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Findings and Recommendations: A Repeal Strategy for the Ontarians with Disabilities Act, 2001

As discussed earlier, as part of my mandate I was also asked to make recommendations for a strategy to repeal the Ontarians with Disabilities Act, 2001. Background information on this theme appears in the Introduction and input from the consultation process was summarized in the What the Review Heard section.

A number of questions need to be considered in developing a strategy to repeal the ODA, including:

• Should the ODA be repealed in whole or in part?
• When should the ODA be repealed?
• What is the impact of repealing the ODA? What gaps, if any, would result?
• Should certain sections of the ODA be carried forward into the AODA? If so, should those sections apply to the public and broader public sector as under the ODA or should they be extended to apply to the not-for-profit and the private sectors?
• Is there a need for a transition plan to minimize duplication and confusion among the public, the disability community and the obligated sectors until the ODA is repealed?

As of January 2010, the provincial government and the broader public sector are subject to requirements under both the ODA – including the ongoing requirement for annual accessibility plans – and the AODA – for compliance with and reporting on the customer service standard.

The AODA represents a more comprehensive legislative and regulatory framework than the ODA. There are several features that differentiate the two acts. The AODA:

• applies to all Ontarians — that is, all persons or organizations in the public, private and not-for-profit sectors
• calls for the development of accessibility standards with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises
• requires the participation of persons with disabilities as well as stakeholders from the obligated organizations in both the public and private sectors in the development of the accessibility standards
• contains measures for compliance, reporting, inspections and enforcement.

Certain specific obligations on the provincial government and the broader public sector are not explicitly continued in the AODA. It is anticipated that many of these requirements under the ODA will be covered in standards developed under the AODA. However, until the standards are finalized and released it is not clear what gaps, if any, will need to be addressed.

The AODA does carry over the requirement for municipal accessibility advisory committees (in municipalities with a population of 10,000 or more) from the ODA. The role of the MAACs under the AODA will be specifically addressed in the section on MAACs a bit further on in this report.

Please see the chart entitled: Comparison of Legislative Requirements. It summarizes and compares some of the key requirements under the Ontarians with Disabilities Act, 2001, and Accessibility for Ontarians with Disabilities Act, 2005. This chart highlights the possible gaps that could result if the ODA is repealed before the accessibility standards are finalized and in place.

 

Considerations

I am persuaded that the ODA has contributed to raising the level of awareness about accessibility issues in the provincial government and the broader public sector and in local communities across Ontario. The legislation has helped to move the yardsticks in making Ontario more accessible to persons with disabilities.

In particular, annual accessibility planning and municipal accessibility advisory committees have helped to increase awareness of issues facing people with disabilities and the need to plan to identify and remove barriers. Accessibility planning has become an important element of overall business planning for the provincial government and the broader public sector. MAACs provide the disability community with a formal voice and a role in accessibility planning at the municipal level.

The government and broader public sector appreciate the value of accessibility planning, but are extremely concerned about overlapping reporting processes under the two separate acts. It was suggested by many, including the government representatives, that the planning and reporting functions under the ODA be refocused on compliance with the five accessibility standards under the AODA.

The disability community sees the ODA as symbolic. Giving the disability community a voice through membership on MAACs was an important step in breaking down the attitudinal barriers faced by people with disabilities. They want to ensure that no gains are lost by repealing the ODA, or by repealing it prematurely. Since only one accessibility standard (customer service) is in regulation, some in the disability community urged me not to recommend the repeal of the ODA until the standards are complete, and any gaps compared to the ODA can be addressed. Others suggested that the ODA should not be repealed until 2025.

I am convinced that it is sound public policy ultimately to have only one piece of accessibility legislation in Ontario to identify, prevent and remove barriers for persons with disabilities. Nonetheless, I believe that it would be premature to repeal the ODA until the remaining four accessibility standards are finalized and in place and the questions and issues that have been raised are resolved. In fact, when the AODA was enacted, the government indicated that it intended to keep the provisions of the ODA in force until they are replaced by standards under the new act.

It is true that keeping two acts, in the short term, may perpetuate some confusion for the public, the disability community and the obligated sectors. It may also continue obligations for the government and broader public sector that may no longer be relevant in light of the accessibility standards. Maintaining the two acts may also put further pressure on already stretched obligated organizations at a time when they are trying to build their capacity to comply with the AODA. I have tried to balance these concerns in my proposed approach.

A Proposed Strategy for Repeal

The ODA was not repealed when the AODA took effect. Instead, section 42 of the AODA provides for the repeal of the ODA either in whole or in stages, by proclamation. In light of what I heard about the value of the ODA, I am concerned that repealing the act prematurely would send the wrong message.

I am therefore recommending the following strategy for the government to repeal the ODA. The approach provides a set of principles to guide the government on how and when to repeal the 2001 act. It tries to balance the concerns raised about duplication on the one hand, and ensuring that unintentional gaps are not created, on the other.

1. Repeal the ODA after the five accessibility standards are in place

• The government should repeal the ODA only after the five standards are in regulation and it can be determined what, if any, of the remaining obligations under the ODA should be incorporated into the AODA.
• When the government repeals the ODA, it should be repealed in its entirety (subject to the requirements that are incorporated into the AODA) and not in stages. This approach would make requirements clearer and easier to follow for the obligated sectors.
• In determining which provisions of the ODA should be carried into the AODA, with necessary modifications, the government should consider:
• Is the requirement sufficiently addressed in one of the five accessibility standards?
• Is the requirement redundant under the AODA legislative and regulatory framework?
• Does the obligation support compliance with the AODA standards?
• With respect to the specific requirements on the government of Ontario, do the obligations support the goal of an accessible Ontario by 2025?
• In repealing the ODA, the government should consider its Open for Business policy to avoid creating any additional confusion among the public or any unnecessary regulatory burden on the obligated sectors.

2. Accessibility Planning

This issue requires careful consideration. On the one hand, it appears that the planning requirements under the ODA have been valuable. They have contributed to removing barriers within local communities and have provided a voice for the disability community. On the other hand, now that the AODA is establishing accessibility standards, it may be that the role of planning for barrier removal needs to be more focused on compliance with standards.

I am therefore recommending that in reviewing the gaps under the ODA once the five standards are in place, the government should consider moving the planning requirement under the ODA into the AODA, with necessary modifications. Based on the feedback from my consultations, I would suggest that the government consider the following modifications to the planning obligations so that they reflect the new accessibility standards framework under the AODA:

• Change the focus of the accessibility plans to compliance with accessibility standards within the timelines set out
• Change the annual requirement to a four year planning cycle – this would better reflect the timelines in the standards as well as the municipal election cycle
• Streamline the requirement to make the accessibility plans public with the compliance reporting requirements under the AODA to avoid duplication and minimize the administrative burden, and
• Consult with stakeholders to determine to whom the planning requirements should apply and what the nature of those requirements should be.

3. ODA Requirements on Provincial Ministries

The ODA sets out specific obligations for provincial ministries that may not be captured by the AODA standards. I therefore recommend that in its gap analysis the government carefully review sections 4 to 9 of the ODA to ensure that these specific requirements are sufficiently incorporated in the standards. Based on that analysis, consideration should be given to amending the AODA to include any provisions omitted.

4. Transition

As noted earlier, there is concern about the administrative burden and overlapping requirements imposed on the obligated sectors while both the ODA and the AODA remain in place.

I therefore strongly recommend that until it is appropriate to repeal the ODA, the government implement a guideline to create a streamlined process for the preparation and public release of accessibility plans under the ODA and for compliance reporting under the AODA. It was clear throughout the consultations that, if both requirements remain, the process for planning and compliance reporting should be integrated and streamlined to reduce the burden on the obligated sectors and ensure the continued focus of effort and resources on compliance with the new standards.

In summary, I recommend the following strategy for the government to repeal the ODA: Repeal the ODA once all of the accessibility standards are in regulation; repeal the ODA as a whole and not in stages Undertake an assessment to determine which, if any, provisions of the ODA are not covered by the AODA legislative and regulatory framework and therefore may need to be incorporated, including the requirements on the provincial government After consultations, incorporate the planning framework under the ODA into the AODA, with necessary modifications Implement a transitional guideline to integrate and streamline the planning requirements under the ODA and the reporting requirements under the AODA, and Preserve the consequential amendments made by the ODA to other legislation, if necessary.