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425 Bloor Street East, Suite 110 (416) 482-8255 (Main) 1 (866) 482-ARCH (2724) (Toll Free)
Toronto, Ontario M4W 3R5 (416) 482-1254 (TTY) 1 (866) 482-ARCT (2728) (Toll Free)
www.archdisabilitylaw.ca (416) 482-2981 (Fax) 1 (866) 881-ARCF (2723) (Toll Free)
09 February 2007
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ARCH Alert www.archdisabilitylaw.ca 09 February 2007
ARCH Strategic Plan 2007
By Phyllis Gordon, Executive Director
The Board of ARCH Disability Law Centre is undertaking a strategic planning process to set the course for our activities over the coming few years and invites you to be a part of this process. We are seeking feedback from individuals and organizations that are familiar with our work. We have prepared a questionnaire which we invite you to complete and return to us by February 28 2007.
There are two ways to obtain the questionnaire:
1. Visit our website at www.archdisabilitylaw.ca and follow the links for the questionnaire, or
2. Phone us to request that a questionnaire be sent or emailed to you. Let us know if you need large print or alternate format.
Please return the questionnaire to us by February 28 2007:
1. By email to
2. By ordinary mail to:
Strategic Planning Committee
ARCH Disability Law Centre
110-425 Bloor Street East
Toronto, ON M4W 3R5
3. Or, you can call our office and set up a time for someone to call you back to hear your answers to these questions.
Inside This Issue01 / ARCH Strategic Plan 2007
02 / AODA Customer Service Standard
05 / Canada and the UN Convention on the Rights of People with Disabilities
07 / Supreme Court of Canada Releases Decision on Duty to Accommodate
07 / Social Benefits Tribunal finds that excluding Persons with Addictions from ODSP Violates Human Rights Code
09 / Bill 107, An Act to Amend the Human Rights Code Receives Royal Assent
10 / Reforming the Police Complaints System in Ontario
13 / Police Records Checks
14 / Federal Disability Report Released
15 / Online Resources for Providing Legal Services to Persons with Communication Disabilities
16 / New Residential Tenancies Act
18 / New ODSP Rules for Earnings and Employment
18 / Public Notices
ARCH’s Comments on Draft AODA Customer Service Standard
By Laurie Letheren and Rob Lattanzio, Staff Lawyers and Phyllis Gordon, Executive Director
Under the Accessibility for Ontarians with Disabilities Act, 2005 [AODA], accessibility standards that “set out measures, policies, practices or other requirements for the identification and removal of barriers with respect to goods, services, facilities, accommodation, employment, buildings, structures, and premises” are to be developed by committees. The first standard to be developed under the AODA was the Customer Service Standard. The draft Customer Service Standard was released for public consultation and ARCH made submissions on the Standard in December 2006.
The following is a summary of the submission prepared by ARCH. If you wish to read the full submission it can be found on the ARCH website at: http://www.archdisabilitylaw.ca/aboutARCH/lawReform/A73_2006_000000/index.asp
The submission is separated into two parts. In the first part, ARCH made general comments on the overall drafting of the Standard. In part one we also recommended that several essential components of an accessibility standard, which are absent from the proposed Customer Service Standard, needed to be added. In the second part of our submission, ARCH made comments on specific sections and language contained in the draft Standard.
Part One: Essential Components Missing
Principles of Universal Design
It is ARCH’s opinion that the Customer Service Standard and all standards developed under the AODA must be founded upon, and advance, principles of universal and inclusive design. The principles of universal and inclusive design are consistent with the AODA’s objectives of promoting accessibility for persons with disabilities.
Universal design refers to a philosophy that all environments (built structures, technological systems, policies etc.) be designed to be usable by a broad range of people. Universal design is rooted in the principles of equality and citizenship and seeks to promote full participation for all by maximizing accessibility. Full inclusion upfront, without after-the-fact adaptation or retrofitting, is the goal of universal design.
The Supreme Court of Canada, the Ontario Human Rights Commission and the United Nations in its recently adopted Convention on the Rights of Persons with Disabilities, among others, have recognized that the principles of universal and inclusive design are critical to achieving full participation for persons with disabilities in society.
By applying the principles of universal design when developing their customer service processes and policies, organizations will be able to adapt the delivery of services in ways that are both accessible to all customers and are best suited to their specific business or organization. The AODA’s vision of a fully accessible Ontario cannot be realized if the private and public sectors do not make accessibility for all an initial consideration.
“Customer Service” Not Adequately Defined
Since neither the AODA nor the Customer Service Standard defines “customer service” or “service”, it will be difficult for persons with disabilities to know what will or will not be covered. In addition, individuals and organizations may not be aware of whether their activities come within the ambit of the Standard and thus, misunderstand their obligation to comply with it.
It is ARCH’s position that all types of activities, not only where the service is “delivered” are covered by the Standard and the Standard should apply to anything that is “available” to the public, that creates an opportunity, a benefit, privilege or advantage or satisfies a need by facilitating or making available a skill, material, product, accommodation or facility available to the public.
The services covered by the Standard must be clearly identified. The Standard should include a clear and broad definition of “services” and identify examples of services that are covered. If the intention of the AODA is to be accomplished, clarity of obligations and expectations under the standards are essential.
The Proposed Standard Lacks Sufficient Prescriptive and Mandatory Language
The AODA requires that measures, policies, practices or other requirements for the identification and removal of barriers be set out in the Standard and that the persons or organizations named or described in the Standard be required to implement those measures, policies, practices or other requirements. (See AODA section 6)
It is unfortunate that the Customer Service Standard Development Committee members chose not to outline measures, policies and practices in the Standard and instead determined that “an objective-based standard would be preferred to a prescriptive approach.”
ARCH is concerned that without clear mandatory language defining customer service that is barrier free, and without providing clear examples of accessible customer service policies and practices, there will be confusion about what is covered. Effective administration of a standard requires as much guidance as possible both for the individuals and organizations with obligations under the Standard, as well as for the Director and his or her staff who will be charged with the duty of reviewing accessibility reports and making determinations of compliance. In our view it is not clear that the following services are obviously covered under the sparse language of the Standard:
§ Providing billing statements in various accessible formats
§ Being flexible on timelines and expectations when providing services to persons with intellectual or mental health disabilities.
§ Having staff assist a customer in understanding product labels or instructions.
§ Providing full and effective services to persons whose disabilities cause them to speak or act in ways that may not be within conventional social norms.
§ Including expert training on disabilities as part of all staff training.
In our submission we refer to public documents that provide examples of clear, prescriptive language and suggest that the Committee incorporate them into the Standard.
Part Two: Comments on Specific Sections and Language in the Draft Standard
Definitions and Language Use
ARCH expressed concern that many of the definitions and much of the language used in the draft Standard do not advance the purpose of the AODA or the goal of full participation and inclusion of people with disabilities. In particular, many of the definitions contained in the draft Standard make a distinction between customer services for persons with disabilities and customer services for persons without disabilities.
In addition, many of the definitions promote the doctrine “separate but equal” that are inconsistent with Ontario human rights law and the Canadian Charter of Rights and Freedoms.
ARCH also raised the issue that some of the definitions used in the draft Standard define terms differently than the definition used for the same term in the AODA. When a definition is used in the AODA, the same definition should be used in the Standard in order to avoid confusion and to adhere to the legal rules on drafting legislation and regulations.
Exceptions
Under the AODA, the Lieutenant Governor may make regulations that exempt any person, organization, building, structure or premises from the application of any provision of the AODA or the Standards. Such a regulation must also state the reasons for providing the exemption. See sections 33(3), 33(4), 39(1)(r) and 39(3) of the AODA.
The draft Customer Service Standard does not clearly state which persons and organizations are exempted from the Standard and provide reasons for the exemption. Instead, the draft Standard introduces new exceptions to the application of the Standard.
Section 2.2 of the draft Standard states that all persons and organization must provide accessible customer services except in situations where persons or organizations can demonstrate that doing so would:
a) fundamentally alter the nature of the service;
b) compromise public safety), and
c) result in non-compliance with another statute.
These three exceptions do not comply with the test under the Human Rights Code of Ontario [Code] that is to be applied when determining whether the needs of a person with a disability have been accommodated. Under the Code, in order to determine whether the needs of the person with a disability have been met, one must determine whether the person has been accommodated to the point of undue hardship. As has been confirmed by the Supreme Court of Canada, this is the legal test that must be applied under the Code. It is our view that the Standard must not propose a lesser test of accommodation in outlining exceptions to the Standard. To do so would both violate the Code and defeat the purpose of the AODA. It is also inconsistent with sections 3 and 38 of the AODA which provide:
s. 3 Nothing in this Act or in the regulations diminishes in any way the legal obligations of the Government of Ontario or of any person or organization with respect to persons with disabilities that are imposed under any other Act or otherwise imposed by law.
s. 38 If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.
Classes
The Standard can apply differently to different classes of persons or organizations and the AODA proposes that persons or organizations may be classed by certain characteristics such as size, type of industry or number of persons employed.
The draft Standard has created classes according to the number of persons employed. It is ARCH’s view that the Standard may need to have different applications depending on the type of service sector that is considered. For example, the standards for service in the entertainment or hospitality sector may be quite different than the standard that would apply to health care, education and social services.
5.2 Specific Requirements
The Standard describes specific requirements of persons or organizations when a person with a disability has a support person, service animal or an assistive device. ARCH recommends that the Standard should also prescribe the expected conduct of persons or organizations when providing services to persons who have a personal support worker, service animal or assistive device and we provide some examples regarding this.
ARCH also has concerns that the draft Standard does not sufficiently address how persons or organizations are to meet the needs of persons with disabilities in the event of a service disruption.
The draft Standard only requires those organizations with 21 or more employees to document and maintain records of training, learning opportunities and direction to employees and volunteers. ARCH recommends that all classes of organizations should be required to document and maintain records of training, learning opportunities and direction to employees and volunteers in order to assist them in demonstrating their compliance with the Standard, or, should they ever face a human rights complaint, they will have a better record which may be relevant to their defence.
ARCH also recommends that all classes of organizations be required to document their policies and processes for recording and soliciting customer feedback. Organizations should apply the principles of inclusive design when developing processes for collecting and recording customer feedback so that the process is accessible to all customers. Why are we adopting a separate policy or process for collecting feedback for customers who are persons with disabilities? Rather, as all communication with customers must be available in accessible formats, it should be one process that is inclusive and includes questions relevant to persons with disabilities.
Canada and the UN Convention on the Rights of People with Disabilities: Government steps back from Leadership on Human Rights of People with Disabilities
By Steven Estey, Chair of the International Committee, Council of Canadians with Disabilities (CCD) and was the NGO representative on Canada’s Delegation to the Ad Hoc Committee at the United Nations.
(Editor’s Note: Steven Estey was a member of the Canadian Delegation to the Ad Hoc Committee on the UN Convention to Protect and Promote the Human Rights of Persons with Disabilities. Over the past 5 years he attended all 8 Ad Hoc Committee meetings, each of which was two weeks in duration. Steven has also coordinated CCD's consultation on the Convention here in Canada. Steven’s contribution to this initiative is a substantive piece of work. ARCH Disability Law Centre would like to thank Steven Estey for submitting this article as a guest writer.)