Federal Government Passes Canada’s First National Accessibility Legislation


by Michelle McQuigge, The Canadian Press
Posted May 30, 2019

Disabled Canadians declared a partial victory Thursday hours after the government voted to enact Canadas first national accessibility law, calling it a major step forward while cautioning that more work was still needed to ensure it achieves its goal.

The Accessible Canada Act, which aims to improve life for those with disabilities, received unanimous support in the House of Commons on Wednesday evening. It awaits only royal assent, expected in the coming weeks, before officially becoming law.

Advocates who fought for amendments to strengthen the legislation praised the governing Liberals for delivering on a promise to implement the bill and bring Canada more in line with other countries that have had such laws for years. But they also cautioned against complacency, saying more work lay ahead.

We applaud the government for its willingness to listen to Canadians with disabilities, Council of Canadians with Disabilities chair Jewelles Smith said in a statement.

CCD reminds the government that there are many serious ongoing barriers that will not be addressed by this act, and encourages the federal government to pursue policy solutions to these well-known concerns.

Accessibility Minister Carla Qualtrough, who spearheadded national consultations on the bill and shepherded it through Parliament, hailed its passage as a significant moment.

This is the most transformative piece of legislation since enacting the Charter of Rights and Freedoms, and a true testament to the work, commitment and contributions of the Canadian disability community, she said in a statement. This historic act sends a clear signal to Canadians that persons with disabilities will no longer be treated as an afterthought.

The act passed by Parliament bears striking differences from the version initially tabled last June.

Its stated purpose to identify, remove and prevent accessibility barriers in areas that fall under federal jurisdiction was greeted with enthusiasm and remains the same. Those areas include built environments, federally run programs and services, banking, telecommunications and transportation that crosses provincial lines.

But disabled advocates almost immediately began raising concerns about the effectiveness of the legislation and lobbied for changes.

Last fall, a group of 95 disability groups signed an open letter outlining nine areas of perceived weakness, including the lack of a timeline for the bills implementation and failure to recognize various forms of sign language as official languages of the deaf.

The Senates committee on social affairs, science and technology, citing community concerns, amended the bill to include sign language recognition as well as a timeline for the bill to be fully implemented by 2040.

Those amendments were reflected in the bill that garnered parliamentary approval.

Activists celebrated the passage of the act as genuine progress, but some continued to voice concerns about areas where they feel it still falls short.

The Arch Disability Law Centre indicated Thursday that it was particularly troubled by the language employed throughout the bill, which repeatedly uses may rather than shall or must when describing initiatives.

This language gives government power to make and enforce the new accessibility requirements, but does not actually require them to use these powers, Arch said in a statement.

An amendment before the Senate committee addressed that concern but was defeated.

Advocates also criticized the bill for granting the government broad powers to exempt people from the new rules, spreading enforcement over numerous agencies, and opting not to withhold federal funding from organizations that dont comply with accessibility measures. Conservatives and New Democrats echoed those issues in Parliament.

Gabrielle Peters, a Vancouver-based wheelchair user, said the governments failure to address those areas leaves the law lacking compared to similar legislation in other countries. She said she questions whether the law will prove significant for all its meant to serve.

I and many like me will be at home with my broken wheelchair in my tiny box of an improperly adapted apartment living in poverty in a city with 8,000 corners where I cant cross the street, she said.

Nothing in the act will change that. But I am glad Canada finally has an Accessible Canada Act, however lacking I find it, and I want to recognize the work of those who actually worked on and for it.

Michelle McQuigge, The Canadian Press

Original at https://www.citynews1130.com/2019/05/30/federal-government-passes-canadas-first-national-accessibility-legislation/



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Canada’s Senate Passed Bill C-81, the Proposed Accessible Canada Act, on Third Reading Last Evening, Replete with All the Amendments that the Senate’s Standing Committee Made to Improve the Bill — But Will the Federal Government Vote to Ratify All Those Amendments When the Bill Returns to the House of Commons?


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

Canada’s Senate Passed Bill C-81, the Proposed Accessible Canada Act, on Third Reading Last Evening, Replete with All the Amendments that the Senate’s Standing Committee Made to Improve the Bill — But Will the Federal Government Vote to Ratify All Those Amendments When the Bill Returns to the House of Commons?

May 14, 2019

          SUMMARY

Last evening the Senate of Canada passed Bill C-81, the proposed Accessible Canada Act, on Third Reading, complete with all the amendments that the Senate’s Standing Committee on Social Affairs added to the bill on May 2, 2019. This is an important step forward for this bill, and a helpful step for people with disabilities in Canada. Below we set out the Hansard transcript of the Third Reading debates on Bill C-81 that took place in the Senate last evening.

The first among the speeches on the bill was by Senator Jim Munson. Senator Munson is the Federal Government’s sponsor of the bill in the Senate. It is likely that some or all of his speech was written by the Federal Government.

Bill C-81 is not yet an enforceable law. It is still just a bill, a proposed law.

For Bill C-81 to become a law, it must go back to the House of Commons. The House must vote on the amendments that the Senate has added to the bill. If the House of Commons passes all those amendments, Bill C-81 becomes a law. If the House of Commons does not pass some or all of those amendments, it remains a bill, a proposed law. The Senate would then have to vote again on the bill, but without the Senate’s amendments.

Thus, all attention must now focus on the House of Commons, and especially on the Trudeau Government which has a majority of seats in the House. The Federal Government has not yet said it will vote for all the Senate’s amendments to Bill C-81.

As we announced days ago, we and many other people with disabilities and disability organizations are campaigning to get the House of Commons to pass ALL the amendments to the bill that the Senate has just passed. We are focusing special attention on the Senate’s commendable amendments that would set the time line of 2040 for Canada to reach full accessibility to people with disabilities, while making it clear that this time line may not delay progress before then on accessibility.

For tips on how to help with this time-sensitive blitz, visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/

Please email or tweet as many Members of Parliament as you can. Press them to agree to pass all the amendments that the Senate Standing Committee made to Bill C-81. For action tips on how you can help press the Federal Government to agree to pass ALL the amendments to Bill C-81 that the Senate passed, and to read our May 6, 2019 letter to federal Disabilities Minister Carla Qualtrough (explaining why we need all these amendments passed), visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/

To find your MP’s email address or Twitter handle, visit https://www.ourcommons.ca/en and search for their contact information.

To read the text of the Senate Standing Committee’s amendments to Bill C-81, and a good explanation of them by the ARCH Disability Law Centre, visit https://www.aodaalliance.org/whats-new/more-specifics-on-the-amendments-to-bill-c-81-the-proposed-accessible-canada-act-that-the-senates-standing-committee-passed-and-that-we-want-the-house-of-commons-to-ratify-still-no-commitment-by /

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

To read the AODA Alliance’s May 6, 2019 letter to federal Disabilities Minister Carla Qualtrough, explaining why it is important for the Federal Government to agree to pass all the amendments to Bill C-81 that the Senate has now passed, visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/

Our overall strategy regarding Bill C-81 is unfolding as we planned. The Senate’s amendments, for which we and others fought so hard, help improve this bill. The bill clearly needed improvements. Now the issue will come before the House of Commons just months before an impending federal election.

From a disability advocacy perspective, this timing is very helpful to our cause. What elected politician or party would want to vote against measures to strengthen the protections for people with disabilities, especially with an election looming? What elected politician or party would want to cast a vote now that would delay Bill C-81 from becoming a law?

For all the background on our efforts to get the Federal Government to enact a strong and effective national accessibility law, visit www.aodaalliance.org/canada

Please send us your feedback. Email us at [email protected]

          MORE DETAILS

Senate of Canada Hansard May 13, 2019

Originally posted at https://sencanada.ca/en/content/sen/chamber/421/debates/287db_2019-05-13-e

Accessible Canada Bill

Third Reading

Hon. Jim Munson moved third reading of Bill C-81, An Act to ensure a barrier-free Canada, as amended.

He said: Honourable senators, what a journey we have been on. What a journey all of us have been on.

Senators, as the sponsor of this bill, I’m pleased to speak tonight at the third reading of Bill C-81, An Act to ensure a barrier-free Canada, also known as the Accessible Canada Act. I am humbled and honoured to speak to a bill that will no doubt become a proud part of Canadian history.

Making history takes dedication, hard work and perseverance. So I want to acknowledge the work of many people who helped get this bill to this stage.

I want to thank the chair and deputy chair of the Standing Senate Committee on Social Affairs, Science and Technology, Senators Petitclerc and Seidman, and all members who attended the committee meetings. Questions were engaging and led to an enlightening input from witnesses and to constructive amendments. This committee works so well together; I am honoured to be a member.

Thank you also to our clerk and administrator, Dan Charbonneau and Ericka Dupont, for arranging sign language, ASL, and CART services, Communication Access Real-time Translation, and the special room set-up, which helped to make the Senate committee meetings the most accessible to date. The Senate should be proud in this regard. We have shown leadership by example.

I also want to acknowledge the incredible work of the Minister of Public Services and Procurement and Accessibility, Carla Qualtrough. She and her team have shown great leadership on accessibility, and I can confidently say that Bill C-81 enjoys widespread support due to their efforts.

Most importantly, I want to recognize persons with disabilities, stakeholders, and organizations who all play a crucial role in accessibility in Canada. They have all invested tremendous work and energy into this historic bill, ensuring that it reflects the priorities of persons with disabilities. Their contributions have been instrumental in getting the bill in its amended form to this stage. Thank you for sharing your personal experiences and stories with us. I know it takes courage. We could not have done any of this without your involvement and expertise. Some of those folks are here in the Senate tonight.

Senators Petitclerc and Seidman gave excellent speeches at the report stage of the bill last week, summarizing the amendments that were adopted at committee. I will not go over the amendments and details again. However, I do want to highlight some important testimony.

Over the course of our committee hearings we heard repeatedly that the time for an accessible Canada act is now. Canadians facing barriers to fully participating in their workplaces and society told us and are still telling us to pass this bill into law. Here is what Bill Adair from Spinal Cord Injury Canada and with the Federal Accessibility Legislation Alliance, or FALA, told us at committee:

What people are telling us across the country who are participating with FALA is: We want the bill. Give us something to work with. Yes, push for the changes, but at the end of the day, before the election, we want the bill. That gives us structure and the framework so that we can get to work on removing barriers and we want it now. We’ve been waiting far too long and this is our day.

Senators, everyone is eager to see this bill become law. We must continue our essential work in order to take it over the finish line. This community has waited long enough for this recognition and respect.

Another significant and positive change is that Bill C-81 will shift the responsibility on to the system and away from the individuals facing barriers in their daily lives. Diane Bergeron from CNIB said during her testimony:

Having a disability is exhausting, and I do not say that lightly. But when you have to deal with discrimination, rights violations, different pieces of legislation, criticisms, people not thinking that you have value, it makes it worse. The current system is unfair and unacceptable.

Colleagues, we know the history. It is one of institutionalization, sterilization and social isolation. Canada had a system that took children away from their families and power away from our citizens. Persons with disabilities were seen as burdens and treated as if they were broken. Our country simply cannot continue to place the burden of advancing human rights on individuals. We can do better, and we must do better. In fact, with this bill we will do better.

In addition to this necessary shift in responsibility, the accessible Canada act, when passed, will set best practices and a framework that the provinces and the private sector can mirror. Most importantly, this bill will start to shift culture, perception and understanding of what inclusion in our society should really look like. I cannot come up with a better analogy that encompasses my hope for what this legislation will achieve than that of Minister Qualtrough. You have to be a sports fan to get this. I couldn’t agree more when she said at committee:

I think we will look back on this as a “TSN Turning Point” on disability rights and the way we talk about disability in this country.

The words of the minister.

Honourable senators, in 2017, approximately 6.2 million people, or about 22 per cent of Canadians aged 15 years and older, reported being limited in their daily activities due to a disability. This percentage is expected to increase in the coming years due to Canada’s aging population, since the prevalence of disability increases with age. This is why the government consulted with over 6,000 individuals from across the country with lived experience over the course of this bill’s development. They have continued to be consulted and included as witnesses and experts at committee so that we can use their knowledge and their experiences to help drive the change needed for a better tomorrow.

One of those witnesses was Steven Estey from Nova Scotia, from the Council of Canadians with Disabilities. This organization helped facilitate some of these consultations. Mr. Estey gave us a good summary of what that meant. He said:

. . . to talk to Canadians with disabilities about what they wanted in this legislation. We had a chance to talk to over a thousand people across the country. We had 22 separate consultations in towns and cities across the country. We had telephone consultations. We had Internet consultations. We really spent a lot of time trying to figure out what people wanted to see in this legislation. It’s an important thing for us to be involved with. We have really appreciated the opportunity and the support that we have had to be able to do that.

This is what inclusion looks like, honourable senators. Consultation, collaboration, cooperation and real input from real life experience. I know that the finer points of the bill have been outlined to you many times, including by myself, but I do want to talk again about the Canadian accessibility standards development organization. The landmark importance of the CASDO board membership aligning with the community’s mantra of “nothing about us without us.” Think about it. Because it’s the board membership who will be responsible, with their own lived experience, in making standards.

I’ve always said this, that you need to be in the room when it comes to communications. It is just as important in policy making; you need to be in the room to make a difference and to influence change. In this case, CASDO will set regulations that will lead to better results for people in this country. I hope it reoccurs in other areas of policy development. Applying a disability lens is crucial in moving forward.

Barbara Collier, Executive Director of Communication Disabilities Access Canada explained in her testimony at committee what that organization represents. Her list included people with or affected by cerebral palsy, autism spectrum disorder, Down’s syndrome, learning disability, fetal alcohol syndrome, cognitive and intellectual disability, acquired brain injury, aphasia after a stroke, dementia, head and neck cancer, Lou Gehrig’s disease or ALS, Parkinson’s disease and multiple sclerosis.

(1910)

Senators, these are common conditions. It made me realize again that we will all face barriers to fully participating in society at some point in our lives. This is legislation that will affect us all in a positive way.

We learned at committee that many wheels are already in motion in anticipation of the bill coming into force. Job postings are already online for the chief accessibility officer and the CEO and board of the Canadian Accessibility Standards Development Organization, or CASDO. In fact, CASDO is expected to open its doors this summer. We know that the organizations responsible for accessibility have taken advanced steps towards planning regulations. In fact, the Canadian Transportation Agency, or CTA, has already released the first draft of its accessibility regulations.

Committee members gave the bill and its adopted amendments a deserved thorough study and consideration despite time constraints. I know that many of these amendments came right from the community, witnesses and organizations; I think we should pass the bill with these changes and let the other place do its job and reflect on our amendments. This is the process of our democracy and of our Parliament. We all need to move swiftly.

I will say it again: An accessible Canada act is a long-overdue recognition for human rights equality for 6.2 million — or one in five — Canadians. The 2017 disability survey also indicated that of the approximately 1.5 million Canadians with a disability aged 15 to 64 who are unemployed, approximately 654,000 are potential candidates for work in an inclusive, discrimination-free and accommodating labour market.

Yes, senators, there is a business case for inclusion. There is a huge untapped talent pool that could help improve Canada’s shrinking labour market.

As I mentioned, the spirit of collaboration on this bill has been and continues to be exceptional. I’m always an optimist, so over the course of study and consultations it became obvious that the removal of barriers is universal in scope and understanding. Together, our society is ready to take this step, the first of many towards a fair and equal-opportunity society. The momentum is with us.

Colleagues, I am proud of Bill C-81. I am proud of the amendments made at committee. We need to send the amended bill to the other place this week so that we can receive it back in time to do what Canadians have been asking us to do through testimony, letters, emails and phone calls: Give Canada a framework toward being barrier-free and accessible for all.

This is the time, colleagues. This is their time. It’s our opportunity to help make this happen and to be on the right side of history.

I will close tonight with some words from the great Jean Vanier, the master of inclusion. As you know, he passed away last week at the age of 90. At a 1998 Massey Lecture entitled Becoming Human, he said:

As we become more conscious of the uniqueness of others, we become aware of our common humanity. We are all fundamentally the same, no matter what our age, gender, race, culture, religion, limits or handicaps may be.

Honourable senators, as I said at the beginning of my speech, we are on a shared journey. What we have discovered on this journey is a new path of inclusion, a path where, as they say in the disability community:

Nothing About Us Without Us.

I recognize we haven’t satisfied everyone. That’s the way it is when you’re building something we have never had before: a Canada without barriers.

But we have done our job. We have discovered more about each other. We have captured the meaning of empathy. We have amended the bill. We recognize there will always be next steps. This is a step toward a more inclusive society.

Thank you very much.

Some Hon. Senators: Hear, hear!

[Translation]

Hon. Thanh Hai Ngo: Honourable senators, I rise today at third reading stage of Bill C-81, An Act to ensure a barrier-free Canada.

For one last time, I want to express my full support for the bill and commend the Standing Senate Committee on Social Affairs, Science and Technology on its excellent work. I also want to acknowledge the work of the chair of the committee, Senator Petitclerc, as well as that of the deputy chair, Senator Seidman, on a decisive and historic bill for Canada.

I won’t get into the details of the thorough review undertaken by the committee, since Senators Petitclerc and Seidman already did so quite eloquently. However, I’d like to draw your attention to the remarkable work that the committee has done since March 21, 2019.

The committee studied the bill in depth over the course of four meetings, with the intention of widening its scope. After hearing testimony from 20 interest groups four organizations, the committee did indeed make changes that are favourable to the primary goal of the bill.

Although I’m not a member of that committee, it is clear that those long, well-informed deliberations led to the adoption of 11 amendments. Through those deliberations, the vast and unique needs of many groups of disabled persons were identified by the committee, which led to specific amendments that improve Bill C-81 without jeopardizing its long-awaited passing.

To sum up, the changes to the bill remain faithful to its principles while doing more to recognize, eliminate and prevent barriers in all areas of federal jurisdiction. This new version of the bill also takes into account the fact that seniors living with disabilities also experience multiple and intersecting forms of marginalization and discrimination.

Another amendment recognizes sign languages as the primary language for communication by deaf persons in Canada and an integral part of their accessibility. After all, the recognition of sign languages constitutes an essential part of their culture and a valuable tool that enables them to participate in society.

[English]

Honourable senators, these are some examples of the positive changes that were made to the bill in consultation with experts and in collaboration with the extensive work that was previously accomplished in the other place.

I feel this bill should also act as a signal and reminder to the government regarding the recent news of 34 developmentally disabled federal workers who hold segregated and redundant jobs in Ottawa. Their contract is set to end in March 2020. I hope that, once enacted, this law will eventually represent further actions for every Canadian with a disability in order to help them become full, equal members of society.

After all, a barrier-free Canada requires us to understand the norms, societal attitudes and stigma that prevents people with intellectual, cognitive and physical disabilities from fully participating in society.

I truly believe this bill, once enacted, will be a tool for many organizations that are ready and have been patiently preparing for the implementation in order to respond to these emergent challenges and obstacles.

Honourable senators, this historic law is a testament of the great work that was accomplished in the hallmarks of this great chamber in defence of the rights of minorities.

It marks a new beginning. We will transform and address accessibility by becoming proactive instead of reactive for Canadians who do not want to be treated as a burden but as full and equal members of society as we continue to grow and learn how to become more inclusive. Thank you.

(1920)

Hon. Marty Deacon: Honourable senators, I rise to speak to Bill C-81, An Act to ensure a barrier-free Canada. I have listened with great interest to my colleagues, as well as to the many witnesses we had at the Social Affairs Committee. I speak today to share with you my perspective, my story, based on a lifetime of learning and action in this very important area.

When I arrived in Senate 15 months ago, there was much to learn; there is still much to learn. For instance, when I arrived here, I had incorrectly assumed that accessibility had already been addressed as a national issue with a fulsome national strategy. Why? Because my own formal leadership on accessibility began in Ontario, 14 years ago. I thought — silly me — that the same regulations were being mandated nationally, given how much time had elapsed since this successful law in Ontario was implemented and began its implementation in 2005.

Honourable senators, 2019 is far too late in the game to be discussing and mandating accessibility for all at the federal level, and it’s why the bill before us is so important.

In my previous life, as an educator, every day I was faced with an issue by a student, their family, a teacher or a community member who challenged fair, equitable and inclusive access. One case — and sometimes it just takes one — in particular crystallized for me what would be become a lifetime commitment to universal accessibility.

Imagine now a single mother with six children, all under the age of 10. Three of them carry the positive gene for Duchenne’s disease, a severe type of muscular dystrophy that over time reduces muscular function. It eventually results in the young person being immobilized, weakened and in need of a wheelchair.

The family survives on a low income, and, frankly, the school and the community are their lifeline. As principal of the school, on a one-floor facility, my staff and I gave the family everything we had, from meals to fundraisers, to transportation, to tutoring, and finally to the purchase of a well-used wheelchair for her oldest son, Ricky.

This school goes up to Grade 6, and now it becomes time for Ricky to graduate from junior school and move on to middle school. We meet with a team of educators and medical support people to determine the best plan for Ricky. As a former secondary school administrator, new to elementary administration, I learn that due to Ricky’s physical needs he will not be able to attend the middle school just down the road. There are just too many accessibility issues. Eventually, I learn that he will have to take a 50-minute bus ride to the nearest school that will provide some sort of wheelchair access.

How do I tell his mother, with so much on her plate already, that her son will now spend over 100 minutes a day with strangers, with different untrained bus drivers, travelling on several highways, with no significant network of support, and that in two years, if Ricky is able to keep on attending school, his ride to high school will be even more challenging and disconnected with yet another group of young people, all at the same time his condition worsens and that in two years she will have to go through this all over again with her next child?

As it turned out, it was a hard lesson I needed to learn. This was in 2005, the same year that the Ontarians with Disabilities Act became law. As you know, the act was aimed at identifying, removing and preventing barriers for people with disabilities. It applied then to government, non-profit and private sector businesses in Ontario that have one or more employees.

My own school board needed an established leader to commit to this AODA work for at least three years. Somewhat fortuitously, I was invited to take on this role. It was going to be tough work, very political, but an opportunity to bring many internal and external stakeholders together to do the right thing. Most of the table I worked with was represented by those representing diverse accessibility needs in our community. My job would be to ensure that all aspects of the act were being addressed, that all staff and volunteers were trained, that we had an accessibility policy and procedures, and that we had a multi-year accessibility plan with annual public updates, timelines and monitoring in place. I continued this leadership for 10 years. The work was ongoing and a challenge politically, financially and ensuring equity while the voices of all were heard.

Senator Moncion highlighted her work related to the AODA at second reading. I will not repeat her message. However, I will indicate how the “visible” and “invisible” needs of those with a disability are far-reaching and diverse. We started with the built environment and spaces in 130 buildings and new builds. I learned more about architecture, facility design, ramps, lifts, nine styles of elevators, more than I dreamed possible. One basic washroom to upgrade for one child was $35,000; one elevator was half a million dollars. How do you prioritize? Every student matters.

These are the more visible physical needs we are familiar with. It’s the invisible needs that are often overlooked; that is, making sure every individual — just as we do in the Senate — feels they are part of their community.

As a result of deep consultation, we were determined that every decision had to result in our students being able to attend a school within their family of schools, which is a geographically smaller region. This would not be the closest to their home, perhaps, but still in their community — full stop. We had to find the way and we did. Every decision was and continues to be backward mapped with this in mind; that is, to find a way to keep our students and families in their community.

Honourable senators, imagine your son or daughter being told they could go on a bus for a class trip with their classmates on a bus all by themselves — not with their friends, not with their peers.

One of my proudest moments was meeting with 200 bus drivers, getting some buses retrofitted, modified and ensuring more of our students could travel and experience being with their classmates. The visible need was physically getting the student to their destination by ensuring the best barrier-free environment. The invisible need was ensuring the student would not be stigmatized on a separate bus and they could contribute and participate in this class trip to the same extent as their peers — something they deserve.

This is why this legislation is so important. It will aim to make federally regulated entities so much more accessible. However, it will also unlock the potential of a huge group of Canadians who have been held back in one way or another. It will allow them to participate and contribute to their community in ways that, quite frankly, they should have been able to do long ago. With this legislation, Canada could become a world leader in accessibly. This leadership is sorely needed.

In my role as an international coach and sports leader travelling internationally, I saw first-hand and continue to see first-hand the great disparity in the respect and understanding of what it means to try to embrace and provide support for those with a disability. I observed countries that “hid” those with disabilities, countries whose representatives said to my face, “We have no citizens with disabilities.” I watched first-hand a political leader of a G7 country, while on Canadian soil, say, “There is no place for athletes with a disability in a major sporting event.”

Thankfully, this culture is changing. I’m excited to say, after 12 years of advocacy, my sport will have its debut at the 2020 Paralympics in Tokyo. To get to this point, again, we had to educate the countries that did not support their para-athletes and para-children, and did not demonstrate their beliefs in accessibility or inclusion. This has taken over a decade.

This past weekend, at Carleton University in Ottawa, I was able to speak with families and para-athletes from many countries about what sport means to them, what it means to be barrier-free and the work that must still continue around the world. The passage of Bill C-81 for Canada will set the kind of example needed to keep this momentum going.

Senators, I want to shift my thinking before I wrap up. I want to thank the steering committee of the Social Affairs Committee — Senator Munson, Senator Seidman and our chair, Senator Petitclerc, for guiding us through such a comprehensive and in-depth process. You have heard that said earlier this evening. It is so very true. It was a collective effort by all groups and caucuses represented at committee, and that showed in fulsome but respectful discussions that played out at clause-by-clause consideration of the bill, which led to some good amendments in the legislation.

To the large but important number of Canadians who will be directly affected by this legislation, I can say to you with confidence that every member of the Social Affairs Committee has listened to your concerns. I want to thank the many individuals who gave us such compelling evidence at committee, as well as the hundreds who took the time to write and meet with us. Colleagues, many of these stakeholders have been advocating for years. They are very tired, exhausted but hopeful for the immediate passage of this bill.

(1930)

While no piece of legislation is perfect, I am confident that the bill before us gives us a solid foundation and permission to rebuild our culture in the years to come. A senator last week reminded me that there is progress and there is perfection. This bill is no different. Bill C-81, the time for all is now. Thank you.

Hon. Yonah Martin (Deputy Leader of the Opposition): Honourable senators, I rise today also to speak very briefly at third reading of Bill C-81, An Act to ensure a barrier-free Canada. Bill C-81 enacts the accessible Canada act in order to enhance the full and equal participation of all persons, especially persons living with disability, in our society. This bill will require federally regulated entities across the country to ensure accessibility to workplaces, public spaces, employment, programs, services and information.

Bill C-81, as others have stated, is an important step in the right direction to address the barriers that many Canadians face. The message that we have heard from advocates has been the same: Bill C-81 is a good bill and deserves to be enacted into law but no one can be certain of the full effect that this bill will eventually have. This will require further knowledge and learning from a practical perspective and a commitment to work in consultation with stakeholders across Canada.

I want to associate myself with some of the very important comments that have been made in this chamber and especially recognize our colleague Senator Munson, who has dedicated so much of his life to really be quite a voice and a champion for Canadians with disabilities and, of course, on issues like autism. He has been a cosponsor on a number of events, and we have done some meaningful work together. I know that one of the motions that we cosponsored that recognized June as Deafblind Awareness Month recognizes this important subgroup of Canadians who are living with some incredible challenges.

This motion was adopted unanimously in 2015, and it was sort of thanks to our retired former colleague Senator Vim Kochhar who many of us know to be a real champion and a strong voice for Canadians living with physical disabilities as well as other disabilities. Through his outstanding effort and inspiration, we have worked together to achieve certain outcomes through the Senate. Senator Kochhar also cofounded the Canadian Helen Keller Centre and Rotary Cheshire Home, which is said to be one of the only facilities in the world where those who live with deaf-blindness can live independently.

Some of the intervenors who have come to the Hill have spoken about their work to help Canadians living with deaf-blindness communicate. Their work is truly astonishing. It’s a real calling for them to serve in this capacity. They work in a unique space where they allow those who cannot communicate otherwise to communicate with the outside world.

I also know that the work of our former colleague Senator Asha Seth also led to a motion to designate May as National Vision Health Month. That, too, was unanimously adopted in the Senate.

I stand together with many of you who have spoken on this measure and also recognize the great work of our Social Affairs Committee, the chair, the deputy chair and committee members to ensure that important amendments were adopted that will help towards ensuring a barrier-free Canada as is envisioned in this bill.

I had the opportunity to meet with the Canadian Association of the Deaf and President Frank Folino, who was also a witness during committee hearings on this bill, as well as Bill Adair, Executive Director, Spinal Cord Injury Canada. They expressed their firm support of passage of Bill C-81 as a very important step, but they were also hopeful that there will be continued vigilance and effort towards proper implementation and, of course, that same intention beyond implementation. In some ways we have achieved this important milestone, but our work will begin to ensure that implementation and the work beyond implementation will be successful.

I recognize these men and others who have been the real heroes and champions who inspired this important legislation and once again thank our colleagues Senator Munson, Senator Ngo and members of the Social Affairs Committee for your leadership helping this chamber arrive at this significant moment in our legislative history.

Your Honour and honourable senators, I am definitely ready for the question.

Hon. Tony Dean: Thank you Senator Martin and others who have spoken. Thank you, Senator Munson, for your very fine sponsorship of this legislation.

I have some brief introductory remarks and then I want to speak specifically about the inclusion of communication in this bill as a category of challenge in the spectrum of disabilities.

I rise to add my voice to Bill C-81, An Act to ensure a barrier-free Canada. We all know now that the stated policy objective of this important and historic piece of legislation is to enhance the full and equal participation of all individuals, with a special emphasis for those living with disabilities. The bill is designed to achieve a barrier-free Canada through the identification, removal and prevention of barriers in areas of federal jurisdiction.

Many groups, including various disability advocacy groups, support Bill C-81 and are urging us to pass this bill before our summer break. Senate leaders met on April 4 to sign an agreement to ensure several pieces of legislation are voted on prior to the break and the next federal election. This bill is one of them.

I want to take this opportunity to congratulate the facilitator of the Independent Senators Group, the Leader of the independent Senate Liberals, the Government Representative in the Senate and the Senate Conservative Leader on this important modernizing step. You will know, I think, that I and others here believe that we could benefit greatly from more organized and effective business planning of this sort. Moreover, that’s what Canadians expect of us, and they expect and deserve timely votes on all bills, but particularly on bills that are inclusive of all members of our society and that aim to protect some of our most vulnerable people, bills like Bill C-81.

An act to ensure a barrier-free Canada is a direct response to a 2016 federal budget announcement that made a commitment to “eliminate systemic barriers and deliver equality of opportunity to all Canadians living with disabilities.”

Among other things, the bill aims to guide future interpretations of the accessible Canada act by setting out important principles and including a provision that states that all persons, regardless of their abilities or disabilities, must be treated with dignity, enjoy equality of opportunity, be able to fully and equally participate in society without barriers and have autonomy.

It also establishes the application of the accessible Canada act bringing greater clarification to which bodies and entities are bound by accessibility legislation and allows the Governor-in-Council to designate a minister to be responsible for this act.

Another important piece of this legislation is the proposed establishment of the Canadian accessible standards development office, CASDO, which Senator Munson has spoken about eloquently.

I emphasize that the CASDO would be overseen by a board of directors whose majority identify as persons with disabilities. The board would be responsible for setting the organization’s strategic direction and managing the activities and affairs in accordance with its mandate.

The inclusion of people with disabilities on the board would ensure fair representation for the many Canadians who don’t currently have a voice in accessibility standards.

Honourable senators, while no single area of accessibility is more important than any other, I would like to now focus some remarks on the issue of communication.

I am delighted that communication is recognized in key definitions in this bill, including in the definitions of barrier and disability. This legislation says that “barrier” means anything including physical, architectural, technological or attitudinal that is based on information or communications or anything that is the result of a policy or practice that hinders the full and equal participation in society of persons with a physical, mental, intellectual, learning, communication, sensory impairment or functional limitation.

(1940)

It also defines “disability” as a physical, mental, intellectual, learning, communication, sensory impairment or functional limitation, whether permanent, temporary or episodic in nature that an interaction with a barrier hinders a person’s full and equal participation in society.

This recognition of communication is critically important, as communication includes the half million Canadians who have speech and language disabilities that are not caused by significant hearing loss and who do not require or use sign language. They may have lifelong disabilities, such as cerebral palsy, autism, spectrum disorder, Down syndrome, learning or cognitive disabilities. Other people may have acquired disabilities that affect communication, such as traumatic brain injury, stroke, dementia, ALS, multiple sclerosis and much more.

Having a communication disability can affect one or more areas of a person’s ability to speak, to understand what others are saying, read or write. People with theses disabilities may communicate using unclear speech, writing, typing, pictures, symbols, speech-generating devices, sign language interpreting, captioning and communication assistive devices.

Recognizing the broad scope of communication is also consistent with the optional protocol to the United Nations Convention on the Rights of People with Disabilities, of which Canada is a signatory. This is obviously important for many reasons, but I’d like to highlight a tangible example for honourable senators to consider.

Similar to the need for sign language services for people who are deaf or translation services for people who don’t speak English or French, victims, witnesses and accused persons with speech and language disabilities may require appropriate communication supports in police, legal and justice services. Despite the fact that people with speech and language disabilities are at high risk for all types of abuses and crimes — and remember, for violators, the best victims are often the ones who are perceived not to be able to tell. Communication support services in police, legal and justice services are not routinely provided as an accessibility accommodation.

Communications intermediaries are qualified speech-language pathologists who have extra training from Communication Disabilities Access Canada, CDAC, to work in justice settings. CDAC maintains a database of trained intermediaries with limited funding from a small private foundation. These services are provided to people who require assistance, understanding questions posed to them or supporting them communicating what they want to say to police, legal and justice professionals.

In a case in Canada I recently learned about, an elderly woman indicated to her son, a police officer, that she had been sexually assaulted by a personal support worker in a retirement or long-term care facility. The woman had a stroke two years before the incident, which left her with aphasia, a communication disorder that results from damage to the language centres of the brain. She had difficulty understanding spoken language and expressing her thoughts in words, as well as difficulties in reading and writing. She communicated what happened using gestures, some speech and pointing to pictures.

The Crown attorney recognized that she would require assistance to communicate in court and engaged a communication intermediary who conducted an assessment. The intermediary concluded that the woman could effectively communicate in court if provided with appropriate communication intermediary support to ensure that she rephrase questions posed to her in ways she could understand and to facilitate her responses using pictures. The judge denied the woman access to the communication supports that she required to testify.

This case illustrates the lack of understanding about accessibility accommodations required by a victim, witnesses or an accused person who has speech and language disability.

Having strong accessibility legislation in place makes it mandatory for all justice services to provide people with the communication accommodations and supports they need, including communication boards, speech-generating devices, sign language interpretation, captioning and communications assistance devices, and is an important move in ensuring that the policy objectives of this bill are realized. Access to appropriate supports for people living with disabilities that affect communications would go beyond our justice system and would also include access to health services, education and more.

Honourable senators, I want to share with you one other brief story, the story of a friend of mine of 30 years who in the past several months came to know all too well the challenges associated with difficulty in communications. Kim Clarke Champniss, as some of you will recall from his work in the heyday of MuchMusic as a veejay, TV producer and a challenging interviewer of the world’s top rock and roll artists, lost his voice permanently in the past months due to radical throat surgery that was used to address throat cancer.

I’ve watched Kim over the last weeks and months heroically take on this challenge, including the challenge of access to supports and technologies that would assist in his ability to continue engaging in the world with his upbeat energy and curiosity about the human condition. Kim will get through this. He would say, “I’m all right, Tone. I’m all right.” But Kim would also wish for better services for those who were alongside him and those who will undoubtedly follow him with communications challenges.

I would urge the government to ensure someone with a disability that affects their speech, language and communication be considered as a member of the board of the proposed Canadian Accessibility Standards Development Organization, CASDO, which was mentioned earlier. Their contributions would greatly benefit the 500,000 people living with speech and language difficulties and ensure that no one is left behind.

I would also like to recognize that standards and regulations under Bill C-81 will need to be updated every five years, which allows for changes in innovation. They will also require public review before they are adopted.

I close by saying, senators, that Bill C-81 needs to pass now. We have an obligation as parliamentarians and senators to protect the needs of all Canadians, especially those who are among the most vulnerable in our society. I strongly believe that acknowledging this community is an essential part of meeting the objectives of this bill, which will ultimately aim to remove and prevent barriers for all people in this country.

I end by thanking Barbara Collier, who has been a tireless advocate for a communications amendment passed in the House of Commons. With these final words, I would ask my honourable colleagues to join me in voting in favour of Bill C-81, An Act to ensure a barrier-free Canada. Thank you, all.

The Hon. the Speaker: Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and bill, as amended, read third time and passed.)



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The Senate Standing Committee on Social Affairs’ Chair and Vice-Chair Make Strong Speeches in the Senate to Support the Committee’s Amendments to Improve Bill C-81, the Proposed Accessible Canada Act -These Speeches Show Why the Federal Government Should Agree to Pass All Those Amendments


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

The Senate Standing Committee on Social Affairs’ Chair and Vice-Chair Make Strong Speeches in the Senate to Support the Committee’s Amendments to Improve Bill C-81, the Proposed Accessible Canada Act –These Speeches Show Why the Federal Government Should Agree to Pass All Those Amendments

May 10, 2019

            Summary

On Wednesday, May 8, 2019, the full Senate voted to formally accept the report of the Senate’s Standing Committee on Social Affairs on Bill C-81, the proposed Accessible Canada Act. Below we set out the two strong speeches made in the Senate at that time, by the Standing Committee’s chair and vice chair. Together these speeches show why the House of Commons should vote to pass all the amendments to Bill C-81 that the Senate’s Standing Committee adopted. These speeches make a compelling case for those amendments.

On May 6, 2019, the AODA Alliance wrote federal Disabilities Minister Carla Qualtrough. We asked the Federal Government to agree to pass all the Senate Standing Committee’s amendments. The Minister has not yet responded. To our knowledge, she has not yet made that commitment. If the Federal Government does not pass all those amendments in the House of Commons, that will both weaken Bill C-81 and risk Bill C-81 not being finally passed by Parliament before it rises for the fall election.

The Senate is moving the bill to Third Reading debates. We understand that those debates will occur next week, with a final vote on or before Thursday, May 16, 2019. The Senate’s acceptance of the Standing Committee’s report is a formality, needed to move the bill to Third Reading.

We are eager for you to email or tweet as many Members of Parliament as you can. Press them to agree to pass all the amendments that the Senate Standing Committee made to Bill C-81. For action tips on how you can help press the Federal Government to agree to pass ALL the amendments to Bill C-81 that the Senate passed, and to read our May 6, 2019 letter to federal Disabilities Minister Carla Qualtrough (explaining why we need all these amendments passed), visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/

To find your MP’s email address or Twitter handle, visit https://www.ourcommons.ca/en and search for their contact information.

To read the text of the Senate Standing Committee’s amendments to Bill C-81, and a good explanation of them by the ARCH Disability Law Centre, visit https://www.aodaalliance.org/whats-new/more-specifics-on-the-amendments-to-bill-c-81-the-proposed-accessible-canada-act-that-the-senates-standing-committee-passed-and-that-we-want-the-house-of-commons-to-ratify-still-no-commitment-by /

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

For all the background on our efforts to get the Federal Government to enact a strong and effective national accessibility law, visit www.aodaalliance.org/canada

Please send us your feedback. Email us at [email protected]

            MORE DETAILS

Hansard Senate of Canada May 8, 2019

Originally posted at https://sencanada.ca/en/content/sen/chamber/421/debates/285db_2019-05-08-e

Thirty-fourth Report of Social Affairs, Science and Technology Committee—Debate

The Senate proceeded to consideration of the thirty-fourth report of the Standing Senate Committee on Social Affairs, Science and Technology (Bill C-81, An Act to ensure a barrier-free Canada, with amendments and observations), presented in the Senate on May 7, 2019.

Hon. Chantal Petitclerc moved the adoption of the report.

She said:

Honourable senators, I rise today in support of the thirty-fourth report of the Social Affairs, Science and Technology Committee. The report deals with Bill C-81, An Act to ensure a barrier-free Canada.

[English]

Bill C-81 proposes to enact the accessible Canada act, with the objective of enhancing the full and equal participation of all persons living with disabilities in society through the identification, removal and prevention of barriers within areas under federal jurisdiction. It would also make related amendments to a number of other acts.

The proposed legislation adds to the rights and protections currently available to persons with disabilities, including those set out under the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the United Nations Convention on the Rights of Persons with Disabilities.

Bill C-81 was referred to the Senate Standing Committee on Social Affairs, Science and Technology on March 21, 2019.

[Translation]

Pursuant to the leaders’ agreement, the committee was supposed to report back by yesterday, May 7, 2019, and it did. I sincerely thank my committee colleagues who, despite the tight deadlines created by that agreement, were able to study the bill very efficiently. The committee wouldn’t have been able to complete its report on time if it weren’t for our highly efficient clerk, Daniel Charbonneau, and Library of Parliament analysts Laura Munn-Rivard and Mayra Perez-Leclerc. I sincerely thank them.

A few groups wanted to take part in our study. We thank them for their interest and, above all, for their understanding since they were unable to appear in person.

[English]

In its study of the bill, the committee endeavoured to follow the principle, “nothing about us without us,” consulting with advocacy groups, accessibility experts and other relevant witnesses from the disability community across Canada. On behalf of the committee, thank you to the members of the disability community who offered their knowledge, expertise, ideas and insights on this important piece of legislation.

Over 4 meetings, the committee heard from 20 witnesses and received more than 70 emails from the public and more than a dozen briefs from experts and organizations. Based on the testimony we received, the committee made 11 amendments and 2 observations to Bill C-81 with the goal of strengthening the legislation.

With regard to a timeline, January 1, 2040 has been added to the legislation as a deadline by which Canada must become accessible to persons with disabilities. To address concerns that a deadline acts as a disincentive to quick implementation, Bill C-81 is also amended to state that nothing in the act authorizes any delay in the removal of barriers or the implementation of measures to prevent new barriers as soon as possible.

As well, the preamble section of the bill is amended to state that the identification, removal and prevention of barriers to accessibility must be done without delay.

The deadline of January 1, 2040 was suggested by multiple expert witnesses, including the Honourable David Onley, as a reasonable time frame. Witnesses said that identifying a date was necessary to measure progress, strengthen accountability and propel the implementation of Bill C-81.

[Translation]

Clause 6 of the bill, which sets out the principles of the proposed legislation, is amended by the committee to reflect the fact that people with a disability face many intersecting forms of marginalization and discrimination. This issue was raised several times in committee and in the briefs we received. The purpose of this amendment is to recognize the unique challenges faced by people living with disabilities. For example, handicapped seniors regularly face ageism and may also live in poverty. This enhancement of Bill C-81’s principles is important because the legislation provides that the organizations concerned take these principles into consideration when developing their accessibility plans.

[English]

Sign languages in Canada receive express recognition in the amended legislation in two ways.

First, clause 5.1, the clarification provision regarding the identification, removal and prevention of barriers under the area of communication other than information and communication technologies, is amended to include the use of American Sign Language, Quebec Sign Language and Indigenous Sign Languages.

Second, another amendment in the same clause recognizes sign languages as the primary language for communication by deaf persons in Canada.

Many witnesses stated that for people in the Deaf community, sign language is their primary language and a critical part of their culture, enabling them to participate in society.

As well, witnesses pointed to the United Nations Convention on the Rights of Persons with Disabilities, which states that:

Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.

[Translation]

The bill is also amended by adding clause 121.1 to indicate that nothing in any provision of the new accessible Canada act or its potential accompanying regulations limits an otherwise regulated entity’s duty to accommodate.

Several witnesses stated that it was important that Bill C-81 not lessen the federal government’s existing human rights obligations. Experts from the community of people living with disabilities noted that experience with provincial accessibility legislation suggests that regulated entities could fail to provide accommodations because they mistakenly believe that compliance with accessibility regulations fulfils or eliminates their duty to accommodate.

[English]

(1500)

The legislation is amended to modify section 172(2) of the Canada Transportation Act, with the goal of removing the Canadian Transportation Agency’s ability to dismiss a complaint about inaccessibility in the federal transportation system if the transportation provider has complied with regulations made by the agency.

Some witnesses expressed concern that the regulations made by the Canadian Transportation Agency may not meet the legal duty to accommodate up to the point of undue hardship and may not address individual requirements of people with disabilities.

[Translation]

Finally, two committee amendments, to clauses 94(4) and 143, bring Bill C-81 in line with the Royal Canadian Mounted Police Act. With the adoption of the accessible Canada act, members of the Royal Canadian Mounted Police will be able to file complaints with the accessibility commissioner and receive compensation, just like other public servants.

Your committee also made two observations to the federal government, which are appended to the report. The committee encouraged the government to ensure that public money is never used to create or perpetuate disability-related barriers when it is reasonable to expect that such barriers can be avoided. Furthermore, the committee strongly encouraged the government to create standardized, effective training that will ensure that all Canadians can expect the same level of access to all government services.

Honourable colleagues, the Senate’s legal counsel discovered a technical error in the French version of amendment 5(b) of the report that the committee tabled on May 7, 2019. The report states, “remplacer les lignes 22 et 23.” However, it should state, “remplacer les lignes 22 à 26.” The word “et” should be replaced by “à,” and the number “23” should be replaced by “26” in the French version. This is a human error that must be fixed so that we can immediately start building a barrier-free Canada for the 6.2 million Canadians living with a disability.

Motion in Amendment Adopted

Hon. Chantal Petitclerc: Therefore, honourable senators, with leave of the Senate, in amendment, I move:

That the thirty-fourth report of the Standing Senate Committee on Social Affairs, Science and Technology be not now adopted, but that it be amended in amendment 5b), in the French version, by replacing the instruction line with the following:

“b) remplacer les lignes 22 à 26 par ce qui suit :”.

The Hon. the Speaker: Honourable senators, since Senator Petitclerc moved the adoption of the report, she cannot amend it without leave.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

(Motion in amendment of the Honourable Senator Petitclerc agreed to.)

[English]

(Later that day in the Senate)

Thirty-fourth Report of Social Affairs, Science and Technology Committee Adopted

On the Order:

Resuming debate on the motion of the Honourable Senator Petitclerc, seconded by the Honourable Senator Verner, P.C., for the adoption of the thirty-fourth report, as amended, of the Standing Senate Committee on Social Affairs, Science and Technology (Bill C-81, An Act to ensure a barrier-free Canada, with amendments and observations), presented in the Senate on May 7, 2019.

Hon. Judith G. Seidman: Honourable senators, I rise today to speak to the Standing Senate Committee on Social Affairs, Science and Technology’s thirty-fourth report on Bill C-81, An Act to ensure a barrier-free Canada.

Our committee studied this piece of legislation extensively and heard testimony from 20 advocacy groups and umbrella organizations. These included the Federal Accessibility Legislation Alliance, a network comprised of 85 organizations; the Canadian Association of the Deaf; Barrier Free Canada, advocates for accessibility legislation; AGE-Well, Canada’s technology and aging network; March of Dimes Canada, an organization that offers a wide range of programs and services to persons with disabilities; the Canadian National Institute for the Blind; the Council of Canadians with Disabilities, a national human rights organization of people with disabilities; Confédération des organismes de personnes handicapées du Québec; and the Canadian Human Rights Commission, all who bring representation of Canada’s disability communities.

Although virtually all of the testimony we heard called on us to pass this bill with a degree of urgency, without exception witnesses expressed concerns about certain omissions they asked us to address. While the reflected desire for this legislation was strong, the desire to improve it was even stronger.

After much deliberation and discussion, our committee adopted 11 amendments. Today, I rise to speak to two of these amendments in particular that were raised with consistency throughout our committee hearings.

First, the amendment that addresses the issue of timelines. What we heard from many advocacy groups is that timelines are an essential accountability measure and are necessary if we are to achieve the purpose of this legislation. For example, Ms. Donna Jodhan, the President of Barrier-Free Canada, said during her testimony on May 1:

Bill C-81 requires timelines. Timelines are essential to ensure that key accessibility measures are taken. Timelines are also required so that progress on accessibility can be measured. In particular, we support recommendations for the bill to include a timeline for achieving a Canada without barriers and timelines with which accessibility standards are developed and enacted by law.

As another example, Ms. Zinnia Batliwalla, the National Manager, Government Relations and Advocacy for March of Dimes Canada, said during her testimony on April 11:

To enable organizations like ours to measure progress and urge change, timelines allow us to better work with our government partners to ensure we are actively moving toward an accessible and inclusive Canada.

Steven Estey, the Government and Community Relations Officer for the Council of Canadians with Disabilities, said during his testimony on April 10:

Bill C-81 is silent on those timelines. That concerns us, not because we feel there is a lack of good intention, not because we feel that officials don’t want to move forward, but because five or ten years down the road, we can begin to have meetings. If there is no backstop or wall against which we can say the time has come, people can say, “We’re working very hard. We’re doing good things.” There is no way to say that we’re going to get there by a certain time. We are concerned about that.

The former Lieutenant Governor of Ontario, the Honourable David Onley, who has been long involved in developing Ontario’s accessibility legislation, made an interesting point. He said that if we make only one amendment to this legislation, it must be around timelines. During his testimony on May 1, the Honourable Mr. Onley stated:

I was part of the discussions at the very beginning in 2005 and the first chair of the minister’s advisory committee on the implementation of the act. I, along with most of the members of the first advisory committee, felt that moral suasion and goodwill would be sufficient to achieve the objectives . . . .

Having listened, as I mentioned, to hundreds of people from across the province and taken submissions via email and in person, my views changed. I now believe quite firmly that the only way we’re going to achieve true and full accessibility is for the various standards and objectives to have a definable date in place and a government that is willing to enforce the implementation of these measures.

(1510)

This is the type of consistent testimony that led the committee to support the date of January 1, 2040, for Canada to become barrier-free. This will give the federal government and the obliged federally regulated entities 21 years to take the necessary steps to reach their accessibility requirements, a time frame that is neither too far nor too near. It was said to be one that is realistic and will be seen in our lifetimes.

However, we also made an amendment to ensure that accessibility measures would not be delayed or postponed but enacted as soon as possible. In fact, we added a new clause to the bill, clause 5.2, which states:

Nothing in this Act, including its purpose of the realization of a Canada without barriers, should be construed as requiring or authorizing any delay in the removal or implementation of measures to prevent new barriers as soon as is reasonably possible.

The other amendment I would like to address is the recognition of sign languages as the language of the deaf community. Many organizations that represent Canada’s deaf community spoke about the importance for Bill C-81 to recognize sign languages as a way to ensure that deaf persons have equal access to information, communication, employment, government services, transportation and other federally regulated sectors.

As an example, Bill Adair, the Executive Director of the Federal Accessibility Legislation Alliance, said during his testimony on April 10:

. . . we want Bill C-81 to recognize ASL and LSQ as the languages of people who are deaf in Canada. We are not asking for official language status. We are asking that sign languages be included as an integral part of Bill C-81.

This is why. If it were not for the use of signing here today, any person in this room who is deaf would not be privy to my remarks and to the discussions that will follow. This is true of all public hearings. Indeed, the very name implies that these meetings are for those who can hear.

More importantly, if catastrophe were to suddenly strike us, a person who is deaf would not have access to potentially life-saving information. This was the case recently in Pearson Airport when a fire broke out.

Please ensure that ASL and LSQ are written right into Bill C-81 so that there is an expectation for federally regulated entities to provide resources and newsworthy information in sign languages.

Frank Folino, President of the Canadian Association of the Deaf, said during his testimony on May 1:

We commend the Government of Canada and the minister for introducing Bill C-81, which is an important and positive step toward becoming an accessible Canada. However, an integral part of Bill C-81 will achieve its purposes of a barrier-free Canada with legal recognition of ASL and LSQ as the languages of deaf people because this does make a tremendous difference for deaf Canadians, through accessibility, information, communications and services.

Our committee learned about the deaf culture, one which has its own defining characteristics and includes sign languages, cultural norms, historical traditions and heritage. For all of us, this new understanding was very significant and led us to amend the bill to recognize the important role that sign languages play in the lives of Canada’s deaf community.

Honourable colleagues, I am extremely proud of the collaboration of our committee members. We have weighed and considered very carefully the passionate testimony we heard from the disability communities. Although the needs of the disability communities are broad and unique, we believe we were able to focus on a few clear amendments that will add value to Bill C-81 without endangering its passage. Through our work, we are convinced that we have both reaffirmed our committee to the United Nations Convention on the Rights of Persons with Disabilities and made a meaningful piece of legislation even better in response to overwhelmingly consistent requests from the disability communities to the benefit of all Canadians.

Honourable colleagues, I hope that you will support the report of our Social Affairs, Science and Technology Committee on Bill C-81. Thank you.

The Hon. the Speaker: Are honourable senators ready for the question?

It was moved by the Honourable Senator Petitclerc, seconded by the Honourable Senator Verner that this report, as amended, be adopted now.

Is it your pleasure, honourable senators, to adopt the motion?

Hon. Senators: Agreed.

(Motion agreed to and report, as amended, adopted.)

The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?

(On motion of Senator Munson, bill, as amended, placed on the Orders of the Day for third reading at the next sitting of the Senate.)



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More Specifics on the Amendments to Bill C-81 (the Proposed Accessible Canada Act) that the Senate’s Standing Committee Passed and that We Want the House of Commons to Ratify – Still No Commitment by the Federal Government to Ratify All the Senate’s Amendments


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

More Specifics on the Amendments to Bill C-81 (the Proposed Accessible Canada Act) that the Senate’s Standing Committee Passed and that We Want the House of Commons to Ratify – Still No Commitment by the Federal Government to Ratify All the Senate’s Amendments

May 9, 2019

          SUMMARY

Here’s the latest news regarding Bill C-81, the proposed Accessible Canada Act. It has reached the final stage in its debates in Canada’s Senate, Third Reading debates. That is expected to wind up by May 16, which happens to Be Global Accessibility Awareness Day. the Federal Government has still not committed to pass all the amendments that the Senate’s Standing Committee made to the bill at the disability community’s request to improve it.

  1. We now have the exact wording of the amendments to Bill C-81 that the Senate’s Standing Committee passed on May 2, 2019. Below we set out the formal report of that Standing Committee to the Senate. That report lists the specific amendments.

These amendments improve the bill. However, they do not include all the improvements that disability organizations and advocates sought, including the AODA Alliance.

The amendments include:

* Setting 2040 as the end date for Canada to become accessible;

* Ensuring that this 2040 timeline does not justify any delay in removing and preventing accessibility barriers as soon as reasonably possible;

* Recognizing American Sign Language, Quebec Sign Language and Indigenous Sign Languages as the primary languages for communication used by Deaf people;

* Making it a principle to govern the bill that multiple and intersectional forms of discrimination faced by persons with disabilities must be considered;

* Ensuring that Bill C-81 and regulations made under it cannot cut back on the human rights of people with disabilities guaranteed by the Canadian Human Rights Act;

* Ensuring that the Canadian Transportation Agency cannot reduce existing human rights protections for passengers with disabilities when the Agency handles complaints about barriers in transportation; and

* Fixing problems the Federal Government identified between the bill’s employment provisions and legislation governing the RCMP.

  1. The ARCH Disability Law Centre has posted online a helpful explanation of these amendments. We set it out below.
  1. When a Senate Standing Committee reports back to the whole Senate on a bill it has studied, it can include in its report “observations” about the bill. These set out the Committee’s advice to the Federal Government. They are not binding on the Government, but are meant to put real pressure on the Government to address them.

The Senate Standing Committee’s report, set out below, included two observations about Bill C-81. The first observation, under the heading “Federal Contracts,” commendably raises a concern that the AODA Alliance has raised for some time. It states:

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

The Committee’s second observation “…strongly encourages the government to create standardized, effective training that will ensure that all persons in Canada can expect the same level of access to all government services.”

  1. The Federal Government has still not publicly said whether it will pass all the Senate’s amendments to Bill C-81. On May 6, 2019, we wrote federal Disabilities Minister Carla Qualtrough to ask her Government to commit to do so. She has not yet responded to us.

Of special importance are the Senate’s amendments that set 2040 as the end timeline for Canada to become fully accessible to people with disabilities. The minister has in the past spoken in opposition to amendments that would make this change to the bill.

Of interest, the minister yesterday was asked about this in the House of Commons. On May 8, 2019, she appeared before the House of Commons’ Standing Committee on Human Resources (the HUMA Committee). Conservative MP (and Committee vice-chair) John Barlow asked Minister Qualtrough whether she would support passage of all the amendments that the Senate made to Bill C-81. We express our thanks to MP  Barlow for raising this with the minister.

In this request, MP Barlow specifically mentioned the amendments setting 2040 as the time line for reaching accessibility.

In her response, the Minister said:

“I certainly was open, as I told senators, to amendments within their process, but I’m very mindful that of course that is their process to run. I’m looking at their suggestions, looking at what the government thinks would be the best for this law and I’m open to many of their amendments, yes.”

It is not news that the Minister is open to “many” of the Senate’s amendments. Of the 11 amendments passed, a majority of them were proposed in the Senate by the Government’s own sponsor of the bill, Senator Jim Munson, or had been the subject of prior Government signals of support for them.

The only real open question is over setting the 2040 timeline. Four of the amendments speak to this.

The Minister did not say that she is open to all of the Senate’s amendments. That is why we need as many of you as possible to now email or tweet the Federal Government to press for the Government to support all the Senate’s amendments to the bill.

To get action tips on how you can help press the Federal Government to agree to pass ALL the amendments to Bill C-81 that the Senate passed, and to read our May 6, 2019 letter to federal Disabilities Minister Carla Qualtrough (explaining why we need all these amendments passed), visit https://www.aodaalliance.org/whats-new/help-our-new-blitz-to-get-the-house-of-commons-to-swiftly-ratify-all-the-amendments-to-bill-c-81the-proposed-accessible-canada-act-that-the-senate-standing-committee-has-passed/

To find your MP’s email address or Twitter handle, visit https://www.ourcommons.ca/en and search for their contact information.

          MORE DETAILS

Text of the Report to the Senate of Canada on Bill C-81 by the Senate’s Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities

Originally posted at https://sencanada.ca/en/committees/report/74724/42-1

May 7, 2019

The Standing Senate Committee on Social Affairs, Science and Technology has the honour to present its

THIRTY-FOURTH REPORT

Your committee, to which was referred Bill C-81, An Act to ensure a barrier-free Canada, has, in obedience to the order of reference of March 21, 2019, examined the said bill and now reports the same with the following amendments:

  1. Preamble, page 1: Replace line 15 with the following:

“bility without delay complements the rights of persons with disabil-”.

  1. Clause 5, page 3: Replace line 13 with the following:

“ers, on or before January 1, 2040, particularly by the identification and removal of bar-”.

  1. Clause 5.1, page 4: Replace lines 1 to 5 with the following:

5.1 (1) The area of communication referred to in paragraph 5(c.1)

(a) includes the use of American Sign Language, Quebec Sign Language and Indigenous sign languages; and

(b) does not include broadcasting as defined in subsection 2(1) of the Broadcasting Act or telecommunications as defined in subsection 2(1) of the Telecommunications Act.

(2) American Sign Language, Quebec Sign Language and Indigenous sign languages are recognized as the primary languages for communication by deaf persons in Canada.”.

  1. New clause 5.2, page 4: Add the following after line 5:

5.2 Nothing in this Act, including its purpose of the realization of a Canada without barriers, should be construed as requiring or authorizing any delay in the removal of barriers or the implementation of measures to prevent new barriers as soon as is reasonably possible.”.

  1. Clause 6, page 4:

(a) Replace lines 12 to 14 with the following:

“wish to have regardless of their disabilities;”; and

(b) replace lines 22 to 26 with the following:

“must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons;

(f) persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures; and

(g) the development and revision of accessibility stan-”.

  1. Clause 11, page 6: Replace line 6 with the following:

“Canada without barriers on or before January 1, 2040.”.

  1. Clause 18, page 7: Replace line 14 with the following:

“tribute to the realization of a Canada without barriers, on or before January 1, 2040,”.

  1. Clause 94, page 54:

(a)  Replace lines 9 to 17 with the following:

(4) An individual is not entitled to file a complaint in re-”; and

(b) replace line 22 with the following:

(5) The Accessibility Commissioner must cause a written”.

  1. New clause 121.1, page 67: Add the following after line 21 :

121.1 For greater certainty, nothing in any provision of this Act or the regulations limits a regulated entity’s duty to accommodate under any other Act of Parliament.”.

  1. Clause 143, page 77: Replace line 10 with the following:

“subsection 94(5), 96(1), 100(2), 101(2) or 103(3), the Ac-”.

  1. Clause 172, pages 88 to 91:

(a) On page 88, replace line 37 with the following:

172 Section 172 of the Act is replaced by”;

(b) on page 89,

(i) replace lines 3 to 12 with the following:

(2) On determining that there is an undue barrier to the”, and

(ii) replace lines 34 and 35 with the following:

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

(c)  on page 90, replace line 25 with the following:

172.2 (1) For the purpose of paragraphs 172(2)(d) and”;

(d) on page 91, replace line 5 with the following:

“graphs 172(2)(b) and (c) and 172.1(2)(b) and (c) may in-”; and

(e) renumber the remaining clauses and amend all references to them accordingly.

Your committee has also made certain observations, which are appended to this report.

Respectfully submitted,

JUDITH G. SEIDMAN

Deputy Chair

Observations

to the thirty-fourth report of the Standing Senate Committee on Social Affairs, Science and Technology (Bill C-81)

Federal Contracts:

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

Training:

Your committee is concerned that while the goal of this legislation is to prevent, identify and remove disability-related barriers, this legislation does not sufficiently emphasize how important the education and training of front-line personnel is in accomplishing that end. Your committee strongly encourages the government to create standardized, effective training that will ensure that all persons in Canada can expect the same level of access to all government services.

ARCH Disability Law Centre Analysis of the Senate Standing Committee’s Amendments to Bill C-81

Originally posted at https://archdisabilitylaw.ca/update-se

May 7, 2019

Update: Senate Committee Adopts Amendments which Strengthen Bill C-81- Accessible Canada Act

Introduction

Bill C-81, An Act to ensure a barrier-free Canada, continues its journey through the legislative process. If it becomes law, this Act may lead to new requirements for advancing accessibility in federal employment, transportation, services, information and communications, and other areas.

On May 2, 2019 the Senate Standing Committee on Social Affairs, Science and Technology (SOCI) made a number of amendments to Bill C-81. Many of these amendments were adopted in response to the written and oral submissions that the Senate received from disability groups and members of disability communities across Canada. ARCH supported disability communities in their advocacy, and made our own oral and written submissions to the Senate. A common theme among these submissions was the need for the Senate to make changes to strengthen Bill C-81 and ensure that it achieves its purpose of a barrier-free Canada.

What Amendments Did the Senate Committee Adopt?

Including Timelines: SOCI adopted amendments which add a timeline of 2040 for realizing a barrier-free Canada. Amendments also clarify that this timeline does not authorize any delay in removing or preventing barriers to accessibility, and that action to advance accessibility should be taken as soon as reasonably possible. Including timelines is an important accountability mechanism, which many disability organizations advocated for, including the AODA Alliance, the Council of Canadians with Disabilities and ARCH.

Taking Intersectionality Into Account: SOCI adopted an amendment which incorporates intersectionality into the principles of Bill C-81. Laws, policies, programs, services and structures must take into account disability and the multiple and intersectional forms of discrimination faced by persons with disabilities. This change means that organizations will have to take into account intersectionality when developing their accessibility plans. Throughout the legislative process, ARCH and other disability organizations have consistently advocated for incorporating barriers related to intersectionality into Bill C-81. Persons with disabilities and disability communities have been firm that laws, policies and programs about disability and accessibility must address the lived experiences of whole persons, not just their disabilities.

Protecting Existing Human Rights of People with Disabilities: SOCI adopted an amendment which clarifies that nothing in Bill C-81 or its regulations limits the legal obligations that organizations already have to accommodate persons with disabilities under the Canadian Human Rights Act and any other federal laws. ARCH and other disability advocacy groups highlighted to SOCI the importance of this amendment.

Protecting Existing Human Rights of Passengers with Disabilities at the Canadian Transportation Agency:  Under Bill C-81, we expect that most complaints by passengers with disabilities about barriers in air travel, train travel, and every other kind of transportation that the Federal Government regulates, will go to the Canadian Transportation Agency (CTA). The Bill gives the CTA power to make regulations to set enforceable standards on what barriers these transportation providers must remove and prevent.

However, subsection 172(2), a provision that is currently in the Canada Transportation Act, effectively means that once the CTA make these regulations and transportation providers, like airlines, comply with these regulations, they do not need to do anything more. This is problematic because the regulations that the CTA sets may not meet the duty to accommodate protections that people with disabilities have under human rights law. Under subsection 172(2), if a passenger with a disability complained to the CTA that an airline or other transportation provider should have accommodated their disability, their case would fail if the airline complied with the CTA regulations. A more detailed analysis of this issue is in ARCH’s Final Report: Legal Analysis of Bill C-81, available by going to: https://archdisabilitylaw.ca/initiatives/advocating-for-accessibility-in-canada/arch-reports-and-recommendations/  ARCH and the AODA Alliance highlighted to SOCI the importance of repealing the problematic section 172(2) of the Canada Transportation Act.

SOCI did not repeal subsection 172(2), but adopted an amendment which changes it. The amendment allows the CTA to find that there is a barrier to accessibility, even if the transportation provider has complied with all the CTA regulations. For passengers with disabilities, this means they could file a complaint with the CTA that they faced an undue barrier in the federal transportation system, and insist that the transportation provider do more than what the CTA regulation requires. The passenger with a disability could win their case, even if the transportation provider has complied with all the CTA regulations. However, the CTA could only order the transportation provider to take “corrective measures”. The CTA could not order the transportation provider to pay the person damages or money compensation. This is different than for other complaints to the CTA about inaccessibility of the federal transportation system. Generally for these other complaints, the CTA can order the transportation provider to take corrective measures and to pay damages to the person who complained.

Recognizing Sign Languages: Communication is one of the areas in Bill C-81 for which new accessibility standards may be created. SOCI adopted an amendment that explains that communication includes the use of American Sign Language, Quebec Sign Language and Indigenous Sign Languages. Another amendment recognizes that sign languages are the primary languages for communication by Deaf persons in Canada.

Legal recognition of sign languages is an issue that Deaf communities in Canada have long advocated for. ARCH and other disability advocacy groups supported the Canadian Association of the Deaf in calling for Bill C-81 to recognize sign languages as an important acknowledgement that sign languages are not just disability accommodations, but are important for cultural and linguistic reasons.

These are some of the amendments that the Senate Committee adopted. While the amendments made address many of the issues raised by ARCH and other disability groups, they do not deal with all of our concerns and recommendations. A number of weaknesses remain in Bill C-81. One such weakness is the use of permissive language “may” rather than directive language “shall” or “must”. This language gives government and other bodies power to make and enforce accessibility requirements, but does not actually require them to use these powers. For example, the Bill allows the Government of Canada to make new accessibility regulations but does not require them to do so. Therefore, there is no assurance that such regulations, a cornerstone for advancing accessibility, will ever be made.

In addition to the amendments, the Senate Committee reported 2 observations to Bill C-81. The first addresses the concern expressed by many in the disability community that federal funding may continue to be spent on projects that perpetuate barriers. The observation encourages the federal government to ensure that any federal public money should not be used to create or perpetuate disability related barriers when it is reasonable to expect that such barriers can be avoided. The second observation emphasizes the importance of training in achieving a barrier-free Canada. It encourages the government to create standardized, effective training to ensure that all persons in Canada can expect the same level of access to all government services.

What Happens Next?

In the coming weeks, the amended Bill C-81 will come before the Senate for Third Reading. At that time, Senators will vote on whether to pass the Bill with the amendments adopted by SOCI. If the Bill passes Third Reading, it will return back to the House of Commons for approval. If it gets approval from the House, the Bill will then enter the final stages of the process to become a law.

ARCH is pleased that in response to submissions by disability communities across Canada, the Senate made a number of important amendments to strengthen Bill C-81.

Now, the Senate and the House of Commons must both act quickly to allow enough time for the Bill to finish it journey through the legislative process, before the Fall federal election is called.

If you support Bill C-81 becoming law with the changes that the Senate Committee has made, write to or tweet Minister Carla Qualtrough and Members of Parliament. Let them know they should pass Bill C-81 with all the amendments. For practical tips and information on how to do this, go to the AODA Alliance’s website: www.bit.ly/2vKXmV2

More Information

Recorded video of the Senate Committee’s study of Bill C-81, with sign language interpretation, and the written submissions made by disability groups to the Senate can be found by going to: https://sencanada.ca/en/committees/soci/studiesandbills/42-1  and clicking on Bill C-81.

To read ARCH’s analysis of Bill C-81, and submissions ARCH made to the House of Commons and Senate, go to: https://archdisabilitylaw.ca/initiatives/advocating-for-accessibility-in-canada/

ARCH Disability Law Centre

55 University Avenue, 15th Floor, Toronto, ON, M5J 2H7

Phone: 416-482-8255  1-866-482-2724

TTY: 416-482-1254  1-866-482-2728

www.archdisabilitylaw.ca

 @ARCHDisabilityLawCentre

@ARCHDisability

Excerpt from the Hansard of the House of Commons Standing Committee on Human Resources on May 8, 2019

Mr. John Barlow: Thank you very much, Mr. Chair.

My first question is to Minister Qualtrough. You were talking about the importance of barrier-free and we certainly heard from almost every single stakeholder as part of the discussion at committee on Bill C-81 on the concerns raised that the bill does not go far enough, that it does not have the metrics to ensure success or teeth to ensure that federally legislated businesses adhere to it.

Now there were dozens of amendments that we brought forward that every opposition party agreed with. None of them were supported by the government. However, many of those amendments have come forward and been accepted at the Senate. I’m just curious and I would like to know if you’re going to be supporting those amendments that have come forward from the Senate specifically adding a timeline of 2040 for Canada to be barrier-free? Are you going to support those amendments?

Hon. Carla Qualtrough: Thank you for the question. I certainly was open, as I told senators, to amendments within their process, but I’m very mindful that of course that is their process to run. I’m looking at their suggestions, looking at what the government thinks would be the best for this law and I’m open to many of their amendments, yes.

Mr. John Barlow: Thank you very much, Minister. I appreciate that.



Source link

At the Senate, Federal Disability Minister Carla Qualtrough Answers Senators’ Questions on the Weak Bill C-81 (Proposed Accessible Canada Act)


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

April 23, 2019

SUMMARY

Here is a rare glimpse into how the Federal Government is thinking about the concerns that we and many others have expressed about the weak Bill C-81, the proposed Accessible Canada Act.

On April 3, 2019, the federal minister responsible for people with disabilities, Carla Qualtrough, appeared before the Senate’s Standing Committee on Social Affairs to kick off that committee’s study of Bill C-81, the proposed Accessible Canada Act. Minister Qualtrough made an opening statement to explain and defend Bill C-81. The Senators then took turns questioning her and her senior public service official, the Director General of the Office of Disability Issues James Van Raalte.

Many of the Senators’ questions sound like they were inspired in whole or in part by the AODA Alliance’s March 29, 2019 brief to the Senate and feedback from other disability organizations with similar concerns about the bill. We express our appreciation and gratitude for the Senators doing so.

Below we set out a series of 17 important excerpts from Minister Qualtrough’s presentation, with our comments on these statements. We will post her entire presentation to the Standing Committee on our website once it becomes available.

In our comments, set out below, we respectfully disagree with some of the minister’s statements, and explain why. In other cases, we identify key comments she has made which support the narrow package of amendments to Bill C-81 that we placed before the Senate last week, and asked for their adoption.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You can read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.`

Please help our campaign. Before May 2, 2019, please send the Senate Standing Committee a short email to express your support for the amendments to Bill C-81 that the AODA Alliance has requested. We are so appreciative of the individuals and organizations that have already done so. Email the Senate at: [email protected]

MORE DETAILS

Excerpts from Federal Disabilities Minister Carla Qualtrough’s April 3, 2019 Presentation to the Senate’s Standing Committee on Social Affairs, Plus AODA Alliance Commentary on Those Remarks

Excerpt 1

Minister Qualtrough: Bill C-81 complements the Human Rights Framework in Canada. It does not take anything away from existing human rights obligations under the Canadian Human Rights Act or the duty to accommodate.

Our Comment: This is not correct. Section 172 of the bill re-enacts section 172 of the Canada Transportation Act. That provision provides that when the Canada Transportation Agency enacts an accessibility standard regulation, it in effect prevails over and can water down or cut back on the duty to accommodate passengers with disabilities.

If a CTA regulation says that Air Canada has an excessive five hours to help a passenger with a disability off an airplane when it arrives, that passenger cannot complain to the CTA that Air Canada could easily have accommodated them more quickly without undue hardship.

This is not a hypothetical fear. The Canadian Transportation Agency has proposed new accessibility regulations that, if passed, threaten to cut back on disability human rights. We explain this in detail in the AODA Alliance’s April 18, 2019 brief to the CTA.

We’ve been asking the Federal Government for months to remove s. 172 from the bill. The AODA Alliance’s proposed amendments to Bill C-81, now before the Senate, would remove s. 172 from that bill. That would help make the minister’s statement here become true. However the Federal Government has not yet publicly said that it would agree to a repeal of s. 172. Our 7th proposed amendment to Bill C-81, placed before the Senate, is as follows:

Subsection 172(2) of the bill should be removed from the bill. As well, the bill should repeal its counterpart, s. 172(2) of the Canada Transportation Act, which provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

Note: s. 172(2) of the bill uses the word “barrier “instead of the word “obstacle”, but is otherwise the same as s. 172(2) of the Canada Transportation Act.

As well, our 8th proposed amendment to Bill C-81 that we placed before the Senate provides as follows:

Section 6 should be amended to add the following to the principles set out in it:

“(2) For greater certainty, in the event of any inconsistency between the provisions of this Act and the provisions of the Canadian Human Rights Act, the provisions of that Act prevail to the extent of the inconsistency.”

Excerpt 2

Minister Qualtrough: Im extremely proud to say that the proposed accessible Canada act enjoys widespread endorsement and support from so many in the disabilities community.

Our Comment: The Federal Government has received widespread feedback from Canada’s disability community that Bill C-81 is too weak and needs to be strengthened. For example, see the Open Letter to the Federal Government which fully 95 disability organizations co-signed, and which was sent last October. See also the extensive feedback on Bill C-81 which disability organizations presented to the House of Commons’ Standing Committee. Disability organizations there repeatedly pressed for this bill to be strengthened.

Excerpt 3

Minister Qualtrough: As part of our whole-of-government approach, Bill C-81 builds upon the existing work done by regulators and, if passed, will strengthen their mandates to ensure accessibility in their sectors. This was demonstrated at the recent CTA announcement I attended, where the publication of draft accessibility regulations was announced, with the intention of making Canadas transportation system the most accessible in the world.

Our Comment: It may at first sound good that the Canadian Transportation Agency wants to make Canada’s transportation system the most accessible one in the world. However, after a closer look, it falls far short of what people with disabilities in Canada need and deserve.

What people with disabilities deserve and are entitled to is an accessible transportation system. Bill C-81 is entitled an Act to ensure a barrier-free Canada. The CTA’s much more diluted objective would be fulfilled if Canada’s transportation system were to become slightly more accessible than all others no matter how inaccessible all others are. In other words, by the CTA’s impoverished approach to accessibility, people with disabilities in Canada could end up having to put up with many accessibility barriers in transportation forever.

As well, we noted earlier that the CTA has proposed new transportation accessibility regulations that threaten to reduce the human rights of passengers with disabilities, a very troubling development to which the AODA Alliance’s April 18, 2019 brief to the CTA objects.

Excerpt 4

Minister Qualtrough: This approach ensures that accessibility is everyones responsibility and that we cant waste any time once the bill receives Royal Assent.

Our Comment: Regrettably, Bill C-81 does not ensure that we don’t waste any time once this bill receives Royal Assent. To ensure this, a series of mandatory time lines must be added to the bill.

Excerpt 5

Minister Qualtrough: Finally, the development of regulations has begun, with the CTA posting their first draft of accessibility regulations, and the consultation process has started for the development of the multi-year accessibility plan regulations.

Our Comment: This may seem a bit technical, but the regulations that the Canadian Transportation Agency are now finalizing are not being created under Bill C-81. They are being developed under the existing national transportation legislation that has been on the books for years. It is our understanding that these regulations have been under development for the past three years, well before Bill C-81 was introduced into the House of Commons in June 2018 for First Reading.

The Canadian Transportation Agency has had the power to make such regulations for many years. We anticipate that it was the fact that the Federal Government promised national accessibility legislation in the 2015 federal election that helped motivate the Canadian Transportation Agency to finally take a serious look at using its decades-old power to make comprehensive accessibility regulations in the transportation field.

Moreover, the CTA’s posting of those draft regulations is a matter of concern, as noted earlier, since they threaten to reduce human rights protections for passengers with disabilities, as the AODA Alliance’s April 22, 2019 brief to the CTA demonstrates.

Excerpt 6.

Minister Qualtrough: The Canadian Human Rights Act absolutely imposes a duty to accommodate. Nothing in this act changes that obligation on employers, on service providers and on program deliverers within the federal jurisdiction. There was confusion in provincial jurisdictions that had enacted accessibility legislation, and weve made every effort to avoid such confusion. Whatever standard is created by CASDO will not necessarily create any kind of defence for an employer, service provider or program deliverer in terms of their individual duty to accommodate a specific individual.

I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.

Our Comment: We repeat our comments for Excerpt 1, above, where we disagree with the minister’s similar earlier statement.

We also respectfully disagree with the minister’s statement that “weve made every effort to avoid such confusion” When this bill was before the House of Commons last fall, we asked the Federal Government to amend Bill C-81 to include language akin to the strong language on point in the Accessibility for Ontarians with Disabilities Act. The Federal Government did not do so. Unlike this bill, section 38 of the AODA provides:

” 38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

We are troubled by the minister’s equivocal statement as follows:

“Whatever standard is created by CASDO will not necessarily create any kind of defence for an employer, service provider or program deliverer in terms of their individual duty to accommodate a specific individual.”

Compliance with a voluntary, non-binding standard recommended by the proposed new Canadian Accessibility Standards Development Organization should simply not be a defence to a human rights complaint. Here the minister more equivocally said it is not “necessarily” a defence. That means that it could be a defence, in some situations.

It may be that the minister simply inadvertently misspoke here. However, her statement can contribute to the very confusion about the duty to accommodate that she wants to avoid.

Excerpt 7

Senator Munson: As you well know, the Senate is a chamber of sober second thought and we take looking at these bills very seriously. I am sure there will be an appetite for amendments by the time we are done our hearings.

On this particular sign language and other aspects of the bill, there are people in the community who feel it doesnt go far enough. Yes, well have it for the first time, and yes, its history in the making and that sort of thing, but it just doesnt go far enough. Would you be open to amendments?

Minister Qualtrough: I would certainly defer to your process and recommendations, but yes, I want to make this bill, this eventual law, the best it can possibly be.

Our Comment: This is a very helpful, positive and important statement by the minister. The minister herself is open to the Senate making amendments to Bill C-81 to make it the best law it can possibly be. This should lay to rest any fear that by making such amendments, the Senate would thereby jeopardize the bill’s passage.

This is further reinforced by the statement by Senator Munson (the bill’s sponsor in the Senate) during the Committee’s April 10, 2019 hearings:

“Were here for a reason. There are going to be amendments”

Excerpt 8

Senator Forest-Niesing: With respect to deadlines, provinces with an Accessibility Act, their own Accessibility Act, have an implementation deadline, especially for total accessibility. What was the reasoning in not having a deadline in Bill C-81?

Minister Qualtrough: To be honest, this is one of the more difficult differences of opinion as we have had as a disability community in this law and in this whole process. This is because there is a very honest and staunch belief within the community that we need a deadline, that we need to make a statement saying Canada will be barrier free by X or Canada will be accessible by X. And there is an equally passionate group of individuals who believe that setting a timeline in the distant future will give people excuse to wait to take action and also believe that because accessibility is always changing and evolving as a concept, and as technology changes and as we grow in our understanding and evolve around accessibility, we wont know what a barrier-free Canada looks like.

If we decided in this law to say by 2030 Canada will be barrier-free, first of all, Im not sure we could achieve that, quite frankly. Second, we dont know what barrier-free will mean and look like then.

I heard everyone, and we took back that feedback, and there are still some us of who are agreeing to disagree on this one. While we dont disagree that we need to work towards a barrier-free Canada, we dont agree about the need for that deadline.

Instead, weve chosen to focus on getting things started. Lets get the first regulation made within two years. Lets do a review of the act within five years of the first regulation. Lets put the board of CASDO in place this summer. Lets have the space for CASDO. Lets get things going.

That seemed to be the broader consensus. It certainly ended up being where we landed as a government.

Quite frankly, its not necessary legislative practice to create these kinds of statements. We dont have a criminal code that says we will be crime free by X date. We dont have a Human Rights Act that says we will be discrimination free by this date. Im not sure other jurisdictions have found it to be beneficial to have these timelines.

Every regulation that is established will have a timeline, so as soon as we have a standard, the regulation will say employers have to have this standard in place by X.

There will be built-in timelines. Some will be quick because were adopting an existing standard. Some will take longer because its a more complex issue.

At the end of the day, after listening to everyone, the decision was not to put that deadline in place. You will hear from stakeholders opinions that disagree with me and our government, but I assure you it has been thought out and considered. I respect their opinion, and this is where we landed.

Our Comment: We respectfully disagree with the minister. Our responses to her remarks are largely found in the April 11, 2019 presentation to the Standing Committee by AODA Alliance Chair David Lepofsky. We add a few points here.

Yes, new kinds of barriers will no doubt crop up in the future. That is a marginal factor. We nevertheless need this legislation to set an end date to reach full accessibility. A resilient flexible law can be designed to identify and adapt to address those new kinds of barriers as they come up.

The Federal Government’s repeatedly referring to accessibility as some sort of amorphous moving target is unhelpful. Overwhelmingly, we know what accessibility is and what is needed. Obligated organizations don’t need any further reasons to be reluctant to act in this area.

Contrary to the minister’s statement, there is substantial support among people with disabilities for including in this legislation an end date for reaching full accessibility. This is not a matter of a dispute among people with disabilities at the grassroots. Rather there is a dispute between the disability community on the one hand, and the Federal Government on the other.

The minister here repeated the Federal Government’s weak reasons for rejecting this request last fall when the bill was before the House of Commons. She again stated at the Senate:

“We dont have a criminal code that says we will be crime free by X date.”

Sadly, we know that there will always be crime. The Criminal Code is there to help reduce it, and to protect the public when it occurs. That is no comparison to disability barriers. Were it so, then the Government that is sponsoring a bill “to ensure a barrier-free Canada” is conceding before we even begin that we in reality will never achieve a barrier-free Canada. We believe Canada can do better than that.

The minister said that instead of including an end date in the bill for reaching full accessibility, they decided to focus on getting the bill’s machinery up and running over the next weeks and months. She said:

“Instead, weve chosen to focus on getting things started. Lets get the first regulation made within two years. Lets do a review of the act within five years of the first regulation. Lets put the board of CASDO in place this summer. Lets have the space for CASDO. Lets get things going.”

This creates the incorrect idea that we have a false choice that we must make. We must either decide to add an end date to the bill for achieving full accessibility, or we must instead choose to work on getting the bill’s machinery up and running quickly now.

The Federal Government did not have to choose one or the other, to include an end date for reaching full accessibility in the bill, or instead, to get started right away on getting the bill’s implementation up and running. The Federal Government can do both.

It is very commendable that the minister is so eager, active and enthusiastic about getting the bill’s implementation up and running so quickly. We caution that in 2005, her Ontario counterpart was just as energetic and enthusiastic just as the AODA was being enacted. A few years later, things started to dramatically slow down in Ontario. We have never gotten it sped up again. We need this bill to include strong time lines, tied to an end date, to prevent that from recurring at the federal level.

We have provided the Senate with a complete solution to the minister’s concern that the addition of an end date for full accessibility to this bill might lead obligated organizations to delay taking action on accessibility. We have recommended that the Senate add the following to the bill:

“Clarification
5.2. Nothing in this Act, including in its purpose of the realization of a Canada without barriers on or before January 1, 2040, should be construed as authorizing or requiring any delay in the removal or prevention of barriers as soon as reasonably possible.”

Excerpt 9

Minister Qualtrough: Employment is definitely one of the seven areas recognized as an area of priority in the bill, and the bill applies to all areas of federal jurisdiction. It doesnt apply to areas of provincial jurisdiction. Other provinces do have accessibility legislation. Im encouraged by the fact that a number of provinces have basically put on hold their intention to create provincial legislation that parallels ours, waiting to see ours and then wanting to create something thats seamless in terms of the experience for the everyday Canadian.

Our Comment: We would consider it a backwards step for people with disabilities if any provincial government put on hold its consideration of developing a provincial accessibility law pending the passage of Bill C-81. We need provinces to speed up action in this area, not slow it down. We know the since-defeated BC Liberal Government had used the development of Bill C-81 as its excuse for continuing to dodge the development of a BC Disabilities Act.

If any provincial government has its planning efforts on hold, we would urge them to get right back to work now on developing provincial accessibility legislation.

Excerpt 10

Senator Moodie: Thank you, Minister Qualtrough, for your presentation today. As a physician and a Canadian, Im proud that were leaders in this space and that this bill is going to take us to the fore in continuing to demonstrate to the rest of the world that Canadians understand the needs of people with disabilities.

My question, though, challenges the bill a bit. The concerns Im hearing are around the notion that the federal government and various federal agencies will have, with this bill, the sweeping power to exempt organizations from a number of these important accessibility obligations. The government can even exempt itself; is that correct?

Can you speak to the extent to which the federal government and federal agencies can exempt organizations from accessibility obligations, and can you explain why you felt it necessary to exempt organizations from the obligations that are stated in Bill C-81?

Minister Qualtrough: Thank you for the question, senator. Again, this is not the first time I have heard this concern.

In this legislation, we had to balance wanting to encourage innovation so organizations that are already doing things very, very well with holding to account organizations that arent doing so well. Creating the opportunity for an exemption allows organizations that already have innovative and comparable accessibility practices to what we may create as a standard to get an exemption, because theyre already doing something that effectively has the same end results. At the same time, an organization that may need a little more time to get up to that standard is allowed the opportunity to be granted an exemption for a period of time.

This is not kind of an exclusion or a get-out-of-jail-free card. The reasons for granting the exemption have to be published publicly. It is not as though we are going to exempt you from ever having to be accessible. It is a recognition that, one, your practices are already akin to what is contained in a given standard, or two, you need a little bit more time to get up to the standard that has been established for a justifiable reason that will be made public and reviewed three years.

Senator Moodie: So Im hearing you say that in three years, even if I get an exemption the first go-around, I will be reviewed again.

Minister Qualtrough: Absolutely. The reason is technical.

Mr. Van Raalte: Youd actually have to reapply. Its not just a review. You have to initiate the fact that

Minister Qualtrough: It expires.

Mr. Van Raalte: It expires, and you would have to reapply, justify and demonstrate that you still require an exemption, from your perspective. Then theres still an approval process.

Our Comment: We disagree with the minister’s justification for the bill’s current exemptions powers. An exemption from this legislation’s requirements is not needed to encourage innovation.

If an organization is already meeting or exceeding the requirements of an accessibility standard, they have no need for an exemption. If they are close, but need a bit more time, that is typically and easily dealt with through the flexibility in the enforcement process.

Moreover, the minister spelled out the specific situations when exemptions are to be granted. Yet the bill does not limit the Government to only granting exemptions in those situations. For example, the Government could exempt itself for any reason it wishes, not just for the reasons that the minister gave (i.e. they need a little more time or are already in substantive compliance with the results that the standard seeks to achieve).

Excerpt 11

Senator Omidvar: Youve described the bill as a first or an incremental step. There are critics who say it is unnecessarily timid. Im going to read a portion of an email that I got that deals with splintering with a multitude of agencies being responsible for enforcement, regulation-making and overseeing complaints.

So the concern is that the bills implementation and enforcement are therefore less effective, it is more confusing, its more complicated, its more costly, and there is a variability of decision-making and possibly of standards. I hear this when the advocates say that this will make it much harder for people with disabilities to navigate the system, to find out what rights they have and to get violations fixed.

So I understand the no-wrong-door approach, but I also understand that too much of a GPS with variability will make it completely confusing. Will you respond to this criticism?

Minister Qualtrough: I will. I, too, have received email maybe that same email and maybe more than once.

Senator Omidvar: We all did.

Minister Qualtrough: If I had a blank piece of paper, and I could design the system of my liking and choosing, it might not look like this. However, we didnt start out with a blank piece of paper; we started out with a fully functioning, complicated system of federal government that included regulators that were already doing this work regulators that, to be honest, we didnt always hear good things about and regulators whose powers we have beefed up.

But it became very clear very quickly as the design of the system started to take hold that we were in a position of having to either pull out from the CTA and CRTC. There are three at play here: the CTA, the CRTC and then the Canadian Human Rights Commission does everything else. In terms of the number of regulators, weve got the CTA doing transportation, the CRTC doing telecommunications and broadcasting; and then the Human Rights Commission doing everything else. Taking it out of the CTA or the CRTC would be costly. In some ways, at the end of the day, it wouldnt recognize the expertise they had built up and that they absolutely can and will improve upon.

But we heard very concretely and Im sure youll hear yourselves from the kind of more technically minded regulators that are the CTA and the CRTC that when youre designing and responsible for safety CTA airplane seat design comes to mind. The CTA is responsible to design an airplane seat, and the first consideration is safety, of course, and what has to be built into that seat design.

For an outside regulator to come in and say, Yes, you have to design a seat, but you have to take into consideration all of these accessibility needs, it was deemed better for the CTA to be the one to include and incorporate accessibility considerations into the design of that seat.

To be very clear, the non-technical aspects of the business of the transportation sector in Canada will be under the purview of the CHRC. So if theres a customer service standard, an employment standard, built environment standard those are all going to be imposed on the VIA Rails, the Air Canadas, et cetera. Its the more technical sides of those sectors that will be the purview of those specific regulators.

It was a compromise, because I recognize it makes the system more complicated for the complainant and the end user. Thats why weve taken the efforts we have even now. There are committees. The heads of the CTA, the CHRC and the CRTC are already meeting to figure out how theyre going to work together to make sure that from the complainants point of view it is seamless, but we know its more complicated. It was a sectoral approach that we chose as a compromise, recognizing we werent starting from scratch and recognizing the complicated technical nature of the business in which these two established regulators are in.

Im confident that there will be bumps along this road, but we will get to a place where whenever someone files a complaint, it will end up where it needs to be, and the chief accessibility officer and the chief accessibility commissioner will make sure of that.

Our Comment: Contrary to the minister’s suggestion, the Canadian Transportation Agency and the CRTC do not have demonstrated expertise in disability accessibility. Their insufficient performance in this area for many years suggests much the opposite.

We have warned that this splintering of the bill’s implementation and enforcement among different federal agencies is very confusing. It is hard to figure out from the bill who does what, as between the Accessibility Commissioner, the Canadian Transportation Agency and the CRTC.

The minister’s presentation reinforced this concern. She incorrectly described the division of responsibility between these agencies. She stated:

“To be very clear, the non-technical aspects of the business of the transportation sector in Canada will be under the purview of the CHRC. So if there’s a customer service standard, an employment standard, built environment standard –
those are all going to be imposed on the VIA Rails, the Air Canadas, et cetera. It’s the more technical sides of those sectors that will be the purview of those specific regulators.”

The minister here is saying that the Canadian Transportation Agency will be responsible for technical issues regarding transportation, but not things like the built environment. In fact, under Bill C-81, the Canadian Transportation Agency and not the Canadian Human Rights Commission is responsible for setting standards for the built environment in places like airports and train stations. Section 120 of the bill provides in part:

“120?The only regulations made under subsection 117(1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas:

(b)?the built environment, other than a passenger aircraft, passenger train, passenger bus, passenger vessel, aerodrome passenger terminal, railway passenger station, bus passenger station or marine passenger terminal;”

We sympathize with the minister’s confusion. This bill is itself very confusing and difficult to understand, even for those with extensive expertise in this area.

The minister said the Government is splintering the bill because of the costs of not splintering the bill. To our knowledge, this is the first time that the Federal Government has claimed that it would be more costly to have this bill’s accessibility regime all enforced by one federal agency, the new ,Accessibility Commissioner , rather than splintering it among four agencies. It is the first time the Government has claimed it would be more costly to have all regulations made by the Federal Cabinet, rather than splintering this responsibility among three agencies, the Cabinet, the Canadian Transportation Agency and the CRTC.

The Government offered no specifics on what these supposed added costs would be. It did not offset these against the greater costs under this bill, as written, to the Government, to people with disabilities and to obligated organizations of having this bill’s implementation and enforcement so splintered. For example, under the bill as now written, it will cost the airlines more to produce two separate accessibility plans and to deal with two different regulatory agencies, the Accessibility Commissioner and the Canadian Transportation Agency, than if they only had to prepare one plan and file it with one federal agency.

Excerpt 12

Senator Poirier: On Bill C-81, it does not include a deadline for achieving full accessibility, compared to the different provincial accessibility legislation, like the Accessibility for Ontarians with Disabilities Act. This act has clear deadlines for achieving the full accessibility for Ontarians on or before January 1, 2025.

Can you explain to us why you have not put a deadline established in Bill C-81?

Minister Qualtrough: Absolutely, senator. As I said, that was a topic of rigorous debate and discussion, and sometimes disagreement, over the course of going through this whole journey with respect to this legislation. Where we landed, as I said, was focusing on getting things started, not imposing a deadline that in any way would disincentivize organizations to get going on this. It was about recognizing that what we consider accessible today will not be good enough 10 years from now and knowing, quite frankly, that were a long way off from being accessible or barrier-free.

We concluded that it just wasnt the best way to get going on this. I dont know if I could elaborate further. At the end of the day, we figured putting in place the requirement that regulations and standards be put in place within two years by each of the regulators and that a review of the law happen within five years of the first regulation coming into force taking the steps in parallel now to get this thing off the ground and going was the better course of action.

Our Comment: We repeat our comments under Excerpt 8, above.

Excerpt 13

Senator Dasko : I guess another thing that Ive heard from some people who think this bill should go farther than it does has to do with the federal governments lack of intention here to take a stronger role when it comes to direct federal spending on infrastructure projects or spending in many areas where the federal government funds projects and creates projects and so on, the critique being that it doesnt go far enough in insisting that barriers are not there when these projects are undertaken. So just at the beginning, I suppose, before federal money is given to these projects, not enough is being done in this bill to ensure that those projects are barrier-free. Its a critique Ive heard, and Id like to hear what you might have to say about it.

(Procedural discussion omitted)

Minister Qualtrough: At the end of the day, what I would say is weve pushed the language in the law as far as we can go while still respecting federal jurisdiction. James is probably better to answer the technical side as to how far we can go, but this will apply to federal policies and federal programs. It wont apply to financial transfers like the health transfer because thats effectively a provincial jurisdiction that were helping to fund, but it doesnt give us authority, as I understand it, to actually impose that condition down that far. Maybe Im not explaining it right. I apologize. Its jurisdictional.

To be very clear, though, this will transformatively change the Government of Canada in terms of every department and agency will have to have an accessibility plan. We have already established in my office, for example, a centre for accessible procurement, meaning we will be having policies and processes. We wont procure things that arent accessible.

The Prime Minister has appointed a deputy minister responsible for an accessible public service, whose job it is every day to figure out how we are going to have to be ready and how we will be ready in our government with its employees to adhere to this law.

Can you talk to more about how far we can go down, please? Because I cant remember the language in the law.

Mr. Van Raalte: I think youve covered it, minister. Departments will have to be able to report on their programs, policies and services. They will have to do that reporting in consultation with people with disabilities. They are at the table for that. So that will actually give both the government and the public forward-looking perspective on the plans of those organizations, such as planned spending and program priorities in a forward-looking way that will allow us to have those discussions. You want to be thinking about the accessibility measures included in those investments.

Ms. Qualtrough: Having said that, in terms of whats in the law, weve taken a number of steps in parallel to embed accessibility into our new programs and our new processes. Ill give you an example. With the National Housing Strategy or our infrastructure program, accessibility is baked into these initiatives.

A fun example I like to give is around our infrastructure. Transit is a priority for our government. Historically, for whatever reason, whether it be oversight or intention, upgrades with respect to making buses more accessible have not been included as eligible expenses for communities to claim and use infrastructure dollars for. We literally added a box on a piece of paper three years ago where we told communities that they could use this money to make their community buses more accessible. In that one year, $810 million was spent on accessible transit. We didnt advertise it. We didnt highlight it anywhere. We changed the form, and communities recognized the values of accessible transit and invested in their communities.
I could give you so many examples, as weve pursued this law, of the things that weve done in terms of government policy, programs and initiatives to make the way we govern a more accessible experience, both for the people who work in government and the people we serve.

Our Comment: As the AODA Alliance presentation to the Senate’s Standing Committee on April 11, 2019 shows, we respectfully disagree with the minister’s claims that the Federal Government cannot do more here. The minister’s statements make it sound like the Federal Government is powerless to attach accessibility strings when it gives federal public money to a local or provincial government to help build a hospital, subway station, or university building.

This is incorrect. The Federal Government has a significant “spending power” which lets it attach federal conditions to federal money that it gives out. If a provincial government or other local organization doesn’t want to comply with those strings, it is free to simply refuse to accept the federal money.

For over three decades, the Canada Health Act, a federal law, has attached federal strings to federal money that is given to provinces to help finance their health care systems. One of those legal requirements is the accessibility of health care services (not in the disability sense of accessibility) If the minister is correct that the Federal Government has no power to attach strings to federal money that is spent in provincial areas of responsibility then she is admitting that the Canada Health Act is unconstitutional. That would be a surprising thing for a federal cabinet minister to claim.

We believe that the Federal Government could include in Bill C-81 a requirement that no federal cabinet minister or department may agree to give federal public money to any organization, federal or provincial, to contribute to the building or renovating of infrastructure, unless the recipient agrees to meet federal accessibility requirements. If the minister were correct, then the Federal Government is simply powerless here. It can give money to help fund the construction of a local subway station, but is powerless to say that the subway station must have elevators, and not just stairs, to reach the subway. We disagree.

This too is not a hypothetical issue. The AODA Alliance has produced a widely-viewed online video that shows serious accessibility problems at new Toronto subway stations, recently opened, that were built in part with federal money.

The minister gave examples of commendable new policies that the Federal Government has adopted to promote the procurement by the Government of accessible goods, services and facilities. We applaud these. However, they are merely policies, not legal requirements. A subsequent minister or Government could abolish or disregard them with the stroke of a pen, without requiring any public debate. That is why we want such requirements embedded in the bill.

Excerpt 14

Senator Kutcher: Thank you, minister, for your very clear and well considered answers to these questions. Our task is to try to assist in making the bill the best it can be. You mentioned one area that I think you suggested we could dive a little bit deeper on and that was the sign language domain. So my question is: Are there any other areas that you or your team

Minister Qualtrough: Boy, am I allowed to answer this question?

Senator Kutcher: would like to highlight as something we could have a more intensive focus on as we study the bill?

Minister Qualtrough: I think some sort of recognition, as you say, of sign languages as being the first language of Canadians who are Deaf is certainly what we have all heard and you will hear.

Senator Munson asked a question about the duty to accommodate, and perhaps to avoid confusion that could be explicit. I know it is at law and I would suggest case law has already clarified that point but I think it might be worth . . . nobody usually asks me that question.

Yes, I mean, if there are things that you think can be improved, certainly please explore that. My concern is getting it passed. I think its a really good piece of law and I wouldnt want anything to get in the way of that. Sorry to be so direct. The community has done such good work and I feel a real heightened obligation to deliver this for them. This is once in a generation and people have fought for a long time before me to have this conversation nationally. This is a genie we are not putting back in the bottle. Its pretty exciting. Sorry I dont have further feedback for you but those two would be at the top of my mind.

Our Comment: The minister here again indicates that she is open to amendments to the bill. That is helpful.

As areas that the Senators might focus on as part of their study of the bill, the minister referred to possible recognition that Sign Language is the first language of people who are deaf, and something explicit about the duty to accommodate. She said that those two items are at the top of her mind. She did not specifically commit to passage of amendments to that end. She commendably invited the Senate to explore things in the bill that “can be improved.”

Excerpt 15

Minister Qualtrough: May I add something on the duty to accommodate piece because its really important and kind of something Im obsessed with. We need to make it very clear to Canadians that this is a really important legally enshrined tenet of human rights law in this country and nothing we are doing here takes away any organizations obligation to accommodate individuals. In some cases, a small business who has complied with the standard might say, We have complied, and that might meet their duty to accommodate but the Government of Canada it might not. We need to be very clear and I need it on the record from me so I can sleep tonight that this in no way, in any way negates any organizations obligation to accommodate individuals on the grounds of disability.

Our Comment: We repeat our comments under Excerpts 1 and 6 above.

Excerpt 16

Senator Eaton: Minister, is there another country who does this better than we are going to do it? Is there another country that is an example to us?

Minister Qualtrough: Our neighbour to the south has the Americans with Disabilities Act, which has an anti-discrimination component which would be covered off in our country by the human rights legislation and an accessibility standards component. So we have spent a lot of time looking at their model. Its obviously a different kind of structured country, federal, state, but what Im hoping, because Im at heart a competitive athlete, is that this becomes the international standard that has built upon what other countries have been doing. The States has been doing it for 30 years, but I would like to believe ours will be better.

Our Comment: We commend the minister for wanting Canada’s new accessibility legislation to be better than the American legislation, and better than other laws around the world. However, as now written, Bill C-81 regrettably falls well short of that goal. It is also in some key ways weaker than Ontario’s AODA, which itself has run into significant implementation and enforcement problems over the past 14 years.

Excerpt 17

Senator Omidvar: Very quickly, you have talked about the fact that there is a timeline, that within two years agencies have to enact one regulation. However, what is the quality of that regulation? Is there a concern that it could be an inconsequential one, a minor procedural matter without actually embracing the spirit of what you are trying to propose?

Minister Qualtrough: I dont think the law provides the safeguard that you are asking about. What I do think, though, is that CASDO is that safeguard. So having CASDO created with a board of directors with a majority of individuals with lived experience, and they get to decide which regulations take priority and what comes first and what comes second and who does what and what the priorities are. That group of individuals will be tasked with making sure there are substantive regulations in place as quickly as possible based on their agreed upon priorities.

Our Comment: We respectfully disagree with parts of the minister’s description of this legislation. The minister correctly stated that the bill does not ensure that the regulation that must be enacted within two years is something more than an inconsequential procedural regulation.

However, she is incorrect in stating that the new Canadian Accessibility Standards Development Organization is a safeguard to ensure that substantive regulations are enacted as soon as possible. CASDO has no such power under this bill. CASDO has no authority to enact any regulations whatsoever. It can only give advice. It can recommend what should be included in accessibility standard regulations. The Federal Government, the CRTC and the Canadian Transportation Agency need never listen to CASDO’s advice, and need never give a reason for refusing to act on CASDO’s advice.

As for the regulation that must be enacted within two years, that regulation is NOT an accessibility standard regulation. As the Senator’s question mentions, it is a procedural regulation that the Government must enact in the first two years. CASDO has no control over those procedural regulations. Contrary to the minister’s suggestion, CASDO is therefore not an effective safeguard to ensure that those regulations are meaningful.



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At the Senate, Federal Disability Minister Carla Qualtrough Answers Senators’ Questions on the Weak Bill C-81 (Proposed Accessible Canada Act) – Read the AODA Alliance’s Commentary on the Minister’s Key Answers


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

At the Senate, Federal Disability Minister Carla Qualtrough Answers Senators’ Questions on the Weak Bill C-81 (Proposed Accessible Canada Act) – Read the AODA Alliance’s Commentary on the Minister’s Key Answers

April 23, 2019

          SUMMARY

Here is a rare glimpse into how the Federal Government is thinking about the concerns that we and many others have expressed about the weak Bill C-81, the proposed Accessible Canada Act.

On April 3, 2019, the federal minister responsible for people with disabilities, Carla Qualtrough, appeared before the Senate’s Standing Committee on Social Affairs to kick off that committee’s study of Bill C-81, the proposed Accessible Canada Act. Minister Qualtrough made an opening statement to explain and defend Bill C-81. The Senators then took turns questioning her and her senior public service official, the Director General of the Office of Disability Issues James Van Raalte.

Many of the Senators’ questions sound like they were inspired in whole or in part by the AODA Alliance’s March 29, 2019 brief to the Senate and feedback from other disability organizations with similar concerns about the bill. We express our appreciation and gratitude for the Senators doing so.

Below we set out a series of 17 important excerpts from Minister Qualtrough’s presentation, with our comments on these statements. We will post her entire presentation to the Standing Committee on our website once it becomes available.

In our comments, set out below, we respectfully disagree with some of the minister’s statements, and explain why. In other cases, we identify key comments she has made which support the narrow package of amendments to Bill C-81 that we placed before the Senate last week, and asked for their adoption.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You can read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.`

 

Please help our campaign. Before May 2, 2019, please send the Senate Standing Committee a short email to express your support for the amendments to Bill C-81 that the AODA Alliance has requested. We are so appreciative of the individuals and organizations that have already done so. Email the Senate at: [email protected]

 

          MORE DETAILS

Excerpts from Federal Disabilities Minister Carla Qualtrough’s April 3, 2019 Presentation to the Senate’s Standing Committee on Social Affairs, Plus AODA Alliance Commentary on Those Remarks

Excerpt 1

Minister Qualtrough: Bill C-81 complements the Human Rights Framework in Canada. It does not take anything away from existing human rights obligations under the Canadian Human Rights Act or the duty to accommodate.

Our Comment: This is not correct. Section 172 of the bill re-enacts section 172 of the Canada Transportation Act. That provision provides that when the Canada Transportation Agency enacts an accessibility standard regulation, it in effect prevails over and can water down or cut back on the duty to accommodate passengers with disabilities.

If a CTA regulation says that Air Canada has an excessive five hours to help a passenger with a disability off an airplane when it arrives, that passenger cannot complain to the CTA that Air Canada could easily have accommodated them more quickly without undue hardship.

This is not a hypothetical fear. The Canadian Transportation Agency has proposed new accessibility regulations that, if passed, threaten to cut back on disability human rights. We explain this in detail in the AODA Alliance’s April 18, 2019 brief to the CTA.

We’ve been asking the Federal Government for months to remove s. 172 from the bill. The AODA Alliance’s proposed amendments to Bill C-81, now before the Senate, would remove s. 172 from that bill. That would help make the minister’s statement here become true. However the Federal Government has not yet publicly said that it would agree to a repeal of s. 172. Our 7th proposed amendment to Bill C-81, placed before the Senate, is as follows:

Subsection 172(2) of the bill should be removed from the bill. As well, the bill should repeal its counterpart, s. 172(2) of the Canada Transportation Act, which provides:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

Note: s. 172(2) of the bill uses the word “barrier “instead of the word “obstacle”, but is otherwise the same as s. 172(2) of the Canada Transportation Act.

As well, our 8th proposed amendment to Bill C-81 that we placed before the Senate provides as follows:

Section 6 should be amended to add the following to the principles set out in it:

“(2) For greater certainty, in the event of any inconsistency between the provisions of this Act and the provisions of the Canadian Human Rights Act, the provisions of that Act prevail to the extent of the inconsistency.”

Excerpt 2

Minister Qualtrough: I’m extremely proud to say that the proposed accessible Canada act enjoys widespread endorsement and support from so many in the disabilities community.

Our Comment: The Federal Government has received widespread feedback from Canada’s disability community that Bill C-81 is too weak and needs to be strengthened. For example, see the Open Letter to the Federal Government which fully 95 disability organizations co-signed, and which was sent last October. See also the extensive feedback on Bill C-81 which disability organizations presented to the House of Commons’ Standing Committee. Disability organizations there repeatedly pressed for this bill to be strengthened.

Excerpt 3

Minister Qualtrough: As part of our whole-of-government approach, Bill C-81 builds upon the existing work done by regulators and, if passed, will strengthen their mandates to ensure accessibility in their sectors. This was demonstrated at the recent CTA announcement I attended, where the publication of draft accessibility regulations was announced, with the intention of making Canada’s transportation system the most accessible in the world.

Our Comment: It may at first sound good that the Canadian Transportation Agency wants to make Canada’s transportation system the most accessible one in the world. However, after a closer look, it falls far short of what people with disabilities in Canada need and deserve.

What people with disabilities deserve and are entitled to is an accessible transportation system. Bill C-81 is entitled an Act to ensure a barrier-free Canada. The CTA’s much more diluted objective would be fulfilled if Canada’s transportation system were to become slightly more accessible than all others – no matter how inaccessible all others are. In other words, by the CTA’s impoverished approach to accessibility, people with disabilities in Canada could end up having to put up with many accessibility barriers in transportation forever.

As well, we noted earlier that the CTA has proposed new transportation accessibility regulations that threaten to reduce the human rights of passengers with disabilities, a very troubling development to which the AODA Alliance’s April 18, 2019 brief to the CTA objects.

Excerpt 4

Minister Qualtrough: This approach ensures that accessibility is everyone’s responsibility and that we can’t waste any time once the bill receives Royal Assent.

Our Comment: Regrettably, Bill C-81 does not ensure that we don’t waste any time once this bill receives Royal Assent. To ensure this, a series of mandatory time lines must be added to the bill.

Excerpt 5

Minister Qualtrough: Finally, the development of regulations has begun, with the CTA posting their first draft of accessibility regulations, and the consultation process has started for the development of the multi-year accessibility plan regulations.

Our Comment: This may seem a bit technical, but the regulations that the Canadian Transportation Agency are now finalizing are not being created under Bill C-81. They are being developed under the existing national transportation legislation that has been on the books for years. It is our understanding that these regulations have been under development for the past three years, well before Bill C-81 was introduced into the House of Commons in June 2018 for First Reading.

The Canadian Transportation Agency has had the power to make such regulations for many years. We anticipate that it was the fact that the Federal Government promised national accessibility legislation in the 2015 federal election that helped motivate the Canadian Transportation Agency to finally take a serious look at using its decades-old power to make comprehensive accessibility regulations in the transportation field.

Moreover, the CTA’s posting of those draft regulations is a matter of concern, as noted earlier, since they threaten to reduce human rights protections for passengers with disabilities, as the AODA Alliance’s April 22, 2019 brief to the CTA demonstrates.

Excerpt 6.

Minister Qualtrough: The Canadian Human Rights Act absolutely imposes a duty to accommodate. Nothing in this act changes that obligation on employers, on service providers and on program deliverers within the federal jurisdiction. There was confusion in provincial jurisdictions that had enacted accessibility legislation, and we’ve made every effort to avoid such confusion. Whatever standard is created by CASDO will not necessarily create any kind of defence for an employer, service provider or program deliverer in terms of their individual duty to accommodate a specific individual.

I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.

Our Comment: We repeat our comments for Excerpt 1, above, where we disagree with the minister’s similar earlier statement.

We also respectfully disagree with the minister’s statement that “…we’ve made every effort to avoid such confusion” When this bill was before the House of Commons last fall, we asked the Federal Government to amend Bill C-81 to include language akin to the strong language on point in the Accessibility for Ontarians with Disabilities Act. The Federal Government did not do so. Unlike this bill, section 38 of the AODA provides:

” 38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

We are troubled by the minister’s equivocal statement as follows:

“Whatever standard is created by CASDO will not necessarily create any kind of defence for an employer, service provider or program deliverer in terms of their individual duty to accommodate a specific individual.”

Compliance with a voluntary, non-binding standard recommended by the proposed new Canadian Accessibility Standards Development Organization should simply not be a defence to a human rights complaint. Here the minister more equivocally said it is not “necessarily” a defence. That means that it could be a defence, in some situations.

It may be that the minister simply inadvertently misspoke here. However, her statement can contribute to the very confusion about the duty to accommodate that she wants to avoid.

Excerpt 7

Senator Munson: As you well know, the Senate is a chamber of sober second thought and we take looking at these bills very seriously. I am sure there will be an appetite for amendments by the time we are done our hearings.

On this particular sign language and other aspects of the bill, there are people in the community who feel it doesn’t go far enough. Yes, we’ll have it for the first time, and yes, it’s history in the making and that sort of thing, but it just doesn’t go far enough. Would you be open to amendments?

Minister Qualtrough: I would certainly defer to your process and recommendations, but yes, I want to make this bill, this eventual law, the best it can possibly be.

Our Comment: This is a very helpful, positive and important statement by the minister. The minister herself is open to the Senate making amendments to Bill C-81 to make it the best law it can possibly be. This should lay to rest any fear that by making such amendments, the Senate would thereby jeopardize the bill’s passage.

This is further reinforced by the statement by Senator Munson (the bill’s sponsor in the Senate) during the Committee’s April 10, 2019 hearings:

“We’re here for a reason. There are going to be amendments…”

Excerpt 8

Senator Forest-Niesing: With respect to deadlines, provinces with an Accessibility Act, their own Accessibility Act, have an implementation deadline, especially for total accessibility. What was the reasoning in not having a deadline in Bill C-81?

Minister Qualtrough: To be honest, this is one of the more difficult differences of opinion as we have had as a disability community in this law and in this whole process. This is because there is a very honest and staunch belief within the community that we need a deadline, that we need to make a statement saying Canada will be barrier free by X or Canada will be accessible by X. And there is an equally passionate group of individuals who believe that setting a timeline in the distant future will give people excuse to wait to take action and also believe that because accessibility is always changing and evolving as a concept, and as technology changes and as we grow in our understanding and evolve around accessibility, we won’t know what a barrier-free Canada looks like.

If we decided in this law to say by 2030 Canada will be barrier-free, first of all, I’m not sure we could achieve that, quite frankly. Second, we don’t know what barrier-free will mean and look like then.

I heard everyone, and we took back that feedback, and there are still some us of who are agreeing to disagree on this one. While we don’t disagree that we need to work towards a barrier-free Canada, we don’t agree about the need for that deadline.

Instead, we’ve chosen to focus on getting things started. Let’s get the first regulation made within two years. Let’s do a review of the act within five years of the first regulation. Let’s put the board of CASDO in place this summer. Let’s have the space for CASDO. Let’s get things going.

That seemed to be the broader consensus. It certainly ended up being where we landed as a government.

Quite frankly, it’s not necessary legislative practice to create these kinds of statements. We don’t have a criminal code that says we will be crime free by X date. We don’t have a Human Rights Act that says we will be discrimination free by this date. I’m not sure other jurisdictions have found it to be beneficial to have these timelines.

Every regulation that is established will have a timeline, so as soon as we have a standard, the regulation will say employers have to have this standard in place by X.

There will be built-in timelines. Some will be quick because we’re adopting an existing standard. Some will take longer because it’s a more complex issue.

At the end of the day, after listening to everyone, the decision was not to put that deadline in place. You will hear from stakeholders opinions that disagree with me and our government, but I assure you it has been thought out and considered. I respect their opinion, and this is where we landed.

Our Comment: We respectfully disagree with the minister. Our responses to her remarks are largely found in the April 11, 2019 presentation to the Standing Committee by AODA Alliance Chair David Lepofsky. We add a few points here.

Yes, new kinds of barriers will no doubt crop up in the future. That is a marginal factor. We nevertheless need this legislation to set an end date to reach full accessibility. A resilient flexible law can be designed to identify and adapt to address those new kinds of barriers as they come up.

The Federal Government’s repeatedly referring to accessibility as some sort of amorphous moving target is unhelpful. Overwhelmingly, we know what accessibility is and what is needed. Obligated organizations don’t need any further reasons to be reluctant to act in this area.

Contrary to the minister’s statement, there is substantial support among people with disabilities for including in this legislation an end date for reaching full accessibility. This is not a matter of a dispute among people with disabilities at the grassroots. Rather there is a dispute between the disability community on the one hand, and the Federal Government on the other.

The minister here repeated the Federal Government’s weak reasons for rejecting this request last fall when the bill was before the House of Commons. She again stated at the Senate:

“We don’t have a criminal code that says we will be crime free by X date.”

Sadly, we know that there will always be crime. The Criminal Code is there to help reduce it, and to protect the public when it occurs. That is no comparison to disability barriers. Were it so, then the Government that is sponsoring a bill “to ensure a barrier-free Canada” is conceding before we even begin that we in reality will never achieve a barrier-free Canada. We believe Canada can do better than that.

The minister said that instead of including an end date in the bill for reaching full accessibility, they decided to focus on getting the bill’s machinery up and running over the next weeks and months. She said:

“Instead, we’ve chosen to focus on getting things started. Let’s get the first regulation made within two years. Let’s do a review of the act within five years of the first regulation. Let’s put the board of CASDO in place this summer. Let’s have the space for CASDO. Let’s get things going.”

This creates the incorrect idea that we have a false choice that we must make. We must either decide to add an end date to the bill for achieving full accessibility, or we must instead choose to work on getting the bill’s machinery up and running quickly now.

The Federal Government did not have to choose one or the other, to include an end date for reaching full accessibility in the bill, or instead, to get started right away on getting the bill’s implementation up and running. The Federal Government can do both.

It is very commendable that the minister is so eager, active and enthusiastic about getting the bill’s implementation up and running so quickly. We caution that in 2005, her Ontario counterpart was just as energetic and enthusiastic just as the AODA was being enacted. A few years later, things started to dramatically slow down in Ontario. We have never gotten it sped up again. We need this bill to include strong time lines, tied to an end date, to prevent that from recurring at the federal level.

We have provided the Senate with a complete solution to the minister’s concern that the addition of an end date for full accessibility to this bill might lead obligated organizations to delay taking action on accessibility. We have recommended that the Senate add the following to the bill:

“Clarification

5.2. Nothing in this Act, including in its purpose of the realization of a Canada without barriers on or before January 1, 2040, should be construed as authorizing or requiring any delay in the removal or prevention of barriers as soon as reasonably possible.”

Excerpt 9

Minister Qualtrough: Employment is definitely one of the seven areas recognized as an area of priority in the bill, and the bill applies to all areas of federal jurisdiction. It doesn’t apply to areas of provincial jurisdiction. Other provinces do have accessibility legislation. I’m encouraged by the fact that a number of provinces have basically put on hold their intention to create provincial legislation that parallels ours, waiting to see ours and then wanting to create something that’s seamless in terms of the experience for the everyday Canadian.

Our Comment: We would consider it a backwards step for people with disabilities if any provincial government put on hold its consideration of developing a provincial accessibility law pending the passage of Bill C-81. We need provinces to speed up action in this area, not slow it down. We know the since-defeated BC Liberal Government had used the development of Bill C-81 as its excuse for continuing to dodge the development of a BC Disabilities Act.

If any provincial government has its planning efforts on hold, we would urge them to get right back to work now on developing provincial accessibility legislation.

Excerpt 10

Senator Moodie: Thank you, Minister Qualtrough, for your presentation today. As a physician and a Canadian, I’m proud that we’re leaders in this space and that this bill is going to take us to the fore in continuing to demonstrate to the rest of the world that Canadians understand the needs of people with disabilities.

My question, though, challenges the bill a bit. The concerns I’m hearing are around the notion that the federal government and various federal agencies will have, with this bill, the sweeping power to exempt organizations from a number of these important accessibility obligations. The government can even exempt itself; is that correct?

Can you speak to the extent to which the federal government and federal agencies can exempt organizations from accessibility obligations, and can you explain why you felt it necessary to exempt organizations from the obligations that are stated in Bill C-81?

Minister Qualtrough: Thank you for the question, senator. Again, this is not the first time I have heard this concern.

In this legislation, we had to balance wanting to encourage innovation — so organizations that are already doing things very, very well — with holding to account organizations that aren’t doing so well. Creating the opportunity for an exemption allows organizations that already have innovative and comparable accessibility practices to what we may create as a standard to get an exemption, because they’re already doing something that effectively has the same end results. At the same time, an organization that may need a little more time to get up to that standard is allowed the opportunity to be granted an exemption for a period of time.

This is not kind of an exclusion or a get-out-of-jail-free card. The reasons for granting the exemption have to be published publicly. It is not as though we are going to exempt you from ever having to be accessible. It is a recognition that, one, your practices are already akin to what is contained in a given standard, or two, you need a little bit more time to get up to the standard that has been established for a justifiable reason that will be made public and reviewed three years.

Senator Moodie: So I’m hearing you say that in three years, even if I get an exemption the first go-around, I will be reviewed again.

Minister Qualtrough: Absolutely. The reason is technical.

Mr. Van Raalte: You’d actually have to reapply. It’s not just a review. You have to initiate the fact that —

Minister Qualtrough: It expires.

Mr. Van Raalte: It expires, and you would have to reapply, justify and demonstrate that you still require an exemption, from your perspective. Then there’s still an approval process.

Our Comment: We disagree with the minister’s justification for the bill’s current exemptions powers. An exemption from this legislation’s requirements is not needed to encourage innovation.

If an organization is already meeting or exceeding the requirements of an accessibility standard, they have no need for an exemption. If they are close, but need a bit more time, that is typically and easily dealt with through the flexibility in the enforcement process.

Moreover, the minister spelled out the specific situations when exemptions are to be granted. Yet the bill does not limit the Government to only granting exemptions in those situations. For example, the Government could exempt itself for any reason it wishes, not just for the reasons that the minister gave (i.e. they need a little more time or are already in substantive compliance with the results that the standard seeks to achieve).

Excerpt 11

Senator Omidvar: You’ve described the bill as a first or an incremental step. There are critics who say it is unnecessarily timid. I’m going to read a portion of an email that I got that deals with splintering — with a multitude of agencies being responsible for enforcement, regulation-making and overseeing complaints.

So the concern is that the bill’s implementation and enforcement are therefore less effective, it is more confusing, it’s more complicated, it’s more costly, and there is a variability of decision-making and possibly of standards. I hear this when the advocates say that this will make it much harder for people with disabilities to navigate the system, to find out what rights they have and to get violations fixed.

So I understand the no-wrong-door approach, but I also understand that too much of a GPS with variability will make it completely confusing. Will you respond to this criticism?

Minister Qualtrough: I will. I, too, have received email — maybe that same email and maybe more than once.

Senator Omidvar: We all did.

Minister Qualtrough: If I had a blank piece of paper, and I could design the system of my liking and choosing, it might not look like this. However, we didn’t start out with a blank piece of paper; we started out with a fully functioning, complicated system of federal government that included regulators that were already doing this work — regulators that, to be honest, we didn’t always hear good things about and regulators whose powers we have beefed up.

But it became very clear very quickly as the design of the system started to take hold that we were in a position of having to either pull out from the CTA and CRTC. There are three at play here: the CTA, the CRTC and then the Canadian Human Rights Commission does everything else. In terms of the number of regulators, we’ve got the CTA doing transportation, the CRTC doing telecommunications and broadcasting; and then the Human Rights Commission doing everything else. Taking it out of the CTA or the CRTC would be costly. In some ways, at the end of the day, it wouldn’t recognize the expertise they had built up and that they absolutely can and will improve upon.

But we heard very concretely — and I’m sure you’ll hear yourselves from the kind of more technically minded regulators that are the CTA and the CRTC — that when you’re designing and responsible for safety — CTA airplane seat design comes to mind. The CTA is responsible to design an airplane seat, and the first consideration is safety, of course, and what has to be built into that seat design.

For an outside regulator to come in and say, “Yes, you have to design a seat, but you have to take into consideration all of these accessibility needs,” it was deemed better for the CTA to be the one to include and incorporate accessibility considerations into the design of that seat.

To be very clear, the non-technical aspects of the business of the transportation sector in Canada will be under the purview of the CHRC. So if there’s a customer service standard, an employment standard, built environment standard — those are all going to be imposed on the VIA Rails, the Air Canadas, et cetera. It’s the more technical sides of those sectors that will be the purview of those specific regulators.

It was a compromise, because I recognize it makes the system more complicated for the complainant and the end user. That’s why we’ve taken the efforts we have even now. There are committees. The heads of the CTA, the CHRC and the CRTC are already meeting to figure out how they’re going to work together to make sure that from the complainant’s point of view it is seamless, but we know it’s more complicated. It was a sectoral approach that we chose as a compromise, recognizing we weren’t starting from scratch and recognizing the complicated technical nature of the business in which these two established regulators are in.

I’m confident that there will be bumps along this road, but we will get to a place where whenever someone files a complaint, it will end up where it needs to be, and the chief accessibility officer and the chief accessibility commissioner will make sure of that.

Our Comment: Contrary to the minister’s suggestion, the Canadian Transportation Agency and the CRTC do not have demonstrated expertise in disability accessibility. Their insufficient performance in this area for many years suggests much the opposite.

We have warned that this splintering of the bill’s implementation and enforcement among different federal agencies is very confusing. It is hard to figure out from the bill who does what, as between the Accessibility Commissioner, the Canadian Transportation Agency and the CRTC.

The minister’s presentation reinforced this concern. She incorrectly described the division of responsibility between these agencies. She stated:

“To be very clear, the non-technical aspects of the business of the transportation sector in Canada will be under the purview of the CHRC. So if there’s a customer service standard, an employment standard, built environment standard – those are all going to be imposed on the VIA Rails, the Air Canadas, et cetera. It’s the more technical sides of those sectors that will be the purview of those specific regulators.”

The minister here is saying that the Canadian Transportation Agency will be responsible for technical issues regarding transportation, but not things like the built environment. In fact, under Bill C-81, the Canadian Transportation Agency and not the Canadian Human Rights Commission is responsible for setting standards for the built environment in places like airports and train stations. Section 120 of the bill provides in part:

“120 The only regulations made under subsection 117(1) that apply in respect of a regulated entity that is required to comply with any provision of regulations made under subsection 170(1) of the Canada Transportation Act are those that relate to the identification and removal of barriers, and the prevention of new barriers, in the following areas: …

…(b) the built environment, other than a passenger aircraft, passenger train, passenger bus, passenger vessel, aerodrome passenger terminal, railway passenger station, bus passenger station or marine passenger terminal;”

We sympathize with the minister’s confusion. This bill is itself very confusing and difficult to understand, even for those with extensive expertise in this area.

The minister said the Government is splintering the bill because of the costs of not splintering the bill. To our knowledge, this is the first time that the Federal Government has claimed that it would be more costly to have this bill’s accessibility regime all enforced by one federal agency, the new ,Accessibility Commissioner , rather than splintering it among four agencies. It is the first time the Government has claimed it would be more costly to have all regulations made by the Federal Cabinet, rather than splintering this responsibility among three agencies, the Cabinet, the Canadian Transportation Agency and the CRTC.

The Government offered no specifics on what these supposed added costs would be. It did not offset these against the greater costs under this bill, as written, to the Government, to people with disabilities and to obligated organizations of having this bill’s implementation and enforcement so splintered. For example, under the bill as now written, it will cost the airlines more to produce two separate accessibility plans and to deal with two different regulatory agencies, the Accessibility Commissioner and the Canadian Transportation Agency, than if they only had to prepare one plan and file it with one federal agency.

Excerpt 12

Senator Poirier: On Bill C-81, it does not include a deadline for achieving full accessibility, compared to the different provincial accessibility legislation, like the Accessibility for Ontarians with Disabilities Act. This act has clear deadlines for achieving the full accessibility for Ontarians on or before January 1, 2025.

Can you explain to us why you have not put a deadline established in Bill C-81?

Minister Qualtrough: Absolutely, senator. As I said, that was a topic of rigorous debate and discussion, and sometimes disagreement, over the course of going through this whole journey with respect to this legislation. Where we landed, as I said, was focusing on getting things started, not imposing a deadline that in any way would disincentivize organizations to get going on this. It was about recognizing that what we consider accessible today will not be good enough 10 years from now and knowing, quite frankly, that we’re a long way off from being accessible or barrier-free.

We concluded that it just wasn’t the best way to get going on this. I don’t know if I could elaborate further. At the end of the day, we figured putting in place the requirement that regulations and standards be put in place within two years by each of the regulators and that a review of the law happen within five years of the first regulation coming into force — taking the steps in parallel now to get this thing off the ground and going was the better course of action.

Our Comment: We repeat our comments under Excerpt 8, above.

Excerpt 13

Senator Dasko : I guess another thing that I’ve heard from some people who think this bill should go farther than it does has to do with the federal government’s lack of intention here to take a stronger role when it comes to direct federal spending on infrastructure projects or spending in many areas where the federal government funds projects and creates projects and so on, the critique being that it doesn’t go far enough in insisting that barriers are not there when these projects are undertaken. So just at the beginning, I suppose, before federal money is given to these projects, not enough is being done in this bill to ensure that those projects are barrier-free. It’s a critique I’ve heard, and I’d like to hear what you might have to say about it.

(Procedural discussion omitted)

Minister Qualtrough: At the end of the day, what I would say is we’ve pushed the language in the law as far as we can go while still respecting federal jurisdiction. James is probably better to answer the technical side as to how far we can go, but this will apply to federal policies and federal programs. It won’t apply to financial transfers like the health transfer because that’s effectively a provincial jurisdiction that we’re helping to fund, but it doesn’t give us authority, as I understand it, to actually impose that condition down that far. Maybe I’m not explaining it right. I apologize. It’s jurisdictional.

To be very clear, though, this will transformatively change the Government of Canada in terms of every department and agency will have to have an accessibility plan. We have already established in my office, for example, a centre for accessible procurement, meaning we will be having policies and processes. We won’t procure things that aren’t accessible.

The Prime Minister has appointed a deputy minister responsible for an accessible public service, whose job it is every day to figure out how we are going to have to be ready and how we will be ready in our government with its employees to adhere to this law.

Can you talk to more about how far we can go down, please? Because I can’t remember the language in the law.

Mr. Van Raalte: I think you’ve covered it, minister. Departments will have to be able to report on their programs, policies and services. They will have to do that reporting in consultation with people with disabilities. They are at the table for that. So that will actually give both the government and the public forward-looking perspective on the plans of those organizations, such as planned spending and program priorities in a forward-looking way that will allow us to have those discussions. You want to be thinking about the accessibility measures included in those investments.

Ms. Qualtrough: Having said that, in terms of what’s in the law, we’ve taken a number of steps in parallel to embed accessibility into our new programs and our new processes. I’ll give you an example. With the National Housing Strategy or our infrastructure program, accessibility is baked into these initiatives.

A fun example I like to give is around our infrastructure. Transit is a priority for our government. Historically, for whatever reason, whether it be oversight or intention, upgrades with respect to making buses more accessible have not been included as eligible expenses for communities to claim and use infrastructure dollars for. We literally added a box on a piece of paper three years ago where we told communities that they could use this money to make their community buses more accessible. In that one year, $810 million was spent on accessible transit. We didn’t advertise it. We didn’t highlight it anywhere. We changed the form, and communities recognized the values of accessible transit and invested in their communities.

I could give you so many examples, as we’ve pursued this law, of the things that we’ve done in terms of government policy, programs and initiatives to make the way we govern a more accessible experience, both for the people who work in government and the people we serve.

Our Comment: As the AODA Alliance presentation to the Senate’s Standing Committee on April 11, 2019 shows, we respectfully disagree with the minister’s claims that the Federal Government cannot do more here. The minister’s statements make it sound like the Federal Government is powerless to attach accessibility strings when it gives federal public money to a local or provincial government to help build a hospital, subway station, or university building.

This is incorrect. The Federal Government has a significant “spending power” which lets it attach federal conditions to federal money that it gives out. If a provincial government or other local organization doesn’t want to comply with those strings, it is free to simply refuse to accept the federal money.

For over three decades, the Canada Health Act, a federal law, has attached federal strings to federal money that is given to provinces to help finance their health care systems. One of those legal requirements is the accessibility of health care services (not in the disability sense of accessibility) If the minister is correct – that the Federal Government has no power to attach strings to federal money that is spent in provincial areas of responsibility – then she is admitting that the Canada Health Act is unconstitutional. That would be a surprising thing for a federal cabinet minister to claim.

We believe that the Federal Government could include in Bill C-81 a requirement that no federal cabinet minister or department may agree to give federal public money to any organization, federal or provincial, to contribute to the building or renovating of infrastructure, unless the recipient agrees to meet federal accessibility requirements. If the minister were correct, then the Federal Government is simply powerless here. It can give money to help fund the construction of a local subway station, but is powerless to say that the subway station must have elevators, and not just stairs, to reach the subway. We disagree.

This too is not a hypothetical issue. The AODA Alliance has produced a widely-viewed online video that shows serious accessibility problems at new Toronto subway stations, recently opened, that were built in part with federal money.

The minister gave examples of commendable new policies that the Federal Government has adopted to promote the procurement by the Government of accessible goods, services and facilities. We applaud these. However, they are merely policies, not legal requirements. A subsequent minister or Government could abolish or disregard them with the stroke of a pen, without requiring any public debate. That is why we want such requirements embedded in the bill.

Excerpt 14

Senator Kutcher: Thank you, minister, for your very clear and well considered answers to these questions. Our task is to try to assist in making the bill the best it can be. You mentioned one area that I think you suggested we could dive a little bit deeper on and that was the sign language domain. So my question is: Are there any other areas that you or your team —

Minister Qualtrough: Boy, am I allowed to answer this question?

Senator Kutcher: — would like to highlight as something we could have a more intensive focus on as we study the bill?

Minister Qualtrough: I think some sort of recognition, as you say, of sign languages as being the first language of Canadians who are Deaf is certainly what we have all heard and you will hear.

Senator Munson asked a question about the duty to accommodate, and perhaps to avoid confusion that could be explicit. I know it is at law and I would suggest case law has already clarified that point but I think it might be worth . . . nobody usually asks me that question.

Yes, I mean, if there are things that you think can be improved, certainly please explore that. My concern is getting it passed. I think it’s a really good piece of law and I wouldn’t want anything to get in the way of that. Sorry to be so direct. The community has done such good work and I feel a real heightened obligation to deliver this for them. This is once in a generation and people have fought for a long time before me to have this conversation nationally. This is a genie we are not putting back in the bottle. It’s pretty exciting. Sorry I don’t have further feedback for you but those two would be at the top of my mind.

Our Comment: The minister here again indicates that she is open to amendments to the bill. That is helpful.

As areas that the Senators might focus on as part of their study of the bill, the minister referred to possible recognition that Sign Language is the first language of people who are deaf, and something explicit about the duty to accommodate. She said that those two items are at the top of her mind. She did not specifically commit to passage of amendments to that end. She commendably invited the Senate to explore things in the bill that “can be improved.”

Excerpt 15

Minister Qualtrough: May I add something on the duty to accommodate piece because it’s really important and kind of something I’m obsessed with. We need to make it very clear to Canadians that this is a really important legally enshrined tenet of human rights law in this country and nothing we are doing here takes away any organization’s obligation to accommodate individuals. In some cases, a small business who has complied with the standard might say, “We have complied,” and that might meet their duty to accommodate but the Government of Canada it might not. We need to be very clear and I need it on the record from me so I can sleep tonight that this in no way, in any way negates any organization’s obligation to accommodate individuals on the grounds of disability.

Our Comment: We repeat our comments under Excerpts 1 and 6 above.

Excerpt 16

Senator Eaton: Minister, is there another country who does this better than we are going to do it? Is there another country that is an example to us?

Minister Qualtrough: Our neighbour to the south has the Americans with Disabilities Act, which has an anti-discrimination component which would be covered off in our country by the human rights legislation and an accessibility standards component. So we have spent a lot of time looking at their model. It’s obviously a different kind of structured country, federal, state, but what I’m hoping, because I’m at heart a competitive athlete, is that this becomes the international standard that has built upon what other countries have been doing. The States has been doing it for 30 years, but I would like to believe ours will be better.

Our Comment: We commend the minister for wanting Canada’s new accessibility legislation to be better than the American legislation, and better than other laws around the world. However, as now written, Bill C-81 regrettably falls well short of that goal. It is also in some key ways weaker than Ontario’s AODA, which itself has run into significant implementation and enforcement problems over the past 14 years.

Excerpt 17

Senator Omidvar: Very quickly, you have talked about the fact that there is a timeline, that within two years agencies have to enact one regulation. However, what is the quality of that regulation? Is there a concern that it could be an inconsequential one, a minor procedural matter without actually embracing the spirit of what you are trying to propose?

Minister Qualtrough: I don’t think the law provides the safeguard that you are asking about. What I do think, though, is that CASDO is that safeguard. So having CASDO created with a board of directors with a majority of individuals with lived experience, and they get to decide which regulations take priority and what comes first and what comes second and who does what and what the priorities are. That group of individuals will be tasked with making sure there are substantive regulations in place as quickly as possible based on their agreed upon priorities.

Our Comment: We respectfully disagree with parts of the minister’s description of this legislation. The minister correctly stated that the bill does not ensure that the regulation that must be enacted within two years is something more than an inconsequential procedural regulation.

However, she is incorrect in stating that the new Canadian Accessibility Standards Development Organization is a safeguard to ensure that substantive regulations are enacted as soon as possible. CASDO has no such power under this bill. CASDO has no authority to enact any regulations whatsoever. It can only give advice. It can recommend what should be included in accessibility standard regulations. The Federal Government, the CRTC and the Canadian Transportation Agency need never listen to CASDO’s advice, and need never give a reason for refusing to act on CASDO’s advice.

As for the regulation that must be enacted within two years, that regulation is NOT an accessibility standard regulation. As the Senator’s question mentions, it is a procedural regulation that the Government must enact in the first two years. CASDO has no control over those procedural regulations. Contrary to the minister’s suggestion, CASDO is therefore not an effective safeguard to ensure that those regulations are meaningful.



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Canada Transportation Agency Proposes New Regulations that Threatens t Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

Canada Transportation Agency Proposes New Regulations that Threaten to Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance

April 18, 2019

          SUMMARY

Today, the AODA Alliance submitted a brief to the Canada Transportation Agency on the draft regulations that it is proposing to enact under the Canada Transportation Act to address the many barriers that people with disabilities face in the parts of Canada’s transportation network that the Federal Government can regulate, such as air travel. We set out our brief below.

The CTA posted these very detailed draft regulations on March 9, 2019 and gave the public 30 days to comment on them. We regret that we are submitting our brief after the CTA’s deadline for comment. We were not able to prepare this brief sooner, as we have been devoting so much time to our campaign to get Canada’s Senate to strengthen the weak Bill C-81, the proposed Accessible Canada Act.

We regret that we did not have time to post a draft of this brief earlier, for your feedback, as we ordinarily do when we are preparing briefs like this. We had to prepare this brief in an extraordinary rush.

Our brief provides an excellent illustration of why we need the Senate to strengthen Bill C-81. Parts of this draft regulation that we had time to analyze threaten to weaken the protection of the duty to accommodate people with disabilities. This is because s. 172 of the Canada Transportation Act says that once a regulation like this is enacted, it serves as a cap on the duty to accommodate people with disabilities, in so far as the CTA can enforce it. Our brief illustrates by example how this draft regulation would reduce protection for the duty to accommodate people with disabilities in federally-regulated transportation.

We therefore oppose the passage of this draft regulation, for the reasons we set out in this brief. We regret having to do so, because on our first review of the draft regulation, there appear to be some good things in it. As our brief explains, we nevertheless oppose its enactment because it threatens to reduce the rights of people with disabilities.

Sadly, our brief provides a good illustration of some of the problems with Bill C-81. We have called on the Senate to amend Bill C-81 to remove the damaging and harmful s. 172, so that regulations like these cannot serve to weaken the rights of people with disabilities. Our brief illustrates why that amendment to Bill C-81 is so vital to people with disabilities. We will find out on May 2, 2019 whether the Senate’s Standing Committee on Social Affairs will take up our recommendations for strengthening Bill C-81, including the repeal of s. 172.

It is not too late for you to help. Please email the Senate’s Standing Committee by writing [email protected] and urge the Senators to strengthen Bill C-81. Send them this brief to give a good example of why we need them to get rid of the harmful s. 172.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You should read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

 

 

          MORE DETAILS

 

Accessibility for Ontarians with Disabilities Act Alliance

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

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

Brief to the Canada Transportation Agency on the Draft Regulations Posted for Comment on the Canada Gazette Entitled “Accessible Transportation for Persons with Disabilities Regulations”

April 18, 2019

To: Canada Transportation Agency

Via Email: [email protected]

Care of Sonia Gangopadhyay

Acting Director

Centre of Expertise for Accessible Transportation

Canadian Transportation Agency

15 Eddy Street

Gatineau, Quebec

K1A 0N9

Telephone: 819 953 8961

1. Introduction

In this brief, the AODA Alliance offers the Canada Transportation Agency our summary feedback on the draft regulations which the CTA posted in the Canada Gazette for public comment within 30 days on March 9, 2019, entitled “Accessible Transportation for Persons with Disabilities Regulations”. (ATPDR)

The AODA Alliance regrets that it has had to submit this brief past the CTA’s deadline for feedback. We regret that our volunteer coalition did not have the capacity to address this earlier. The CTA’s short 30-day public consultation period on these complex regulations overlapped with the pivotally important hearings on Bill C-81 (the proposed Accessible Canada Act) by the Senate. Moreover, a proper analysis of the CTA’s highly-technical document, which runs over 100 pages, is not something a voluntary grassroots organization can readily undertake on such short notice. This is made more challenging by the draft regulations’ complexity and, at times, impenetrable text.

Due to the insufficient time, we have not been able to fully review and analyze the entirety of the draft regulations’ details. We here address a short number of key points that amply support our core conclusion.

Our position in this brief is summarized as follows:

  1. We commend the CTA for embarking on developing modernized accessibility standard regulations. These are long overdue. We share the CTA’s conclusion that the current situation facing passengers with disabilities is unacceptable, and that mandatory enforceable regulations are needed.
  2. We accept that there are some helpful provisions in the draft regulations. However despite this, the draft regulation should not be enacted in its current form, especially if Parliament does not remove s. 172 from the Canada Transportation Act. This is because as written, the draft regulation threatens to reduce human rights of passengers with disabilities.

The Canada Transportation Agency should not infer that the short list of key concerns addressed in this brief are the only concerns that we would have raised about these draft regulations, had we had a fuller opportunity to digest and analyze them.

In general we share the concerns about this proposed regulation that the Alliance For Equality of Blind Canadians has set out in its excellent April 6, 2019 brief to the CTA which is available at:

http://www.blindcanadians.ca/sites/aebc/files/docs/brief/3208/Canada%20Gazette%20regs%20Brief%20final%2004-06-2019.docx

2. Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment. We have advised many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand.

Among many other activities, we have been extensively involved in providing input to the Transportation Accessibility Standard enacted under the Accessibility for Ontarians with Disabilities Act. Our activity at the provincial level in the transportation area can be seen by visiting https://www.aodaalliance.org/transportation/

3. Endorsing Certain Specific CTA Findings

The CTA’s posting of draft regulation makes a number of key findings which the AODA Alliance endorses and supports.

The CTA correctly recognizes that Canada is not a leader in this area on the international stage. It acknowledged:

“Canada lags behind other countries that have comprehensive and enforceable regulations in this area.”

Later it wisely recognized:

“The CTA’s RMI revealed that its existing accessibility instruments represent a patchwork of regulations and voluntary standards, some of which are outdated and inadequate in their scope. This has resulted in inconsistent accessibility-related services and reduced access to transportation services for persons with disabilities.”

Still later the CTA recognized:

“Canada’s heavy reliance on voluntary codes of practice currently leaves it lagging behind other key jurisdictions that have comprehensive and enforceable accessible transportation regulations, notably the United States and the EU.”

Later the CTA similarly recognized how out-of-date its regulatory regime in this area has been:

“The current CTA regulations, voluntary codes of practice, and some of the guidance material relevant to accessible travel are outdated and contain significant gaps. While some gaps have been partially addressed through the CTA’s adjudication of individual accessibility complaints, this approach has resulted in an uneven playing field for industry, as some transportation service providers named in complaints are required to remove undue obstacles while others are not. As a result, extensive consultations have confirmed wide support from disability rights organizations, the general public and industry for the development of a single, comprehensive set of accessible transportation regulations that apply across the national transportation system.”

Elsewhere the CTA fairly acknowledged that its regulatory regime in this area to date has been inadequate, where it states:

“However, current accessibility provisions for the national transportation system are generally voluntary (i.e. not legally binding), and have not kept pace with developments since the early 2000s.”

4. CTA’s Goal In the Draft Regulation is Confused

At points, the CTA sets its goal well below the human rights standard. This is especially troubling, since the CTA states that it is trying to align itself with Bill C-81, the proposed Accessible Canada Act. That proposed legislation is called “an Act to ensure a barrier-free Canada.”

At other points, CTA merely says it aims to make transportation “more accessible”, a tepid and inadequate goal. The CTA states:

“The proposed Regulations would require these entities (collectively referred to herein as “transportation service providers”) to take steps to meet certain standards to make travel more accessible and consistent for persons with disabilities.”

Later the CTA acknowledges a stronger and far more appropriate goal of a barrier-free transportation system:

“The overarching objective of the proposed regulatory package is to promote the inclusion and participation of persons with disabilities in society by creating comprehensive and enforceable accessible transportation requirements that are applicable to all modes of transportation, and enabling persons with disabilities to travel with a predictable and consistent level of accessibility across a barrier-free modern national transportation system.”

Still later, but within just a few pages of those earlier contradictory statements, the CTA in one paragraph both sets a correct goal of “equal access” and shortly thereafter the incorrect diluted goal of “more accessible”:

“The ATPDR would ensure that all Canadians, including persons with disabilities, have equal access to the national transportation system. Transportation service providers subject to the proposed Regulations would be required to take steps and meet the proposed standards to make travel more accessible and consistent for persons with disabilities.”

We recommend that the CTA use consistent language that makes it clear that aim of the regulation is the achievement of a barrier-free and fully-accessible transportation system. We also recommend that a provision be added to the regulation that makes it clear that nothing in this regulation should be construed as reducing any duties to accommodate passengers with disabilities as guaranteed either in the Canada Human Rights Act or the Canada Transportation Act.

5. Draft Regulations Threaten to Create a New Legal Barrier that Can Impede Human Rights Duty of Transportation Providers to Accommodate

The AODA Alliance opposes the adoption of any CTA regulations that could threaten in any way to reduce the duty of transportation providers to accommodate passengers with disabilities as guaranteed under human rights laws. This includes any threat to reduce the duty of transportation providers under the Canada Transportation Act to remove and prevent undue obstacles or barriers to travel by passengers with disabilities.

For this reason, we regret that we must oppose the adoption of the draft regulation. While it includes some helpful contents, it also includes provisions that threaten existing human rights entitlements.

We have not had the time to screen the entire draft regulation to find all the threatening provisions, in order to see which parts, if any, of the draft regulation is irrelevant to that pressing concern. Before proceeding with this regulation, the Federal Government should put this draft regulation through a careful screening, with input from the disability community and the Canadian Human Rights Commission for that purpose.

Our concern arises from the fact that s. 172 of the Canada Transportation Act provides that once the CTA has enacted a regulation in an area, passengers with disabilities are barred from bringing an individual claim that a barrier is an “undue obstacle” in that area, if that would require the transportation provider to do anything more than the regulation requires. In effect, the CTA regulation sets a cap or ceiling on the scope of the duty to accommodate of transportation providers. The transportation provider need do no more, even if the regulation does not ensure effective accommodation, and even if further accommodation efforts are possible without undue hardship.

Section 172 provides, referring to the Canada Transportation Agency:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

The AODA Alliance and other disability organizations have asked Parliament to repeal s. 172. That would leave the human rights duty to accommodate intact. Regulations enacted by the CTA could reinforce it, but never reduce it. The Federal Government has not done so. It has given no reason for its refusal to do so.

Instead of removing this unfair provision in the CTA legislation, Bill C-81 preserves it. The Federal Government refused our request to remove it from Bill C-81. We have asked the Senate to remove it. The Senate has not yet indicated whether it would do so.

When the CTA appeared before the Senate’s Standing Committee on Social Affairs to discuss Bill C-81 on April 10, 2019, it did not identify this problem or express any opinion on the AODA Alliance’s call for s. 172 to be repealed. To our knowledge, the Senators did not ask the CTA about this specific provision at those hearings.

When federal Disabilities Minister Carla Qualtrough appeared on April 3, 2019 before the Senate’s Standing Committee on Social Affairs to speak to Bill C-81, she stated:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Yet Bill C-81, whose creation she led, preserves and perpetuates s. 172, which is a threat to the duty to accommodate people with disabilities.

We here identify a troubling example in the draft regulations which on their face threaten to cut back on the duty to accommodate. As a painful irony, this threat arises from provisions which on their face give the impression that they seek to assist with the accommodation in transportation of passengers with disabilities.

We specifically focus on the draft regulations’ imposing a duty on passengers with disabilities to give advance notice to transportation providers of a request for certain prescribed accommodations. This problem arises from a combination of sections 29, 32, 34 and 35 of the draft regulations, which we set out here in material part.

Section 29 of the draft regulations provides:

“Advance notice — at least 48 hours

29 (1) If a person with a disability makes a request for a service set out in this Part at least 48 hours before the scheduled time of departure, the carrier must provide the service.

No advance notice required

(2) Despite subsection (1), if a person makes a request for a service referred to in any of paragraphs 32(a), (b), (g) and (i) to (w) or section 34 or 35 less than 48 hours before the scheduled time of departure, the carrier must provide the service.

Advance notice — 96 hours

(3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.

If no advance notice

(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

Section 32 of the draft regulations, to which s. 29 refers, provides:

“32 A carrier must ensure that personnel, on the request of a person with a disability, provide the following services to the person without delay:

(a) assisting the person with registering at the check-in counter;

(b) permitting the person, if they are unable to use an automated self-service kiosk or other automated check-in or ticketing process, to advance to the front of the line at a check-in counter or ticket counter;

(c) assisting the person in proceeding through any security screening process at the terminal, including by

(i) providing personnel to assist the person to proceed through the security screening process, or

(ii) collaborating with the relevant security authority or security personnel at the terminal to permit a person who is not travelling with the person with a disability to have access to the security screening checkpoint so that they may assist the person with a disability to proceed through the security screening process;

(d) assisting the person in proceeding to the boarding area after check-in;

(e) before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier;

(f) assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck;

(g) assisting the person in storing and retrieving their carry-on baggage;

(h) before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat;

(i) assisting the person in moving in and out of a mobility aid space;

(j) before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat;

(k) assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device;

(l) before departure, providing the person with an individualized safety briefing and demonstration;

(m) on board an aircraft, train or ferry, providing the person with an on-board wheelchair;

(n) on board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair;

(o) on board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog;

(p) if a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille;

(q) if a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions;

(r) if the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats;

(s) assisting the person in proceeding through immigration and customs;

(t) assisting the person in retrieving their checked baggage;

(u) assisting the person, after disembarkation, in proceeding to the general public area;

(v) assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator; and

(w) assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier.”

Sections 34 and 35 of the draft regulations provide:

“34 If a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile is waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, the carrier must ensure that personnel

(a) provide the person with a place to wait that is close to personnel who are available to provide assistance to the person; and

(b) periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.

Request for assistance

35 Unless a person with a disability is able to request assistance from personnel by means of a call button, the carrier must ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.”

This draft regulation would legislate the creation of a new legalized barrier to the duty to accommodate, namely a requirement for passengers with disabilities to give advance notice to the transportation provider 48 hours before the travel, when seeking certain specified accommodations. That means that passengers with disabilities don’t have an assurance of a vital accommodation service if they have not given 48 hours advance notice to the transportation provider, where they are requesting any of the following accommodations:

Assisting the person in proceeding through any security screening process at the terminal (s. 32c).

Assisting the person in proceeding to the boarding area after check-in (s. 32(d)).

Before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier (s. 32(e)).

Assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck (s. 32(f)).

Before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat (s. 32(h)).

Assisting the person in moving in and out of a mobility aid space (s. 32 (i)).

Before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat (s. 32(j)).

Assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device (s.32 (k)).

Before departure, providing the person with an individualized safety briefing and demonstration) s. 32(l)).

On board an aircraft, train or ferry, providing the person with an on-board wheelchair (s. 32(m)).

On board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair (s. 32(n)).

On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).

If a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille (s. 32(p)).

If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

If the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats (s. 3r)).

Assisting the person in proceeding through immigration and customs (s. 32(s)).

Assisting the person in retrieving their checked baggage (s. 32(t)).

Assisting the person, after disembarkation, in proceeding to the general public area (s. 32(u)).

Assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator (s. 32(v)).

Assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier (s. 32(w)).

Providing a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile, while waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, to provide the person with a place to wait that is close to personnel who are available to provide assistance ,and periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required as listed in that Part of the regulations. (s. 34).

Unless a person with a disability is able to request assistance from personnel by means of a call button, to ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part. (s. 35).

Advance notice is simply not justified for many if not most of these accommodations – assuming it can even be justified for any of them. These all involve a transportation provider deploying existing staff on hand. We cannot see how a transportation provider would change its plans or operations 48 hours before a trip in response to such advance notice. Even if advance notice were justified, which we dispute, a full two days is excessive.

Making this problematic situation even worse, s. 32(3) would allow a transportation provider to unilaterally require even more notice, namely 96 hours (4 days) for any of the foregoing, in circumstances that passengers with disabilities could not reliably know in advance. Section 32(3) provides:

” (3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.”

When could an airline, for example, possibly need fully four days’ notice in order for a flight attendant, already present on the plane to do any of the following:

* Before departure, providing the person with an individualized safety briefing and demonstration )s. 32(l)).

* On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).

* If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

Section 32(4) of the draft regulations attempts to reduce the harshness of this new barrier to effective accommodation of passengers with disabilities. It provides:

“(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

By s. 32(4), a passenger’s failure to give the required notice is not automatically barred from any accommodation. However, the only effort that the transportation provider must make to provide a needed accommodation in circumstances of no advance notice is effort that is simply “reasonable.” The draft regulation provides no criteria for assessing the reasonableness of the transportation’s efforts.

Section 32(4)’s “reasonable efforts” clause is worded in terms that risks falling short of the human rights duty to accommodate. Under the human rights duty to accommodate, the transportation provider has the duty to make serious and substantial efforts, tailored to the individual’s specific needs, including investigating alternative solutions where needed, as well as the burden to show that it was impossible for the transportation provider to do more than it did to accommodate the passenger with a disability, without undue hardship. “Undue hardship” is a recognized and tough test to meet. It is not mere “reasonableness” of its effort.

These sections in the draft regulations read as if they were written for, if not by, the transportation sector. Such provisions are emblematic of why so many in the disability community oppose the CTA being assigned the proposed accessibility mandate under Bill C-81.

Many if not most or all of the accommodation services listed above that are subject to this new prior notice requirement are ones which passengers with disabilities have been able to request without prior notice up to now. As such, the draft regulations here threaten to serve as a real step backwards.

The regulations impose no duty on a transportation provider to effectively notify all passengers that it will require a 96 hour notice period for any or all of the listed accommodation services. Merely posting this on a website provides no assurance that passengers with disabilities will know to check, and will check at the right place. Must all passengers with disabilities start surfing the web or phoning their airline 96 hours in advance in case they might need one of these accommodations?

This notice requirement also presents a serious new barrier for passengers who are travelling at the last minute, e.g. for business, or to address an emergency or to attend a funeral. Passengers without disabilities are not similarly burdened. As such, this appears quite discriminatory.

The draft regulations do not require transportation providers to provide a reliable, quick, easily-accessed means for passengers with disabilities to give the required notice to the transportation provider. Members of the public are all too aware of the difficulties when trying, for example, to simply get a live person on the line when calling a major transportation provider. Even when a passenger tries to contact either of Toronto’s major passenger airports, Pearson International Airport or Billy Bishop Airport, to request curbside assistance in advance of arriving at the terminal, frustrating barriers have been encountered. Some have secured media attention. Had this been so important for the airlines, we anticipate that they would have already created a fast, effective and easy-to-use to give such advance notice.

6. Exceptions and Exemptions that Are Too Broad Fly in the Face of Supreme Court Human Rights Requirements

The draft regulations include exceptions and exemptions that are too broad. We have not had the time to isolate and analyze all of these. They all needed to be screen for human rights concerns before enactment of this regulation can be considered.

The CTA’s explanation of the draft regulations includes:

“The proposed ATPDR would set minimum accessibility standards that would apply to any new buildings or facilities purchased by Canadian transportation service providers after the one year following the coming into force of the proposed Regulations. In addition, any major modifications made to existing equipment or facilities would be required to comply with the proposed Regulations.”

This appears to permit a transportation to acquire a new building with accessibility barriers over a year after this regulation comes into force. The draft regulations need to be vetted to ensure that they do not allow a transportation provider or terminal to acquire a new building or part of a building during the year after the regulation comes into force, that does not meet the regulation’s accessibility requirements.

As another example, the draft regulations set requirements for accessibility features that must be included in new passenger airplanes. According to a complex series of provisions that are hard to decipher, some of these requirements do not apply to a “pre-existing” airplane. Section 62(4) defines a pre-existing airplane or like equipment as follows:

“(4) In subsections (1) to (3), a pre-existing aircraft, train, ferry or bus means an aircraft, train, ferry or bus that was

(a) purchased or leased by the carrier before the day on which this section comes into force; or

(b) purchased or leased by the carrier on or after the day on which this section comes into force, if the carrier has submitted the invitation for bids in respect of that aircraft, train, ferry or bus before that day.”

This provision does not come into force for one year after this regulation is enacted (See s. 162). As such, it appears that an airline could rush out now and buy new airplanes that do not meet the accessibility requirements for new airplanes, over the months before the regulation comes into effect. This flies in the face of the duty of each transportation provider not to create new disability barriers. It was a CTA case before the Supreme Court of Canada that established this principle in Council of Canadians with Disabilities v. ViaRail ## cite. [2007] 1 SCR 650, citing with approval Lepofsky, M. David. “Federal Court of Appeal De‑Rails Equality Rights for Persons With Disabilities — Via Rail v. Canadian Transportation Agency and the Important Duty Not to Create New Barriers to Accessibility” (2005‑2006), 18 N.J.C.L. 169.

All the timelines in these draft regulations need to be vetted to ensure that they do not violate the principle that the Supreme Court of Canada enunciated in the ViaRail case.

7. Curbside Assistance Provisions Fraught with Difficulties

We offer one other illustration of a concern with the draft regulations that show the risk of their being quite weak, namely the provision regarding curbside assistance at a transportation terminal. We do not here suggest that this provision violates existing human rights. Rather, we point to this because the CTA, when appearing before the Senate’s Standing Committee on Social Affairs, highlighted this part of these regulations. CTA chair Scott Streiner told the Senate’s Standing Committee on Social Affairs on April 10, 2019:

“The second example I would give relates to curbside assistance — that is, curb to gate assistance in airports. For travellers using mobility devices, particularly wheelchairs but also those who require guidance for blind travellers, or others, we all know that it can be a challenge, even if you don’t have a disability, to find your way from curbside to gate. Certainly, we require assistance in some cases for persons with disabilities.

There have been instances that have come to our attention where there’s been confusion about who provides that assistance between the airport, the airline and folks that found themselves not receiving the kind of assistance they need in a timely way. Again, these new regulations make it clear who has to do what. That’s a gap we’re trying to address through regulations.”

It is commendable that the draft regulations aim to ensure that passengers with disabilities can get curbside assistance to get into an airport or other transportation terminal, so they can check in. However, the provisions have excessive loopholes and leave far too much to the discretion of transportation provider and terminal operators. Contrary to Mr. Streiner’s presentation to the Senate and his commendable aims here, they do not make it clear to passengers with disabilities who does what.

Section 137 provides that a terminal operator must provide to passengers with disabilities “without delay” accommodation services such as”

“(c) assisting the person to proceed between the curbside zone and the check-in area or, if there is no check-in area, between the curbside zone and a representative of a carrier.”

Section 137(2) qualifies that a terminal does not have to provide that service if the transportation provider is providing that service. Section 137(2) provides:

” (2) Despite subsection (1), a terminal operator is not required to provide a person with any assistance referred to in that subsection if a carrier is already providing that person with that assistance.”

Section 136 requires the terminal operator to publish information about the availability of this curbside assistance. Section 136 provides in part:

“136 A terminal operator must publish, including by publishing on its Internet site, information about the services or facilities available at the terminal for persons with disabilities, including information about

(a) the curbside zone, including where the curbside zone is located and how to request assistance to or from the curbside zone;”

Taken together, these provisions are too confusing and slippery. Here again, they appear to serve the interest of terminal operators and transportation providers, who are given excessive discretion. Passengers with disabilities are left with uncertainty and unpredictability.

First, the regulation sets no time target that the terminal or transportation provider must meet to provide this curbside assistance. “Without delay” is entirely unpredictable and hard to enforce. A passenger with a disability could be left isolated, with no nearby staff, waiting and waiting alone in front of an airport in the middle of a freezing February day, without knowing how long they must continue to wait. They won’t know how much earlier they must arrive at the airport to be sure they get assisted to arrive inside the terminal to check in, in time to ensure that they don’t miss their flight. This does not serve the fundamental goal of predictability that the CTA emphasized in its explanation of these regulations.

By not specifying a specific maximum time requirement, this leaves each transportation provider free to set its own time lines, hoping that passengers with disabilities won’t bother taking on the burdensome chore of filing and litigating a case before the CTA over this. transportation providers know that few passengers with disabilities will wish to take on the hardship of litigating against a well-funded transportation provider over the interpretation of the vague words “without delay”.

Second, the draft regulations create confusion facing passengers with disabilities over who is responsible to provide this curbside assistance. The provision imposes the duty on the terminal. However, it leaves it open to an airline to provide the service, in which case the terminal is excused. Yet the provision imposes no specific duties on the airline that does offer the service. Does the “without delay” clause apply to the airlines too? If the airline doesn’t provide the service, has the passenger a right to demand it from the terminal operator? How can the passenger give the 48 or 96 hour notice that the terminal operator might demand?

For a passenger with a disability who just wants to get into an airport’s front door and up to the counter, this is a legal/regulatory mess dressed up as a helpful accommodation. Add to this the ordeal, while standing outside on that freezing February day, fearful of missing one’s flight, of then having to try to get someone on the phone from the airline or airport to figure out who is supposed to help, or trying to surf the web to see if there is an up-to-date posting on the airline’s or airport’s website that might point to the right phone number. Navigating such websites for assistance and trying to reach a live person on the phone with correct information on a topic like this is already a vexing challenge.

Third, there appears to be no requirement that all passengers including passengers with disabilities be notified of this service when their ticket is purchased, as part of the ticket documentation. Similarly, there is no requirement that the transportation provider or terminal have, and make public, an easily-reached phone number to call when en route to the terminal, to give advance warning that they are about to arrive. Requiring notice 48 or 96 hours in advance does little to help the terminal or transportation provider. Being able to call to seek this accommodation when a few minutes away, and to reach a live person in direct contact with the help personnel, would go much further to make a service like this become reliable.

8. Conclusion

We hope that in our rush to provide useful feedback on this complicated and at times, opaque draft regulation, we have not inadvertently made any incorrect descriptions of its provisions. If we have, we ask the CTA to notify us, so that we can correct our submission.

This draft regulation shows why it is essential for Parliament to immediately repeal s. 172 of the Canada Transportation Act. People with disabilities should not have to fear that the enactment of a regulation like this, despite some helpful provisions, can end up reducing their rights. They face too many barriers now in Canada’s transportation system. They should not face further hurdles, created by a regulatory authority whose mandate is to tear down such barriers and to prevent the creation of new ones.



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Canada Transportation Agency Proposes New Regulations that Threatens to Reduce the Duty to Accommodate Passengers with Disabilities in Air Travel and Other Transportation that the Federal Government Can Regulate, According to a New Brief by the AODA Alliance


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

April 18, 2019

SUMMARY

Today, the AODA Alliance submitted a brief to the Canada Transportation Agency on the draft regulations that it is proposing to enact under the Canada Transportation Act to address the many barriers that people with disabilities face in the parts of Canada’s transportation network that the Federal Government can regulate, such as air travel. We set out our brief below.

The CTA posted these very detailed draft regulations on March 9, 2019 and gave the public 30 days to comment on them. We regret that we are submitting our brief after the CTA’s deadline for comment. We were not able to prepare this brief sooner, as we have been devoting so much time to our campaign to get Canada’s Senate to strengthen the weak Bill C-81, the proposed Accessible Canada Act.

We regret that we did not have time to post a draft of this brief earlier, for your feedback, as we ordinarily do when we are preparing briefs like this. We had to prepare this brief in an extraordinary rush.

Our brief provides an excellent illustration of why we need the Senate to strengthen Bill C-81. Parts of this draft regulation that we had time to analyze threaten to weaken the protection of the duty to accommodate people with disabilities. This is because s. 172 of the Canada Transportation Act says that once a regulation like this is enacted, it serves as a cap on the duty to accommodate people with disabilities, in so far as the CTA can enforce it. Our brief illustrates by example how this draft regulation would reduce protection for the duty to accommodate people with disabilities in federally-regulated transportation.

We therefore oppose the passage of this draft regulation, for the reasons we set out in this brief. We regret having to do so, because on our first review of the draft regulation, there appear to be some good things in it. As our brief explains, we nevertheless oppose its enactment because it threatens to reduce the rights of people with disabilities.

Sadly, our brief provides a good illustration of some of the problems with Bill C-81. We have called on the Senate to amend Bill C-81 to remove the damaging and harmful s. 172, so that regulations like these cannot serve to weaken the rights of people with disabilities. Our brief illustrates why that amendment to Bill C-81 is so vital to people with disabilities. We will find out on May 2, 2019 whether the Senate’s Standing Committee on Social Affairs will take up our recommendations for strengthening Bill C-81, including the repeal of s. 172.

It is not too late for you to help. Please email the Senate’s Standing Committee by writing [email protected] and urge the Senators to strengthen Bill C-81. Send them this brief to give a good example of why we need them to get rid of the harmful s. 172.

To watch the captioned video of AODA Alliance Chair David Lepofsky’s opening statement at the Senate Standing Committee on April 11, 2019 (10 minutes), visit: https://www.youtube.com/watch?v=FERCAljHbrw&feature=em-uploademail

To watch a captioned video of the portion of the Senate Standing Committee’s question-and-answer after that opening statement, where the AODA Alliance answers questions directed to us (26 minutes), visit https://www.youtube.com/watch?v=Dr0fCtB_cyw&feature=em-uploademail

You should read the specific amendments we asked the Senate to make to Bill C-81, and the short brief we submitted in support of those amendments. You can also visit the AODA Alliance website, Canada page to see in one place all our efforts over the past four years to campaign for the enactment of a strong and effective national accessibility law.

MORE DETAILS

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

Brief to the Canada Transportation Agency on the Draft Regulations Posted for Comment on the Canada Gazette Entitled “Accessible Transportation for Persons with Disabilities Regulations”

April 18, 2019

To: Canada Transportation Agency
Via Email: [email protected]
Care of Sonia Gangopadhyay
Acting Director
Centre of Expertise for Accessible Transportation
Canadian Transportation Agency
15 Eddy Street
Gatineau, Quebec
K1A 0N9
Telephone: 819 953 8961

1. Introduction

In this brief, the AODA Alliance offers the Canada Transportation Agency our summary feedback on the draft regulations which the CTA posted in the Canada Gazette for public comment within 30 days on March 9, 2019, entitled “Accessible Transportation for Persons with Disabilities Regulations”. (ATPDR)

The AODA Alliance regrets that it has had to submit this brief past the CTA’s deadline for feedback. We regret that our volunteer coalition did not have the capacity to address this earlier. The CTA’s short 30-day public consultation period on these complex regulations overlapped with the pivotally important hearings on Bill C-81 (the proposed Accessible Canada Act) by the Senate. Moreover, a proper analysis of the CTA’s highly-technical document, which runs over 100 pages, is not something a voluntary grassroots organization can readily undertake on such short notice. This is made more challenging by the draft regulations’ complexity and, at times, impenetrable text.

Due to the insufficient time, we have not been able to fully review and analyze the entirety of the draft regulations’ details. We here address a short number of key points that amply support our core conclusion.

Our position in this brief is summarized as follows:

1. We commend the CTA for embarking on developing modernized accessibility standard regulations. These are long overdue. We share the CTA’s conclusion that the current situation facing passengers with disabilities is unacceptable, and that mandatory enforceable regulations are needed.
2. We accept that there are some helpful provisions in the draft regulations. However despite this, the draft regulation should not be enacted in its current form, especially if Parliament does not remove s. 172 from the Canada Transportation Act. This is because as written, the draft regulation threatens to reduce human rights of passengers with disabilities.

The Canada Transportation Agency should not infer that the short list of key concerns addressed in this brief are the only concerns that we would have raised about these draft regulations, had we had a fuller opportunity to digest and analyze them.

In general we share the concerns about this proposed regulation that the Alliance For Equality of Blind Canadians has set out in its excellent April 6, 2019 brief to the CTA which is available at:
http://www.blindcanadians.ca/sites/aebc/files/docs/brief/3208/Canada%20Gazette%20regs%20Brief%20final%2004-06-2019.docx 2. Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment. We have advised many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand.

Among many other activities, we have been extensively involved in providing input to the Transportation Accessibility Standard enacted under the Accessibility for Ontarians with Disabilities Act. Our activity at the provincial level in the transportation area can be seen by visiting https://www.aodaalliance.org/transportation/

3. Endorsing Certain Specific CTA Findings

The CTA’s posting of draft regulation makes a number of key findings which the AODA Alliance endorses and supports.

The CTA correctly recognizes that Canada is not a leader in this area on the international stage. It acknowledged:

“Canada lags behind other countries that have comprehensive and enforceable regulations in this area.”

Later it wisely recognized:

“The CTA’s RMI revealed that its existing accessibility instruments represent a patchwork of regulations and voluntary standards, some of which are outdated and inadequate in their scope. This has resulted in inconsistent accessibility-related services and reduced access to transportation services for persons with disabilities.”

Still later the CTA recognized:

“Canada’s heavy reliance on voluntary codes of practice currently leaves it lagging behind other key jurisdictions that have comprehensive and enforceable accessible transportation regulations, notably the United States and the EU.”

Later the CTA similarly recognized how out-of-date its regulatory regime in this area has been:

“The current CTA regulations, voluntary codes of practice, and some of the guidance material relevant to accessible travel are outdated and contain significant gaps. While some gaps have been partially addressed through the CTA’s adjudication of individual accessibility complaints, this approach has resulted in an uneven playing field for industry, as some transportation service providers named in complaints are required to remove undue obstacles while others are not. As a result, extensive consultations have confirmed wide support from disability rights organizations, the general public and industry for the development of a single, comprehensive set of accessible transportation regulations that apply across the national transportation system.”

Elsewhere the CTA fairly acknowledged that its regulatory regime in this area to date has been inadequate, where it states:

“However, current accessibility provisions for the national transportation system are generally voluntary (i.e. not legally binding), and have not kept pace with developments since the early 2000s.”

4. CTA’s Goal In the Draft Regulation is Confused

At points, the CTA sets its goal well below the human rights standard. This is especially troubling, since the CTA states that it is trying to align itself with Bill C-81, the proposed Accessible Canada Act. That proposed legislation is called “an Act to ensure a barrier-free Canada.”

At other points, CTA merely says it aims to make transportation “more accessible”, a tepid and inadequate goal. The CTA states:

“The proposed Regulations would require these entities (collectively referred to herein as “transportation service providers”) to take steps to meet certain standards to make travel more accessible and consistent for persons with disabilities.”

Later the CTA acknowledges a stronger and far more appropriate goal of a barrier-free transportation system:

“The overarching objective of the proposed regulatory package is to promote the inclusion and participation of persons with disabilities in society by creating comprehensive and enforceable accessible transportation requirements that are applicable to all modes of transportation, and enabling persons with disabilities to travel with a predictable and consistent level of accessibility across a barrier-free modern national transportation system.”

Still later, but within just a few pages of those earlier contradictory statements, the CTA in one paragraph both sets a correct goal of “equal access” and shortly thereafter the incorrect diluted goal of “more accessible”:

“The ATPDR would ensure that all Canadians, including persons with disabilities, have equal access to the national transportation system. Transportation service providers subject to the proposed Regulations would be required to take steps and meet the proposed standards to make travel more accessible and consistent for persons with disabilities.”

We recommend that the CTA use consistent language that makes it clear that aim of the regulation is the achievement of a barrier-free and fully-accessible transportation system. We also recommend that a provision be added to the regulation that makes it clear that nothing in this regulation should be construed as reducing any duties to accommodate passengers with disabilities as guaranteed either in the Canada Human Rights Act or the Canada Transportation Act.

5. Draft Regulations Threaten to Create a New Legal Barrier that Can Impede Human Rights Duty of Transportation Providers to Accommodate

The AODA Alliance opposes the adoption of any CTA regulations that could threaten in any way to reduce the duty of transportation providers to accommodate passengers with disabilities as guaranteed under human rights laws. This includes any threat to reduce the duty of transportation providers under the Canada Transportation Act to remove and prevent undue obstacles or barriers to travel by passengers with disabilities.

For this reason, we regret that we must oppose the adoption of the draft regulation. While it includes some helpful contents, it also includes provisions that threaten existing human rights entitlements.

We have not had the time to screen the entire draft regulation to find all the threatening provisions, in order to see which parts, if any, of the draft regulation is irrelevant to that pressing concern. Before proceeding with this regulation, the Federal Government should put this draft regulation through a careful screening, with input from the disability community and the Canadian Human Rights Commission for that purpose.

Our concern arises from the fact that s. 172 of the Canada Transportation Act provides that once the CTA has enacted a regulation in an area, passengers with disabilities are barred from bringing an individual claim that a barrier is an “undue obstacle” in that area, if that would require the transportation provider to do anything more than the regulation requires. In effect, the CTA regulation sets a cap or ceiling on the scope of the duty to accommodate of transportation providers. The transportation provider need do no more, even if the regulation does not ensure effective accommodation, and even if further accommodation efforts are possible without undue hardship.

Section 172 provides, referring to the Canada Transportation Agency:

“in relation to a matter have been complied with or have not been contravened, the Agency shall determine that there is no undue obstacle to the mobility of persons with disabilities.”

The AODA Alliance and other disability organizations have asked Parliament to repeal s. 172. That would leave the human rights duty to accommodate intact. Regulations enacted by the CTA could reinforce it, but never reduce it. The Federal Government has not done so. It has given no reason for its refusal to do so.

Instead of removing this unfair provision in the CTA legislation, Bill C-81 preserves it. The Federal Government refused our request to remove it from Bill C-81. We have asked the Senate to remove it. The Senate has not yet indicated whether it would do so.

When the CTA appeared before the Senate’s Standing Committee on Social Affairs to discuss Bill C-81 on April 10, 2019, it did not identify this problem or express any opinion on the AODA Alliance’s call for s. 172 to be repealed. To our knowledge, the Senators did not ask the CTA about this specific provision at those hearings.

When federal Disabilities Minister Carla Qualtrough appeared on April 3, 2019 before the Senate’s Standing Committee on Social Affairs to speak to Bill C-81, she stated:

“I have to emphasize that as a former human rights law practitioner, it is very important to me, and it has been, to preserve the duty to accommodate.”

Yet Bill C-81, whose creation she led, preserves and perpetuates s. 172, which is a threat to the duty to accommodate people with disabilities.

We here identify a troubling example in the draft regulations which on their face threaten to cut back on the duty to accommodate. As a painful irony, this threat arises from provisions which on their face give the impression that they seek to assist with the accommodation in transportation of passengers with disabilities.

We specifically focus on the draft regulations’ imposing a duty on passengers with disabilities to give advance notice to transportation providers of a request for certain prescribed accommodations. This problem arises from a combination of sections 29, 32, 34 and 35 of the draft regulations, which we set out here in material part.

Section 29 of the draft regulations provides:

“Advance notice at least 48 hours
29 (1) If a person with a disability makes a request for a service set out in this Part at least 48 hours before the scheduled time of departure, the carrier must provide the service. No advance notice required
(2) Despite subsection (1), if a person makes a request for a service referred to in any of paragraphs 32(a), (b), (g) and (i) to (w) or section 34 or 35 less than 48 hours before the scheduled time of departure, the carrier must provide the service. Advance notice 96 hours
(3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person. If no advance notice
(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

Section 32 of the draft regulations, to which s. 29 refers, provides:

“32 A carrier must ensure that personnel, on the request of a person with a disability, provide the following services to the person without delay: (a) assisting the person with registering at the check-in counter;
(b) permitting the person, if they are unable to use an automated self-service kiosk or other automated check-in or ticketing process, to advance to the front of the line at a check-in counter or ticket counter;
(c) assisting the person in proceeding through any security screening process at the terminal, including by
(i) providing personnel to assist the person to proceed through the security screening process, or
(ii) collaborating with the relevant security authority or security personnel at the terminal to permit a person who is not travelling with the person with a disability to have access to the security screening checkpoint so that they may assist the person with a disability to proceed through the security screening process;
(d) assisting the person in proceeding to the boarding area after check-in;
(e) before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier;
(f) assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck;
(g) assisting the person in storing and retrieving their carry-on baggage;
(h) before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat; (i) assisting the person in moving in and out of a mobility aid space;
(j) before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat;
(k) assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device;
(l) before departure, providing the person with an individualized safety briefing and demonstration;
(m) on board an aircraft, train or ferry, providing the person with an on-board wheelchair;
(n) on board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair;
(o) on board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog;
(p) if a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille;
(q) if a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions;
(r) if the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats; (s) assisting the person in proceeding through immigration and customs; (t) assisting the person in retrieving their checked baggage;
(u) assisting the person, after disembarkation, in proceeding to the general public area;
(v) assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator; and
(w) assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier.”

Sections 34 and 35 of the draft regulations provide:

“34 If a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile is waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, the carrier must ensure that personnel
(a) provide the person with a place to wait that is close to personnel who are available to provide assistance to the person; and
(b) periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.

Request for assistance
35 Unless a person with a disability is able to request assistance from personnel by means of a call button, the carrier must ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part.”

This draft regulation would legislate the creation of a new legalized barrier to the duty to accommodate, namely a requirement for passengers with disabilities to give advance notice to the transportation provider 48 hours before the travel, when seeking certain specified accommodations. That means that passengers with disabilities don’t have an assurance of a vital accommodation service if they have not given 48 hours advance notice to the transportation provider, where they are requesting any of the following accommodations:

Assisting the person in proceeding through any security screening process at the terminal (s. 32c).
Assisting the person in proceeding to the boarding area after check-in (s. 32(d)).
Before boarding, transferring the person between the person’s own mobility aid and a mobility aid provided by the carrier (s. 32(e)).
Assisting the person in boarding and disembarking and, in the case of a person travelling on a ferry, assisting the person in moving to and from a vehicle deck to a passenger deck (s. 32(f)).
Before departure and on arrival at the destination, transferring the person between a mobility aid and the person’s passenger seat (s. 32(h)). Assisting the person in moving in and out of a mobility aid space (s. 32 (i)).
Before departure or, if impossible because of time constraints, after departure, describing to a person who is blind or has a visual impairment the layout of the aircraft, train, ferry or bus, as the case may be, including the location of washrooms and exits, and the location and operation of any passenger-operated controls at the person’s passenger seat (s. 32(j)).
Assisting the person in accessing any entertainment content that is offered on board, such as by providing them with a personal electronic device and assisting them in using that device (s.32 (k)).
Before departure, providing the person with an individualized safety briefing and demonstration) s. 32(l)).
On board an aircraft, train or ferry, providing the person with an on-board wheelchair (s. 32(m)).
On board an aircraft, train or ferry, assisting the person in moving between their passenger seat and a washroom, including by assisting them in transferring between their passenger seat and an on-board wheelchair (s. 32(n)).
On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
If a meal is offered on board, describing to the person all the food and beverages that are offered for consumption or providing a menu in large print or in Braille (s. 32(p)).
If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).
If the person is not able to access a food service car on a train, permitting the person and any support person to order a meal, and be served the meal, at their passenger seats (s. 3r)). Assisting the person in proceeding through immigration and customs (s. 32(s)). Assisting the person in retrieving their checked baggage (s. 32(t)).
Assisting the person, after disembarkation, in proceeding to the general public area (s. 32(u)).
Assisting the person, after disembarkation, in proceeding to a location where the person may receive assistance to proceed to the curbside zone from personnel of the terminal operator (s. 32(v)).
Assisting the person, if they are transferring to another segment of their trip within the same terminal, in proceeding to a location where the person may receive assistance from personnel of the receiving carrier (s. 32(w)).
Providing a person with a disability who is in a wheelchair, a boarding chair or any other device in which the person is not independently mobile, while waiting at a terminal for departure after check-in or in order to transfer to another segment of their trip, to provide the person with a place to wait that is close to personnel who are available to provide assistance ,and periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required as listed in that Part of the regulations. (s. 34).
Unless a person with a disability is able to request assistance from personnel by means of a call button, to ensure that personnel periodically inquire about the person’s needs and attend to those needs if the services requested by the person are services that are required by this Part. (s. 35).

Advance notice is simply not justified for many if not most of these accommodations assuming it can even be justified for any of them. These all involve a transportation provider deploying existing staff on hand. We cannot see how a transportation provider would change its plans or operations 48 hours before a trip in response to such advance notice. Even if advance notice were justified, which we dispute, a full two days is excessive.

Making this problematic situation even worse, s. 32(3) would allow a transportation provider to unilaterally require even more notice, namely 96 hours (4 days) for any of the foregoing, in circumstances that passengers with disabilities could not reliably know in advance. Section 32(3) provides:

” (3) Despite subsection (1) and subject to subsection (2), a carrier may require that a request for a service set out in this Part be made 96 hours in advance of the person’s scheduled time of departure if the period of advance notice that is required by the carrier is reasonably necessary in the circumstances because of the type of service that is requested by the person.”

When could an airline, for example, possibly need fully four days’ notice in order for a flight attendant, already present on the plane to do any of the following:
* Before departure, providing the person with an individualized safety briefing and demonstration )s. 32(l)).
* On board an aircraft, permitting a person to use the washroom that has the most amount of space, regardless of the travel class for which the washroom is designated or where it is located, if the person is using the washroom in an on-board wheelchair or with the assistance of any support person or service dog (s. 32(o)).
* If a meal is served on board to the person, assisting the person with the meal by opening packages, identifying food items and their location and cutting larger food portions (s. 32(q)).

Section 32(4) of the draft regulations attempts to reduce the harshness of this new barrier to effective accommodation of passengers with disabilities. It provides:

“(4) Despite subsections (1) and (3), if a request for a service that is subject to a time limit referred to in those subsections is not made within the time limit, the carrier must nonetheless make a reasonable effort to provide the service.”

By s. 32(4), a passenger’s failure to give the required notice is not automatically barred from any accommodation. However, the only effort that the transportation provider must make to provide a needed accommodation in circumstances of no advance notice is effort that is simply “reasonable.” The draft regulation provides no criteria for assessing the reasonableness of the transportation’s efforts.

Section 32(4)’s “reasonable efforts” clause is worded in terms that risks falling short of the human rights duty to accommodate. Under the human rights duty to accommodate, the transportation provider has the duty to make serious and substantial efforts, tailored to the individual’s specific needs, including investigating alternative solutions where needed, as well as the burden to show that it was impossible for the transportation provider to do more than it did to accommodate the passenger with a disability, without undue hardship. “Undue hardship” is a recognized and tough test to meet. It is not mere “reasonableness” of its effort.

These sections in the draft regulations read as if they were written for, if not by, the transportation sector. Such provisions are emblematic of why so many in the disability community oppose the CTA being assigned the proposed accessibility mandate under Bill C-81.

Many if not most or all of the accommodation services listed above that are subject to this new prior notice requirement are ones which passengers with disabilities have been able to request without prior notice up to now. As such, the draft regulations here threaten to serve as a real step backwards.

The regulations impose no duty on a transportation provider to effectively notify all passengers that it will require a 96 hour notice period for any or all of the listed accommodation services. Merely posting this on a website provides no assurance that passengers with disabilities will know to check, and will check at the right place. Must all passengers with disabilities start surfing the web or phoning their airline 96 hours in advance in case they might need one of these accommodations?

This notice requirement also presents a serious new barrier for passengers who are travelling at the last minute, e.g. for business, or to address an emergency or to attend a funeral. Passengers without disabilities are not similarly burdened. As such, this appears quite discriminatory.

The draft regulations do not require transportation providers to provide a reliable, quick, easily-accessed means for passengers with disabilities to give the required notice to the transportation provider. Members of the public are all too aware of the difficulties when trying, for example, to simply get a live person on the line when calling a major transportation provider. Even when a passenger tries to contact either of Toronto’s major passenger airports, Pearson International Airport or Billy Bishop Airport, to request curbside assistance in advance of arriving at the terminal, frustrating barriers have been encountered. Some have secured media attention. Had this been so important for the airlines, we anticipate that they would have already created a fast, effective and easy-to-use to give such advance notice.

6. Exceptions and Exemptions that Are Too Broad Fly in the Face of Supreme Court Human Rights Requirements

The draft regulations include exceptions and exemptions that are too broad. We have not had the time to isolate and analyze all of these. They all needed to be screen for human rights concerns before enactment of this regulation can be considered.

The CTA’s explanation of the draft regulations includes:

“The proposed ATPDR would set minimum accessibility standards that would apply to any new buildings or facilities purchased by Canadian transportation service providers after the one year following the coming into force of the proposed Regulations. In addition, any major modifications made to existing equipment or facilities would be required to comply with the proposed Regulations.”

This appears to permit a transportation to acquire a new building with accessibility barriers over a year after this regulation comes into force. The draft regulations need to be vetted to ensure that they do not allow a transportation provider or terminal to acquire a new building or part of a building during the year after the regulation comes into force, that does not meet the regulation’s accessibility requirements.

As another example, the draft regulations set requirements for accessibility features that must be included in new passenger airplanes. According to a complex series of provisions that are hard to decipher, some of these requirements do not apply to a “pre-existing” airplane. Section 62(4) defines a pre-existing airplane or like equipment as follows:

“(4) In subsections (1) to (3), a pre-existing aircraft, train, ferry or bus means an aircraft, train, ferry or bus that was
(a) purchased or leased by the carrier before the day on which this section comes into force; or
(b) purchased or leased by the carrier on or after the day on which this section comes into force, if the carrier has submitted the invitation for bids in respect of that aircraft, train, ferry or bus before that day.”

This provision does not come into force for one year after this regulation is enacted (See s. 162). As such, it appears that an airline could rush out now and buy new airplanes that do not meet the accessibility requirements for new airplanes, over the months before the regulation comes into effect. This flies in the face of the duty of each transportation provider not to create new disability barriers. It was a CTA case before the Supreme Court of Canada that established this principle in Council of Canadians with Disabilities v. ViaRail ## cite. [2007] 1 SCR 650, citing with approval Lepofsky, M. David. “Federal Court of Appeal DeRails Equality Rights for Persons With Disabilities Via Rail v. Canadian Transportation Agency and the Important Duty Not to Create New Barriers to Accessibility” (20052006), 18 N.J.C.L. 169.

All the timelines in these draft regulations need to be vetted to ensure that they do not violate the principle that the Supreme Court of Canada enunciated in the ViaRail case.

7. Curbside Assistance Provisions Fraught with Difficulties

We offer one other illustration of a concern with the draft regulations that show the risk of their being quite weak, namely the provision regarding curbside assistance at a transportation terminal. We do not here suggest that this provision violates existing human rights. Rather, we point to this because the CTA, when appearing before the Senate’s Standing Committee on Social Affairs, highlighted this part of these regulations. CTA chair Scott Streiner told the Senate’s Standing Committee on Social Affairs on April 10, 2019:

“The second example I would give relates to curbside assistance that is, curb to gate assistance in airports. For travellers using mobility devices, particularly wheelchairs but also those who require guidance for blind travellers, or others, we all know that it can be a challenge, even if you don’t have a disability, to find your way from curbside to gate. Certainly, we require assistance in some cases for persons with disabilities.
There have been instances that have come to our attention where there’s been confusion about who provides that assistance between the airport, the airline and folks that found themselves not receiving the kind of assistance they need in a timely way. Again, these new regulations make it clear who has to do what. That’s a gap we’re trying to address through regulations.”

It is commendable that the draft regulations aim to ensure that passengers with disabilities can get curbside assistance to get into an airport or other transportation terminal, so they can check in. However, the provisions have excessive loopholes and leave far too much to the discretion of transportation provider and terminal operators. Contrary to Mr. Streiner’s presentation to the Senate and his commendable aims here, they do not make it clear to passengers with disabilities who does what.

Section 137 provides that a terminal operator must provide to passengers with disabilities “without delay” accommodation services such as”

“(c) assisting the person to proceed between the curbside zone and the check-in area or, if there is no check-in area, between the curbside zone and a representative of a carrier.”

Section 137(2) qualifies that a terminal does not have to provide that service if the transportation provider is providing that service. Section 137(2) provides:

” (2) Despite subsection (1), a terminal operator is not required to provide a person with any assistance referred to in that subsection if a carrier is already providing that person with that assistance.”

Section 136 requires the terminal operator to publish information about the availability of this curbside assistance. Section 136 provides in part:

“136 A terminal operator must publish, including by publishing on its Internet site, information about the services or facilities available at the terminal for persons with disabilities, including information about
(a) the curbside zone, including where the curbside zone is located and how to request assistance to or from the curbside zone;”

Taken together, these provisions are too confusing and slippery. Here again, they appear to serve the interest of terminal operators and transportation providers, who are given excessive discretion. Passengers with disabilities are left with uncertainty and unpredictability.

First, the regulation sets no time target that the terminal or transportation provider must meet to provide this curbside assistance. “Without delay” is entirely unpredictable and hard to enforce. A passenger with a disability could be left isolated, with no nearby staff, waiting and waiting alone in front of an airport in the middle of a freezing February day, without knowing how long they must continue to wait. They won’t know how much earlier they must arrive at the airport to be sure they get assisted to arrive inside the terminal to check in, in time to ensure that they don’t miss their flight. This does not serve the fundamental goal of predictability that the CTA emphasized in its explanation of these regulations.

By not specifying a specific maximum time requirement, this leaves each transportation provider free to set its own time lines, hoping that passengers with disabilities won’t bother taking on the burdensome chore of filing and litigating a case before the CTA over this. transportation providers know that few passengers with disabilities will wish to take on the hardship of litigating against a well-funded transportation provider over the interpretation of the vague words “without delay”.

Second, the draft regulations create confusion facing passengers with disabilities over who is responsible to provide this curbside assistance. The provision imposes the duty on the terminal. However, it leaves it open to an airline to provide the service, in which case the terminal is excused. Yet the provision imposes no specific duties on the airline that does offer the service. Does the “without delay” clause apply to the airlines too? If the airline doesn’t provide the service, has the passenger a right to demand it from the terminal operator? How can the passenger give the 48 or 96 hour notice that the terminal operator might demand?

For a passenger with a disability who just wants to get into an airport’s front door and up to the counter, this is a legal/regulatory mess dressed up as a helpful accommodation. Add to this the ordeal, while standing outside on that freezing February day, fearful of missing one’s flight, of then having to try to get someone on the phone from the airline or airport to figure out who is supposed to help, or trying to surf the web to see if there is an up-to-date posting on the airline’s or airport’s website that might point to the right phone number. Navigating such websites for assistance and trying to reach a live person on the phone with correct information on a topic like this is already a vexing challenge.

Third, there appears to be no requirement that all passengers including passengers with disabilities be notified of this service when their ticket is purchased, as part of the ticket documentation. Similarly, there is no requirement that the transportation provider or terminal have, and make public, an easily-reached phone number to call when en route to the terminal, to give advance warning that they are about to arrive. Requiring notice 48 or 96 hours in advance does little to help the terminal or transportation provider. Being able to call to seek this accommodation when a few minutes away, and to reach a live person in direct contact with the help personnel, would go much further to make a service like this become reliable.

8. Conclusion

We hope that in our rush to provide useful feedback on this complicated and at times, opaque draft regulation, we have not inadvertently made any incorrect descriptions of its provisions. If we have, we ask the CTA to notify us, so that we can correct our submission.

This draft regulation shows why it is essential for Parliament to immediately repeal s. 172 of the Canada Transportation Act. People with disabilities should not have to fear that the enactment of a regulation like this, despite some helpful provisions, can end up reducing their rights. They face too many barriers now in Canada’s transportation system. They should not face further hurdles, created by a regulatory authority whose mandate is to tear down such barriers and to prevent the creation of new ones.



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AODA Alliance Writes Federal Party Leaders Seeking Commitments to Strengthen Bill C-81, and to Bring It Back Before Parliament After This Fall’s Federal Election If It is Not Passed With Amendments to Strengthen It


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

April 5, 2019

SUMMARY

We are diving head-first into our blitz before Canada’s Senate to get much-needed amendments to strengthen the weak Bill C-81, the Federal Government’s proposed Accessible Canada Act. Bill C-81 is called “An Act to ensure a barrier-free Canada” for people with disabilities. Yet it does not require a single disability barrier to ever be removed or prevented anywhere in Canada.

Last week, on March 29, 2019, we sent the Senate our punchy 6-page brief on Bill C-81. It describes five of the major amendments that are desperately needed to strengthen this bill. See also the Open Letter to the Federal Government that fully 95 disability organizations (including the AODA Alliance) sent to the House of Commons last fall. It called for essential amendments to the bill.

In parallel with our strategy before the Senate, we have today written the leaders of the major federal parties in the House of Commons. We set that letter out below.

In this new letter, we ask the federal parties to each make two important commitments to us. We want these commitments now. In short, we want them to support amendments to strengthen Bill C-81, if the Senate passes any, and returns the bill to the House of Commons for a vote on those amendments before the fall federal election. We also want the party leaders to commit that they will bring a stronger national accessibility bill before Parliament after this fall’s federal election, if this bill does not get passed before the fall election, or if it is passed this spring “as is”, without these much-needed amendments.

We want Canada’s senators to feel free to strengthen Bill C-81 over the next short period when they consider this bill. The Senate’s Standing Committee on Social Affairs will be holding hearings on this bill on April 10 and 11, and May 1. After that, that committee will only have one meeting to consider passing amendments to the bill. That will be on May 2. We are all operating under extreme time pressure.

We are delighted that individuals and organizations have already been emailing the Senate’s Standing Committee to support the AODA Alliance’s March 29, 2019 brief. They are calling on the Senate to strengthen this weak bill.

It is not too late for you to help with this effort! Please add your voice. Get others to do so as well. Use your own words. Email the Senate Standing Committee today, by writing this email address:

[email protected]

We will have more to share over the next days about this blitz. Over five million people with disabilities in Canada deserve a strong national accessibility law. We need not settle for a weak bill. Now is the time to be heard!

We are tenacious! Visit our website to learn all about the background to Bill C-81 and our efforts to get it strengthened. more details

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue,
Toronto, Ontario M4G 3E8
Email [email protected] Twitter: @aodaalliance www.aodaalliance.org United for a Barrier-Free Society for All People with Disabilities

April 5, 2019

To:

The Right Honourable Justin Trudeau
Via email: [email protected]
Office of the Prime Minister of Canada
80 Wellington Street
Ottawa, ON K1A 0A2
Twitter: @JustinTrudeau

The Hon. Andrew Scheer, Leader of the Loyal Opposition and the Conservative Party Leader of the Conservative Party; MP, Regina-QuAppelle
Via email: [email protected]
Leader of the Conservative Party
House of Commons
Ottawa, ON K1A 0A6
Twitter: @AndrewScheer

The Hon. Jagmeet Singh Leader of the NDP
Via email: [email protected]
300 279 Laurier West
Ottawa, Ontario K1P 5J9
Twitter: @theJagmeetSingh

The Hon. Elizabeth May Leader of the Green Party; MP, Saanich-Gulf Islands Via email: [email protected]
House of Commons
Ottawa, Ontario K1A 0A6
Twitter: @ElizabethMay

The Hon. Rhéal Fortin Interim Leader of the Bloc Québécois
Via email: [email protected]
3730 boul. Crémazie Est, 4e étage
Montréal, Québec H2A 1B4
Twitter: @RhealFortin

The Hon. Maxime Bernier, Leader of the People’s Party of Canada Via email: [email protected]
House of Commons
Ottawa, ON K1A 0A6 Canada
Twitter: @MaximeBernier

Dear Federal Party Leaders,

Re: Seeking Your Parties’ Commitments to Ensure that Canada Has A Strong and Effective National Accessibility Law

With a federal election this fall, we seek commitments from each federal political party now on the need for Canada to have a strong national accessibility law. Last fall, the House of Commons passed a weak bill, Bill C-81, the proposed Accessible Canada Act. It is now before the Senate.

We and others in the disability community are urging the Senate to strengthen that bill. It is unclear whether Parliament will finish with this bill before this fall’s federal election, and if so, whether the current weak bill will be strengthened before it is enacted. We seek your parties’ commitments now, as this will help ensure that the senators can feel free to amend this bill to strengthen it, without fearing that this will jeopardize the bill.

In this letter, we explain what we seek, who we are, and why over five million people with disabilities in Canada need Bill C-81 to be strengthened.

Commitments We Ask Your Parties to Each Make Now

We ask your parties to now make these two commitments:

1. If this spring, the Senate amends Bill C-81(the proposed Accessible Canada Act) to strengthen it, and returns the bill to the House of Commons before it rises for this year’s federal election, will your party support swift passage of amendments that strengthen the bill in the areas that we refer to in this letter and in our March 29, 2019 brief to the Senate?

2. If Bill C-81 does not finish its path through Parliament before this falls’ federal election, or if it is passed without the amendments needed to strengthen it in areas referred to in this letter and in our March 29, 2019 brief to the Senate, will your party commit to bring this bill, these needed amendments, back to Parliament to be enacted or strengthened, as the case may be, after the fall federal election?

Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. In every Ontario election since 2005, each provincial political party that has made election pledges on Ontario’s provincial accessibility legislation has done so in the form of letters to our coalition.

We have given advice to many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment.

We have been very actively involved in the campaign for national accessibility legislation in Canada. We have gathered input from our grassroots supporters and have actively worked with other key players in Canada’s disability community to forge common ground on what national accessibility legislation needs to include. We provided input to each successive federal minister responsible for this legislation, to federal parties, and to the Federal Public Service.

Why Canada Needs Strong National Accessibility Legislation

People with all kinds of disabilities in Canada face too many accessibility barriers when they try to get a job, use public or private services, or enjoy all the other things that the public ordinarily takes for granted. As the Federal Government has commendably recognized, it is unfair and ineffective to leave it to individuals with disabilities to have to bring their own legal proceedings to battle against these obstacles, one barrier at a time, and one organization at a time. We need comprehensive accessibility legislation to remove these barriers along reasonable timelines, and to prevent the creation of new disability accessibility barriers in the future.

Canada needs a national accessibility law to ensure accessibility for people with disabilities dealing with those operating in the realm that the Federal Government can regulate, such as banking, air travel, postal services, services offered by the Federal Government, as well as radio, television and telephone/cell phone services. We also need it to ensure that whoever receives federal funding never uses that money to create or perpetuate disability barriers.

How Does Bill C-81 Measure Up?

The bill has very serious problems. It is quite weak.

Bill C-81 is called “An Act to ensure a barrier-free Canada” for people with disabilities. Yet it does not require a single disability barrier to ever be removed or prevented anywhere in Canada.

1. The bill gives federal accessibility agencies/officials helpful powers to promote accessibility. However, the bill imposes no duty on them to ever use those powers, with one inconsequential exception.

The bill sets no deadlines for taking many of the major implementation steps that the Government needs to take to implement this bill. The Government could drag its feet for years if not indefinitely.

For example, the bill lets the Government enact accessibility standards as enforceable regulations. This is the bill’s vital core. However, the bill does not require the Government to ever enact any. Without them, the bill is a hollow shell.

The bill gives the Federal Government enforcement powers. However it doesn’t require the bill to be effectively enforced.

During the first five years after this bill goes into effect, the Federal Government’s only mandatory duty under the bill is for Cabinet, the CRTC and Canada Transportation agency to enact one regulation within two years after the bill comes into force. However that regulation could be an inconsequential one on minor procedural matters, without ever requiring that any disability barriers be removed or prevented.

2. Unlike Ontario’s 2005 accessibility legislation, this bill does not set a deadline for Canada to become accessible to people with disabilities. Under Bill C-81, Canada may not become accessible to people with disabilities for hundreds of years, if ever.

3. The 105-page bill is far too complicated and confusing. It will be hard for people with disabilities and others to navigate it. This is because the bill splinters the power to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the Canada Transportation Agency (CTA) and the Canadian Radio, Television and Telecommunications Commission (CRTC).

This makes the bill’s implementation and enforcement more confusing, complicated and costly. It will take longer and be harder to get strong, effective and non-contradictory accessibility regulations enacted.

It is wrong for the bill to give almost exclusive powers over accessibility to federally-regulated transportation organizations (like airlines) to the CTA, and almost exclusive powers over broadcasters and telecommunication companies (like Bell Canada and Rogers Communications) to the CRTC. The CTA and CRTC have had powers in this area for years. Their record on accessibility is not good.

4. The bill does not ensure that federal public money is never used by any recipient of those funds, to create or perpetuate disability barriers. Under it, the Federal Government can continue to sit idly by when those who receive federal money use that money to create new disability barriers. This allows for a wasteful and harmful use of public money.

The bill lets the Federal Government set accessibility requirements for instances when it buys goods or services. However it doesn’t require the Federal Government to ever do so.

The bill doesn’t require the Federal Government to attach accessibility strings when it gives money to a municipality, college, university, local transit authority or other organization to build new infrastructure. Those recipients of federal money are left free to design and build new infrastructure without ensuring that it is fully accessible to people with disabilities. That’s what happened when the Federal Government helped fund the construction of Toronto’s new Women’s College Hospital, which has accessibility problems.

Also, the bill doesn’t require the Federal Government to attach any federal accessibility strings when it gives business development loans or grants to private businesses.

5. The bill has too many loopholes. As one example, the bill gives the Federal Government the power to exempt itself from some of its duties under the bill. The Government should not ever be able to exempt itself. Will Bill C-81 Be Passed by Parliament by the Fall 2019 Federal Election?

The Senate is expediting its debates on Bill C-81. The Senate’s Standing Committee on Social Affairs is scheduled to complete its consideration of Bill C-81 on May 2, 2019.

We and others from Canada’s disability community are urging the Senate to make vital amendments needed to address Bill C-81’s serious flaws, such as those addressed in this letter. Our preference is for the Senate to make these amendments, and for Bill C-81 to be returned to the House of Commons for a vote on those amendments this spring, before Parliament rises for the fall general election. We are eager for the Senate and then the House of Commons to pass those amendments.

Should this bill not pass before the fall federal election, or if it is simply passed by Parliament before the election “as is”, we are eager to get commitments, sought earlier in this letter, that after the fall election, people with disabilities in Canada will have a chance to get a national accessibility law addressed in the next Parliament. We seek an assurance that after the fall federal election, a national accessibility bill will be returned to Parliament for debate one that includes the improvements to Bill C-81 that we seek.

People with disabilities should not be confronted with the unfair choice to have to accept this bill “as is”, no matter how deficient it is, just because it might not otherwise be passed before the fall federal election. Years of experience have also taught us never to settle for the palpably inadequate, without pressing for better, simply because that is all a government has offered. This is not a charitable hand-out to be gratefully accepted, no matter how inadequate.

This bill is about the fundamental equality and human rights of people with disabilities. All parties agreed in the House of Commons that there is a need for new national accessibility legislation. After all the effort that has gone into the public consultations on this bill, and with the widespread support in the disability community for the need for strong federal accessibility legislation, there is no reason why this effort should be treated by anyone as dead if it did not finish its travels through Parliament before the fall federal election.

We would be happy to answer any questions your party may have as it considers this request. We are eager to get an answer to our request as soon as possible. We want to ensure that the Senate is not deterred from making much-needed amendments to Bill C-81, out of any fear that doing so might jeopardize the bill’s future. A commitment that a national accessibility bill will be brought back before the House of Commons after the fall election, if needed, will remove that issue, and free Senators to do the right thing when they consider this bill over the next four to six weeks.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance



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AODA Alliance Writes Federal Party Leaders Seeking Commitments to Strengthen Bill C-81, and to Bring It Back Before Parliament After This Fall’s Federal Election If It is Not Passed With Amendments to Strengthen It


Accessibility for Ontarians with Disabilities Act Alliance Update

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

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

AODA Alliance Writes Federal Party Leaders Seeking Commitments to Strengthen Bill C-81, and to Bring It Back Before Parliament After This Fall’s Federal Election If It is Not Passed With Amendments to Strengthen It

April 5, 2019

          SUMMARY

We are diving head-first into our blitz before Canada’s Senate to get much-needed amendments to strengthen the weak Bill C-81, the Federal Government’s proposed Accessible Canada Act. Bill C-81 is called “An Act to ensure a barrier-free Canada” for people with disabilities. Yet it does not require a single disability barrier to ever be removed or prevented anywhere in Canada.

Last week, on March 29, 2019, we sent the Senate our punchy 6-page brief on Bill C-81. It describes five of the major amendments that are desperately needed to strengthen this bill. See also the Open Letter to the Federal Government that fully 95 disability organizations (including the AODA Alliance) sent to the House of Commons last fall. It called for essential amendments to the bill.

In parallel with our strategy before the Senate, we have today written the leaders of the major federal parties in the House of Commons. We set that letter out below.

In this new letter, we ask the federal parties to each make two important commitments to us. We want these commitments now. In short, we want them to support amendments to strengthen Bill C-81, if the Senate passes any, and returns the bill to the House of Commons for a vote on those amendments before the fall federal election. We also want the party leaders to commit that they will bring a stronger national accessibility bill before Parliament after this fall’s federal election, if this bill does not get passed before the fall election, or if it is passed this spring “as is”, without these much-needed amendments.

We want Canada’s senators to feel free to strengthen Bill C-81 over the next short period when they consider this bill. The Senate’s Standing Committee on Social Affairs will be holding hearings on this bill on April 10 and 11, and May 1. After that, that committee will only have one meeting to consider passing amendments to the bill. That will be on May 2. We are all operating under extreme time pressure.

We are delighted that individuals and organizations have already been emailing the Senate’s Standing Committee to support the AODA Alliance’s March 29, 2019 brief. They are calling on the Senate to strengthen this weak bill.

It is not too late for you to help with this effort! Please add your voice. Get others to do so as well. Use your own words. Email the Senate Standing Committee today, by writing this email address:

[email protected]

We will have more to share over the next days about this blitz. Over five million people with disabilities in Canada deserve a strong national accessibility law. We need not settle for a weak bill. Now is the time to be heard!

We are tenacious! Visit our website to learn all about the background to Bill C-81 and our efforts to get it strengthened.

          more details

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

1929 Bayview Avenue,

Toronto, Ontario M4G 3E8

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

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

April 5, 2019

To:

The Right Honourable Justin Trudeau

Via email: [email protected]

Office of the Prime Minister of Canada

80 Wellington Street

Ottawa, ON K1A 0A2

Twitter: @JustinTrudeau

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

Leader of the Conservative Party; MP, Regina-Qu’Appelle

Via email: [email protected]

Leader of the Conservative Party

House of Commons

Ottawa, ON K1A 0A6

Twitter: @AndrewScheer

The Hon. Jagmeet Singh Leader of the NDP

Via email: [email protected]

300 – 279 Laurier West

Ottawa, Ontario K1P 5J9

Twitter: @theJagmeetSingh

The Hon. Elizabeth May Leader of the Green Party; MP, Saanich-Gulf Islands

Via email: [email protected]

House of Commons

Ottawa, Ontario K1A 0A6

Twitter: @ElizabethMay

The Hon. Rhéal Fortin Interim Leader of the Bloc Québécois

Via email: [email protected]

3730 boul. Crémazie Est, 4e étage

Montréal, Québec H2A 1B4

Twitter: @RhealFortin

The Hon. Maxime Bernier, Leader of the People’s Party of Canada

Via email: [email protected]

House of Commons

Ottawa, ON K1A 0A6 Canada

Twitter: @MaximeBernier

Dear Federal Party Leaders,

Re: Seeking Your Parties’ Commitments to Ensure that Canada Has A Strong and Effective National Accessibility Law

With a federal election this fall, we seek commitments from each federal political party now on the need for Canada to have a strong national accessibility law. Last fall, the House of Commons passed a weak bill, Bill C-81, the proposed Accessible Canada Act. It is now before the Senate.

We and others in the disability community are urging the Senate to strengthen that bill. It is unclear whether Parliament will finish with this bill before this fall’s federal election, and if so, whether the current weak bill will be strengthened before it is enacted. We seek your parties’ commitments now, as this will help ensure that the senators can feel free to amend this bill to strengthen it, without fearing that this will jeopardize the bill.

In this letter, we explain what we seek, who we are, and why over five million people with disabilities in Canada need Bill C-81 to be strengthened.

Commitments We Ask Your Parties to Each Make Now

We ask your parties to now make these two commitments:

  1. If this spring, the Senate amends Bill C-81(the proposed Accessible Canada Act) to strengthen it, and returns the bill to the House of Commons before it rises for this year’s federal election, will your party support swift passage of amendments that strengthen the bill in the areas that we refer to in this letter and in our March 29, 2019 brief to the Senate?
  1. If Bill C-81 does not finish its path through Parliament before this falls’ federal election, or if it is passed without the amendments needed to strengthen it in areas referred to in this letter and in our March 29, 2019 brief to the Senate, will your party commit to bring this bill, these needed amendments, back to Parliament to be enacted or strengthened, as the case may be, after the fall federal election?

Who Are We?

The AODA Alliance is a non-partisan community coalition that has advocated in Ontario since 2005 for the effective implementation and enforcement of Canada’s first comprehensive provincial accessibility law, the Accessibility for Ontarians with Disabilities Act 2005. In every Ontario election since 2005, each provincial political party that has made election pledges on Ontario’s provincial accessibility legislation has done so in the form of letters to our coalition.

We have given advice to many, including several provinces, a United Nations conference, the European Union, Israel and New Zealand. We are the successor to the community coalition that successfully campaigned from 1994 to 2005 for the AODA’s enactment.

We have been very actively involved in the campaign for national accessibility legislation in Canada. We have gathered input from our grassroots supporters and have actively worked with other key players in Canada’s disability community to forge common ground on what national accessibility legislation needs to include. We provided input to each successive federal minister responsible for this legislation, to federal parties, and to the Federal Public Service.

Why Canada Needs Strong National Accessibility Legislation

People with all kinds of disabilities in Canada face too many accessibility barriers when they try to get a job, use public or private services, or enjoy all the other things that the public ordinarily takes for granted. As the Federal Government has commendably recognized, it is unfair and ineffective to leave it to individuals with disabilities to have to bring their own legal proceedings to battle against these obstacles, one barrier at a time, and one organization at a time. We need comprehensive accessibility legislation to remove these barriers along reasonable timelines, and to prevent the creation of new disability accessibility barriers in the future.

Canada needs a national accessibility law to ensure accessibility for people with disabilities dealing with those operating in the realm that the Federal Government can regulate, such as banking, air travel, postal services, services offered by the Federal Government, as well as radio, television and telephone/cell phone services. We also need it to ensure that whoever receives federal funding never uses that money to create or perpetuate disability barriers.

How Does Bill C-81 Measure Up?

The bill has very serious problems. It is quite weak.

Bill C-81 is called “An Act to ensure a barrier-free Canada” for people with disabilities. Yet it does not require a single disability barrier to ever be removed or prevented anywhere in Canada.

  1. The bill gives federal accessibility agencies/officials helpful powers to promote accessibility. However, the bill imposes no duty on them to ever use those powers, with one inconsequential exception.

The bill sets no deadlines for taking many of the major implementation steps that the Government needs to take to implement this bill. The Government could drag its feet for years if not indefinitely.

For example, the bill lets the Government enact accessibility standards as enforceable regulations. This is the bill’s vital core. However, the bill does not require the Government to ever enact any. Without them, the bill is a hollow shell.

The bill gives the Federal Government enforcement powers. However it doesn’t require the bill to be effectively enforced.

During the first five years after this bill goes into effect, the Federal Government’s only mandatory duty under the bill is for Cabinet, the CRTC and Canada Transportation agency to enact one regulation within two years after the bill comes into force. However that regulation could be an inconsequential one on minor procedural matters, without ever requiring that any disability barriers be removed or prevented.

  1. Unlike Ontario’s 2005 accessibility legislation, this bill does not set a deadline for Canada to become accessible to people with disabilities. Under Bill C-81, Canada may not become accessible to people with disabilities for hundreds of years, if ever.
  1. The 105-page bill is far too complicated and confusing. It will be hard for people with disabilities and others to navigate it. This is because the bill splinters the power to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the Canada Transportation Agency (CTA) and the Canadian Radio, Television and Telecommunications Commission (CRTC).

This makes the bill’s implementation and enforcement more confusing, complicated and costly. It will take longer and be harder to get strong, effective and non-contradictory accessibility regulations enacted.

It is wrong for the bill to give almost exclusive powers over accessibility to federally-regulated transportation organizations (like airlines) to the CTA, and almost exclusive powers over broadcasters and telecommunication companies (like Bell Canada and Rogers Communications) to the CRTC. The CTA and CRTC have had powers in this area for years. Their record on accessibility is not good.

  1. The bill does not ensure that federal public money is never used by any recipient of those funds, to create or perpetuate disability barriers. Under it, the Federal Government can continue to sit idly by when those who receive federal money use that money to create new disability barriers. This allows for a wasteful and harmful use of public money.

The bill lets the Federal Government set accessibility requirements for instances when it buys goods or services. However it doesn’t require the Federal Government to ever do so.

The bill doesn’t require the Federal Government to attach accessibility strings when it gives money to a municipality, college, university, local transit authority or other organization to build new infrastructure. Those recipients of federal money are left free to design and build new infrastructure without ensuring that it is fully accessible to people with disabilities. That’s what happened when the Federal Government helped fund the construction of Toronto’s new Women’s College Hospital, which has accessibility problems.

Also, the bill doesn’t require the Federal Government to attach any federal accessibility strings when it gives business development loans or grants to private businesses.

  1. The bill has too many loopholes. As one example, the bill gives the Federal Government the power to exempt itself from some of its duties under the bill. The Government should not ever be able to exempt itself.

Will Bill C-81 Be Passed by Parliament by the Fall 2019 Federal Election?

The Senate is expediting its debates on Bill C-81. The Senate’s Standing Committee on Social Affairs is scheduled to complete its consideration of Bill C-81 on May 2, 2019.

We and others from Canada’s disability community are urging the Senate to make vital amendments needed to address Bill C-81’s serious flaws, such as those addressed in this letter. Our preference is for the Senate to make these amendments, and for Bill C-81 to be returned to the House of Commons for a vote on those amendments this spring, before Parliament rises for the fall general election. We are eager for the Senate and then the House of Commons to pass those amendments.

Should this bill not pass before the fall federal election, or if it is simply passed by Parliament before the election “as is”, we are eager to get commitments, sought earlier in this letter, that after the fall election, people with disabilities in Canada will have a chance to get a national accessibility law addressed in the next Parliament. We seek an assurance that after the fall federal election, a national accessibility bill will be returned to Parliament for debate – one that includes the improvements to Bill C-81 that we seek.

People with disabilities should not be confronted with the unfair choice to have to accept this bill “as is”, no matter how deficient it is, just because it might not otherwise be passed before the fall federal election. Years of experience have also taught us never to settle for the palpably inadequate, without pressing for better, simply because that is all a government has offered. This is not a charitable hand-out to  be gratefully accepted, no matter how inadequate.

This bill is about the fundamental equality and human rights of people with disabilities. All parties agreed in the House of Commons that there is a need for new national accessibility legislation. After all the effort that has gone into the public consultations on this bill, and with the widespread support in the disability community for the need for strong federal accessibility legislation, there is no reason why this effort should be treated by anyone as dead if it did not finish its travels through Parliament before the fall federal election.

We would be happy to answer any questions your party may have as it considers this request. We are eager to get an answer to our request as soon as possible. We want to ensure that the Senate is not deterred from making much-needed amendments to Bill C-81, out of any fear that doing so might jeopardize the bill’s future. A commitment that a national accessibility bill will be brought back before the House of Commons after the fall election, if needed, will remove that issue, and free Senators to do the right thing when they consider this bill over the next four to six weeks.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance



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