ARCH ALERT 425 Bloor Street East, Suite 110 Toronto, ON M4W 3R5 www.archlegalclinic.ca 416.482.8255 (Main) 416.482.1254 (TTY) 416.482.2981 (Fax) 1.866.482-ARCH (2724) (Toll Free) 1.866.482.ARCT (2728) (Toll Free) 1.866.881.ARCF (2723) (Toll Free) January 11, 2005 A Comment on Bill 118, Accessibility for Ontarians with Disabilities Act - AODA by Phyllis Gordon, Executive Director, Heidi Lazar-Meyn, Staff Lawyer and Cara Wilkie, Student-at-Law INTRODUCTION This is an exciting time, as the Ontario legislature considers Bill 118, a law designed to achieve a barrier-free Ontario. In this ARCH Alert we focus on Bill 118. We provide a brief summary of it, and set out our initial thoughts on its contents. Ten years of community activism, public discussion and legislative debate have led to this historic point in time, demonstrating that disability is not a partisan issue. At this juncture, it is the leadership of the current Minister of Citizenship, Dr. Marie Bountrogianni, and her staff that must be applauded. The support of the Liberal Government as well as of the Conservative Party of Ontario and the New Democratic Party of Ontario has been essential. David Lepofsky's leadership along with the determination and hard work of thousands of Ontarians with disabilities who have been working hard at the local level - with community groups, municipal governments, businesses, etc. - is deeply appreciated by the community. INSIDE THIS ISSUE 1. A Comment on Bill 118 Introduction 2. Summary of Bill 118 3. General Comments 18. Detailed Commentary 18. Service Animals 18. Conclusion We share the goal of having as effective a statute as possible. To that end, we are circulating our analysis. This is ARCH's first systematic review of the AODA's various provisions and it is quite likely that, over time, we will refine these views. In the meantime, we would appreciate any feedback you have regarding our analysis. In particular, please let us know if you disagree with our comments, or think we have overlooked issues you consider significant. The Standing Committee on Social Policy will be holding public hearings on Bill 118 in Toronto, Niagara Falls, London, Thunder Bay and Ottawa during the weeks of January 31 and February 7, 2005. Anyone who wishes to be considered to make an oral presentation on Bill 118 should contact the Committee Clerk by 5:00 p.m. on Wednesday, January 12, 2005. Those who do not wish to make an oral presentation but who are interested in commenting on the Bill may send written submissions to the Committee Clerk at the address below by 5:00 p.m. on Tuesday, February 8, 2005. The Clerk is Anne Stokes, Room 1405, Whitney Block, Queen's Park, Toronto, M7A 1A2. Her telephone is (416) 325-3515, fax is (416) 325-3505 and TDD is (416) 325-3538. Collect calls will be accepted. Copies of the Bill may be purchased through Publications Ontario at 1-800-668-9938, or at (416) 326-5300 in Toronto. An electronic version of Bill 118 is also available on the Legislative Assembly website at: http://www.ontla.on.ca/documents/Bills/38_Pa rliament/session1/b118.pdf SUMMARY OF BILL 118 The AODA establishes a process for developing and enforcing accessibility standards that will require organizations to remove barriers experienced by persons with disabilities. The AODA also continues the municipal accessibility advisory committees established under the Ontarians with Disabilities Act, (ODA). According to Bill 118, the Minister of Citizenship and Immigration will create standard development committees, each responsible for a specific industry or sector. Invited to participate on these committees will be persons with disabilities (or their representatives), industry representatives, and the Ministries responsible for those industries. The committees will determine long-term accessibility objectives for the specified sector and time frames (maximum of 5 years) for their progressive implementation. The proposed standards are to name or describe the persons or organizations they cover. The committees will develop a proposed accessibility standard and provide it to the Minister. The Minister will then make the standard available for public comment for 45 days by posting it on a government website. After considering the comments received, the committee may amend the standard accordingly and provide the new proposed standard to the Minister. Within 5 years of a standard being adopted into regulation the committee will review the objective and time frames previously developed and propose another standard. The Minister, advised by the Accessibility Directorate and after consulting with other Ministries, may enact the standards through regulation. The Minister may exempt certain persons or organizations from the application of the standards and may enter into incentive agreements encouraging organizations to surpass the requirements of the standards. Each organization that is subject to a standard is required to file an annual accessibility report with the director (who is appointed by the Minister) and make it available to the public. If an organization fails to comply with the reporting requirements, the director(s) may order it to comply, provide information, or pay an administrative penalty. If an organization fails to comply with a standard, a director may order compliance or payment of an administrative penalty. If an organization fails to comply with an order (other than an order to pay an administrative penalty) and no appeal is filed, a director may order the organization to pay an administrative penalty. The Minister may appoint inspectors to ensure compliance with the standards. These inspectors are able to enter private property to monitor compliance. They are also able to obtain search warrants and the assistance of the police, if necessary. The Minister can designate one or more tribunals that will be responsible for hearing matters arising under the Act as specified in their designation. The tribunal(s) may hear appeals of an organization subject to an order because of non-compliance with an incentive agreement, reporting requirements, payment of administrative penalties, compliance with standards, etc. If an organization fails to comply with an order of the tribunals or the directors, and there is no appeal, the order may be filed with the Superior Court of Justice and enforced as an order of that court. The Act also specifies that certain actions or omissions can be the subject of provincial offences. GENERAL COMMENTS Initial public reaction to Bill 118 has been highly supportive. In many ways, ARCH concurs with this assessment. In particular, it is a significant improvement over the present ODA because it covers all sectors of the economy, including the private sector. It provides for the development of a comprehensive set of accessibility standards to remove barriers and achieve full inclusion. As well, Bill 118 provides for the participation of persons with disabilities throughout the process. However, ARCH has identified several issues and concerns that, if addressed, will improve the effectiveness of the AODA. Greater Detail and Clarity Now An initial observation is that Bill 118 is often exceedingly general and leaves significant issues for future enactment by Cabinet, in the form of regulations. This can be a danger, as there is always the possibility that key regulations will not be enacted, leaving us with insufficient detail regarding the operations of the AODA. When statutes are lacking full definition, delay and debate occurs at all levels of implementation and adjudication. The more detail and clarity that can be established in the Bill itself, the greater is the likelihood that it will be successfully implemented. This is particularly true in the context of this Bill, which is laying out a plan that will unfold for two decades. Participation of Persons with Disabilities The development of meaningful accessibility standards will require a large and continuing investment of time and energy from the disability community, the sectors affected and government. The effective participation of persons with disabilities or their representatives is key to the overall success of this initiative and will require government financial support. Financial support for individuals and the organizations who are supporting their contribution must be clarified at the outset. This support should be established in the text of Bill 118. Commitment to Representative Participation Barriers take many forms and are experienced differently by persons with a wide range of disabilities. A proactive commitment to address all barriers fully, with a cross-disability understanding, is essential to the AODA's success. ARCH shares the concern that it may be easier to identify and deal with some barriers than others. A concerted effort is needed particularly with respect to attitudinal barriers and communication barriers. Monitoring and Evaluation Bill 118 does not expressly provide a means to effectively monitor the success of the its implementation. Nor does it require the Minister to publish an annual report on the progress of standards development or their enforcement. There is no mandatory evaluation process that will assess whether barrier removal has been successful. There is no explicit provision for the maintenance of a publicly accessible database that could be compiled from the reports filed under the AODA. Given the importance of this initiative both in Canada and internationally, we believe that it would be very useful to develop evaluation tools and establish data collection from the outset. No Complaints Process Bill 118 provides for the participation of persons with disabilities in three situations: as a members of a standards development committee; providing input after a proposed standard has been made public; and, as a member of a municipal accessibility advisory committee. It does not, however, provide an avenue for a member of the public to raise concerns about the implementation or enforcement of the AODA through a formal complaint process. Often proactive statutes of this reach establish independent commissions that implement the AODA's mandate. They also have complaints systems whereby persons affected can complain and have their concern adjudicated. It contains no independent review mechanism permitting persons with disabilities to complain about failures to comply with the AODA or the accessibility standards. Similarly, there is a very limited approach to adjudication, with only slight room for public participation. DETAILED COMMENTARY In this article we have commented upon selected provisions that we consider to be significant. We also review some relatively minor points. The selection we have made does not mean that other considerations or perspectives are not important. Indeed, the comments of others that we have read so far raise further important issues requiring attention. In particular we refer readers to the draft brief recently circulated by the Ontarians with Disabilities Act Committee (ODAC) for additional perspectives and analysis. The Purpose Clause of Bill 118 1. The purpose of this Act is to benefit all Ontarians by, (a) developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, occupancy of accommodation, employment, buildings, structures and premises on or before January 1, 2025; and (b) providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards. A purpose clause in a statute is a very important guide to its interpretation. It serves as the vision statement of the statute. A purpose clause should clearly answer certain questions, Why was this law enacted? What problem is it attempting to remedy? In this case, the purpose clause will clarify questions that arise for the bureaucrats charged with the implementation of the AODA, for the standard development committees as they do their work, for persons and organizations subject to its directives, and to tribunals or courts interpreting its provisions. In ARCH's view, the AODA is being enacted in order to remedy the systematic exclusion and discrimination that persons with disabilities have experienced, and continue to experience in all aspects of Ontario life. Persons with disabilities have a right to fully participate in society without barriers. In this sense, the AODA is a 'rights' statute. This is the particular purpose of the AODA yet Bill 118 makes no reference to historical or current discrimination. Rather, it states that the purpose is "to benefit all Ontarians". While these words contain a fine intention, but they are vague and do not convey the goal to remedy systemic discrimination faced by persons with disabilities as a result of barriers. We emphasize this point not only as a matter of principle but as a practical and strategic matter. As lawyers, we know the value of a strong and clear purpose clause and its impact when litigating the interpretation of a statute. It will be important for the courts to recognize that the AODA is anti-discrimination legislation, and not a general statute for the "benefit of all Ontarians". We recommend that section 1 be revised to clearly state the true purpose for enacting the AODA. Twenty-year Timeframe Many have said that the 2025 date is too long from now. We share that view. Twenty years is a long time in terms of the implementation of a public policy. There is no crystal ball that allows us to see the priorities of future governments, public opinion or pressures on the public purse. It is essential that as much as possible be accomplished in the first decade of the statute's life. However, of equal concern is the cycle of five- year periods set out for the development of accessibility standards. This issue is further canvassed in the discussion of section 9 below. We recommend that the accessibility standards be developed by 2020. Occupancy of Accommodation Section 1(a) refers to "occupancy of accommodation". However, elsewhere, the references are to simply "accommodation". (See sections 6(3)(c), 6(5)(a), 33(2)(b) and 39, as well as the long title of the Act and explanatory notes). We are not sure what the explanation is for this difference in usage. We recommend that the words "occupancy of" be deleted from section 1(a). Definitions Section 2 defines key terms used in the AODA, such as "barrier", "disability", and "organization". The definition of disability under the AODA and the Ontario Human Rights Code (Code) are identical. The definition of barrier is the same as in the ODA. Other important terms, such as "accessibility" and "services" are not defined. Organization 2. "Organization" means any organization in the public or private sector and includes, (a) a ministry of the Government of Ontario and any board, commission, authority or other agency of the Government of Ontario, (b) any agency, board, commission, authority, corporation or other entity established under an Act, (c) a municipality, an association, a partnership and a trade union, or (d) any other prescribed type of entity. While it appears that this is a comprehensive list of types of organizations, the section could be clearer. The above list defines organizations by their formal structure rather than their function. There may be other formal legal structures for organizations that have not been captured in this list. This legalistic approach may be difficult for people without legal training, who can be expected to regularly consult Bill 118. For example, how will a layperson ascertain whether a school is a "corporation" or if it is "established under an Act"? Or, will it be necessary to have lawyers explain the meaning of "sole proprietorship" or "foundation"? We recommend that this legalistic definition of such a key component of the Bill be revisited. Accessibility Bill 118 reserves to Cabinet the right to define "accessibility" by regulation pursuant to section 40(1)(q). Accessibility is a fundamental concept of the statute. Indeed it is the first word in the Bill's title and goes to the heart of the legislation, the accessibility standards. We cannot leave to a later date the clarification of what it is we are doing under the AODA. All accessibility standards committees should have the same understanding of what their task entails. We recommend that a definition of "accessibility" be added to section 2 at this time. We also recommend that section 40(1)(q) be deleted. Services Bill 118 likewise reserves to Cabinet the right to define "services" by regulation pursuant to section 40(1)(q). This is most certainly a key category in the statute, and it is essential that persons with disabilities understand immediately what will or will not be covered. The word "services" is used in section 1 of the Code. The Ontario Human Rights Commission has provided a discussion of the word "services" in its 1999 plain-language Guide to the Human Rights Code. This discussion notes that services can be private or public and it includes the following as examples of services: -stores, restaurants and bars -hospitals and health services -schools, universities and colleges -public places, amenities and utilities such as recreation centres, public washrooms, malls and parks - services and programs provided by municipal and provincial governments, including social assistance and benefits, and public transit - community services - services such as those provided by employment agencies or insurance companies - classified advertisement space in a newspaper. This list is not comprehensive, but indicates that the current understanding of the meaning of "services" is broad. We recommend that a definition of "services" be added to section 2 at this time. Broad and all-inclusive language should be used in order to avoid loopholes. Again, we recommend that section 40(1)(q) be deleted. Recognition of Existing Rights 3. Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed by law. This is a significant section that is intended to ensure that the AODA does not diminish existing rights. We raise it here to emphasize its importance and support its place in this Bill. Application 4. This Act applies to every person or organization in the public and private sectors of the Province of Ontario to which an accessibility standard applies. Note that it is only after an accessibility standard has been developed that the AODA can apply to a person or an organization. This is because whether one is covered is to be set out in the standards themselves (s. 6(2)). The first set of standards will not be enacted for several years, and it seems that not all persons or organizations who may eventually be covered will be included in the first set of standards. The AODA will apply to municipalities as soon as it is proclaimed. These sections set out responsibilities under the AODA which clearly apply prior to the accessibility standard being finalized. In addition, it is important to remember that Ontario statutes apply only to organizations and institutions within the province's legislative jurisdiction. The Constitution Act divides the power to legislate between the federal and provincial governments. Some areas are governed by provincial governments, such as universities, hospitals and schools. Others are governed by the federal government, such as banks and national airlines. Some corporations that operate nationally, including inter-provincial telecommunications or transportation companies, are outside the power of the Ontario legislature. We recommend that section 4 refer to this jurisdictional aspect and that the words "to which an accessibility standard applies" be deleted. Regulatory Power to Exempt from the Application of the Act 40. (1) The Lieutenant Governor in Council may make regulations, (r) exempting any person or organization or class thereof or any building, structure or premises or class thereof from the application of any provision of this Act or the regulations This regulatory power that reserves to Cabinet the ability to provide exemptions to the application of the AODA is unnecessary and unwarranted. It is essential that the AODA not provide this unfettered exemption power, particularly as we cannot predict with certainly what pressures will be on Cabinets in the years to come. Discrimination and exclusion are pervasive. There should not be exemptions from this anti-discrimination initiative. We recommend that section 40(1)(r) be deleted. Binds the Crown 5. This Act binds the Crown. Because of constitutional principles of parliamentary supremacy, this Bill may not apply to the Assembly unless specifically stated. As the home of democracy in Ontario, it is essential that the Assembly be made accessible for all. We recommend that this section provide that the AODA also apply to the Legislative Assembly. Accessibility Standards 6. (1) The Lieutenant Governor in Council may make regulations establishing accessibility standards. The Bill sets out a process for the development of the accessibility standards, and then leaves it to the government to decide whether or not to make a regulation enacting the standard. As many are aware, there is a distinction in legal interpretation between the words "may" and "shall". Section 6(1) is permissive, allowing the standard to be enacted, rather than requiring its enactment. We recommend that this section be reviewed to ensure that it confirms the government's strongest possible commitment to enacting the proposed or revised standards. The government should clarify for the public at this juncture why non-mandatory language was selected. 6 (3) Despite subsection (2), an accessibility standard may apply only to a person or organization that, (a) provides goods, services or facilities to the public; (b) employs persons in Ontario; (c) offers accommodation to the public; (d) owns or occupies a building, structure or premises that is open to the public; or (e) is engaged in a prescribed business, activity or undertaking or meets such other requirements as may be prescribed. Section 6(3) is a very significant provision as it defines the outside parameter or reach for the application of a standard. As the accessibility standards are the heart of the legislative scheme, it is essential to have a clear understanding of their limits. It is also important to note that, despite the outside parameters provided for in section 6(3), many gradations of obligation and application are anticipated by the various classes that can be set up under sections 6(6) and 6(7), or by section 6(8). "To the Public" While the language in section 6(3) of Bill 118 is similar to the language in section 1 of the Code, there is a key difference: the Code does not use the words "to the public". In fact, it was amended in 1981 to remove this debate the distinction based on availability to the public. There had been much litigation about the meaning of these words for many years that eventually led to this change. For example, the words were used to exclude girls from hockey leagues, or to argue that welfare benefits are not available "to the public" because eligibility requirements apply. It is difficult to define the public and private spheres of our society. Moreover, these are not static concepts. We suggest that the words "to the public" be deleted. By including these words, is it intended that the AODA not apply to organizations that have membership criteria? Is a private school or a fitness centre that requires a membership fee a "facility" provided "to the public?" What about condominiums or cooperatives and ameliorative or supportive housing? What about organizations involved in design, manufacture, and construction who do not provide their products directly to the public? What about government benefits programs that have eligibility criteria? Greater clarity in this section is essential to ensure that the various standards committees that are to be established will have a common appreciation of the scope of their task and the outside parameters of the standards. The clearer the legislative directive is, the greater consistency and harmonization of standards will result, making accessibility regulations easier to understand, implement and enforce. Clarity now also will avoid the need for litigation later. Finally, if the Minister has concerns about differential application depending on whether goods, services or facilities, or accommodation, buildings, structures or premises, are public or private, she can utilize section 6(6) and 6(7) to address such concerns. It is not appropriate to do so in section 6(3), which sets out the broad parameters for the application of accessibility standards. We therefore recommend that the words "to the public" be deleted from section 6(3). Additions to Section 6 (3) In addition to the activities set out in section 6(3) we believe that persons or organizations who design and/or manufacture goods must be subject to accessibility standards. There are many examples where inclusive design principles should be incorporated into the manufacture of goods. Similarly, those who design and/or construct the built environment should be included in section 6(3). We recommend that persons or organizations that undertake the design and/or construction of the built environment and the design and/or manufacture of products be added to the list set out in section 6(3). Standards Development Process 7. The Minister is responsible for establishing and overseeing a process to develop and implement all accessibility standards necessary to achieving the purposes of this Act. The Minister's responsibility is to ensure that all accessibility standards necessary to achieving the purposes of the AODA are developed and implemented. It will therefore also be her task to ensure that all segments of society over which the Province has jurisdiction are covered in a fully comprehensive manner. It is the Minister, and not the standards development committee, who initially determines which classes are to be covered by any particular accessibility standard, because the classes are to be part of the terms of reference that the Minister provides to each committee. The committee can further refine this determination. Given how flexible the classes can be, (see sections 6 (6) and (7)) there is a possibility that some segments of society may be left out of the application of the standards. It will be the Minister's job to ensure complete coverage. The only other reading of section 7 would be that the Minister could assert that there are segments of Ontario society that are fully inclusive, do not exclude or discriminate against person with disabilities and thus do not require accessibility standards to achieve the purposes of the AODA. In our view, this is not a realistic possibility, given the state of exclusion that is known to exist. Standards Development Committees 8. (1) As part of the process referred to in section 7, the Minister shall establish standards development committees to develop proposed accessibility standards which shall be considered for adoption by regulation under section 6. Again, it is clear that Cabinet has the final say with respect to whether or not a standard will become law. 8. (2) Each standards development committee is responsible for, (a) developing proposed accessibility standards for such industries, sectors of the economy or classes of persons or organizations as the Minister may specify; and (b) further defining the persons or organizations that are part of the industry, sector of the economy or class specified by the Minister under clause (a). We note that the description of classes in section 6(6) is broader than the classes referred to in section 8, as the latter does not list classes of "buildings, structures and premises". It is not clear to us why this is the case. 8. (6) The Minister shall fix terms of reference for each standards development committee and shall establish in the terms of reference the deadlines that each committee must meet throughout the various stages of the standards development process. This section again demonstrates how much detail and definition of the process of standard development is left to the government's future design. 8. (3) Before establishing a standards development committee for a particular industry, sector of the economy or class of persons or organizations, the Minister shall consult with other ministers having responsibilities relating to that industry, sector or class of persons or organizations. (4) The Minister shall invite the following persons or entities to participate as members of a standards development committee: 1. Persons with disabilities or their representatives. 2. Representatives of the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply. 3. Representatives of ministries that have responsibilities relating to the industries, sectors of the economy or classes of persons or organizations to which the accessibility standard is intended to apply. (5) The Minister may invite members of the Accessibility Standards Advisory Council to participate as members of a standards development committee. Despite the fact that public participation is seen as a key feature of the AODA, as the purpose section of Bill 118 indicates, (See s.1(b)) it offers very little guidance regarding the committees, as can be seen in sections 8(3)(4) and (5). For example, Bill 118 does not: -define what or who might be the "representatives of persons with disabilities" -direct that there should be a variety of stakeholders from the community of persons with disabilities, or that it is necessary to have representation from a broad cross-disability perspective, thereby ensuring that all barriers are appropriately identified -require a certain percentage of committee members to be persons with disabilities -say how the Minister will first select and then "invite" members of the committees -say how the community might participate in the selection of persons with disabilities or their representatives -provide for the length of time that a member sits on a committee or how a member is replaced -provide for payment of expenses or indicate if any remuneration is authorized. This is in stark contrast to the provisions for remuneration and expenses for members of the Accessibility Standards Advisory Council set out in s. 31(3). -address the diversion of resources and costs that disability organizations will experience if their staff or members participate on various standards committees over lengthy periods of time The ODAC draft brief provides a detailed analysis and set of recommendations regarding the process for appointing the committees and developing the standards; we support these recommendations. We recommend that members of the committees be appointed for a fixed term, and be remunerated for their time and expenses. Three-year Stages for Standards Development and Appointments We believe that the standards development committee work will be enhanced if there is continuity of participation. The committee will be more effective if the timeframe for each stage of standards development is congruent with the terms of appointment for its members. Continuity of participation means that time will not be lost and the committee will not need to "reinvent the wheel" each time a new person is added. Practically speaking, when a new person joins a committee there is a learning curve and the group's momentum is lost or its direction shifts. We also think that five years is too long for this sort of project. People work most effectively when there are tight but manageable timeframes. In general, it is our view that five years is too long for effective committee work or project development. Three years is a realistic commitment for an individual or a disability organization to make to any one project. We recommend that each stage of the process be reduced from five years to three years. We recommend that the terms for those appointed to the committees should be the same length as the stages of development of the proposed standards. Compliance with Standards and Review of Reports 16. A director may review an accessibility report filed under section 14 to determine whether it complies with the regulations and whether the person or organization who submitted the report has complied with all applicable accessibility standards. In our view, this permissive rather than mandatory approach to review is a serious flaw in the process. As Bill 118 does not provide for a public complaint process, we would at the very least expect that filed reports will be reviewed by officials who will determine whether minimum compliance has been established. We recommend that there be a mandatory requirement that the reports be reviewed by either the director or a delegate. Inspections 18. (1) The Minister may appoint inspectors for the purposes of this Act. It is not clear why this is a permissive, rather than mandatory, provision. Again, as we are dealing with a long-term process, Bill 118 should be definitive about the minimum governmental obligations that the enforcement process entails. While inspectors are essential, they are not needed until the initial accessibility standards are enacted. We recommend that the provision be changed to provide that the Minister shall appoint inspectors beginning at the time the initial accessibility standards are enacted. Director's Orders 25. A director may, by order, vary or revoke an order made under section 21. Bill 118 sets out a series of steps regarding notices and orders and the making of submissions in sections 21-24. It then says in section 25 that the order can be varied or revoked. It is not clear at when this power is operative. This seems unwieldy. The section also does not indicate for what reasons an order can be varied or revoked. This power should not be so unrestrained. We recommend that the applicable timelines for this power be clarified and the circumstances under which an order can be varied or revoked be set out in Bill 118. Appeals to Tribunal ARCH has many concerns with respect to Part VI. In our view, the adjudication framework set out in Part VI is highly problematic and needs significant revision. There are problems with the lack of a single specialized tribunal, there are minimal avenues for a hearing and there is no provision for public input. Even though this is a public interest law, explicitly stated to benefit "all Ontarians", its appeal provisions are limited and appear to exclude the public. Tribunal Should Be Established in Bill 118 26. (1) The Lieutenant Governor in Council shall, by regulation, designate one or more tribunals for the purposes of this Act. (2) Each tribunal designated under subsection (1) shall be responsible for hearing such matters arising under this Act as are specified in the designation. This is a very unusual provision. Ordinarily, statutes that provide for appeals of orders establish a tribunal in the governing statute. We understand that the government does not see a need for a tribunal at the present time, as the only items that it expects will be adjudicated are orders under appeal and these will not be made for several years. We recommend that Bill 118 provide for the establishment and composition of a tribunal, and set the date by which it should be operating. Alternatively Cabinet should be provided with the authority to specify the start date for the tribunal by regulation. Tribunal with Disability Expertise a) Administrative Law Considerations There are many examples of tribunals composed of adjudicators who have expertise in the issues that come before them. We suggest that the AODA provide for a tribunal whose composition includes persons with disabilities and/or persons who have a recognized expertise in disability issues. Indeed, the potential exists under Bill 118 for more than one existing tribunal to be designated by Cabinet. If various standing tribunals are designated, then the expertise of those bodies will relate to the issues of the standing tribunal, and only peripherally to the standards that they are asked to adjudicate. They certainly will not have disability or accessibility expertise. We urge that the AODA contain a clear commitment to disability expertise at the adjudicative level. There are several different models of adjudication: some provide for a single decision-maker, some for a panel of two, and some for a panel of three (the "tripartite" model). Whichever is adopted, disability expertise must be included. Numerous administrative tribunals in Ontario and throughout Canada have been created to provide a fair, relatively inexpensive and efficient method of adjudicating matters that arise under a particular statute. Each is structured somewhat differently. The tribunal's mandate and jurisdiction sometimes is set out in the statute in what is called a "privative clause". A statute may or may not provide for an appeal to the courts. In most instances, decisions can be reviewed by the courts in a process called "judicial review". In these circumstances, the court will examine the degree of specialized knowledge or expertise of the tribunal, whether there is a privative clause and what it says and other factors that the court considers relevant, to determine how much deference it will grant to the tribunal. The greater the deference, the greater the likelihood that the decision will be upheld. Generally speaking, an administrative regime operates more effectively when courts defer to tribunal decisions. This is because a specialized tribunal has a greater understanding of the law and the issues within its jurisdiction, the purpose of the legislation and the social/economic context for the decision. Bill 118 does not provide for an appeal to the courts, nor does it contain a privative clause setting out the tribunal's jurisdiction, as it does not establish a tribunal. However, we can be fairly certain that decisions upholding orders to pay substantial administrative penalties will be challenged in the courts. If this occurs the courts will be highly unlikely to defer to a tribunal designated by the AODA. b) Practical Benefits of a Single Expert Tribunal We are alarmed by the proposal that multiple tribunals could be designated to adjudicate appeals under the AODA. We question the rationale for this decision. Perhaps the rationale is fiscal savings. However, methods have been devised in recent years to reduce tribunal costs. Adjudicators need not all be full-time and can sit on cases as required. There are also several current models in Ontario where different tribunals share infrastructure expenses such as facilities and personnel. Perhaps the rationale is that some existing tribunals will have expertise regarding a particular sector of the economy covered by the AODA. In our view, the essential expertise that is needed relates to disability, and not an in-depth appreciation of each sector. Expertise regarding sectoral issues can be provided to the tribunal through or by evidence; disability expertise is needed to inform the adjudication. In our view it is imperative that there be an even handed and consistent approach to enforcing orders, their appeal or their possible mediation. There will inevitably be differences in approach by different tribunals to certain issues including the way hearings are conducted, mediation, and time-frames, to name a few. Why should we create a scheme which inevitably will lead to inconsistency of response and confusion for the public? The many benefits of one expert tribunal include: -consistency and predictability of decision-making -consistency of adjudicator training -consistency of rules of practice, including notice, place of hearings, timeframes, disclosure, interventions, etc. -one standard approach to accommodating requirements of participants -decisions and reasons can be published together or located on one internet site or other places -annual reports will provide comprehensive and consistent information for all sectors -the public will not need to search for orders under the AODA in several places -appellants will have some certainty that they will know of what decisions have already been made and thus, what they consequences they can anticipate -potential intervenors can ascertain a tribunal's schedule without difficulty -mediation practices will be standardized -If decisions are judicially reviewed, there is a much greater likelihood that the reviewing court will defer to the expertise of a specialized tribunal. The standard of review adopted by the court will be greatly impacted if the proposal set out in Bill 118 is adopted. We strongly recommend that Bill 118 establish one tribunal for all adjudicative purposes, and that the tribunal have disability and accessibility expertise. Limited Application of Appeal Process 27. (1) A person or organization that is the subject of an order made by a director under section 21, 25 or subsection 33 (8) may appeal the order to the Tribunal within the time period specified in the order. Note that Bill 118 provides a very limited role for the tribunal. It does not provide the tribunal with a general power to interpret the statute, or consider issues that arise under it, other than in the context of reviewing appeals from orders. This is, again, a highly unusual situation. Moreover, appeals are only available to persons or organizations subject to orders. For example, there is no avenue by which a person with a disability or a disability organization can challenge an order that is not sufficiently rigorous. Nor can they bring a case asserting that the accessibility standard or agreement has not been implemented. As well, as the scope of the tribunal's jurisdiction is so narrow, there is no apparent route by which the substance of an agreement can be challenged. As there is no method by which the public is ensured participation at a hearing, we will need to rely on the bureaucracy charged with the enforcement of the AODA. We must acknowledge that it is quite possible that the bureaucracy charged with enforcing the AODA several years from now may be underfunded, in need of quick settlements, and/or not be committed to the implementation of the AODA in a wholehearted manner. It is incumbent upon the present government to anticipate and protect against these dangers. We recommend, at the very minimum, that the appeal process be available to a person or organization that is affected by an order, and not only to a person or organization that is the subject of an order. We also recommend that Bill 118 provide a mechanism to ensure that the public can effectively participate in the adjudicative process regarding substantive issues concerning the AODA. Oral hearings 27. (3) The Tribunal shall hold a written hearing with respect to an appeal under subsection (1) unless a party satisfies the Tribunal that there is good reason to hear oral submissions. Once again, the appeal scheme seems to forget that this is a public interest statute, designed to correct a long-standing history of exclusion and discrimination. The orders are not private matters between the government and the offending persons or organization. Rather, they are mechanisms to ensure compliance with an important anti- discrimination statute. In our view the adjudicative scheme discourages public participation and makes the enforcement of the AODA a private, rather than a public enterprise. While there may be occasions when written hearings are appropriate, these should be the exception. It is much harder for the public and the press to follow and comment upon what is occurring at the tribunal if hearings are in writing. We recommend that the hearings should be oral, and open to the public, unless a party convinces the tribunal that there is good reason to have a hearing in writing. Parties to a hearing 27. (5) The parties to an appeal to the Tribunal are, (a) the person or organization that made the appeal (b) the director who made the order; and (c) any other person or organization that the Tribunal considers necessary for the proper conduct of the hearing. (a) We have commented upon the limitation of section 27(5)(a) in our consideration of section 27(1) above. (b) Directors With respect to section 27(5)(b) we note that section 30(4) allows a director to delegate, by written authorization, any power or duty to another person and subsection 30(5) permits a director to authorize an inspector to make orders. We recommend that the language be clarified to state that an order by a non- director delegate may also be appealed, and to specify who is the necessary party in such an appeal. (c) Limited intervention potential With respect to section 27(5)(c) we point out that the words "necessary for the proper conduct of the hearing" are quite narrow. They may be interpreted to mean merely anyone whose presence is essential to permit the issues to be considered. They do not echo the concept of interventions. This means that people who want to bring forward issues of concern to the public interest will be unlikely to be granted party status. Persons with disabilities or disability organizations wishing to bring a disability perspective to the adjudication will have a difficult time convincing a tribunal that they should be made parties to the hearing. We believe that the participation of intervenors would make a significant contribution to the most successful implementation of the AODA. We recommend that the section provide for the participation of intervenors when the Tribunal considers that their perspective will assist its determination of the issues. Mediation 28. With the consent of the parties, the Tribunal may attempt to effect a settlement of all or part of matters that are the subject of an appeal by mediation. This provision is problematic as it is not clear how the public interest will be protected in the mediation exercise. Consider this simple example: the order is appealed by a large private sector corporation that failed to comply with an accessibility standard that has been made into a regulation. The tribunal designated to hear the appeals under that standard has a very aggressive approach to mediation and is used to mediating matters between private litigants, and is not familiar with the public interest. At this mediation there are only the director who made the order and the company. Is the director charged with supporting the public interest? Is the tribunal? Who will ensure that the company is not granted a mediated settlement that is less than its regulatory obligation? We recommend that the mediation provision be expanded. It should establish a duty on both the Tribunal and the director to ensure that the mediation does not result in a solution that provides less benefit to the public than the accessibility standard or agreement under which the order was made. Accessibility Standards Advisory Council - Direction of the Minister 31. (4) At the direction of the Minister, the Council shall advise the Minister on, (a) the process for the development of accessibility standards and the progress made by standards development committees in the development of proposed accessibility standards and in achieving the purposes of this Act; (b) accessibility reports prepared under this Act; (c) programs of public information related to this Act; and (d) all other matters related to the subject-matter of this Act that the Minister directs. In our view, the council should be able to design its own initiatives and projects, with established parameters. It should be able to act independently of Ministerial direction. ARCH recommends that the words "At the direction of the Minister" be removed from this provision. Minister's delegation of powers 34. The Minister may delegate any of his or her powers under this Act to a director, whether or not the director is an employee of the Ministry, or to such employees of the Ministry as may be named in the delegation. This is a very broad delegation power that implies that any of the Minister's duties could be carried out by someone who is not a public servant, by contract. It is a broad provision, not without some danger, in our view. We are not clear as to the reasons why the government would be anticipating contracting out such key public interest functions. We recommend that this section be modified to indicate in what circumstances such duties could be delegated to someone who is not a public servant. Disclosure of Personal Information 36. (1) Any person exercising any power or carrying out any duties related to the administration or enforcement of this Act and the regulations may disclose information, including personal information, in order to exercise those powers or carry out those duties as may be required in connection with the administration of this Act and the regulations. (2) In subsection (1), "personal information" means personal information as defined in subsection 2 (1) of the Freedom of Information and Protection of Privacy Act. Section 36 of the AODA is a broad disclosure of information provision in the context of exercising powers and carrying out duties relating to the administration or enforcement of the AODA. The section allows for the disclosure of "personal information" as defined in the Freedom of Information and Protection of Privacy Act. Such information includes very private information about identifiable individuals such as that relating to the medical, psychiatric, psychological, criminal or employment history of the individual. There is no apparent justification for disclosure of such information. This is a statute that deals with systemic issues and barrier removal. It does not depend upon the personal situation of individuals in any particular context. This section is particularly shocking and egregious in view of the purpose of the AODA as legislation which purports to protect, not compromise, the rights of persons with disabilities. In view of the large volume of highly intimate personal and health information created, collected and held for persons with disabilities, the risk of such disclosure without clear justification and limitation is unacceptable. We recommend that section 36 be deleted from Bill 118 barring a very clear indication of a compelling purpose for the section and proof that no other means exist to achieve the ends intended. If the section is not deleted, very strong protections must be included to protect the privacy of persons with disabilities. Such a section must be carefully crafted to ensure it takes account of current legislation which already covers protection of personal information, such as the Personal Health Information Protection Act, 2004. Conflict of laws 39. 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. This is a strong provision that clarifies that the AODA will not diminish any rights that currently exist and that the best provision for accessibility set out in a statute or regulation is to be honoured. SERVICE ANIMALS A significant omission from the AODA is coverage of service animals. ARCH regularly hears from individuals with disabilities who are denied services or otherwise discriminated against because of their use of a service animal. There is no adequate legal protection or remedy in Ontario for such situations. The AODA is the appropriate legal instrument to ensure that Ontario is fully accessible to persons with disabilities who use service animals. Coverage of service animals in the AODA must take into account current relevant Ontario laws such as the Blind Persons' Rights Act and the coverage of service animals in Ontario's Human Rights Code. ARCH notes that service animals include not only "guide dogs" for persons who are blind, but many other animals as well who perform tasks and provide assistance to a person with a disability. Service animals assist persons who have a range of disabilities including hearing impairments, mobility impairments and psychiatric disabilities. We recommend that Bill 118 provide for removal of all barriers with respect to service animals. We understand that working out these details will take some time, and that the enactment of the AODA should not be delayed for that purpose. We suggest that the provisions be added to the AODA within one year. CONCLUSION We repeat our initial statement that these are our preliminary views regarding this ambitious and significant legislation. We look forward to receiving any comments you may have. ARCH ALERT is published by ARCH: A Legal Resource Centre for Persons with Disabilities. It is distributed free via e-mail, fax, or mail to ARCH member groups, community legal clinics, and others with an interest in disability issues. ARCH is a non-profit community legal clinic, which defends and promotes the equality rights of persons with disabilities through litigation, law/policy reform and legal education. ARCH is governed by a Board of Directors elected by representatives of member groups reflecting the disability community. The goal of ARCH ALERT is to provide concise information, so that people are aware of important developments and resources. Articles may be copied or reprinted to share with others provided that they are reproduced in their entirety and that the appropriate credit is given. We encourage those who receive it to assist with distribution of information in this way. We do ask that both Word and Text Formats are distributed to ensure accessibility. Charitable Reg. #118777994RR01. Editor: Heidi Lazar-Meyn & Resource Centre Co-ordinator; Lishanthi Caldera Production & Circulation: Theresa Sciberras We welcome your comments and questions, as well as submissions. We will endeavour to include all information of general interest to the community of persons with disabilities and their organizations, but reserve the right to edit or reject material if necessary. We will advise you if your submission is to be edited or rejected. Please assist us in your submissions by being brief and factual. Please address communications regarding ARCH ALERT to: Theresa Sciberras, Administrative Assistant, ARCH: A Legal Resource Centre for Persons with Disabilities, 425 Bloor St. E., Suite 110, Toronto, Ontario, M4W 3R5, fax: 416-482-2981, TTY: 416-482-1254, e-mail: scibert@lao.on.ca Website: www.archlegalclinic.ca