Our Campaign for Strong, Effective Implementation of the AODA

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

THE FIRST AND ONLY ACCESSIBILITY STANDARD ENACTED UNDER THE AODA IS A MAJOR LET-DOWN – CUSTOMER SERVICE ACCESSIBILITY STANDARD IS WEAK AND INEFFECTIVE

September 12, 2007

SUMMARY

The Ontario Government recently announced that it enacted the first and only standard under the Accessibility for Ontarians with Disabilities Act. It governs the provision of customer service.

Our review of it reveals that this accessibility standard is very weak, limited and ineffective. It will not bring Ontario to a position of having fully accessible customer services by the AODA’s legal requirement of January 1, 2025, even if it is fully implemented. This is because:

* It only covers providers of goods and services, not facilities.

* It lacks needed clarity and specificity. It doesn’t include the key requirements of an AODA accessibility standard, because it doesn’t identify 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 discretion to choose what barriers to remove and prevent, and to choose the time lines for removing and preventing them.

* What little the standard does require a service provider to do is subject to time lines that are too long.

* 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 will be potentially difficult to enforce.

* In one area, this standard actually authorizes the creation of a new barrier. The AODA doesn’t allow an accessibility standard to do this.

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

* In the important area of enforcing human rights, the standard applies to the Human Rights Tribunal and the soon-to-be weakened Ontario Human Rights Commission. However it unjustifiably doesn’t apply to the Ontario Government’s new Human Rights Legal Support Centre, on whom persons with disabilities will have to depend to investigate and enforce their human rights cases.

* Its provision requiring training of a service provider’s staff and volunteers on disability needs is deficient; e.g. it doesn’t say it requires any training on the fundamental requirements of the Ontario Human Rights Code, including the duty to accommodate persons with disabilities in 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.

* Its provisions for notifying the public about the availability of accessible services are seriously inadequate, and don’t ensure that that notification will be fully accessible to persons with disabilities.

* The standard permits a barrier-ridden process regarding notification of patrons about service disruptions.

* The final version of this standard is even weaker than the weak one which the McGuinty government’s Customer Service Standards Development Committee proposed as its final recommendation on February 27, 2007.

You can see the text of the full standard at:

www.mcss.gov.on.ca/mcss/english/ pillars/accessibilityOntario/accesson/business/customer/

OUR DETAILED ANALYSIS OF THE CUSTOMER SERVICE ACCESSIBILITY STANDARD

Here are some key points about the standard:

* The Customer Service Accessibility Standard only covers the providers of goods and services. It doesn’t cover the providers of facilities. This is a significant omission. Section 1 of the Human Rights Code guarantees the right to equal treatment with respect to goods, services and facilities.

* This standard is seriously lacking in the specificity we need. It doesn’t do what the AODA was passed to do – identify a full range of specific barriers that have to be removed, and name the dates by which they have to be removed. It only explicitly addresses a few named barriers, e.g. problems persons with disabilities face getting customer service if they are accompanied by a service animal or support person.

The standard is very, very short - a mere eight pages, including its introductory materials. If the list of organizations that it governs is removed, it becomes even shorter.

In sharp contrast, with government funding the Canadian Standards Association developed a much longer and more detailed customer service standard, some years ago. However, that standard is voluntary, not binding. When we last checked, you have to pay CSA for a copy of it. That is a barrier impeding persons with disabilities from accessing it, and impeding businesses and government agencies that might otherwise have benefitted from it.

* Section 3 of the standard is its weak and excessively vague central provision. It provides:

“3.(1) Every provider of goods or services shall establish policies, practices and procedures governing the provision of its goods or services to persons with disabilities.
(2) The provider shall use reasonable efforts to ensure that its policies, practices and procedures are consistent with the following principles:
1. The goods or services must be provided in a manner that respects the dignity and independence of persons with disabilities.
2. The provision of goods or services to persons with disabilities and others must be integrated unless an alternate measure is necessary, whether temporarily or on a permanent basis, to enable a person with a disability to obtain, use or benefit from the goods or services.
3. Persons with disabilities must be given an opportunity equal to that given to others to obtain, use and benefit from the goods or services.
(3) Without limiting subsections (1) and (2), the policies must deal with the use of assistive devices by persons with disabilities to obtain, use or benefit from the provider’s goods or services or the availability, if any, of other measures which enable them to do so.
(4) When communicating with a person with a disability, a provider shall do so in a manner that takes into account the person’s disability.
(5) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare one or more documents describing its policies, practices and procedures and, upon request, shall give a copy of a document to any person.”

This weak provision doesn’t require organizations’ customer service policies to actually address all of the listed principles, much less to address them effectively. It doesn’t require service providers to achieve barrier-free customer services. It just requires an organization to use reasonable efforts to ensure that its stated policies, practices and procedures are consistent with the listed vague general principles there.

This doesn’t ensure that the policies that an organization establishes will be strong and effective. It also doesn’t require the organization to actually obey its own policy. It is grossly insufficient for an organization to simply write a nice policy, and to hand it out on request.

This provision delegates to service providers far too much discretion to choose what barriers to remove and prevent, and to choose the time lines for removing and preventing them. The AODA was intended to lead to the enactment of standards that would themselves set these requirements, not simply leave to service providers a large preponderance of the choices over them.

This provision also potentially presents real problems for enforcement. How does one show that “reasonable efforts” weren’t used? The measure of success should be the removal and prevention of barriers to customer service, not the standard’s vague requirement of mere reasonable efforts to try to make a policy cover a list of “principles.”

* The time lines in this standard are far too long, especially given the weak, limited range of actions it requires organizations to take. It gives public service organizations up to January 1, 2010 (or almost 2.5 years from now) to start complying. It gives private sector organizations up to January 1, 2012 (or 4.5 years from now) to comply. This is 4.5 years and 6.5 years respectively since the passage of the AODA in 2005. People with disabilities shouldn’t be forced to wait so long, for organizations providing customer service to do so little.

* Section 4(5) of the standard authorizes some organizations to create new barriers to impede access to persons with disabilities. Standards made under the AODA cannot do this. It states:

“4(5) The provider of goods or services may require a person with a disability to be accompanied by a support person when on the premises, but only if a support person is necessary to protect the health or safety of the person with a disability or the health or safety of others on the premises.”

Section 4, which includes this provision, applies “if goods or services are provided to members of the public or other third parties at premises owned or operated by the provider of the goods or services and if the public or third parties have access to the premises.”

Under this provision, an organization can force a person with a disability in some situations to bring a support person with them (presumably at the expense of the person with a disability). If the person with a disability doesn’t comply, the organization can refused to admit the person with a disability.

The vague standard governing this is “only if a support person is necessary to protect the health or safety of the person with a disability.” There is a real and serious risk that an organization with an uninformed stereotype-induced perception of disabilities will wrongly conclude that some person with a disability poses a health and safety risk to themselves. This provision also doesn’t require the risk to health and safety to be serious or substantial or imminent, or preventable by reasonable means short of forcing the person with a disability to be accompanied by a support person.

This standard lets an organization create this barrier against persons with disabilities even if a person with a disability, with far superior understanding of their disability, knows he or she poses no such risk, or concludes that the risk is one they are prepared to bear. This violates the fundamental dignity of persons with disabilities to decide what risks they wish to undertake for themselves.

Making this even worse, the standard goes on to potentially let the organization charge the patron with a disability an added admission fee for the support person. Section 4(6) of the standard states:

“4(6) If an amount is payable by a person for admission to the premises or in connection with a person’s presence at the premises, the provider of goods or services shall ensure that notice is given in advance about the amount, if any, payable in respect of the support person.”

* The standard doesn’t require service providers, and particularly larger organizations, to put in place an effective means for accountably delivering accessible customer services. For example, it doesn’t require any large organizations to designate an official from within their existing staff to be responsible for leading the organization’s removal and prevention of barriers to access.

* The standard lists a range of public agencies that must obey the standard, including, among others, the Ontario Human Rights Commission and the Human Rights Tribunal of Ontario. Remarkably, it doesn’t include the Government’s new Human Rights Legal Support Centre, established under the McGuinty Government’s widely-criticized Bill 107.

By the time the Human Rights Commission must start complying with this standard, discrimination victims like persons with disabilities will no longer be able to file their human rights complaints with the Human Rights Commission. This is because Bill 107 privatizes human rights enforcement, and takes away from discrimination victims the right to have the Human Rights Commission investigate and (where appropriate) prosecute their discrimination cases. Instead, Bill 107 forces discrimination victims like persons with disabilities to find their own lawyer to investigate and present their discrimination case.

The McGuinty Government’s Bill 107 offers a new Human Rights Legal Support Centre to provide legal help to discrimination victims. However, that under-funded Centre will get only 25% of the Human Rights Commission’s under-funded budget level. When persons with disabilities go to the new Human Rights Legal Support Centre, they’ll find that that Centre doesn’t appear to be listed as an agency that must obey the customer service standard. To learn more about Bill 107, visit:

www.aodaalliance.org/reform/default.asp

Last December, when Bill 107 was before the Legislature, the opposition Conservatives proposed an amendment to Bill 107 to require the Human Rights Legal Support Centre to have a disability accessibility policy. The NDP supported this, too. The governing Liberals used their majority to defeat that amendment. Thus the McGuinty Liberals have now missed out on two opportunities to help ensure barrier-free access for persons with disabilities to the Human Rights Legal Support Centre on which so many will have to depend to enforce their human rights.

* In principle, it is good that the standard requires training of persons who deliver customer service on disability issues. However, the training requirements are deficient in several important ways. Section 6 of the standard provides:

“Training for staff, etc.
6. (1) Every provider of goods or services shall ensure that the following persons receive training about the provision of its goods or services to persons with disabilities:
1. Every person who deals with members of the public or other third parties on behalf of the provider, whether the person does so as an employee, agent, volunteer or otherwise.
2. Every person who participates in developing the provider’s policies, practices and procedures governing the provision of goods or services to members of the public or other third parties.
(2) The training must include a review of the purposes of the Act and the requirements of this Regulation and instruction about the following matters:
1. How to interact and communicate with persons with various types of disability.
2. How to interact with persons with disabilities who use an assistive device or require the assistance of a guide dog or other service animal or the assistance of a support person.
3. How to use equipment or devices available on the provider’s premises or otherwise provided by the provider that may help with the provision of goods or services to a person with a disability.
4. What to do if a person with a particular type of disability is having difficulty accessing the provider’s goods or services.
(3) The training must be provided to each person as soon as practicable after he or she is assigned the applicable duties.
(4) Training must also be provided on an ongoing basis in connection with changes to the policies, practices and procedures governing the provision of goods or services to persons with disabilities.
(5) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare a document describing its training policy, and the document must include a summary of the contents of the training and details of when the training is to be provided.
(6) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall keep records of 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.”

This provision’s inadequacies include:

a) It doesn’t say it requires any training on the fundamental requirements of the Ontario Human Rights Code, including the duty to accommodate persons with disabilities in customer service. The Human Rights Code is the bedrock law on which the Accessibility for Ontarians with Disabilities Act is founded, and which the AODA seeks to implement.

b) The standard doesn’t explicitly require training on the organization’s policies that are made under the standard, nor does it require training on the barriers persons with disabilities face when attempting to get equal access to goods, services and facilities. It addresses at most only some of these topics, and in some cases, only indirectly.

c) This standard doesn’t require any of the training to be in person. If the training is done via detached, impersonal on-line materials alone, it will likely be far less effective.

d) The standard doesn’t require any assessment of the training’s effectiveness. This is especially troubling given the lack of teeth throughout the bulk of this short standard.

* It is good that the standard requires organizations to have in place a system for persons with disabilities to give the organization feedback on disability-related customer service. However, this standard 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. Under this standard, persons with disabilities in large numbers could repeatedly raise serious accessibility problems with the organization, while the persons in a position to change the organization’s direction need never know about that feedback.

Moreover, under this standard, larger organizations must give persons with disabilities a document describing the feedback process if asked. However it doesn’t require any organization to let their patrons know proactively about the availability of a feedback process if they don’t ask. Section 7 provides:

“7.(1) Every provider of goods or services shall establish a process for receiving and responding to feedback about the manner in which it provides goods or services to persons with disabilities and shall make information about the process readily available to the public.
(2) The feedback process must permit persons to provide their feedback in person, by telephone, in writing, or by delivering an electronic text by email or on diskette or otherwise.
(3) The feedback process must specify the actions that the provider of goods or services is required to take if a complaint is received.
(4) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare a document describing its feedback process and, upon request, shall give a copy of the document to any person.”

* The standard’s provisions for notifying the public about the availability of accessible services are seriously inadequate. They require some service providers in some situations to prepare a document that persons with disabilities can get on request, that sets out some accommodations that the service provider will make for their disability. Commendably, this document must be available in alternative formats for persons with disabilities who cannot read print.

However, the standard doesn’t require the service provider to provide persons with disabilities with barrier-free notification that an accessible document is available. Instead, sections 8 and 9 of the standard let the service provider merely post a sign on their premises or a notification on their web site about the availability of the document.

Posting a sign in a public place will not accommodate the needs of a person who cannot read print due to blindness, low vision, or dyslexia. Posting on the internet is only effective for persons with disabilities who can and do use the internet. Even then, it only assists persons with disabilities if the service provider has ensured that their website complies with international standards for website disability accessibility. This standard, however, doesn’t require service providers to ensure that their websites are disability accessible.

We recognize that a new Information and Communications Standards Development Committee is now working on developing an accessibility standard for access to information. That standard will hopefully include strong and effective website accessibility requirements. However, in the interim, the customer service standard doesn’t ensure that a notification described above on a website will be accessible to all persons with disabilities who use the internet.

Section 4(7) of the standard states:

“(7) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare one or more documents describing its policies, practices and procedures with respect to the matters governed by this section and, upon request, shall give a copy of a document to any person.”

Similarly, section 5(4) states:

“(4) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall prepare a document that sets out the steps to be taken in connection with a temporary disruption and, upon request, shall give a copy of the document to any person.”

Sections 8 and 9 address how these documents are to be made available and how the public is to be notified about them:

“8.(1) Every designated public sector organization and every other provider of goods or services that has at least 20 employees in Ontario shall notify persons to whom it provides goods or services that the documents required by this Regulation are available upon request.
(2) The notice may be given by posting the information at a conspicuous place on premises owned or operated by the provider, by posting it on the provider’s website, if any, or by such other method as is reasonable in the circumstances.

9.(1) If a provider of goods or services is required by this Regulation to give a copy of a document to a person with a disability, the provider shall give the person the document, or the information contained in the document, in a format that takes into account the person’s disability.
(2) The provider of goods or services and the person with a disability may agree upon the format to be used for the document or information.”

In sharp contrast, s. 6 of the Ontarians with Disabilities Act 2001 (which the AODA will eventually repeal) provides for the Ontario Government to make all its internet websites disability accessible except where this isn’t technically possible. This new customer service standard has no similar requirement:

“6. The Government of Ontario shall provide its internet sites in a format that is accessible to persons with disabilities, unless it is not technically feasible to do so.”

* The standard permits a barrier-ridden process regarding notification of patrons about service disruptions. Section 5 provides in material part:

“5. (1) If, in order to obtain, use or benefit from a provider’s goods or services, persons with disabilities usually use particular facilities or services of the provider and if there is a temporary disruption in those facilities or services in whole or in part, the provider shall give notice of the disruption to the public.
(2) Notice of the disruption must include information about the reason for the disruption, its anticipated duration and a description of alternative facilities or services, if any, that are available.
(3) Notice may be given by posting the information at a conspicuous place on premises owned or operated by the provider of goods or services, by posting it on the provider’s website, if any, or by such other method as is reasonable in the circumstances.”

This provision suffers from the same problems as are described above regarding the insufficient accessibility of posting printed material on a public sign or a website.

* The final version of this standard is even weaker than the weak one which the McGuinty government’s Customer Service Standards Development Committee proposed as its final recommendation dated February 27, 2007.

For example, that Committee’s final proposal would have required organizations delivering customer service to actually take certain concrete steps, all be it in terms that are not sufficiently detailed or specific to live up to the AODA’s aims. The final proposed standard (not the one LATER passed into law) provided in part:

“6.1 Accessible and Alternative Customer Service Policy, Procedure and Practice

Persons and organizations in classes I and II shall establish and implement practices to deliver accessible customer service consistent with this standard.

Persons and organizations in classes III, IV and V shall establish, implement, maintain and document policies and procedures to deliver accessible customer service consistent with this standard.

All customer service policies and practices shall include the following elements:

a) Commitment to identifying, removing and preventing barriers;

b) Provision of alternative services;

c) Presence of accessibility support persons, service animals and assistive devices;

d) Information on service disruptions;

e) Employee and volunteer training;

f) Customer feedback.

In establishing and maintaining policies, procedures or practices, all classes shall identify, remove and prevent barriers to accessible customer service.

6.2 Alternative Service

Persons and organizations shall provide alternative customer service until barriers are removed.”

In sharp contrast, as noted above, the standard which the McGuinty Government passed merely requires that services providers “…shall use reasonable efforts to ensure that its policies, practices and procedures are consistent with the following principles…”.

CONCLUSION

It is very regrettable that the first accessibility standard made under the AODA is so limited and weak. This standard needs to be substantially revised and expanded as soon as possible to make it strong and effective. The many individuals and organizations that campaigned so tirelessly for over a decade to win the enactment of the AODA, and all Ontarians with disabilities, deserve much better.