26 should be expanded to recommend that the Government create or fund the creation of an Ontario-based remote captioning service that could service clients in Ontario and around the world by remotely-located captionists, providing their services online.

42. Committee’s Recommendation 27: Accessibility in Education

We share the Committee’s advice that disability accessibility curriculum should be included at all levels of Ontario’s education system.

We therefore recommend that:

#44. The Committee’s Recommendation 27 should be expanded to incorporate the AODA Alliance’s proposed Framework for the Education Accessibility Standard, which includes:

”11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  1. b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  1. c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  1. d) Implement human resources policies and practices to expand school board staff knowledge and skills regarding inclusion.”

43. Committee’s Recommendation 28: Accessibility in Information and Communications Tools and Systems

We agree with the Committee that:

“There is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communications tools and systems, and this leads to a lack of accessibility in these products.”

We also agree with the Committee’s draft Recommendation 28 where it proposes that “all obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of people with disabilities…” We see value in this recommendation being further refined.

We therefore recommend that:

#45. The Committee’s draft Recommendation 28 (calling for obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems to include curricula that address the needs of people with disabilities) should give some examples of the needed training, including differently affected disabilities, beyond its reference to Sign language.

The Ontario Government’s economic development strategy has tried to promote the development of the information technology sector in Ontario, to serve both the Ontario market and markets around the world. However, as far as we can tell, the Ontario Government has never acted on our advice, which we gave over several years, that it should incorporate in that effort a strategy, including funding strings, to promote the expansion of Ontario’s technology sector so that it has more accessibility design expertise to offer organizations around the world.

We therefore recommend that:

#46. The Committee should recommend that the Ontario Government should now adopt a concerted strategy, as part of its economic development program, of promoting the expansion of Ontario’s technology development sector with expertise in accessible design.

44. Committee’s Recommendation 29: Accessibility in Provincially Regulated Professions

We endorse the Committee’s draft Recommendation 29. It provides:

“Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers.”

The AODA Alliance’s proposed Framework for the Education Accessibility Standard points in a similar direction. It includes:

“Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities. Teacher’s colleges and other programs that are publicly funded to train professionals who will work with students in Ontario schools are therefore creating new generations of barriers that will impede students with disabilities.”

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are already working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities, covering the spectrum of different learning needs and learning styles. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.”

Section 16 of the standard commendably requires training organizations to provide for their teachers, training on the needs of students with disabilities. However, it does not require any of their employees to ever take that training.

Regarding teacher training, we therefore recommend that:

#47. Section 16(1) should be amended to provide:

“16. (1) In addition to the requirements under section 7, obligated organizations that are school boards or educational or training institutions shall provide educators with accessibility awareness training related to accessible program or course delivery and instruction, and their educators shall satisfactorily complete that training.”

It is essential that the Committee’s proposal take the form of a mandatory regulation, and not merely a policy or “best practice”. Too many professions need this reform to try to convince them voluntarily, one profession at a time.

Moreover, the AODA Alliance has been trying without success to secure voluntary action by the Ontario Government for over a decade. In the 2007 Ontario election, the AODA Alliance asked the parties to commit to ensure that relevant professions require their members to have sufficient accessibility training. In that election, the McGuinty Government promised to advocate to self-governing professions on this. In the ensuing 11 years that the Liberal Government was in power, we repeatedly asked it to keep this promise. We never saw or were shown any Government action to act on this promise.

45. Committee’s Recommendation 30: Education Standards

This recommendation only deals with where to locate certain requirements within the IASR. We take no issue with this as a pure housekeeping matter.

C. Our Feedback on The Committee’s Proposed Phase 2

In Phase 2 of the Committee’s draft recommendations, it proposes a major overhaul of how accessibility barriers should be regulated under the AODA. We commend the Committee for trying to take a broad and creative look at how progress is going under the AODA, and for trying to come up with innovative solutions, thinking beyond the regulatory status quo. Any effort in that regard should be encouraged.

Below we offer a few general responses to the Committee’s proposed reforms to the AODA’s overall design. These are only preliminary thoughts. A fuller response requires substantially more time and research than is currently available. The Committee’s Phase 2 proposal goes far beyond the scope of the Information and Communication Accessibility Standard.

The Committee’s Phase 2 reforms call, among other things, for the creation of a new public authority. The Committee calls it the “Trusted Authority”. That new public agency would have a series of new powers, including powers which bear directly on the AODA’s interpretation, implementation and enforcement.

These reforms would require the Legislature to amend the AODA itself. These are not measures which can be enacted as accessibility standard regulations under the AODA, as it is now written.

As noted earlier, we are opposed to the Ontario Legislature re-opening the AODA and considering making any amendments to it at this time. We don’t want there to be any risk that The Government would try to weaken or reduce any provisions in the AODA. Re-opening the legislation would create such a risk. We would react very strenuously against any Government effort to re-open the AODA’s terms in any way.

Even if we had wanted The Government to re-open the legislation, the likelihood of it doing so now is extremely low. Throughout the first third of its mandate the current Government treated the AODA as a very low priority. It took months and months for the Government just to unfreeze the work of existing AODA Standards Development Committees, including the Information and Communication Standards Development Committee. It took more months after that to get the Government to re-start the important work of the Education and Health Care Standards Development Committees. This was so even though while in opposition, the Conservatives criticized the former Ontario Government for dragging its feet on appointing an Education Standards Development Committee.

Over two thirds of a year has passed since The Government received the blistering report of David Onley’s AODA Independent Review. Despite our pressure, The Government has announced no comprehensive plan to implement the Onley Report.

As such, we would not agree to the Government proceeding with the Committee’s Phase 2 proposal, in so far as it requires legislative amendments. There is a second important reason why the Committee’s Phase 2 proposal should not proceed at this time. The Committee’s Phase 2 proposal contemplates delegation of certain powers to the proposed Trusted Authority which itself raises a number of significant legal concerns, beyond any policy discussion over the proposal‘s pros and cons. We have not had the time or opportunity to explore those issues in preparation for this brief. They would have to be resolved before a profitable discussion of the proposal’s pros and cons should be undertaken.

There are other important avenues and arenas for such proposals regarding reform of the AODA to be presented. For example, there have been three successive Government-appointed Independent Reviews of the AODA, by Charles Beer in 2010, by Mayo Moran in 2014 and by David Onley in 2018-19. Another AODA Independent Review will have to be appointed by March 7, 2022. Those are but one appropriate place to present such suggestions. We do not know if the Information and Communication Standards Development Committee or any of its members presented these ideas to the any of the three AODA Independent Reviews for their consideration.

As a visible player on the provincial front regarding the AODA, the AODA Alliance would want to be a major player in any such discussions. For our part, we pointed out serious problems with the way the AODA has been operating, in our proposals to the Federal Government regarding the design of the new Accessible Canada Act. See for example our Discussion Paper on what Canada’s national accessibility law should include, published in the National Journal of Constitutional Law and available at https://www.AODAalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

The same goes for our recent proposals to the BC Government on what the promised BC accessibility law should include, available at https://www.AODAalliance.org/whats-new/the-british-columbia-government-commits-to-provincial-accessibility-legislation-and-seeks-public-input-on-a-proposed-framework-for-a-bc-disabilities-act-read-the-AODA-alliances-submission-to-the-b/

Despite the foregoing concerns, some parts of the Committee’s Phase 2 proposal can be undertaken now, without needing any reforms to the AODA or to any accessibility standards. For example, the Committee raises concerns about the use of the term “obligated organization.” The term “obligated organization” can be changed, in The Government’s communications on the AODA. The term “obligated organization” does not itself appear in the AODA.

Similarly, The Government could do a far better job of outreach to and inclusion of people with disabilities in its ongoing AODA consultation and implementation efforts, including in its consultation on the Information and Communication Standards Development Committee’s draft recommendations which are the focus of this brief. That too requires no amendment to the AODA.

The Government could now create far better resources to guide obligated organizations. At least two of the AODA Independent Reviews have called for that very action. We strongly support the need for that.

Finally, it is open to the Government to review the Information and Communication Accessibility Standard more frequently than every five years, in order to keep it up to date in connection with new developments, such as new developments in the world of information technology or the creation of new international standards for the accessibility of information technology.

We also want to alert the Committee that we respectfully disagree with some of the key points in its Phase 2 discussion. We agree that the AODA’s implementation has fallen far short of what we all expected, what we all need and what the AODA promised. Our 450-page January 15, 2019 brief to the David Onley Independent Review is perhaps the most detailed documentation of this failure. It explores in detail the causes of this failure and offers constructive proposals to get the AODA back on track. The Onley Report echoes our analysis in key ways, as did the 2015 Moran AODA Independent Review Report that proceeded it and on which it built.

The Committee’s Phase 2 discussion seems in no small part to be constructed on the premise that the AODA has failed because it has been undertaken as an exercise of a regulator compelling compliance through enforcement, rather than by trying to get obligated organizations to understand that it is in their self-interest to ensure that their goods, services, facilities and employment are accessible. For example, the Committee’s Phase 2 discussion states:

“In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.”

As our brief to the Onley AODA Independent Review and our website amply documents, the opposite has in fact been the case. We have demonstrated over and over that the Ontario Government has throughout this decade taken an extremely gentle and minimalist approach to AODA enforcement. For years, it would barely if ever even utter the word “enforcement” in public in connection with the AODA. It conducts “audits” of very few organizations each year.

These are only paper audits. We have only seen documentation of one on-site AODA audit or inspection from the day the AODA was passed up to at least 2017. That was a pre-announced inspection of one Government ministry by another Government ministry. In that case, the deputy minister of the inspecting ministry gave written prior notice to the deputy minister of the ministry to be inspected, that an inspection would be upcoming.

Despite knowing year after year about rampant AODA violations since 2013, the Government has imposed a tiny number of monetary penalties. In 2015, 2016 and 2017 combined, for the thousands of private sector organizations known to have violated this legislation, the Government only imposed a total of five monetary penalties. That’s less than two monetary penalties for each of those years. That conveys the clear message to violators that their risk of a monetary penalty is extremely slim.

The Toronto Star has run editorials that support our concern in this regard. It has slammed the Ontario Government for its weak AODA enforcement. Contrary to the Committee’s characterization of events, Minister after Minister responsible for the AODA has publicly said that their primary focus is on doing exactly what the Committee proposed in the passage quoted above, i.e. showing businesses the business case for accessibility. A good example of this is the following passage from the February 26, 2015 interview on CBC Radio Toronto’s flagship Metro Morning program by the previous Liberal Government’s Economic Development Minister Brad Duguid (then responsible for AODA implementation and enforcement):

“[Matt Galloway] But her, her real, her real thrust in this, in the report, is that Ontario’s not moving quickly enough to reach the 2025 goal of full accessibility. I wanna read something to you that one of your predecessors put together, which was Marie Bountrogianni, who, uh, when the legislature passed the disabilities act said, “What was missing in the previous act was enforcement compliance.

When you leave it to the good will of the people, it doesn’t get done.” What’s changed since then?

[Brad Duguid] Well, there- there’s two things. Number one, you can’t enforce that if the businesses aren’t aware of what their responsibilities are. So, the first thing we need to do is make businesses more aware, and we’re doing that through a number of different initiatives. There’s the advertising campaign. We also have a partnership with the Ontario Chamber of Commerce where we’re reaching out to businesses an- and educating them on what they need to do.

Secondly, and this is the key, and when you, and I, I just recently appointed David Onley as our special advisor, and this is something we’re working very, very closely on. We need to make sure that businesses are, are aware of why there’s a competitive advantage for them to become accessible.

We don’t want businesses just to reach a standard, we want them to go beyond the standard and there’s every- there’s a really good business case for businesses across this province to do this. In fact, the Martin Institute indicates that there’s 7.9 billion dollars in our economy if we can become more accessible.

So, that- what I’m saying there is, I don’t want to come in and, and take a really hard approach on businesses and turn them off. What I wanna do is get businesses to embrace what this will do to their bottom line. There’s a really good business case.”

No minister responsible for this legislation has publicly proclaimed a contrary view. No minister coming after Mr. Duguid has ever disagreed with his view, criticized it, or proclaimed a different approach. Certainly, the new Ford Government has not repudiated it.

The Committee’s Phase 2 discussion addresses a criticism at the AODA itself, which should instead be directed at the Accessibility Directorate of Ontario and the Ontario Government. The Committee’s Phase 2 discussion includes:

“The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • Students, many of whom participate in projects such as “mapathons”, design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • Non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • Persons with disabilities and their families or support communities
  • Professional organizations
  • Community volunteers
  • Civil society”

Similarly the Committee’s Phase 2 discussion later states:

“Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the Act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.”

The Committee has commendably identified a legitimate area for improvement, but is identifying the wrong culprit. It is open to the Government to do a far more inclusive job of consulting and including the diverse voices to which the Committee points, in its work on the AODA’s implementation and enforcement. For example, Standards Development Committees could readily engage more such voices in their work developing standards. The Accessibility Directorate of Ontario can and should do much more of this within the ample mandate that the AODA gives it. Nothing in the AODA prohibits the Ontario Government from doing so.

As well, the Committee presents a very good series of suggestions for reform in its Appendix B. No Trusted Authority or other amendments to the AODA or to its current overall structure are needed to implement them. The IASR can and should be amended, such as in ss. 5 and 6, to incorporate the very helpful requirements that the Committee formulated in its Appendix B. With such a revision to the IASR we would be in clear support.

Appendix 1 Excerpts from the Mayo Moran Second Independent Review of the AODA

The 2014 Moran Report included;

“However, the Review also heard considerable discussion about the content of the standards. In particular, members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever. They identified two problems. First, the current standards have serious gaps and deficiencies. And second, important aspects of everyday life fall entirely outside the scope of the current requirements. At the same time, obligated organizations also provided valuable feedback about the content of the current standards and some of the challenges that they pose. Below, I summarize the central themes of the feedback on these issues, including both suggestions about where there may be gaps in the existing standards as well as recommendations for additional standards.

Proposed Revisions to Current Standards

The Review heard many comments that suggested revisions to existing standards. Various disability groups advocated specific changes to the standards to better reflect the needs of their members and clients. More generally, many participants believed that timelines in the standards are too long, several requirements are weak, little is being done to remove existing barriers, and exemptions and exceptions are too broad. One disability stakeholder considered the deficiencies in the IASR so serious that the mandatory review of the Transportation, Employment and Information and Communications standards should begin in 2015 instead of 2016 as currently planned. Many obligated organizations in both the public and private sectors had other concerns, emphasizing that the overall AODA regime is too complex and should be simplified as much as possible.

Members of the disability community emphasized that the five standards in place so far – even if complied with to the letter – will not get us to full accessibility by 2025, or in fact ever.

IMPACT ON SPECIFIC DISABILITIES

The Review was told by some participants that they do not believe that the AODA has been effective in addressing non-visible disabilities, such as mental illness, autism, learning disabilities, traumatic brain injuries and others. They suggested that more extensive training requirements to recognize and respond to the needs of people with these disabilities were essential.

The mental health community feels strongly that mental health and other non-visible disabilities should be better integrated into the content of standards. For example, it was suggested that the Employment standard should provide clear guidelines for accommodating employees with mental health disabilities.

Groups supporting people who are deaf or have hearing loss pointed out that the vagueness about support persons leaves doubt about an organization’s responsibility to provide interpreters or other communication facilitators. Individuals with speech and language disabilities not caused by hearing loss believe standards should more fully outline requirements for communications assistance, especially in essential services.

People with environmental sensitivities and multi-chemical sensitivities want to see these conditions explicitly included in the definition of disability. Participants with episodic or fluctuating disabilities likewise urged a direct reference to their type of disability in the definition. Representatives of people with bowel disorders called for a network of open, accessible public toilets to be established through the Customer Service, Transportation and Design of Public Spaces standards.

The Review was told that the AODA has not been effective in addressing non-visible disabilities.

EXEMPTIONS AND EXCEPTIONS

The existing regulations set different requirements based on the size of the organization. Where the line should be drawn between small and large businesses was a major source of contention in the feedback received by this Review. In fact, some felt it was a mistake to create any exemptions on the basis of the number of employees, as very small organizations can have huge revenue streams.

At present, there are many exemptions under the IASR for organizations with under 50 employees. For example, they are exempt from requirements to prepare multi-year accessibility plans, make their websites accessible, develop a written process for employment accommodation, provide accessible exterior paths of travel, prepare written accessibility policies and file compliance reports, among other obligations. It was suggested that one reason the AODA has not lived up to its potential is the number of organizations that are exempt from such obligations.

The Customer Service standard currently sets the threshold for certain requirements at 20 employees rather than 50. Currently, organizations with under 20 employees are exempt from requirements to prepare documents on their accessibility policies – including policies on service animals and support persons and the handling of service disruptions – and to produce copies on request, as well as from obligations to document training policies, keep training records and file accessibility reports. In its review of the Customer Service standard – which coincided with this Review – ASAC proposed to raise that threshold to 50 employees instead of 20 to align with the IASR, and several disability groups voiced their concerns about this proposal to this Review.

In addition to the exemptions based on organizational size, the Review also received some feedback on several other provisions that were questioned including the following:

  • Exemption of owner-operated sole proprietorships from the entire IASR as they have no employees.
  • Exclusion of the entire private sector from the duty to incorporate accessibility criteria and features when acquiring goods, service and facilities.
  • Exclusion of products and product labels from the Information and Communications standard.
  • Exclusion of unconvertible information from accessible format requirements, which some described as a loophole that should be closed.
  • Exemptions for all organizations except the provincial Government from the website provisions on live captioning and pre-recorded audio descriptions.

As well, disability stakeholders took issue with various exceptions that are less exacting than undue hardship under the Human Rights Code. This issue will be addressed later in the section on the AODA’s Relationship with Other Legislation.

GAPS IN STANDARDS

Beyond exemptions and the impact on certain disability groups, participants highlighted a host of gaps in existing standards and put forward numerous suggestions to close them.

Information and Communications

One of the gaps identified that was among the most serious sources of concern was the exclusion of extranets from the website standards. An extranet is a controlled extension of an organization’s internal network that allows access to outside users over the internet. It was pointed out that the standards development committee expected everything behind the log-in to be covered. The fact that this was not done is seen as a step backward.

Unless Ontario keeps standards in line with evolving information technology, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

The importance of keeping the Information and Communications standards in line with evolving international standards was also stressed. Unless a mechanism is created to do this, the Review was told, we risk reaching 2025 and realizing we have made Ontario accessible, but for the citizens of 2005.

Some participants raised concerns about the provision of accessible formats for various purposes “on request”. They proposed that all educational resources should be accessible, with no need for a request. On the other hand, some post-secondary stakeholders pointed out that this might not be a wise use of resources as there may turn out to be no demand for many of the materials.”

[1] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, S.8(1). Retrieved at http://www.legislation.gov.uk/uksi/2018/952/made#f00004; Directive (EU) 2016/2102 of the European Parliament and of the Council of 26 October 2016 on the accessibility of the websites and mobile applications of public sector bodies, S.7(1). Retrieved at http://www.legislation.gov.uk/eudr/2016/2102/contents

[2] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, s.3; Directive (EU) 2016/2102 of the European Parliament and of the Council, Article 7(1).

[3] The Public Sector Bodies (Websites and Mobile Applications) (No. 2) Accessibility Regulations 2018, section 4(a)(b).

[4] Integrated Accessibility Standards, s.9(3)(a).



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Send Us Your Feedback on Our Draft Framework for what the Promised K-12 Education Accessibility Standard Should Include


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://ww.aodaalliance.org [email protected] Twitter: @aodaalliance

September 18, 2019

SUMMARY

Today, the AODA Alliance is making public a draft Framework for what the promised Education Accessibility Standard should include for students in schools between kindergarten and Grade 12. We set it out below and invite your feedback. Let us know what you think we should do to improve this Framework before we finalize it and submit it to the K-12 Education Standards Development Committee. Please email us your feedback by October 2, 2019 by replying to this email, or by addressing an email to [email protected]

After months and months of our advocacy, we are delighted and relieved that the Ford Government has finally let the three AODA Standards Development Committees go back to work, which had remained frozen since the June 2018 Ontario election,. Those are the Standards Development Committees working in the areas of K-12 education, post-secondary education, and health care. The K-12 Standards Development Committee held its first resuming meeting by a telephone conference call on September 10, 2019. AODA Alliance Chair David Lepofsky is a member of that committee. The Post-Secondary Education Standards Development Committee did so on September 12, 2019.

We are preparing this Framework to help the K-12 Education Standards Development Committee go about its work developing recommendations for the Ford Government of what to include in the promised Education Accessibility Standard. Once we get your feedback, we will finalize this Framework, make it public and submit it to the K-12 Education Standards Development Committee.

Time-permitting, we also hope to prepare a Framework to submit to the Post-Secondary Education Standards Development Committee, to supplement this one. If you have ideas of what we should include, beyond the parts of this Framework that are relevant at the post-secondary phase of education, please send us your ideas.

This draft framework is the result of lots of feedback that we have gathered over the past several years, as we campaigned to get commitments to create an Education Accessibility Standard under the AODA. It substantially builds and expands on the Discussion Paper on this topic that we made public almost three years ago, on November 21, 2016. We thank all those who have given us feedback in the past and who will do so now.

It is because we have gotten so much helpful feedback that this 27 page draft Framework is so detailed and thorough.

We understand that it can take some time to read through and think about all the detailed information in this draft Framework. For those who have the time to do so, we really appreciate your doing so. For those who don’t have the time, you can just look over this list of headings in the Framework:

Introduction — What is This Proposed Framework?
1. What Should the Long-term Objectives of the Education Accessibility Standard Be? 2. A Vision of An Accessible Education system
3. General provisions that the Education Accessibility Standard Should Include
4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them
5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a school board’s Accommodation of the Education Needs of Students with Disabilities.
6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs 7. Ensuring a Fully Accessible Built Environment at Schools
8. Ensuring Digital Accessibility at School
9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning
10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities 11. Removing Attitudinal Barriers against Students with Disabilities
12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use 13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities 14. Ensuring Student Testing/Assessment is Free of Disability Barriers
15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School 16. Removing Barriers to Participation in Experiential Learning
17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities
18. Substantially Reducing the Shuffling of Students with Special Education Needs From School to School over Their school Years 19. Transportation for Students with Disabilities
20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

As we make this draft Framework public, we are sadly reminded that 231 days have now passed since the Ford Government received the final report of the Independent Review of the AODA’s implementation and enforcement which was conducted by former Ontario Lieutenant Governor David Onley. The Ford Government has still not released a comprehensive plan to implement its recommendations, nor has it publicly promised to ever do so. Over 2 million Ontarians with disabilities suffer the ongoing consequences of that foot-dragging. New disability barriers continue to be created, while old barriers too often remain in place.

MORE DETAILS

Proposed Framework for the K-12 Education Accessibility Standard Prepared by the Accessibility for Ontarians with Disabilities Act Alliance
Note: This is only a draft. It is still a work in progress. Feedback on it is welcomed. Send feedback to [email protected]

Introduction — What is This Proposed Framework?

In Ontario, over a third of a million students with disabilities face too many barriers at all levels of Ontario’s education system. For years, the AODA Alliance led a campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act (AODA). Two committees have been appointed by the Ontario Government to make recommendations on what the Education Accessibility Standard should include: The K-12 Education Standards Development Committee is responsible for making recommendations on what that accessibility standard should include to address barriers in Ontario’s publicly-funded schools from Kindergarten to Grade 12. The Post-Secondary Education Standards Development Committee was appointed to make recommendations for what that accessibility standard should include to address barriers in Ontario’s post-secondary education institutions, e.g. colleges and universities.

Under the AODA, an accessibility standard is supposed to spell out the barriers that are to be removed or prevented, what must be done to remove or prevent them, and the time lines required for this action.

In this Framework, the AODA Alliance outlines the key ingredients and aims for the promised Education Accessibility Standard. Where we state that “A school board should” or similar wording, we mean by this that the Education Accessibility Standard should include a provision that requires the school board to take the step that we describe.

We hope this will assist the two Standards Development Committees. It predominantly focuses on the K-12 context, but its contents are readily transferrable to the post-secondary education context.

1. What Should the Long-term Objectives of the Education Accessibility Standard Be?

The purpose of the Education Accessibility Standard should be to ensure that Ontario’s education system becomes fully accessible to all students with disabilities by 2025, the AODA’s deadline, by requiring the removal and prevention of accessibility barriers that impede students with disabilities. It should aim to ensure that students with disabilities can fully participate in, fully benefit from and be fully included in Ontario’s education system on a footing of equality, in the least restrictive environment consistent with a student’s and their parents’ wishes. It should provide a prompt, accessible, fair, effective and user-friendly process to learn about and seek individual placements, programs, services, supports and accommodations tailored to the individual needs of each student with disabilities. It should aim to eliminate the need for students with disabilities and their families to have to fight against education accessibility barriers, one at a time, and the need for educational organizations to have to re-invent the accessibility wheel one school board, college, university or educational program at a time.

2. A Vision of An Accessible Education system

The Education Accessibility Standard should begin by setting out a vision of what an accessible education system should include. An accessible education system at the K-12 level should include the following:

#2.1 It would be designed and operated from top to bottom for all of its students, including students with all kinds of disabilities, as protected by the Ontario Human Rights Code and/or the Canadian Charter of Rights and Freedoms. It would not in any way restrict its programs, services, supports or accommodations only to those students whose disability falls within the outdated and narrow definition of “exceptionality” in Ontario’s Education Act and regulations. The education system would no longer be designed and operated from the starting point of aiming to serve the fictional “average” student. It would not treat or label students with disabilities as “exceptions” or “exceptional”. It would not call their needs “special.” Their services, supports and needs would not be conflated with the services and needs of gifted students who have no disability.

#2.2 The built environment in the education system, such as schools themselves, their yards, playgrounds etc., and the equipment on those premises (such as gym and playground equipment) would all be fully accessible to people with disabilities, and would be designed based on the principle of universal design.

#2.3 Courses taught to students, including the curriculum and lesson plans, as well as informal learning activities, would fully incorporate principles of Universal Design in Learning (UDL), so that they are inclusive for students with disabilities.

#2.4 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them, and would be available when needed.

#2.5 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.

#2.6 Inclusion and Universal Design in Learning would extend beyond formal classroom learning to other activities connected with education, such as the playground at recess, social and recreational activities, field trips, extra-curricular activities, and experiential learning opportunities.

#2.7 Students with disabilities would have prompt access to the adaptive technology and specialized supports they need for their education and needed training on how to use it. Students with disabilities would be able to bring to school and take home the accessibility technology and supports from which they benefit. For example, they would have the right to bring a qualified service animal to school with them.

#2.8 Teachers and other direct educational staff, would be fully trained to serve all students, and not just students who have no disabilities. They would be fully trained in such things as Universal Design in Learning. “Special education” teachers should not serve as a silo for those who will teach students with disabilities.

#2.9 Students with disabilities would have timely access to up-to-date adaptive technology and to effective training on how to use it, to enable them to best take part in and benefit from education programming.

#2.10 Options for placement and programming at school would be sufficiently diverse and flexible to accommodate a wide spectrum of learning needs and styles, rather than tending to be one-size-fits-all.

#2.11 Tests and other forms of evaluation in school education would be designed based on principles of universal design and Universal Design in Learning, so that they will be barrier-free for students with disabilities.

#2.12 Classroom teachers and other front-line teaching staff would be provided sufficient staff support, and, where needed, additional specialized training, to enable them to effectively serve students with disabilities in their classes.

#2.13 Students with disabilities would be assured the opportunity to receive an equal education in the least restrictive environment, consistent with the student’s/parents’ wishes.

#2.14 Students with disabilities would encounter a welcoming environment at school and in class to facilitate their full participation, and a welcoming environment in which they can seek and receive accommodations for their disabilities. Students without disabilities, teaching staff and other school staff, as well as other parents in the school context, will be welcoming and inclusive towards students with disabilities. To achieve this, among other things, all students will receive positive curriculum content on the importance of inclusion and accessibility for students with disabilities. Bullying, teasing, stereotyping, patronization and the soft bigotry of low expectations will be absent from the school environment.

#2.15 Admission criteria, admission tests or other admission screening to get into any specialized education programming would be barrier-free for students with disabilities.

#2.16 Students with disabilities and their parents/guardians would have prompt, effective and easy access to user-friendly information in multiple languages on the educational options, programs, services, supports and accommodations available for their disability, and on the process for seeking these. Students with disabilities and their parents would be given a timely opportunity to observe options for placement, programming and other educational services and supports, when considering which would be most suitable for that student.

#2.17 Students with disabilities and their families would be kept regularly posted on the effectiveness of the placement, program, services, supports and accommodations that the student is to receive.

#2.18 The process for deciding on the placement, programming, services, supports and accommodations for students with disabilities would be fair, open and transparent in which the student and their family can fully participate. For example, before an Individual Education Plan (IEP) is written, the student and parents/guardians would be able and invited to take part in an Individual Education Plan meeting with school officials, at which the Individual Education Plan can be jointly written. At each stage of the process, the student and parents will be given clear user-friendly “rights advice” on how the process works, and on their rights in the process.

#2.19 Once a student has an established Individual Education Plan at one school, that plan would be portable, and would carry forward should that student move to another school at the same or a different school board.

#2.20 A decision about a student’s placement would not be made until assessments and decisions are reached about the needs and most appropriate program, services, supports and accommodations for that student with disabilities.

#2.21 Where a student with disabilities or their family believe that the school is not effectively meeting the student’s disability-related needs, (e.g. by not including a desired item in the Individual Education Plan), or if the student or family believe that the school is not providing an educational program, service, support or accommodation to which it had agreed, the student and parents would have access to a prompt, fair, open and arms-length review process, including an offer of a voluntary Alternative Resolution Process if needed, conducted by someone who was not involved in the original decision or activity, and who does not oversee the work of those involved in the student’s direct education.

#2.22 The qualifications and required training for specialized support educators (such as teachers of the visually impaired) would be modernized and upgraded where needed to ensure that they are qualified to meet the specialized needs of their students and the other teachers whom they support.

#2.23 There would be no bureaucratic, procedural or policy barriers that would impede the effective accommodation of individual students with disabilities at all levels of Ontario’s education system.

#2.24 Students with disabilities would have a right to attend school for the entire school day, and to not be excluded from school for all or part of a school day directly or indirectly because of their disability. Schools would not systemically or disproportionately exclude students with disabilities from school for either all or part of the school day e.g. because a special needs assistant is away from school.

#2.25 Major new Government strategies in Ontario’s education system would be proactively designed from the start to fully include the needs of students with disabilities. For example, if the Ontario Government were to announce a new math strategy for Ontario’s schools, it would, among other things, include an effective strategy to address disability barriers that students with disabilities face in math education.

#2.26 Those responsible at the provincial and local school board levels for leading, overseeing and operating Ontario’s education system would have strong and specific requirements to address disability accessibility and inclusion in their mandates, and would be accountable for their work in that connection. This will not be relegated to special education bureaucratic silos.

#2.27 The education system would provide disability-related funding to a school board based on the actual number of students with disabilities at that board, and not on a formula that merely tries to estimate how many should be at that school board.

3. General provisions that the Education Accessibility Standard Should Include

#3.1 This proposed accessibility standard should cover and apply to all education programs and opportunities for students at any school board that receives public funding in Ontario.

#3.2 Where this accessibility standard refers to “students with disabilities “, this should include any student who has any kind of physical, mental, sensory, learning, intellectual, mental health, communication, neurological or other kind of disability within the meaning of the Ontario Human Rights Code or the Accessibility for Ontarians with Disabilities Act . It should not be limited to the much more restricted definition of an “exceptional pupil” or a student with an “exceptionality” in the Education Act and regulations and policy related to them, or who is therefore treated under Ontario’s Education Act, regulations, or policy as a student with special education needs.

#3.3 Each school board should be required to establish a permanent committee of its trustees to be called the “Accessibility Committee.”, and other members should include the school board’s chair or vice chair. The chair and vice chair of the school board’s Special Education Advisory Committee should sit as ex officio members of this committee, whether or not they are trustees of the school board. The school board’s Accessibility Committee should have responsibility for overseeing the school board’s compliance with the Accessibility for Ontarians with Disabilities Act and with the requirements of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms in so far as they guarantee the right of students with disabilities to fully participate in and fully benefit from the education programs and opportunities that the school board provides.

#3.4 Each school board should be required to establish or designate the position of Chief Accessibility/Inclusion Officer, reporting to the Director of Education, with a mandate and responsibility to ensure proper leadership on the school board’s accessibility and inclusion obligations under the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Accessibility for Ontarians with Disabilities Act, including the requirements of this accessibility standard. This responsibility may be assigned to an existing senior management official.

#3.5 Beyond the specific measures to remove and prevent barriers set out in this accessibility standard and in other accessibility standards enacted under the AODA, each school board should be required to systematically review its educational programming, services, facilities and equipment to identify recurring accessibility barriers within that school board that can impede the effective participation and inclusion of students with disabilities. A comprehensive plan for removing and preventing these accessibility barriers should be developed, implemented and made public with clear time lines, clear assignment of responsibilities for action, monitoring for progress, and reporting to the school board’s trustees , the school board’s accessibility committee, and to the school board’s Special Education Advisory Committee. This plan should aim at all accessibility barriers that can impede students with disabilities from full inclusion in the education programs and activities at that school board, whether or not they are specifically identified in the Education Accessibility Standard or in any other specific accessibility standards enacted under the AODA.

#3.6 Each school board should be required to develop, implement and monitor a comprehensive new Inclusion Strategy for students with disabilities, whether or not their disability is identified as an “exceptionality” under Ontario’s special education laws. Under this strategy, where a school board proposes to refuse to provide a student with a disability in a regular class setting with needed accommodations, supports or services, over the objections of the student or of their family, on the grounds that the school board believes that it cannot serve that student in a regular classroom setting, the principal should be required to give written notice of this to the family, with reasons, and to tell the family that it has the right to promptly receive the principal’s reasons in writing. But this should not be reason to stop or withdraw services or support until a meeting has been held to discuss progress of have a review meeting of some kind.

#3.7 Each school board should have an explicit duty to create a welcoming environment for students with disabilities and their families to seek accommodations for their disabilities.

4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them

Barrier: Parents too often find it difficult to get easily accessed information from their school board and the Ontario Government on education options available for students with disabilities and how to access them.

#4.1 Each school board should provide parents of students with disabilities with timely and effective information on the available services, programs and supports for students with disabilities (whether or not they are classified as students with special education needs under the Education Act and regulations). Each school board should ensure that parents, guardians, and where practicable, students are informed, as early as possible, in a readily-accessible and understandable way, about such important information as:

a) What special education is and who is entitled to receive it.
b) That the school board has a duty to ensure that a student with a disability has the right to full participation in and full inclusion in all the school board’s education programming, and to be accommodated in connection with those programs under the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms, whether or not the student is classified as a student with special education needs under Ontario’s Education Act and regulations.
c) The menu of options, placements, programs, services, supports and accommodations available at the school board for students with disabilities, whether or not they are classified as students with special education needs under the Education Act and regulations.
d) What persons and what office to approach at the school board to get this information, to request placements, programs, supports, services or accommodations for students with disabilities, whether or not they are classified as students with special education needs, or to raise concerns about whether the school board is effectively meeting the students education needs.
e) The processes and procedures at the school board for a parent, guardian or student to request or change placements, programs, services, supports or accommodations for students with disabilities, whether or not they are classified as students with special education needs. This includes formal legislated processes like the Identification and Placement Review Committee (IPRC) and the development and implementation of the students Individual Education Plan (IEP). It also includes other informal processes like requests for programs, services, supports and accommodations in the classroom that are not covered in an IPRC or IEP.

#4.2 Without restricting the important information that must be made readily available, each school board should ensure, among other things, that:

a) Parents and guardians of students with disabilities can easily find out and, where necessary, visit different placement, program, service and support options for a student with a disability, whether or not they are classified as a student with special education needs, before the parent, guardian or, where practicable, the student must take a position on what placement, program or services should be provided to that student.
b) Parents and guardians of students with disabilities, and, where practicable, students with disabilities themselves, should be given clear, understandable explanations of their rights in the school system, including but not limited to the special education process. For example, when a school board presents parents or guardians with a proposed IEP, the school board should explain to them that they need not agree to and sign the proposed IEP, that the school board is open to consider the family’s suggestions for changes to the proposed IEP, and the avenues by which parents or guardians can seek to get the school board to make changes to the proposed IEP.

#4.3 Each school board should develop, implement and make public a plan to substantially improve its provision of the important information, described above, to all parents and guardians of that school board’s students, and to all students where practicable, and especially to parents and guardians of students with disabilities:
a) This plans objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
b) A school board should not simply leave it to each principal or teacher to make sure that this important information is effectively provided. Each school board should instead have an effective system in place to ensure that this information actually reaches all parents and guardians, and where applicable, students.
c) Each school board should ensure that all of this important information is fully and readily accessible in a prompt and timely way to all parents, guardians and students, in accessible formats and in jargon-free plain language, in a diverse range of languages. It should be easy to find this information. Among other things, this information should be posted on the school boards website, in a prominent place that is easy to find, with a link on the school boards home page. A school board should not simply rely on its website to share this information since this will not serve those families that do not have internet access.
d) Among other things, each school board should send home an information package to all families at the start of each school year, and not merely to families of those students who are already being identified or served as having special education needs or disabilities. This package should include, among other things, a Question and Answer format to help families see how this information could relate to the student in their family.
e) Each school board should also create a user-friendly package of information to be provided to families who first approach a school board about the possibility of enrolling a child at that school board, e.g. when they register for kindergarten. This should help enable a family to know whether they should be trying to access disability-related services and supports.
f) Each school board should periodically host events at local schools to help families learn how to navigate disability-related school board processes like the Individual Education Plan and the Identification and Placement Review Committee processes. Where possible these should be streamed online and archived as a resource for families to watch online.

5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a School Board’s Accommodation of the Education Needs of Students with Disabilities

Barrier: Lack of sufficient, easily-accessed and fair processes at each school board to enable students with disabilities and families to have effective input into the placement and accommodation of the student, and for raising disability-related concerns.

The procedures in place under the Education Act and regulations for identifying and accommodating the needs of students with disabilities are out-of-date, and insufficient to ensure that the needs of students with disabilities are effectively met.

#5.1 Each school board should establish and maintain an effective process for parents and guardians of students with disabilities to effectively take part in the development and implementation of a students plans for meeting and accommodating their disability-related needs, including (but not limited to) their Individual Education Plan (IEP).

#5.2 As part of this process, parents and guardians of students with disabilities , and where practicable, the student, should be invited to take part in a joint school team student accommodation/IEP development meeting, where accommodation plans will be made and where the IEP will be written. The school board should bring to the table all key professionals who can contribute to this. The family should be invited to bring to the table any supports and professionals that can assist the family. Parents should have the right to bring with them anyone who can assist them in advocating for their child. Parents/families should be given a wide range of options for participating e.g. in person or by phone. They should be told in advance who will attend from the school board. Any proposal for accommodations including a draft IEP should include a summary of key points to assist families in understanding them.

#5.3 If a school board refuses to provide an accommodation, service, or support for a childs disability that a parent, guardian, or where appropriate, the student requests, or if the school board fails to provide an accommodation or support that it has agreed to provide, the school board should, on request, promptly provide written reasons for that refusal, and let the family and student know that they can request written reasons.

#5.4 If parents and guardians of students with disabilities, and where practicable, the student, disagree with any aspect of the proposed accommodations including (but not limited to) the proposed IEP, or if the student or their family believe that the school board has not provided an accommodation or support that the school board has agreed to provide, the school board should make available a respectful, non-adversarial internal review process for hearing and deciding on the familys concerns. The K-12 Education Accessibility Standard should set out the specifics of this review process. This school board review process should include the following:

a) It should be very prompt. Arrangements for a student’s accommodations, including An IEP, should be finalized as quickly as possible, so that the students learning needs are promptly met.
b) No proposed accommodations should be withheld from a student pending a review. The family should not feel pressured not to seek this review, lest the child be placed in a position of educational disadvantage during the review process. In other words, a family should not fear that if they launch a review, the student will suffer because the school board will not provide an accommodation or service the school board has offered, while the review is pending.
c) The review process should be fair. The school board should let the family know all of its issues or concerns with a familys proposal regarding the student’s accommodations, including the contents of the IEP. The family should be given a fair chance to express its concerns and recommendations regarding the student’s accommodations’, including IEP.
d) The review should be by a person or persons who are independent and impartial. They should have expertise in education of students with disabilities. They should not have taken part in any of the earlier discussions or decisions at that school board regarding the accommodations or IEP for that child.
e) At the review, every effort should be made to mediate and resolve any disagreements between the family and the school board. If the matter cannot be resolved by agreement, there should be an option for the school board to appoint a person or persons who are outside the school board to consider the review, along prompt time lines.
f) At the review, written reasons should be given for the decision, and especially if any of the familys requests or concerns are not accepted.
g) If, after receiving the review’s decision and reasons, the family wishes to present any new information, it should be able to ask for the review to be reconsidered. This should be along short time lines.
h) After the review is decided, if the family is not satisfied, it should be able to bring its concerns regarding the proposed accommodations including any IEP to a designated senior official at the school board with authority to approve the requested accommodations, for a further review.

#5.5 Where a student with a disability is being accommodated in a school in a school board covered by this accessibility standard, and the student transfers to another school in that school board or in another school board, that student should have a right to have the same accommodations put in in place in the new school or school board. If the school board of the school to which the student transfers proposes to reduce those accommodations or supports, they should be maintained until and unless, through the procedures set out in this accessibility standard, the school board has justified a reduction of those accommodations.

6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs

Barrier: Students with disabilities can face delays and bureaucratic impediments to early and timely professional assessment, where needed, of their disability-related needs.

#6.1 The Education Accessibility Standard should require measures to tear down administrative, bureaucratic and other barriers to reduce delays for getting psychological and other educational assessments for the identification of disability related learning needs.

7. Ensuring a Fully Accessible Built Environment at Schools

Barrier: Too often, the built environment where education programming is offered have physical barriers that partially or totally impede some students with disabilities from being able to enter or independently move around.

The Ontario Building Code and existing accessibility standards do not set out modern, sufficient accessibility requirements for the built environment in Ontario. Moreover, the Ontario Building Code is largely if not entirely designed to address the needs of adults, not children. The Ontario Government has no accessibility standard for the built environment in schools, whether old or new schools. The Ontario Government has not agreed to develop a Built Environment Accessibility Standard or to substantially strengthen the accessibility provisions in the Ontario Building Code.

As such, it is left to each school board to come up with its own designs to address, accessibility in the built environment in schools. This is highly inefficient and wasteful. It allows public money to be used to create new barriers against people with disabilities.

#7.1 The K-12 Education Accessibility Standard should set out specific requirements for accessibility in the built environment in schools and other locations where education programs are to be offered. This should meet the accessibility requirements of the Ontario Human Rights Code and the Charter of Rights. It should meet the needs of all disabilities, and not only those of people with mobility disabilities. This should include: a) Specific requirements to be included in a new school to be built.
b) Requirements to be included in a renovation of or addition to an existing school, and
c) Retrofit requirements for an existing school that is not slated for a major renovation or addition.

#7.2 Each school board should develop a plan for ensuring that the built environment of its schools and other educational facilities becomes fully accessible to people with disabilities as soon as reasonably possible, and in any event, no later than 2025. As part of this:

a) As a first step, each school board should develop a plan for making as many of its schools disability-accessible within its current financial context. Accessibility does not only include the needs of people with mobility disabilities. It includes the needs of people with all disabilities, for example people with vision and/or hearing loss, autism, or mental health disabilities.
b) Each school board should identify which of its existing schools can be more easily made accessible, and which schools would require substantially more extensive action to be made physically accessible. An interim plan should be developed to show what progress towards full physical accessibility can be made by first addressing schools that would require less money to be made physically accessible, taking into account the need to also consider geographic equity of access across the school board.

#7.3 When a school board seeks to retain or hire design professionals, such as architects, , interior designers or landscape architects, for the design of a new school or a existing school’s retrofit or renovation, or for any other school board construction project, the school board should include in any Request for Proposal (RFP) a mandatory requirement that the design professional must have sufficient demonstrated expertise in accessibility design, and not simply compliance with the Ontario Building Code or the AODA. This includes the accessibility needs of people with all kinds of disabilities, and not just those with mobility impairments. It includes the accessibility needs of students and not just adults. A qualified accessibility consultant should be retained to advise on the project from the outset, with their advice being transmitted directly to the school board and not only the design professionals.

#7.4 A committee of the school board’s trustees and the school board’s Special Education Advisory Committee should be required to review design decisions on new construction or renovations to ensure that accessibility of the built environment is effectively addressed.

#7.5 Where possible, a school board should not renovate an existing school that lacks disability accessibility, unless the school board has a plan to also make that school accessible. For example, a school board should not spend public money to renovate the second storey of a school which lacks accessibility to the second storey, if the school board does not have a plan to make that second storey disability-accessible. Health and safety concerns should be the only reason for any exception to this.

#7.6 When a school board decides which schools to close due to reduced enrollment, a priority should be placed on keeping open schools with more physical accessibility, while a priority should be given to closing schools that are the most lacking in accessibility, or for which retrofitting is the most costly.

#7.7 Each school board should only hold off-site educational events at venues whose built environment is accessible.

8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and other and websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

#8.1 Each school board should ensure that:

a) Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.
b) A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
c) Each school board’s websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
d) Electronic documents created at the school board for use in education programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be provided and posted in an accessible Microsoft Word or HTML format.
e) Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
f) Textbooks and learning software should only be procured which include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. PDF should not be used unless an accessible alternative format such as MS Word is also available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

#8.2 Each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board.

9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning

Barrier: Too often, the curriculum used in Ontario schools was not designed based on accessibility and universal design in learning.

#9.1 The Education Accessibility Standard should require that the Ministry of Education and each school board, when setting requirements for or designing school curriculum, shall ensure that it incorporates universal design in learning to make it accessible to students with disabilities.

Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities.

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

#9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.

#9.3 Each school board should ensure that all teachers and teaching staff understand, and effectively and consistently use, principles of Universal Design in Learning (UDL), and differentiated instruction, when preparing and implementing lesson plans and other educational programming. For example:

a) This plans objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
b) Each school board should develop, implement and monitor a comprehensive plan to train its teachers, other teaching staff, teaching coaches and principals on using UDL and differentiated instruction principles when preparing lesson plans and teaching. The Ontario Government should be required to provide a model program for this training which each school board can use.
c) Each school board should include knowledge of UDL and differentiated instruction principles as an important criterion when recruiting or promoting teachers, other teaching staff and principals.
d) Each school board should ensure that teachers are provided with appropriate resources and support to successfully implement the UDL training. Each school board should monitor how effectively UDL and differentiated instruction are incorporated into lesson plans and other teaching activities on the front lines.
e) Each school board should review any curriculum, text books and other instructional materials and learning resources used in its schools to ensure that they incorporate principles of UDL.
f) Each school board should create and implement a plan to ensure that teachers in the areas of science, technology, engineer and math (STEM) have resources and expertise to ensure the accessibility of STEM courses and learning resources.
g) Each school board should provide teaching coaches with expertise in UDL to support teachers and other teaching staff.
h) Similarly specialized training should be included for those who teach sex education to ensure that it includes disability-related sex education.

10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities

Barrier: Lack of sufficient training requirements for some education professionals who specialize in supporting the education needs of students with disabilities.

Ontario does not now ensure that any professional who is employed to support the education of students with disabilities will have sufficient qualifications to do so. For example, Ontario’s leading organization of parents of children with vision loss has pointed out that the requirements to qualify to serve as a “teacher of the visually impaired” (TVI) in Ontario are substantially inadequate, and are much lower than in some other places in Canada and elsewhere. A teacher employed to teach braille to a blind child need have no prior hands-on experience ever training a blind child to read braille, and need not ever have observed another TVI teaching braille to a blind child.

#10.1 The Education Accessibility Standard should require sufficient training for professionals who support the education of students with disabilities. 11. Removing Attitudinal Barriers against Students with Disabilities

Barrier: Stereotypes and other attitudes among some teachers, principals, other school staff, other students and some families that do not recognize the right and benefits of students with disabilities to get a full and equal education.

#11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

a) Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
b) Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
c) Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
d) Implement Human Resources Policies and Practices to Expand School Board Staff Knowledge and Skills Regarding Inclusion

#11.2 Each school board should develop and implement human resources policies targeted at full accessibility and inclusion, such as:

a) Making knowledge and experience on implementing inclusion an important hiring and promotions criterion especially for principals, vice-principals and teaching staff.
b) Emphasizing accessibility and inclusion knowledge and performance in any performance management and performance reviews.
12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other such teaching resources that are not provided in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this has not been sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

#12.1 To ensure that instructional materials used are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

a) Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
b) Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
c) Review its procurement practices to ensure that any new instructional material that is acquired is fully accessible or conversion-ready, and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

#12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.

13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities

Barrier: Schools or school boards that have gym, playground or other equipment that is not designed based on principles of universal design, and that some students with disabilities therefore cannot use, as well as gym, sports and other activities in which students with disabilities can fully participate.

Section 80.18 of the Integrated Accessibility Standards Regulation, as amended in 2012, require accessibility features to be considered when new outdoor play spaces are being established or existing ones are redeveloped. However, those provisions do not set the spectrum of detailed requirements that should be included. They do not require any action if an existing play space is not being redeveloped. They ultimately, leave it to each school board or each school to re-invent the accessibility wheel each time they build or redevelop an outdoor play space. They do not require anything of indoor play spaces or gyms.

#13.1 To ensure that gym equipment, playground equipment and other like equipment and facilities are accessible for students with disabilities, the Education Accessibility Standard should set out specific technical accessibility requirements for new or existing outdoor or indoor play spaces, gym and other like equipment, drawing on accessibility standards and best practices in other jurisdictions, so that each school board does not have to re-invent the accessibility wheel.

#13.2 Each school board should:
a) Take an inventory of the accessibility of its existing indoor and outdoor play spaces and gym and playground equipment.
b) Adopt a plan to remediate the accessibility of new gym or playground equipment, in consultation with the school board’s Special Education Advisory Committee and Accessibility Committee, and widely with families of students with disabilities.

Barrier: Gym and other physical activity programming at schools may not be designed or operated in a way that allows students with disabilities to fully participate.

#13.3 Each school board should be required to ensure that its gym and other physical activity teachers and coaches have training and access to support information on how to include students with disabilities in these programs.

#13.4 The Ministry of Education should be required to make available to school boards resources and training material on effectively including students with disabilities in gym and other physical activity programming.

14. Ensuring Student Testing/Assessment is Free of Disability Barriers

Barrier: Tests or other performance assessments of students that are not designed in a way that ensures that students with disabilities are fairly and accurately assessed.

Throughout the education system, students take tests and other assessments of their academic performance, whether in specific courses or system-wide standardized tests. There have been no mandatory provincial requirements of which we are aware to ensure that the ways students’ performance is tested or assessed are barrier-free for students with disabilities, and to provide a fair and accurate assessment of their performance.

#14.1 The Education Accessibility Standard should set requirements for proper approaches to ensuring tests provide a fair, accurate and barrier-free assessment of students with disabilities, and on when and how to provide an alternative evaluation method.

#14.2 To ensure that a school board fairly and accurately assesses the performance of students with disabilities, each school board should:

a) Have a policy that commits to ensure that testing and other assessments of students’ performance and learning are designed to be barrier-free for students with disabilities.
b) Give its teachers and principals training resources on how to ensure a test is a fair, accurate and barrier-free assessment for students with disabilities in their class, and where needed, how to provide an alternative evaluation method. c) Monitor implementation of these guidelines.
15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School

Barrier: Policy and bureaucratic impediments to students with disabilities being able to get the adaptive technology and supports they need for school.

There are inconsistent practices around Ontario for acquiring needed adaptive technology and the training required to be able to effectively use that equipment. There are also inconsistent practices on whether a student can take such equipment home for use there, or can bring their own adaptive equipment from home for use at school. TDSB does not at all support students with vision loss using Apple products such as the iPhone or iPad, which come with leading accessibility features.

#15.1 The Education Accessibility Standard should require that procedural, bureaucratic and other such barriers to the acquisition, training and use of needed adaptive equipment and technology at school should be eliminated. It should require the establishment of a prompt, standardized provincial system for the procurement and deployment of accessible technology that ensures access to the most appropriate technology that is available on the market.

Barrier: Some school boards or schools do not let students with disabilities bring a sufficiently trained service animal to school as an accommodation to their disability, either because the school board or school does not allow for this, or lacks a proper policy to allow for this.

Some students on the autism spectrum and their families in Ontario have reported having difficulties at some school boards with being allowed to bring a service animal to school, and have even had to take action before the Human Rights Tribunal against a school board. Others have been able to succeed without barriers in bringing their service animal to school.

#15.2 The Education Accessibility Standard should provide that each school board should ensure that students with disabilities are able to bring a sufficiently trained service animal to school as a disability accommodation. Each school board should respect the student’s rights under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

#15.3 The Education Accessibility Standard should set specific requirements for school board practices in relation to a student bringing a service animal to school. The recent Ministry of Education policy directive to school boards on this topic did not include the specifics that are needed.

#15.4 The Education Accessibility Standard should ensure that there should be no bureaucratic or policy barriers to students with disabilities bringing a sufficiently trained service animal to school. The fair process procedures described in this Framework should apply to such requests.

#15.5 If the school board does not accept at first the sincerity or legitimacy of the student’s request, or the training of the service animal, the school board should immediately notify the student and their family of any and all concerns. The school board should investigate the request, including the student’s benefits from the service animal outside school and in the home, or any other concerns, as well as the experience of other schools or school boards that have allowed students with disabilities to bring service animals to school, before acting on any potential unwillingness to grant the student’s request. If a school board is not prepared to accept a request to be able to bring a service animal to school at first, the school board should undertake a test period of allowing this practice, unless the school board can demonstrate that to conduct such a test period would cause the school board an undue hardship. A school board should not refuse a request to bring a service animal to school based on no test period and based on speculative assumptions or stereotypes.

#15.6 The question when dealing with such requests should not be whether the student is doing adequately at school without the service animal. The question should be whether the student could do better at reaching their potential at school if assisted by their service animal. Similarly, the question is not whether the service animal will assist the student in accessing the curriculum. Rather the relevant question is whether the service animal could assist the student with any aspect of student life in the school environment, such as social interaction, independence and self-regulation. In its May 2, 2019 letter to Ontario’s Education Minister, the Ontario Human Rights Commission stated: “We believe that limiting disability accommodation to only “learning needs” is not a proper interpretation of the Code.”

#15.7 Each school board should ensure that principals, teachers, school office staff and families of students with disabilities know about this policy and that no attitudinal barriers impede this accommodation.

#15.8 The preference of some other students or staff with no disability not to have a service animal in class is not a justification for refusing to allow this accommodation for a student with a disability. Such concerns of other students, or of staff should be addressed by making arrangements that allow the student with a disability to bring their service animal to school, while situating any objecting student or staff with no disability at an acceptable distance from them. Notwithstanding anything in such school board policies, nothing may restrict a person with vision loss, student, staff, and parent or otherwise, from being a qualified guide dog with whom they have trained to school.

16. Removing Barriers to Participation in Experiential Learning

Barrier: Experiential learning programs that do not ensure that accessible experiential and inclusive experiential learning placements are made available to students with disabilities, and insufficient supports to help organizations, providing experiential learning placements, to facilitate the accommodation of students with disabilities.

#16.1 To ensure that students with disabilities can fully participate in a school board’s experiential learning programs, each school board should:

a) Review its experiential learning programs to identify and remove any accessibility barriers.
b) Ensure that its partners who accept its students for experiential learning placements are effectively informed of their duty to accommodate the learning needs of students with disabilities.
c) Create and share supports and advice for placement organizations who need assistance to ensure that students with disabilities can fully participate in their experiential learning opportunities.
d) Monitor placement organizations to ensure they have someone in place to ensure that students with disabilities are effectively accommodated, and to ensure that effective accommodation was provided during each placement of a student with a disability who needed accommodation.
e) Survey students with disabilities and experiential learning placement organizations at the end of any experiential learning placements to see if disability-related needs were effectively accommodated.

#16.2 The Ministry of Education should provide templates for these policies and measures. It should also prepare and make available training videos for organizations offering experiential learning programs to guide them on accommodating students with disabilities.

17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities

Barrier: A potential combination of different barriers reviewed in this Framework.

#17.1 The Education Accessibility Standard should set a province-wide standard for ensuring that French immersion programs are accessible to and effectively accommodate students with disabilities. These programs should be offered in accessible locations. Their instructional materials should be available in accessible formats. Their admission criteria should be screened for any disability barriers.

#17.2 Each English language school board should develop, implement and monitor a strategy to ensure that French Immersion and other specialized programs are accessible to and barrier-free for students with disabilities, including:

a) Identifying what percentage of the students in these programs are students with disabilities, to document any under-participation.
b) Review the admission process for gaining entry to these programs, to identify possible accessibility barriers.
c) Review the choice of the buildings where these programs are to be delivered to ensure that students with disabilities will be able to physically attend these programs.
d) Identify what efforts the school board now makes to ensure that students with disabilities are accommodated in these programs, and the extent to which UDL and differentiated instruction principles are used in the teaching in these programs. e) Develop an action plan to address any accessibility and inclusion shortfalls.
f) Actively publicize to students with disabilities and their families about the opportunities to take part in these programs, and the school board’s readiness to ensure that their accommodation needs will be met.
g) Monitor the effectiveness of efforts to ensure inclusion and accessibility of these programs for students with disabilities, and report publicly on this, including to school board trustees, to the trustees’ accessibility committee and to the school board’s Special Education Advisory Committee, on an annual basis.
18. Substantially Reducing the Shuffling of Students with Special Education Needs from School to School over Their school Years

Barrier: The situating of programs for students with disabilities can force too many of these students to have to change the school they attend during their years at school much more than do other students, causing disruption and hardships for the students and their families.

#18.1 Each school board should be required to develop and implement a strategy to substantially reduce the shuffling of students with disabilities from one school to another over their school years. For example:

a) If a student, attending a school other than their home school, for a special education program or class, is prepared to shift to inclusion in a fulltime regular classroom, then consistent with parental agreement, the student should have the option of remaining at the same school as the special education class, and treating it as their home school.
b) Where possible, the school board should locate in the same school a combination of two special education classes that involve different levels of support. This would enable a student to gradually progress through different levels of special education classes towards a regular class setting in that school, without having to switch schools in order to switch to a different level of special education class. It would also enable a student, where appropriate, to spend part of a school day in one program and another part of the school day in another program, to best meet the student’s needs.
c) Where feasible, if a student with a disability is required to attend a different school than his or her home school, in order to take part in special education programming, the family should have the option of having that students’ siblings also attend that school, especially where this will help the student with disabilities. Whenever possible, siblings, including those with disabilities, should be able to attend the same school.

19. Transportation for Students with Disabilities

Barrier: Barriers to accessibility of the education programming offered at a student’s local school that necessitates the provision of bus transportation to more distant schools, combined with the failure to ensure that students with disabilities are consistently, reliably and safely bussed to and from school.

The provisions on the provision of bus transportation to students with disabilities in s. 75 of the Integrated Accessibility Standards Regulation 2011 (IASR) have not been sufficient to effectively remove transportation barriers facing students with disabilities. Stronger provisions are required. The 2018 recommendations for revisions to the transportation provisions in the IASR do not in any way address this need.

#19.1 The Education Accessibility Standard should provide that where a school board provides bussing or other transportation to students with disabilities in order to enable them to attend school, the school board shall ensure and monitor to ensure that:

a) The school board has consulted with each family to identify the accessibility and accommodation needs of the student with disabilities in relation to transportation, and the bus company and driver has been properly trained to accommodate that need.
b) Where the school board or its bussing contractor changes the driver assigned to transport the student, the replacement driver is given the same information and training prior to driving the student, or, in the case of an emergency replacement, as soon as possible.
c) The school board and, where applicable, any contractor it hires, shall retain records of the training provided, including when it was provided and shall make this information public.
d) The school board should have a readily available official especially during periods when a student is being transported to receive and address phone calls, emails and text messages from a family about problems regarding the student’s transportation.
e) The school board should document all complaints reported on transportation services, and the company to which it applies. A summary of these should be provided to all members of the school board including its Special Education Advisory Committee and its Accessibility Committee on a quarterly basis and shall make this public on the school board’s website.
f) The Education Accessibility Standard should make it clear that the fact that the school board has contracted for a private company to provide the student transportation does not remove or reduce the school board’s duties under this accessibility standard or otherwise under the AODA, the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms to ensure that the student has been provided with barrier-free participation in in the school board’s educational programs and opportunities.

Barrier: Some school boards do not ensure that pick-up/drop locations for student bussing are accessible for parents with disabilities.

#19.2 The Education Accessibility Standard should require that the school board and, where applicable, a bus company with which it contracts, will ensure that pick-up and drop-off locations for a student’s bussing are accessible when needed to accommodate the parents or guardians of students with disabilities.
20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

Barrier: The arbitrary power of school principals to exclude students from school, outside the disciplinary suspension and expulsion power, that disproportionately impacts on students with disabilities.

The Ontario Human Rights Commission has identified as a human rights issue the sweeping and arbitrary power of any school principal to exclude a student from school. Section 265(1) (m) of Ontario’s Education Act provides:

“265. (1) It is the duty of a principal of a school, in addition to the principals 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 principals judgment be detrimental to the physical or mental well-being of the pupils; ”

This power can be and is misused, especially to keep some students with disabilities away from school. This is made worse by the power to shorten the length of the school day for students with disabilities. This Framework addresses together the power to exclude a student from school for an entire day and the power to reduce the length of the school day, whether or not they emanate from the same provisions under Ontario’s Education Act.

#20.1 The Education Accessibility Standard should set specific comprehensive, mandatory requirements on when a school board can exercise any power to refuse to admit a student to school for all or part of a school day. It should have no loopholes that would let a principal or teacher exclude a student informally without complying with these requirements.

a) This should include any time a school board formally or informally asks or directs that a student not attend school, or that the student be removed from school, whether in writing or in a discussion
b) This should include a school board request or direction that a student only attend school for part of the regular school day.
c) This does not include a situation where a family requests that a student be absent from school for all or part of a school day, but the school board is willing to let the student attend school.

#20.2 The school board should be required to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program. The school board should keep records of and publicly account for its doing so.

#20.3 A refusal to admit should only be imposed when it is demonstrably necessary to protect health and safety of students at school, and only after all relevant accommodations for the student, up to the point of undue hardship have been explored or attempted.

#20.4 A refusal to admit should go no further and last no longer than is necessary. A principal should only resort to a refusal to admit if the principal can demonstrate that the student presents an imminent risk to health or safety which cannot be addressed by lesser measures, such as suspension.

#20.5 If a refusal to admit is to take place, the first resort should be to exclude the student from a specific class, accommodating that student in another class. Only if that can’t be sufficient, should a principal consider excluding the student from that school, accommodating the student at another school. A school board should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school at that school board.

#20.6 The Education Accessibility Standard and policy directives from the Ministry of Education should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.

#20.7 A refusal to admit should not be allowed to last more than five consecutive school days, unless extended by the school board in accordance with this accessibility standard.

#20.8 The burden should be on the school board to justify the refusal to admit. It should not be for the student or the students family to justify why the student should be allowed to attend school.

#20.9 When a school board staff decide whether to refuse to admit a student, they should take into account all mitigating considerations that are considered when deciding whether to suspend or expel a student.

#20.10 A school board should not refuse to admit a student with a disability on the ground that school board staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.

#20.11 If, when a refusal to admit is to expire, the school board wants to extend it, the school board must justify it. The student’s family need not prove why the student should be allowed to return to school.

#20.12 An extension of a refusal to admit must first consider excluding the student from a single class, and then the option of excluding the student from that school, and only as a last resort, excluding the student from all schools at that school board.

#20.13 An extension of the refusal to admit should not be permitted if the school board has not put in place an effective alternative option for the student to receive their education while excluded from school.

#20.14 The Education Accessibility Standard should establish a mandatory fair procedure that the school board must follow when refusing to admit a student. These procedures should ensure accountability of the school board and its employees, including:
a) A student and their families should have all the procedural protections that are required when a school board is going to impose discipline such as a suspension or expulsion.
b) The prior review and approval of the superintendent should be required, before a refusal to admit is imposed. If it is an emergency, then the superintendent should be required to review and approve this decision as quickly afterwards as possible, or else the refusal to admit should be terminated.
c) The superintendent should independently assess whether the school board has sufficient grounds to refuse to admit, and has met all the requirements of the school board’s refusal to admit policy (including ensuring alternative education programming is in place for the student).

d) The principal should be required to immediately notify the student and his or her family in writing of the refusal to admit, the reasons for it, and the duration. That should include outlining steps that the school board has taken or will be taking to expedite a students return to school and provide an expected timeline for the completion of these steps.
e) The principal should immediately tell the student and the student’s family, in clear and plain language, in writing, what a refusal to admit is, its duration, the reasons for it, the steps the school board is taking to expedite the students return to school and time lines for those steps, the school board’s process for reviewing that decision, and the family’s right to appeal it (including how to use that right of appeal). This should be provided in a language that the family speaks.
f) These procedures should again be mandatory any time the school board extends a refusal to admit.
g) A refusal to admit should not be extended for an accumulated total of more than 15 days (within a surrounding 30 day period) without the independent review and written approval of an executive superintendent of the school board.
h) No refusal to admit should be extended for an accumulated total of more than 20 days (within a surrounding 45 day period) without the independent review and written approval of the Director of Education.

#20.15 A fair and prompt appeal process should be provided to the parents/guardian and, where appropriate, the student who was refused admission to school, which includes:

a) The appeal should be to school board officials who had no involvement with the initial decision to refuse to admit or any extensions of it.
b) The school board should promptly inform the student and the student’s family about how to start an appeal, who decides the appeal, the procedures for the appeal, that the student and family can present reports, support people or experts or any other information they wish, and can have a representative, either a lawyer or other person, to speak for them or assist them with the appeal. c) The appeal should include an in-person meeting with the student and family.
d) The appeal should be heard and decided very promptly along time lines that the Education Accessibility Standard should set.
e) On the appeal, the school board should have the burden to prove that the refusal to admit was justified, that it went no further and lasted no longer than was necessary, and that proper alternative education programming was provided or offered.
f) A decision on the appeal should promptly be provided in writing with reasons along time lines that the Education Accessibility Standard should set.

#20.16 The Ministry of Education or the school board should set a unique code for marking attendance for a student who is absent from school for all or part of a day due to a refusal to admit.

#20.17 Each principal should be required to immediately report to their superiors in writing whenever a student is excluded from school, including the student’s name, whether the student has a disability, the reason for the exclusion, the intended duration of the exclusion, and the substitute educational programming that will be provided to the student while excluded from school The school board should centrally collect these reports and should make public quarterly aggregated data (without any names or identifying information) on the number of refusals to admit, reasons for them, percentage that involve any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.

#20.18 To help ensure that refusals to admit are not used due to a failure to accommodate a
student’s disability up to the point of undue hardship, each school board should create an emergency fund for accelerating education disability accommodations needed to facilitate a student’s remaining at or promptly returning to school, in connection with an actual or contemplated refusal to admit.




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Send Us Your Feedback on Our Draft Framework for what the Promised K-12 Education Accessibility Standard Should Include – AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

www.aodaalliance.org [email protected] Twitter: @aodaalliance

Send Us Your Feedback on Our Draft Framework for what the Promised K-12 Education Accessibility Standard Should Include

September 18, 2019

          SUMMARY

Today, the AODA Alliance is making public a draft Framework for what the promised Education Accessibility Standard should include for students in schools between kindergarten and Grade 12. We set it out below and invite your feedback. Let us know what you think we should do to improve this Framework before we finalize it and submit it to the K-12 Education Standards Development Committee. Please email us your feedback by October 2, 2019 by replying to this email, or by addressing an email to [email protected]

After months and months of our advocacy, we are delighted and relieved that the Ford Government has finally let the three AODA Standards Development Committees go back to work, which had remained frozen since the June 2018 Ontario election,. Those are the Standards Development Committees working in the areas of K-12 education, post-secondary education, and health care. The K-12 Standards Development Committee held its first resuming meeting by a telephone conference call on September 10, 2019. AODA Alliance Chair David Lepofsky  is a member of that committee. The Post-Secondary Education Standards Development Committee did so on September 12, 2019.

We are preparing this Framework to help the K-12 Education Standards Development Committee go about its work developing recommendations for the Ford Government of what to include in the promised Education Accessibility Standard. Once we get your feedback, we will finalize this Framework, make it public and submit it to the K-12 Education Standards Development Committee.

Time-permitting, we also hope to prepare a Framework to submit to the Post-Secondary Education Standards Development Committee, to supplement this one. If you have ideas of what we should include, beyond the parts of this Framework that are relevant at the post-secondary phase of education, please send us your ideas.

This draft framework is the result of lots of feedback that we have gathered over the past several years, as we campaigned to get commitments to create an Education Accessibility Standard under the AODA. It substantially builds and expands on the Discussion Paper on this topic that we made public almost three years ago, on November 21, 2016. We thank all those who have given us feedback in the past and who will do so now.

It is because we have gotten so much helpful feedback that this 27 page draft Framework is so detailed and thorough.

We understand that it can take some time to read through and think about all the detailed information in this draft Framework. For those who have the time to do so, we really appreciate your doing so. For those who don’t have the time, you can just look over this list of headings in the Framework:

Introduction — What is This Proposed Framework?

  1. What Should the Long-term Objectives of the Education Accessibility Standard Be?
  2. A Vision of An Accessible Education system
  3. General provisions that the Education Accessibility Standard Should Include
  4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them
  5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a school board’s Accommodation of the Education Needs of Students with Disabilities.
  6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs
  7. Ensuring a Fully Accessible Built Environment at Schools
  8. Ensuring Digital Accessibility at School
  9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning
  10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities
  11. Removing Attitudinal Barriers against Students with Disabilities
  12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use
  13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities
  14. Ensuring Student Testing/Assessment is Free of Disability Barriers
  15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School
  16. Removing Barriers to Participation in Experiential Learning
  17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities
  18. Substantially Reducing the Shuffling of Students with Special Education Needs From School to School over Their school Years
  19. Transportation for Students with Disabilities
  20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

As we make this draft Framework public, we are sadly reminded that 231 days have now passed since the Ford Government received the final report of the Independent Review of the AODA’s implementation and enforcement which was conducted by former Ontario Lieutenant Governor David Onley. The Ford Government has still not released a comprehensive plan to implement its recommendations, nor has it publicly promised to ever do so. Over 2 million Ontarians with disabilities suffer the ongoing consequences of that foot-dragging. New disability barriers continue to be created, while old barriers too often remain in place.

          MORE DETAILS

 Proposed Framework for the K-12 Education Accessibility Standard

Prepared by the Accessibility for Ontarians with Disabilities Act Alliance

Note: This is only a draft. It is still a work in progress. Feedback on it is welcomed. Send feedback to [email protected]

Introduction — What is This Proposed Framework?

In Ontario, over a third of a million students with disabilities face too many barriers at all levels of Ontario’s education system. For years, the AODA Alliance led a campaign to get the Ontario Government to agree to create an Education Accessibility Standard under the Accessibility for Ontarians with Disabilities Act (AODA). Two committees have been appointed by the Ontario Government to make recommendations on what the Education Accessibility Standard should include: The K-12 Education Standards Development Committee is responsible for making recommendations on what that accessibility standard should include to address barriers in Ontario’s publicly-funded schools from Kindergarten to Grade 12. The Post-Secondary Education Standards Development Committee was appointed to make recommendations for what that accessibility standard should include to address barriers in Ontario’s post-secondary education institutions, e.g. colleges and universities.

Under the AODA, an accessibility standard is supposed to spell out the barriers that are to be removed or prevented, what must be done to remove or prevent them, and the time lines required for this action.

In this Framework, the AODA Alliance outlines the key ingredients and aims for the promised Education Accessibility Standard. Where we state that “A school board should…” or similar wording, we mean by this that the Education Accessibility Standard should include a provision that requires the school board to take the step that we describe.

We hope this will assist the two Standards Development Committees. It predominantly focuses on the K-12 context, but its contents are readily transferrable to the post-secondary education context.

1.     What Should the Long-term Objectives of the Education Accessibility Standard Be?

The purpose of the Education Accessibility Standard should be to ensure that Ontario’s education system becomes fully accessible to all students with disabilities by 2025, the AODA’s deadline, by requiring the removal and prevention of accessibility barriers that impede students with disabilities. It should aim to ensure that students with disabilities can fully participate in, fully benefit from and be fully included in Ontario’s education system on a footing of equality, in the least restrictive environment consistent with a student’s and their parents’ wishes. It should provide a prompt, accessible, fair, effective and user-friendly process to learn about and seek individual placements, programs, services, supports and accommodations tailored to the individual needs of each student with disabilities. It should aim to eliminate the need for students with disabilities and their families to have to fight against education accessibility barriers, one at a time, and the need for educational organizations to have to re-invent the accessibility wheel one school board, college, university or educational program at a time.

2. A Vision of An Accessible Education system

The Education Accessibility Standard should begin by setting out a vision of what an accessible education system should include. An accessible education system at the K-12 level should include the following:

#2.1 It would be designed and operated from top to bottom for all of its students, including students with all kinds of disabilities, as protected by the Ontario Human Rights Code and/or the Canadian Charter of Rights and Freedoms. It would not in any way restrict its programs, services, supports or accommodations only to those students whose disability falls within the outdated and narrow definition of “exceptionality” in Ontario’s Education Act and regulations. The education system would no longer be designed and operated from the starting point of aiming to serve the fictional “average” student. It would not treat or label students with disabilities as “exceptions” or “exceptional”. It would not call their needs “special.” Their services, supports and needs would not be conflated with the services and needs of gifted students who have no disability.

#2.2 The built environment in the education system, such as schools themselves, their yards, playgrounds etc., and the equipment on those premises (such as gym and playground equipment) would all be fully accessible to people with disabilities, and would be designed based on the principle of universal design.

#2.3 Courses taught to students, including the curriculum and lesson plans, as well as informal learning activities, would fully incorporate principles of Universal Design in Learning (UDL), so that they are inclusive for students with disabilities.

#2.4 Instructional materials used in Ontario’s education system would be available in formats that are fully accessible to students with disabilities who need to use them, and would be available when needed.

#2.5 All digital technology used in Ontario’s education system, such as hardware, software and online learning, used in class or from home, would be fully accessible and fully embody the principle of universal design. Education staff working with students with disabilities would be properly trained to use the accessibility features of that hardware, software and online learning technology, and to effectively assist students with disabilities to use them.

#2.6 Inclusion and Universal Design in Learning would extend beyond formal classroom learning to other activities connected with education, such as the playground at recess, social and recreational activities, field trips, extra-curricular activities, and experiential learning opportunities.

#2.7 Students with disabilities would have prompt access to the adaptive technology and specialized supports they need for their education and needed training on how to use it. Students with disabilities would be able to bring to school and take home the accessibility technology and supports from which they benefit. For example, they would have the right to bring a qualified service animal to school with them.

#2.8 Teachers and other direct educational staff, would be fully trained to serve all students, and not just students who have no disabilities. They would be fully trained in such things as Universal Design in Learning. “Special education” teachers should not serve as a silo for those who will teach students with disabilities.

#2.9 Students with disabilities would have timely access to up-to-date adaptive technology and to effective training on how to use it, to enable them to best take part in and benefit from education programming.

#2.10 Options for placement and programming at school would be sufficiently diverse and flexible to accommodate a wide spectrum of learning needs and styles, rather than tending to be one-size-fits-all.

#2.11 Tests and other forms of evaluation in school education would be designed based on principles of universal design and Universal Design in Learning, so that they will be barrier-free for students with disabilities.

#2.12 Classroom teachers and other front-line teaching staff would be provided sufficient staff support, and, where needed, additional specialized training, to enable them to effectively serve students with disabilities in their classes.

#2.13 Students with disabilities would be assured the opportunity to receive an equal education in the least restrictive environment, consistent with the student’s/parents’ wishes.

#2.14 Students with disabilities would encounter a welcoming environment at school and in class to facilitate their full participation, and a welcoming environment in which they can seek and receive accommodations for their disabilities. Students without disabilities, teaching staff and other school staff, as well as other parents in the school context, will be welcoming and inclusive towards students with disabilities. To achieve this, among other things, all students will receive positive curriculum content on the importance of inclusion and accessibility for students with disabilities. Bullying, teasing, stereotyping, patronization and the soft bigotry of low expectations will be absent from the school environment.

#2.15 Admission criteria, admission tests or other admission screening to get into any specialized education programming would be barrier-free for students with disabilities.

#2.16 Students with disabilities and their parents/guardians would have prompt, effective and easy access to user-friendly information in multiple languages on the educational options, programs, services, supports and accommodations available for their disability, and on the process for seeking these. Students with disabilities and their parents would be given a timely opportunity to observe options for placement, programming and other educational services and supports, when considering which would be most suitable for that student.

#2.17 Students with disabilities and their families would be kept regularly posted on the effectiveness of the placement, program, services, supports and accommodations that the student is to receive.

#2.18 The process for deciding on the placement, programming, services, supports and accommodations for students with disabilities would be fair, open and transparent in which the student and their family can fully participate. For example, before an Individual Education Plan (IEP) is written, the student and parents/guardians would be able and invited to take part in an Individual Education Plan meeting with school officials, at which the Individual Education Plan can be jointly written. At each stage of the process, the student and parents will be given clear user-friendly “rights advice” on how the process works, and on their rights in the process.

#2.19 Once a student has an established Individual Education Plan at one school, that plan would be portable, and would carry forward should that student move to another school at the same or a different school board.

#2.20 A decision about a student’s placement would not be made until assessments and decisions are reached about the needs and most appropriate program, services, supports and accommodations for that student with disabilities.

#2.21 Where a student with disabilities or their family believe that the school is not effectively meeting the student’s disability-related needs, (e.g. by not including a desired item in the Individual Education Plan), or if the student or family believe that the school is not providing an educational program, service, support or accommodation to which it had agreed, the student and parents would have access to a prompt, fair, open and arms-length review process, including an offer of a voluntary Alternative Resolution Process if needed, conducted by someone who was not involved in the original decision or activity, and who does not oversee the work of those involved in the student’s direct education.

#2.22 The qualifications and required training for specialized support educators (such as teachers of the visually impaired) would be modernized and upgraded where needed to ensure that they are qualified to meet the specialized needs of their students and the other teachers whom they support.

#2.23 There would be no bureaucratic, procedural or policy barriers that would impede the effective accommodation of individual students with disabilities at all levels of Ontario’s education system.

#2.24 Students with disabilities would have a right to attend school for the entire school day, and to not be excluded from school for all or part of a school day directly or indirectly because of their disability. Schools would not systemically or disproportionately exclude students with disabilities from school for either all or part of the school day e.g. because a special needs assistant is away from school.

#2.25 Major new Government strategies in Ontario’s education system would be proactively designed from the start to fully include the needs of students with disabilities. For example, if the Ontario Government were to announce a new math strategy for Ontario’s schools, it would, among other things, include an effective strategy to address disability barriers that students with disabilities face in math education.

#2.26 Those responsible at the provincial and local school board levels for leading, overseeing and operating Ontario’s education system would have strong and specific requirements to address disability accessibility and inclusion in their mandates, and would be accountable for their work in that connection. This will not be relegated to special education bureaucratic silos.

#2.27 The education system would provide disability-related funding to a school board based on the actual number of students with disabilities at that board, and not on a formula that merely tries to estimate how many should be at that school board.

3. General provisions that the Education Accessibility Standard Should Include

#3.1 This proposed accessibility standard should cover and apply to all education programs and opportunities for students at any school board that receives public funding in Ontario.

#3.2 Where this accessibility standard refers to “students with disabilities “, this should include any student who has any kind of physical, mental, sensory, learning, intellectual, mental health, communication, neurological or other kind of disability within the meaning of the Ontario Human Rights Code or the Accessibility for Ontarians with Disabilities Act . It should not be limited to the much more restricted definition of an “exceptional pupil” or a student with an “exceptionality” in the Education Act and regulations and policy related to them, or who is therefore treated under Ontario’s Education Act, regulations, or policy as a student with special education needs.

#3.3 Each school board should be required to establish a permanent committee of its trustees to be called the “Accessibility Committee.”, and other members should include the school board’s chair or vice chair. The chair and vice chair of the school board’s Special Education Advisory Committee should sit as ex officio members of this committee, whether or not they are trustees of the school board. The school board’s Accessibility Committee should have responsibility for overseeing the school board’s compliance with the Accessibility for Ontarians with Disabilities Act and with the requirements of the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms in so far as they guarantee the right of students with disabilities to fully participate in and fully benefit from the education programs and opportunities that the school board provides.

#3.4 Each school board should be required to establish or designate the position of Chief Accessibility/Inclusion Officer, reporting to the Director of Education, with a mandate and responsibility to ensure proper leadership on the school board’s accessibility and inclusion obligations under the Ontario Human Rights Code, the Canadian Charter of Rights and Freedoms and the Accessibility for Ontarians with Disabilities Act, including the requirements of this accessibility standard. This responsibility may be assigned to an existing senior management official.

#3.5 Beyond the specific measures to remove and prevent barriers set out in this accessibility standard and in other accessibility standards enacted under the AODA, each school board should be required to systematically review its educational programming, services, facilities and equipment to identify recurring accessibility barriers within that school board that can impede the effective participation and inclusion of students with disabilities. A comprehensive plan for removing and preventing these accessibility barriers should be developed, implemented and made public with clear time lines, clear assignment of responsibilities for action, monitoring for progress, and reporting to the school board’s trustees , the school board’s accessibility committee, and to the school board’s Special Education Advisory Committee. This plan should aim at all accessibility barriers that can impede students with disabilities from full inclusion in the education programs and activities at that school board, whether or not they are specifically identified in the Education Accessibility Standard or in any other specific accessibility standards enacted under the AODA.

#3.6 Each school board should be required to develop, implement and monitor a comprehensive new Inclusion Strategy for students with disabilities, whether or not their disability is identified as an “exceptionality” under Ontario’s special education laws. Under this strategy, where a school board proposes to refuse to provide a student with a disability in a regular class setting with needed accommodations, supports or services, over the objections of the student or of their family, on the grounds that the school board believes that it cannot serve that student in a regular classroom setting, the principal should be required to give written notice of this to the family, with reasons, and to tell the family that it has the right to promptly receive the principal’s reasons in writing. But this should not be reason to stop or withdraw services or support until a meeting has been held to discuss progress of have a review meeting of some kind.

#3.7 Each school board should have an explicit duty to create a welcoming environment for students with disabilities and their families to seek accommodations for their disabilities.

4. The Right of Parents, Guardians and Students with Disabilities to Know about Disability-Related Programs, Services, and Supports, and How to Access Them

Barrier: Parents too often find it difficult to get easily accessed information from their school board and the Ontario Government on education options available for students with disabilities and how to access them.

#4.1 Each school board should provide parents of students with disabilities with timely and effective information on the available services, programs and supports for students with disabilities (whether or not they are classified as students with special education needs under the Education Act and regulations). Each school board should ensure that parents, guardians, and where practicable, students are informed, as early as possible, in a readily-accessible and understandable way, about such important information as:

  1. What “special education” is and who is entitled to receive it.
  2. That the school board has a duty to ensure that a student with a disability has the right to full participation in and full inclusion in all the school board’s education programming, and to be accommodated in connection with those programs under the Ontario Human Rights Code and Canadian Charter of Rights and Freedoms, whether or not the student is classified as a student with special education needs under Ontario’s Education Act and regulations.
  3. The menu of options, placements, programs, services, supports and accommodations available at the school board for students with disabilities, whether or not they are classified as students with special education needs under the Education Act and regulations.
  4. What persons and what office to approach at the school board to get this information, to request placements, programs, supports, services or accommodations for students with disabilities, whether or not they are classified as students with special education needs, or to raise concerns about whether the school board is effectively meeting the student’s education needs.
  5. The processes and procedures at the school board for a parent, guardian or student to request or change placements, programs, services, supports or accommodations for students with disabilities, whether or not they are classified as students with special education needs. This includes formal legislated processes like the Identification and Placement Review Committee (IPRC) and the development and implementation of the students Individual Education Plan (IEP). It also includes other informal processes like requests for programs, services, supports and accommodations in the classroom that are not covered in an IPRC or IEP.

#4.2 Without restricting the important information that must be made readily available, each school board should ensure, among other things, that:

  1. Parents and guardians of students with disabilities can easily find out and, where necessary, visit different placement, program, service and support options for a student with a disability, whether or not they are classified as a student with special education needs, before the parent, guardian or, where practicable, the student must take a position on what placement, program or services should be provided to that student.
  2. Parents and guardians of students with disabilities, and, where practicable, students with disabilities themselves, should be given clear, understandable explanations of their rights in the school system, including but not limited to the special education process. For example, when a school board presents parents or guardians with a proposed IEP, the school board should explain to them that they need not agree to and sign the proposed IEP, that the school board is open to consider the family’s suggestions for changes to the proposed IEP, and the avenues by which parents or guardians can seek to get the school board to make changes to the proposed IEP.

#4.3 Each school board should develop, implement and make public a plan to substantially improve its provision of the important information, described above, to all parents and guardians of that school board’s students, and to all students where practicable, and especially to parents and guardians of students with disabilities:

  1. This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
  2. A school board should not simply leave it to each principal or teacher to make sure that this important information is effectively provided. Each school board should instead have an effective system in place to ensure that this information actually reaches all parents and guardians, and where applicable, students.
  3. Each school board should ensure that all of this important information is fully and readily accessible in a prompt and timely way to all parents, guardians and students, in accessible formats and in jargon-free plain language, in a diverse range of languages. It should be easy to find this information. Among other things, this information should be posted on the school board’s website, in a prominent place that is easy to find, with a link on the school board’s home page. A school board should not simply rely on its website to share this information since this will not serve those families that do not have internet access.
  4. Among other things, each school board should send home an information package to all families at the start of each school year, and not merely to families of those students who are already being identified or served as having special education needs or disabilities. This package should include, among other things, a Question and Answer format to help families see how this information could relate to the student in their family.
  5. Each school board should also create a user-friendly package of information to be provided to families who first approach a school board about the possibility of enrolling a child at that school board, e.g. when they register for kindergarten. This should help enable a family to know whether they should be trying to access disability-related services and supports.
  6. Each school board should periodically host events at local schools to help families learn how to navigate disability-related school board processes like the Individual Education Plan and the Identification and Placement Review Committee processes. Where possible these should be streamed online and archived as a resource for families to watch online.

5. Ensuring that Parents, Guardians and Students Have a Fair and Effective Process for Raising Concerns about a School Board’s Accommodation of the Education Needs of Students with Disabilities

Barrier: Lack of sufficient, easily-accessed and fair processes at each school board to enable students with disabilities and families to have effective input into the placement and accommodation of the student, and for raising disability-related concerns.

The procedures in place under the Education Act and regulations for identifying and accommodating the needs of students with disabilities are out-of-date, and insufficient to ensure that the needs of students with disabilities are effectively met.

#5.1 Each school board should establish and maintain an effective process for parents and guardians of students with disabilities to effectively take part in the development and implementation of a student’s plans for meeting and accommodating their disability-related needs, including (but not limited to) their Individual Education Plan (IEP).

#5.2 As part of this process, parents and guardians of students with disabilities , and where practicable, the student, should be invited to take part in a joint school team student accommodation/IEP development meeting, where accommodation plans will be made and where the IEP will be written. The school board should bring to the table all key professionals who can contribute to this. The family should be invited to bring to the table any supports and professionals that can assist the family. Parents should have the right to bring with them anyone who can assist them in advocating for their child. Parents/families should be given a wide range of options for participating e.g. in person or by phone. They should be told in advance who will attend from the school board. Any proposal for accommodations including a draft IEP should include a summary of key points to assist families in understanding them.

#5.3 If a school board refuses to provide an accommodation, service, or support for a child’s disability that a parent, guardian, or where appropriate, the student requests, or if the school board fails to provide an accommodation or support that it has agreed to provide, the school board should, on request, promptly provide written reasons for that refusal, and let the family and student know that they can request written reasons.

#5.4 If parents and guardians of students with disabilities, and where practicable, the student, disagree with any aspect of the proposed accommodations including (but not limited to) the proposed IEP, or if the student or their family believe that the school board has not provided an accommodation or support that the school board has agreed to provide, the school board should make available a respectful, non-adversarial internal review process for hearing and deciding on the family’s concerns. The K-12 Education Accessibility Standard should set out the specifics of this review process. This school board review process should include the following:

  1. It should be very prompt. Arrangements for a student’s accommodations, including An IEP, should be finalized as quickly as possible, so that the students’ learning needs are promptly met.
  2. No proposed accommodations should be withheld from a student pending a review. The family should not feel pressured not to seek this review, lest the child be placed in a position of educational disadvantage during the review process. In other words, a family should not fear that if they launch a review, the student will suffer because the school board will not provide an accommodation or service the school board has offered, while the review is pending.
  3. The review process should be fair. The school board should let the family know all of its issues or concerns with a family’s proposal regarding the student’s accommodations, including the contents of the IEP. The family should be given a fair chance to express its concerns and recommendations regarding the student’s accommodations’, including IEP.
  4. The review should be by a person or persons who are independent and impartial. They should have expertise in education of students with disabilities. They should not have taken part in any of the earlier discussions or decisions at that school board regarding the accommodations or IEP for that child.
  5. At the review, every effort should be made to mediate and resolve any disagreements between the family and the school board. If the matter cannot be resolved by agreement, there should be an option for the school board to appoint a person or persons who are outside the school board to consider the review, along prompt time lines.
  6. At the review, written reasons should be given for the decision, and especially if any of the family’s requests or concerns are not accepted.
  7. If, after receiving the review’s decision and reasons, the family wishes to present any new information, it should be able to ask for the review to be reconsidered. This should be along short time lines.
  8. After the review is decided, if the family is not satisfied, it should be able to bring its concerns regarding the proposed accommodations including any IEP to a designated senior official at the school board with authority to approve the requested accommodations, for a further review.

#5.5 Where a student with a disability is being accommodated in a school in a school board covered by this accessibility standard, and the student transfers to another school in that school board or in another school board, that student should have a right to have the same accommodations put in in place in the new school or school board. If the school board of the school to which the student transfers proposes to reduce those accommodations or supports, they should be maintained until and unless, through the procedures set out in this accessibility standard, the school board has justified a reduction of those accommodations.

6. Expedited the Early Identification and Assessment of Students with Disabilities’ Needs

Barrier: Students with disabilities can face delays and bureaucratic impediments to early and timely professional assessment, where needed, of their disability-related needs.

#6.1 The Education Accessibility Standard should require measures to tear down administrative, bureaucratic and other barriers to reduce delays for getting psychological and other educational assessments for the identification of disability related learning needs.

7. Ensuring a Fully Accessible Built Environment at Schools

Barrier: Too often, the built environment where education programming is offered have physical barriers that partially or totally impede some students with disabilities from being able to enter or independently move around.

The Ontario Building Code and existing accessibility standards do not set out modern, sufficient accessibility requirements for the built environment in Ontario. Moreover, the Ontario Building Code is largely if not entirely designed to address the needs of adults, not children. The Ontario Government has no accessibility standard for the built environment in schools, whether old or new schools. The Ontario Government has not agreed to develop a Built Environment Accessibility Standard or to substantially strengthen the accessibility provisions in the Ontario Building Code.

As such, it is left to each school board to come up with its own designs to address, accessibility in the built environment in schools. This is highly inefficient and wasteful. It allows public money to be used to create new barriers against people with disabilities.

#7.1 The K-12 Education Accessibility Standard should set out specific requirements for accessibility in the built environment in schools and other locations where education programs are to be offered. This should meet the accessibility requirements of the Ontario Human Rights Code and the Charter of Rights. It should meet the needs of all disabilities, and not only those of people with mobility disabilities. This should include:

  1. Specific requirements to be included in a new school to be built.
  2. Requirements to be included in a renovation of or addition to an existing school, and
  3. Retrofit requirements for an existing school that is not slated for a major renovation or addition.

#7.2 Each school board should develop a plan for ensuring that the built environment of its schools and other educational facilities becomes fully accessible to people with disabilities as soon as reasonably possible, and in any event, no later than 2025. As part of this:

  1. As a first step, each school board should develop a plan for making as many of its schools disability-accessible within its current financial context. Accessibility does not only include the needs of people with mobility disabilities. It includes the needs of people with all disabilities, for example people with vision and/or hearing loss, autism, or mental health disabilities.
  2. Each school board should identify which of its existing schools can be more easily made accessible, and which schools would require substantially more extensive action to be made physically accessible. An interim plan should be developed to show what progress towards full physical accessibility can be made by first addressing schools that would require less money to be made physically accessible, taking into account the need to also consider geographic equity of access across the school board.

#7.3 When a school board seeks to retain or hire design professionals, such as architects, , interior designers or landscape architects, for the design of a new school or a existing school’s retrofit or renovation, or for any other school board construction project, the school board should include in any Request for Proposal (RFP) a mandatory requirement that the design professional must have sufficient demonstrated expertise in accessibility design, and not simply compliance with the Ontario Building Code or the AODA. This includes the accessibility needs of people with all kinds of disabilities, and not just those with mobility impairments. It includes the accessibility needs of students and not just adults. A qualified accessibility consultant should be retained to advise on the project from the outset, with their advice being transmitted directly to the school board and not only the design professionals.

#7.4 A committee of the school board’s trustees and the school board’s Special Education Advisory Committee should be required to review design decisions on new construction or renovations to ensure that accessibility of the built environment is effectively addressed.

#7.5 Where possible, a school board should not renovate an existing school that lacks disability accessibility, unless the school board has a plan to also make that school accessible. For example, a school board should not spend public money to renovate the second storey of a school which lacks accessibility to the second storey, if the school board does not have a plan to make that second storey disability-accessible. Health and safety concerns should be the only reason for any exception to this.

#7.6 When a school board decides which schools to close due to reduced enrollment, a priority should be placed on keeping open schools with more physical accessibility, while a priority should be given to closing schools that are the most lacking in accessibility, or for which retrofitting is the most costly.

#7.7 Each school board should only hold off-site educational events at venues whose built environment is accessible.

8. Ensuring Digital Accessibility at School

Barrier: School boards using classroom technology, such as hardware, software, online learning systems and other and websites that lack digital accessibility; school board policies that can be obstacles to using adaptive technology designed for people with disabilities; Insufficient staff training and familiarity with the use of accessibility features of mainstream technology, and with disability-specific adaptive technology.

#8.1 Each school board should ensure that:

  1. Educational equipment and technology, including hardware, software, and tablet/mobile apps deployed in educational settings should be designed based on universal design principles, to ensure that students with disabilities can use them.
  2. A school board’s Learning Management Systems (LMS) should be accessible to staff and students with disabilities, including those who use adaptive technology. They should have all accessibility features turned on and available to ensure that information posted through them will be accessible to students with disabilities, including those using adaptive technology such as screen readers or voice recognition tools. Each school board should ensure that no teacher is able to turn off any feature of the LMS that is accessible in favour of one that is not.
  3. Each school board’s websites and intranet content, including internet content available to students for learning purposes, including all online learning programs, should be fully accessible, with all new information posted on them to be fully accessible.
  4. Electronic documents created at the school board for use in education programming and activities should be created in accessible formats unless there is a compelling and unavoidable reason requiring otherwise. PDF format should be avoided. If a PDF document is created, an alternate version of the content should be provided and posted in an accessible Microsoft Word or HTML format.
  5. Software used to produce a school board’s documents such as report cards, Individual Education Plans, or other key documents should be designed to ensure that they produce these documents in accessible formats.
  6. Textbooks and learning software should only be procured which include full information technology accessibility. Any textbook used in any learning environment must be accessible to teachers and students with disabilities at the time of procurement. PDF should not be used unless an accessible alternative format such as MS Word is also available. For example, if a textbook is available in EPUB format, the textbooks must meet the international standard for that file format. For EPUB it is the W3C Digital Publishing Guidelines currently under review. If a textbook is available in print, the publisher should be required to provide the digital version of the textbook in an accessible format at the same time the print version is delivered to the school/Board.

#8.2 Each school board should establish, implement, publicize and enforce information technology procurement accessibility requirements, to ensure that no technology is purchased unless it ensures full digital accessibility. Digital and information technology accessibility should be included in all Requests for Proposal (RFP) or other tenders for sale of products and services to a school board.

9. Ensuring Universal Design in Learning Is Used in All Teaching Activities, Both Online and in Classroom Learning

Barrier: Too often, the curriculum used in Ontario schools was not designed based on accessibility and universal design in learning.

#9.1 The Education Accessibility Standard should require that the Ministry of Education and each school board, when setting requirements for or designing school curriculum, shall ensure that it incorporates universal design in learning to make it accessible to students with disabilities.

Barrier: Too often, teachers and other school staff who work with students are not sufficiently trained on how to teach all students, including students with disabilities.

The solution requires both reforms to the required training of future new teachers while they are in teachers’ college, and measures to expand the training of those who are already graduates of teachers’ college and who are working as teachers. This also applies to other school staff with teaching-related roles, such as principals and education assistants.

#9.2 The Ontario Government should require that to be qualified to teach or serve as a principal in an Ontario-funded school, a teacher or principal must have specified training in the education of students with disabilities. Any teacher’s college or like program that receives any provincial funding should require, as part of its degree programming, specified course contents on the education of students with disabilities for all teachers, and not only for special education teachers. Time lines for implementing this should be specified for the transition to this new approach. Each school board should be required to train school board staff, including teachers and other staff who work with students, on ensuring digital/information technology accessibility in the classroom, on the use of access technology (where needed) and on steps how to create accessible documents and web content.

#9.3 Each school board should ensure that all teachers and teaching staff understand, and effectively and consistently use, principles of Universal Design in Learning (UDL), and differentiated instruction, when preparing and implementing lesson plans and other educational programming. For example:

  1. This plan’s objective should be to ensure that all parents, guardians and where practicable, students, get the information they need to ensure that students of all abilities can fully participate in and benefit from the educational opportunities available at the school board.
  2. Each school board should develop, implement and monitor a comprehensive plan to train its teachers, other teaching staff, teaching coaches and principals on using UDL and differentiated instruction principles when preparing lesson plans and teaching. The Ontario Government should be required to provide a model program for this training which each school board can use.
  3. Each school board should include knowledge of UDL and differentiated instruction principles as an important criterion when recruiting or promoting teachers, other teaching staff and principals.
  4. Each school board should ensure that teachers are provided with appropriate resources and support to successfully implement the UDL training. Each school board should monitor how effectively UDL and differentiated instruction are incorporated into lesson plans and other teaching activities on the front lines.
  5. Each school board should review any curriculum, text books and other instructional materials and learning resources used in its schools to ensure that they incorporate principles of UDL.
  6. Each school board should create and implement a plan to ensure that teachers in the areas of science, technology, engineer and math (STEM) have resources and expertise to ensure the accessibility of STEM courses and learning resources.
  7. Each school board should provide teaching coaches with expertise in UDL to support teachers and other teaching staff.
  8. Similarly specialized training should be included for those who teach sex education to ensure that it includes disability-related sex education.

10. Ensuring Sufficient Training and Expertise for Education Professionals Who Support Students with Disabilities

Barrier: Lack of sufficient training requirements for some education professionals who specialize in supporting the education needs of students with disabilities.

Ontario does not now ensure that any professional who is employed to support the education of students with disabilities will have sufficient qualifications to do so. For example, Ontario’s leading organization of parents of children with vision loss has pointed out that the requirements to qualify to serve as a “teacher of the visually impaired” (TVI) in Ontario are substantially inadequate, and are much lower than in some other places in Canada and elsewhere. A teacher employed to teach braille to a blind child need have no prior hands-on experience ever training a blind child to read braille, and need not ever have observed another TVI teaching braille to a blind child.

#10.1 The Education Accessibility Standard should require sufficient training for professionals who support the education of students with disabilities.

11. Removing Attitudinal Barriers against Students with Disabilities

Barrier: Stereotypes and other attitudes among some teachers, principals, other school staff, other students and some families that do not recognize the right and benefits of students with disabilities to get a full and equal education.

#11.1 To eliminate attitudinal barriers among students, school board employees and some families of students, each school board should:

  1. Develop and implement a multi-year program/curriculum for teaching students, school board staff and families of school board students, about inclusion and full participation of students with disabilities, tailored to age levels. Because online courses are inadequate for this, where possible, this should include hearing from, meeting and interacting with people with disabilities e.g. at assemblies and/or via guest presentations.
  2. Post in all schools and send information to all families of the school board’s students, on the school board’s commitment to inclusion of students with disabilities, and the benefits this brings to all students.
  3. Provide specific training to all school board staff that deal with parents or students, on the importance of inclusion.
  4. Implement Human Resources Policies and Practices to Expand School Board Staff Knowledge and Skills Regarding Inclusion

#11.2 Each school board should develop and implement human resources policies targeted at full accessibility and inclusion, such as:

  1. Making knowledge and experience on implementing inclusion an important hiring and promotions criterion especially for principals, vice-principals and teaching staff.
  2. Emphasizing accessibility and inclusion knowledge and performance in any performance management and performance reviews.

12. Ensuring Accessibility of Instructional Materials that Students with Disabilities Use

Barrier: Instructional materials, such as textbooks and other such teaching resources that are not provided in an accessible format for students with disabilities.

Section 15 of the Integrated Accessibility Standards Regulation, enacted in June 2011, and in force for school boards since 2013 or 2015 (depending on their size) requires education organizations to provide instructional materials on request in an accessible format, and to make this part of their procurement of such resources. However, this has not been sufficient to effectively ensure that students with disabilities face no barriers in this context. Therefore, stronger measures are needed.

#12.1 To ensure that instructional materials used are fully accessible on a timely basis to students with disabilities such as vision loss and those with learning disabilities that affect reading, each school board should:

  1. Survey students with disabilities who need accessible instructional materials, and their teachers and families, to get their front-line experiences on whether they get timely access to accessible instructional materials, and to get specifics on where this has been most lacking.
  2. Establish a dedicated resource within the school board, or shared among school boards, to convert instructional materials to an accessible format, where needed, on a timely basis, either alone or in combination with other school boards.
  3. Review its procurement practices to ensure that any new instructional material that is acquired is fully accessible or conversion-ready, and monitor to ensure that this is always done in practice. A condition of procurement should be a requirement that the supplier or vender must remediate any inaccessible materials at its own expense.

#12.2 The Education Accessibility Standard should require the Ministry of Education to implement, monitor and publicly report on province-wide strategies to ensure the procurement of and use of accessible instructional materials across school boards.

13. Ensuring Accessibility of Gym, Playground and Like Equipment and Activities

Barrier: Schools or school boards that have gym, playground or other equipment that is not designed based on principles of universal design, and that some students with disabilities therefore cannot use, as well as gym, sports and other activities in which students with disabilities can fully participate.

Section 80.18 of the Integrated Accessibility Standards Regulation, as amended in 2012, require accessibility features to be considered when new outdoor play spaces are being established or existing ones are redeveloped. However, those provisions do not set the spectrum of detailed requirements that should be included. They do not require any action if an existing play space is not being redeveloped. They ultimately, leave it to each school board or each school to re-invent the accessibility wheel each time they build or redevelop an outdoor play space. They do not require anything of indoor play spaces or gyms.

#13.1 To ensure that gym equipment, playground equipment and other like equipment and facilities are accessible for students with disabilities, the Education Accessibility Standard should set out specific technical accessibility requirements for new or existing outdoor or indoor play spaces, gym and other like equipment, drawing on accessibility standards and best practices in other jurisdictions, so that each school board does not have to re-invent the accessibility wheel.

#13.2 Each school board should:

  1. a) Take an inventory of the accessibility of its existing indoor and outdoor play spaces and gym and playground equipment.
  2. b) Adopt a plan to remediate the accessibility of new gym or playground equipment, in consultation with the school board’s Special Education Advisory Committee and Accessibility Committee, and widely with families of students with disabilities.

Barrier: Gym and other physical activity programming at schools may not be designed or operated in a way that allows students with disabilities to fully participate.

#13.3 Each school board should be required to ensure that its gym and other physical activity teachers and coaches have training and access to support information on how to include students with disabilities in these programs.

#13.4 The Ministry of Education should be required to make available to school boards resources and training material on effectively including students with disabilities in gym and other physical activity programming.

14. Ensuring Student Testing/Assessment is Free of Disability Barriers

Barrier: Tests or other performance assessments of students that are not designed in a way that ensures that students with disabilities are fairly and accurately assessed.

Throughout the education system, students take tests and other assessments of their academic performance, whether in specific courses or system-wide standardized tests. There have been no mandatory provincial requirements of which we are aware to ensure that the ways students’ performance is tested or assessed are barrier-free for students with disabilities, and to provide a fair and accurate assessment of their performance.

#14.1 The Education Accessibility Standard should   set requirements for proper approaches to ensuring tests provide a fair, accurate and barrier-free assessment of students with disabilities, and on when and how to provide an alternative evaluation method.

#14.2 To ensure that a school board fairly and accurately assesses the performance of students with disabilities, each school board should:

  1. Have a policy that commits to ensure that testing and other assessments of students’ performance and learning are designed to be barrier-free for students with disabilities.
  2. Give its teachers and principals training resources on how to ensure a test is a fair, accurate and barrier-free assessment for students with disabilities in their class, and where needed, how to provide an alternative evaluation method.
  3. Monitor implementation of these guidelines.

15. Ensuring Students with Disabilities Have the Technology and Other Supports They Need at School

Barrier: Policy and bureaucratic impediments to students with disabilities being able to get the adaptive technology and supports they need for school.

There are inconsistent practices around Ontario for acquiring needed adaptive technology and the training required to be able to effectively use that equipment. There are also inconsistent practices on whether a student can take such equipment home for use there, or can bring their own adaptive equipment from home for use at school. TDSB does not at all support students with vision loss using Apple products such as the iPhone or iPad, which come with leading accessibility features.

#15.1 The Education Accessibility Standard should require that procedural, bureaucratic and other such barriers to the acquisition, training and use of needed adaptive equipment and technology at school should be eliminated. It should require the establishment of a prompt, standardized provincial system for the procurement and deployment of accessible technology that ensures access to the most appropriate technology that is available on the market.

Barrier: Some school boards or schools do not let students with disabilities bring a sufficiently trained service animal to school as an accommodation to their disability, either because the school board or school does not allow for this, or lacks a proper policy to allow for this.

Some students on the autism spectrum and their families in Ontario have reported having difficulties at some school boards with being allowed to bring a service animal to school, and have even had to take action before the Human Rights Tribunal against a school board. Others have been able to succeed without barriers in bringing their service animal to school.

#15.2 The Education Accessibility Standard should provide that each school board should ensure that students with disabilities are able to bring a sufficiently trained service animal to school as a disability accommodation. Each school board should respect the student’s rights under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms.

#15.3 The Education Accessibility Standard should set specific requirements for school board practices in relation to a student bringing a service animal to school. The recent Ministry of Education policy directive to school boards on this topic did not include the specifics that are needed.

#15.4 The Education Accessibility Standard should ensure that there should be no bureaucratic or policy barriers to students with disabilities bringing a sufficiently trained service animal to school. The fair process procedures described in this Framework should apply to such requests.

#15.5 If the school board does not accept at first the sincerity or legitimacy of the student’s request, or the training of the service animal, the school board should immediately notify the student and their family of any and all concerns. The school board should investigate the request, including the student’s benefits from the service animal outside school and in the home, or any other concerns, as well as the experience of other schools or school boards that have allowed students with disabilities to bring service animals to school, before acting on any potential unwillingness to grant the student’s request. If a school board is not prepared to accept a request to be able to bring a service animal to school at first, the school board should undertake a test period of allowing this practice, unless the school board can demonstrate that to conduct such a test period would cause the school board an undue hardship. A school board should not refuse a request to bring a service animal to school based on no test period and based on speculative assumptions or stereotypes.

#15.6 The question when dealing with such requests should not be whether the student is doing adequately at school without the service animal. The question should be whether the student could do better at reaching their potential at school if assisted by their service animal. Similarly, the question is not whether the service animal will assist the student in accessing the curriculum. Rather the relevant question is whether the service animal could assist the student with any aspect of student life in the school environment, such as social interaction, independence and self-regulation. In its May 2, 2019 letter to Ontario’s Education Minister, the Ontario Human Rights Commission stated: “We believe that limiting disability accommodation to only “learning needs” is not a proper interpretation of the Code.”

#15.7 Each school board should ensure that principals, teachers, school office staff and families of students with disabilities know about this policy and that no attitudinal barriers impede this accommodation.

#15.8 The preference of some other students or staff with no disability not to have a service animal in class is not a justification for refusing to allow this accommodation for a student with a disability. Such concerns of other students, or of staff should be addressed by making arrangements that allow the student with a disability to bring their service animal to school, while situating any objecting student or staff with no disability at an acceptable distance from them. Notwithstanding anything in such school board policies, nothing may restrict a person with vision loss, student, staff, and parent or otherwise, from being a qualified guide dog with whom they have trained to school.

16. Removing Barriers to Participation in Experiential Learning

Barrier: Experiential learning programs that do not ensure that accessible experiential and inclusive experiential learning placements are made available to students with disabilities, and insufficient supports to help organizations, providing experiential learning placements, to facilitate the accommodation of students with disabilities.

#16.1 To ensure that students with disabilities can fully participate in a school board’s experiential learning programs, each school board should:

  1. Review its experiential learning programs to identify and remove any accessibility barriers.
  2. Ensure that its partners who accept its students for experiential learning placements are effectively informed of their duty to accommodate the learning needs of students with disabilities.
  3. Create and share supports and advice for placement organizations who need assistance to ensure that students with disabilities can fully participate in their experiential learning opportunities.
  4. Monitor placement organizations to ensure they have someone in place to ensure that students with disabilities are effectively accommodated, and to ensure that effective accommodation was provided during each placement of a student with a disability who needed accommodation.
  5. Survey students with disabilities and experiential learning placement organizations at the end of any experiential learning placements to see if disability-related needs were effectively accommodated.

#16.2 The Ministry of Education should provide templates for these policies and measures. It should also prepare and make available training videos for organizations offering experiential learning programs to guide them on accommodating students with disabilities.

17. Ensuring French Immersion and Other Specialized Programs Are Barrier-Free for Students with Disabilities

Barrier: A potential combination of different barriers reviewed in this Framework.

#17.1 The Education Accessibility Standard should set a province-wide standard for ensuring that French immersion programs are accessible to and effectively accommodate students with disabilities. These programs should be offered in accessible locations. Their instructional materials should be available in accessible formats. Their admission criteria should be screened for any disability barriers.

#17.2 Each English language school board should develop, implement and monitor a strategy to ensure that French Immersion and other specialized programs are accessible to and barrier-free for students with disabilities, including:

  1. Identifying what percentage of the students in these programs are students with disabilities, to document any under-participation.
  2. Review the admission process for gaining entry to these programs, to identify possible accessibility barriers.
  3. Review the choice of the buildings where these programs are to be delivered to ensure that students with disabilities will be able to physically attend these programs.
  4. Identify what efforts the school board now makes to ensure that students with disabilities are accommodated in these programs, and the extent to which UDL and differentiated instruction principles are used in the teaching in these programs.
  5. Develop an action plan to address any accessibility and inclusion shortfalls.
  6. Actively publicize to students with disabilities and their families about the opportunities to take part in these programs, and the school board’s readiness to ensure that their accommodation needs will be met.
  7. Monitor the effectiveness of efforts to ensure inclusion and accessibility of these programs for students with disabilities, and report publicly on this, including to school board trustees, to the trustees’ accessibility committee and to the school board’s Special Education Advisory Committee, on an annual basis.

18. Substantially Reducing the Shuffling of Students with Special Education Needs from School to School over Their school Years

Barrier: The situating of programs for students with disabilities can force too many of these students to have to change the school they attend during their years at school much more than do other students, causing disruption and hardships for the students and their families.

#18.1 Each school board should be required to develop and implement a strategy to substantially reduce the shuffling of students with disabilities from one school to another over their school years. For example:

  1. If a student, attending a school other than their home school, for a special education program or class, is prepared to shift to inclusion in a fulltime regular classroom, then consistent with parental agreement, the student should have the option of remaining at the same school as the special education class, and treating it as their home school.
  2. Where possible, the school board should locate in the same school a combination of two special education classes that involve different levels of support. This would enable a student to gradually progress through different levels of special education classes towards a regular class setting in that school, without having to switch schools in order to switch to a different level of special education class. It would also enable a student, where appropriate, to spend part of a school day in one program and another part of the school day in another program, to best meet the student’s needs.
  3. Where feasible, if a student with a disability is required to attend a different school than his or her home school, in order to take part in special education programming, the family should have the option of having that students’ siblings also attend that school, especially where this will help the student with disabilities. Whenever possible, siblings, including those with disabilities, should be able to attend the same school.

19. Transportation for Students with Disabilities

Barrier: Barriers to accessibility of the education programming offered at a student’s local school that necessitates the provision of bus transportation to more distant schools, combined with the failure to ensure that students with disabilities are consistently, reliably and safely bussed to and from school.

The provisions on the provision of bus transportation to students with disabilities in s. 75 of the Integrated Accessibility Standards Regulation 2011 (IASR) have not been sufficient to effectively remove transportation barriers facing students with disabilities. Stronger provisions are required. The 2018 recommendations for revisions to the transportation provisions in the IASR do not in any way address this need.

#19.1 The Education Accessibility Standard should provide that where a school board provides bussing or other transportation to students with disabilities in order to enable them to attend school, the school board shall ensure and monitor to ensure that:

  1. The school board has consulted with each family to identify the accessibility and accommodation needs of the student with disabilities in relation to transportation, and the bus company and driver has been properly trained to accommodate that need.
  2. Where the school board or its bussing contractor changes the driver assigned to transport the student, the replacement driver is given the same information and training prior to driving the student, or, in the case of an emergency replacement, as soon as possible.
  3. The school board and, where applicable, any contractor it hires, shall retain records of the training provided, including when it was provided and shall make this information public.
  4. The school board should have a readily available official especially during periods when a student is being transported to receive and address phone calls, emails and text messages from a family about problems regarding the student’s transportation.
  5. The school board should document all complaints reported on transportation services, and the company to which it applies. A summary of these should be provided to all members of the school board including its Special Education Advisory Committee and its Accessibility Committee on a quarterly basis and shall make this public on the school board’s website.
  6. The Education Accessibility Standard should make it clear that the fact that the school board has contracted for a private company to provide the student transportation does not remove or reduce the school board’s duties under this accessibility standard or otherwise under the AODA, the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms to ensure that the student has been provided with barrier-free participation in in the school board’s educational programs and opportunities.

Barrier: Some school boards do not ensure that pick-up/drop locations for student bussing are accessible for parents with disabilities.

#19.2 The Education Accessibility Standard should require that the school board and, where applicable, a bus company with which it contracts, will ensure that pick-up and drop-off locations for a student’s bussing are accessible when needed to accommodate the parents or guardians of students with disabilities.

20. Protecting Students with Disabilities from Being Unfairly Denied the Right to Attend School for All or Part of the School Day

Barrier: The arbitrary power of school principals to exclude students from school, outside the disciplinary suspension and expulsion power, that disproportionately impacts on students with disabilities.

The Ontario Human Rights Commission has identified as a human rights issue the sweeping and arbitrary power of any school principal to exclude a student from school. Section 265(1) (m) of Ontario’s Education Act provides:

“265. (1) It is the duty of a principal of a school, in addition to the principal’s duties as a teacher,…

… (m) subject to an appeal to the board, to refuse to admit to the school or classroom a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils; …”

This power can be and is misused, especially to keep some students with disabilities away from school. This is made worse by the power to shorten the length of the school day for students with disabilities. This Framework addresses together the power to exclude a student from school for an entire day and the power to reduce the length of the school day, whether or not they emanate from the same provisions under Ontario’s Education Act.

#20.1 The Education Accessibility Standard should set specific comprehensive, mandatory requirements on when a school board can exercise any power to refuse to admit a student to school for all or part of a school day. It should have no loopholes that would let a principal or teacher exclude a student informally without complying with these requirements.

  1. This should include any time a school board formally or informally asks or directs that a student not attend school, or that the student be removed from school, whether in writing or in a discussion
  2. This should include a school board request or direction that a student only attend school for part of the regular school day.
  3. This does not include a situation where a family requests that a student be absent from school for all or part of a school day, but the school board is willing to let the student attend school.

#20.2 The school board should be required to ensure that a student, excluded from attending school, is provided an equivalent and sufficient educational program. The school board should keep records of and publicly account for its doing so.

#20.3 A refusal to admit should only be imposed when it is demonstrably necessary to protect health and safety of students at school, and only after all relevant accommodations for the student, up to the point of undue hardship have been explored or attempted.

#20.4 A refusal to admit should go no further and last no longer than is necessary. A principal should only resort to a refusal to admit if the principal can demonstrate that the student presents an imminent risk to health or safety which cannot be addressed by lesser measures, such as suspension.

#20.5 If a refusal to admit is to take place, the first resort should be to exclude the student from a specific class, accommodating that student in another class. Only if that can’t be sufficient, should a principal consider excluding the student from that school, accommodating the student at another school. A school board should only refuse to admit a student from any and all schools if it is impossible to accommodate them at any other school at that school board.

#20.6 The Education Accessibility Standard and policy directives from the Ministry of Education should give clear examples of the circumstances when a refusal to admit is permitted, and when it is not permitted.

#20.7 A refusal to admit should not be allowed to last more than five consecutive school days, unless extended by the school board in accordance with this accessibility standard.

#20.8 The burden should be on the school board to justify the refusal to admit. It should not be for the student or the student’s family to justify why the student should be allowed to attend school.

#20.9 When a school board staff decide whether to refuse to admit a student, they should take into account all mitigating considerations that are considered when deciding whether to suspend or expel a student.

#20.10 A school board should not refuse to admit a student with a disability on the ground that school board staff believe they cannot accommodate the student’s needs, e.g. because staff is absent.

#20.11 If, when a refusal to admit is to expire, the school board wants to extend it, the school board must justify it. The student’s family need not prove why the student should be allowed to return to school.

#20.12 An extension of a refusal to admit must first consider excluding the student from a single class, and then the option of excluding the student from that school, and only as a last resort, excluding the student from all schools at that school board.

#20.13 An extension of the refusal to admit should not be permitted if the school board has not put in place an effective alternative option for the student to receive their education while excluded from school.

#20.14 The Education Accessibility Standard should establish a mandatory fair procedure that the school board must follow when refusing to admit a student. These procedures should ensure accountability of the school board and its employees, including:

  1. A student and their families should have all the procedural protections that are required when a school board is going to impose discipline such as a suspension or expulsion.
  2. The prior review and approval of the superintendent should be required, before a refusal to admit is imposed. If it is an emergency, then the superintendent should be required to review and approve this decision as quickly afterwards as possible, or else the refusal to admit should be terminated.
  3. The superintendent should independently assess whether the school board has sufficient grounds to refuse to admit, and has met all the requirements of the school board’s refusal to admit policy (including ensuring alternative education programming is in place for the student).
  1. The principal should be required to immediately notify the student and his or her family in writing of the refusal to admit, the reasons for it, and the duration. That should include outlining steps that the school board has taken or will be taking to expedite a student’s return to school and provide an expected timeline for the completion of these steps.
  2. The principal should immediately tell the student and the student’s family, in clear and plain language, in writing, what a refusal to admit is, its duration, the reasons for it, the steps the school board is taking to expedite the student’s return to school and time lines for those steps, the school board’s process for reviewing that decision, and the family’s right to appeal it (including how to use that right of appeal). This should be provided in a language that the family speaks.
  3. These procedures should again be mandatory any time the school board extends a refusal to admit.
  4. A refusal to admit should not be extended for an accumulated total of more than 15 days (within a surrounding 30 day period) without the independent review and written approval of an executive superintendent of the school board.
  5. No refusal to admit should be extended for an accumulated total of more than 20 days (within a surrounding 45 day period) without the independent review and written approval of the Director of Education.

#20.15 A fair and prompt appeal process should be provided to the parents/guardian and, where appropriate, the student who was refused admission to school, which includes:

  1. The appeal should be to school board officials who had no involvement with the initial decision to refuse to admit or any extensions of it.
  2. The school board should promptly inform the student and the student’s family about how to start an appeal, who decides the appeal, the procedures for the appeal, that the student and family can present reports, support people or experts or any other information they wish, and can have a representative, either a lawyer or other person, to speak for them or assist them with the appeal.
  3. The appeal should include an in-person meeting with the student and family.
  4. The appeal should be heard and decided very promptly along time lines that the Education Accessibility Standard should set.
  5. On the appeal, the school board should have the burden to prove that the refusal to admit was justified, that it went no further and lasted no longer than was necessary, and that proper alternative education programming was provided or offered.
  6. A decision on the appeal should promptly be provided in writing with reasons along time lines that the Education Accessibility Standard should set.

#20.16 The Ministry of Education or the school board should set a unique code for marking attendance for a student who is absent from school for all or part of a day due to a refusal to admit.

#20.17 Each principal should be required to immediately report to their superiors in writing whenever a student is excluded from school, including the student’s name, whether the student has a disability, the reason for the exclusion, the intended duration of the exclusion, and the substitute educational programming that will be provided to the student while excluded from school The school board should centrally collect these reports and should make public quarterly aggregated data (without any names or identifying information) on the number of refusals to admit, reasons for them, percentage that involve any kind of disability, the number of days missed from school, and measures to provide alternative education during refusals to admit.

#20.18 To help ensure that refusals to admit are not used due to a failure to accommodate a

student’s disability up to the point of undue hardship, each school board should create an emergency fund for accelerating education disability accommodations needed to facilitate a student’s remaining at or promptly returning to school, in connection with an actual or contemplated refusal to admit.



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Quickly Send Us Feedback On Our Draft Brief to the Ontario Government’s Rushed Public Consultation on Its Proposal to Hold a Five-Year Pilot Project to Allow Electric Scooters in Ontario


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities http://www.aodaalliance.org [email protected] Twitter: @aodaalliance

September 6, 2019

SUMMARY

We welcome your feedback by Tuesday, September 10, 2019, on our draft brief to the Ford Government’s rushed public consultation on its proposal to allow electric scooters (e-scooters) in Ontario for a five year pilot project. Our draft brief is set out below. Feedback to us can be sent to [email protected] or on Twitter @aodaalliance

We regret giving you so little time to send us feedback. the Government gave us no choice, since its consultation was just announced last week, and ends on September 12, 2019. We had to battle to get the consultation extended from 48 hours to 2.5 weeks!

We will do our best to address your feedback as we finalize this draft. Please remember that this draft was prepared in a great hurry. Thanks to all who have sent us your feedback on the e-scooter issue, and to the wonderful Osgoode Hall Law School who volunteered to help with our work on this brief.

We have continued to secure good media coverage for the e-scooter issue from the disability perspective. As previously reported to you, we got this issue covered by the Globe and Mail, the Toronto Star, City TV News, among several other media outlets.

Since then, there has been more coverage. On September 4, 2019, AODA Alliance Chair David Lepofsky was interviewed on the e-scooter issue on CBC morning radio programs in Toronto, Windsor, Thunder Bay, Sudbury, and Kitchener-Waterloo, as well as on Ontario Morning, the program that covers other parts of Ontario. He also pre-recorded an interview for the London CBC morning program. It was supposed to run on September 5, 2019. Capping this off, a clip from one of those interviews was included in an item on the problems with e-scooters that ran on CBC Radio’s national news program The World at 6 that ran at dinnertime on September 5, 2019. All that coverage took place in one week!

There have now been 219 days since the Ford Government received the final report of the Independent Review of the AODA’s implementation prepared by former Lieutenant Governor David Onley. Doug Ford’s Government has still not announced a plan to implement the Onley report. Instead, it has proposed this troubling e-scooter pilot project which threatens to create even more new accessibility barriers against Ontarians with disabilities.

MORE DETAILS

Draft AODA Alliance Brief to the Ontario Government on Its Proposal to Hold a Five-Year Pilot Project Allowing Electric Scooters in Ontario

September 6, 2019

Note: This is only a draft and has not yet been submitted to the Ontario Government. Feedback on this draft is welcomed before Tuesday, September 10, 2019. We apologize for this rushed period. The Ontario Government has set an extremely short deadline for submitting input on its proposal. We are rushing to meet that deadline. Send us feedback at: [email protected] or on Twitter @aodaalliance

Introduction

The AODA Alliance submits this brief to the Ontario Government as part of the Government’s short public consultation on its proposal to hold a five-year pilot project to allow electric scooters (e-scooters) in Ontario. E-scooters are electric motor vehicles which can travel as fast as 32 kilometers per hour or faster. Under the Government’s proposal e-scooters would be allowed to zip at up to 32 kilometers per hour, anywhere a bicycle is allowed. The Government is not proposing to require the e-scooter owner or driver or vehicle itself to carry insurance, or to have a license. We include as Appendix 1 to this brief the Government’s original August 28, 2019 online posting that describes its proposed pilot project.

In summary, the AODA Alliance strongly opposes the proposed pilot project. This pilot project raises serious safety concerns for the entire public. Ontarians with disabilities are especially vulnerable to this safety risk. Experience in other jurisdictions where e-scooters have been allowed shows that they present serious public safety and disability accessibility problems.

the Ford Government repeatedly emphasized that it is focusing on what matters most to Ontarians. We emphasize that protecting public safety matters most for Ontarians.

E-scooters are motor vehicles, pure and simple. At a bare minimum, if they are to be permitted at all, e-scooters, like other motor vehicles, should have to be licensed. Their drivers should also have to be licensed, only after they have completed needed and specific training. Both the driver and the motor vehicle should have to carry sufficient insurance.

Their other risks should be subject to strict safety regulations. They should be required to emit a beep to enable people with vision loss to know they are coming. Rental of e-scooters should be forbidden. Regulation of e-scooters can later be reduced if shown to be justified, and that doing so won’t compromise on public safety and disability accessibility.

If, despite these concerns, Ontario were to hold a pilot project with e-scooters, it should be far shorter than five years. It should be restricted to a narrow area, not the entire province, and only with the consent of the community where the pilot is to occur. Very strict regulation of e-scooters should be in place.

Just because parts of the US and some other jurisdictions have allowed e-scooters does not mean that they are inevitable in Ontario. Ontario should not repeat the serious mistakes that other jurisdictions have made.

The Ontario Government Has an Important Duty to Prevent the Creation of New Disability Barriers

This brief will show that the Government’s proposal to allow e-scooters in Ontario threatens to create new accessibility barriers against Ontarians with disabilities. Under the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act, the Ontario Government has a duty to prevent the creation of new accessibility barriers against Ontarians with disabilities. For example, the AODA requires the Ontario Government to lead Ontario to become accessible to people with disabilities by 2025.

As the final report of the most recent Independent Review of the AODA’s implementation, prepared by former Lieutenant Governor David Onley revealed, Ontario is well behind schedule for reaching that goal. The Onley report found that Ontario remains a province full of “soul-crushing barriers”. Barriers in the built environment remain a serious example of this. The creation of any new barriers in the built environment would only make this worse.

The AODA Alliance elsewhere documented that the new Ontario Government has done a poor job of implementing the AODA. For the Government to take new action that would create more disability accessibility barriers, such as by allowing e-scooters, is an especially serious concern.

No Government Should Ever Compromise on Public Safety

We are deeply concerned that the Ontario Government’s proposal of a five-year pilot project with e-scooters in Ontario was arrived at without proper concern for or protection of public safety. As addressed later in this brief, e-scooters are known to present a danger to public safety.

According to a troubling CityTV report, the Doug Ford Government admitted it had compromised between protecting public safety on the one hand, and advancing business opportunities and consumer choice on the other, when it designed its controversial proposal to permit electric scooters in Ontario for a 5-year pilot. The August 30, 2019 City TV television news story that aired in Toronto in the evening news revealed this troubling new information, and included a comment by AODA Alliance Chair David Lepofsky on it:

“We reached out to the Ministry of Transportation, who told City News in a statement: the proposed pilot project is another example of how the province is helping businesses expand and give consumers more choice. When asked why the project is set to last a long five years, it said: This proposed time line creates a compromise between road safety and access for businesses and consumers. If approved, the five year pilot will take a measured approach that will promote road safety, foster business innovation and open the Ontario market to this new and growing sector.

But Lepofsky fears the Government is prioritizing business over safety.

(Quotation from David Lepofsky in the news story) “the Government’s obligation is to protect public safety, not to decide, well, we’ll do some compromise between making sure people don’t get hurt and making sure other people can make some more money.”

We again call on the Ford Government to put the brakes on this proposal and to ensure that there is no risk to public safety, before even contemplating any pilot project with electric scooters. The Government must never compromise on the safety of the public, such as vulnerable people with disabilities, especially when it does so in the interests of some businesses wishing to expand into Ontario. Public Safety must always come first, and its protection should be unremitting and uncompromising.

Now that it has been revealed that the Government’s ill-conceived pilot project was based on an unacceptable compromise on public safety, the proposed pilot project should be withdrawn. The Government should go back to the drawing board.

E-Scooters Have Been Proven to Present a Safety Threat Both to Innocent Pedestrians and to the E-Scooter Driver Themselves

Our review of media articles and other sources posted on the internet quickly revealed that e-scooters are well-known to and well-documented to have posed a danger of personal injury, and in some cases, even of death. Injuries have been sustained by innocent pedestrians and by the e-scooter drivers themselves.

The AODA Alliance was able to quickly locate this information from a web search. As such, the Ontario Government, engaging in due diligence, should have been able to do the same.

The following is a very brief review of some of what we found, prepared in a hurry due to the Government’s very short public consultation deadline on this issue. We point especially to the article on e-scooters in the September 4, 2019 edition of the New York Times, set out in full as an appendix 2 to this brief.

Euronews reported on June 18, 2019, that Paris intended to implement speed limits and parking restrictions for e-scooters following its first death on an electric scooter. The French transport minister also announced a nationwide ban on e-scooters on sidewalks, effective September. A week prior to the announcements, a 25-year-old man riding an e-scooter had died after being hit by a truck. The report details other incidents, involving both riders and bystanders. In Sweden, a 27-year-old man died in a crash while riding one of the electric vehicles in May. In Barcelona, a 92-year-old woman died in August 2018 after she was run over by an e-scooter making it the first case of a pedestrian being killed by the electric vehicle.

On July 26, 2019, CBC News reported that since e-scooters became available in Calgary, Calgary emergency rooms have seen 60 patients with e-scooter-related injuries. The report added that [a]bout a third of them were fractures and roughly 10 per cent were injuries to the face and head. These figures have triggered a study by the University of Calgary.
The Copenhagen Post reported on August 5, 2019, that a Capital Region release had identified 100 scooter-related injuries this year in Copenhagen. Among those injured were several pedestrians, although it sounds like most of them tripped over discarded scooters. Only one ended up in hospital after being hit by one.
The Guardian reported on August 11, 2019, that Paris had experienced its third e-scooter-related death in four months: A 30-year-old man has been killed after being hit by a motorbike while riding his e-scooter on a French motorway. The report went on to state that [t]he scooter rider was not wearing a helmet and was reportedly travelling in the fast lane when the motorbike hit him from behind, despite the fact that [u]sing scooters on motorways is banned in France. Moreover, The day before the accident, a 27-year-old woman suffered serious head injuries after falling from an e-scooter she was using in a cycle lane in Lyon. A few days earlier a 41-year-old man had been seriously injured after falling from his e-scooter in Lille. Finally, the report provided details on another, earlier e-scooter-related death in France: An 81-year-old man died after he was reportedly knocked over by an e-scooter in Levallois-Perret, a Parisian suburb, in April.
CityNews reported on August 13, 2019, as part of a short survey of European regulations, that German police say seven people have been seriously injured and 27 suffered minor injuries in scooter accidents since mid-June, saying most were due to riders behaving carelessly. Extend the Current Public Consultation

If, despite the foregoing concerns, the Ontario Government plans to continue with the current e-scooter public consultation, it should significantly lengthen it. On Wednesday, August 28, 2019, just two days before the Labour Day long weekend, the Doug Ford Government quietly posted online, for a meager 48-hour public consultation, its proposal to allow e-scooters in Ontario for five years, for a trial period. Thankfully we were alerted to this by an AODA Alliance supporter, who was concerned about the safety risk that e-scooters posed for Ontarians with disabilities.

On August 29, 2019, the AODA Alliance quickly swung into action on this helpful tip. So did others, including Balance for Blind Adults and the CNIB. The media showed interest quite quickly.

Within hours, the Ford Government gave some ground, though not all the ground we had requested. Late on Thursday, August 29, 2019, the Government announced that it was extending its consultation on this issue to September 12, 2019.

For the Government to announce a public consultation on the eve of a long weekend is a well-known strategy for rushing forward with a decision to implement something new, without truly consulting the public, while wishing to appear that it has genuinely consulted the public. It is a fair inference to draw that the Government has been lobbied by companies that rent e-scooters in the U.S. or elsewhere, in order to get the Government to permit them in Ontario. As noted later in this brief, the proposal of an excessively long five -year pilot project suggests an intent to get e-scooters deeply embedded in Ontario, and to make it harder to get them removed or effectively controlled.

It is essential for this consultation process to immediately slow down. If the Government is not prepared to withdraw its current consultation and go back to the drawing board, with a stronger commitment to protecting public safety, it should at least substantially lengthen the current public consultation period beyond September 12, 2019

Recommendation #1
If it is not prepared to withdraw its current public consultation on e-scooters, the Ontario Government should at least extend the consultation period to October 31, 2019.

Do Not Allow Rental of E-Scooters

It appears that at least in some if not most of the other jurisdictions where e-scooters have been allowed, a very common way that they are used is by companies renting them to the public, rather than by individuals buying them. Of course, the option to buy them was presumably available in those jurisdictions as well. It is reasonable to suppose that the lobbying of the Ford Government that has led to the current proposal for a five-year e-scooter pilot program comes from those big companies known in other jurisdictions to provide e-scooter rentals. See further the September 4, 2019 New York Times article set out in Appendix 2, at the end of this brief.

By this rental model, a member of the public gets an app on their phone to sign up for these rentals. E-scooters are left around the city, tagged with a GPS chip. The individual uses the app to find the nearest e-scooter that is available. They pick it up and ride away. They presumably do not go to a store, or deal with anyone directly and in person from the rental company. When they are finished with the e-scooter, they leave it on a sidewalk, wherever they wish, and walk away. That e-scooter then sits there until another person, using the app, decides to take it away and ride it, leaving it somewhere else, once they are done.

The rental model for e-scooters presents several serious problems. It should be forbidden.

First and foremost, having users randomly leave an e-scooter on a sidewalk or other like public place when they are finished with it creates significant and unpredictable new barriers against people with disabilities. these barriers can instantly pop up anywhere, unannounced.

For people who are blind, deafblind or have low vision, they are a serious and unexpected tripping hazard. They should not have to face the prospect of e-scooters potentially lying in their path at any time. we have received feedback about concerns with this from people with vision loss elsewhere where this has been allowed.

As well, leaving an e-scooter randomly on sidewalks presents a serious new barrier for people who use a wheelchair, walker or other mobility device. For them, an e-scooter can prevent them from being able to continue along an otherwise-accessible sidewalk. The option of going up on the grass or down onto the road in the path of car traffic may not be accessible, feasible or safe. This is especially so for people with temporary or permanent balance issues.

The sidewalks or other public spaces should not be made available to the private companies who rent e-scooters as free parking spaces, fully subsidized by the taxpayer. It would not be good enough for the Government to try to regulate where the scooters are left, e.g. by setting regulations that they not block the sidewalk. This would be very hard to enforce, since police are not on the scene wherever these e-scooters would be left. To the contrary, there needs to be a strict ban in place precluding them ever being left in the sidewalk, given the experiences of which we have learned in other jurisdictions.

Beyond the foregoing concerns, the rental model presents other safety risks. Under that model, a person could go into a bar, drink to excess, walk outside, look on their smart phone’s e-scooter app, and quickly find a nearby e-scooter to ride. That would expose the public to added risks. As it is, drunk driving is a troubling problem in our society that leads to deaths and serious injuries. Our Government should not expose the public to any more such risks.

Were an intoxicated person to walk into a car rental office and try to rent a car, they would have to deal with a human being, who no doubt would refuse to hand over the car keys. In the case of renting e-scooters via an app, there is no comparable control at the source, such as a sales person, to prevent this.

It is no answer to say that drunk driving is already illegal. We already know that that law is too often disobeyed, with innocent people paying the price with permanent injuries or their lives. The Government should not make e-scooters available, increasing that risk.

Recommendation #2
The rental of e-scooters should be strictly forbidden, even if private ownership of an e-scooter by a user of that e-scooter were to be permitted.

Recommendation #3
There should be a strict ban on leaving an e-scooter in a public sidewalk or like location. If an e-scooter is left in such a place, it should be subject to immediate confiscation as well as a strict penalty.

Require Beeping Sound from E-Scooters When Powered On

E-scooters are very quiet, if not silent, when being operated. It presents a significant safety risk for a virtually silent e-scooter to be hurtling towards a blind person at 32 kph. This is so whether the e-scooter is being driven on a road, or on a sidewalk) (where they are supposedly not to be permitted). They pose a similar risk to a sighted pedestrian who can hear, but who is not looking in the direction from which the e-scooter is coming.

Recommendation #4
If e-scooters are to be permitted in Ontario, they should be required to make an ongoing beeping sound when they are powered on, to warn others of their approach.

Reduce the Maximum Speed Well Below 32 KPH

The faster an e-scooter goes, the less time its driver or a pedestrian has to avoid a collision. Moreover, the fast the e-scooter goes, the greater the potential harm caused by a collision.

There is no magic reason why an e-scooter should be allowed to travel at 32 KPH, just because e-bikes are allowed to go at that speed.

The Ontario Government should study the options for speed limits from other jurisdictions to determine the safest maximum speed, before embarking on any pilot project. A considerably slower speed limit should be set. It can always be raised later, if that is justified.

Recommendation #5
The speed limit for e-scooters should initially be set much lower than 32 KPH, such as 15 or 20 KPH, until a strong showing can be made that a higher speed limit poses no safety threat to the public.

Require That an E-scooter Driver Have a License and Proper Training

Because an e-scooter is a motor vehicle which can cause significant personal injuries to innocent pedestrians, a person should be required to get a license before they can drive an e-scooter. To qualify to get a license, a person should have to take appropriate training and show sufficient proficiency, including sufficient knowledge about the rules of the road and the threat to personal injuries that an e-scooter can cause.

Recommendation #6
A person wishing to drive an e-scooter should be required to first take required training on its safe operation and on the rules of the road, and then to obtain a license.

E-Scooters Should Be Licensed and Display a License Plate Number
It is important for each e-scooter to be licensed, and to display a license plate number, as is required for cars and motorcycles. This will make it far, far easier to enforce the law in case a person, driving an e-scooter, collides with a pedestrian, and then flees the scene. Without such a license requirement, it may well be impossible for an injured pedestrian to effectively identify the e-scooter that hit them, and thereby, to trace the driver in question.

Recommendation #7
Each e-scooter should be required to be licensed and to display a readily-seen license plate number.

The E-scooter’s Owner and Driver Should Be Required to Carry Valid Insurance

It is widely recognized that motor vehicles pose a risk to personal injury of other motorists and pedestrians. As a result, both the owner and driver of a motor vehicle are required to carry liability insurance. It is an offence to fail to carry proper insurance.

The same should be so for the owner and driver of an e-scooter. It is important for both to be insured, as is the case for other motor vehicles such as cars and trucks, so an injured victim can recover compensation from either or both, if injured.

This is especially important where, as here, it is known that e-scooters can pose a real risk of personal injury. The victims of such injuries, and the taxpayers who pay for our health system, should not be left holding the bag when it comes to the consequences of the use of e-scooters.

Recommendation #8
The owner and driver of an e-scooter should be required to carry sufficient liability insurance for injuries or other damages that the e-scooter causes to others.

Helmets Should Be Required for All E-Scooter Drivers, No Matter What Their Age Is

The use of an e-scooter can result in injuries to the driver, and not just to innocent pedestrians. This obviously can include head injuries.

A helmet is an important safety measure to at least try to reduce some of the harmful impacts on the driver of a fall from the e-scooter. Yet the Ford Government is only proposing during its pilot project to require an e-scooter driver to wear a helmet if they are between the ages of 16 and 18.

Yet people older than 18 are equally exposed to the risk of head injuries. This creates an undue risk of increased injuries to drivers. That is bad for the drivers themselves and their families. It also creates an unnecessary and unfair burden for the taxpayer, who will have to cover the health and other social safety net costs of those injuries to the e-scooter drivers.

Recommendation #9
All e-scooter drivers, regardless of their age, should be required to wear a helmet whenever operating an e-scooter.

If There Is to Be a Pilot Period with E-scooters, It Should Be Much Shorter Than Five Years and For A Smaller Part of Ontario

The Ford Government is proposing an e-scooter pilot project for the entirety of Ontario, to last fully five years. There is serious reason to doubt whether the Government means this as a pilot project. It appears far more likely that the Government means for this to be a way to embed e-scooters as a done deal, a permanent fixture in Ontario. After five years, the Government may well be hoping that it will be much harder to reduce or eliminate them, if already entrenched around Ontario. We anticipate that this is a real problem facing those jurisdictions that have already allowed e-scooters to proliferate, and that now have serious concerns about their impact.

There is no reason for a pilot project to last for a long five years. A much shorter period is warranted, in order to assess their impact. This is so especially since there are other jurisdictions which have already in effect served as a pilot project for Ontario. They have allowed e-scooters, with all the accompanying problems. As noted earlier, Ontario should study their impact in those other jurisdictions first, rather than exposing Ontarians to the risk of personal injury. Only if that study reveals that e-scooters can be safely introduced in Ontario should a pilot project be conducted in Ontario.

If a pilot project is to take place in Ontario, it should be conducted for a far shorter period, such as six months. A proper assessment of their impact should be assigned to an arms-length organization with expertise in public safety.

There is no reason why a pilot project should take place across the entirety of Ontario. Instead, a specific region or community should be selected. That community should first be given the right to consent or reject the proposal on behalf of its citizens.

Recommendation #10
No e-scooter pilot project should be held in Ontario until the Ontario Government effectively studies the impact on public safety of e-scooters in jurisdictions that have allowed them, and on options for regulatory controls of them, and has made the details of these public. A pilot project should only be held in Ontario if public safety can be fully and effectively protected.

Recommendation #11
If Ontario is to hold an e-scooter pilot project, it should only take place for a period much shorter than five years, e.g. six months, and should only take place in a specific community that has consented to permit that pilot project there.

Recommendation #12
If Ontario is to hold an e-scooter pilot project, the Ontario Government should retain a trusted independent organization with expertise in public safety to study the impact of e-scooters during that pilot project, and to make the full results of that study public.

A Ban on Riding E-scooters on Sidewalks Is Insufficient to Address Public Safety Concerns

To address the safety and accessibility concerns in this brief, it would be insufficient to simply ban the riding of e-scooters on sidewalks. e-scooters present safety issues on public roads, not just on sidewalks. Moreover, it will be extremely difficult if not impossible to effectively police a ban on e-scooters on sidewalks. Even though bicycles are not supposed to be ridden on public sidewalks, pedestrians know that a good number of cyclists nevertheless ride their bikes on sidewalks from time to time, without much fear of law enforcement.

Moreover, especially if an e-scooter is not licensed and does not bear a plainly visible license plate number, it would too often be hard if not impossible for an injured pedestrian to report to police on someone who unlawfully rode an e-scooter on the sidewalk. It will be hard if not impossible to reliably identify the offender in a way that will stand up in court. Eyewitness identification evidence is notoriously hard to present in court.

Recommendation #13
The Government should not treat a ban on riding e-scooters on the sidewalk as a sufficient protection against the threat to public safety that e-scooters present.

There Should Be No Comparable Restrictions on Powered Scooters Used as a Mobility Aid for People with Disabilities

We emphasize that in raising these concerns with e-scooters, nothing should be done to restrict the current availability and use of powered scooters as a mobility aid for people with various disabilities. These are not in the same class of vehicle as e-scooters, addressed in this brief. They do not present the concerns raised in this brief. As we understand it, they do not travel at the kinds of speeds that an e-scooter can travel. They are an essential form of adaptive technology for people with disabilities.

Recommendation #14
nothing should be done to reduce the availability or use of powered mobility devices used by people with disabilities.

There Are Important Differences Between E-bikes and E-scooters

It would be wrong for the Government to proceed on the basis that it should allow e-scooters since it allows e-bikes, for several reasons. First, if, as we have shown, e-scooters present a safety risk, that safety risk neither magically vanishes nor in any way reduces just because Ontario now allows e-bikes.

Second, there are some important differences between the two. A person cannot ride an e-bike unless they already know how to ride a bike. In contrast, a person with no prior experience can, in some other jurisdictions, pay a rental fee, hop on an e-scooter, and immediately start racing in public at 32 KPH. As well, we are not aware of any companies that rent e-bikes on the terms used elsewhere for e-scooters, where they are regularly left as barriers in the middle of sidewalks.

Because this e-scooter consultation has been so rushed, we have not had a sufficient opportunity to explore the full ramifications of e-bikes beyond this. This is yet another reason why this hasty public consultation should be withdrawn or lengthened.

We also emphasize that there are key differences between an e-scooter and a non-motorized bicycle. While some can ride a bike quite fast, a novice cannot simply hop on a bike and race at 32 KPH. Moreover, a regular bike is not a motor vehicle. An e-scooter is a motor vehicle.

Appendix 1 The Ford Government’s 48-Hour Pre-Labour Day Public Consultation on Allowing Electric Scooters in Ontario

Originally posted at https://www.ontariocanada.com/registry/view.do?postingId=30207&language=en

Kick Style Electric Scooter (E-Scooter)

Background:

The Ministry of Transportation (MTO) is strongly committed to promoting the highest standards of safety for all Ontarians who travel on our roads, including drivers, cyclists, and pedestrians, and will continue working with all our partners on measures that enhance this objective. Trends and technology are evolving, with new forms of vehicles such as e-scooters entering the market.

MTO is interested in new and environmentally-friendly vehicles, however it is important that new vehicles are constructed with appropriate safety features to allow safe integration with all other road users.

MTO is considering the following proposal and invites you to submit your comments for consideration.

E-Scooters

E-scooters have been launched in more than 125 cities across the United States. They represent a new way for residents to get around their communities, are seen as providing first and last mile connections to transit, and represent an opportunity to reduce traffic congestion.

E-scooters are currently not permitted to operate on roads in Ontario as they do not meet any federal or provincial safety standards for on-road use. These devices may only be operated where Ontario’s Highway Traffic Act (HTA) does not apply such as private property.

The ministry is interested in exploring the feasibility of these vehicles safely integrating with other road users while promoting road safety andfostering business innovation in the province.

MTO is soliciting public comment on potentially permitting the use of e-scooters on roads in Ontario as part of a pilot project. This will allow the ministry to ensure e-scooters can be safely integrated with other road users before a final, permanent, regulatory decision is made.

Proposed E-Scooter Pilot Framework:

Pilot Duration:

The length of the pilot will be for a prescribed period of 5 years, to ensure sufficient time to effectively monitor and evaluate the pilot results.

Operator/Rider/Vehicle Requirements Include:

Can operate on-road similar to where bicycles can operate; prohibited on controlled access highways Minimum operating age 16
Bicycle helmet required for those under 18 years old
No passengers allowed
Maximum operating speed 32 km/h
No pedals or seat allowed
Must have 2 wheels and brakes
Maximum wheel diameter 17 inches
Must have horn or bell
Must have front and back light
Maximum weight 45kg and Maximum power output 500W

Data Collection:

Municipalities to remit data to the province, as requested

Appendix 2 The New York Times September 4, 2019

Originally posted at https://www.nytimes.com/2019/09/04/technology/san-diego-electric-scooters.html?smid=nytcore-ios-share

Welcome to San Diego. Dont Mind the Scooters.

A year ago, electric rental scooters were hailed as the next big thing in transportation. But their troubles in San Diego show how the services have now hit growing pains.

Companies distribute scooters around cities, often on sidewalks. In the area around Mission Beach, one of San Diegos main beaches, 70 scooters lined a single side of one block in July. By Erin Griffith

Sept. 4, 2019

SAN DIEGO The first thing you notice in San Diegos historic Gaslamp Quarter is not the brick sidewalks, the rows of bars and the roving gaggles of bachelorette parties and conferencegoers, or even the actual gas lamps.

Its the electric rental scooters. Hundreds are scattered around the sidewalks, clustered in newly painted corrals on the street and piled up in the gutters. In early July, one corner alone had 37. In the area around Mission Beach, one of the citys main beaches, a single side of one block had 70. Most sat unused.

Since scooter rental companies like Bird, Lime, Razor, Lyft and Uber-owned Jump moved into San Diego last year, inflating the citys scooter population to as many as 40,000 by some estimates, the vehicles have led to injuries, deaths, lawsuits and vandals. Regulators and local activists have pushed back against them. One company has even started collecting the vehicles to help keep the sidewalks clear.

My constituents hate them pretty universally, said Barbara Bry, a San Diego City Council member. She called for a moratorium on the scooters when they arrived, saying they clogged sidewalks and were a danger to pedestrians.

San Diegos struggle to contain the havoc provides a glimpse of how reality has set in for scooter companies like Bird and Lime. Last year, the services were hailed as the next big thing in personal transportation. Investors poured money into the firms, valuing Bird at $2.3 billion and Lime at $2.4 billion and prompting an array of followers.

At the end of a rental period, a rider leaves the scooter for the next customer to retrieve. CreditTara Pixley for The New York Times

The scooter companies distribute their electric vehicles around cities and universities often on sidewalks and rent them by the minute via apps. At the end of a rental period, a rider leaves the scooter for the next customer to retrieve. Scooter speeds vary by company, model and city, as do helmet laws, although helmets generally are not required.

But now, skepticism about scooter services is rising. Some cities, including San Francisco, Paris, Atlanta and Portland, Ore., have imposed stricter regulations on scooter speed limits, parking or nighttime riding. Columbia, S.C., has temporarily banned them. New York recently passed legislation that would allow scooters to operate in some parts of New York City, but not in Manhattan.

Safety has become a big issue. A three-month study published in May from the Centers for Disease Control and Prevention and the Public Health and Transportation Departments of Austin, Tex., found that for every 100,000 scooter rides, 20 people were injured. Nearly half of the injuries were to the head; 15 percent of those showed evidence of traumatic brain injury.

Bird, Lime and Skip are trying to secure new funding, according to three people familiar with the talks, who declined to be identified because the discussions were not finished. In May, Lime replaced its chief executive; several other top executives also left. And in July, Birds chief executive called a report about the companys losses fake.

Scooters are a fun and convenient mode of transportation that really does put people at risk and introduces significant spatial challenges to the civic commons, said Adie Tomer, a metropolitan policy fellow at the Brookings Institution. Those tensions are not going anywhere anytime soon.

Bird declined to comment.

Many scooter companies miscalculated how long the scooters would last often not long enough for rental fees to cover their costs and are struggling with profitability, acknowledged Sanjay Dastoor, Skips chief executive. His company has designed a way to produce more durable scooters that can be repaired more easily and last long enough to turn a profit, he said, allowing it to run a safe fleet that we are proud of.

Lindsey Haswell, Limes head of communications, said new industries often faced regulatory challenges, but our investors are willing to take the long view. She added that the issues in San Diego did not reflect the global scooter market. Lime has provided more than three million trips in San Diego, she said, and has as many supporters as we have detractors there.

Hans Tung, an investor at GGV, which has backed Lime, said he was encouraged by the companys progress and was confident it would make its scooters safe and profitable. I dont see how that couldnt be achieved, he said.

Bird and Lime deployed their scooters in San Diego in February 2018, followed by other companies. The start-ups pitched themselves as environmentally friendly, a message that jibed with San Diegos goal to reduce greenhouse emissions.

San Diego initially took a hands-off approach. The scooters became popular, with an average of 30,000 riders per day, according to city officials.

Millennials and post-millennials want to live in a thriving, bustling city that has dynamic choices for mobility, said Erik Caldwell, San Diegos deputy head of operations for smart and sustainable communities.

But as more scooters flooded San Diego last summer, local business owners and residents began objecting. Alex Stennet, a bouncer at Coyote Ugly Saloon in the Gaslamp District, said people tripped over the vehicles and threw them around. He said he had witnessed at least 20 scooter accidents in front of Coyote Ugly.

ScootScoop has deals with 250 local businesses to remove scooters; it has towed more than 12,500. CreditTara Pixley for The New York Times

Dan Borelli, who owns a bike rental shop called Boardwalk Electric Rides in Pacific Beach, said the scooters frequently blocked the entrance to his store. In July 2018, he teamed up with John Heinkel, owner of a local towing company, to haul away scooters that they deemed to be parked on private property. They charge Bird, Lime and others a retrieval fee of $50 per scooter, plus $2 for each day of storage.

Their company, ScootScoop, has essentially turned them into scooter bounty hunters. They said they have struck deals with 250 local businesses and hotels and have towed more than 12,500 scooters. Some scooter companies have paid to get them back, they said.

In March, Lime and Bird sued Mr. Borelli and Mr. Heinkel for the scooter removals. ScootScoop countersued Bird and Lime last week.

Other cities have called ScootScoop for advice, Mr. Borelli said. Mr. Heinkel said the scooter companies underestimated them. They assumed we were two hillbillies in a pickup truck, as opposed to business owners, he said.

Limes Ms. Haswell said Mr. Borelli and Mr. Heinkel are opportunistic businessmen who troll the streets stealing scooters, with no respect for the law, trying to make a profit at San Diegos expense.

Late last year, the scooters turned from annoyances into hazards. In December, a man in Chula Vista, a San Diego suburb, died after he was hit by a car while riding a Bird scooter, according to the Chula Vista Police Department. A tourist died a few months later after crashing his rental scooter into a tree. Another visitor died of blunt force torso trauma after his scooter collided with another, the San Diego Police Department said.

The department said it counted 15 serious injury collisions involving scooters in the first half of this year. Last month, three separate scooter-related skull fractures happened in one week.

On one day in July, there were 150 available Bird scooters within a two-block radius in Mission Beach.CreditTara Pixley for The New York Times

Scooter parking corrals were introduced in July as part of San Diegos new rules.CreditTara Pixley for The New York Times
As the injuries piled up, Safe Walkways, an activist group, amassed hundreds of members in a Facebook group to oppose the scooters and file complaints to government agencies. In April, around 50 protesters gathered on Mission Beachs boardwalk with signs bearing messages like Safety Not Scooters and BoardWALK.

Lawsuits have also piled up. Clients of Matthew Souther, an attorney at Neil Dymott, filed a potential class action suit in March that accused Bird, Lime and the City of San Diego of not complying with disability rights laws to keep sidewalks clear. He said he was working on a dozen other injury lawsuits against scooter companies.

San Diego has started cracking down on the scooters. In July, the city enacted rules restricting where they could be parked and driven and issued permits for 20,000 scooters, across all companies, to operate. In three days that month, authorities impounded 2,500 scooters that violated parking rules. San Diego later sent notices of violations to Bird, Lyft, Lime and Skip.

Last month, San Diego told Lime that it planned to revoke its permit to operate in the city because of the violations, pending a hearing.

Christina Chadwick, a spokeswoman for San Diegos mayor, Kevin Faulconer, said the scooter operators had been warned that the city would aggressively monitor them.

To deal with critics and improve safety and costs, the scooter companies have upgraded their fleets with sturdier scooters. Bird has said its Bird Zero model, which makes up a majority of its fleet, lasts an average of 10 months, compared with three months for past models. Skip recently announced a scooter with modular parts, which makes repairs easier.

And after a year recalling scooters with cracked baseboards and batteries that caught fire, Lime has introduced new vehicles with bigger wheels and baseboards, as well as interchangeable batteries and parts.

Ms. Haswell said Lime was eager to show the progress it had made. We admit that we havent always gotten it right in San Diego, she said.

Erin Griffith reports on technology start-ups and venture capital from the San Francisco bureau. Before joining The Times she was a senior writer at WIRED and Fortune. @eringriffith

A version of this article appears in print on Sept. 4, 2019, Section B, Page 1 of the New York edition with the headline: San Diegos Scooter Tryout Gets Off to a Bumpy Start. Order Reprints




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Quickly Send Us Feedback On Our Draft Brief to the Ontario Government’s Rushed Public Consultation on Its Proposal to Hold a Five-Year Pilot Project to Allow Electric Scooters in Ontario


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

Quickly Send Us Feedback On Our Draft Brief to the Ontario Government’s Rushed Public Consultation on Its Proposal to Hold a Five-Year Pilot Project to Allow Electric Scooters in Ontario

September 6, 2019

          SUMMARY

We welcome your feedback by Tuesday, September 10, 2019, on our draft brief to the Ford Government’s rushed public consultation on its proposal to allow electric scooters (e-scooters) in Ontario for a five year pilot project. Our draft brief is set out below. Feedback to us can be sent to [email protected] or on Twitter @aodaalliance

We regret giving you so little time to send us feedback. the Government gave us no choice, since its consultation was just announced last week, and ends on September 12, 2019. We had to battle to get the consultation extended from 48 hours to 2.5 weeks!

We will do our best to address your feedback as we finalize this draft. Please remember that this draft was prepared in a great hurry. Thanks to all who have sent us your feedback on the e-scooter issue, and to the wonderful Osgoode Hall Law School who volunteered to help with our work on this brief.

We have continued to secure good media coverage for the e-scooter issue from the disability perspective. As previously reported to you, we got this issue covered by the Globe and Mail, the Toronto Star, City TV News, among several other media outlets.

Since then, there has been more coverage. On September 4, 2019, AODA Alliance Chair David Lepofsky was interviewed on the e-scooter issue on CBC morning radio programs in Toronto, Windsor, Thunder Bay, Sudbury, and Kitchener-Waterloo, as well as on Ontario Morning, the program that covers other parts of Ontario. He also pre-recorded an interview for the London CBC morning program. It was supposed to run on September 5, 2019. Capping this off, a clip from one of those interviews was included in an item on the problems with e-scooters that ran on CBC Radio’s national news program The World at 6 that ran at dinnertime on September 5, 2019. All that coverage took place in one week!

There have now been 219 days since the Ford Government received the final report of the Independent Review of the AODA’s implementation prepared by former Lieutenant Governor David Onley. Doug Ford’s Government has still not announced a plan to implement the Onley report. Instead, it has proposed this troubling e-scooter pilot project which threatens to create even more new accessibility barriers against Ontarians with disabilities.

          MORE DETAILS

Draft AODA Alliance Brief to the Ontario Government on Its Proposal to Hold a Five-Year Pilot Project Allowing Electric Scooters in Ontario

September 6, 2019

Note: This is only a draft and has not yet been submitted to the Ontario Government. Feedback on this draft is welcomed before Tuesday, September 10, 2019. We apologize for this rushed period. The Ontario Government has set an extremely short deadline for submitting input on its proposal. We are rushing to meet that deadline. Send us feedback at: [email protected] or on Twitter @aodaalliance

Introduction

The AODA Alliance submits this brief to the Ontario Government as part of the Government’s short public consultation on its proposal to hold a five-year pilot project to allow electric scooters (e-scooters) in Ontario. E-scooters are electric motor vehicles which can travel as fast as 32 kilometers per hour or faster. Under the Government’s proposal e-scooters would be allowed to zip at up to 32 kilometers per hour, anywhere a bicycle is allowed. The Government is not proposing to require the e-scooter owner or driver or vehicle itself to carry insurance, or to have a license. We include as Appendix 1 to this brief the Government’s original August 28, 2019 online posting that describes its proposed pilot project.

In summary, the AODA Alliance strongly opposes the proposed pilot project. This pilot project raises serious safety concerns for the entire public. Ontarians with disabilities are especially vulnerable to this safety risk. Experience in other jurisdictions where e-scooters have been allowed shows that they present serious public safety and disability accessibility problems.

the Ford Government repeatedly emphasized that it is focusing on what matters most to Ontarians. We emphasize that protecting public safety matters most for Ontarians.

E-scooters are motor vehicles, pure and simple. At a bare minimum, if they are to be permitted at all, e-scooters, like other motor vehicles, should have to be licensed. Their drivers should also have to be licensed, only after they have completed needed and specific training. Both the driver and the motor vehicle should have to carry sufficient insurance.

Their other risks should be subject to strict safety regulations. They should be required to emit a beep to enable people with vision loss to know they are coming. Rental of e-scooters should be forbidden. Regulation of e-scooters can later be reduced if shown to be justified, and that doing so won’t compromise on public safety and disability accessibility.

If, despite these concerns, Ontario were to hold a pilot project with e-scooters, it should be far shorter than five years. It should be restricted to a narrow area, not the entire province, and only with the consent of the community where the pilot is to occur. Very strict regulation of e-scooters should be in place.

Just because parts of the US and some other jurisdictions have allowed e-scooters does not mean that they are inevitable in Ontario. Ontario should not repeat the serious mistakes that other jurisdictions have made.

The Ontario Government Has an Important Duty to Prevent the Creation of New Disability Barriers

This brief will show that the Government’s proposal to allow e-scooters in Ontario threatens to create new accessibility barriers against Ontarians with disabilities. Under the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and the Accessibility for Ontarians with Disabilities Act, the Ontario Government has a duty to prevent the creation of new accessibility barriers against Ontarians with disabilities. For example, the AODA requires the Ontario Government to lead Ontario to become accessible to people with disabilities by 2025.

As the final report of the most recent Independent Review of the AODA’s implementation, prepared by former Lieutenant Governor David Onley revealed, Ontario is well behind schedule for reaching that goal. The Onley report found that Ontario remains a province full of “soul-crushing barriers”. Barriers in the built environment remain a serious example of this. The creation of any new barriers in the built environment would only make this worse.

The AODA Alliance elsewhere documented that the new Ontario Government has done a poor job of implementing the AODA. For the Government to take new action that would create more disability accessibility barriers, such as by allowing e-scooters, is an especially serious concern.

No Government Should Ever Compromise on Public Safety

We are deeply concerned that the Ontario Government’s proposal of a five-year pilot project with e-scooters in Ontario was arrived at without proper concern for or protection of public safety. As addressed later in this brief, e-scooters are known to present a danger to public safety.

According to a troubling CityTV report, the Doug Ford Government admitted it had compromised between protecting public safety on the one hand, and advancing business opportunities and consumer choice on the other, when it designed its controversial proposal to permit electric scooters in Ontario for a 5-year pilot. The August 30, 2019 City TV television news story that aired in Toronto in the evening news revealed this troubling new information, and included a comment by AODA Alliance Chair David Lepofsky on it:

“We reached out to the Ministry of Transportation, who told City News in a statement: the proposed pilot project is another example of how the province is helping businesses expand and give consumers more choice. When asked why the project is set to last a long five years, it said: ‘This proposed time line creates a compromise between road safety and access for businesses and consumers. If approved, the five year pilot will take a measured approach that will promote road safety, foster business innovation and open the Ontario market to this new and growing sector.’”

But Lepofsky fears the Government is prioritizing business over safety.

(Quotation from David Lepofsky in the news story) “the Government’s obligation is to protect public safety, not to decide, well, we’ll do some compromise between making sure people don’t get hurt and making sure other people can make some more money.”

We again call on the Ford Government to put the brakes on this proposal and to ensure that there is no risk to public safety, before even contemplating any pilot project with electric scooters. The Government must never compromise on the safety of the public, such as vulnerable people with disabilities, especially when it does so in the interests of some businesses wishing to expand into Ontario. Public Safety must always come first, and its protection should be unremitting and uncompromising.

Now that it has been revealed that the Government’s ill-conceived pilot project was based on an unacceptable compromise on public safety, the proposed pilot project should be withdrawn. The Government should go back to the drawing board.

E-Scooters Have Been Proven to Present a Safety Threat Both to Innocent Pedestrians and to the E-Scooter Driver Themselves

Our review of media articles and other sources posted on the internet quickly revealed that e-scooters are well-known to and well-documented to have posed a danger of personal injury, and in some cases, even of death. Injuries have been sustained by innocent pedestrians and by the e-scooter drivers themselves.

The AODA Alliance was able to quickly locate this information from a web search. As such, the Ontario Government, engaging in due diligence, should have been able to do the same.

The following is a very brief review of some of what we found, prepared in a hurry due to the Government’s very short public consultation deadline on this issue. We point especially to the article on e-scooters in the September 4, 2019 edition of the New York Times, set out in full as an appendix 2 to this brief.

Euronews reported on June 18, 2019, that Paris intended to implement speed limits and parking restrictions for e-scooters following its “first death on an electric scooter”. The French transport minister also announced a nationwide ban on e-scooters on sidewalks, effective September. A week prior to the announcements, a 25-year-old man riding an e-scooter had died after being hit by a truck. The report details other incidents, involving both riders and bystanders. In Sweden, “a 27-year-old man died in a crash while riding one of the electric vehicles in May”. In Barcelona, “a 92-year-old woman died in August 2018 after she was run over by an e-scooter — making it the first case of a pedestrian being killed by the electric vehicle”.

On July 26, 2019, CBC News reported that since e-scooters became available in Calgary, “Calgary emergency rooms have seen 60 patients with e-scooter-related injuries”. The report added that “[a]bout a third of them were fractures and roughly 10 per cent were injuries to the face and head”. These figures have triggered a study by the University of Calgary.

The Copenhagen Post reported on August 5, 2019, that a Capital Region release had identified “100 ‘scooter-related injuries’ this year” in Copenhagen. “Among those injured were several pedestrians, although it sounds like most of them tripped over discarded scooters. Only one ended up in hospital after being hit by one.”

The Guardian reported on August 11, 2019, that Paris had experienced its third e-scooter-related death in four months: “A 30-year-old man has been killed after being hit by a motorbike while riding his e-scooter on a French motorway.” The report went on to state that “[t]he scooter rider was not wearing a helmet and was reportedly travelling in the fast lane when the motorbike hit him from behind”, despite the fact that “[u]sing scooters on motorways is banned in France”. Moreover, “The day before the accident, a 27-year-old woman suffered serious head injuries after falling from an e-scooter she was using in a cycle lane in Lyon. A few days earlier a 41-year-old man had been seriously injured after falling from his e-scooter in Lille.” Finally, the report provided details on another, earlier e-scooter-related death in France: “An 81-year-old man died after he was reportedly knocked over by an e-scooter in Levallois-Perret, a Parisian suburb, in April.”

CityNews reported on August 13, 2019, as part of a short survey of European regulations, that “German police say seven people have been seriously injured and 27 suffered minor injuries in scooter accidents since mid-June, saying most were due to riders behaving carelessly.”

Extend the Current Public Consultation

If, despite the foregoing concerns, the Ontario Government plans to continue with the current e-scooter public consultation, it should significantly lengthen it. On Wednesday, August 28, 2019, just two days before the Labour Day long weekend, the Doug Ford Government quietly posted online, for a meager 48-hour public consultation, its proposal to allow e-scooters in Ontario for five years, for a trial period. Thankfully we were alerted to this by an AODA Alliance supporter, who was concerned about the safety risk that e-scooters posed for Ontarians with disabilities.

On August 29, 2019, the AODA Alliance quickly swung into action on this helpful tip. So did others, including Balance for Blind Adults and the CNIB. The media showed interest quite quickly.

Within hours, the Ford Government gave some ground, though not all the ground we had requested. Late on Thursday, August 29, 2019, the Government announced that it was extending its consultation on this issue to September 12, 2019.

For the Government to announce a public consultation on the eve of a long weekend is a well-known strategy for rushing forward with a decision to implement something new, without truly consulting the public, while wishing to appear that it has genuinely consulted the public. It is a fair inference to draw that the Government has been lobbied by companies that rent e-scooters in the U.S. or elsewhere, in order to get the Government to permit them in Ontario. As noted later in this brief, the proposal of an excessively long five -year pilot project suggests an intent to get e-scooters deeply embedded in Ontario, and to make it harder to get them removed or effectively controlled.

It is essential for this consultation process to immediately slow down. If the Government is not prepared to withdraw its current consultation and go back to the drawing board, with a stronger commitment to protecting public safety, it should at least substantially lengthen the current public consultation period beyond September 12, 2019

Recommendation #1

If it is not prepared to withdraw its current public consultation on e-scooters, the Ontario Government should at least extend the consultation period to October 31, 2019.

Do Not Allow Rental of E-Scooters

It appears that at least in some if not most of the other jurisdictions where e-scooters have been allowed, a very common way that they are used is by companies renting them to the public, rather than by individuals buying them. Of course, the option to buy them was presumably available in those jurisdictions as well. It is reasonable to suppose that the lobbying of the Ford Government that has led to the current proposal for a five-year e-scooter pilot program comes from those big companies known in other jurisdictions to provide e-scooter rentals. See further the September 4, 2019 New York Times article set out in Appendix 2, at the end of this brief.

By this rental model, a member of the public gets an app on their phone to sign up for these rentals. E-scooters are left around the city, tagged with a GPS chip. The individual uses the app to find the nearest e-scooter that is available. They pick it up and ride away. They presumably do not go to a store, or deal with anyone directly and in person from the rental company. When they are finished with the e-scooter, they leave it on a sidewalk, wherever they wish, and walk away. That e-scooter then sits there until another person, using the app, decides to take it away and ride it, leaving it somewhere else, once they are done.

The rental model for e-scooters presents several serious problems. It should be forbidden.

First and foremost, having users randomly leave an e-scooter on a sidewalk or other like public place when they are finished with it creates significant and unpredictable new barriers against people with disabilities. these barriers can instantly pop up anywhere, unannounced.

For people who are blind, deafblind or have low vision, they are a serious and unexpected tripping hazard. They should not have to face the prospect of e-scooters potentially lying in their path at any time. we have received feedback about concerns with this from people with vision loss elsewhere where this has been allowed.

As well, leaving an e-scooter randomly on sidewalks presents a serious new barrier for people who use a wheelchair, walker or other mobility device. For them, an e-scooter can prevent them from being able to continue along an otherwise-accessible sidewalk. The option of going up on the grass or down onto the road in the path of car traffic may not be accessible, feasible or safe. This is especially so for people with temporary or permanent balance issues.

The sidewalks or other public spaces should not be made available to the private companies who rent e-scooters as free parking spaces, fully subsidized by the taxpayer. It would not be good enough for the Government to try to regulate where the scooters are left, e.g. by setting regulations that they not block the sidewalk. This would be very hard to enforce, since police are not on the scene wherever these e-scooters would be left. To the contrary, there needs to be a strict ban in place precluding them ever being left in the sidewalk, given the experiences of which we have learned in other jurisdictions.

Beyond the foregoing concerns, the rental model presents other safety risks. Under that model, a person could go into a bar, drink to excess, walk outside, look on their smart phone’s e-scooter app, and quickly find a nearby e-scooter to ride. That would expose the public to added risks. As it is, drunk driving is a troubling problem in our society that leads to deaths and serious injuries. Our Government should not expose the public to any more such risks.

Were an intoxicated person to walk into a car rental office and try to rent a car, they would have to deal with a human being, who no doubt would refuse to hand over the car keys. In the case of renting e-scooters via an app, there is no comparable control at the source, such as a sales person, to prevent this.

It is no answer to say that drunk driving is already illegal. We already know that that law is too often disobeyed, with innocent people paying the price with permanent injuries or their lives. The Government should not make e-scooters available, increasing that risk.

Recommendation #2

The rental of e-scooters should be strictly forbidden, even if private ownership of an e-scooter by a user of that e-scooter were to be permitted.

Recommendation #3

There should be a strict ban on leaving an e-scooter in a public sidewalk or like location. If an e-scooter is left in such a place, it should be subject to immediate confiscation as well as a strict penalty.

Require Beeping Sound from E-Scooters When Powered On

E-scooters are very quiet, if not silent, when being operated. It presents a significant safety risk for a virtually silent e-scooter to be hurtling towards a blind person at 32 kph. This is so whether the e-scooter is being driven on a road, or on a sidewalk) (where they are supposedly not to be permitted). They pose a similar risk to a sighted pedestrian who can hear, but who is not looking in the direction from which the e-scooter is coming.

Recommendation #4

If e-scooters are to be permitted in Ontario, they should be required to make an ongoing beeping sound when they are powered on, to warn others of their approach.

Reduce the Maximum Speed Well Below 32 KPH

The faster an e-scooter goes, the less time its driver or a pedestrian has to avoid a collision. Moreover, the fast the e-scooter goes, the greater the potential harm caused by a collision.

There is no magic reason why an e-scooter should be allowed to travel at 32 KPH, just because e-bikes are allowed to go at that speed.

The Ontario Government should study the options for speed limits from other jurisdictions to determine the safest maximum speed, before embarking on any pilot project. A considerably slower speed limit should be set. It can always be raised later, if that is justified.

Recommendation #5

The speed limit for e-scooters should initially be set much lower than 32 KPH, such as 15 or 20 KPH, until a strong showing can be made that a higher speed limit poses no safety threat to the public.

Require That an E-scooter Driver Have a License and Proper Training

Because an e-scooter is a motor vehicle which can cause significant personal injuries to innocent pedestrians, a person should be required to get a license before they can drive an e-scooter. To qualify to get a license, a person should have to take appropriate training and show sufficient proficiency, including sufficient knowledge about the rules of the road and the threat to personal injuries that an e-scooter can cause.

Recommendation #6

A person wishing to drive an e-scooter should be required to first take required training on its safe operation and on the rules of the road, and then to obtain a license.

E-Scooters Should Be Licensed and Display a License Plate Number

It is important for each e-scooter to be licensed, and to display a license plate number, as is required for cars and motorcycles. This will make it far, far easier to enforce the law in case a person, driving an e-scooter, collides with a pedestrian, and then flees the scene. Without such a license requirement, it may well be impossible for an injured pedestrian to effectively identify the e-scooter that hit them, and thereby, to trace the driver in question.

Recommendation #7

Each e-scooter should be required to be licensed and to display a readily-seen license plate number.

The E-scooter’s Owner and Driver Should Be Required to Carry Valid Insurance

It is widely recognized that motor vehicles pose a risk to personal injury of other motorists and pedestrians. As a result, both the owner and driver of a motor vehicle are required to carry liability insurance. It is an offence to fail to carry proper insurance.

The same should be so for the owner and driver of an e-scooter. It is important for both to be insured, as is the case for other motor vehicles such as cars and trucks, so an injured victim can recover compensation from either or both, if injured.

This is especially important where, as here, it is known that e-scooters can pose a real risk of personal injury. The victims of such injuries, and the taxpayers who pay for our health system, should not be left holding the bag when it comes to the consequences of the use of e-scooters.

Recommendation #8

The owner and driver of an e-scooter should be required to carry sufficient liability insurance for injuries or other damages that the e-scooter causes to others.

Helmets Should Be Required for All E-Scooter Drivers, No Matter What Their Age Is

The use of an e-scooter can result in injuries to the driver, and not just to innocent pedestrians. This obviously can include head injuries.

A helmet is an important safety measure to at least try to reduce some of the harmful impacts on the driver of a fall from the e-scooter. Yet the Ford Government is only proposing during its pilot project to require an e-scooter driver to wear a helmet if they are between the ages of 16 and 18.

Yet people older than 18 are equally exposed to the risk of head injuries. This creates an undue risk of increased injuries to drivers. That is bad for the drivers themselves and their families. It also creates an unnecessary and unfair burden for the taxpayer, who will have to cover the health and other social safety net costs of those injuries to the e-scooter drivers.

Recommendation #9

All e-scooter drivers, regardless of their age, should be required to wear a helmet whenever operating an e-scooter.

If There Is to Be a Pilot Period with E-scooters, It Should Be Much Shorter Than Five Years and For A Smaller Part of Ontario

The Ford Government is proposing an e-scooter pilot project for the entirety of Ontario, to last fully five years. There is serious reason to doubt whether the Government means this as a pilot project. It appears far more likely that the Government means for this to be a way to embed e-scooters as a done deal, a permanent fixture in Ontario. After five years, the Government may well be hoping that it will be much harder to reduce or eliminate them, if already entrenched around Ontario. We anticipate that this is a real problem facing those jurisdictions that have already allowed e-scooters to proliferate, and that now have serious concerns about their impact.

There is no reason for a pilot project to last for a long five years. A much shorter period is warranted, in order to assess their impact. This is so especially since there are other jurisdictions which have already in effect served as a pilot project for Ontario. They have allowed e-scooters, with all the accompanying problems. As noted earlier, Ontario should study their impact in those other jurisdictions first, rather than exposing Ontarians to the risk of personal injury. Only if that study reveals that e-scooters can be safely introduced in Ontario should a pilot project be conducted in Ontario.

If a pilot project is to take place in Ontario, it should be conducted for a far shorter period, such as six months. A proper assessment of their impact should be assigned to an arms-length organization with expertise in public safety.

There is no reason why a pilot project should take place across the entirety of Ontario. Instead, a specific region or community should be selected. That community should first be given the right to consent or reject the proposal on behalf of its citizens.

Recommendation #10

No e-scooter pilot project should be held in Ontario until the Ontario Government effectively studies the impact on public safety of e-scooters in jurisdictions that have allowed them, and on options for regulatory controls of them, and has made the details of these public. A pilot project should only be held in Ontario if public safety can be fully and effectively protected.

Recommendation #11

If Ontario is to hold an e-scooter pilot project, it should only take place for a period much shorter than five years, e.g. six months, and should only take place in a specific community that has consented to permit that pilot project there.

Recommendation #12

If Ontario is to hold an e-scooter pilot project, the Ontario Government should retain a trusted independent organization with expertise in public safety to study the impact of e-scooters during that pilot project, and to make the full results of that study public.

A Ban on Riding E-scooters on Sidewalks Is Insufficient to Address Public Safety Concerns

To address the safety and accessibility concerns in this brief, it would be insufficient to simply ban the riding of e-scooters on sidewalks. e-scooters present safety issues on public roads, not just on sidewalks. Moreover, it will be extremely difficult if not impossible to effectively police a ban on e-scooters on sidewalks. Even though bicycles are not supposed to be ridden on public sidewalks, pedestrians know that a good number of cyclists nevertheless ride their bikes on sidewalks from time to time, without much fear of law enforcement.

Moreover, especially if an e-scooter is not licensed and does not bear a plainly visible license plate number, it would too often be hard if not impossible for an injured pedestrian to report to police on someone who unlawfully rode an e-scooter on the sidewalk. It will be hard if not impossible to reliably identify the offender in a way that will stand up in court. Eyewitness identification evidence is notoriously hard to present in court.

Recommendation #13

The Government should not treat a ban on riding e-scooters on the sidewalk as a sufficient protection against the threat to public safety that e-scooters present.

There Should Be No Comparable Restrictions on Powered Scooters Used as a Mobility Aid for People with Disabilities

We emphasize that in raising these concerns with e-scooters, nothing should be done to restrict the current availability and use of powered scooters as a mobility aid for people with various disabilities. These are not in the same class of vehicle as e-scooters, addressed in this brief. They do not present the concerns raised in this brief. As we understand it, they do not travel at the kinds of speeds that an e-scooter can travel. They are an essential form of adaptive technology for people with disabilities.

Recommendation #14

nothing should be done to reduce the availability or use of powered mobility devices used by people with disabilities.

There Are Important Differences Between E-bikes and E-scooters

It would be wrong for the Government to proceed on the basis that it should allow e-scooters since it allows e-bikes, for several reasons. First, if, as we have shown, e-scooters present a safety risk, that safety risk neither magically vanishes nor in any way reduces just because Ontario now allows e-bikes.

Second, there are some important differences between the two. A person cannot ride an e-bike unless they already know how to ride a bike. In contrast, a person with no prior experience can, in some other jurisdictions, pay a rental fee, hop on an e-scooter, and immediately start racing in public at 32 KPH. As well, we are not aware of any companies that rent e-bikes on the terms used elsewhere for e-scooters, where they are regularly left as barriers in the middle of sidewalks.

Because this e-scooter consultation has been so rushed, we have not had a sufficient opportunity to explore the full ramifications of e-bikes beyond this. This is yet another reason why this hasty public consultation should be withdrawn or lengthened.

We also emphasize that there are key differences between an e-scooter and a non-motorized bicycle. While some can ride a bike quite fast, a novice cannot simply hop on a bike and race at 32 KPH. Moreover, a regular bike is not a motor vehicle. An e-scooter is a motor vehicle.

Appendix 1 The Ford Government’s 48-Hour Pre-Labour Day Public Consultation on Allowing Electric Scooters in Ontario

Originally posted at https://www.ontariocanada.com/registry/view.do?postingId=30207&language=en

Kick Style Electric Scooter (E-Scooter)

 

Background:

 

The Ministry of Transportation (MTO) is strongly committed to promoting the highest standards of safety for all Ontarians who travel on our roads, including drivers, cyclists, and pedestrians, and will continue working with all our partners on measures that enhance this objective. Trends and technology are evolving, with new forms of vehicles such as e-scooters entering the market.

MTO is interested in new and environmentally-friendly vehicles, however it is important that new vehicles are constructed with appropriate safety features to allow safe integration with all other road users.

MTO is considering the following proposal and invites you to submit your comments for consideration.

E-Scooters

 

E-scooters have been launched in more than 125 cities across the United States. They represent a new way for residents to get around their communities, are seen as providing first and last mile connections to transit, and represent an opportunity to reduce traffic congestion.

E-scooters are currently not permitted to operate on roads in Ontario as they do not meet any federal or provincial safety standards for on-road use. These devices may only be operated where Ontario’s Highway Traffic Act (HTA) does not apply such as private property.

The ministry is interested in exploring the feasibility of these vehicles safely integrating with other road users while promoting road safety and fostering business innovation in the province.

 

MTO is soliciting public comment on potentially permitting the use of e-scooters on roads in Ontario as part of a pilot project. This will allow the ministry to ensure e-scooters can be safely integrated with other road users before a final, permanent, regulatory decision is made.

 

 

 

Proposed E-Scooter Pilot Framework:

 

Pilot Duration:

The length of the pilot will be for a prescribed period of 5 years, to ensure sufficient time to effectively monitor and evaluate the pilot results.

 

Operator/Rider/Vehicle Requirements Include:

 

  • Can operate on-road similar to where bicycles can operate; prohibited on controlled access highways
  • Minimum operating age 16
  • Bicycle helmet required for those under 18 years old
  • No passengers allowed
  • Maximum operating speed 32 km/h
  • No pedals or seat allowed
  • Must have 2 wheels and brakes
  • Maximum wheel diameter 17 inches
  • Must have horn or bell
  • Must have front and back light
  • Maximum weight 45kg and Maximum power output 500W

Data Collection:

 

  • Municipalities to remit data to the province, as requested

 

Appendix 2 The New York Times September 4, 2019

Originally posted at https://www.nytimes.com/2019/09/04/technology/san-diego-electric-scooters.html?smid=nytcore-ios-share

Welcome to San Diego. Don’t Mind the Scooters.

A year ago, electric rental scooters were hailed as the next big thing in transportation. But their troubles in San Diego show how the services have now hit growing pains.

Companies distribute scooters around cities, often on sidewalks. In the area around Mission Beach, one of San Diego’s main beaches, 70 scooters lined a single side of one block in July. By

Erin Griffith

Sept. 4, 2019

SAN DIEGO — The first thing you notice in San Diego’s historic Gaslamp Quarter is not the brick sidewalks, the rows of bars and the roving gaggles of bachelorette parties and conferencegoers, or even the actual gas lamps.

It’s the electric rental scooters. Hundreds are scattered around the sidewalks, clustered in newly painted corrals on the street and piled up in the gutters. In early July, one corner alone had 37. In the area around Mission Beach, one of the city’s main beaches, a single side of one block had 70. Most sat unused.

Since scooter rental companies like Bird, Lime, Razor, Lyft and Uber-owned Jump moved into San Diego last year, inflating the city’s scooter population to as many as 40,000 by some estimates, the vehicles have led to injuries, deaths, lawsuits and vandals. Regulators and local activists have pushed back against them. One company has even started collecting the vehicles to help keep the sidewalks clear.

“My constituents hate them pretty universally,” said Barbara Bry, a San Diego City Council member. She called for a moratorium on the scooters when they arrived, saying they clogged sidewalks and were a danger to pedestrians.

San Diego’s struggle to contain the havoc provides a glimpse of how reality has set in for scooter companies like Bird and Lime. Last year, the services were hailed as the next big thing in personal transportation. Investors poured money into the firms, valuing Bird at $2.3 billion and Lime at $2.4 billion and prompting an array of followers.

At the end of a rental period, a rider leaves the scooter for the next customer to retrieve. CreditTara Pixley for The New York Times

The scooter companies distribute their electric vehicles around cities and universities — often on sidewalks — and rent them by the minute via apps. At the end of a rental period, a rider leaves the scooter for the next customer to retrieve. Scooter speeds vary by company, model and city, as do helmet laws, although helmets generally are not required.

But now, skepticism about scooter services is rising. Some cities, including San Francisco, Paris, Atlanta and Portland, Ore., have imposed stricter regulations on scooter speed limits, parking or nighttime riding. Columbia, S.C., has temporarily banned them. New York recently passed legislation that would allow scooters to operate in some parts of New York City, but not in Manhattan.

Safety has become a big issue. A three-month study published in May from the Centers for Disease Control and Prevention and the Public Health and Transportation Departments of Austin, Tex., found that for every 100,000 scooter rides, 20 people were injured. Nearly half of the injuries were to the head; 15 percent of those showed evidence of traumatic brain injury.

Bird, Lime and Skip are trying to secure new funding, according to three people familiar with the talks, who declined to be identified because the discussions were not finished. In May, Lime replaced its chief executive; several other top executives also left. And in July, Bird’s chief executive called a report about the company’s losses “fake.”

Scooters are “a fun and convenient mode of transportation that really does put people at risk and introduces significant spatial challenges to the civic commons,” said Adie Tomer, a metropolitan policy fellow at the Brookings Institution. “Those tensions are not going anywhere anytime soon.”

Bird declined to comment.

Many scooter companies miscalculated how long the scooters would last — often not long enough for rental fees to cover their costs — and are struggling with profitability, acknowledged Sanjay Dastoor, Skip’s chief executive. His company has designed a way to produce more durable scooters that can be repaired more easily and last long enough to turn a profit, he said, allowing it to “run a safe fleet that we are proud of.”

Lindsey Haswell, Lime’s head of communications, said new industries often faced regulatory challenges, “but our investors are willing to take the long view.” She added that the issues in San Diego did not reflect the global scooter market. Lime has provided more than three million trips in San Diego, she said, and has “as many supporters as we have detractors” there.

Hans Tung, an investor at GGV, which has backed Lime, said he was encouraged by the company’s progress and was confident it would make its scooters safe and profitable. “I don’t see how that couldn’t be achieved,” he said.

Bird and Lime deployed their scooters in San Diego in February 2018, followed by other companies. The start-ups pitched themselves as environmentally friendly, a message that jibed with San Diego’s goal to reduce greenhouse emissions.

San Diego initially took a hands-off approach. The scooters became popular, with an average of 30,000 riders per day, according to city officials.

“Millennials and post-millennials want to live in a thriving, bustling city that has dynamic choices for mobility,” said Erik Caldwell, San Diego’s deputy head of operations for smart and sustainable communities.

But as more scooters flooded San Diego last summer, local business owners and residents began objecting. Alex Stennet, a bouncer at Coyote Ugly Saloon in the Gaslamp District, said people tripped over the vehicles and threw them around. He said he had witnessed at least 20 scooter accidents in front of Coyote Ugly.

ScootScoop has deals with 250 local businesses to remove scooters; it has towed more than 12,500. CreditTara Pixley for The New York Times

Dan Borelli, who owns a bike rental shop called Boardwalk Electric Rides in Pacific Beach, said the scooters frequently blocked the entrance to his store. In July 2018, he teamed up with John Heinkel, owner of a local towing company, to haul away scooters that they deemed to be parked on private property. They charge Bird, Lime and others a retrieval fee of $50 per scooter, plus $2 for each day of storage.

Their company, ScootScoop, has essentially turned them into scooter bounty hunters. They said they have struck deals with 250 local businesses and hotels and have towed more than 12,500 scooters. Some scooter companies have paid to get them back, they said.

In March, Lime and Bird sued Mr. Borelli and Mr. Heinkel for the scooter removals. ScootScoop countersued Bird and Lime last week.

Other cities have called ScootScoop for advice, Mr. Borelli said. Mr. Heinkel said the scooter companies underestimated them. “They assumed we were two hillbillies in a pickup truck, as opposed to business owners,” he said.

Lime’s Ms. Haswell said Mr. Borelli and Mr. Heinkel “are opportunistic businessmen who troll the streets stealing scooters, with no respect for the law, trying to make a profit at San Diego’s expense.”

Late last year, the scooters turned from annoyances into hazards. In December, a man in Chula Vista, a San Diego suburb, died after he was hit by a car while riding a Bird scooter, according to the Chula Vista Police Department. A tourist died a few months later after crashing his rental scooter into a tree. Another visitor died of “blunt force torso trauma” after his scooter collided with another, the San Diego Police Department said.

The department said it counted 15 “serious injury collisions” involving scooters in the first half of this year. Last month, three separate scooter-related skull fractures happened in one week.

On one day in July, there were 150 available Bird scooters within a two-block radius in Mission Beach.CreditTara Pixley for The New York Times

Scooter parking corrals were introduced in July as part of San Diego’s new rules.CreditTara Pixley for The New York Times

As the injuries piled up, Safe Walkways, an activist group, amassed hundreds of members in a Facebook group to oppose the scooters and file complaints to government agencies. In April, around 50 protesters gathered on Mission Beach’s boardwalk with signs bearing messages like “Safety Not Scooters” and “BoardWALK.”

Lawsuits have also piled up. Clients of Matthew Souther, an attorney at Neil Dymott, filed a potential class action suit in March that accused Bird, Lime and the City of San Diego of not complying with disability rights laws to keep sidewalks clear. He said he was working on a dozen other injury lawsuits against scooter companies.

San Diego has started cracking down on the scooters. In July, the city enacted rules restricting where they could be parked and driven and issued permits for 20,000 scooters, across all companies, to operate. In three days that month, authorities impounded 2,500 scooters that violated parking rules. San Diego later sent notices of violations to Bird, Lyft, Lime and Skip.

Last month, San Diego told Lime that it planned to revoke its permit to operate in the city because of the violations, pending a hearing.

Christina Chadwick, a spokeswoman for San Diego’s mayor, Kevin Faulconer, said the scooter operators had been warned that the city would aggressively monitor them.

To deal with critics and improve safety and costs, the scooter companies have upgraded their fleets with sturdier scooters. Bird has said its Bird Zero model, which makes up a majority of its fleet, lasts an average of 10 months, compared with three months for past models. Skip recently announced a scooter with modular parts, which makes repairs easier.

And after a year recalling scooters with cracked baseboards and batteries that caught fire, Lime has introduced new vehicles with bigger wheels and baseboards, as well as interchangeable batteries and parts.

Ms. Haswell said Lime was eager to show the progress it had made. “We admit that we haven’t always gotten it right in San Diego,” she said.

Erin Griffith reports on technology start-ups and venture capital from the San Francisco bureau. Before joining The Times she was a senior writer at WIRED and Fortune. @eringriffith

A version of this article appears in print on Sept. 4, 2019, Section B, Page 1 of the New York edition with the headline: San Diego’s Scooter Tryout Gets Off to a Bumpy Start.

 



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