What is the Ontarians with Disabilities Act, 2001?
The Ontarians with Disabilities Act, 2001 (ODA) was passed on December 14, 2001.
The purpose of the ODA is to improve opportunities for people with disabilities and to provide for their involvement in the identification, removal and prevention of barriers to their full participation in the life of the province. ( section 1)
Several key sections were proclaimed on February 7, 2002 , including section 19 which established the Minister’s Accessibility Advisory Council and section 20 which established the Accessibility Directorate of Ontario. (Section 19 has since been revoked by an Order in Council dated November 4, 2005 . The Accessibility for Ontarians with Disabilities Act, 2005 replaces the Council with the Accessibility Standards Advisory Council.) The majority of ODA obligations were proclaimed on September 30, 2002 and December 31, 2002 .
What is the definition of disability under the Ontarians with Disabilities Act, 2001?
The ODA covers the same broad range of disabilities as the Ontario Human Rights Code. These include physical, sensory, cognitive, developmental and mental disabilities, and brain injury.
Section 2 of the ODA defines "disability" as:
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, includes diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial appliance or device,
(b) a condition of mental impairment or a developmental disability,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997; ("handicap").
The Ontario Human Rights Commission explains that the Ontario Human Rights Code interprets the meaning of “disability” in a broad sense and includes both present and past conditions. The meaning also contains a subjective component based on the perception of disability. While Sections 10(a) to (e) of the Human Rights Code provides examples of various types of disabilities, they are included for illustrative purposes and are not to be considered as exhaustive. For more information on the definition of disability under the Ontario Human Rights Code, An explanation of the information on the definition of disability defined under the Ontario Human Rights Code, please visit the website of the Ontario Human Rights Commission.
Does the ODA have priority over the Ontario Human Rights Code?
No. The Ontario Human Rights Code retains primacy over the Ontarians with Disabilities Act, 2001.
Does the ODA apply to everyone?
The provincial government, municipalities, school boards, hospitals, colleges and universities and public transportation providers and the private sector are affected by the act.
The provincial government is required to develop annual accessibility plans and make them public. The plans will address accessibility and barriers to people with disabilities and ways to remove and prevent those barriers. This includes its services to the public, workplace policies and practices.
Municipalities, school boards, hospitals, colleges, universities, and public transportation organizations across Ontario are required to develop plans in consultation with people with disabilities to make their goods, products and services more accessible. Plans will be made public.
Section 21 of the ODA, once proclaimed, provides for offences for failure to meet requirements.
Is there a deadline in the ODA to ensure that barriers are removed and prevented?
The act provides for accessibility plans to be updated and published every year.
In addition, there is power to set out a time period in regulations by which any organization must comply with its obligations under the act. (section 23 )
What would the outcome of a complaint of discrimination made to the Ontario Human Rights Commission be if an organization’s accessibility plan provides for a particular barrier to be removed at some future time rather than immediately?
The ODA establishes annual accessibility planning requirements for the following organizations: Ontario government ministries, municipalities, public transportation organizations, hospitals, school boards, colleges and universities.
Under the ODA, these organizations with obligations are legally required to prepare an annual accessibility plan which addresses the identification, removal and prevention of barriers to people with disabilities.
The preparation of annual accessibility plans under the ODA complements rather than removes existing obligations under the Ontario Human Rights Code. In addition, the Code retains primacy over the ODA. This primacy is established under the Code and is reinforced in section 3 of the ODA.
Under the Code , every person has the right to equal treatment with respect to services, goods and facilities without discrimination because of, among other things, disability.
Organizations, including those in the public and private sector have a duty to accommodate persons with disabilities to the point of undue hardship.
The Code recognizes that some accommodations will be very important but will be difficult to accomplish in a short period of time. It, therefore, allows for phasing-in of accommodation in order to avoid creating undue hardship.
In some cases, while accommodation is being phased in over an extended period of time, it may still be possible to provide interim accommodation. If both short and long-term accommodation can be accomplished without causing undue hardship, then both should be considered simultaneously.
Organizations with obligations to prepare annual accessibility plans should take into account Human Rights Code requirements to accommodate persons with disabilities. These requirements, along with undue hardship and phasing in of accommodation, are discussed at length in the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate.
Complaints made to the Ontario Human Rights Commission are considered on a case by-case basis. The individual nature of the specific facts and circumstances involved in any complaint makes it difficult to predict the outcome of any particular complaint.
When will regulations to the act be developed and will members of the public have an opportunity to provide input on them?
The ODA requires the government to publish draft regulations in The Ontario Gazette, and allow interested parties a reasonable opportunity to make comments on them to the Accessibility Directorate of Ontario. (section 23 )
The government will be seeking input into regulations. (section 23)
Will obeying this law be a condition of future government funding and purchasing decisions?
The ODA requires the provincial and municipal governments to consider accessibility when purchasing goods and services. The provincial government will also have to consider accessibility when funding a project for which the Building Code, 1992 establishes a level of accessibility for people with disabilities. Government-funded capital programs can include government funding for new buildings or the renovation of older buildings.
When the ODA became law did it affect the provisions of other provincial legislation?
Yes. Sections 24 to 32 of the ODA list the complementary amendments that were made to other legislation in order to:
- establish accessibility as a provincial planning interest (Planning Act);
- ensure that no new subdivisions or construction will occur without consideration of accessibility features (Planning Act);
- require social housing service managers to ensure a percentage of new social housing units are accessible (Social Housing Reform Act);
- enhance the accessibility provisions of the Election Act , Municipal Elections Act and Election Finances Act to improve accessibility for people with disabilities as candidates and as voters;
- make a specific prohibition against counterfeit accessible parking permits and raise fines for unlawful use of accessible parking permits and spaces (Highway Traffic Act and Municipal Act) ; (Note: On January 16, 2006, the Accessible Parking Permit program went into effect replacing the Disabled Person Parking Permit program. For more information, you can visit the website of the Ministry of Transportation.)
- provide for the Speaker of the Legislature to prepare an annual accessibility plan (Legislative Assembly Act); and
- amend the definition of disability in the Ontario Human Rights Code, to upd ate the language to specifically include brain injury and to expand the provisions for service animals.