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Accessibility for Ontarians with Disabilities Act (AODA): Was Implementation the Concession?
The Accessibility for Ontarians with a Disability Act (AODA) is ground-breaking legislation for all communities that value every person having access to an equitable standard of living for everyday life. In 2017, one in five Canadians over 15 years has had one or more disabilities and the prevalence ofdisabilities are increasing with age (Statistics Canada, 2017). Disability is an all-encompassing definition of visible and non-visible disabilities including: physical, vision impairment or blindness, auditory impairments or deafness, intellectual, development or learning disabilities and mental health disabilities (Legislative Assembly of Ontario, AODA, 2005). Although the legislation was slow moving, accessibility as a social movement was a way forward for disability communities to gain an accessible standard of living. This paper will address the history of AODA and the changes or lack thereof after public consultations, and will analyze the diverse interests, actors, institutions, and processes that impede on the implementation of the Accessibility for Ontarians with Disabilities Act (AODA) (2005) in Ontario, Canada. The author will then present a case study on transportation system in Toronto – the Toronto Transit Commission (TTC) – and highlight the current issues within the transportation standards to emphasize the pushback this social movement has received and the immense barriers to implement AODA for an equitable, accessible Ontario.
History
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The American’s with Disability Act (ADA) was a piece of legislation that pushed Canada towards a conversation about human rights and equality prompting disability advocates to make accessibility legislation a reality in Ontario. In 1994, NDP MPP Gary Malkowski introduced a private members bill for the Ontario Disabilities Act (ODA). According to North (1990) public policy must begin with the individual (p. 5). Malkowski, was the first deaf MPP in Ontario, was a key actor who brought accessibility legislation to the forefront. There was interest in the bill amongst the disability community, but incredible frustration occurred at the public hearings for the proposed bill. As a result, 20 members who attended the public hearing at Queens Spark to spontaneously create the Ontarian’s with Disabilities Act Committee (Ontarians with Disabilities Act ODA Committee, 2004), reflecting the true beginnings of a social movement.
The Ontarian’s with Disabilities Act Committee was a voluntary coalition to re-frame the conversation about accessibility rather than about disability. According to Lakoff (2010), political ideologies are characterized by systems of frames and ideological language will activate ideological systems, making synapses stronger as they are activated more (p.72). The coalition’s intent to redirect the conversation was an attempt to capitalize on these systems of neural connections. The coalition attempted to take advantage of policy windows with each new election, to bring accessibility on to the agenda and they were relatively successful with the Ontarians with Disabilities Act (ODA) (2001). The bill only applied to public sectors. There were proposed amendments to make barrier removal and barrier prevention mandatory, to extend the bill to the private sector, require accessibility standards, and provide effective enforcement (Ontarians with Disabilities Act ODA Committee, 2004), all of which were defeated in the House of Commons under Conservative leadership and not included in ODA.
According to Hupe & Hill (2016), an attempt to implement one policy always brings new problems on the agenda, collapsing the implementation and agenda setting “steps” (p. 106). This occurred with the dissatisfaction of ODA and the dissent from the social movement for not addressing crucial amendments to move the bill forward. With the upcoming election, accessibility remained on the political agenda, was tabled in 2004 but was introduced as the Accessibility for Ontarians with Disabilities Act. As promised by Liberal Opposition Leader Dalton McGuinty, the AODA was going to extend to the private sector, remove barriers and prevention of creating new barriers mandatory, create accessibility standards, and provide effective enforcement (Ontarians with Disabilities Act ODA Committee, 2004). The Ontarians with Disabilities Act ODA Committee was willing to invest their time, capital, energy and resources voluntarily in order to create this policy window with the upcoming election and bring accessibility back to the political agenda.
Modifications to AODA Post-Public Consultations
Although there was concern about the reception of industries to becoming AODA compliant, the 2005 tabled AODA was unique, in that it included industries that affected people’s everyday lives. The public consultations were used as a tool to address the multilevel policy making decisions that occur when implementing such widespread legislation. Such systems often produce soft policies that include recommendation rather than collectively binding decisions (Torenvlied & Akkerman, 2004, p. 32). Many disability rights advocates were concerned about the soft policy mechanisms for enforcement and standards development to be included in regulations rather than the legislation (Legislative Assembly of Ontario, Hansard Debates & Progress, 2005, p. 474). This concern became a reality considering one of the few enforcement mechanisms of administrative fines were included in the regulations.
Similarly, attitudinal barriers were one of the most cited concerns within the consultations, mentioned over 30 times amongst different speakers (Legislative Assembly of Ontario, Hansard Debates & Progress, 2005, p. 469-810). Reactive devaluation, the tendency of able-bodied individuals to dismiss the persuasiveness of disabled populations, has been pervasive in Ontario, even after ODA (2001) was enacted (Kahan & Braman, 2006, p. 166). Although Canadians believe that participants deserve the same opportunities as other citizens, many are uncomfortable with integrating people with disabilities in the workplace or classroom because they felt it would negatively affect their own rights in these organizations (Prince, 2012, p. 7-9). This is why many advocates in the public consultations suggested reframing as a debiasing technique, such as educational and marketing campaigns, similar to the capacity tools suggested by Schneider & Ingram (1990, p. 517). Although, these techniques would have been cost effective the government of the day did not roll out any such campaign in a timely manner, depicting the lack of priority that the disabled population and the AODA legislation has on the policy agenda.
Private corporations were a new addition to accessibility legislation consultations in Ontario, and industry representatives had many suggestions to better address their concerns. Some of which included creating exceptions and including inducements for industry organizations to become AODA compliant. The mechanism suggested for the public interest was to allow the Minister to enter into an agreement with a person or organization that is a leader in accessibility in order to reduce or change their scheduled reporting requirements.
The idea was to reduce the administrative burden on persons or organizations that were meeting or going beyond the accessibility standards (although they had not been determined at this time). This is consistent with Schneider & Ingram (1990), who suggest that inducements offer positive reinforcements by encouraging participation in policypreferred actions. Those who are offered incentives, will likely choose the higher-valued alternatives (Schneider & Ingram, 1990, p. 515). In this case, governments would be rewarding leaders in accessibility who are already meeting standards so positive reinforcement would not necessarily be required. Additionally, the change made to the tabled AODA legislation was to provide inducements for those who are meeting one or more standard (Legislative Assembly of Ontario, 2005). In other words, in 2025 when all of the standards are required to be met, exceptions such as this inducement can be given to people or organizations that are only meeting one standard. That is far from AODA’s original purpose to reduce barriers for those with disabilities and provide an equitable standard of living.
Barriers to Implementation
The failure to adequately address concerns brought forward in the public consultations for AODA further highlights the current implementation barriers. The first barrier to the implementation of accessibility legislation is the lack of government support for the bill. Individuals are more likely to support policy goals or action if they are promoted by the government and considered high priority issues, consistent with their own values and associated with positive symbols and heuristics (Schneider & Ingram, 1990, p. 520). The government has not made all public services accessible which illustrates the lack of support for the bill, although it was passed unanimously in the Legislature in 2005 (Lepofsky, 2014). Considering the poor example the government has set with regards to taking action within public service accessibility, according to Schneider & Ingram, other people and organizations are less likely to view accessibility positively and work toward creating an accessible environment for those who are disabled.
Interestingly, the legislation has no mechanism to implement standards, to support organizations, or to enforce standards through sanctions. According to Hupe & Hill (2016), this could be a result of the sheer neglect to specify desired actions or to include features aimed at facilitating this implementation process (p. 113). It appears that the concession made in the policy process for AODA (2005) was less in the policy formulation of the legislation, but rather the implementation process. Legislators did not consider the importance of including mechanisms of implementation, although many advocates suggested including them during public consultations in 2005 (Legislative Assembly of Ontario, Hansard Debates & Progress). The needs for these mechanisms are further emphasized by Moran’s second legislative review for AODA (2005). According to Moran (2014), there was confusion amongst private and public sectors in implementing AODA
standards because the standards were unclear and not specific about what was required, so organizations were uncertain of how to comply (p. 28). This poses a clear implementation barrier. It may require another legislative iteration to at least modify the regulations or it may be an opportunity for stronger government action to promote the standards through marketing and training for these sectors. Although it has been known that organizations have been unclear of how to proceed with the standards, little has been done by the government to address these concerns.
This may also be a reason why the sanctions apparent in the regulations attached to support AODA implementation have not been enforced. These sanctions are monetary administrative penalties that can fine corporations up to $100,000 per day and unincorporated organizations a maximum of $50,000 per day (Share, 2011). In 2017, only three compliance sanctions required a payment of an administrative fee of which there was a $2000 maximum (Government of Ontario, 2018). Few sanctions may seem positive, but these sanctions are administered to organizations through self-reporting compliance reports. In 2017, 24,000 reports were submitted, less than 50% of the organizations require to submit accessibility compliance reports (Government of Ontario, 2018), of which it is quite difficult to determine who is actually compliant with the accessibility standards considering the five question self-report required (Appendix A). It is apparent that the government has chosen not to prohibit inaccessibility or discourage the creating new barriers through enforcing these sanctions by using their legitimate authority (Schneider & Ingram, 1990, p. 514). This enforcement mechanism is a legitimate authority tool that can be used to ensure accessibility for all to have access, but the lack of implementation is a clear indication of where political priorities lie.
Public Transportation Pushback
The attitudinal barrier for accessibility implementation becomes apparent through the actions of the TTC, Toronto’s local public transportation system. David Lepovksy lodged a human rights complaint to the Ontario Human Rights Tribunal of Ontario from 2001 – 2007 because the TTC did not want to announce stops on any of the vehicles (AODA Alliance, 2007). The TTC spent about half a million dollars to oppose him. This was after AODA has already received royal assent and should have begun implementation through government action. This case emphasized the needs for Ontario to have strong, effective accessibility standards to avoid individuals being forced to advocate for themselves using person resources when there is already legislation in place.
Lepovsky’s complaint raised the issue of the salience of accessibility in Ontario once again and highlighted the need for clearer standards and better enforcement. “The relative salience of issues determines the potential for change,” (Soroka, 2007, p. 187). The TTC was found to be in violation of the human rights of blind and visually impaired passengers by not having bus and street cars drivers announce all of the stops on the route and was ordered to have all drivers do so within a 30-day period (AODA Alliance, 2007). According to Moran (2014), the AODA transportation standards included vague provisions which permits transportation providers to provide a package of services to people with disabilities, which could include conventional services (p. 28). Some stakeholders believe the obscure service provision was developed with the intent to allow transit operators to operate as they wish, rather than creating standards with the purpose of equitable access (Moran, 2014, p. 28). Another issue with the standard is leaving accessible transportation implementation up to the cities within Ontario, rather than regulating when and how it should be done. According to Lepovsky (2014), this means that every city must reinvent the wheel, requiring lobbying to be done in every city which defeats the purpose of the AODA (2005).
Conclusions
AODA has had a slow long-winded history for its inception. The social movement has persisted and is continually advocating for better implementation mechanisms within all the standards which were created to improve the everyday lives of all Ontarians. It is evident that many barriers to implementation remain, such as attitudinal barriers, obscure language within the regulation standards, and failure to act on enforcement mechanisms that have already been developed. It is apparent that there are key actors within this social movement for accessibility, such as the 20 individuals who began the Ontarians with Disabilities Act ODA Committee, and David Lepofsky, who won a complaint against Toronto’s local public transit system for violating the rights of visually impaired passengers, who are unwilling to let AODA’s implementation failure remain. It is apparent, that there is a clear implementation failure in many regards with AODA and it is to be seen whether implementation is taken more seriously as years progress. Although it is likely that little progress has been made considering the lack of government action, one can look forward to 2019 when David Onley has completed the third review of the Accessibility for Ontarians with Disabilities Act to determine Ontario’s real progress with implementation.
by AATEKA RAJAB
