Submission to the Minister of Citizenship, Culture and Recreation

on the "Ontarians With Disabilities Act"

The Strategic Policies and Priorities Committee recommends the adoption of the recommendations of the Task Force on Community Access and Equity contained in the following transmittal letter (September 29, 1998) from the City Clerk:

Recommendation:

The Task Force on Community Access and Equity on September 24, 1998, recommended to the Strategic Policies and Priorities Committee and Council that the position of the Task Force on Community Access and Equity respecting the Ontarians With Disabilities Act, embodied in the submission dated September 3, 1998 to the Minister of Citizenship, Culture and Recreation, be endorsed.

The Task Force on Community Access and Equity reports for the information of the Strategic Policies and Priorities Committee and Council, having referred the aforementioned submission to the Writing Team of the Task Force on Community Access and Equity for its consideration when preparing the final report for City Council.

Background:

The Task Force on Community Access and Equity had before it the following communications:

(a)(July 17, 1998) from David Lepofsky, Co-Chair, Ontarians With Disabilities Act Committee, headed "ODA Public Consultation Kit", requesting that written submissions regarding the enactment of the Ontarians With Disabilities Act be sent to the Ontario Minister of Citizenship, Culture and Recreation by the September 4, 1998 deadline; advising that the Ontarians With Disabilities Act Committee is contacting other disability organizations in the community to work together to find ways of participating in the consultation process that the Ministry is organizing; and forwarding the ODA Committee's Analysis of the Discussion Paper, draft letters to The Minister of Citizenship, Culture and Recreation; and a list of regional contacts for the Ontarians With Disabilities Act Committee; and

(b)(September 3, 1998) from Councillor Joe Mihevc, Chair, Task Force on Community Access and Equity, forwarding a submission dated September 3, 1998 to The Honourable Isabel Bassett, Minister of Citizenship, Culture and Recreation, headed "Submission to the Minister of Citizenship, Culture and Recreation - The Discussion Paper on the Ontario With Disabilities Act", in response to the Ministry's discussion paper titled "Preventing and Removing Barriers for Ontarians with Disabilities", respecting the Ontarians With Disabilities Act.

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(Submission dated September 3, 1998 addressed to the Minister of Citizenship, Culture

and Recreation from the Task Force on Community Access and Equity, headed

"The Discussion Paper on the Ontarians With Disabilities Act")

Introduction:

Thank you for providing the Task Force on Community Access and Equity the opportunity on August 17, 1998 to provide input on ways to prevent and remove barriers for people with disabilities. Members of the Task Force, as well as staff from the City of Toronto were pleased to meet with you, your staff and representatives from the League for Human Rights of B'nai B'rith, and members of the Indo-Canadian Chamber of Commerce, Toronto Chinese Business Association and the Hispano Chamber of Commerce.

We echo the Minister's personal acknowledgment in the discussion paper, "Preventing and Removing Barriers for Ontarians with Disabilities" that barriers preventing people with disabilities from fully participating in society can not only be removed but prevented. As you have already expressed, barriers can be physical, procedural or attitudinal and must be removed in a planned, coordinated approach involving communities, business, labour, service providers, governments, and disabled citizens.

As you may already be aware, the Task Force on Community Access and Equity has been mandated by Toronto City Council to develop a comprehensive and coordinated plan of action in the newly amalgamated city. This plan of action will address the barriers to full participation of the City's diverse communities, which include: people with disabilities, racial minorities, women, Aboriginal peoples, lesbian, gay, bisexual and transgender communities, ethno-cultural groups, immigrants and refugees. The process undertaken by the Task Force includes extensive consultations with the community, City staff and members of Council. The results of the consultation, in addition to submissions and available research materials, will yield a range of solutions, policies and practices for the new City to embrace. Ensuring access and equity to facilities, services and processes is not only a legal obligation, it is also good business and good government.

The City of Toronto recognizes the valid and valuable contribution of people with disabilities in all facets of city life. In meeting citizens with disabilities, the Task Force has heard a litany of examples of barriers they face on a daily basis. While the consultation process identified key barriers inherent in the City, citizens of Toronto also recognized and are frustrated that many strategies and actions are beyond the jurisdiction of the local level of government. These barriers could be addressed, removed and new barriers prevented with an effective Ontarians With Disabilities Act.

It is estimated that approximately 17 percent of the people living in the Province of Ontario have some form of a disability. By the year 2011, it is estimated that one in every six Ontarians will be over the age of 65 and the over 75 population will more than double to 874,000 (Ministry of Treasury and Economics, Population Projections for Regional Municipalities, Counties and Districts of Ontario to 2011). It is an established fact that increasing age results in the greater possibility of the development of some form of disability. If we as a province are to in anyway develop strategies for addressing the coming demographics, then a strong, effective, and mandatory Ontarians With Disabilities Act must be enacted now.

Anywhere from 50-80 percent of people with disabilities either are unemployed or have never been tied to the labour market directly as a result of their disability. This is a terrible waste of talent. Ontarians with disabilities have as much right to employment as any other Ontarians. The economic implications of people with disabilities not being economically self-sufficient through employment income are horrendous. In 1994, the Ministry of Citizenship received a report from the Working Group on the Employment of Persons with Severe Disabilities entitled "Towards Equity: The Employment of Severely Disadvantaged Persons with Disabilities". The report identified that the cost of exclusion from the labour market of people with disabilities was conservatively estimated to be 5 billion dollars and this estimate does not cover the human cost.

This report estimated that 38.1 percent of people with disabilities have incomes of less than $20,000.00 which is true of only 16.1 percent of the population who do not have disabilities. Over one-quarter (25.6 percent) of persons with disabilities in Ontario have incomes below Statistics Canada's "low income cut-off", which is a measure of poverty.

Principles and Parameters:

Your government's discussion paper has identified three principles and a set of parameters. We contend, as currently drafted, that these pose significant limitations to the enactment of an effective ODA and in themselves result in additional barriers for our community.

It is the view of the Task Force on Community Access and Equity that the ODA be based on the following:

(1)Any legislation applying to the prevention and removal of barriers for Ontarians with Disabilities should promote full inclusion; be mandatory and apply to all sectors: public, private or non-profit. It must be a pro-active framework, not an after the fact, reactive set of processes and options. While the Ontario Building Code requires that new buildings have a minimum level of physical accessibility, it does nothing for barrier free upgrades required in the large number of buildings erected prior to the creation of these standards.

(2)The ODA must not be disability specific but should endeavour to remove barriers and prevent the creation of new ones across disabilities. It must be inclusive in addressing physical, procedural, and attitudinal barriers. Any attempt to forge a subjective hierarchy of disability would be unacceptable, as the needs and rights of people with one disability cannot take precedence over the needs and rights of those with another regardless of the type of mental, emotional, cognitive or physical disability. Moreover, people with disabilities are as diverse as the population of Ontario and we need choices and options in dealing with people who face multiple barriers.

(3)There must be an enforcement body to monitor the implementation of the ODA. While the Ontario Human Rights Code provides Ontarians with Disabilities the right to equal treatment, the Commission is not equipped to monitor the proposed ODA given its already copious responsibilities. This "body" must have the mandate to obtain systemic remedies rather than depend upon individualized complaint-driven fixes.

(4)The legislation should extend the mandate of the "enforcement body" to determine standards for planning and implementation. There should be representation from all sectors, including business, education, not for profit organizations, provincial and municipal governments, in order to facilitate sector ownership, and it should include the expertise of people with diverse disabilities. This "body" could encourage the implementation of the ODA by becoming a clearing-house for information on barrier removal, by encouraging research into new barrier-free technologies, by promoting innovation in barrier-free design and by clarifying the economic value of making Ontario open and accessible to all. It is expected that once the regulatory body is established, it can immediately begin synthesizing standards and regulations from several existing tribunal and court decisions (e.g., Eldridge v. British Columbia; Saskatchewan Human Rights Commission v. Canadian Odeon Theatres).

(5)The Ontarians With Disabilities Act should supersede all other codes and regulations which either conflict with or provide lesser protections and entitlements to people with disabilities. The ODA must not weaken any rights or entitlements already in place, it should complement and reinforce the protections that now exist.

(6)The ODA must require that all enterprises doing business with institutions funded by taxes: the provincial and municipal levels of government, their agencies, and subsidized programs/projects, be ODA compliant. One of the more positive outcomes of the implementation of the Americans With Disabilities Act is that it has fostered new technologies and innovations which are now available to the general public. For instance the development of speech input to replace the keyboard, for personal computers has not only allowed people with limited mobility in their hands to operate a computer, but has allowed time pressured business people to operate their computers, while leaving their hands free for other tasks. It also has enabled business people with limited typing skills to effectively operate their computers without undergoing time-consuming skills training.

The Task Force on Community Access and Equity believes that Respecting the Dignity of Persons with Disabilities "The phrase `respects their dignity' means to act in a manner which recognizes the privacy, confidentiality, comfort, autonomy and self-esteem of persons with disabilities, which maximizes their integration and which promotes their full participation in society" (Ontario Human Rights Commission).

Key Questions:

(1)What are the Priorities for Preventing and Removing Barriers?

All processes and strategies falling out of the legislation while possibly implemented in a staggered fashion, must be developed in parallel and published concurrently. This simultaneous approach should include:

(a)a review of all existing legislation dealing with barrier free access to ensure that their regulations are being enforced fully. For example - are the barrier free measures of the Ontario Building Code being applied properly? Are developers applying for exemptions from certain provisions of the Code and are they being granted such leave? If so, by whom: municipalities, the Code Compliance Branch of the Ministry of Municipal Affairs and housing, or the Ontario Municipal Board. The ODA would apply to all and result in uniformity of application resulting in a levelling up rather than down.

(b)all decisions handed down by the Ontario Human Rights Tribunals and all other Provincial Commissions dealing with barrier free access and people with disabilities must be reviewed; if there exists jurisprudence which requires a certain level of access, then all aspects of other legislation must be amended to ensure that they are compliant;

(c)once the standards are set by the regulatory body (see #4), agencies and organizations must conduct barrier audits, set timetables for barrier elimination and establish policies to ensure that new barriers are not created (examples of proven success include the Occupational Health and Safety Act and the Day Nurseries Act.

(d)organizations should be required to submit Annual Reports on their progress toward barrier removal to the enforcement "body".

(e)the enforcement "body" should be mandated to undertake spot checks of organizations to ensure compliance and delinquency would be fined.

(f)organizations failing to comply and subsequently penalized should be identified in an annual report which should be broadly publicized.

(2)What could a new ODA include to help prevent and remove barriers?

(a)It must be recognized that voluntary measures while yielding some benefits in the short term, are at times unreliable and one could argue unable to take the lead on and ensure important public objectives. Lasting measures are required to ensure a barrier-free Ontario.

(b)National Access Awareness Week which was an annual initiative, depended upon voluntary measures - in 1997, its 10^th anniversary year, the program essentially waned, faded and fizzled out - now seen as a public relations initiative which has little scope - "community" initiatives struggle with this every year- some projects which applied for the Opportunities Fund were denied. Community education and initiatives to deal with the stigma of mental and physical disabilities must be supported.

(3)What additional approaches could complement an ODA?

While the existence of fines and other penalties must be an integral part of the enforcement mechanism, there must be other measures taken which will encourage voluntary compliance. Some of these measures could include an awards program which would reward organizations for swift barrier removal, innovation in results and the provision of good service to people with disabilities. This program would be an important positive publicity tool for the encouragement of further implementation of the ODA. Additionally, the component of the "body" which would develop the barrier removal regulations and standards for the ODA should also have a resource center where organizations can come for information and advice on the effective removal of barriers and the avoidance of new barriers. Finally, there must be financial assistance to organizations which are making a genuine effort to remove barriers, but require some financial incentives to continue.

Conclusions:

For too long the rights of people with disabilities have been subsumed to the needs of other Ontarians. Tax cuts, government policies encouraging self-regulation, voluntary measures and well-meaning, but empty words will not help people with disabilities. If we are to assume that this government values all its citizens and residents, then this government must demonstrate this commitment by bringing into law an effective and strong Ontarians With Disabilities Act which will start to break down the barriers that are faced by the disability community.

The Strategic Policies and Priorities Committee also submits the communication (August 18, 1998) from Mr. Denis Casey, Acting President, Local 79, addressed to the Minister of Citizenship, Culture and Recreation:

CUPE Local 79 represents approximately 13,000 people employed by the City of Toronto, The Riverdale Hospital and the Toronto Public Library Board. Our members work in such areas as health care, child care, welfare, housing, planning, public health, clerical support and ambulance services.

Before the 1995 provincial election, Mr. Mike Harris promised that his government would pass an Ontarians with Disabilities Act during his first term in office. Three years later, your Ministry has just released a discussion paper, "Preventing and Removing Barriers for Ontarians with Disabilities". You have invited responses that identify priorities for preventing and removing barriers to the full participation in the life of the province of people with disabilities.

Local 79 is pleased by some of the discussion paper's strong statements that support rights for people with disabilities. However, we are most concerned that your Ministry is ruling out any discussion on two issues that are vital to the achievement of equal rights.

With historically high unemployment levels among people with disabilities, ensuring access to meaningful employment must be a key ingredient in any new legislation. For this reason, Local 79 is very disappointed that the Government has already concluded that "equal opportunity in the workplace should be promoted through voluntary strategies."

A voluntary approach will result in employers continuing to do as little as they want, or even nothing at all, to redress systemic discrimination against people with disabilities. This is not acceptable. Working towards equal opportunity in the workplace must not be left to the employer's discretion: it must be mandatory.

Local 79 would propose that employers develop and implement a process that would identify existing barriers to equal participation in their workplaces, barriers that have an impact on their current employees and on potential employees/applicants. They should then follow a reasonable timetable for eliminating those barriers. In our view, this process would necessarily include meaningful consultation with the unions in the workplaces.

We also disagree with the discussion paper's conclusion that "no new agency will be created to administer and enforce the new Act." Instead, the Ontario Human Rights Act would be relied upon.

Under the Human Rights Act, individuals file complaints when they feel that their rights have been violated. However, complaint-based enforcement does not address systemic problems. We believe that the new legislation must create an agency that will have the power to make employers comply with its terms.

People with disabilities deserve fair and equitable treatment in all areas of their lives. We urge your Ministry to consider these important issues before drafting an Ontarians with Disabilities Act.

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The Strategic Policies and Priorities Committee also had before it the following which were circulated to all Members of Council with the agenda of the Strategic Policies and Priorities Committee for its meeting of October 20, 1998, and copies thereof are on file in the office of the City Clerk:

-(July 17, 1998) from David Lepofsky, Co-Chair, Ontarians With Disabilities Act Committee, headed "ODA Public Consultation Kit", requesting that written submissions regarding the enactment of the Ontarians With Disabilities Act be sent to the Ontario Minister of Citizenship, Culture and Recreation by the September 4, 1998 deadline; advising that the Ontarians With Disabilities Act Committee is contacting other disability organizations in the community to work together to find ways of participating in the consultation process that the Ministry is organizing; and forwarding the ODA Committee's Analysis of the Discussion Paper, draft letters to The Minister of Citizenship, Culture and Recreation; and a list of regional contacts for the Ontarians With Disabilities Act Committee; and

-(Undated) Discussion paper titled "Preventing and Removing Barriers for Ontarians with Disabilities", respecting the Ontarians With Disabilities Act, from the Honourable Isabel Bassett, Minister of Citizenship, Culture and Recreation.