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Findings and Recommendations: Establish the Ontario Accessibility Standards Board

It is clear that changes to the standards development process are needed. This is the opportune time to reflect on the strengths and challenges of the process that was undertaken to develop the standards and determine what is necessary to achieve the goals of the legislation going forward.

Strengths of the Standards Development Process

The task of the Independent Reviewer is to impress upon the government of Ontario the value of the work that has been done, but at the same time to propose ways in which the value of that work can be enhanced, both in itself and in the eyes of those who behold it from all sides. Written Brief, Community Living Association of Ontario

The cornerstone of the AODA legislation is the development of accessibility standards through an inclusive stakeholder process. It is widely appreciated that the AODA process of creating standards through committees involving the disability community, the obligated sectors and representatives of government was innovative and groundbreaking. Countless hours and untold effort were expended by the many individuals involved in developing standards. They worked to the best of their abilities to fulfil the promise of the legislation. An inclusive process is a unique and positive feature that has been endorsed as important and necessary by most stakeholders.

Challenges

The process, as implemented, was well intended but proved to be challenging as a result of a number of factors. Specifically:

• The complexity of much of the subject matter in terms of its technical nature.
  
  A lack of sufficient access to technical expertise and the lack of knowledge of best practices led some to believe that the proposed standards were ill-defined. Many of those involved in the process believe that the make-up of the committees did not adequately reflect the knowledge and expertise required to develop workable standards.




Good public policy has taken a back seat to timetables. We recommend that no other standards be passed into regulations until the issues identified are addressed and reconciled. The absence of a good and thorough policy approach to the standard development process will undermine everyone’s efforts to achieving accessibility. Written Brief, Association of Municipalities of Ontario

• The absence of central coordination, direction and an underlying public policy framework supporting the standards initiative.
  
  There was no overarching coordination across the standards committees and no centralized clearinghouse to vet standards, align timelines and harmonize the provisions. The parallel processes resulted in a disconnect between each set of requirements and made it difficult to determine gaps, overlaps, discrepancies, priorities, costs and training requirements.



• Disagreement about the timelines for developing the proposed standards.
  
  The length of time it took to complete the standards was the source of significant friction among committee members. Some believed that the process did not move quickly enough and that the standards took too long to develop. Others felt that the timelines were too aggressive and that more time was needed to consult with the obligated sectors to clarify the costs and impacts of various options.



• Disagreement about the timeframes for achieving accessibility contained in the proposed standards.
  
  Another cause of friction was the push by some disability representatives for many of the proposed requirements to take effect over a much shorter period than the 20 year timeline in the legislation. The tighter deadlines led to increased worries about costs.



• Lack of information about compliance and enforcement mechanisms.
  
  The government has not announced the compliance and enforcement framework for the AODA. Many felt that this contributed to an atmosphere of confusion and uncertainty during the standards development process.



• The lack of credible and comprehensive cost/benefit analyses to assess the separate and cumulative impact of the standards.
  
  Uncertainty with respect to costs, feasibility and the cumulative impact of the standards was a major concern raised by a number of stakeholders.

The challenges noted above were intensified by the changes that were introduced to the standards development process in late 2007, specifically:

• A change in the composition of the standards development committees with 50 per cent of members to be persons with disabilities or representatives of the disability community
• A change in the role of government waiving the right of ministries’ representatives on the committees to vote.

These measures created a number of unintended results. They led to confusion about committee processes (including voting and decision-making practices), contributed to delays and increased the size of the committees (in some cases close to 50 members). With the loss of a voting role, the government members became little more than observers. The timing of the changes worsened the problems as some committees were well into their work when the structure and membership were altered. For example, the changes came after one committee had already released its proposed standard for public review.

Collectively, the changes caused much frustration and stirred up emotions among some participants. This significantly altered the dynamics of the process, moving it from an atmosphere of consensus-building to one of negotiation, creating, in some cases, an “us versus them” dynamic.

While it is important to acknowledge these shortcomings, I believe that we are now at a point when the discussion needs to shift and move forward.

Opportunities

Virtually everyone consulted about the standards development committee process identified areas for improvement. Although there was not agreement on every issue, there was overall consensus that the process would have benefited from:

• A clearer governance and accountability framework articulated at the outset – including unambiguous terms of reference, transparent voting procedures and well-defined roles for the different players (e.g., chair, consultants, ADO, ministry representatives)
• Clarity on the role of government and the public interest in the decision-making model
• Explicit provincial public policy and principles to guide the standards development committee process
• More careful consideration of the composition of the committees to support a balance of perspectives reflecting the governance model, terms of reference and expertise required
• Credible background documents to support the process drawing on research about evidence-based and best practices in Ontario and other jurisdictions
• Engagement of appropriate technical and sectoral expertise (i.e., technical resource and sector subcommittees) to support the committees in their deliberations
• More transparent timelines for the development of the standards and ongoing assessment of the feasibility of timelines, and
• Establishment of a formal orientation and training program for committee members.

Moving Forward

At the outset let me reiterate that the process under the AODA was new, innovative and groundbreaking. It was to be expected that there would be challenges. However, in my opinion tinkering with the current process will not be enough. Nor do I believe we can return to the traditional government regulation-making process, which may or may not involve consultations. A number of fundamental changes are needed, including replacing the standards development committees. However, any new approach to standards development must continue to respect the spirit and intent of the AODA.

I have reached the conclusion that an arm’s-length advisory body with ongoing responsibilities is required to bring greater focus, experience and expertise to the standards development process. What is needed going forward is focused, continuing attention by a dedicated group that can build the expertise required to review and develop credible accessibility standards.

Amendments to the AODA will be required as I do not believe these changes can be accomplished under the current framework in the legislation.

Governance Model

Determining the governance model for the Ontario Accessibility Standards Board has been a particular challenge. In fact, many of the issues raised in the consultations on the standards development committee process related to governance questions. I have strived to respect the principle of inclusiveness in the AODA, while addressing the key issues that were raised about the current process.

I began with a review of the language in section 1, the purpose clause, of the AODA. Recognizing the history of discrimination against persons with disabilities in Ontario, the clause:

• sets the goal for an accessible Ontario by 2025 through the development and implementation of accessibility standards, and
• requires the involvement of persons with disabilities, the government of Ontario and of representatives of industries and of various sectors of the economy in the development of those standards.

I have concluded that for the standards development process to be effective going forward, the best approach is to ensure the inclusion of all the key players (the disability community, the provincial government and the other obligated sectors) from the beginning.

The board members should be experienced individuals, able to bring the views of their sectors to the table but also practised in consensus-building. I see the board process first and foremost as a collaborative one. The chair should be a high-profile individual with standing and credibility in the province who is highly skilled in facilitation and has experience working with boards in complex environments.

Membership on the board would consist of 15 members, including the chair, who would be non-voting. Persons with disabilities or their representatives would have seven members (50 per cent representation) on the board, consistent with the government’s commitments made in 2007 for the standards development committees. The obligated sectors (broader public, private and not-for-profit) would be represented by six senior and experienced individuals knowledgeable about their own sectors and versed in government structures and processes. The provincial government would be represented on the board by a senior public servant. Various ministries would be involved through sectoral and technical committees.

I appreciate that the proposed membership may at times introduce tension in the board’s decision-making process. I believe, however, that with an experienced chair and the commitment of board members to the goals of the AODA, this model can work.

The following outlines the purpose, mandate, and roles and responsibilities of the new board.

Purpose: To review and develop accessibility standards under the AODA and provide recommendations to the Minister Responsible for Accessibility.

Mandate: To build expertise on accessibility standards development; conduct research and monitor national and international accessibility developments; conduct five-year reviews of accessibility standards as mandated by the AODA; advise the Minister Responsible for Accessibility on the need for new standards; and, on the direction of the minister, develop and harmonize proposed new standards and integrate them with other relevant legislation and government policy.

Roles and Responsibilities: Similar to those outlined for the standards development committees in Part III (Accessibility Standards) of the AODA, with necessary modifications.

Details on the roles and responsibilities of the new board would be articulated in proposed amendments to the AODA and in a memorandum of understanding between the board and the Minister Responsible for Accessibility and the ADO. These would include:

• Review and revise accessibility standards in accordance with the AODA through an inclusive process, and submit proposed standards to the government for consideration as regulations
• Advise the minister on the need to develop new standards
• At the direction of the minister, develop new standards through an inclusive process, and submit proposed standards to the government for consideration as regulations
• Support the ADO in the preparation of guidelines and other reference materials and in promoting partnerships to share knowledge and best practices, to further the implementation of the standards
• Develop a transparent and inclusive public consultation process, involving persons with disabilities, to support the review of both existing and proposed new standards
• Establish appropriate technical and sectoral committees for the review and development of standards through a process of subcommittees reporting to the board, and establish procedures to guide the subcommittees
• Ensure harmonization of the standards
• Build expertise on the development and review of accessibility standards.

Structure of Board

Composition

The composition of the board would consist of:

• the chair (non-voting)
• seven representatives from among persons with disabilities or their representatives
• six representatives from the obligated sectors, and
• one provincial government representative (a senior public servant).

Selection and Appointment of Members

The chair and members would be appointed by the government through Order-in-Council. The government should develop selection criteria and recruitment strategies in consultation with stakeholders.

Board Secretariat

The board would be supported by an executive director and a small, dedicated staff. Consideration should be given to transferring employees from the ADO to ensure continuity. At the direction of the board, the executive director would be responsible for operational activities, budget allocations, stakeholder engagement and liaising with the ADO. Part of the role of the secretariat would be to ensure that the board members from the disability community receive appropriate support.

Committees

The board would be required to establish technical and sectoral committees to support the review of existing standards and development of new standards. I see the role of these committees as critical in advising the board on the content and form of the standards. The work of the committees must be transparent and accessible to the public and include input from the board’s consultation process.

The board would need to establish a process for the committees including mandates, criteria for membership and the term of appointments.

Accountability and Reporting

The board would be accountable to the minister and report to the minister on a regular basis. The board would be required to submit an annual report to the minister.

Timeframe for Creating Board

The first standard on customer service came into force on January 1, 2010 for the provincial government and the broader public sector. The government is now completing its review of three of the remaining four standards (information and communication, employment, and transportation) and I expect it to be preparing regulations for each. The built environment standard is still in the committee stage. As I have recommended above, it is imperative for the government to ensure that all five standards are fully harmonized. Once the five accessibility standards have become law and the AODA moves to the next phase of implementation, the new Ontario Accessibility Standards Board should commence its work.

I, therefore, recommend that: The AODA be amended to establish an arm’s-length advisory body — the Ontario Accessibility Standards Board — to review and develop accessibility standards — replacing the standards development committee process.

 

Interim Recommendations to Begin Transition

Because the recommendation for a new board would require amendments to the AODA, it may take some time for the changes to take effect and the board to be established. I am therefore recommending the appointment of a director under the existing legislative framework to achieve some necessary interim steps. The director could be provided with sufficient authority to enable him or her to start the process of establishing the new board, until the proposed amendments to the AODA are considered by the legislature.

Next Legislative Review

Under section 41 of the AODA, the next legislative review is scheduled to begin three years after the tabling of my report in the legislature. If the government accepts the recommendation to establish a new board, this timeframe will likely be too short for a meaningful evaluation. Even if the transitional suggestion above is followed, it will take some months after the passage of legislation for the new board to complete the start-up period and hit full stride. Therefore I believe that consideration should be given to deferring the next review for at least an additional year.

Role of Accessibility Standards Advisory Council

As noted above, the AODA created the Accessibility Standards Advisory Council to represent the disability community and to advise the minister on the progress being made by standards development committees, public information programs and other matters. Under the act, the council undertakes activities as directed by the minister.

The proposal to establish a permanent accessibility board will have an impact on the council’s role with respect to standards development, as set out in the AODA. The role of the council will therefore need to be reviewed in the context of these changes.