Accessibility creates opportunity

Preventing and removing barriers for Ontarians with multiple sclerosis

Accompanying letter to the Minister

The Honorable Isabel Bassett
Minister of Citizenship, Culture and Recreation
77 Bloor Street West, 6th Floor
Toronto, Ontario
M7A 2R9

Dear Minister Bassett:

The Multiple Sclerosis Society, Ontario Division, is pleased to provide input into the process which we hope will lead to an Ontarians with Disabilities Act.

Although progress has been made during the past three years to improve access, people with multiple sclerosis (MS) in Ontario continue to face an overwhelming array of recurring barriers to employment, facilities and transportation. Surveys conducted by the MS Society in Ontario indicate that 68 percent of working-age people with MS are not employed. Although some of these individuals cannot work due to disability, the statistics represent an enormous amount of untapped skills, revenue and creativity.

This highlights the fact that legislating the inclusion of people with disabilities in society should be done not only because it is the right thing to do morally, but because it makes good economic sense to use resources to help people participate in the community rather than use those resources exclusively to help people stay at home. “Accessible creates opportunity” is not just the title of our submission to you, but our entire underlying philosophy.

People with MS want to be able to assume the full rights of citizenship. They want the right to contribute to the community. They want the opportunity to be part of the community. They want provincial leadership on the development of an Ontarians with Disabilities Act that provides the environment where that is possible.

Preventing and Removing Barriers for Ontarians with Disabilities is an important step toward developing a new law that could make Ontario a model society for people with disabilities. We welcome this opportunity to provide our comments on behalf of an estimated 12,000 people in Ontario who have MS.

Sincerely,

John G. Doherty
President

Executive Summary

• People with MS want to be able to assume the full rights of citizenship. They want the right to contribute to their community. They want the opportunity to be part of the community. They want provincial leadership on the development of an Ontarians with Disabilities Act that provides the environment where that is possible.
  
  
• The goal of the Ontarians with Disabilities Act should be to ensure that every person with a disability in Ontario has the equal opportunity to participate fully in the life of the province.
  
  
• Priority should be given to developing minimum, province-wide standards for accessibility in key areas, such as transportation, employment, and the provision of goods, services and facilities to the public.
  
  
• A totally new agency should be created to enforce the Act. If a new enforcement agency is not established, a separate unit should be created within the Ontario Human Rights Commission to deal with disability complaints and to enforce the Act. A commissioner should be given responsibility for administering the Act and he or she should report through a Minister to the legislature. An independent tribunal or board could be established under this approach.
  
  
• The Ontarians with Disabilities Act should include a broad definition of disability to ensure that it benefits as many people as possible.
  
  
• The requirements under the Ontarians with Disabilities Act should supercede all other legislation.
  
  
• Changes to funding structures and decisions about who pays for certain services should not change the basic principle that barriers that prevent the full and equal participation of people with disabilities must be removed.
  
  
• The cost of total benefits lost through a voluntary approach to the problem of unemployment of people with disabilities will be substantial. In the US, for example, conservative estimates of the ratio of benefits to costs for similar employment requirements in that country ranged from 8 to 1 to 35 to 1.
  
  
• By investing in access to employment and transportation by people with disabilities, the government stands to gain doubly: one, because people no longer have to rely on financial assistance and are attaining social and economic independence and two, they are also paying taxes and broadening the tax base.
  
  
• In addition to ensuring that reasonable time-lines are established for the development and implementation of regulatory requirements, a number of incentives should be introduced into the Ontarians with Disabilities Act framework to encourage and facilitate compliance.
  
  
• Given that several tax incentives already exist to assist employers with the cost of accommodating employees with disabilities and that some large sectors do not pay tax, it may be beneficial to consider implementing a direct subsidy regime, particularly for small and new companies.
  
  
• Once an Ontarians with Disabilities Act is in place, there will need to be a combination of remedies and sanctions to ensure that non-compliance with the legislative requirements will be addressed and that specific violations will be subject to appropriate penalties.
  
  
• The aim of enforcement actions should be to make sure that entities meet their obligations, not impose sanctions for their own sake. Priority should be given to failures to comply with basic requirements rather than on isolated operational errors.
  
  
• Effective training partnerships will be essential in ensuring accessibility-related equipment and accommodations required by the ODA actually result in the delivery of accessible goods and services.

Introduction

The Multiple Sclerosis Society of Canada, Ontario Division, is pleased to have this opportunity for input into the development of an Ontarians with Disabilities Act. The MS Society is confident that our submission will contribute to a greater understanding of the barriers people with multiple sclerosis (MS) face in their daily lives.

Founded in 1962, the MS Society of Canada, Ontario Division, is the only voluntary organization in Ontario that supports both MS research and services for people with MS and their families. The mission of the MS Society of Canada is to be a leader in finding a cure for multiple sclerosis and enabling people affected by MS to enhance their quality of life.

Multiple sclerosis (MS) is a chronic, progressive disease of the central nervous system which affects an estimated 12,000 people in Ontario. The causes of MS are unknown, but research indicates that some combination of genetic and environmental factors is responsible. There is no known cure, nor is there a treatment that offers adequate symptomatic relief. Only now are treatments available that appear to slow down or alter the course of the disease offering new hope to people with MS. The nature of MS is highly variable, and the disease course is unpredictable, commonly characterized by exacerbations and remissions, and an unknown rate of progression.

One of the greatest obstacles to the level of independence achieved by a person with MS is the extent to which barriers prevent his or her full and active participation in society. Surveys conducted by the MS Society and other organizations concerned about the rights of people with disabilities reveal an overwhelming array of recurring impediments. The lack of accessible work places, for example, have contributed to an unemployment rate among people with MS of nearly twenty percent. In addition, the MS Society has heard from mothers with MS who cannot attend their children’s school functions because of inaccessibility. Others have contacted the Society to ask for support in making the local cinema, grocery store and doctor’s office physically accessible to them.

People with MS want to be able to assume the full rights of citizenship. They want the right to contribute to their community. They want the opportunity to be part of the community. They want provincial leadership on the development of an Ontarians with Disabilities Act that provides the environment where that is possible.

Legislating the inclusion of people with disabilities in society should be done not only because it is the right thing to do morally. It should be done because it makes good economic sense. Ontario should use its resources to help people participate fully in the community rather than use those resources exclusively to help people stay at home.

The intent of this submission is to provide input on the framework for an Ontarians with Disabilities Act, respond to questions posed in the discussion paper Preventing and Removing Barriers for Ontarians with Disabilities, and identify how the legislation could create opportunities for people with MS. This document is organized based on the questions in the discussion paper.

Priorities for preventing and removing barriers

The MS Society accepts the view that it will take time to remove barriers. We believe a realistic and systematic approach to barrier prevention and removal can be found. Barriers that are easy to remove and relatively inexpensive can be removed quickly. Others will take more time.

It will be necessary to set priorities to reach objectives within certain time-lines. In terms of preventing and removing barriers, priority should be given to developing minimum, province-wide standards for accessibility in key areas, such as transportation, employment, education, health care and housing.

The MS Society recognizes the fact that the legislation can apply only to areas within provincial jurisdiction. However, as the discussion paper points out, everyone must be involved in barrier removal and prevention. This must include municipalities. They are clearly within the jurisdiction of the provincial government. They exist solely on the basis of legislation passed by the Ontario legislature. Changes to funding structures and decisions about who pays for certain services should not hinder barrier removal.

The minimum province-wide standards for accessibility in key areas should be regulated and should act as benchmarks for the accessibility of people with disabilities to goods, services and facilities. Reasonable time-lines should be established outlining how the new standards are to be developed and phased-in. An effective enforcement and dispute resolution process also must be put in place to monitor compliance and to respond to complaints and violations.

Parameters for a new Ontarians with Disabilities Act

The Ontarians with Disabilities Act should include a statement outlining the goal of the legislation -- to ensure that every person with a disability in Ontario has the equal opportunity to participate in the life of the province. This sets the tone for the legislation and provides a standard against which progress can be measured.

The Ontarians with Disabilities Act should include a broad definition of disability to ensure that it benefits as many people as possible. The MS Society supports the definition included in the Americans with Disabilities Act which states that disability means a permanent or temporary physical or mental impairment that substantially limits one or more of the activities of daily living. This would include people with cyclical or recurrent disabilities such as multiple sclerosis.

The Ontarians with Disabilities Act should include a provision which explicitly states that it supercedes all other legislation, regulations or policies which either conflict with it, or provide lessor protections and entitlements to persons with disabilities.

The legislation should include activities of the public sector including the Ontario government, broader public sector including local and municipal governments, and the private sector.

The Ontarians with Disabilities Act should include a process and time-lines for developing regulations to be applied to certain key areas under provincial jurisdiction, such as: transportation, employment, health care, entertainment, technology, communications, commercial housing, public accommodations, and municipal and provincial governments. The regulations should be developed in consultation with people who have disabilities.

The Ontarians with Disabilities Act should include effective compliance and enforcement provisions. The ODA could contain several stages of enforcement including: self-enforcement; regulations in key areas or sectors; and, remedies where there are repeated compliance failures. The Act also should establish a means of evaluating compliance.

The legislation should include a process for the Ontario government, local and municipal governments, and the private sector to identify and remove barriers to people with disabilities. The Ontarians with Disabilities Act could establish, for example, obligations on the municipal and provincial governments to conduct accessibility audits of their offices to identify and remove barriers.

The legislation should include a “barrier review” clause consistent in principle with section 302 of the Americans with Disabilities Act and section 242k of the Ontario Insurance Act. This would create a mechanism to re-examine the effectiveness of existing regulations and ensure that they conform to modern technology standards.

Regulatory requirements to be included under the Act

To ensure that every person with a disability in Ontario has the equal opportunity to participate in the life of the province, the Ontarians with Disabilities Act should regulate specific standards and enforcement procedures in several areas. The MS Society offers suggestions for regulatory requirements in four areas of particular concern to people with MS, including: transportation; provision of goods, services and facilities by private entities; employment practices; and provision of goods, services and facilities by provincial and municipal governments.

Regulatory requirements governing transportation

Transportation is one of the most fundamental concerns of people with MS. Without accessible transportation, independent living, competitive employment and full participation in the life of their community is not possible.

Under the Canadian Charter of Rights and Freedoms, barriers that have the effect of denying people with disabilities access to transportation services are discriminatory. Some jurisdictions have demonstrated leadership in providing accessible transportation to people with disabilities, and others have not which has resulted in human rights complaints and litigation.

Litigation is a crude instrument with which to fashion a transportation policy, but it has not prevented people with MS in Ontario from resorting to it. A more effective approach would be to work co-operatively with disability groups to develop detailed regulations resolving many outstanding issues to the satisfaction of people with disabilities and the transportation sector.

The Americans with Disabilities Act provides a framework for resolving these types of issues (as well as others) in an orderly fashion. A similar framework could be adopted in Ontario. Regulations could be drafted covering transit facilities, acquisition of vehicles by public and private entities, and transportation services provided by the provincial and municipal governments, such as paratransit.

The regulations should contain accessibility requirements for both existing and new transit stations and terminals under provincial jurisdiction. This should include minimum accessibility standards for transportation facilities including: intercity and commuter rail stations; ticket purchase and collection areas; train or bus platforms; baggage checking and return areas; and employment areas.

In addition, the regulations should include a provision requiring that accessibility features be maintained in good working and that, when an accessibility feature is out of order, reasonable accommodation be provided to individuals with disabilities who would otherwise use it. For example, transit authorities should announce to rail system riders when an elevator at a given station is out of order and provide shuttle service from the nearest station while the elevator is being repaired.

The regulations should include minimum accessibility standards for all transit vehicles including: buses and vans; light and rapid rail vehicles; intercity rail passenger trains; commuter rail trains, and ferries as well as for vehicles operated by private entities covered by the legislation. The regulations, for example, should require a minimum number of wheelchair or scooter securement locations in each vehicle. It should be mandated that new public transit and rail vehicles be accessible to individuals with disabilities

Public entities operating fixed route systems should be required to provide paratransit as a complement to their fixed route service. The service should be intended for people who, as a result of their disabilities, cannot independently use accessible fixed route transit as well as individuals who have specific impairment-related conditions which prevent them from getting to a boarding or from a disembarking location. People with MS who have severe fatigue, visual difficulties or are temperature sensitive should be eligible for this service. Each entity should be required to identify a process for determining paratransit eligibility and an appeals structure.

The MS Society has heard from many individuals with MS who are frustrated that there is no standardized process for determining eligibility for paratransit service from municipality to municipality. One solution would be to issue individuals who meet certain eligibility criteria with an identification card specifying that the individual is “ODA paratransit eligible”. This would allow a person with a disability who travels to another jurisdiction to be eligible immediately for paratransit service.

In addition, our members have expressed concern about the lack of consistency in municipal parking programs for people with disabilities. Signage, time restrictions and the location/allocation of disabled parking spaces varies from municipality to municipality. The MS Society suggests that the model parking by-law and technical guidelines developed by the Ministry of Transportation in 1990 be implemented as the provincial standard, to address the lack of reciprocity between municipalities.

The regulations should permit reasonable phase-in periods for accessibility modifications. In some cases change can happen quickly. There is no cost, for example, to require public transit drivers to announce each stop. Other changes may take somewhat longer. Most modifications could be made within a three-year period. Extensions could be granted for extraordinarily expensive modifications such as the installation of elevators or changing the level of platforms. Transit operators should be required to submit compliance plans to the monitoring and enforcement body. This body could then respond to any problems or complaints that arise and can direct a rail operator to make changes in its efforts to comply with the ODA, if necessary.

The regulations should list the administrative enforcement mechanisms available to persons who believe that a covered entity has failed to comply with the legislation. The aim of the transportation provisions should be to ensure that the system, when viewed as a whole, becomes accessible and usable by persons with disabilities. In considering enforcement matters, the aim of the enforcement action should be to make sure entities meet their obligation, not to impose sanctions for their own sake. Priority should be placed on failures to comply with the basic requirements rather than isolated operational errors.

Regulatory requirements governing the provision of goods, services and facilities by private entities

Many people commonly but mistakenly believe that all buildings must now be accessible to people with disabilities because of the barrier-free provisions contained in the Ontario Building Code. The reality is that the Building Code only requires new buildings to be made accessible. Accessibility features in older buildings only are required if they are being renovated. The Code also has not be amended to accommodate modern mobility equipment such as scooters and wheeled walkers which are frequently used by people with MS. In addition, the Building Code barrier-free provisions are not enforced.

Barriers also are created in the manufacturing of goods and services for the public. The MS Society believes that goods, services and facilities could be made accessible to people with disabilities if private entities were required to consider the needs of people with disabilities as potential users.

The accessibility requirements in the Ontario Human Rights Code apply to goods and services provided to the public by private companies and individuals. However, there are a number of difficulties in relying on the Code to remove and prevent barriers. Individuals must file a complaint after discrimination has occurred. The complaints can take so many years to resolve that the case often becomes irrelevant to the complainant by the time a decision is reached. In addition, rulings often only deal with individual issues and situations and do not address systemic problems.

To deal effectively with barriers, private entities should be required to consider the needs of people with disabilities when providing goods, services and facilities to the public.

Accessibility requirements, for example, could be developed covering hotels, physician offices, restaurants, laundromats, bakeries, exhibits, entertainment facilities such as public cinemas; places of public gatherings; sales or rental establishments; service establishments such as highway service stations; places of public display or collection; places of education; social service centres; and, places of exercise or recreation such as a gyms and sports centres.

The regulations also should apply to warehouses, factories, office buildings and other buildings in which employment may occur. In addition, private entities that offer examinations or courses related to applications, licensing, certification or credentialing for secondary or postsecondary education, professional or trade purposes should be covered.

Regulatory requirements governing employment practices

The Ontario Human Rights Code prohibits employers from discriminating in employment decisions against qualified individuals with disabilities. This includes the requirement that employers make reasonable accommodation to a qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

Despite this requirement, the MS Society has been contacted by hundreds of people with MS who have been discriminated against in employment, primarily through a refusal of an employer to provide necessary accommodations. In many cases, the employee with MS is encouraged by the employer to apply for Canada Pension Plan or long-term disability benefits once initial symptoms of the disease are visible.

Unfortunately, it appears that some employers are willing to accept reduced productivity arising from the failure to accommodate a qualified employee and increased insurance costs arising from long-term disability claims because they prefer not to have people with MS in the workplace. Surveys conducted by the MS Society in Ontario, Manitoba and Atlantic Canada indicate that between 68 and 75 percent of working age people with MS are not employed. In Ontario, this represents an estimated 8,160 people.

The legal recourse for an employee with MS who is faced with discrimination in the workplace is to file a human rights complaint. While there have been cases of individuals with MS who have filed complaints and who have won their right to workplace accommodation, many do not file for fear of retribution. In addition, people investigating their rights are told that it could take several years for their complaint to be resolved. By the time the complaint is heard, the complainant may no longer be in the same job or with the same company. The backlog of cases at the Ontario Human Rights Commission has become a serious deterrent to those who might otherwise exercise their rights.

In our opinion, current requirements and enforcement measures under the Ontario Human Rights Code are ineffectual in guaranteeing the rights of people with MS to equal participation in the workforce. There are several different approaches that could be adopted to deal with the failure of employers and existing legislation to create equal opportunity for people with MS to participate in the workforce.

1. Introduce substantive regulations which impose different requirements on different segments of the regulated population. More extensive compliance requirements could be required of large employers such as the Ontario Public Service. This may not be a viable option as the regulation should represent a minimum compliance standard to be applied to all sectors.
   
   
2. A voluntary approach could continue to be used to promote the value of a diversified workforce. Voluntary measures may mean that an employer will be able to do as little as they want, or even nothing at all, to address workplace barriers, no matter how easy they are to fix. Discrimination in employment is the most frequent basis for complaints filed with the Ontario Human Rights Commission by people with disabilities. This fact reveals how pervasive the problem is in a world governed by voluntary measures.
   
   
3. Require employers to identify barriers in their workplaces and develop plans for their removal. This approach means that the legislation would not deal with barriers in the workplace any differently or with any less effectiveness than barriers in any other setting. Factors such as variations of effective dates of compliance based on workplace size and sector could be taken into consideration under this approach.
   
   
4. Introduce alternative methods of ensuring compliance such as public education measures and incentives. Traditionally, employers have viewed accommodations as negative costs. Incentives could make reasonable accommodations a benefit.
   
   
5. Introduce a combination of approaches.

Preventing and Removing Barriers for Ontarians with Disabilities states that only voluntary measures will be considered in the workplace. This approach may appear desirable to some because there is a perception that there are no costs associated with a “no-regulation” approach. The MS Society does not share this view.

The cost of accommodation is critical to determining the impact of compliance on the economy of Ontario. There is an increasing and abundant amount of literature indicating that accommodation expenses are normally quite low. The literature comes from a wide variety of sources. An official charged with implementing section 503 of the US Rehabilitation Act noted, for example, that “there really is not any great cost attached to making accommodations.” A major corporation reported that “the cost of most accommodations is nominal.”

Accommodation also has its benefits. By accommodating employees with disabilities employers can expect to increase their productivity. In the United States, it was estimated that the $50 million required to implement the employment provisions of the Rehabilitation Act of 1973 would yield $500 million in benefits. In addition, the social benefits of decreasing support payments and increasing tax revenues by expanding the employment of the disabled seems particularly important as provincial and local governments confront budget deficits.

Simply put, by investing in access to employment and transportation by people with disabilities the government stands to gain doubly: one, because people no longer have to rely on financial assistance and are attaining social and economic independence and two, they are also paying taxes and broadening the tax base.

The other major cost in projecting the regulatory impact of new employment provisions on the economy of Ontario is administrative costs. The main administrative costs for the implementation of employment regulations would be salaries for employees investigating charges of non-compliance. Other substantial administration costs, such as staff training and information systems modifications would primarily occur during the initial phase of implementation and would eventually decline.

Under a voluntary measures or “no regulation” approach there are no costs, therefore the analysis should focus on lost benefits, that is lost benefits if regulation is not promulgated. As discussed above, it is possible to treat the effects on the economy, except administrative costs borne by regulation, as benefits. This approach indicates that the cost of total benefits lost through a voluntary approach to the problem of unemployment of people with disabilities is substantial. In the United States, for example, conservative estimates of the ratio of benefits to costs for similar employment requirements in that country ranged from 8 to 1 to 35 to 1.

Irrespective of how the economic effects outlined above are labeled, the cost/benefit ratio of regulating employment requirements is clearly positive. The MS Society prefers that an approach involving a combination of regulations, incentives and subsidies be implemented to address the problem of unemployment among people with MS.

Regulatory requirements governing the provision of goods, services and facilities by the provincial and municipal governments

The legislation should require the Ontario government to implement additional measures to ensure that every person with a disability in Ontario has the equal opportunity to participate in the life of the province. Additional measures could include:

• A legislative committee on disability policy to advise other committees and the cabinet when legislative issues arise.
  
  
• An access board or similar body to develop province-wide, barrier-free guidelines in key areas such as transportation, architecture, communications and employment that are adopted as regulations and utilized in enforcement.
  
  
• An advisory body consisting of stakeholder groups (business, labour, community organizations, persons with disabilities) to monitor the implementation of the Act and develop and distribute public education materials.
  
  
• A review of provincial legislation and municipal by-laws to ensure they do not discriminate against people with disabilities.
  
  
• An accessibility audit of the provincial legislature and legislative and constituency offices of members of provincial parliament to ensure that the institutions that symbolize government are accessible to people with disabilities.
  
  
• Mandating certain agencies within the government with the task of administering certain sections of the ODA and ensuring compliance. Each provincial ministry, for example, could be required to develop and implement a barrier removal plan within a specified time.

Measures to support compliance with the legislation

Introducing alternative methods of ensuring compliance such as public education measures and incentives will be key to the success of the legislation. Experience with legislating barrier removal in other jurisdictions, such as in the United States of America and Sweden, demonstrates that to achieve meaningful and effective social change there must be incentives to encourage compliance with the legislation, and sanctions or remedies to address non-compliance and specific violations. These three components: incentives, sanctions, and enforcement must be administratively efficient, consistently applied and reflect the spirit of the legislation.

Incentives

In addition to ensuring that reasonable time-lines are established for the development and implementation of regulatory requirements, a number of incentives should be introduced into the Ontarians with Disabilities Act framework to encourage and facilitate compliance. The MS Society suggests that the following incentives could facilitate voluntary compliance with the legislation:

• Allow deduction of up to a certain amount per year for expenses associated with the removal of qualified architectural and transportation barriers. In the United States, the limit is $30,000 (US).
  
  
• Permit eligible small businesses to receive a tax credit for certain costs of compliance with the legislation. In the United States, eligible small businesses are ones whose gross receipts do not exceed $1,000,000 (US) or whose workforce does not consist of more than 30 full-time employees.
  
  
• The government could promote compliance through preferential contract awards similar to the contract compliance program in the United States. Compliance also could be used as a factor in determining eligibility for government grants or financial assistance.
  
  
• Allow qualifying businesses to claim a credit of up to 50 percent of eligible access expenditures that exceed a certain amount up to a annual maximum. In the United States, certain businesses are able to claim eligible expenses that exceed $250 (US) to a maximum of $10,250 (US). Examples of eligible expenditures include the necessary cost of removing barriers, providing auxiliary aids or services, and acquiring or modifying equipment and devices.
  
  
• Other incentives could be targeted at assisting employers with compliance. Such measures could include educational, technical and advisory services.

It is important to note that some sectors including the Ontario public service and broader public service (provincial, regional and municipal governments, hospitals, major non-profit health providers and major non-profit municipal and regional transit services) do not pay tax. Other measures will have to be implemented to encourage compliance in these sectors.

• Given that several tax incentives already exist to assist employers with the cost of accommodating employees with disabilities, it may be beneficial to consider implementing a direct subsidy regime, particularly for small and new companies that are not making a profit. This would provide employers, service providers and others in the non-profit sector with a place to apply to obtain comparable funding. It also would provide the government with an opportunity to monitor how and where the funds are used to address barriers and evaluate progress.
  
  
• Public recognition awards could acknowledge and recognize contributions made in the area of barrier prevention and removal. Publicizing innovative positive and supportive measures or other activities undertaken may be helpful in encouraging other employers to comply with the legislation or to try measures that have been proven to be successful.

Remedies

Once an Ontarians with Disabilities Act is in place there will need to be a combination of remedies and sanctions to ensure that non-compliance with the legislative requirements will be addressed and that specific violations will be subject to appropriate penalties.

Where there are instances of non-compliance, such as failing to implement barrier removal plans or meet reporting requirements, a range of enforcement measures could be applied by one or more enforcement bodies.

In initial cases of non-compliance, the enforcement body could work with the organization to achieve voluntary compliance, mediate and resolve disputes. Specific time-lines could be imposed for complaints, and sanctions could be imposed if those time-lines were not met.

In other instances, where there were substantial violations or repeated non-compliance, a compliance order could be issued specifying the steps required to be taken. Failure to comply with the order would incur sanctions. These sanctions could include fines or the imposition of mandatory remedies such as the implementation of training or sensitivity programs.

Experience in other jurisdictions has demonstrated that vigorous enforcement and prosecution of well-selected cases have an effect beyond the individual parties involved, and encourage other organizations to comply. However, the aim of the enforcement action should be to make sure that entities meet their obligations, not impose sanctions for their own sake. Priority should be given to failures to comply with basic requirements rather than on isolated operational errors.

Enforcement

The discussion paper states that enforcement and dispute resolution for the Ontarians with Disabilities Act will be the responsibility of the Ontario Human Rights Commission. The MS Society is concerned that this policy decision may limit the impact of the legislation. Even without this extra responsibility, individual complaints have been known to take many years to resolve which raises concerns about an added workload for enforcing ODA related complaints.

Ideally, there should be a single agency charged with the responsibility for enforcing the new legislation. We suggest that a separate unit be created within the Ontario Human Rights Commission to deal with disability complaints and to enforce the Act, if a totally new enforcement agency is not established. The role of the unit could include:

• Policy development and research
• Consultative, educational and technical services
• Compliance and enforcement functions including dispute resolution
• and mediate services to avoid litigation
• Advocacy and legal services
  

These roles could be phased-in, beginning with the policy development and research; followed by consultative, educational and technical services; and finally by compliance and enforcement functions. The enforcement body must be provided with adequate resources to carry out these important functions.

The enforcement body should have expertise in the area of barrier removal and prevention as it relates to people with disabilities. It also may be beneficial for the unit to develop effective linkages with government ministries and agencies whose mandates are to promote barrier prevention and removal or monitor matters related to the implementation of specific sections of the ODA.

A Commissioner should be given responsibility for administering the Act and he or she should report through a Minister to the legislature. There should be a requirement that the enforcement body report annually to the legislature on the progress made toward the goal of ensuring that every person with a disability in Ontario has the equal opportunity to participate in the life of the province. In addition, an independent tribunal or board could be established under this approach.

The tribunal or board could either be a standing tribunal with members appointed on a full or part-time basis for a certain number of years, or persons appointed from a panel of names on a rotating basis. The members of the tribunal should be representative of the regulated population. The tribunal could hear complaints filed by individuals as well as third parties and could allow appeals from decisions made by the Commission.

However, the enforcement agency should have the authority to enforce the ODA without waiting for an individual compliant. It also should have the authority to look at systemic problems and develop systemic remedies. The agency should have the authority to receive barrier removal plans prepared by complying organizations. These plans should be available to the public. The agency should have the power to take steps to enforce ODA requirements regarding the preparation, filing and implementation of these plans where self-enforcement is not accomplishing the ODA’s goals. Finally, the agency should have the power and obligation to make new regulations including regulations setting standards in specific areas, as necessary.

Technical advisory committees could be established to advise the Commission on ODA related issues. In addition, it may be beneficial to establish an office to provide technical advice to individuals, corporations and other organizations covered under the Act. The office could act as a primary mechanism for making the Commission accessible to the respective constituencies.

Government Policies

Government policies could require, where possible, that products, facilities and services purchased or leased by the government be accessible to people with disabilities. This policy will complement the legislation and will help to ensure compliance with the law. Other policy directives in the area of disability should be developed once the legislation is enacted.

Information technology

Without accessibility standards for information technology, many people with disabilities face serious obstacles in using computers and accessing computer technology. The government’s voluntary Equal Opportunity Plan provides information and support to businesses and people with disabilities through a web site. This approach has come under some criticism because many people with disabilities do not have computers. It has been argued that most libraries have Internet access. However, many people with disabilities, especially those in rural areas, do not have access to accessible transportation and cannot get access to information available on Internet.

The ODA should ensure that new technology is usable by people with disabilities (this is a requirement under the Americans with Disabilities Act). A good example is Microsoft Windows which has accessibility features built into the product to accommodate users with disabilities.

Public education activities and technical advice

Public education and technical advice are important and complementary aspects of any new legislation. Resources should be made available to help organizations educate their members about the ODA. Businesses should be able to obtain information and technical advice and support when complying with the requirements of the Act. The Internet also may be a useful means of providing information to the public. However, it should not become the primary source of information, for the reasons stated above.

Promoting best practices

Funding should be made available to support pilot projects which prevent and remove barriers. Information about best practices should be centralized. An agency could be mandated with the task of administering grants and sharing project/program results with appropriate stakeholders.

Partnerships

Partnerships are important and should be encouraged. A total of 57 communities across Ontario will have wheelchair accessible picnic tables thanks to a partnership between a local business and an employee with multiple sclerosis. Partnerships like this one benefit communities seeking to improve access to people with disabilities and businesses that want to be recognized as community leaders.

Effective training partnerships will be essential in ensuring accessibility-related equipment and accommodations required by the ODA actually result in the delivery of accessible goods and services. One of the best sources of information about how best to train personnel to interact appropriately with individuals with disabilities is the disability community itself and organizations with experience in providing service to this population such as the MS Society. Private and public entities covered under the ODA should be encouraged to consult with disability organizations concerning how to train their personnel.

However, we cannot rely on partnerships alone to improve accessibility, since this approach may lead to an increasingly inconsistent way of meeting the needs of disabled persons across the province. For example, a creative solution to the lack of accessible transportation in one municipality will not necessarily help people living in another municipality.

Evaluating progress

A process for regulating barrier prevention and removal should be identified in the Act. Those covered by the Act should be required to conduct an accessibility audit of their premises, policies, practices and procedures to ensure they comply with the legislation. When barriers are identified, plans should be developed to indicate when and how the barrier will be removed. It should be recognized that some barriers will be more easily removed than others, and a reasonable “phase-in” period should be permitted. The plans should be made public.

The evaluation of progress must be a requirement of the legislation.

Conclusion

An Ontarians with Disabilities Act is needed to identify, remove and prevent obstacles to the full and active participation of all citizens in Ontario. Legislating barrier-free access to employment, transportation and the provision of goods, services and facilities can only lead to more opportunities for people with MS to contribute to society as equal citizens.

Endnotes

Rougeau, Weldon, Director, Office of Federal Contract Compliance Programs. US Department of Labor, statement before Congress, Equal Employment Opportunity for the Handicapped Act of 1979: Hearings on S. 446 Before the Senate Committee on Labor and Human Resources, 96th Congress 1st Session 103 (1979) p. 103.

Equal to the Task. 1981 DuPont Survey of Employment of the Handicapped, 1982, pp. 17-18.

Martin, Mark. E. Accommodating the Handicapped: the Meaning of Discrimination Under Section 504 of the Rehabilitation Act”. New York University Law Review. Vol. 35, November 1980, p. 901.

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