Written Submission of ARCH Disability Law Centre PROPOSED AMENDMENTS TO THE CUSTOMER SERVICE STANDARD May 22, 2014 Dianne Wintermute ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, Ontario, M4W 3R4 (416) 482-8255 or 1-866-482-2724 (Voice) (416) 482-1254 or 1-866-482-2728 (TTY) (416) 482-2981 or 1-866-881-2723 (Fax) www.archdisabilitylaw.ca wintermd@lao.on.ca INTRODUCTION ARCH Disability Law Centre is an Ontario-based charitable community legal clinic that is dedicated to defending and advancing the equality rights of people with disabilities. ARCH is governed by a volunteer board of directors, a majority of whom are people with disabilities. We provide a telephone summary advice and referral service to Ontarians with disabilities and represent individuals as well as provincial and national disability organizations in test case litigation at all levels of tribunals and courts, including the Supreme Court of Canada. We provide education to people with disabilities on disability rights, and to the legal profession about disability law. We make submissions on matters of policy and law reform. ARCH maintains a web site on disability law at: www.archdisabilitylaw.ca. ARCH welcomes the opportunity to participate in a consultation on the proposed amendments to the Customer Service Standard (CSS) under the Accessibility for Ontarians with Disabilities Act (AODA). The most serious raised by the proposed amendments is the class structure based on the number of employees. If it is adopted, the Customer Service Standard, one of the most important standards for people with disabilities, will essentially become meaningless in its application to the day to day lives of people with disabilities. Our overarching theme in this submission will be that none of the proposed amendments can detract from the requirement that there be no discrimination on the basis of disability under the Ontario Human Rights? Code (Code). The Code is the pre-eminent legislation in Ontario, and everyone has the right to equal treatment with respect to services, goods and facilities, without discrimination because of disability. It is important to recognize that following the requirements under the CSS may still not meet the more demanding obligation to not discriminate and to provide individual and appropriate accommodations to the point of undue hardship under the Code. Proposed Amendments 1. Class structure of organizations based on number of employees; 2. Policies, practices and procedures; 3. Services animals; 4. Support Persons; 5. Training; 6. Feedback process; 7. Notice of availability and format of documents. ARCH?s recommendations in each of these categories are set out below, and will also be attached as Appendix A of this submission. 1. Class structure of organizations based on the number of employees The Accessibility Standards Advisory Council (ASAC) has proposed that a number of the requirements under the Customer Service Standard (CSS) apply only to those private and not-for-profit organizations or services that employ 50 or more employees. At present, the CSS requirements apply to services and organizations that employ 20 or more employees. The proposed change would substantially increase the number of organizations and services exempt from full compliance with the CSS. This will have a significant impact on many of the other obligations under the CSS. If this proposed amendment is adopted, Ontario?s commitment to full accessibility, independence and participation for persons with disabilities will be seriously undermined. Currently, all organizations or services covered by the CSS are required to develop accessibility policies; give customers notice of disruptions in service; train their employees on their obligations under the CSS; establish a complaints or feedback process; and file a compliance report stating that they have met their requirements under the CSS. However, organizations with more than 20 employees are also required to: a) prepare a written copy of their customer service plan; and b) make that plan available to the public on request. Requiring organizations and services with 20 or more employees to prepare written policies and plans, and make those written policies available to the public upon request, was an important policy decision made when the CSS was introduced in January of 2008. One of the reasons for this was that approximately 95% of Ontario organizations and services have fewer than 50 employees (See Statistics Canada, Business Register data). Organizations and services with fewer than 50 employees represent the vast majority of organizations and services that people with disabilities interact with on a daily basis. If the proposed amendment is adopted, it would mean that the vast majority of organizations would have no written policies to make available to the public upon request. ASAC has said that the proposed change will bring the CSS into line with definitions under the Integrated Standards. However, there are considerable policy reasons for treating the CSS differently, that outweigh the impact of standardizing definitions across different AODA standards. The preparation and distribution of a customer service plan is a positive step that encourages services and organizations to review and consider their accessibility obligations under the CSS. Meeting accessibility requirements can serve as a starting point for conversations, as customers have an opportunity to review and comment on a policy or plan. This helps a service or organization recognize what is working well or become aware of ways to improve accessibility to persons with disabilities. It is also a critical education or training tool, as preparing the written reports and policies encourages people to carefully consider accessibility and how barriers affect a person with a disability. If there are no written policies that people with disabilities can request, how can one determine whether necessary policies have been designed and implemented? This could lead to inconsistencies within individual organizations or services with 20 - 49 employees. It could lead to different policies applying to different people on a case by case basis, with no way of knowing this, because there is no requirement that anything be in writing that applies across the board. Increasing the number of employees to 50 from 20 and only requiring the larger groups to provide written policies seriously undermines the purpose and intent of creating policies under the CSS. This is particularly evident when the fact that 95% of the organizations and services that people with disabilities use on a daily basis will be exempt from providing written policies or providing them to customers upon request. While all organizations will still have to file compliance reports, if the recommended class structure amendments are adopted, the usefulness of these reports will be of little practical value because the majority of organizations and services will have very few requirements to comply with. It would become difficult to prove whether any organization had actually complied or not. In ARCH?s 2010 written submissions to Mr. Charles Beer, we strongly advocated for a harmonization strategy (see www.archdisabilitylaw.ca Publications). However the intent of a harmonization strategy was not to reduce obligations for a more accessible Ontario. The vision was that Ontario would increase its assurances of an accessible province to people with disabilities in all areas covered by the standards. In fact, it may be appropriate to change the class definitions in the Integrated Standards to harmonize them with the CSS. This will promote enhanced accessibility in all areas that affect a persons with a disability. Considering the proposed class structure amendment in a broader context raises additional concerns. While all organizations are required to file compliance reports, as of November 2013, approximately 70% of Ontario?s private sector organizations had failed to do so. This suggests that the majority of organizations and services may not be complying with their current obligations under the CSS. Since compliance reports have not been filed, there is no way to determine whether there are written policies available for distribution upon request. Raising the bar to exempt organizations and services with under 50 employees, instead of vigorously investigating and pursuing those organizations that are not complying with their present obligations might be seen as an unwillingness to enforce accessibility obligations under the CSS. It could be interpreted as a way to eliminate present obligations rather than enforce them. This sends a troubling message, one that undermines the effectiveness of the CSS for persons with disabilities by potentially increasing accessibility barriers, not reducing them. It should also be noted that the Code would apply to discrimination with respect to services, goods or facilities regardless of the number of employees defined in the CSS. Recommendation 1(a): That the current definition of class structure under the CSS be maintained. Recommendation 1(b): That the obligation of the organizations and services to file compliance reports be enforced. Recommendation 1(c): Consider lowering the class definitions under other Standards to harmonize them with the CSS. 2. Policies, Practices and Procedures ASAC recommends that references to ?policies, practices and procedures? in the CSS be changed to match the term ?policies? used in the Integrated Accessibility Standard. The concern is that the language used in the current CSS is much broader than that used in the Integrated Standards. If this amendment is meant to reduce any obligations for organizations or services under the CSS, we would oppose any change to the current language. In fact, the broader language in the present CSS be should proposed and adopted when there is a review of the Integrated Standards. However, if the class structure is amended, and if 95% of organizations and services in Ontario are not required to put their polices, practices and procedures in writing or do not have to make their policies, practices and procedures available to the public, the overall effectiveness of the CSS will be greatly reduced. Only 5% of those organizations and services used by persons with disabilities will have to prepare and distribute written policies, practices and procedures. The ability of organizations and services to avoid their obligations under the CSS will be greatly increased. Recommendation 2(a): If the proposed change in language has the impact or effect of reducing the obligations of organizations and services covered by the current CSS, this amendment should be withdrawn. Recommendation 2(b): Consideration should be given to adopting ?policies, practices and procedures? in the Integrated Standards. 3. Services Animals ASAC proposes that the definition of ?service animal? be amended to include that the animal be trained to provide assistance to a person with a disability in a way that relates to the specific disability or that the person provide a letter from a regulated health professional confirming that the person requires the animal for reasons relating to disability. The expansion of the list of people who can provide a letter about the need for a service animal is a positive and welcomed amendment. However, the proposed amendment to the definition of service animal to include the requirement that they be trained in relation to a person?s disability will have negative consequences for many people with disabilities. Disabilities can be visible, invisible, episodic or recurrent. People with disabilities may have an animal for a variety of different reasons: to soothe or calm; for therapeutic purposes; for disability-related purposes. Whatever the reason for the animal, they are typically part of someone?s activities of daily living, even if only occasionally. The fact that the person with a disability can provide a letter from a regulated health professional that addresses the need for a service animal should be sufficient evidence without the additional requirement for disability specific training. In addition, under the current definition, the animal must be ?readily identifiable? as a service animal. That requirement, or the alternative requirement for a letter, should be sufficient for a person with a disability to have a service animal without the requirement that it be trained. However, again it must be noted that this provision will only apply to 5% of organizations and services under the CSS if the class structure amendment is adopted. There will be inconsistencies in definition of service animals; decisions could based on the type of animal; and ad hoc decision-making on a case by case basis are real possibilities if the class structure is raised to only include those organizations and services with more than 50 employees. It is significant that the Ontario Human Rights Code has been interpreted as not requiring training for a service animal. In Allarie v. Rouble, 2010HRTO 61, the Human Rights Tribunal of Ontario held that there is nothing in the Code that would limit the definition of service animal to one that is trained or certified by a recognized disability organization. To require training of service animals may violate the Human Rights Code. Recommendation 3: There should be no training requirement for service animals 4. Support People Currently, a support person can be required to accompany a person with a disability to protect their health and safety or that of others. ASAC proposes to include consultation with the person with the disability in this decision making process. The proposed amendment also states that any considerations on protecting health and safety must be based on specific evidence and not on assumptions. These are improvements to the current requirements in the CSS. However the organization or service appears to be able to unilaterally make the final decision. Both the current language and the proposed amendment have significant impact on the independence of persons with disabilities. A consultation with persons with disabilities must be given significant weight in the final decision-making. People with disabilities know best what they can do, or what they might need accommodation to do. People with disabilities can gage what constitutes a health and safety risk for themselves or for others given their lived experience. A consultation including people with disabilities about the need for a support person is meaningless unless it has a significant impact or import on the decision to be made. In addition, the ASAC should identify what constitutes a health and safety risk in more detail. Curtailing the independence of a person with a disability is serious, and there should be more details available for public discussion before adopting any provision that would permit an organization or service to make a determination about health and safety that will limit the independence, autonomy and full participation of a person with a disability. Different organizations and services could interpret health and safety in different ways. Consistency in the definition of health and safety is preferable to leaving the definition open to interpretation. Requiring the use of a support person should be limited to those instances where there is clear and defensible evidence of a risk to health and safety. However, if the class structure amendment is adopted, only organizations and services with more than 50 employees would have to have a written policy available to the public about the requirement for support people to permit entrance to or use of services. This will not serve the interests of persons with disabilities or help eliminate barriers to access. It will significantly reduce the independence, community and social participation and autonomy of persons with disabilities. Recommendation 4(a): Consultation with people with disabilities about the need for a support person must be given significant weight in any decision-making about requiring their attendance. Recommendation 4(b): Requiring a support person to attend a person with a disabilities should be limited to situations where there is clear and defensible evidence of a heath and safety risk, at least until there is a uniform definition of ?health and safety?. 5. Training ASAC proposes to broaden the list of people who require training under the CSS. We applaud this amendment. However, as noted earlier, any organization or service that discriminates against a person with a disability with respect to services, goods or facilities may violate the Ontario Human Rights Code. The CSS standards and obligations are not as stringent Code requirements. It is therefore essential that organizations, services and their employees understand their obligations under the CSS (which are set out under Regulation 429/07 under the Accessibility for Ontarians with Disabilities Act). However, they must also understand that compliance with the CSS does not necessarily meet the standard for discrimination under the Code. There should be a requirement that people be trained on their Code obligations as well as their CSS ones. The importance of education under the CSS, the AODA and the Code also extends to the public in order to facilitate Ontarians? awareness of their private and public sector obligations more broadly. There is a significant lack of awareness about the CSS (and the AODA) and how they interact with the Code among members of the general public. This inhibits the utility and strength of the AODA, its Standards and the Code as tools for meaningful change. The lack of education and awareness about accessibility issues and obligations has wide-sweeping ramifications. Promoting public education and awareness about the interplay among the AODA, its Standards and the Code is vital to ensuring that the obligations they establish are widely broadcasted and enforced. Public education and awareness-raising is also essential to achieving a transformative cultural shift and ending attitudinal and other barriers that continue to pose obstacles to accessibility for people with disabilities. However, if the requirements for a written policy on training and record keeping of whether training has been done do not apply to 95% of the organizations and services in Ontario, will there be an appetite for public awareness campaigns and training? If only 5% of organizations and services under the CSS are expected to lead by example, how effective will broader public education be? Code violations do not have to be the result of intentional discrimination. The fact that someone may not know they cannot discriminate on the basis of disability, or have a duty to accommodate to the point of undue hardship is no defense. It is critical that Ontarians are made aware of accessibility requirements and about discrimination and obligations more generally. As previously noted, compliance with the CSS does not necessarily mean that some has complied with the Code. Recommendation 5(a): All CSS training should include training about the Code, and its obligations and requirements (for example, make taking Human Rights 101 a requirement for all employees). Recommendation 5(b): There should also be provisions for government-funded public education campaigns, to promote awareness of accessibility issues, discrimination and the accompanying duty to accommodate to the point of undue hardship and their importance to an inclusive Ontario. 6. Feedback process The proposed amendments are improvements to current language in the CSS. The proposed amendment incorporates the language in the Information and Communications Standard which states that obligated organizations must ensure that their feedback process is accessible to persons with disabilities by providing or arranging accessible formats and communication supports upon request. People with disabilities can now provide feedback in a wider variety of ways, including the provision of communication supports. The current language of the CSS limits feedback through specified communication channels like in person, by telephone or in writing. The amendment reinforces accessibility and accommodation in the provision of feedback to organizations and services. However, if the class structure is changed, then these positive steps are hollow. In addition, how the feedback is dealt with, in order to ensure that necessary changes are made, is still unclear. There is no requirement that any feedback will be reviewed by key decision-makers within an organization or service or that the feedback will be acted upon. Moreover, s. 26 of the AODA states that the Lieutenant Governor in Council will designate one or more tribunals within a reasonable time after the first accessibility standard is established. The Customer Service Standard came into force and effect on January 2008. No tribunal has been established to date. The impact of this is that people with disabilities have no forum in which they can directly discuss issues arising under the AODA. The establishment of a tribunal to hear issues arising under the AODA is critical, since the Human Rights Tribunal of Ontario has specifically said that it does not enforce the AODA (see for example, Bishop v. Hamilton Entertainment and Convention Facilities Inc. 2012 HRTO 708 (Canlii)). Recommendation 6(a): That the broader process for providing feedback in accessible formats be adopted. Recommendation 6(b): That a provision for feedback to go to key decision-makers within an organization or service, and be acted on as appropriate. Notice of action, or inaction, must be given to the person providing the feedback. 7. Notice of availability and format of documents The proposed amendment would mirror the provision contained in the Integrated Accessibility Standard Regulation. We endorse this change, although we note that the Integrated Standards already apply. However, if the class structure under the CSS is raised to apply to organizations and Services employing 50 or more persons, this amendment would have no real impact on persons with disabilities. CONCLUSION The proposed amendments and their efficacy hinge on whether the class structure is raised from 20 or more to 50 or more employees. We oppose this amendment and ask that our submissions on other amendments be considered. Thank you for the opportunity to provide these submissions. Should you have any questions, or would like to discuss our submission, please contact ARCH at 416-482-8255. Appendix A Recommendation 1(a): That the current definition of class structure under the CSS be maintained . Recommendation 1(b): That the obligation of the organizations and services to file compliance reports be enforced. Recommendation 1(c): Consider lowering the class definitions under other Standards to harmonize them with the CSS. Recommendation 2(a): If the proposed change in language has the impact or effect of reducing the obligations of organizations and services covered by the current CSS, this amendment should be withdrawn. Recommendation 2(b): Consideration should be given to adopting ?policies, practices and procedures? in the Integrated Standards. Recommendation 3: There should be no training requirement for service animals. Recommendation 4(a): Consultation with people with disabilities about the need for a support person must be given significant weight in any decision-making about requiring their attendance. Recommendation 4(b): Requiring a support person to attend a person with a disabilities should be limited to situations where there is clear and defensible evidence of a heath and safety risk, at least until there is a uniform definition of ?health and safety?. Recommendation 5(a): All CSS training should include training about the Code, and its obligations and requirements (for example, make taking Human Rights 101 a requirement for all employees). Recommendation 5(b): There should also be provisions for government-funded public education campaigns, to promote awareness of accessibility issues, discrimination and the accompanying duty to accommodate to the point of undue hardship and their importance to an inclusive Ontario. Recommendation 6(a): That the broader process for providing feedback in accessible formats be adopted. Recommendation 6(b): That a provision for feedback to go to key decision-makers within an organization or service, and be acted on as appropriate. Notice of action, or inaction, must be given to the person providing the feedback. 11