ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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UNITED FOR A BARRIER-FREE ONTARIO

REMEMBERING FORMER ONTARIO LABOUR MINISTER DR. ROBERT ELGIE, A HERO TO ONTARIANS WITH DISABILITIES WHO SPEARHEADED AMENDMENTS TO THE ONTARIO HUMAN RIGHTS CODE TO MAKE IT ILLEGAL TO DISCRIMINATE BASED ON A PERSON'S DISABILITY

April 7, 2013

SUMMARY

We mourn the death last week of Dr. Robert Elgie. In the late 1970s and early 1980s, Dr. Robert Elgie was Ontario’s Labour Minister. He served in the Progressive Conservative Government under Premier Bill Davis.

As Labour Minister, Dr. Elgie spearheaded major amendments to the Ontario Human Rights Code. These amendments made it illegal for the first time in Ontario to discriminate against people with disabilities. By including physical and mental disability for the first time in the Ontario Human Rights code, Dr. Elgie’s legislation guaranteed to people with disabilities the right to equality in employment, housing, and access to goods, services and facilities.

Years earlier, the Ontario Human Rights Commission had recommended these reforms. However, Dr. Elgie’s predecessor Labour Minister left those recommendations to languish. It was only when Dr. Elgie took over as Ontario’s Labour Minister that legislation was brought forward.

The events leading to this important breakthrough in disability rights in Ontario are described in an article entitled “THE LONG, ARDUOUS ROAD TO A BARRIER-FREE ONTARIO FOR PEOPLE WITH DISABILITIES: THE HISTORY OF THE ONTARIANS WITH DISABILITIES ACT — THE FIRST CHAPTER” by David Lepofsky, published in the National Journal of Constitutional Law. An excerpt from that article is set out below.

Dr. Elgie was a brilliant, kind and compassionate man with an enormous heart and a keen sense of public service. His actions have benefitted hundreds of thousands of people with disabilities in Ontario from 1982 up to the present. They will continue to do so for many years into the future.

Dr. Elgie’s accomplishments for us back in 1982 fundamentally underpin the disability accessibility movement in Ontario that has flourished since the 1990s, and that led to the enactment in 2005 of the Accessibility for Ontarians with Disabilities Act. The AODA seeks to effectively implement the rights that Dr. Elgie’s legislation gave us three decades ago.

We remember Dr. Elgie today, which happens to be an important anniversary in the campaign for a fully accessible Ontario for all people with disabilities. It was ten years ago today, on April 7, 2003, that Ontario Liberal Leader Dalton McGuinty wrote our predecessor coalition, the Ontarians with Disabilities Act Committee, to set out his 2003 election commitment to enact a strong and effective Disabilities Act. Read Dalton McGuinty’s April 7, 2003 letter promising to enact the Disabilities Act.

Dr. Elgie had to overcome very substantial political resistance when he stick-handled his disability amendments to the Ontario Human Rights Code through the Legislature between 1979 and 1982. Politics, when done right, is the art of making irreversible change in society for the better. Few politicians, indeed few cabinet ministers, have a record of doing so much for so many, that can compare to Dr. Elgie’s, especially when they weren’t the premier of a province or the prime minister of our country!

AODA Alliance Chair David Lepofsky cut his teeth in the world of disability rights advocacy while advocating to Dr. Elgie for these human rights protections back in 1980 to 1982. Lepofsky said: “I learned so much through a tough but always-respectful series of frank face-to-face meetings with Dr. Elgie, battling line-by-line over the bill Dr. Elgie was steering through the Legislature. He challenged us. We responded, giving him our best shot. He listened. And in the end, Dr. Elgie wrestled from his caucus by far the best human rights protections any minister could extract at that time.”

Dr. Elgie didn’t do what he did for Ontarians with disabilities because it would win his party more seats, or bump them up in the polls. He didn’t do it for a personal or political legacy. He did it simply because it was the right thing to do. He was a man of great conscience and integrity. For what he achieved for Ontarians with disabilities we will be eternally grateful.

Read the obituary for Dr. Robert Elgie that focuses on his other accomplishments, written by TV Ontario’s Steve Paikin.

EXCERPT FROM "THE LONG, ARDUOUS ROAD TO A BARRIER-FREE ONTARIO FOR PEOPLE WITH DISABILITIES: THE HISTORY OF THE ONTARIANS WITH DISABILITIES ACT THE FIRST CHAPTER"

April 8, 2013

SUMMARY

By M. David Lepofsky
PUBLISHED IN 2004, 15 National Journal of Constitutional Law pages 125-333
(Footnotes omitted)

e) 1970s - No General Law Against Discriminating Because Of Disability

The organized ODA movement only coalesced and got off the ground in 1994. However, the seeds that would later sprout into this movement were planted over a decade before, back in 1982, unbeknownst at that time to any of the ODA movement's later key players. Ironically, the genesis of the ODA movement was hidden in two major victories on the road to a barrier-free society for persons with disabilities that culminated in 1982. At the time, those victories didn't seem to point the way toward the need for more legislation, legislation that no one conceived of at that time.

In the mid-1970s, it was not against the law in Ontario to discriminate against someone because of his or her disability. Canada had no constitutional Charter of Rights, nor any constitutional guarantee of equality rights for people with disabilities.

At that time Ontario had a statutory anti-discrimination law, called the Ontario Human Rights Code. It was passed in the early 1960s, and prohibited discrimination in employment, housing, and access to services and facilities on grounds such as race and religion. It had periodically been amended to make it illegal to discriminate on additional grounds.

However, as of the mid-1970s, the Ontario Human Rights Code did not make it illegal to discriminate against people with disabilities. At most, Ontario only had some very limited piecemeal laws addressing select barriers against some persons with disabilities. For example, Ontario's Blind Persons Rights Act was passed in the 1970s to prohibit discrimination against blind persons who were denied access to public services because they were accompanied by a guide dog.

In the 1970s, Ontario also had no comprehensive, well-organized disability rights movement. Individuals with disabilities and individual disability organizations launched piecemeal advocacy activities on an ad hoc basis. Most focused efforts primarily on issues relating to their own kind of disability. For example, blindness-related organizations directed advocacy efforts on the specific needs of people who are blind or vision-impaired. In the mid-1970s there was no high-profile disability rights movement actively advocating for the Ontario Human Rights Code to be amended, to make it illegal to discriminate because of disability.

There had been ongoing intermittent talk among Canadian politicians in those years about creating a national Charter of Rights to be added to Canada's Constitution. However, there was no broad grassroots national movement seeking to create a Charter of Rights to be entrenched in Canada's Constitution. There was certainly no major disability rights movement in the mid-1970s urging politicians to enshrine disability equality in Canada's Constitution. The idea had been given scarcely any thought.

In the mid-1970s, the Ontario Human Rights Commission (the provincial government body which enforces the Ontario Human Rights Code) struck a committee to study how the Code could be revised to more effectively root out discrimination in Ontario. That committee released a landmark report calling for comprehensive reforms to the Ontario Human Rights Code on a number of fronts, including the rarely-discussed topic of disability discrimination. The committee's report, entitled “Life Together” recommended only that the Human Rights Code be amended to make it illegal to discriminate in Ontario because of a physical disability. It did not call for discrimination because of a mental disability to be made illegal. Nevertheless, Life Together was seen as a ground-breaking stride forward in the name of advancing disability rights.

For the next two to three years, the Ontario Government took no major public action to implement Life Together's proposed reforms to the Ontario Human Rights Code. The period of 1979 to 1982 marked a major turning point on the road to a barrier-free society for persons with disabilities. During this period, people with disabilities in Ontario ended up battling simultaneously on two fronts to seek legal protection for their equality rights.

f) The Battle To Amend Ontario's Human Right S Code To Prohibit Discrimination Because Of Disability

This battle's first front was at the provincial level in Ontario. In 1979, after several years of delay, Ontario's Conservative Government finally proposed to act on the “Life Together” report's recommendations to create a statutory prohibition against discrimination against people with disabilities. The Ontario Government was initially unwilling to do this by amending the Ontario Human Rights Code, afraid that if it opened up the Ontario Human Rights Code for amendments to protect people with disabilities from discrimination, the gay and lesbian community would also seek amendments to that law to prohibit discrimination based on sexual orientation. The latter was an issue that the Government of the day did not want to open up.

As a parliamentary sleight of hand to duck the sexual orientation issue, the Ontario Government opted to achieve its goal of prohibiting discrimination against persons with disabilities by passing a separate disability rights law, rather than by amending the Ontario Human Rights Code. In late 1979, the Ontario Government introduced its proposed “Handicapped Persons Rights Act” into the Ontario Legislature for First Reading. It was a freestanding disability rights law. It did not propose to amend the existing Ontario Human Rights Code.

This bill set out a series of prohibitions against discrimination against people with disabilities in employment and with regard to access to goods, services, facilities, accommodation and the like. This new law was to be enforced by the Ontario Human Rights Commission. An individual who felt that he or she had been discriminated against because of disability could file a disability discrimination complaint with the Ontario Human Rights Commission. That Commission could then investigate the complaint and take the case before a tribunal for a hearing if it felt that the complaint had merit. This proposed legislation amounted to a parallel Human Rights Code for people with disabilities, which invoked the same enforcement procedure as was used under the Ontario Human Rights Code.

News of the Government's introduction of this bill into the Ontario Legislature for debate spread around Ontario's disability community. This news led several disability organizations and individuals with disabilities to come together in an ad hoc cross-disability coalition. Later named the Ontario Coalition for Human Rights for the Handicapped, this unincorporated single-issue movement united for the sole purpose of achieving the enactment of effective legal protection for the human rights of Ontarians with disabilities. In many ways, this Coalition foreshadowed in its structure and strategies the Ontarians with Disabilities Act Committee which would be founded 15 years later, and which would lead the charge for the enactment of a strong and effective Ontarians with Disabilities Act. Those who participated both in this earlier Coalition and later in the ODA movement would draw on this earlier Coalition's experiences both with policy and politics.

With 20 years' hindsight, it is extremely ironic that what initially topped this new Human Rights Coalition's agenda was a powerful, fundamental and deeply-emotional opposition to any notion of a separate stand-alone disability rights law. The Government's 1979 bill was roundly condemned as inferior “separate-but-equal” legislation. This was because it did not incorporate disability equality rights into the all-purpose Ontario Human Rights Code.

The fact that the Government's disability rights bill included substantively deficient provisions which were weaker than comparable anti-discrimination provisions in the Human Rights Code for women, religious and racial minorities and others was not at first the top concern to many of the individuals with disabilities and disability organizations that came to the fore in opposition to the Government's bill. Rather, the predominant concern was the objection in principle to the pejorative symbolism of persons with disabilities not being included in Ontario's mainstream human rights code alongside other disadvantaged equality-seeking groups. No one could have then foreseen that 15 years later, Ontario's disability community would unite around the very goal of winning the enactment of a stand-alone new law, whose sole purpose would be the removal and prevention of barriers impeding persons with disabilities.

Shortly after it formed in 1979, this Human Rights Coalition scored a major initial victory. It persuaded the Ontario Government to withdraw its separate disability rights bill. It also won a commitment from the Conservative Government of the day to instead amend the Ontario Human Rights Code to include disability rights protection.

Over the next year and a half, the Ontario Government undertook an extensive process of constructive face-to-face negotiations with the Ontario Coalition for Human Rights for the Handicapped. We discussed and negotiated with Government officials in great detail over the precise wording that the Human Rights Code amendments should include. This included such important issues as the definition of “handicap” (the term in vogue at that time, which has since fallen into disfavour), the meaning of “discrimination,” the defences that should be open to an organization accused of disability discrimination, and the kinds of remedies that should be available against an organization that violates the law.

During these negotiations, the Coalition won major improvements in the legislative language to be included in the Human Rights Code. The Coalition didn't need to resort to ongoing relentless political pressure tactics, such as public education forums, news conferences, and the like. This was because the party in power, the provincial Conservative Party under Premier William Davis, and the Labour Minister charged with this issue, Dr. Robert Elgie, presented themselves as open-minded, willing to dialogue, and receptive to many of our ideas. Moreover, the opposition Liberal and New Democratic Parties supported our cause and kept the Government on its toes.

In December 1980, after a constructive consultation process, the Ontario Government introduced a bill into the Legislature which proposed a total revamping of the Ontario Human Rights Code. This included the extension of its anti-discrimination protections to persons with disabilities. The Human Rights Coalition identified a short list of improvements that it believed this bill needed. It brought them forward before a Standing Committee of the Legislature that was holding public hearings on that bill in the Summer of 1981. This process would serve as an early training ground for the legislative process in 2001 surrounding the Ontarians with Disabilities Act.

One noteworthy irony occurred in this 1981 legislative process for the future ODA movement. On June 9, 1981, when the Human Rights Coalition appeared before the Ontario Legislature's Standing Committee on Resources Development to argue for amendments to beef up the Code's proposed new disability provisions, I had the privilege of being one of the Coalition's presenters. That Standing Committee's chair, presiding at that hearing, was a recently-elected, little known rookie Conservative MPP, by the name of Mike Harris.

Little did he know that 24 years later, he would become a two-term Ontario Premier and that some 24 years after this legislative hearing, while campaigning for election to his first term as Premier, Mr. Harris would sign a letter that set out an election pledge promising to enact the Ontarians with Disabilities Act. Little did he know that an organized coalition would form to press him to keep that commitment.

Little did I know that I would be actively involved in trying to hold Mr. Harris to that election promise. Little did either of us know that when he was elected, he would repeatedly refuse to meet with us. That day back in 1981 was the only day when I would have the chance to speak directly to him about protecting the rights of persons with disabilities, albeit in the framework of formal legislative hearings, with him simply performing the formalities of chairing a legislative hearing.

Resulting from this process was the brand new Ontario Human Rights Code, passed into law and proclaimed in force in 1982. Its reforms included, among other things, Canada's most comprehensive package as of that time of statutory protections against disability discrimination.

This new legislation was not, however, flawless. Its most significant flaw was an unsatisfactory provision which precluded a human rights complaint if it was based solely on a premises' physical inaccessibility. Under that provision, it was open for a human rights complaint to be filed based on a combination of other kinds of disability discrimination, as well as problems of physical inaccessibility. However, the new Code did not permit a human rights complaint to be launched based solely on a place being physically inaccessible to persons with disabilities. The Ontario Government of the day was very reluctant to address physical accessibility issues at all through the Ontario Human Rights Code. It had a right wing flank to keep in check, in order to get the new Code through the Legislature.

We very much regretted this provision. Despite it, we projected that it would be relatively easy to get around it by drafting a human rights complaint about a physically inaccessible workplace or store, while simply adding to it some other kinds of barriers facing persons with disabilities to supplement any legal complaint about physical barriers. We were also pleased that five years later, a new provincial Government under the Liberal Party repealed this limitation on the human rights of persons with disabilities. It did so because it evidently concluded that it was contrary to the Charter of Rights.

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