Government Response to Recommendations ofthe

Accessibility Advisory Council for a

Made-in-Manitoba Accessibility Act

March 2013

More than 15 per cent of Manitobans face barriers that prevent their full participation in activities others take for granted. These barriers are costly, not only to those with disabilities, but also to their families, friends and communities. In Manitoba, accessibility legislation will provide a process to remove barriers and prevent new ones.

In June 2012,the Manitoba Accessibility Advisory Council recommended that the Manitoba government enact legislation for the prevention and removal of barriers. It also made recommendations on other policies and practices the government can undertake to improve accessibility.

TheManitoba government accepts the recommendations of the Manitoba Accessibility Advisory Council for a new act and intends to use them as the basisfor substantive accessibility legislation.

The main goal of accessibility legislation is to prevent barriers by working with public and private sectors on long range plans to ensure accessibility. The introduction of legislation will lay out a frameworkfor the development and implementation of accessibility standards. It will also serve as an important step in fulfilling the vision of a fully accessible society. The recommendations of the council will create critical elements essential to accessibility legislation:

  • The process will be designed to develop clear, specific, achievable goals.
  • Accessibility standards will affect both the public and private sectors.
  • Persons with disabilities and other stakeholders affected by the legislation (ex: businesses, municipalities)will play a central

role in developing legislated standards.

  • Guarantees contained in the human rights codes will not be affected by this legislation.
  • There will be a regular review of progress in developing this legislation.

The Manitoba governmentaccepts the council’s report and its key recommendation that accessibility legislation be enacted.It is therefore the intention of the government to introduce legislation in 2013.

BACKGROUND

In 2011, the government passed The Manitoba Accessibility Advisory Council Act, which established the Accessibility Advisory Council. The council was created to make recommendations on enacting legislation for the prevention and removal of barriers, and on other policies and practices the government can undertake to improve accessibility.

The council has 12 members with diverse backgrounds and experience, including representatives for organizations of persons with disabilities, businesses, municipalities and other organizations. The council has been meeting since November 2011 and providesmeeting summaries to the public on the council’s website.

In May 2012, The Accessibility Advisory Council Discussion Paper on Accessibility Legislation was released. It was the basis for a broad consultation in May 2012. The feedback, concerns and ideas of numerous stakeholders were considered in the council’s recommendations.

The council presented its recommendations on accessibility legislation to the Manitoba government in June 2012. The report contained 43 recommendations, each of which received the unanimous support of the Accessibility Advisory Council.

The implementation of accessibility legislation will be an immense task that requires long term commitment and strong government leadership. Education will be a key component of introducing legislation. It will ensure greater public awareness of the benefits of full accessibility and create clear understanding of the obligations individuals and organizations will have under standards established by the act.

Legislation alone will not eliminate every barrier, but it is an important step in making Manitoba more accessible, preventing new barriers and implementing long term plans to remove existing ones. It will take the efforts of all Manitobans working together to change attitudes, policies and practices.

Part One

These recommendations of the Accessibility Advisory Council have been accepted by the Manitoba government, in full, and will be incorporated into accessibility legislation.

Preamble to the Act

The Manitoba government accepts the council’s recommendation that strong, powerful, positive language be used in the preamble. It will set the tone of the act and reflect the government’s commitment to the identification, removal and prevention of barriers to full accessibility for all Manitobans.Given the significance of accessibility legislation, the preamble should recognize that:

  • Removing barriers will improve the health, independence and social inclusion of persons with disabilities.
  • Most Manitobans will confront barriers to accessibility at some point in their lives.
  • Barriers create additional costs to persons with disabilities, their families, friends and communities as a whole.
  • Disability rights provided by the Canadian Charter of Rights and Freedoms andThe Manitoba Human Rights Code should be respected.

The preamble should state Manitoba’s vision for accessibility legislation. It should reflect the government’s commitment to legislation that will reshapeour society in a way that will ensure persons with disabilities equal access to, and participation in, all facets of society.

Definitions

The Manitoba government accepts the council’s recommendation for an inclusive definition of disability. As such, the council recommends the act should define a barrier as anything that interacts with an impairment in a way that may hinder the person’s full and effective participation in society on an equal basis with others.This definition is intended to embody an inclusive, broad meaning of impairment, including long term physical, mental, intellectual, invisible, episodic or sensory impairments.

The barriers to be removed and eliminated that are outlined in The Accessibility Advisory Council Actare appropriately named. They are:a physical barrier; an architectural barrier; any information or communication barrier; an attitudinal barrier; a technological barrier; or a barrier established or perpetuated by an enactment, a policy or a practice.

Purpose

The Manitoba government accepts the council’s recommendations that the purpose of the act should cover fundamental areas involving the interaction of persons with disabilities and the broader society in which they live, work, learn and play. These areas should include, but not be limited to:

  • design, operation and management of the built environment
  • employment
  • transportation
  • information and communication
  • delivery and receipt of goods and services

Rather than referring to buildings, facilities, premises and structures, the terminology should be the “built environment” as it is broad enough to cover everything that human design has modified from its natural origins.When society is reshaped in a more accessible manner, the broad appeal and positive spinoffs of universal design become apparent.In the same way products and services, such as cell phones and MP3 players with voice output screen readers, were directly marketed to persons with disabilities, they are now being demanded by a broad range of consumers.

The act is intended tobe broad and comprehensiveand able to deal with issues over time. It should recognize the evolving nature of access and barriers and the need for flexible application of accessibility standards in the future.The rights of citizens to accessibility will change over time and the framework of the legislation must reflect this.

Accessibility Advisory Council

The Manitoba government accepts the council’s recommendations that the Accessibility Advisory Council should be continued under the new act. It also accepts that provisions from The Accessibility Advisory Council Act on the appointment of council members, composition of the council and the establishment of committees be maintained, with the following clarification: membership of the council must include representatives from organizations of persons disabled by barriers.

The council recommends that committees should be established to develop accessibility standards for the consideration of the council. Development of standards will involve those most affected by the proposed standard, including: persons with disabilities, affected stakeholders and/or representatives of the sectors who may have obligations under the proposed standard.

The council recommends that each committee’s mandate be specified. The council should be responsible for developing the guidelines for all committees established under the act. The period for public comment following publication of the council’s recommendations should be 60 days, or a longer period specified by the minister.

Principles of Accessibility

The Manitoba government accepts the council’s recommendations that it should be guided by the four principles included in The Accessibility Advisory Council Act:

Access: Persons should have barrier-free access to places, events and other functions that are generally available in the community.

Equality: Persons should have barrier-free access to those things that will give them equality of opportunity and outcome.

Universal design: Access should be provided in a manner that does not establish or perpetuate differences based on a person's impairment.

Systemic responsibility: The responsibility to prevent and remove barriers rests with the public or private person or organization that is responsible for establishing or perpetuating the barrier.

The government has considered and accepted these principles, but notes that these should guide all persons and organizations with responsibilities under the act and standards created under the act, not just the council. These principles will apply more broadly to every party with a duty under the act and regulations that are created.

Accessibility Standards

The Manitoba government accepts the council’s recommendationson establishing accessibility standards by regulation. Standards will set out measures, policies, practices, or other requirements for identifying, preventing and removing barriers. Standards should require a person or organization subject to the standard to implement those requirements within the time specified in the standard.

Standards should be developed in areas including, but not limited to:

  • design, operation and management of the built environment
  • employment
  • transportation
  • information and communications
  • delivery and receipt of goods and services

Thecouncil recommends that theact should not exempt any sector or activity from meeting an accessibility standard. However, in certain circumstances, it may be reasonable for regulations to permit some exemptionsto complying with the requirements of a specific standard.

The council recommends that an accessibility standard may create different classes of persons or organizations; or the buildings, activities and operations under their control, according to certain characteristics. These characteristics may include size, amount of revenue, number of employees and sphere of activity.

The council recommends that accessibility standards may also allow the definition of a class to be adjusted to include or exclude a specific person or organization. This is to be based on criteria unique to that person, organization, or activity.

The council recommends that any person or organization may be subject to more than one accessibility standard and that a standard may be general or specific in its application and may be limited to a time and place.

Standard Development Process

The Manitoba government accepts the council’s recommendations on the process for the development of accessibility standards. This includes the recommendation that they should be enacted only after the minister has received the recommendations of council.

Thecouncil recommends that the terms of reference for a proposed accessibility standard must specify the persons or organizations to which the standard may apply.

The council recommends that the terms of reference for the development of the standard should be given to the council and made available to the public by posting it electronically, or by any other means that ensures the information is accessible. This includes alternate formats.

The council recommends that, when it receives the terms of reference for a proposed accessibility standard from the minister, that it should consider them and respond with recommendations on the:

  • accessibility objectives of the standard
  • activity, undertaking and sector to which the standard relates
  • measures, policies, practices or other requirements that should be implemented, including how they should be implemented and by whom
  • timeframe for the implementation

The council recommends that when recommending timeframes for the implementation of an accessibility standard, the council should be required to consider:

  • the nature of the barriers that the standard is intended to identify, prevent or remove
  • the cost and level of technical complexity associated with implementing the standard
  • any other matter referred to in the terms of reference

The council recommends that in developing an accessibility standard, the act should require the council to consult with:

  • persons disabled by barriers or representative organizations of persons disabled by barriers
  • the Manitoba Human Rights Commission
  • representatives of the sectors or organizations that may be subjected to the proposed accessibility standard
  • representatives of the provincial and local government who have responsibilities or are related to the sector or classes of persons or organizations to whom the proposed accessibility standard applies

The council recommends that the act should allow people to submit comments about the proposed standard to the minister for persons with disabilities within 60 days after a proposed accessibility standard is made available to the public, or within any longer period the minister specifies. The minister should then consult with the council on any comments received from the public about the proposed accessibility standard, so the proposed accessibility standard may be revised.

The council recommends that each accessibility standard be reviewed within five years of enactment, and every five years after that. This includes having the council examine the accessibility objectives and the measures, policies, practices and other requirements in the standard. The review should examine how well and by whom they are being implemented, so the council may develop recommendations to update the standard and submit these to the minister.

Part Two

These recommendations by the Accessibility Advisory Council have been accepted by the government and include additional measures the government will considerin accessibility legislation.

Mandate of Minister

The Manitoba government agrees with the recommendations of the council on the mandate the act outlines for the minister. However, the government will ensure that the government’s responsibility for public education will form part of the legislated mandate.

The government’s leadership role,outlined inFull Citizenship: A Manitoba Provincial Strategy on Disability (2001), remains clear. Itoutlines Manitoba’s vision for full participation of persons with disabilities as equal citizens in our society. The minister’s role in identifying issues affecting persons with disabilities, co-ordinating policy development to improve access to public services and raising awareness about living with a disability will continue.

Review by Government

The government accepts the council’s recommendation that the act should be reviewed within four years after it comes into force by a person appointed by the minister. The review would determine the effectiveness of this act, the accessibility standards and the other regulations made under this act and to report on the findings to the minister. It is also accepted that further reviews on this should be conducted every five years.

In addition to the proactive duties in reviewing the act, the government will consider a process for an ongoing review of existing Manitoba statutes to ensure they reflect the four accessibility principles contained within the new act (access, equality, universal design, systemic responsibility).

The government will also place an additional duty on the minister to develop a multi-year action plan that will contain timelines for the development and implementation of standards and other means of achieving accessibility in areas under the minister’s mandate.

The minister will also be required to prepare an annual report to the Legislature on activities of the government and the council.

Role of Municipalities

While the council did not make a recommendation specific to municipalities, the government recognizes the role that municipalities play in implementing accessibility in their communities. The act must mandate municipal councils to take a proactive approach by regularly reviewing accessibility issues in their communities and developing appropriate measures to achieve accessibility. The government will consider a similar duty for all larger public sector organizations.

Recognizing that municipalities and public sector organizations may already have mechanisms in place to achieve these goals, the act will be flexible enough to accommodate different approaches to community consultation and planning for accessibility.

Compliance

The Accessibility Advisory Council recognizesthe key role of educating stakeholders and the parties required to comply with the new legislation. In addition, it recommends that the act provide an effective compliance mechanism. This would include:

  • requiring parties with a duty under the act to prepare accessibility reports on progress made in the prevention and removal of barriers
  • allowing the ministerto appoint a director to oversee compliance issues relating to the new act
  • when appropriate, enablingthe minister to use existing provincial inspection and enforcement to enforce standards developed under the act
  • issuing compliance orders
  • allowing administrative penalties to be issued under the legislation
  • providing for a fine of up to $25,000 when a party commits an offence

under the act

The Manitoba government agrees with the council that appropriate, graduated compliance and enforcement mechanisms should be enacted in legislation and accepts its recommendations. The government recognizes that it must take a lead role by making significant efforts to educate the public and all stakeholder groups on legislation issues and the achievement of accessibility. As Manitobans begin to recognize the benefits of increased accessibility, reasonable and practical solutions to these issues will be achieved.

While the government agrees with the general recommendations of the council, it recognizes that, as the standards are developed, a fullcompliance system would be required. This would include the following aspects:

Inspections

  • clear powers for inspectors in performing inspections to determine compliance with the act, the accessibility standards and the other regulations
  • express powers for inspectors to enter buildings or property for inspections
  • restrictions on the ability of inspectors to enter dwellings that are occupied as a residence, except with the consent of the owner or occupant, or with the authority of a warrant
  • the ability to ask for records and things officers require for the inspection, or additional information, including personal information, that the inspector reasonably requires to perform the inspection
  • restrictions on the powers for inspectors to enter and inspect a place without a warrant to the location’s regular business hours or, if it does not have regular business hours, during daylight hours
  • the ability to issue orders where an inspector finds that the act, an accessibility standard or another regulation is being contravened, requiring the person or organization responsible for the contravention to remedy it
  • the ability of the recipient of the order issued by an inspector to request a review of the order by the director
  • the ability to appeal the decision of the director to the Manitoba courts

Administrative penalty