Accessibility for Ontarians with Disabilities Act Alliance

Draft Response to the Wynne Government’s November 9, 2015 Summary of Its Proposed Amendments to the 2007 Customer Service Accessibility Standard

November 20, 2015

Note: This is only a draft of the AODA Alliance’s proposed position. It has not been finalized. We welcome feedback on this draft up to November 27, 2015.

1. Introduction and Summary

On November 9, 2015, the Wynne Government posted online a summary of changes it proposes to make to the 2007 Customer Service Accessibility Standard and to the 2011 Integrated Accessibility Standards Regulation. Both of those accessibility standards were enacted under the Accessibility for Ontarians with Disabilities Act (AODA).

The public has up to December 31, 2015 to give the Government input on the proposed revisions to those accessibility standards. This is the AODA Alliance’s detailed response to those proposed revisions.

The Government enacted the Customer Service Accessibility Standard in 2007. It was the first accessibility standard enacted under the AODA. It was enacted two years after the AODA was passed in 2005.

The Customer Service Accessibility Standard was based on recommendations by the Customer Service Standards Development Committee which the Ontario Government appointed under the AODA. Working as the first AODA Standards Development Committee, that committee did not operate with all the protections for people with disabilities that we later secured from the Ontario Government. It did not include equal representation by people with disabilities. It did not vote on its proposals clause-by-clause. Disability sector representatives did not have the benefit of dedicated staff from the Accessibility Directorate of Ontario to assist them in their work. The Ontario government promised those measures in the 2007 Ontario election. That was too late for the Customer Service Standards Development Committee. It was therefore hardly surprising that the 2007 Customer Service Accessibility Standard was very weak.

Shortly after the 2007 Customer Service Accessibility Standard was enacted, we made public a detailed critique of its deficiencies. That analysis remains valid today. The September 12, 2007 AODA Alliance analysis of the Customer Service Accessibility Standard is available at http://www.aodaalliance.org/strong-effective-aoda/09122007.asp

Under the AODA, the Government was obliged to launch a review of the 2007 Customer Service Accessibility Standard by an AODA Standards Development Committee within five years of its enactment. That had to begin by the 2007 summer. The Government did not launch that mandatory review until the second half of 2013. It appointed Ontario’s Accessibility Standards Advisory Council (ASAC) to conduct that review.

In March 2014, the Government made public for public comment ASAC’s initial proposal for making changes to the Customer Service Accessibility Standard. ASAC’s initial proposals were very weak and inadequate.

On April 4, 2014, the AODA Alliance submitted a detailed 50-page brief to ASAC. It gave our feedback on ASAC’s proposals. It showed what was wrong with both the original Customer Service Accessibility Standard’s and with ASAC’s proposals for revisions to that standard. Our brief made constructive recommendations on what is needed to strengthen the Customer Service Accessibility Standard.

After receiving input from the public, ASAC formulated its final proposals to the Government on proposed revisions to the 2007 Customer Service Accessibility Standard. The Government made ASAC’s final recommendations public on November 7, 2014.

One year later, on November 9, 2015, the Government made public a summary of the changes it now proposes to make to the 2007 Customer Service Accessibility Standard and the 2011 Integrated Accessibility Standards Regulation. It is giving the public until December 31, 2015 to comment on these proposals.

We summarize the AODA Alliance’s Response to the Government’s November 9, 2015 summary as follows:

1. The Government’s proposed changes to the 2007 Customer Service Accessibility Standard are far too inadequate to meaningfully improve that weak accessibility standard. As well, they include unwarranted cutbacks that are both harmful to people with disabilities, and would violate the Government’s promises to people with disabilities.

2. The Government does not even say it aims to strengthen the weak and inadequate 2007 Customer Service Accessibility Standard.

3. The Government’s proposal would break Premier Wynne’s promise never to weaken AODA provisions or protections.

4. The Government wrongly proposes to perpetuate an unlawful provision in the Customer Service Accessibility Standard which should be removed.

5. The Government improperly proposes changes to the 2011 Integrated Accessibility Standards Regulation without following the mandatory legal process for which we fought so hard, and won in 2005.

6. The Government proposes a counter-productive backwards step regarding customer feedback on accessibility barriers in an organization’s goods, services or facilities.

7. The Government Proposes cosmetic packaging changes that will make no difference for achieving accessibility for people with disabilities, or whose impact is insufficiently clear to be

assuredly harmless.

8. The Government proposes some minor improvements that, though helpful, won’t significantly strengthen the Customer Service Accessibility Standard.

9. The Government should reconsider and make needed improvements to the Customer Service Accessibility Standard that it so far has disregarded or rejected.

10. The Government should now launch a short, focused and inclusive consultation with stakeholders together to develop meaningful improvements to the 2007 Customer Service Accessibility Standard.

At the end of the analysis of these issues, we set out a series of appendices. These include: APPENDIX 1 - Key Passage from the November 12, 2014 AODA Alliance Update Responding to ASAC’s Final Proposals for Amending the 2007 Customer Service Accessibility Standard; APPENDIX 2 - November 9, 2015 Email from Assistant Deputy Minister of Economic Development, Employment and Infrastructure Ann Hoy to Several Disability Organizations; APPENDIX 3 - November 9, 2015 Ontario Government Web Posting on Proposed Amendments to the Customer Service Accessibility Standard; and APPENDIX 4 - Detailed Summary – Proposed Amendments to the Customer Service Standard Regulation and the Integrated Accessibility Standards Regulation Made Under the Accessibility for Ontarians with Disabilities Act.

2. The Government Does Not Even Say It Aims to Strengthen the Weak and Inadequate 2007 Customer Service Accessibility Standard

Our consistent message to the Government since shortly after it enacted this accessibility standard is that it is too weak. It needs to be substantially strengthened.

Yet when it announced its proposed changes to the 2007 Customer Service Accessibility Standard, the Government did not say it is trying to strengthen that accessibility standard. The November 9, 2015 email from Assistant Deputy Economic Development Minister Ann Hoy to disability sector stakeholders, which makes these Government proposals public, set out below as Appendix 2, says that the Government’s proposed amendments merely “clarify and streamline” the Customer Service Accessibility Standard’s requirements. She did not say that they aim to strengthen the Customer Service Accessibility Standard. Yet the 2007 Customer Service Accessibility Standard never suffered from a lack of clarity. It suffered from a lack of strong, effective accessibility standards requirements.

To make its proposals public on the internet, the Government’s November 9, 2015 posting on its Regulatory Registry website, set out below as Appendix 3, vaguely says that the Government’s proposal would make changes to the Customer Service Accessibility Standard, as well as incorporating that accessibility standard into the 2011 Integrated Accessibility Standards Regulation The Integrated Accessibility Standards Regulation sets out accessibility requirements on transportation, employment, information and communication and public spaces.

That web page also says that the proposed amendments are: “Making technical/administrative changes to the Integrated Accessibility Standards Regulation to clarify some of the requirements and make it easier for organizations to implement them.” It is impossible to imagine why it would be necessary to make it easier for obligated organizations to comply with the 2007 Customer Service Accessibility Standard. That standard’s requirements are extremely minimal. Under it, an obligated organization essentially must create an accessible Customer Service policy. The Government offered templates to make this extremely simple. Organizations must train their staff on their accessible Customer Service policy. The Government made free training materials available, making this very easy to do. Obligated organizations had to create a mechanism for the public to give that organization feedback on accessibility problems they experience. That too is quick and simple to do.

In 2007, the Government gave public sector organizations fully three years to take these minimal steps. It gave private sector organizations a leisurely five years to take these steps. The Government ostensibly did nothing to meaningfully enforce these minimal requirements against the private sector for years. More recently, the Government has only taken enforcement steps against a small minority of organizations that it knows to be in violation of the standard. No one has ever claimed that the rampant violations of the Customer Service Accessibility Standard was due to a lack of clarity, or because it was too onerous.

3. The Government’s Proposal Would Break Premier Wynne’s Promise Never to Weaken AODA Provisions or Protections

Among the most troubling of these proposals is the Government’s plan to deliberately weaken important documentation requirements in the 2007 Customer Service Accessibility Standard, for private sector organizations with 20 to 49 employees. On December 3, 2012, the International Day for People with Disabilities, Kathleen Wynne wrote the AODA Alliance a letter that set out her pledges to Ontarians with disabilities, in the event that she won the Ontario Liberal Party’s leadership race and became Ontario’s Premier. Among other things, she promised in writing that she would not reduce any provisions or protections under the Accessibility for Ontarians with Disabilities Act or any accessibility standards enacted under it. She wrote:

“1. Under your leadership, will the Liberal Party fully maintain the implementation of the AODA 2005 and the Ontarians with Disabilities Act 2001, and not weaken or reduce any provisions or protections in that legislation or regulations enacted under them, or any policies, practices, strategies or initiatives of or within the Ontario Government that exist to implement them or achieve their objectives?

Yes. I’m committed to building a more accessible Ontario as it is not only the smart thing to do, it’s the right thing to do. I will maintain the implementation of the AODA, 2005 and the Ontarians with Disabilities Act 2001, and not weaken or reduce the progress we’ve made.

2. Will you stand by and fully honour the past commitments that your Party has made to Ontarians with disabilities regarding disability accessibility?

Yes. I will honour the specific commitments made by my party and the government, and look forward to working with you to continue making progress.”

Kathleen Wynne's December 3, 2012 letter to the AODA Alliance is available at http://www.aodaalliance.org/strong-effective-aoda/12032012.asp

The 2007 Customer Service Accessibility Standard requires obligated private sector organizations with 20 or more employees to maintain important documentary records on accessible Customer Service. These are an essential feature for any realistic hope of the AODA effective enforcement regarding Customer Service.

Despite this, the Government's November 9, 2015 Summary proposes to eliminate these documentation requirements for private sector organizations with between 20 and 49 employees. The 2007 Customer Service Accessibility Standard requires all obligated private sector organizations with at least 20 employees to maintain documentation of its policies, practices and procedures regarding the following and to make it available to a member of the public on request:

a) on providing accessible Customer Service. (Section 3(5))

b) regarding their admitting people with disabilities accompanied by service animals, their requiring people with disabilities to be accompanied by a support person, and their charging a second admission for that support person (section 4(7).

c) the steps to be taken in connection with a temporary disruption of the organization’s services. (Section 5(4)

d) its feedback process on accessible Customer Service. (section 7(4)).

That accessibility standard also requires obligated private sector organizations with at least 20 employees to keep documentation of the following, without requiring that it be provided to a member of the public on request:

a) its policy on providing its staff with training on accessible Customer Service, Including a summary of the contents of the training and details of when the training is to be provided (section 6(5).

b) the training provided under this section, including the dates on which the training is provided and the number of individuals to whom it is provided. (Section 6(6).

The Government's November 9, 2015 Summary states that it will abolish all such documentation requirements for any private sector organizations with 20 to 49 employees. The Government's November 9, 2015 Summary states:

“a) Definitions and types of obligated organizations

• The language used for types of organizations and definitions under the Integrated Accessibility Standards Regulation would be applied to the Customer Service Standard.• The proposed changes would classify obligated organizations consistently across all accessibility standards.• This change is also intended to align the “class structure” of organizations under the Customer Service Standard and other accessibility standards. • Currently, under the Integrated Accessibility Standards Regulation, organizations with 50 or more employees have certain additional documentation requirements as compared to organizations with between 20 and 50 employees (e.g., written multi-year accessibility plans). Under the current Customer Service Standard, organizations with 20 or more employees have additional documentation requirements. Changes would be made to these standards to ensure that the requirements amongst employer classifications better align.• The new Customer Service Standard would eliminate documentation requirements for organizations with 20 – 49 employees, aligning documentation requirements among all five standards. However, these organizations would still need to submit accessibility compliance reports in the same or similar manner as would large obligated organizations.”

This amendment would be a direct and palpable violation of Premier Wynne’s promise not to weaken or reduce any protections or provisions in the AODA or in AODA standards for people with disabilities. In the absence of effective Government enforcement of the AODA, one of the only ways people with disabilities can crowd-source this law’s enforcement is by asking such organizations for their legally-mandatory documentation. If they don’t provide that documentation on request, they are in breach of the AODA.

Moreover, one of the few enforcement tools the Government has used in limited measure has been the power to conduct audits of obligated organizations. On June 3, 2015, the Government promised to eventually double the number of organizations it will audit. It made that commitment after public criticisms of the Government’s weak enforcement and recent audit cutbacks.

The Government’s audits are mostly if not entirely paper audited i.e. inspecting for required AODA documentation. By eliminating these important documentation requirements for private sector organizations with 20 to 49 employees, the Government is, through the backdoor, gutting the audit process as a useful means for AODA enforcement for those organizations. To date, the Government’s AODA enforcement has already been paltry. This amendment would serve to make a bad situation even worse.

This proposal also weakens the effectiveness of another major AODA enforcement tool, namely the AODA Accessibility Report. Now, private sector organizations with at least 20 employees must periodically file an AODA Report with the Government. These were required by the end of 2012 and 2014. In them, an organization indicates if it has met its AODA obligations, e.g. regarding accessible Customer Service. If a private sector organization with 20 to 49 employees need not keep any such documentation, it will know that it can tick any box it likes on its AODA Accessibility Report, without worrying that it lacks a legally mandatory paper trail to show that that box deserved to be ticked.

This proposal would fly in the face of the recommendations of the 2014 Mayo Moran AODA Independent Review. That Report called for AODA enforcement to be beefed up.

We here repeat our serious concern with this proposal that we expressed to ASAC one and a half years ago and which we have shared with the Government. It is a major disservice to people with disabilities, and to the AODA’s goal of ensuring full accessibility by 2025, that both ASAC and the Government have rejected this concern without justification or explanation. In our April 4, 2014 brief to ASAC on its initial proposals for amending the 2007 Customer Service Accessibility Standard, we wrote:

"The other change ASAC proposes regarding class structure is clear, and is a serious concern. ASAC recommends that private sector organizations be divided into two classes, the same classes as are used in later accessibility standards, namely large private sector organizations (those with 50 or more employees) and small private sector organization (those with under 50 employees). Right now, the Customer Service Accessibility Standard in effect divides private sector organizations into two different classes, those with under 20 employees on the one hand, and those with over 20 employees on the other.

The harmful effect of ASAC's proposal would be to reduce the accessibility obligations of private sector organizations with 20 to 49 employees. ASAC's proposal states:

"This proposed change would match the class structure of the Customer Service Standard with the class structure of the other four accessibility standards (employment; information and communications; transportation; and the design of public spaces). The proposed change will result in a consistent definition of private and not-for-profit organizations, simplify requirements, and reduce inconsistencies across all accessibility standards.

For example, with this proposed change, organizations with 20-49 employees would continue to be required to establish policies, practices and procedures governing the provision of goods or services to people with disabilities (as required under Section 3 of the Customer Service Standard). However, these organizations would no longer be required to prepare one or more documents describing their policies, practices and procedures or to provide these documents upon request (as currently required under Section 3.5)."

We strongly disagree with this proposal. ASAC gives no further explanation of why the accessibility obligations of private sector organizations with 20 to 49 employees should be reduced. ASAC does not demonstrate that those organizations are now doing such a good job of delivering accessible customer service that there is no need for the requirements that would be reduced. ASAC does not demonstrate that the obligations which it would remove from those organizations cause undue hardship to those organizations, or do not advance the goal of accessible customer service. ASAC does not, and indeed could not, conclude that Ontario has already achieved such a high level of accessible customer service for persons with disabilities, that effective regulation in this area is no longer needed. Any such conclusions would in any event be wrong.

As demonstrated earlier in this brief, there is a pressing need to strengthen the Customer Service

Accessibility Standard, not weaken it. Any proposal to weaken it is counterproductive. Moreover, any proposal to weaken it would directly violate an important 2011 election commitment that the Government made to Ontarian's with disabilities, at our request.

In his August 19, 2011 letter to us, during the 2011 general election campaign, Premier Dalton McGuinty pledged that his Government would not reduce any protections that we won in or under the AODA. The Government cannot accept ASAC's proposal without violating that essential election commitment. In Dalton McGuinty's August 19, 2011 letter to the AODA Alliance, he pledged:

"• We will ensure that we maintain and/or strengthen the current provisions and protections in the AODA or any regulations enacted under the legislation."

Moreover, ASAC's proposal is especially unacceptable in light of the fact, described earlier, that a massive proportion of organizations within the very class of private sector organizations whose obligations would be reduced, are now in clear and direct violation of the AODA. As described earlier, last fall, we made public Government documents that prove that as of then, over 70% of private sector organizations with at least 20 employees had not electronically filed the mandatory accessibility self-reports with the Government. These were due over ten months earlier, by January 1, 2013. The private sector had had some five years to comply with the requirements of the Customer Service Accessibility Standard, and to file a self-report with the Government to confirm that they were in compliance.

ASAC's proposal would in effect reward such massive non-compliance, by reducing their obligations. Moreover, it would make it clearly harder to effectively enforce the Standard. One key way the Government can enforce is through audits and inspections. Inspecting and auditing the records that an organization must keep under the Standard is a quick and potentially helpful first line of investigation. If an organization no longer needs to prepare these documentary records, enforcement is thereby frustrated. This is even more troubling because, as described earlier, we have documented that the Government has done far too little to keep its promise to effectively enforce the AODA.

As well, ASAC's proposal would make it harder for members of the public, including the disability community, to themselves document whether an organization within this class has complied with the AODA. Under the Customer Service Accessibility Standard as it now stands, these organizations must provide documentation of their customer service accessibility policy to a member of the public on request. Thus, even if the Government doesn't undertake an audit or inspection of an organization, a concerned member of the public can take it on themselves to ask for this policy.

This provides an avenue for crowd-sourcing grassroots AODA enforcement to supplement the Government's enforcement activities. Under ASAC's proposal, a large part of the private sector, organizations with 20-49 employees, would no longer have to comply with such a request. With substantially inadequate Government enforcement, we and the disability community need to be able to use such grassroots means to shed public light in cases where there is non-compliance.

ASAC makes no suggestion or evidence-based showing that private sector organizations with 20-49 employees have to date been unduly burdened and inundated by requests by the public for their accessibility policy. We have heard no such complaints to date.

It is a frustrating irony that ASAC proposes to change the definition of classes under the Customer Service Accessibility Standard to bring them in line with the class structure in the later Integrated Accessibility Standard Regulation. The Integrated Accessibility Standard Regulation was enacted in June 2011, four years after the Customer Service Accessibility Standard, to address barriers in transportation, employment and information and communication. As the Integrated Accessibility Standard Regulation was being developed, we recommended to the Government that for at least some standards, organization classes should not be solely defined based on numbers of employees.

The Government rejected our proposal. We were told at that time that it could not then change the way it defined classes of organizations, because this had already been set in the 2007 Customer Service Accessibility Standard. Now we are told that the Customer Service Accessibility Standard system for defining classes of organizations can and indeed should be changed, to bring it in line with the 2011 Integrated Accessibility Standard Regulation.”

The problems here are even worse. When the Ontario Government, under Conservative Premier Mike Harris, brought in the weak Ontarians with Disabilities Act in 2001, the Ontario Liberal Party, then in opposition, rightly condemned that legislation because it did not cover the private sector, was not mandatory and did not have effective enforcement. The Liberal Party promised to enact a strong, mandatory, effectively enforced Disabilities Act that covered the private sector.

To its credit, the AODA covers the private sector, requires the Government to enact mandatory accessibility standards, and includes important enforcement powers. However, since 2005, the Government has gradually used back-door routes to back off from regulating the private sector. For example, when it first passed the Customer Service Accessibility Standard, it exempted private sector organizations with fewer than 20 employees from the duty to file any accessibility reports. That left out a large majority of private sector organizations. Now the Government proposes to lift important documentation requirements from private sector organizations with 20 to 49 employees. It thereby tries, through the back door, to excuse an even larger majority of private sector organizations from effective AODA enforcement.

As a result, on November 13, 2015, AODA Alliance chair David Lepofsky filed a Freedom of Information application with the Government. In it, he asked how many private sector organizations covered by the AODA have 20 to 49 employees. He also asked how many of those organizations have filed their required AODA Accessibility Reports in 2012 and 2014. We wait to see whether the Government will try to charge another hefty fee for answering this inquiry, as it tried with three earlier Freedom of Information applications regarding the AODA’s implementation.

4. The Government Wrongly Proposes to Perpetuate an Unlawful Provision in the Customer Service Accessibility Standard Which Should Be Removed

According to the November 9, 2015 Summary, the Government wrongly proposes to keep in the Customer Service Accessibility Standard a provision which is not lawfully there in the first place. The Government only proposes to tinker with that provision, rather than taking the needed step of removing it from the Customer Service Accessibility Standard altogether. We have objected to this illegal provision since the 2007 summer, shortly after it was enacted.

The 2007 Customer Service Accessibility Standard authorized a provider of Customer Service to require a customer with a disability to bring a support person with them, as a condition of their admission, and to charge a second admission fee for that person, under some circumstances i.e. if the obligated organization thought that the person with a disability otherwise presented a danger to the health or safety of themselves or of others on the premises. By this, the Government improperly created a barrier against people with disabilities. an AODA accessibility standard cannot create or authorize barriers against people with disabilities, and especially unjustified ones.

This provision should never have been included in the Customer Service Accessibility Standard. We told the Government this, shortly after it enacted the Customer Service Accessibility Standard. The Government never removed it. We also told ASAC about this when it reviewed the Customer Service Accessibility Standard in 2014. Instead of recommending to the Government that this provision be removed from the Customer Service Accessibility Standard, ASAC simply recommended that it be narrowed.

Here again, ASAC and the Government opted to disregard our recommendation. Neither ASAC nor the Government has ever shown how it is legal for an AODA standard to create or legitimize an accessibility barrier, and especially an unjustified one.

The November 9, 2015 Summary merely says this about its intended change to this unlawful provision:

“This additional language is intended to clarify that organizations may only require a person with a disability to be accompanied by a support person in very limited circumstances, when there is no other available option.”

This does not overcome the problem of the existing provision’s legality. It does not explain why the Government feels it is necessary to retain any part of that unlawful provision.

The Government’s November 9, 2015 Summary proposes a change to this provision that would reduce but not remove one of the barriers it creates. It states:

“Additional language would be added to clarify when an organization requires a person with a disability to be accompanied by a support person on the premises due to health and safety reasons, the organization would be required to waive any fare/fee for the support person that would normally be charged to a person.”

The Government contradicts itself in the Summary’s next statement. The November 9, 2015 Summary states:

“• This requirement is intended to ensure that people with disabilities do not face a financial barrier or penalty in situations when an obligated organization determines that they must be accompanied by a support person. In these situations, a person with a disability may be charged a fare or fee, but the fare or fee must be waived for the mandatory support person.”

People with disabilities don’t have guaranteed free support people, available at the drop of a hat, whenever an obligated organization decides they must have one. If an obligated organization insists that a customer with a disability must bring a support person with them, as a condition of being admitted to the premises, being forced to hire a support person obviously can create a financial barrier or added cost to the customer. If the Government truly means to ensure that customers with disabilities “do not face a financial barrier or penalty in situations when an obligated organization determines that they must be accompanied by a support person,” the Government would impose a mandatory requirement that the obligated organization pay for the entire cost of the support person.

5. The Government Improperly Proposes Changes to the Integrated Accessibility Standards Regulation without Following the Mandatory Legal Process for Which We Fought so Hard, and Won in 2005

In addition to proposing changes to the 2007 Customer Service Accessibility Standard, the Government's November 9, 2015 Summary announces that the Government also proposes to make other changes to the 2011 Integrated Accessibility Standards Regulation. These proposed revisions have nothing to do with the Customer Service Accessibility Standard, or with recommendations submitted to it by ASAC, or with any issues on which the Government had referred to a Standards Development Committee appointed under the AODA.

The Government refers to these revisions as “minor administrative/housekeeping changes.” Yet whether they are major or minor, or somewhere in between, the Government cannot make these changes to an AODA accessibility standard unless it strictly obeys the procedure that the AODA legally requires the Government to follow before it can make a change to an AODA accessibility standard.

The Government's November 9, 2015 Summary describes these proposed changes as follows:

“• Revise provisions related to accessible formats and communications supports to employees in the Integrated Accessibility Standards Regulation to remove the duplicative requirement to consult with a person with a disability. • Revise typographical errors in text by replacing “no more that” with “no more than.” • Replace “courtesy seating” with “priority seating” throughout the regulation.• Replace the term “pedestrian crossovers” and the definition with the following term and definition: • “Signal controlled pedestrian crossing” means a pedestrian crossing where

pedestrian control signals are installed.”

We and the public are in no position, based on The Government's November 9, 2015 Summary, to assess the impact of changes such as the removal of requirements to consult people with disabilities on accessible formats which the Government claims (without explanation) are duplicative, or redefining pedestrian crossovers. However, the issue here is not whether these proposed changes would be good or bad. No one can get to that question until and unless it is lawful for the Government to make those changes in the way it proposes.

The Government cannot make these changes to the Integrated Accessibility Standards Regulation until and unless it has first appointed a Standards Development Committee under the AODA to review the provisions that are in issue. It has not done so here.

The Government once before tried doing this very thing over three years ago. In fact, back then it tried to make two of the proposed changes it again attempts here, and tried to do so using the same improper process which the AODA does not permit. In 2012, the Government backed down after we objected to what it was trying to do. It was wrong then. It is equally wrong now.

Here is what the Government tried to do back in 2012. On August 15, 2012, the Government commendably posted for public comment a draft new accessibility standard to address physical barriers in public spaces. That was entirely proper. The Government was thereby acting on recommendations from a Standards Development Committee which had studied that issue and submitted recommendations for accessibility standards on that topic.

However, at the same time, the Government improperly tried to tack on to the end of that 2012 draft regulation a series of unrelated changes to the 2011 Integrated Accessibility Standards Regulation. The Government called those proposed changes “minor” and “technical,” just as they are trying to do now.

In 2012, we strongly objected to this. We said that an AODA accessibility standard cannot lawfully be amended until and unless the topic had been the subject of a review which the Government had referred to a Standards Development Committee. In our August 29, letter to the Ontario minister then responsible for the AODA, John Milloy, we made the following points which fully apply here:

“1. The Government is Wrongly Skipping over Important Requirements in the AODA for Revising an Accessibility Standard Regulation

We are deeply concerned because your Government has failed to take all the important steps it is required to take under the Accessibility for Ontarians with Disabilities Act (AODA) before it can post a draft regulation to amend the 2011 IAR. The Government cannot amend the 2011 IAR simply by posting a draft regulation, receiving public comments on it, and then passing these changes either as is, or with more modifications. Such an inadequate process is what your Government is here inappropriately proposing to do.

Sections 6 to 10 of the AODA require that before the government may enact a new accessibility

standard, or may revise an existing one, it must take a series of mandatory steps. These steps are intended to ensure that the process for developing a new accessibility standard, or for revising an existing accessibility standard, is fair, open and fully consultative. They aim to ensure that at all stages when a new accessibility standard is being developed, or when revisions to an existing accessibility standard are being considered, persons with disabilities and others have a full opportunity for input, including a full opportunity for dialogue across the table with other stakeholders, such as the private sector and the broader public sector.

Before the Government can revise an existing accessibility standard regulation, it must reconstitute the Standards Development Committee under the AODA that initially recommended that accessibility standard's enactment. That Standards Development Committee must follow all the procedures set out in the AODA to get input from the public, including the disability community.

The Standards Development Committee must then submit an initial proposal to the Government for changes to the existing accessibility standard regulation. The public must then be given a chance to comment on this proposal. After that, the Standards Development Committee must develop a final proposal, taking into account the public's input on its initial proposal.

The government can then review the Standards Development Committee's final proposal and decide what changes, if any, it wants to make to the existing accessibility standard regulation. Only after that can the Government post a draft regulation on the internet for public comment, in order to amend an existing accessibility standard regulation. After that, the government must assess the public feedback it receives on its posted regulation. Once all of that is done, the government can pass a regulation that amends an existing accessibility standard regulation.

It is open to the Government at any time after an accessibility standard regulation has been enacted to assign the Standards Development Committee to review it and make recommendations to revise it. IN any event, the AODA requires the Government to assign the Standards Development Committee to review that existing accessibility standard regulation and to recommend any needed changes no later than five years after the existing accessibility standard regulation was enacted.

Section 9(9) of the AODA provides in material part:

"9 (9) Within five years after an accessibility standard is adopted by regulation or at such earlier time as the Minister may specify, the standards development committee responsible for the industry, sector of the economy or class of persons or organizations to which the standard applies shall, (a) re-examine the long-term accessibility objectives determined under subsection (2); (b) if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025 and the time-frame for their implementation; (c) develop another proposed accessibility standard containing such additions or modifications to the existing accessibility standard as the standards development committee deems advisable and submit it to the Minister for the purposes of making the proposed standard public and receiving comments in accordance with section 10; and

(d) make such changes it considers advisable to the proposed accessibility standard developed under clause (c) based on the comments received under section 10 and provide the Minister with the subsequent proposed accessibility standard."

Several years ago, your government commendably appointed Standards Development Committees to develop recommendations for accessibility standards in the areas of transportation, of information and communication, and of employment. In June 2011, as a result of the extensive work of those Standards Development Committees, and after very extensive direct Government discussions with us, with the broader disability community and with other stakeholders, your government ultimately enacted the 2011 IAR.

Your government will be obliged to reconstitute these Standards Development Committees, or an amalgamation of those Committees, to review that regulation within five years of its 2011 enactment. Those Standards Development Committees will be able to recommend any additions, changes or revisions to the 2011 IAR. To date, your government has not reconstituted those Committees, or an amalgamation of those Committees, to undertake a review of the 2011 IAR.

Put simply, your government cannot unilaterally post a draft regulation with proposed amendments to the 2011 IAR, now, without first subjecting it to a Standards Development Committee process. Your Government cannot pick and choose when it will follow the AODA's mandatory requirements.

This is not some tedious technicality. The AODA provisions governing the development, review, and revision of accessibility standards were the product of very extensive discussions, consultations and negotiations between 2003 and 2005 with all stakeholders, including the disability community.

Many Ontarians with disabilities fought long and hard for this legislation. Many Ontarians with disabilities campaigned vigorously to ensure that the legislation included important safeguards like the ones just described, to protect the accessibility standards that are developed and enacted under it.

Even then, since the 2005 enactment of the AODA, we have also had to campaign vigorously to try to get added protections for the Standards Development Committee process. For example, after 2005, when your government initially established its first Standards Development Committees, it did not ensure that people with disabilities had equal representation on those committees. Our community, and its concerns, were outnumbered, under-represented and overpowered.

As a result of that unfairness, on September 14, 2007, Premier McGuinty made a series of election commitments at our request. He promised to ensure that persons with disabilities would have 50% representation on all Standards Development Committees. He pledged that every recommendation that a Standards Development Committee considered could be separately voted on clause-by-clause to ensure that our voices could be fairly heard. He committed that Standards Development Committees could consult with the public including the disability community. He promised that disability sector representation on each Standards Development Committee would

have new Ministry staff support to assist them. Premier McGuinty's September 14, 2007 letter to us, setting out his election commitments, is available at http://www.aodaalliance.org/strong-effective-aoda/09142007.asp

Your Government here in effect proposes to end-run both important protections for persons with disabilities in the legislation itself and the added guarantees set out in the Premier's important 2007 election commitments.

This is not fair. It also sends very bad signals to the public. If the Government is not going to strictly obey the AODA, how can it expect others to do so? For the Government to do this now implies that anyone, unhappy with an existing accessibility standard regulation, can try to end-run the legislation by simply asking you and your Ministry to amend that existing accessibility standard regulation without first submitting the issue to the mandatory Standards Development Committee deliberative process.

2. The AODA Creates No Exception or Exemption for Minor or Technical Amendments to an Accessibility Regulation

It is no answer to our concerns that your government's August 15, 2012 web posting calls these proposed amendments to the 2011 IAR minor and technical changes, said to be aimed at clarifying the IAR and making it easier for organizations to comply. The Ministry's website's August 15, 2012 posting on these amendments states:

"The draft standards also propose minor technical amendments to the Integrated Accessibility Standards Regulation to:• clarify some of the requirements• make it easier for organizations to implement them."

Nothing we have found in the AODA creates such an exception or exemption from the mandatory standards development process that we described earlier in this letter. Your government's new approach to amending an existing accessibility standard regulation creates a dangerous loophole through which a truck might later be driven.

By your government's new approach, it can at any time amend any accessibility standard to make it "easier" for an organization to comply with that accessibility standard, without first submitting the issue to a Standards Development Committee. Your government could presumably unilaterally repeal any requirement in a standard, or lengthen any time line in a standard, that you've already passed into law. To repeal barrier removal and barrier prevention requirements would make it easier for an organization to comply. To lengthen time lines for removing and preventing barriers would also make it easier for an organization to comply. That could gut a standard without any of the safeguards in the legislation for which we fought so long and hard.

Such a lopsided view of the process for developing or amending accessibility standards is unfair to people with disabilities. It undermines the goal of achieving full accessibility for all Ontarians with disabilities by 2025.”

Our letter to Minister Milloy later made this additional point that also applies equally here:

“6. The Government Will Leave a Cloud of Uncertainty over the Validity of any Amendments to the IAR Enacted in This Incorrect Way

To enact amendments to the 2011 IAR without complying strictly with the requirements of the AODA, will leave a cloud over those amendments. Organizations in the public and private sectors will not be certain if they were lawfully enacted. They will not know whether they should comply with the amendment, or with the original regulation before it was amended.

This too does a major disservice to people with disabilities and to organizations in the public and private sectors who are obliged to comply with AODA accessibility standards. They should be able to have confidence that the Government has strictly followed the AODA in developing them.“

As our August 29, 2012 AODA Alliance Update stated regarding the Government’s attempts to take similar action as here:

“We would raise objections even if we liked all the proposed amendments, and even if they were all improvements in protections for people with disabilities."

In 2012, in the face of our strong objection, the Government commendably did not pass any of those proposed amendments to the Integrated Accessibility Standards Regulation that had nothing to do with the accessibility of public spaces. The August 29, 2012 AODA Alliance Update that made this issue public, including our letter to Minister Milloy, is available at http://www.aodaalliance.org/strong-effective-aoda/08292012.asp

What we have said so far in this analysis is ample to show that it is wrong for the Government to proceed as it here proposes. Making this even worse, two of the four changes that the Government seeks to now slip through without obeying the AODA are the same or virtually identical to those which, among others, the Government tried to slip through in August 2012, i.e. until we objected to it. The Government’s August 15, 2012 posting proposed amending the Integrated Accessibility Standards Regulation as follows, among other things:

“• Accessible formats and communications support for employees: removing duplicative requirement for employers to consult with employees when determining formats and supports• Courtesy seating: amending ‘courtesy’ seating references to ‘priority’ seating”

Back in August 2012, we had emphasized to the Government that if it wished to enact such changes to the Integrated Accessibility Standards Regulation, it had a readily-available way to do so. It could easily have constituted a Standards Development Committee under the AODA to consider these proposals. The AODA let the Government appoint such a Standards Development Committee any time it wished. Yet the Government never did so.

In late 2012 and January 2013, the Government announced it planned to designate the Accessibility Standards Advisory Council to consider future proposals for accessibility

standards, both new ones and revisions of old ones. ASAC was meant to be available to work on developing and reviewing accessibility standards on an ongoing basis, as needed. The Government has had fully three years to submit these proposed amendments to ASAC. ASAC had vast amounts of available time during which it could consider this. During most of the intervening time, the Government had not assigned ASAC any new accessibility standards to develop, and no existing ones to review. ASAC spent a few months in late 2013 to early 2014 reviewing the Customer Service Accessibility Standard. Otherwise, it was ready and available for action.

To the Government, it may seem inconvenient to have to go through the process that the AODA requires for any and all revisions to an AODA accessibility standard. However, that is the law. The Government is not above the law. Moreover, it is a law that this very Government was justifiably proud to have enacted.

In its many formal and informal discussions with us since the fall of 2012, the Government has not put these specific proposals back on the table. Had it done so, it would have received the same response from us – urging it to constitute ASAC or some other Standards Development Committee to review the proposals, as the AODA requires.

The “priority seating” proposal relates to the transportation accessibility requirements in the Integrated Accessibility Standards Regulation. Those transportation accessibility requirements are required to be subject to a five year Standards Development Committee review, commencing in the next short while. That is where this priority seating” issue should be submitted.

As such, the Government should withdraw these proposed amendments to the Integrated Accessibility Standards Regulation, as it did in the 2012 fall. The Government should submit them to the required standards development process.

In the face of this concern, we anticipate that the Government might point to the 2014 report of the Mayo Moran AODA Independent Review as supporting a need for the Government to be able to make minor amendments to an AODA accessibility standard without having to subject these to the full Standards Development Committee process. Mayo Moran’s Report states:

“Enable minor revisions to standards.As noted in the What the Review Heard section, stakeholders highlighted a host of gaps and deficiencies in the five standards now in place. Some issues are a matter of interpretation and could be addressed through more proactive guidance from the ADO. Others seem to call for regulatory changes but are not urgent and should be set aside until the five-year review of the affected standard by ASAC. Still others, however, involve minor regulatory amendments that warrant more immediate action because the current wording makes implementation and enforcement difficult.

Some doubts exist about whether the current process under the AODA provides the means to make small mid-stream changes to standards. This is an undesirable situation. I was frequently told about issues with various standards that were widely acknowledged to be problematic but will apparently nonetheless remain as is until the five-year review takes place. This category

includes, for example, inconsistencies between AODA standards and other legislation or regulations. It is important to have a process for ongoing adjustment and calibration of the standards in order to ensure that they are achieving the goals that they were designed to achieve. Otherwise, the rigidity risks undermining confidence in the wisdom of the system.

Some stakeholders have expressed the view that no changes to standards can be made outside the full standards review process under the legislation. On the face of it, I see nothing that would prevent amending an accessibility regulation once made. However, if this authority is found lacking, the AODA should be revised to provide it. It goes without saying that the Government would be expected to consult with affected stakeholders – including persons with disabilities – in the course of developing such minor amendments.”

The Moran Report does not and cannot make it lawful for the Government to amend an AODA accessibility standard without complying with the AODA’s provisions regarding the standards development process. In the Report, Mayo Moran said that she didn’t see any reason why the Government cannot do so. Respectfully, she is wrong on this score.

Her Report provides no persuasive analysis to support what appears to be an equivocal, cursory and conclusory view. It would not be binding on a court. The Report’s two key sentences from the preceding passage state:

“On the face of it, I see nothing that would prevent amending an accessibility regulation once made. However, if this authority is found lacking, the AODA should be revised to provide it.”

6. The Government Proposes a Counter-productive Backwards Step regarding Customer Feedback on Accessibility Barriers in an Organization’s Goods, Services or Facilities

The Government's November 9, 2015 Summary announces a change that at first appears to be purely cosmetic. Yet on closer inspection, it is a source of real concern. It can only slow progress towards a fully accessible Ontario.

The Government's November 9, 2015 Summary states:

“Title of feedback process section• The title of this section would be changed from “Feedback process for providers of goods or services” to “Feedback process on the accessible provision of goods, services or facilities”.The proposed new title of the section is intended to clarify that the requirements relate to receiving feedback on the accessibility of the provision of goods, services and facilities, rather than the accessibility of the goods, services and facilities themselves.”

Ordinarily a mere change of the title of a section in a regulation would make little if any difference to anyone, other than lawyers and bureaucrats. However, what the Government here aims to do is a real concern.

The Government wants to change this section title so members of the public won’t think that when they give an obligated organization customer feedback on accessibility, that can include

feedback on the accessibility or inaccessibility of the goods, services or facilities that the organization offers to the public. Yet section 1 of the Ontario Human Rights Code guarantees to every person the right to equal treatment with respect to goods, services and facilities without discrimination because of disability. The Human Rights Code imposes on organizations the duty to accommodate people with disabilities, including vis a vis the accessibility of their goods, services or facilities, up to the point of undue hardship to that organization, where this is needed to ensure equality of opportunity.

The AODA seeks to make these human rights a reality by 2025, without people with disabilities having to bring human rights complaints against each barrier they face, one at a time. Flying in the face of that goal, the Government wants obligated organizations to think it is good to ask customers about barriers in getting customer service in their establishment, but not to hear from their customers about accessibility barriers in their goods, services or facilities.

This proposal reflects an impoverished and counter-productive view of the AODA’s goals, and of accessible Customer Service. What possible harm can be done, if a customer tells an obligated organization about accessibility problems with their goods, services or facilities? The Government should want to encourage this. if organizations learn about these barriers from their customers, they can aim to get them fixed, or find more accessible goods, services or facilities to offer the public. The AODA’s goal of full accessibility in Ontario by 2025 is not achieved if every organization provides Customer Service that is accessible, but only goods, services and facilities that are entirely inaccessible.

7. The Government Proposes Cosmetic Packaging Changes that Will Make No Difference for Achieving Accessibility for People with Disabilities, or Whose Impact Is Insufficiently Clear to Be Assuredly Harmless

According to The Government's November 9, 2015 Summary, the Government proposes to repeal the short Customer Service Accessibility Standard and to re-enact its requirements as part of the Integrated Accessibility Standards Regulation. This is purely cosmetic. It does not strengthen any protections for people with disabilities. It does not speed up progress towards full accessibility in Ontario by 2025.

The Government's November 9, 2015 Summary also proposes to make changes to the Customer Service Accessibility Standard regarding the provision of opportunities for customer feedback, and for documents to be provided under the Customer Service Accessibility Standard via accessible information and communication. From what we read in The Government's November 9, 2015 Summary and in the ASAC proposals on which they are based, this will do nothing for people with disabilities. The existing information and communication provisions that are already in the Integrated Accessibility Standards Regulation already impose these accessible information and communication requirements vis a vis such things as feedback by people with disabilities on Customer Service, and documents that an organization provides to the public.

This proposed amendment appears to be an empty, cosmetic change. It is difficult to see why the Government is taking such pointless steps, when real improvements to Customer Service are needed, and remain unaddressed we provide examples of those later in this Analysis.

The Government also proposes to change key terminology in the Customer Service Accessibility Standard. The Government’s November 9, 2015 Summary states:

“All references to “policies, practices and procedures” would be changed to “policies” throughout the Customer Service Standard.”

Until we see the actual wording of the proposed amendment, we cannot tell if this is merely cosmetic, or whether it will reduce the scope of protections for people with disabilities under the Customer Service Accessibility Standard. The Government has elsewhere shown that it is prepared to violate Premier Wynne’s promise not to reduce protections for people with disabilities in the AODA or standards enacted under it. Every such wording change must be carefully scrutinized for this risk.

We cannot do so simply by reading this short passage in the November 9, 2015 Summary. We will need to be persuaded that the term “policies,” standing alone, will be broad enough to always include an organization’s practices and procedures even if that organization does not treat those practices or procedures as a policy. If it is not, then we must oppose this change as a reduction in protections and provisions for people with disabilities –something Premier Wynne promised she would not do.

The November 9, 2015 Summary says the Government proposes this change to align the Customer Service Accessibility Standard language with the language in the Integrated Accessibility Standards Regulation. Such goals of legal housekeeping are not so important that they can justify a reduction in the legal protections for people with disabilities. If that were the price of merging the Customer Service Accessibility Standard with the Integrated Accessibility Standards Regulation, then that merger should not take place.

The November 9, 2015 Summary also says the Government proposes to redefine who must be trained on accessible Customer Service, to bring it in line with who must be trained on other accessibility requirements under the Integrated Accessibility Standards Regulation. It is impossible to tell from that Summary whether this maintains, reduces or expands the number of people who must receive accessibility training. We need the Government to show that it is expanding and not in any way reducing existing training requirements under the Customer Service Accessibility Standard. If it is maintaining the same requirement as now exists under the Customer Service Accessibility Standard, then this is purely cosmetic. If it is expanding the number of people to be trained, we support it. If it reduces the range or number of people who need to be trained, we oppose it as a reduction in protections and provisions for people with disabilities, which Premier Wynne promised the Government would not reduce. Two AODA Independent Reviews, by Charles Beer in 2010 and by Mayo Moran in 2014, show that there is need for much more AODA accessibility training in Ontario, not less.

8. The Government Proposes Some Minor Improvements that, Though Helpful, Won’t Significantly Strengthen the Customer Service Accessibility Standard

The Government proposes to amend the Customer Service Accessibility Standard so that it

applies to the provision of “facilities,” and not just goods and services. This is helpful.

Yet it cannot be viewed as a game-changer that will make a discernable difference in the lives of people with disabilities. We know of no situation over the last 8 years where an organization avoided compliance with this accessibility standard because it only provided a facility, not a good or a service.

The Government makes it clear in its November 9, 2015 Summary that this change should mean nothing for people with disabilities. The Summary states:

“This is not intended to change which organizations are obligated to meet requirements under the Customer Service Standard, which currently applies to “providers of goods or services.”

Making this worse The Government's November 9, 2015 Summary also states regarding this proposed change:

“This is not intended to require organizations to alter physical facilities.”

It is deeply troubling that the Government still believes that making an organization’s physical premises more accessible has nothing to do with the provision of accessible Customer Service. This too reflects an impoverished approach to accessibility for people with disabilities and the AODA’s goals.

The Government proposes to expand the definition of a service animal, to include those authorized by doctors, nurses, audiologists, speech and language pathologists, chiropractors, occupational therapists, optometrists, physiotherapists, psychologists, and certain other therapists. Again, this is helpful. However it still does not get at the root of the problem facing people with disabilities who use service animals.

The recurring problem repeatedly reported in the media, and about which we too often hear, involves restaurants and taxis that still simply bar service animals, regardless of the animal’s documentation. When a taxi driver simply drives away at the sight of a service animal, the problem would not be solved by having a letter in hand from a doctor or other health professional saying the animal is legitimately needed. This problem of ongoing failure of accessible Customer Service persists in 2015 due to the well-known lack of the Government’s promised effective AODA enforcement.

9. The Government Should Reconsider and Make Needed Improvements to the Customer Service Accessibility Standard that It So Far Has Disregarded or Rejected

Even with the Government’s proposed changes, the Customer Service Accessibility Standard will remain far too weak under it. Customer Service in Ontario will not become fully accessible by 2025, or ever. This would violate Premier Wynne’s December 3, 2012 written promise to Ontarians with disabilities that she would ensure that Ontario is on schedule for full accessibility by 2025.

It is important for the Government to now significantly strengthen the 2007 Customer Service Accessibility Standard. The next mandatory review of that standard will not take place until 2022, just three years before the Government must have led Ontario to full accessibility.

As our April 4, 2014 brief to ASAC showed, among the deficiencies with this accessibility standard are the following:

• It lacks needed specificity. It doesn’t include the key requirements of an AODA accessibility standard. It doesn’t specify the barriers that need to be removed and/or prevented, and doesn’t set out time lines for completing these tasks. It largely delegates to service providers far too much unaccountable and unreviewable discretion to choose what barriers to remove and prevent, and to choose the time lines for removing and preventing them…

• It weakly requires a service provider to “use reasonable efforts to ensure that its policies, practices and procedures fulfill a series of broad principles.” This doesn’t ensure that the policies and practices that a service provider establishes will be strong and effective. This limited obligation is potentially difficult to enforce.

• It doesn’t require service providers, and particularly larger organizations, to put in place an effective means for accountably delivering accessible customer service.

• Although it is good that the standard requires service providers to have a system in place to get feedback from patrons with disabilities, it doesn’t require persons in position of authority such as senior management to be notified of any of the feedback received, nor does it provide for any accountability whatsoever for action taken on such feedback.

Among the improvements to the 2007 Customer Service Accessibility Standard that we recommended to ASAC and to the Government, and which neither has to date accepted, were the following, which we again urge:

• strengthen purpose of the Standard

• redefine classes of organizations under the Standard

• include in the standard comprehensive provisions targeted at specific recurring barriers and specific required corrective action

• revise the standard to effectively address accessibility barriers in the built environment that impede accessible customer service

• ensure that signage is accessible and doesn't create barriers. As but one obvious and glaring example, establishments that serve the public should have accessible signage on their public bathrooms.

• ensure timely snow removal to ensure physical accessibility

• expand the duty to provide accessible point-of-sale devices and self-service kiosks

• prohibit any surcharge for accessible customer service

• require organizations to review their goods, services and facilities for barriers and work toward providing goods, services and facilities that are disability-accessible

• require organizations to publicly post and file with the government their service accessibility policies

• require regularly and effectively publicizing for customers the availability of accessibility supports and opportunities for giving feedback to the organization

• in larger organizations, provide a one-stop staff person to be available when needed for customer service accommodation and accessibility support

• improve customer service training

• require organization's senior management to periodically review feedback received on accessible customer service

• remove the exemption for accommodating people using service animals if otherwise excluded by law

• repeal the power to require a person with a disability to bring a support person and power to charge an additional admission fee

10. The Government Should Now Launch a short, Focused and Inclusive Consultation with Stakeholders Together to Develop Meaningful Improvements to the 2007 Customer Service Accessibility Standard

We regret that the Government has now spent over two years on the process of reviewing the Customer Service Accessibility Standard, without presenting a package of improvements that would make a substantial difference in the lives of people with disabilities. This is all the more troubling, since the 2014 Mayo Moran AODA Independent Review reported last year that after ten years on the books, the AODA had not made a significant difference in the lives of people with disabilities. Ontario is not on schedule for reaching full accessibility by 2025, as the AODA requires. The Government’s flagging implementation of the AODA needs revitalization, according to both the 2010 Charles Beer AODA Independent Review and the 2014 Mayo Moran AODA Independent Review. The Government’s proposed amendments to the 2007 Customer Service Accessibility Standard simply extend that unhelpful trend. Ontarians with disabilities deserve better.

We urge the Government to now bring to a single table representatives from the disability community, the broader public sector, and the private sector. Let’s quickly hammer out a list of real improvements to the Customer Service Accessibility Standard that will comply with the

Government’s promises on the AODA, and that will significantly improve the accessibility of Customer Service in Ontario.

We are eager to help make such a process succeed. If the Government is open to efforts at expanding the range of amendments to the Customer Service Accessibility Standard, we will later offer further suggestions for improving that standard.

In contrast to this approach, the Government’s current plans for public input into its proposed changes is seriously flawed. Assistant Deputy Economic Development Minister Ms. Ann Hoy’s November 9, 2015 email to disability sector stakeholders, set out below as Appendix 2, states:

“The draft regulatory amendments are posted on the Ontario government’s Regulatory Registry website for public comment for 45 days.”

As far as we have been able to discover, this statement is inaccurate. We could find no draft amendments to the Customer Service Accessibility Standard on the Ontario Government’s Regulatory Registry. When we went to the URL that Ms. Hoy’s November 9, 2015 email provides, we did not find that draft regulation there, nor a link to it, nor information on how to find it. All we could find on the Government’s Regulatory Registry site as of November 15, 2015 was a link that takes one back to the summary of its intended amendments that the Government posted on the page to which Ms. Hoy’s email points the reader.

That summary is just that—a summary. Under section 39(4) of the AODA, the Government must post the actual draft regulation, and not just a summary, for 45 days, in order for the public to be able to comment on it. As such, the Government has not yet taken the legally required step to enable it to pass any amendments to the Customer Service Accessibility Standard.

In 2010, before the Government finalized the Integrated Accessibility Standards Regulation to address barriers in employment, transportation and information and communication, it commendably posted a summary of its intended new accessibility standard for public input. It did this before it later posted a draft regulation for public comment. This was a helpful and constructive process.

In sharp contrast, here, the Government did not say it is now posting only a summary of the intended draft regulations, to be followed later by a posting of the draft regulations themselves after the Government receives public input on this summary. Instead, the Government here claims it actually posted the draft regulation itself. As just explained, posting the actual draft regulation triggers a 45 day clock after which the regulation can be enacted, and without which the regulation cannot be enacted.

We tried without success to find actual draft regulations on any Government website. We found none. It is more than ironic that the web page to which Ms. Hoy’s November 9, 2015 points has the heading “ServiceOntario: Making It Easier - Government of Ontario, Canada.”

Moreover, the Government is giving the public from November 9, 2015 until December 31, 2015 to give input on its proposals. This is inadequate for two reasons.

First, the Government has yet again done a very poor job of letting the public know about this consultation. As far as we can tell, it has simply sent out a November 9, 2015 email to organizations on its accessibility-related email list, posted the information set out below on its website, and possibly send a few tweets about it on Twitter.

The vast majority of Ontarians who are not on the Government’s accessibility list, and who don’t follow the Government’s accessibility tweets or troll its websites for new accessibility standards proposals, will know nothing about this opportunity for input. The Government issued no news releases, and gave no interviews to the media on this, as far as we can tell.

This is made all the more troubling by the findings in the 2010 and 2014 Independent Reviews of the AODA, which the Government appointed. They found that there is far too little awareness of the public, including in the business community, about the AODA.

Second, the Government is wrongly including the year-end holiday period in its consultation period. The Government knows that many people are off on holidays over this period. Many community organizations close down or reduce to skeleton crews, over this period. In the past we have called on the Government to ensure that its consultation periods be scheduled to accommodate the known availability of those who would want to give input. This period should not end on December 31, 2015.

APPENDICES

APPENDIX 1 - Key Passage from the November 12, 2014 AODA Alliance Update Responding to ASAC’s Final Proposals for Amending the 2007 Customer Service Accessibility Standard

On Friday, November 7, 2014, the Government made public the weak and toothless final proposal for revisions to the Customer Service Accessibility Standard that was prepared earlier this year by the Accessibility Standards Advisory Council (ASAC). We set out ASAC’s proposals below. ASAC is the body which the Government appointed to develop proposals for new accessibility standards and for revisions to existing standards under the AODA.

Under the AODA, the Government must direct the review of any accessibility standard that has been on the books for five years. The Customer Service Accessibility Standard was enacted in 2007. Its review was required to start in 2012. However, the Government delayed appointing all members of ASAC until mid-2013. That delayed the start of this mandatory review of the Customer Service Accessibility Standard for over a full year beyond its legal deadline, contrary to the AODA.

ASAC’s proposals that were just made public are palpably weak, paltry and ineffective. They ignore most if not all of the detailed, constructive input that the AODA Alliance submitted to ASAC earlier this year. ASAC’s proposals would do nothing significant to improve the accessibility of customer service in Ontario for people with disabilities.

Making things worse, ASAC actually recommends that the Government cut back on the already-weak provisions of the existing Customer Service Accessibility Standard that was enacted in 2007. Its proposal would reduce obligations under that Standard for many of the very same private sector organizations which since January, in huge numbers, have been violating mandatory requirements in the 2007 Customer Service Accessibility Standard. The Government has known about those massive violations of the AODA since January 2013.

If the Government adopted ASAC’s flawed proposal, it would wrongly reward that massive law-breaking by reducing the obligations of those obligated organizations under the Customer Service Accessibility Standard. That would send the wrong signal to obligated organizations. Instead, the Government at last needs to keep its unkept promise to effectively enforce the AODA, rather than wrongly reducing the AODA obligations of organizations that have in massive numbers been violating this law with impunity.

For the Government to follow ASAC’s advice in this regard would also violate the Government’s promise not to cut back on accessibility protections we have previously won. We call on the Wynne Government to confirm that it will keep its word to us, and that it will not cut back on any existing accessibility standards provisions.

ASAC also proposes to preserve in the Customer Service Accessibility Standard a provision which should never have been there in the first place, because it wrongly creates a barrier against people with disabilities. An accessibility standard cannot create barriers against people with disabilities. An accessibility standard is supposed to tear down disability accessibility barriers.

Now the 2007 Customer Service Accessibility Standard wrongly lets an organization dictate to a customer with a disability, in some situations, that the customer must bring his or her own support person at their own expense, or else entry can be barred. It wrongly lets the organization charge people with disabilities a second admission for that support person, even if the customer doesn’t want a support person, or feel they need one.

Rather than recommending that the Government repeal this unlawful provision in the 2007 Customer Service Accessibility Standard, ASAC merely recommends some minor tinkering with its wording.

The Government is required to post ASAC’s proposals for at least 45 days. The public can submit comments to the Government on these. After that, the Government will decide what changes, if any, it will make to the Customer Service Accessibility Standard. In the face of ASAC’s seriously deficient proposals, we will ourselves go directly to the Government, with our own agenda for meaningful improvements to the Customer Service Accessibility Standard.

We urge the Government to immediately instruct the Accessibility Directorate of Ontario to develop meaningful, strong revisions to the Customer Service Accessibility Standard, that are not constrained by the weak and counterproductive proposals that ASAC has submitted. The Accessibility Directorate of Ontario is part of the Ministry of Economic Development, Employment and Infrastructure – the Ontario Government Ministry with lead responsibility to implement and enforce the AODA.

The Government should use the AODA Alliance’s April 4, 2014 brief to ASAC as the basis for these reforms. We would welcome the chance to work with the Government and other stakeholders on this.

This is ASAC’s first foray into proposing contents for accessibility standards, since the Government decided in 2012 to assign the development of proposals for accessibility standards to ASAC. We regret that, so far, the Government’s 2012 reform to the process for developing accessibility standards in Ontario has turned out to be an abysmal and abject failure.

To read the AODA Alliance’s April 4, 2014 brief to ASAC, recommending substantial improvements to ASAC’s initial proposals (recommendations which ASAC has evidently opted to reject), visit http://www.aodaalliance.org/strong-effective-aoda/04082014.asp

To read ASAC’s initial proposal for revisions to the 2007 Customer Service Accessibility Standard, posted for public comment on March 3, 2014, visit http://www.aodaalliance.org/strong-effective-aoda/03142014.asp

To read the AODA Alliance’s September 12, 2007 critique of the 2007 Customer Service Accessibility Standard, visit http://www.aodaalliance.org/strong-effective-aoda/09122007.asp

APPENDIX 2 - November 9, 2015 Email from Assistant Deputy Minister of Economic Development, Employment and Infrastructure Ann Hoy to Several Disability Organizations

Dear Disability Working Group Members,

I am writing to inform you of recent changes and proposed amendments to the accessibility laws in Ontario. We wanted to thank you for your input on these initiatives.

The government is proposing amendments to the Customer Service standard to clarify and streamline requirements based on advice from the Minister’s Standards Development Committee.

The draft regulatory amendments are posted on the Ontario government’s Regulatory Registry website for public comment for 45 days.

Comments can be made on the Regulatory Registry: http://www.ontariocanada.com/registry/view.do?postingId=20303&language=en

As committed to in The Path to 2025: Ontario’s Accessibility Action Plan, the government has repealed sections of the Ontarians with Disabilities Act (ODA), 2001 which are comparable to those addressed in the Accessibility for Ontarians with Disabilities Act (AODA), 2005 or its regulations, which will reduce the burden on municipalities and public sector organizations without impacting the effectiveness of the regulations or the Act.

The AODA remains Ontario’s primary accessibility law and municipalities and public sector organizations will continue to be required to comply with applicable requirements in that statute and its regulations.

The updates to the ODA may be found on E-Laws: https://www.ontario.ca/laws/statute/01o32?search=ontarians+with+disabilities+act

Thank you for your continued interest in accessibility for all Ontarians.

Sincerely,

Sent on behalf of Ann Hoy

APPENDIX 3 - November 9, 2015 Ontario Government Web Posting on Proposed Amendments to the Customer Service Accessibility Standard

Originally posted at http://www.ontariocanada.com/registry/view.do?postingId=20303&language=en

ServiceOntario: Making It Easier - Government of Ontario, Canada Regulatory RegistryMinistry of Economic Development, Employment and Infrastructure proposed changes to accessibility regulations Regulation Number(s): O. Reg. 429/07- Accessibility Standards for Customer ServiceO. Reg. 430/07 – Exemption from Reporting RequirementsO. Reg. 191/11 – Integrated Accessibility StandardsBill or Act: Accessibility for Ontarians with Disabilities Act, 2005 Summary of Proposal: The proposed amendments to the Customer Service Standard are largely based on recommendations from the review of the Standard by the Accessibility Standards Advisory Council/Standards Development Committee in 2013-2014. This proposal includes:• Incorporating the Customer Service Standard into the Integrated Accessibility Standards Regulation and making changes to requirements of the Standard;• Making changes to the Integrated Accessibility Standards Regulation to reflect the addition of the Customer Service Standard;• Consequential revocation of O. Reg. 429/07 Accessibility Standards for Customer Service and O. Reg. 430/07 Exemption from Reporting Requirements, since the substantive content of these regulations would be now incorporated into the Integrated Accessibility Standards Regulation; and• Making technical/administrative changes to the Integrated Accessibility Standards Regulation to clarify some of the requirements and make it easier for organizations to implement them.

The Ministry has prepared a detailed summary of the proposed changes for public review and comment. The Ministry is proposing that these changes be enacted on July 1, 2016, and take

immediate effect.

See links below for more information on this proposal.

Notice to Consultation Participants:

Accessible formats and communications supports will be provided upon request.

Personal information provided in response to this consultation is collected under the authority of sections 9 and 10 of the Accessibility for Ontarians with Disabilities Act, 2005 and subsection 38(2) of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990. F. 31. The personal information collected may be used by the Ministry of Economic Development, Employment and Infrastructure to analyze responses and for consultative purposes and to contact you if we wish to clarify your responses. No personal information or comments that are received will be posted publicly or published. Further Information: Accessibility for Ontarians with Disabilities Act, 2005 O. Reg. 429/07 Accessibility Standards for Customer Service O. Reg. 191/11 Integrated Accessibility Standards O. Reg. 430/07 Exemption from Reporting Requirements The Review of the Accessibility Standard for Customer Service Detailed Summary_Accessible PDF Format (Download Adobe Reader) Detailed Summary_Accessible Word Format Proposal Number: 15-MEDEI006 Posting Date: November 9, 2015 Comments Due Date: December 31, 2015 Contact Address: Accessibility Directorate of Ontario Ontario Ministry of Economic Development, Employment and Infrastructure Suite 601A, 777 Bay StreetToronto, Ontario M7A 2J4

Email: Stephanie.VanLaeken@ontario.caEmail: Heather.E.Sinclair@ontario.ca Comment on this proposal via email

##APPENDIX 4: Detailed Summary – Proposed Amendments to the Customer Service Standard Regulation and the Integrated Accessibility Standards Regulation Made Under the Accessibility for Ontarians with Disabilities Act, 2005Based largely on a review of the Accessibility Standards for Customer Service (often referred to as the Customer Service Standard Regulation) (O. Reg. 429/07) made under the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”) completed by the Accessibility Standards Advisory Council/Standards Development Committee in 2013-2014, Government is proposing the following changes to the requirements

of the Customer Service Standard. In addition, government is proposing minor amendments to the Integrated Accessibility Standards Regulation (O. Reg. 191/11) made under the AODA. All proposed changes are subject to internal review and approval, and the content of the final amendments may change. Given that both regulations may be combined into one regulation, other changes may also be required.

Subject to such internal approvals as are applicable, the Ministry is targeting an effective date of July 1, 2016 for these regulatory changes.

All comments and submissions received will become part of the public record. You will not receive a formal response to your comment; however, relevant comments received as part of the public participation process for this proposal will be considered by relevant decision makers.

Changes to the Customer Service Standard

Incorporate Requirements of O. Reg. 429/07 (Customer Service Standard) into O. Reg. 191/11 (Integrated Accessibility Standards)

The intent of this proposed change is to house all accessibility standards under one comprehensive regulation.

Amend Requirements Under the Customer Service Standard

References to “goods and services” changed to include facilities throughout the Standard

All references to “goods and services” would be changed to “goods, services and facilities.” The proposed change is intended to match the Integrated Accessibility Standards Regulation, which states that it applies to every organization that provides “goods, services or facilities to the public or other third parties and that has at least one employee in Ontario.” The intent is to require the process by which customers access facilities (e.g., the process of renting a venue) to be accessible. This is not intended to change which organizations are obligated to meet requirements under the Customer Service Standard, which currently applies to “providers of goods or services.” This is not intended to require organizations to alter physical facilities. Definitions and types of obligated organizations The language used for types of organizations and definitions under the Integrated Accessibility Standards Regulation would be applied to the Customer Service Standard. The proposed changes would classify obligated organizations consistently across all accessibility standards. This change is also intended to align the “class structure” of organizations under the Customer Service Standard and other accessibility standards. Currently, under the Integrated Accessibility Standards Regulation, organizations with 50 or more employees have certain additional documentation requirements as compared to organizations with between 20 and 50 employees (e.g., written multi-year accessibility plans).

Under the current Customer Service Standard, organizations with 20 or more employees have additional documentation requirements. Changes would be made to these standards to ensure that the requirements amongst employer classifications better align.o The new Customer Service Standard would eliminate documentation requirements for organizations with 20 – 49 employees, aligning documentation requirements among all five standards. However, these organizations would still need to submit accessibility compliance reports in the same or similar manner as would large obligated organizations.Policies, practices and procedures

All references to “policies, practices and procedures” would be changed to “policies” throughout the Customer Service Standard. The proposed change would align language and terminology across all accessibility standards.Definition of “service animal”

The definition of “service animal” in the Customer Service Standard would be changed to grant the authority to provide documentation of a need for a service animal to members of the following colleges:o College of Physicians and Surgeons of Ontarioo College of Nurses of Ontarioo College of Audiologists and Speech-Language Pathologists of Ontarioo College of Chiropractors of Ontario o College of Occupational Therapistso College of Optometristso College of Physiotherapists of Ontario o College of Psychologists of Ontarioo College of Registered Psychotherapists and Registered Mental Health Therapists of Ontario The authority to provide documentation would be:o based upon the assessment of a person’s disability within the scope of practice of a membero based on an established pre-existing therapeutic professional-client relationship The term “readily identifiable” within the Customer Service Standard is proposed to replace “readily apparent” to make it clearer to organizations that a service animal may be recognized through indicators or visual cues such as a vest or harness. Changing “letter” to “documentation” in the second criterion is more inclusive of the types of documents that may be provided by a physician or nurse (e.g., template, letter, form).Requiring a support person to accompany a person with a disability

Additional language would be added to the Customer Service Standard in order to clarify when an organization may require a support person to accompany a person with a disability for reasons of health and safety. This additional language is intended to clarify that organizations may only require a person with a disability to be accompanied by a support person in very limited circumstances, when there is no other available option.Waiving fares/fees for a support person

Additional language would be added to clarify when an organization requires a person with a disability to be accompanied by a support person on the premises due to health and safety reasons, the organization would be required to waive any fare/fee for the support person that would normally be charged to a person. This requirement is intended to ensure that people with disabilities do not face a financial barrier or penalty in situations when an obligated organization determines that they must be accompanied by a support person. In these situations, a person with a disability may be charged a fare or fee, but the fare or fee must be waived for the mandatory support person.Training

Requirements on who must be trained would be changed to match language in the Integrated Accessibility Standards Regulation. Every obligated organization would have to ensure that the following people receive training about the provisions of its goods, services and facilities to persons with disabilities:o all employees, and volunteers;o all persons who participate in developing the organization’s policies; ando all other persons who provide goods, services or facilities on behalf of the organization. These proposed changes would enhance consistency with training requirements across all accessibility standards.Title of feedback process section

The title of this section would be changed from “Feedback process for providers of goods or services” to “Feedback process on the accessible provision of goods, services or facilities”. The proposed new title of the section is intended to clarify that the requirements relate to receiving feedback on the accessibility of the provision of goods, services and facilities, rather than the accessibility of the goods, services and facilities themselves.Accessibility of feedback process

Language on the channels and formats of an obligated organization’s feedback process under the Customer Service Standard would be changed. Changing how feedback is accepted matches similar requirements under the Feedback section of the Information and Communications Standard.Format of documents

This section would be revised to require an obligated organization to provide communication supports as well as accessible formats for documents required under the Customer Service Standard for persons with disabilities upon request. These must be provided in a timely manner and at no additional cost. The proposed change would align language and terminology in the Customer Service Standard with requirements under the Information and Communications Standard pertaining to the provision of accessible formats and communication supports.Revoke O. Reg. 429/07 (Customer Service Standard) and O. Reg. 430/07 (Exemption from Reporting Requirements)

The Customer Service Standard requirements would be incorporated into the Integrated

Accessibility Standards Regulation and at the same time, the Integrated Accessibility Standards Regulation would be amended to outline reporting requirements and exemptions for obligated organizations across all accessibility standards, including the Customer Service Standard. Therefore, O. Reg. 430/07 (Exemption from Reporting Requirements) would be revoked. As noted above, both the Customer Service Standard and the Integrated Accessibility Standards Regulation might be combined, which may involve revocation of O. Reg. 429/07. Details of their consolidation dependent upon the drafting process and are not yet available. The intent of combining the regulations would be to ensure that there is one regulation containing all accessibility standards under the Accessibility for Ontarians with Disabilities Act, 2005, including the Customer Service Standard.

Changes to the Integrated Accessibility Standards Regulation (O. Reg. 191/11)

The following amendments to the Integrated Accessibility Standards Regulation are proposed to reflect the addition of the Customer Service Standard and to make minor administrative/housekeeping changes.

1. Changes to Reflect the Incorporation of the Customer Service Standard

Minor Administrative/Housekeeping Amendments to the Integrated Accessibility Standards Regulation Revise provisions related to accessible formats and communications supports to employees in the Integrated Accessibility Standards Regulation to remove the duplicative requirement to consult with a person with a disability. Revise typographical errors in text by replacing “no more that” with “no more than.” Replace “courtesy seating” with “priority seating” throughout the regulation. Replace the term “pedestrian crossovers” and the definition with the following term and definition: o “Signal controlled pedestrian crossing” means a pedestrian crossing where pedestrian control signals are installed.