A Canadians with Disabilities Act?

Written by Lana Kerzner and David Baker

May 14, 1999

Table of Contents

Introduction

Equality in the Charter of Rights and Freedoms

Human Rights

Employment Equity

Transportation

Broadcasting and Telecommunications

Jurisdictional Comparison

A Canadians with Disabilities Act

Conclusion

---

Introduction

The Council of Canadians with Disabilities (CCD) has decided to review the question of whether to endorse the enactment of a Canadians with Disabilities Act, (CDA). It retained ARCH to prepare a discussion paper which:

(a) examined the operation of existing federal barrier removal legislation;

(b) presented a general and objective description of how comparable legislation was operating in selected other jurisdictions; and

(c) identified a number of issues which CCD may wish to consider when deciding whether or not to endorse a CDA.

We tried to write the paper so that it is clear and easy to understand. It contains both descriptive and analytic sections and is organized in a structure which is meant to separate these elements.

The process of barrier removal is dynamic. A Canadians with Disabilities Act is not the only alternative to the status quo. For this reason, when reviewing existing legislation we have included recommendations for possible changes. Proceeding with some or all of the recommendations does not preclude CDA, which may be a desirable way of achieving them.

The paper is to be distributed in advance to CCD Council members who will be participating in a discussion of the issue at their June meeting in Winnipeg.

Background

This is not the first time CCD has confronted this issue. In the late 1980's it was impossible to disregard the activism and coalition building unleashed in the United States in support of the proposed Americans with Disabilities Act (ADA). At a meeting held soon after the ADA became law in 1990, CCD invited a group of leaders within the community of persons with disabilities to come to Winnipeg and discuss the relevance of the ADA model to Canada. The decision at that time was to pursue "omnibus legislation" (i.e. legislation amending a variety of statues and without a single overriding principle or goal other than the betterment of the social condition of persons with disabilities). While those who participated in the discussion will each recall the deliberations from their own perspective, it is fair to say that there were 2 recurring themes through the discussions which proved to be persuasive:

(a) that Canada, unlike the United States, already had comprehensive barrier-removal legislation, suggesting emphasis should be placed on access to justice and effective enforcement rather than on the enactment of new legislation; and

(b) it was assumed that pursuing a CDA would require the abandonment, or at least subordination, of long-held legislative and other goals, in order to focus on one piece of barrier-removal legislation.

The Canadian Disability Rights Council (CDRC) assumed leadership of the Omnibus process. Despite a conceptually strong and consensual process, the legislation enacted by the government of the day was insubstantial.

The government promised further rounds of Omnibus, but the promises were not specific. The sense of disappointment within the community, the disappearance of CDRC, together with a change in governments meant the goal of enacting further omnibus legislation is no longer being actively discussed.

Defining the Goal

Unless and until someone places a draft piece of legislation before the public, it would be foolhardy to try and define a CDA. It is probably best to think of the goal as being to develop a process based on the following assumptions:

(a) most members of the community of persons with disabilities attach a high priority to the removal of barriers which exclude them;

(b) market forces and voluntary measures have not removed these barriers in the past, and there are no verifiable indications that they are likely to be more effective in the future;

(c) government action will be necessary if the barriers are to be removed;

(d) while government action can take many forms, it is the perception within the community that barrier-removal requires a "rights-based" approach;

(e) in order to win the endorsement of the entire community of persons with disabilities a CDA would have to address issues of importance to each and every person within the community.

Return to top.

Equality in the Charter of Rights and Freedoms

Existing Legal Framework

The Charter is entrenched as part of Canada's constitution. It is part of the country's supreme law and is intended to take precedence over all other laws which may conflict with it. Canada is said to be a constitutional democracy in recognition of the role of the courts in interpreting the constitution which gives form to our government.

The Charter's equality guarantee was probably its highest profile section at the time of its enactment. The support of equality seeking groups was crucial to garnering the public support needed in order to gain the endorsement of Parliament and the required number of provinces. Persons with disabilities were not originally included amongst the protected classes of persons enumerated in section 15. As a result of an intense and effective lobbying effort by a number of groups, including CCD (formerly COPOH), the government relented and the category "mental and physical disability" was added. Section 15 now reads:

Every individual is equal before and under the law and has the right to the protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, color, religion, sex, age, mental or physical disability.

The Court has recently articulated a formula for interpreting section 15 which can be summarized as follows:

1. Is there a distinction based on one of the enumerated categories of protected groups, or an enumerated category which is analogous?

2. Is the distinction discriminatory, i.e. does it cause negative consequences for the members of the group?

3. Does the context in which the distinction has been made call into question the values section 15 was designed to protect, such as freedom from stigma and stereotyping or deepening the disadvantage of the already disadvantaged.

Comparison between groups is inherent in finding a violation of equality rights. In the case of disability the comparator group may be the non-disabled, or it may be another group of persons with disabilities who, in the context of the particular right in question, would be considered to be relatively more advantaged than the group whose members are claiming their rights have been violated.

The Charter applies only to government. Thus the private sector is generally not subject to section 15. The Charter has been used to amend human rights legislation, however, and this clearly would affect the private sector. As well the Charter's equality guarantee has been extended to cover public services (such as doctors, and universities) which are provided with governmental support through the private sector.

The Charter depends for its enforcement upon the courts. Historically, the courts have been a rather conservative institution. For example, there has been a long history of judges interpreting human rights legislation restrictively, requiring governments to repeatedly amend this legislation so it can achieve its intended purpose. In light of this history, and because decisions under the Charter are not so easily reversed by legislatures, it might have been reasonable to assume section 15 would have been narrowly interpreted by the courts in Canada, as has the equal protection clause in the United States. Nevertheless, it would be difficult to characterize the Canadian model of constitutional equality as "narrow". Even today, when the majority of appointments to the Supreme Court of Canada were made by a Conservative government, the criticism most often heard is that its members are too activist. The approach to Section 15 which they have chosen draws very heavily on human rights jurisprudence, which is generally favourable to the process of removing barriers which exclude persons with disabilities, although there have certainly been disappointments.

Current Activities

Generally the courts have strongly asserted themselves when they see government interfering with the recognition of the true ability of a person or group. Respect for the dignity of individuals is clearly regarded as the most important value enshrined in section 15. In the context of disability this has resulted in a series of decisions which has close parallels in human rights cases:

1. Discriminatory distinctions need not be intentional or readily apparent. While singling out persons with disabilities for inferior treatment will certainly draw Charter scrutiny, governmental action which appears to be neutral on its face will be found to be discriminatory if it has the effect of excluding or adversely affecting a protected class. Thus a person who uses a wheelchair, may experience discrimination directly if an exclusionary rule uses a mobility standard, or indirectly if exclusion results from a requirement that the person be physically present in an inaccessible building. This is significant because many of the most important barriers which exclude persons with disabilities were erected out of ignorance, neglect or so long in the past it would be impossible to conclusively establish what the intentions actually were. By focusing on the adverse effect of the barrier, rather than becoming obsessed with either its form or the intentions of those responsible for erecting it, the courts have helped advance the barrier removal process.

2. Secondly, the courts have been prepared to look behind general standards, for example based upon age or disability, and ask whether the standard's exclusionary effect is too broad. If it can be shown that some of those who cannot meet the standard are able to perform the needed duties which the standard was supposed to identify then the standard has been shown to be overly broad and therefore discriminatory. Ideally the proper standard would be applied individually, so that each person would have the opportunity to demonstrate his or her ability to perform the duties which are essential to the particular task at hand. The courts have been struggling with the extent to which they are prepared to impose an obligation to individualize. The issues which have arisen to limit this obligation are the costs of applying individual tests and the risks associated with relying upon tests which cannot perfectly predict future performance. In the context of disability these issues arise most clearly in the context of motor vehicle licensing.

3. The duty to accommodate, or barrier removal, logically flows from the identification of barriers as the source of discrimination. Sometimes the barrier is very specific to an individual. Other times the barrier is systemic and has the effect of excluding a whole group of people. The courts have recognized that barriers must be removed if people with disabilities are to enjoy equality of opportunity in the mainstream of society. The concept of accommodation was strongly endorsed in a recent case in which the Supreme Court of Canada ordered a province to implement the services needed, including the provision of sign language interpreters, to ensure deaf people have the means of communicating effectively with their health care providers. As the accommodation principle is developed there will be resistance to accepting that accommodations should be inclusive whenever this is possible. For those who recognize that the goal is inclusion it logically follows that replacing stairs with a ramp is preferable to building a lift beside the stairs. The challenge will be persuading the courts that the goal of inclusion is worth any extra costs involved in imposing an inclusive accommodation.

One of the major difficulties, which is not easily resolved, in discrimination cases has been persuading courts that the different treatment to which persons with disabilities are subjected is actually negative. Sometimes agreement can not be reached within the community of persons with disabilities. So for the example in the assisted suicide case there was a spectrum of opinion within the community from (1) leaving the issue to the individual to make the choice, to (2) establishing effective safeguards to ensure the choice is freely exercised, to (3) prohibiting choice because no safeguards would be sufficient to guarantee freedom of choice given the environment in which choice would inevitably be made. Similarly in an important case about inclusive education, the Supreme Court of Canada heard from an organization representing parents of children with learning disabilities who argued against a presumption in favour of integration, on the basis their children's "best interests" would be served by being educated in segregated settings in many cases.

Confronted with these arguments, the courts have tended to throw up their hands, and decide not to decide. Instead they find a variety of ways to leave the decision in the hands of the original decision-makers against whom the Charter claims had been launched. These cases generally use the language of showing "deference" to government action.

In a whole range of other areas the courts have flirted with interpretations which would have allowed them to avoid the issue of barrier removal, but ultimately have responded effectively:

1. A lower court held that the provision of sign interpretation to deaf patients was not a medical service, but was ancillary to the provision of medial services. Wrong. The Supreme Court of Canada held effective communication was inherently part of medical services.

2. The Supreme Court introduced the notion of a "relevance test". If it could be shown that a person's disability was relevant to the purposes of the program then a disability-based exclusion would be permissible. The broad discretion this test would have given the courts to excuse discriminatory action is readily apparent. In a recent restatement of the proper test to be applied in section 15 cases the Court has dropped all mention of the relevance test. Another loophole avoided.

3. In an age discrimination case the Court was troubled by the impact ending mandatory retirement might have on the availability of occupational pension plans. In its decision, the Court flirted with a "levels of scrutiny" approach to section 15 suggesting age was perhaps an inappropriate criteria for full equality protection. It went on to give a very broad scope to the section 1 arguments advanced by those seeking to defend mandatory retirement, suggesting age cases would be interpreted differently. In the United States disability constitutional equality cases receive the lowest level of protection their courts provide. There was reason to be concerned a similar interpretation could happen here. Once again, the Court has pulled back from the edge of the precipice. The new test, articulated above, leaves no room for a level of scrutiny approach.

4. Charter cases are never simple matters. As the law evolves the number of issues which must be proven expands. The Court has made it clear that it is aware of the problems facing Charter litigants. It has held that if it can be shown that a government action will adversely affect a significant proportion of the members of a protected group, then it is irrelevant that the Charter claimant may not be affected in precisely the same way. This should relieve some of the pressure on the Charter litigant who inevitably has some distinguishing feature or unique characteristic which could be focused upon to confuse matters. Similarly, the Court has said once a group's disadvantage has clearly been established it need not be repeatedly proven over and over at great expense.

Decisions such as these should reassure those who watch the evolution of section 15. It would appear the courts will not be easily distracted from the task of barrier removal.

Measures of Success

One of the first measures of the Charter's impact was the extent to which Parliament and the legislatures acted to amend their laws to bring them into compliance with section 15. Section 15 came into effect in April 1985, some three years after the Charter's other provisions. The assumption had been that governments would require this additional time to review their legislation and practices and bring them into compliance. Leaving aside some rather trivial housekeeping measures, only the province of Ontario used the opportunity to introduce a comprehensive law which addressed systemic issues.

Another measure of the Charter's impact is the extent to which Charter decisions have been used as templates for change by governments which were not parties to a particular case. As the late Brian Dickson, former Chief Justice of Canada said, "the Supreme Court of Canada should not have to repeat itself." In the clearest disability case addressing barrier removal, the province of British Columbia was directed to establish interpreter and other services to ensure deaf patients have the means of effective communication with their health care providers. To date, other provinces have not been following suit. In Ontario, a concerted effort has been made to persuade the government to adhere to the Court's judgment. The response has been to study the issue, but there is no indication that action is imminent.

Forcing the Court to repeat itself inconveniences more than just the members of the Court. Access to Charter justice is a real issue. One of the remarkable achievements of the federal government has been its willingness to establish the Court Challenges Program. Operating with a substantial measure of community control, the Program is an arm's length measure for funding Charter litigation against the federal government. An obvious deficiency is the absence of any comparable funding mechanism for cases within provincial jurisdiction.

In some respects it is premature to be drawing big conclusions about how people with disabilities will fare under the Charter. As already indicated, the model for equality which the courts have established is compatible with the goal of barrier removal and recognition of each person's true ability. It is less clear that the model of full inclusion will be recognized. The issue was squarely before the Supreme Court of Canada in an education case. On the one hand, the Court recognized integration as the norm of general application. On the other, the Court was prepared to find that a segregated setting was in a child's best interests without confronting the question of whether the child's educational needs could be met in an integrated classroom setting. The Court spoke of the importance of choice when confronting this issue, but was not prepared to defer to parental choice when the choice is being made on behalf of another. The Court's commitment to inclusion will be tested in the not too distant future.

Another test of the Court's commitment to inclusion will be when it addresses a case where a section 1 defense is being asserted based on the costs of barrier removal. In a recent case, the Court incorporated the human rights notion of accommodation to the point of undue hardship into its Charter jurisprudence. Normally, the adoption of human rights concepts into Charter analysis has been a positive thing. Although the court has been prepared to require very costly changes be made in the name of equality, it will be important to compare whether comparable levels of cost obligations will be placed on governments in the name of accommodation. In the one case which addresses this issue to date, the modest costs involved in providing effective communication to deaf patients of a multi-billion dollar health care system made the assertion of undue hardship a virtual non-issue which the Court could dismiss without detailed analysis. As with the issue of inclusion, the question of undue hardship will be adjudicated soon. It will be important to argue that establishing an undue hardship standard comparable to the cost standard in other equality cases is of great significance to persons with disabilities.

A final issue which the Supreme Court may be addressing as early as the fall is the question of whether the duty to accommodate arises in cases of direct as well as in adverse effects discrimination. At present the Court has limited the duty to adverse effects cases. The distinction creates an unnecessary and artificial division where it is clear that imposing a duty to accommodate is the required solution to removing the barrier.

It is noteworthy that when the Supreme Court of Canada sought a standard to measure barrier removal against in the British Columbia "effective communication" case, it turned to regulations under the Americans with Disabilities Act for guidance. In a recent case concerning paratransit eligibility criteria, it was helpful to be able to reference ADA criteria which include such principles as basing need for paratransit on the question of whether a person with a disability can use the conventional public transit system independently.

Courts are not well equipped to develop detailed criteria or to address technical issues. They are dependent upon the prior existence of standards if they are to be able to decide important barrier removal cases. While courts can identify principles or goals in their judgments, they will be hesitant to do so in the absence of credible and proven standards.

Recommendations

The Charter equality guarantee will not be amended in the near future. Changes will occur as a result of judicial action, particularly that of the Supreme Court of Canada. For this reason, the recommendations we make will be process oriented:

• the funding of the Court Challenges Program should be placed on a long-term secure basis
• the mandate of the Court Challenges Program should be expanded to include provincial jurisdiction
• in the absence of funding for provincial cases, efforts should be made to identify alternative resources to permit cases within provincial jurisdiction to be litigated
• a mechanism for developing standards and technical criteria consistent with Charter principles would assist the courts in making important barrier removal decisions

Return to top.

Human Rights

Existing Legal Framework

The Canadian Human Rights Act ("the Act") is a comprehensive anti-discrimination statute which was enacted by the Parliament of Canada in 1977. The purposes of the Act are to protect individuals from discrimination and promote equality of opportunity. More specifically, section 2 of the Act states that:

all individuals should have an opportunity equal with other individuals to

make for themselves the lives that they are able and wish to have and to

have their needs accommodated consistent with their duties and obligations

as members of society, without being hindered in or prevented from doing so

by discriminatory practices based on …disability…

Whereas the Canadian Charter of Rights and Freedoms protects primarily against acts committed by governments, the Canadian Human Rights Act, which is federal legislation, applies to federal government departments and agencies, Crown corporations, chartered banks, airlines, telecommunications and broadcasting organizations, and shipping and interprovincial trucking companies. All of the provinces and territories have similar laws forbidding discrimination in their jurisdictions.

A human rights code is not like an ordinary law. It is a fundamental law which declares public policy and is "quasi-constitutional" in nature. It cannot be waived or varied by private contract and may only be altered by the legislature.

In the context of the Act, discrimination means making a distinction between certain individuals or groups based on a prohibited ground. "Disability" is one of the grounds and "means any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug". The inclusion of disability in anti-discrimination legislation is a fairly recent response to the historic disadvantage faced by Canadians with disabilities.

The Canadian Human Rights Commission ("the Commission") was set up to administer the Act. It investigates complaints of discrimination and is responsible for fostering public understanding and recognition of the principles of the Act. Complaints may relate to employment or the provision of goods, services, facilities and accommodation that are customarily available to the general public. The Commission also audits and, when necessary, takes action to ensure employers comply with the federalEmployment Equity Act.

When a complaint is filed with the Commission, a process is followed to deal with the complaint. At each stage, an attempt is made to settle the complaint. The first stage is an investigation of the allegation of discrimination which is undertaken by the Commission. The Commission's role is to act impartially in the public interest. The Commission may approve a settlement, appoint a conciliator or dismiss a complaint. However, if the Commission decides that an inquiry is warranted, it refers the case to the Canadian Human Rights Tribunal ("the Tribunal"). The Tribunal is a quasi-judicial body that holds hearings to decide whether there has been a discriminatory practice prohibited by the Act. The Tribunal has the power to issue binding orders. It is the Commission's role to represent the public interest before the Tribunal. A decision may be challenged by requesting the Federal Court to conduct a judicial review.

The Act was aimed to provide a mechanism for the resolution of human rights complaints that is informal, expeditious and inexpensive. When the Commission and Tribunal were established, it was envisioned that the process would be accessible to members of the public and would be simpler and faster than the court system.

Current Activities

i) Breakdown of Complaints

a) Number of Complaints

Disability is one of the complaints most often cited by complainants to the Commission. The largest number of new complaints to the Commission in 1998, as in the past, were claims of discrimination based on disability. In 1998, 32% of complaints received were claims of discrimination based on disability and the proportion of these complaints has been similar since at least 1995.

b) Nature of Complaints

While some disability based complaints deal with accessibility to facilities, most relate to discrimination in employment. In fact, the situation of persons with disabilities in the workforce has been described as "abysmal". Many of the complaints received from persons with disabilities relate to failure to accommodate their needs.

ii) Duty to Accommodate

The Act was amended in June, 1998 and as a result now includes an express reference to a "duty of accommodation". Organizations covered by the Act are required to accommodate the needs of individuals, except where this would cause undue hardship to the employer or service provider. While this duty affects other groups as well, such as religious minorities, it is most important for persons with disabilities as it is central to their full economic and social integration into Canadian society.

Accommodation is not a new concept. The existing case law recognizes accommodation, up to undue hardship, as a right and the amendment merely codifies this right. In addition, it specifies that undue hardship is to be measured against "health, safety and cost". It has been stated that one advantage of this codification is that "people should not have to be legal experts to know what their rights or obligations are".

There is no indication from the government that they will introduce regulations to further define the duty. The major point of contention is the meaning of "undue hardship". There is also debate about whether "cost, health and safety" are the only factors to be considered and how these factors are to be assessed.

Cases dealing with the accommodation amendment are in the Commission system but, the Commission has yet to deal with any cases that would invoke the new standard of accommodation. Cases testing the new section are expected to be referred to the Tribunal in the next six months.

iii) Report of the Auditor General - 1998

The 1998 Report of the Auditor General of Canada recommended improvements to be made to make the human rights system more effective in resolving allegations of discrimination. While there were no recommendations specific to disability issues, the observations contained in the report help to explain why people with disabilities have found the vehicle of human rights complaints to be unsatisfactory in removing barriers.

The report criticized the Commission for its "cumbersome, time-consuming and expensive" approach to resolving complaints and stated that a fundamental review of the Canadian Human Rights Act is needed. Some of the report's observations are as follows:

a) Major delays exist in processing complaints. On average, the Commission took 23 months to reach final decisions. If a case is sent to the Tribunal or appealed to the Federal Court, it could take several years for a case to be resolved from the day the complaint is signed with the Commission.

b) The Commission is encountering problems eliminating its backlog.

c) Most complaints are not proceeded with or are dismissed.

The Commission has taken a number of steps in response to the Auditor General's report and has outlined them in the Commission's most recent Annual Report. Program changes have been made and staff have been redeployed. The initiatives that the Commission has undertaken to deal with complaints more quickly include:

a) Establishment of a special processing team to deal with older cases.

b) Offering mediation as an alternative to investigation.

c) The Commission will be undertaking an in depth examination of its procedures for dealing with complaints.

The Commission hopes that these initiatives will permit the resolution of all older cases within two years and will ensure that 75% of new cases are investigated and submitted to Commissioners for a decision within nine months.

iv) Review of Canadian Human Rights Act

On April 8, 1999, the Minister of Justice announced a review of the Canadian Human Rights Act. The Honourable Gerard La Forest, former Justice of the Supreme Court of Canada, has been appointed to chair the review panel. The review will consist of an examination and analysis of the Act and the policies and practices of the Commission. It will address the recommendations made in the report of the Auditor General. Among other things, a review of the complaints-based model and subsequent recommendations for changing the model will be undertaken to improve protection for individual and systemic discrimination and to make the process more efficient and effective.

It is expected that the review panel will hold consultations with the public, the Commission, employers, unions, equality-seeking groups, government departments and other interested parties. The Minister of Justice has asked that the panel report to her within one year. The panel members met on May 6th and 7th to determine preliminary matters such as the procedures for public consultation.

Measures of Success

i) Delays and Backlog

Justice delayed is justice denied. It is undeniable that the excessive delays and the associated backlog of cases is one of the most commonly cited criticisms of the system. The problem is so severe that many potential complainants do not see the launching of a complaint as a practical solution for the discrimination they face or as a method for removing barriers. It has been argued that the Commission's attempt to clear the backlog has heightened people's lack of confidence in the system because many legitimate complaints are being denied a hearing. As noted above, the Commission is currently focusing considerable energy and resources at dealing with complaints more quickly and eliminating the backlog.

ii) Systemic Discrimination and Complaint Based System

Systemic discrimination has been defined as "widespread, often deep-rooted patterns of discrimination affecting many members of a disadvantaged group". Systemic discrimination can be overt and intentional or it can be unintentional. It has been stated that the major problem faced by equality seekers, including persons with disabilities, is systemic discrimination. At the same time, complaint investigation is the legal mechanism used by the Commission to deal with allegations of discrimination. This model considers discrimination on an individual basis. It is relatively rare that individual complaints result in systemic change. The problem is exacerbated by the fact that individuals are often intimidated by the process and reluctant to bring cases forward.

The Canadian Human Rights Act does contain a number of powers that should enable the Commission to deal with systemic issues. These include:

a) Special Programs

A person may propose, for the Commission's approval, to implement a plan for "adapting any services, facilities, premises, equipment or operations" to meet the needs of persons arising from a disability.

b) Accessibility Standards

Regulations may be made for the benefit of persons with disabilities which prescribe standards of accessibility to services, facilities or premises. When these standards are met, a matter of accessibility to which it relates does not constitute the basis for a complaint of discrimination based on disability.

c) Guidelines

The Commission may issue guidelines outlining the scope of any section of the Act and manner in which they are to be applied in a class of cases. These may be issued pursuant to an application or on the Commission's own initiative. The Guidelines are binding on both the Commission and the Tribunal.

The Commission has not taken advantage of any of these potentially powerful vehicles for addressing systemic discrimination. There has never been an application for a Special Program and nor has the government ever issued any accessibility standard regulations. Over ten years ago, the Commission was working on accommodation guidelines but these were abandoned. There have been no further attempts to issue guidelines relating to persons with disabilities and no such guidelines currently exist.

It is unfortunate that, armed with these powers, the Commission is unable to do a better job at addressing systemic issues. The Commission states that, as a practical matter, they are not very well equipped to deal with these issues. The Commission has no specific funding nor staff devoted to dealing with systemic issues. In addition, the current focus on speeding up the resolution of complaints and eliminating the backlog has meant that systemic issues are put on the back burner.

One initiative that the Commission has taken is a series of accessibility audits on issues such as the accessibility of banks, Canada Post and government offices as well as the availability of TTYs and publications in alternate formats. Only a very limited number of such audits have been undertaken. The Commission states that they did have some positive impact in that several organizations took corrective measures or developed accessibility plans. In addition, the new federal Employment Equity Act gives the Commission more meaningful powers to deal with systemic problems in employment.

The problem with automatic banking machines, which are not accessible to many persons with disabilities, provides an example of how ineffective the Commission is at resolving systemic issues. While some complaints have been launched regarding this issue, the Commission states that they have been resolved. The complaints process has let the community down: individual complaints may have been resolved but the fact remains that there are very few accessible bank machines in the country. Over a year ago the Commission formed a committee to develop a national accessibility standard. Since then, the Canadian Standards Association has been working on the establishment of a standard. The Commission has stated that the work is in the final stages but that it usually takes many years for such standards to be finalized.

iii) Conflicting Roles of the Commission

It is the Commission's role to promote and advocate human rights and at the same time to impartially investigate complaints. This duality of roles causes some to see a potential conflict of interest for the Commission. The Commission's many activities include advocating social policies, helping to draft complaints, investigating complaints, conciliating complaints, representing the public interest before the Tribunal and the courts and, sometimes, collaborating with complainants' counsel to expand the interpretation of the Act. Challenges to the Commission assuming the dual roles have constrained its effectiveness.

iv) Funding

Lack of funding has always been a problem for the Commission and in the last five years resources have been cut significantly. The Commission believes that financial restraint and program cutbacks are partly to blame for the obstacles it has encountered in dealing with complaints promptly even though the bulk of their funding is directed towards clearing up the backlog. They state that the inadequate funding does not permit the Commission to undertake the kind of systemic investigations and policy development it would like to do.

Others have expressed the view that the nature of the complaints based system may be a much more significant cause for the breakdown of the system than the lack of funding. The human rights commissions in all of the provinces have similar backlog problems and similar complaints based systems. Because a system based on complaints does not lend itself to resolving problems affecting large numbers of people, an increase in funding might solve the delays and backlogs but do nothing for the equally important problem of systemic discrimination.

Recommendations

While human rights legislation is said to be the most important piece of legislation in Canada after the Charter, this principle is diminished in reality. It is generally believed that the Canadian human rights system does not work, and in particular, fails persons with disabilities. Frustration is widely felt because people do not get their "day in court". It is hoped that the review of the Canadian Human Rights Act which is currently underway will provide workable solutions to the existing gaps and that the government will act on the recommendations. In attempting to devise a new system, there will likely be few models upon which to draw as superior examples. As part of the Auditor General's most recent review, an unsuccessful attempt was made to find a "best practices" model for human rights. That is, a better practice used elsewhere, either domestically or internationally.

The following are some recommendations for change:

1) The Commission's authority to use the powers in the Act to address systemic issues should be affirmed and protected from challenge. These activities would be facilitated by the creation of a department within the Commission whose sole purpose is to take proactive systemic initiatives.

2) The Commission should view systemic barrier removal as a core focus. Systemic work should be the main priority and individual cases should be taken only as resources provide. The Commission should follow the lead established under the Americans with Disabilities Act, which would allow the Commission to establish areas for systemic remedies and pursue them aggressively by limiting their caseload to a manageable level. Claimants should have the right to pursue cases outside the human rights system.

3) The Commission might be given a general audit power to determine whether organizations are complying with the Act.

4) The power to recommend accessibility regulations should be totally separate from the Commission. The regulations should be minimum standards, enforceable through the courts, rather than providing a defence to a human rights complaint.

5) Deadlines might be established for the investigation process and for the issuing of reasons for decisions.

6) Access to justice might be improved by establishing an office to provide consumer-oriented and community driven advocacy services to claimants. Many cases are not launched because some individuals are unable to advocate on their own behalf, especially in the face of an increasingly complex human rights process. The office would ensure that individuals who suffer from discrimination would be enabled to bring their cases forward.

7) Obtain sufficient funding from the government to support changes to the system.

Return to top.

Employment Equity

Existing Legal Framework

Employment equity was a term chosen by Judge Rosalie Abella as an alternative to the embattled term "affirmative action". By it she meant the systemic removal of discriminatory barriers in the workplace and the use of mandatory employment goals and time tables for members of 4 designated groups, including persons with disabilities.

The first piece of federal employment equity legislation was the Employment Equity Act of 1985. It contained neither the barrier removal process nor mandatory goals and time tables identified by Judge Abella. It did require federally regulated non-public employers to survey the representation of the 4 designated groups in their work forces. The data was submitted to the government which made it public. Response to the published results proved to have negligible impact. The data did serve as the basis for systemic human rights complaints by a coalition of groups called Disabled People for Employment Equity Human Rights Group.

The 1985 Act was repealed and replaced by the Employment Equity Act of 1995. Ironically, the legislation was enacted at virtually the same time the Ontario Employment Equity Act was being repealed by the recently elected Conservative government.

The new federal legislation drew liberally upon the model of the Ontario legislation. Its "purpose" was said to be to correct the disadvantaged position of the 4 designated groups in the workplace and to ensure their numbers amongst the employed reflected their availability for employment.

This purpose was to be achieved by requiring that employers:

a) monitor the representation of designated group members in the workforce, including hires, promotions and terminations;

b) select the most relevant availability data about the composition of the workforce, and contrast representation and availability;

c) where there is under representation, conduct a systemic review and identify the workplace barriers which caused it;

d) in an employment equity plan establish goals and time tables for achieving a representative workforce and for removing the discriminatory barriers which stand in the way of achieving it; and

e) use reasonable efforts to implement the plan.

Human Resources Development Canada was to play an educational role, informing employers of their obligations under the legislation and providing them with relevant labour market information for use in the process of determining whether or not an employer's workforce is representative.

Enforcement of the legislation is the exclusive responsibility of the Canadian Human Rights Commission. Commission staff are to conduct "compliance audits". In the event an employer is non-compliant, the Commission is to use the gentle art of persuasion and endeavour to negotiate written undertakings. Only if an employer refuses to enter or breaches an undertaking can the Commission issue a direction. The employer can challenge the direction, or the Commission can enforce it, by seeking an order from a Tribunal.

Current Activities

HRDC has issued Ministerial Guidelines designed to assist employers to comply with their obligations under the Employment Equity Act.

The Commission has established an Employment Equity Branch of 21 employees and with a budget of $1.3 million. The Act covers 412 employers. A goal has been set of auditing each of these employers during the first 5 years of the Commission's mandate. It began a total of 110 audits (82 private and 26 public) of randomly selected employers in 1998.

The Commission reports the employers have generally been co-operative with the initial audit. Only 1 direction had to be issued, and that case was resolved without the need for a tribunal.

The audit process consists of the following stages:

1. notification that an audit is to take place.

2. the employer completes a survey questionnaire;

3. a Commission compliance review officer verifies the information contained in the survey, usually through on site interviews and by reviewing data;

4. the officer reports on findings, indicating areas of non-compliance and requesting the employer propose specific undertakings to address the non-compliance; and

5. undertakings are negotiated, or failing agreement being reached directions will be issued by the Commission.

A follow-up audit must then be conducted to determine whether the undertakings or directions have been implemented.

During 1999 only 25 new audits will be initiated. This is because only 2 employers have been found to be complying with the Act. All the others audited during the first year will be undergoing follow-up audits.

Employers have generally been found to be so non-compliant that initial undertakings address procedural rather than substantive obligations. Employers are undertaking to collect the proper data and to conduct systemic barrier reviews. Until they have this basic data, they cannot establish representation or barrier removal goals. For this reason the Commission is saying they are still 1 to 2 years away from being able to assess whether the Act is going to be effective. It won't be until compliance with follow-up undertakings is reviewed that it will be known whether barriers are actually being removed and workforces are moving towards equitable representation.

Measures of Success

i) Minimal Opposition to Audits

The employer response to the new Act has been minimal to date. Compliance seems a remote concept, when employers are demonstrating a profound ignorance about their obligations. On the one hand, the gentle approach which has been adopted by the Commission, has not provoked a negative or adversarial reaction. This may explain why Privy Council Office, the Public Service Commission and Treasury Board have made employment equity a key priority. They appear willing to provide the kind of leadership required from a government seeking to secure the compliance of the private sector.

ii) Commission's Willingness and Ability to Enforce the Act

On the other hand, the non-responsiveness may simply be the calm before the storm. The Commission staff understand very well that follow-up undertakings will have to address such issues as:

1. the level of hiring, promotion and representation goals if employers are actually going to move towards equitable representation within a reasonable period of time;

2. the effectiveness of accommodation policies in ensuring a high level of uptake by employees who require accommodation in order to maximize their effectiveness; and

3. the strength of positive policies and practices which will move the employment equity process forward, albeit only temporarily (e.g. until a critical mass of disadvantaged employees is established).

There is a fair amount of disputed territory inherent in each of these examples. To take but one example, hiring goals, it is anticipated that the Commission will require employers to adopt hiring targets well in excess of availability. If an employer actually hired at the level of availability (generally recognized as 6.5%) it would take an average of 25-28 years to achieve equitable representation. Assuming the Act's obligation that employers make reasonable progress towards this goal requires that representation reflect representation within a shorter period, (i.e. 8 - 10 years) then hiring goals of 1.5 or 2 times availability will be necessary.

iii) Challenges to Enforcement

A variety of challenges to this critical initiative are already being experienced:

1. The Canadian Bankers Association persists in its argument that the definition of disability is too narrow and people with disabilities are generally unwilling to self-identify. Notwithstanding the clarification of the definition of "person with a disability" so as to explicitly include employees who have been accommodated by their employers (with CCD's full endorsement) this powerful lobby group persists in its fundamental attack on employment equity for persons with disabilities.

2. The whole issue of availability of persons with disabilities is under dispute. Treasury Board is using availability estimates (4.8%) which are substantially below those being used in the private sector with the approval of the Commission (6.5%). The Commission is attempting to address some fundamental defects in the data gathering process. Firstly, it is generally of the view that when data is suppressed because the sample is too small to be statistically significant this means national data cutting across all occupational groups should be used. Treasury Board treats suppressed data as justifying using 0% availability. Secondly, when a particular employer dominates an occupational category the incestuous nature of the exercise means that employer ends up measuring itself against the norm which it has established. Recognizing this corrupts the data, the Commission's response is once again to broaden the sample.

3. Unlike the other designated groups, persons with disabilities were not included in the 1996 census. Attempts were made by Statistics Canada to develop statistical models which would provide current data, however the process was acknowledged to be a failure and availability continues to be measured according to data collected during the 1991 census. The net result is that availability is probably understated, however this will not prevent critics from suggesting the data is out of date and therefore unreliable.

iv) The Will of the Commission

According to the Commission's 1997 Annual Report several banks entered binding settlements of human rights complaints which included hiring goals. According to the Commission the banks' undertakings "have not been honoured". Instead of improving their representation of persons with disabilities, their representation "has actually fallen". It is not reassuring that more than a year after reaching these conclusions the Commission has not initiated a process which will lead to the enforcement of the settlements.

The Commission is the exclusive enforcer of the Act. If the Commission adopts a weak interpretation of its mandate, the equality seeking groups have little or no direct means of challenging the Commission. Unlike the Ontario legislation which created opportunities for members of the designated group to independently enforce it, the federal legislation retains enforcement as the sole prerogative of the Commission. The 1995 Act not only refrained from creating such new employment equity rights, it actually removed the right of groups such as DPEEHRG to initiate statistically based human rights complaints under the Human Rights Act.

The major safeguard of effective enforcement is therefore the quality of the appointments to the Commission. The current Chief Commissioner and many of the Commissioners have demonstrated a sincere concern for the difficulties experienced by persons with disabilities in the labour market. This concern is clearly evident in the Commission's most recent Annual Reports. It must be said however that this has not always been the case, nor should the rights of persons with disabilities hang in the balance as individual appointments are made.

v) Actual Performance - Employers' Disability Record

Over the decade for which we have federal representation data the following performance has been tracked:

Private Employers and Crown Corporations

1997 1987

Availability 6.7% 5.5%

Representation 2.3% 1.6%

Hiring 1.0% 0.6%

Federal Public Service

1997 1987

Availability 6.5% 4.6%

Representation 3.9% 2.6%

Hiring 1.7% 2.1%

Between 1996 and 1997 overall representation dropped from 2.7% to 2.3% and hirings dropped from 1.1% to 1.0%. An ongoing concern of CCD's has been the tendency of some employers to inflate their representation data by using a definition of "person with disability" which was broader than that permitted in the Employment Equity Act. This definition was designed to be consistent with the definition used by Statistics Canada when it generated the availability data through the HALS post-censal survey. This sudden decline in the representation figures between 1996 and 1997 is probably attributable, at least in part, to employers deciding to abide by the correct definition because they knew that the Commission would audit them. Previously HRDC acknowledged the existence of the problem but refused to intervene. It even compounded the problem by issuing a "Employment Equity Report Card" which gave top ratings to many employers which had inflated their data.

Because of the glaring discrepancy between representation and availability it is not difficult to isolate hiring as the key issue for persons with disabilities. If hirings are less than 30% of availability and terminations are more than double hirings it is clear that meaningful progress towards equitable representation is unlikely. Evidence suggests that what little progress has been made in representation over the decade is primarily due to employer success in improving self-identification amongst their existing employees.

Noteworthy in the data is the dramatic decline in the percentage of persons with disabilities amongst those hired by the federal public service. The federal government must demonstrate leadership in this area it its legislation is to be viewed as credible. The Commission's ability to require compliance of others ultimately depends on being able to point to the achievements of the federal government as the moral yardstick against which others are to be measured.

Recommendations

1. The initial audits being conducted by the Commission are resulting in procedural rather than substantive undertakings. While arguably employers need to be approached delicately on their accommodation policies and whether their barrier removal and hiring goals are moving representation towards equity quickly enough, the initial audit should be more than a gentle reminder that employers must be collecting data and identifying barriers in their workplaces. Clear process standards and sanctions for failing to meet them should be added to the Employment Equity Act. Otherwise the initial years will be wasted. Better educational programs based on American ADA models should be adopted so employers can never complain of being left without guidance.

2. The Commission's budget of $1.3 million is inadequate to meet the target of auditing all employers under federal legislation within the first 5 years. Historically human rights commissions in Canada have been incapacitated by handing them a mandate which far exceeds the resources they are given to fulfill that mandate. Inevitably this makes the Commission the target of criticism by equality seeking groups and deflects criticism away from the discriminators. The Commission's decision to initiate only 25 new audits in 1999 should be congratulated. It demonstrates a commitment to allocating the necessary resources to follow-up audits and ensuring compliance with the Act by at least some employers. This resolve will send a clear message to the other employers, even if they have not undergone an initial audit. Treasury Board should demonstrate a stronger commitment to the process by increasing the budget.

3. For persons with disabilities the critical employment equity issues relate to hiring goals, barrier removal and accommodation policies. The language in the Act is general (e.g. "reasonable progress") and therefore depends upon interpretation. If the Commission's interpretation is weak the Act will achieve nothing. Only the Commission has the authority to enforce the legislation. Employers can and will challenge the Commission's interpretation before Tribunals and ultimately through the counts. But if the Commission wavers in its resolve equality seeking groups have no legal recourse. The Commission should clearly articulate its policy on key issues of interpretation. It had initiated a process to do this then pulled back, presumably for fear of generating controversy. This controversy is inevitable, and nothing is to be gained by delaying it. The history of human rights legislation consists of decades of decisions by courts making weak interpretations followed by the legislatures amending the legislation to ensure it is strengthened. More recently, the courts have provided some leadership. The Commission should clearly state:

1) that hiring goals for groups which are severely underrepresented such as persons with disabilities must be at 1.5 to 2 times availability because reasonable progress towards equitable representation must be demonstrated within a 10 year period;

2) a checklist of disability-related barriers should be distributed addressing the most basic issues and requiring every employer to address these barriers in their plans, if only to document why removing these barriers would cause undue hardship; and

3) establish that every employer should have a well-identified accommodation policy, with designated funds and a workforce that feels encouraged to apply for accommodation when it will enhance performance.

Failing this the legislation must be amended to allow equality seeking groups to file complaints.

4) The propounding of standards should not ultimately be the responsibility of the Commission. Its key and vulnerable position in the process is evident from the foregoing analysis. Parliament should entrench definitions of key disputed terms in the Act in regulations so the Commission is not left to defend fundamental concepts alone. Moreover the federal government should demonstrate moral leadership in employment equity. The Privy Council Office has indicated that deputy ministers will be evaluated on their performance in this area. This could be a meaningful step if it follows through on its recent announcement. The Office would be in a better position to lead if its own employment equity performance was better.

5) The initial undertakings negotiated between employers and the Commission are being treated as confidential. This deprives equality seeking groups and other employers of the opportunity of evaluating how the Act is being implemented. It should be clearly stated that all undertakings and directions are public documents which are available for review.

6) The community of persons with disabilities should continue to examine alternative models which complement employment equity. These models would include the provision of incentives to employers and to persons with disabilities in circumstances where real costs exist or other circumstances warrant reliance on more than an equity-based initiatives. Examples include programs designed to facilitate people's transition from income programs into employment. Often individuals and employers face financial disincentives which tend to foreclose employment opportunities. Individuals may risk losing important benefits. Employers may face major costs which would be considered "undue hardship", when a particular workplace barrier will be removed. Federal and provincial levels of government could do much more in this area.

7) HRDC and the federal government should immediately commit to a HALS as part of the 2001 census.

Return to top.

Transportation

Existing Legal Framework

The government of Canada's efforts at attaining equitable access to federally regulated transportation services by all travelers is contained primarily in the Canada Transportation Act ("CTA"), which covers air, rail, interprovincial ferry and interprovincial bus transport. The CTA creates the Canadian Transportation Agency ("the Agency"), which has the power to remove "undue obstacles" from Canada's transportation network. In addition, Transport Canada provides policy support to the Minister, regulates transportation safety and conducts research and development in the area of accessible transportation.

The government has made a strong commitment to removing barriers to accessibility for travelers with disabilities. To this end, both the Agency and Transport Canada engage in extensive consultations with the transportation industry and the community of persons with disabilities in all aspects of their activities. Through the Accessible Transportation Directorate, the Agency handles complaint resolution, introduction of regulations and guidelines and monitoring and liaison. Any individual who encounters an undue obstacle in their use of the federally regulated transportation system is entitled to complain to the Agency. The Agency has the power to order the repayment of expenses or require that action be taken to correct the problem.

The government's initiatives are contained in both regulations and codes of practice. While the former are laws containing legal remedies if not complied with, the latter are voluntary and have no legal force. The codes of practice were introduced as an alternative to regulations as a result of the current government policy to effect change through non-regulatory measures. Elimination of systemic obstacles is the articulated goal of both the codes and the regulations.

Regulations

1) Part VII of the Air Transportation Regulations

-services and information that air carriers are required to provide

-covers Canadian air carriers operating services within Canada with aircraft of 30 or more passenger seats

2) Personnel Training Regulations

-requirements for training of employees and contractors

-covers air, rail and marine carriers as well as airport and terminal operators

Codes of Practice

1) Aircraft

-covers physical accessibility of equipment used in air transportation

-in general, applies only to fixed-wing aircraft with 30 or more passenger seats and only those areas of an aircraft that may be used by the general public

- most criteria were expected to be met by January 1, 1999

2) Rail

-covers provision of services and the equipment used in rail transportation

-introduced in February, 1998. Most criteria related to passenger rail car accessibility are expected to be met by April, 2001. Criteria related to terms and conditions of carriage were expected to be met by July, 1998

3) Marine

-covers physical accessibility of equipment used in marine transportation

-has been circulated for public comment and will be launched in June, 1999

The above three codes of practice were all introduced by the Agency.

4) Inter-city Bus

-covers operators that transport passengers or passengers and goods by bus between or within provinces and territories of Canada as well as terminals and bus stops operated by them

-scheduled intercity bus services in Canada

-was introduced by and is being monitored by Transport Canada

-came into effect in October, 1998

Current Activities

The areas in which the Agency is focusing its energy are outlined below:

1) Codes of Practice

The Agency has dedicated much time and resources into preparing and implementing the codes of practice. They state that they are committed to monitoring their implementation. However, the codes are so new that they have been the subject of only a very few complaints. Many have expressed dissatisfaction with the codes as a vehicle for eliminating systemic obstacles. Regulations are preferred because of their legal status and enforceability. Nonetheless, codes of practice do have the potential to improve accessibility at least somewhat. They heighten awareness of issues and encourage compliance with standards. It will take the passage of time, as implementation occurs and complaints are launched, to measure the success of the codes.

2) Complaints

A large part of the Agency's efforts are directed towards the resolution of complaints by travelers. Examples of the nature of complaints include those related to equipment, service deficiencies and personnel awareness. When the Agency finds that undue obstacles exist, it frequently orders that corrective measures be taken and requires a report on progress and implementation. There has been a steady rise in the number of complaints. There were 31 new complaints in 1997, 39 new complaints in 1998 and as of April 9, 1999, at least 25 new complaints had been launched. Besides formal complaints, both the Agency and Transport Canada have shown a willingness to resolve informal complaints and provide informal assistance to persons with disabilities.

3) Education and Liaison

Both the Agency and Transport Canada believe it is important that consumer organizations are educated about the removal of barriers and the regulations and codes of practice which seek to achieve this goal. The Agency has been active at promoting accessible transportation by reaching out to travel agents and tour operators, participating as exhibitors at travel industry shows and delivering training seminars. In 1998, The Agency launched an air travel guide in an effort to communicate information to persons with disabilities.

Measures of Success

1) Complaints Process

It is generally agreed that one major success of the system is the speed and simplicity with which complaints are dealt. The Agency's process is easy to follow as it usually does not involve an oral hearing nor does it require an individual to retain counsel. Cases are resolved within 120 days. The intercity bus code's complaints are aimed to be resolved within 95 days and it is hoped that Transport Canada will be as efficient at dealing with these as the Agency is with their complaints process.

Unfortunately, the decision making process is somewhat ad hoc. Decisions fail to provide satisfactory reasons. As a result, no direction is provided to carriers and terminal operators when they are faced with comparable circumstances. The onus is placed on individuals to file complaints. Without any direction or incentive to take specific actions to remove barriers, carriers and terminal operators are unlikely to take initiative to remove barriers. In addition, some have found that once the Agency determines that an undue obstacle exists, there is insufficient corrective action taken.

2) Publicity

Both the Agency and Transport Canada believe it is important to consult with both industry and consumers and each have taken several initiatives to implement this goal. These include extensive consultations in the development of the codes and the preparation and circulation of various materials (e.g. complaint guides and the air travel guide). These activities have increased general awareness of travel accessibility issues. It is suspected that the steady increase in complaints over the past few years may be explained by the increased general awareness. Because more people know that there are remedies for the obstacles they face, more complaints are launched.

3) Systemic Issues

It is generally believed that the Agency has not been successful at resolving systemic issues. While many believe that the Agency is efficient at dealing with individual complaints on a case by case basis, recurring barriers affecting groups of people are not addressed. Unless a complaint is launched, issues are not resolved. Even so, the remedy imposed by the Agency is specific to the individual complaint and does not mandate general improvements for the disabled community as a whole. This problem may result, at least in part, from the fact that regulations, which can be a very effective vehicle for approaching systemic issues, are no longer being issued by the Agency.

A decision relating to the accessibility of Toronto Union Station provides an example. The complainant, who uses an electric scooter, experienced difficulties while traveling with VIA rail. One of her complaints was that the only method for her to reach the platform at Toronto Union Station was to use a freight elevator. Not only did the Agency find that this did not constitute an undue obstacle, but the decision did not address the larger issue requiring persons with disabilities to use freight elevators and nor did it provide reasons. This provides one of many examples of where the Agency failed to address a major obstacle affecting large numbers of people with disabilities.

The problems relating to small aircraft, attendant air fare, TTYs in airports and ground transportation provide further examples.

a) Small Aircraft

There are no regulations or codes of practice that govern small aircraft (i.e. aircraft with less than 30 seats). The Agency addresses small aircraft complaints on a case by case basis by applying the broad principle of removing undue obstacles. Recently this issue has taken on greater importance because there has been a trend towards the use by airlines of smaller aircraft. It was hoped that the 1997 case of Lucie Lemieux-Brassard would be the impetus needed to remedy the situation. As a result of this case, the Agency made a commitment to review the level of service to persons with disabilities on small aircraft to determine to what extent it would be feasible to extend the current regulations to operating small aircraft. This issue has been identified by them as a priority for the fiscal year and Agency staff are developing a consultation document which they will discuss with the Agency's Accessible Transportation Advisory Committee in June, 1999.

b) Attendant Air Fare

This issue relates to the fares charged by carriers when a person with a disability travels with an attendant and is sometimes referred to as "one person one fare". The attendant fare issue came to the forefront in the early 1980s at the same time as one of the most important attendant fare cases was decided. The applicant, who was a wheelchair user, was refused sale of a ticket by VIA Rail because she wished to travel unattended. It was decided that persons with disabilities are entitled to travel without an attendant, but that if they chose to travel with an attendant, the attendant was to travel free of charge. There is no applicable piece of legislation and notwithstanding this decision, airlines do not allow attendants to fly for free. The issue has been fiercely debated and has yet to be resolved.

At present, the controversy relates only to air travel because all other modes offer free attendant travel voluntarily. Airlines voluntarily offer a 50% discount from the applicable fare on specified flights. The community of persons with disabilities has been advocating for many years that attendants should fly free of charge. The Agency has made no progress in this area. The Agency had a position which it was sharing in 1993 and had finalized draft regulations soon thereafter. However, these are being held in abeyance by the government. Instead, the Minister has recommended a voluntary approach between industry and consumers. As of the last meeting, no voluntary solution had been arrived at. CCD has recently decided to initiate litigation.

c) TTYs in Airports and other Communication Barriers

Many people have expressed concerns regarding the provision of TTY pay phones in airports and stations. The Agency has heard many cases on the issue. Each decision is based on its own facts and there is no consistency between the provision of TTYs in all Canadian terminals. Because this issue has not been dealt with in a systemic fashion, problems have been ongoing with no hope of a resolution. This has been the case in spite of the Agency's recommendation in its Communication Barriers Report regarding an adequate number of public TTYs in airports. Other communication issues that have not been addressed are assurances that schedules are available in alternate formats and communication barriers faced by passengers with disabilities on flights.

d) Ground Transportation

A number of complaints have been launched relating to the availability of accessible transportation from airports. This is another issue not covered in the regulations or codes, which is systemic in nature and has not been resolved. The only law that applies is the broad statement in the Act which gives the Agency the power to remove "undue obstacles".

This issue had previously been dealt with by Transport Canada because they owned and operated Canadian airports. Now, however, Transport Canada, for the most part, is no longer the owner/operator of most airports. Transport Canada leases airports to local airport authorities. It is now the responsibility of these authorities to comply with the Act and complaints are being dealt with on a case by case basis by the Agency.

There had been recommendations by the Agency relating to ground transportation and the Agency was supposed to montor and look at the issue in detail. They have not done this to date and at present are not taking any action.

Recommendations

The main weakness in the system is the Agency's ineffectiveness at dealing with systemic issues. The following recommendations might improve the system:

1) The development of regulations is extremely important since regulations have proven to be an effective method of addressing systemic issues. The best way to affect change is through laws requiring compliance. Accordingly,

a) It is important that pressure is exerted on the government to allow for the development of regulations

b) If the codes of practice have proven successful, a strong argument can be advanced for making the codes into regulations. A limited amount of time might be designated to elapse (for example, two years) after the Codes have been implemented to assess their effectiveness.

2) Another, perhaps more subtle and less effective, route for approaching systemic issues is through issuing decisions. Accordingly,

a) The Agency's decisions should be more complete and provide reasons which would guide the actions taken by others in comparable circumstances.

b) The Agency's decisions should be specific and contain objective requirements to be followed.

c) The Agency should take strong initiatives to notify both industry and consumers of cases and decisions that have the potential to affect systemic change.

3) The Accessible Transportation Directorate should monitor the activities of the industry and have the power to initiate its own "complaint process" and impose decisions requiring the industry, as a whole, to comply.

Return to top.

Broadcasting and Telecommunications

Existing Legal Framework

There is very little legislation that addresses specific barriers faced by persons with disabilities in either broadcasting or telecommunications. The law that does exist is found in both the Broadcasting Act and the Telecommunications Act, neither of which contain any relevant regulations. In general, broadcasting and telecommunications in Canada are licensed, regulated and supervised by the Canadian Radio-television and Telecommunications Commission (CRTC).

Telecommunications

The section in the Telecommunications Act entitled "Canadian Telecommunications Policy Objectives" is the primary section cited for addressing concerns of persons with disabilities. Unfortunately, the nine stated objectives are in conflict. While none specifically relate to persons with disabilities, the following can be relied upon to advance the interests of the disabled community:

s.7(a): to facilitate the orderly development throughout Canada of a

telecommunications system that serves to safeguard, enrich and

strengthen the social and economic fabric of Canada and its regions

s.7(h): to respond to the economic and social requirements of users of telecommunications services

Some of the other policy objectives relate to the importance of enhancing competitiveness of Canadian telecommunications and fostering increased reliance on market forces. The inconsistency between these objectives is apparent. In addition, the wording is extremely vague and broad. It is easy to see how, faced with this tension, the concerns of persons with disabilities might not be addressed. The one section that can be interpreted to apply directly to persons with disabilities states that carriers may provide services to any "disadvantaged person" at no charge or at a reduced rate.

The CRTC's process for regulating telecommunications is complicated. The CRTC issues decisions and also issues policies. However, the policies are not legally binding. The Act grants the CRTC power to impose conditions on a service offered by a carrier and this power has been used as a vehicle for removing communication barriers. In addition, any member of the public may raise complaints relating to telecommunications.

Broadcasting

The law and related legal process for broadcasting is equally confusing. The Broadcasting Act contains a section which declares "Broadcasting Policy for Canada". Unlike the Telecommunications Act, one of the policies does relate specifically to persons with disabilities:

s.3(1)(p): programming accessible to disabled persons should be

provided within the Canadian broadcasting system as resources become

available for the purpose

In addition, the Act sets out a number of broad policies which do not relate specifically to persons with disabilities but which can be relied upon to support arguments that services should be provided for persons with disabilities and that persons with disabilities should be portrayed in the media.

The CRTC uses its licensing process to regulate both the accessibility of broadcasting to persons with disabilities and the portrayal of persons with disabilities in the media. These issues are generally considered when the Commission is required to decide whether to grant or renew a license to a broadcaster. The licensing process is a public one in which any member of the public can comment. The Commission may attach conditions to each license.

The language that the Commission uses in their licensing decisions is crucial. When a decision contains a "condition", it is accompanied by legal status and legal remedies exist to require compliance. Language which contains lesser standards are also found in the decisions. For example, the Commission frequently "encourages" and "expects" various actions to be taken by broadcasters and no legal status attaches to these words. In addition to the licensing process, any member of the public may file a complaint with the CRTC at any time.

The Commission issues public notices which explain policy issues. Their purpose is to advise the public of their views and the approach they will take with these issues when rendering decisions. These are usually developed through consultation with the public, either through a written process or by an oral hearing. There are a number of different triggers for the CRTC to issue a public notice. They may be issued in response to a request by the public to examine an issue or they may relate to an area in which a lot of complaints have been received.

The Commission takes some limited employment equity initiatives. Pursuant to the Broadcasting Act, the Commission is not permitted to regulate or supervise employment equity matters if a broadcasting undertaking is subject to the federal Employment Equity Act. As a result, the Commission's activities with respect to employment equity are limited to broadcasters with less than 100 employees. Their initiatives appear to be limited to asking broadcasters for information about employment of individuals from various groups.

Current Activities

The efforts that the CRTC has undertaken to make broadcasting and telecommunications accessible to persons with disabilities has lacked direction. At present, there is no department or system for addressing the concerns of persons with disabilities. The CRTC used to have a social policy group which no longer exists. As a result, even though the CRTC is aware of many of the important issues and has made important decisions there has not been sufficient enforcement to remove barriers in broadcasting or telecommunications. The CRTC's activities in relation to persons with disabilities are outlined below.

Telecommunications

1) Message Relay Service

Many view Canada as a leader in the provision of Message Relay Service ("MRS"). The nationwide relay service was achieved several years before it came to the United States. A number of years ago, an argument was launched before the CRTC that Deaf people were being denied equal access to the use of the telephone, as a regulated service. As a result, the CRTC instituted the MRS. The establishment of telephone relay services throughout the United States only occurred recently as a result of the Americans with Disabilities Act. Prior to the existence of MRS, Deaf people had limited access to the telephone system through the use of the TTY. MRS allows Deaf people who use the TTY to communicate with people who are not deaf through the phone system and is facilitated with the assistance of an operator.

Materials produced by the CRTC state that the Commission is of the view that MRS should be provided 24 hours a day, seven days a week and also states that "the Commission appears to be of the view that bilingual MRS need only be provided where there is a need …" The CRTC requires Bell and local telephone carriers, as a condition of registration with the CRTC, to provide access to MRS. In general, users are not charged for this service. Rather, it is paid for by the general body of subscribers. However, because the CRTC does not regulates rates, there is no legal requirement to spread the cost of the MRS over the general body of subscribers, as opposed to charging users only. The CRTC does not regulate the quality of MRS and is not currently taking any initiatives at improving the quality or quantity of the service. They have indicated that if there is dissatisfaction, a complaint can be launched.

2) Telephone Compatibility

In the early 1980s, when people were first allowed to own their own telephones, many cheaper phones which were manufactured outside Canada were being purchased. Many of these did not have a switch which permits compatibility between hearing aids and the telephone. The Canadian Hearing Society convinced the National Standards Association to approve a technical standard for telephones that would ensure compatibility. It was argued before the CRTC that in order to ensure "equal access" telephone companies must insist that only telephones compatible with the National Standards Association standard be attached to their line. In that decision the CRTC ordered that the telephone companies must insist upon compliance with the National Standards Association standard of compatibility. It does not appear that the Commission has been responsible for monitoring or updating their ruling.

3) TTY- Long Distance Rate Discount

The CRTC has directed that a toll discount be provided to TTY users to take account of the longer time that it takes to conduct such calls. A 50% discount from basic, non-discounted long distance rates applies to most, but not all, phone companies. The discount is currently available only to residential customers and one charitable organization. The CRTC is in the process of deciding a case regarding the possibility of extending the discount to other charitable organizations and to businesses.

4) Other Decisions

a) Recently the CRTC ruled that all Canadian carriers must make bills available in alternate formats (e.g. Braille or large print).

b) The CRTC is also in the process of considering the issue of requiring that all pay phones have certain accessibility features for persons with visual disabilities, such as large key pads. The CRTC has turned to an industry committee for assistance in determining how the technology would best suit the needs of persons with disabilities. The public has had an opportunity to be involved in the process but no decision has been made.

Broadcasting

1) Closed Captioning

Closed captioning refers to the textual representation of the audio component of broadcasting programming. It is generally available only to viewers with the necessary equipment to decode the captioning signals. In July 1993, decoder legislation ensured that all television sets over 13 inches sold in North America have captioning display capability.

The CRTC's approach to captioning depends on the size of the television licensee (determined by revenue) and on whether the programming is in English or French. With respect to English programming, large-sized licensees are "required" by the CRTC to caption 90% of all programming by the end of their license term (which has not come up yet) and were required to caption all news shows by 1998. These conditions are legally enforceable. However, they specify only the required quantity of captioning and are silent with respect to quality. The CRTC has "expected" and "encouraged" medium and small stations respectively to follow suit although there are no legal ramifications if these stations do not comply.

Because captioning is more expensive for French programming, French-language services are not required to adhere to the same formula as English-language services. The Commission's policy framework for French stations varies depending on the size of the station. The policy is much more vague and does not contain comparable clear standards.

2) Descriptive Video and Audio Description Services

Both descriptive video and audio description services were developed for people who have visual disabilities. Descriptive video is the insertion of audio narrated descriptions of a television program's visual elements during a program. Audio description refers to providing important information (e.g. phone numbers) in audio as well as video form. The CRTC currently has no policy on either of these services, although it indicated in a Public Notice in 1992 that it would "monitor the technological development and implementation of a descriptive video system…" At present, the CRTC is conducting a broad review of all policy relating to television and this is one of the issues that is being considered. They have had a hearing and received comments but have not released a final policy to date.

3) "On-Air Presence": Portrayal of Persons with Disabilities in the Media

The CRTC's on-air presence policy addresses the visibility of persons with disabilities (as well as persons from other designated groups) in broadcasting. The policy was announced in 1994. Radio and television broadcasters with more than 25 employees are required to provide information about the on-air presence of persons with disabilities when they renew their licenses, apply for new licenses or seek authority to transfer control or ownership. This does not involve any monitoring of tapes for content analysis. There are no conditions on licensees with respect to this policy so it is not legally enforceable. The data is intended to be used for general monitoring and assessment only.

Measures of Success

1) CRTC's Initiatives Regarding Disability Issues

While the Commission does respond when approached about disability issues, it does not take a proactive role in making broadcasting and telecommunications more accessible. There is no single person or department at the CRTC who has the mandate or specialized knowledge to adequately address issues related to persons with disabilities. As a result, a lot of energy and determination is required just to make your way through the maze at the CRTC to determine what the relevant laws and policies are, what services exist and what the process is for launching a complaint.

There is no individual or department charged with the role of identifying new issues, monitoring the enforcement of decisions or identifying circumstances in which previous decisions should be amended in light of changed circumstances, including evolving technologies. Most issues relating to accessibility for persons with disabilities are raised by people or organizations. The barriers experienced in communicating with the CRTC likely prevent many accessibility issues from being raised and remedied.

2) Complaint Process

The process for complaining to the CRTC is extremely time consuming, cumbersome and confusing. It can sometimes take years to receive a decision. The CRTC is not at all accessible to individual complainants seeking equal access.

3) Lack of Enforcement

The initiative that the CRTC has taken with respect to enforcement has been limited in all areas of their activities. For example:

a) The CRTC only places legally enforceable conditions with respect to captioning on some licensees.

b) There is no legally enforceable requirement at all relating to accessible broadcasting for persons with visual disabilities.

c) The CRTC's policy relating to the portrayal of persons with disabilities in the media is not legally enforceable.

d) The CRTC does not regulate the quality of MRS at all and leaves quality issues to be raised by individual complaints.

4) Gaps in Service: Captioning and Message Relay Services

a) Captioning

The Deaf community is extremely dissatisfied with the provision of captioning in Canada. The technology to provide captioning efficiently and economically of all programming currently exists. Nonetheless, Canada does not have 100% captioning. The captioning that does exist is poor quality and contains many gaps and mistakes. This is particularly the case for live broadcasting. Specialty and pay channels are particularly poor at captioning. The Deaf community believes that the CRTC has been completely ineffective at remedying the situation.

b) Message Relay

Even though the Canadian Association of the Deaf has stated that Canada has "possibly the largest Message Relay Service (MRS) in the world", users of the MRS do not have equal access to the telephone system. Gaps in service and quality continue: operators type poorly and there can be long waits to get an operator.

5) Involvement of Persons with Disabilities

Persons with disabilities are not involved in the development of policies or laws in relation to broadcasting and telecommunications and there are no persons with disabilities at the commissioner level. It has been commented that there should be requirements set for the involvement of persons with disabilities in the development of the technology and services aimed for their use. This contrasts with the situation in the United States where, for example, Deaf people are involved in decision making positions and at the regulatory and service provision level. Greater involvement would heighten awareness of issues relevant to persons with disabilities. The CRTC would be more sensitive to equal access issues and more progressive in their activities.

Recommendations

The following recommendations might improve the accessibility of broadcasting and telecommunications to persons with disabilities:

1. The legislation should be amended to include "equal access" language. Both the Broadcasting Act and Telecommunications Act should be amended to ensure that making communication accessible, both through broadcasting and telecommunications, is a legal requirement.

2. Regulations should be developed which specify clear and precise standards relating to equal access to broadcasting and telecommunications and specifying time limits within which decisions must be made.

3. The CRTC should make use of the legal processes that already exist to more effectively enforce its decisions.

4. The CRTC should have a specialized department and staff, such as that of the Canadian Transportation Agency, whose mandate it is to deal with all issues relating to persons with disabilities.

5. Persons with disabilities should occupy positions of authority and be appointed as commissioners.

6. An advisory committee which is representative of persons with communications disabilities might be established to ensure CRTC accountability.

7. Outside initiatives through the filing of complaints should be maintained. The complaints process should be simplified so that it is more accessible to the general public. Time limits should be established within which complaints must be resolved.

8. The CRTC should take initiative to monitor and address equal access issues rather than playing a largely reactive role.

9. The CRTC should make concerted efforts at public education. Information about CRTC policies and complaints processes should be prepared for and distributed widely amongst the disabled community.

Return to top.

Juridictional Comparison

Introduction

Persons with disabilities are faced with many barriers which prevent them from full economic and social integration into Canadian society. It is highly unlikely that those responsible for the barriers will take the necessary initiatives to remove them unless such action would benefit them as well. In response, there has been an international trend to enact barrier removal legislation. The United States and Australia are among the countries that have already taken this initiative.

While Canada does have a number of pieces of federal legislation that aim to remove barriers, there is no single piece of legislation directed solely at removing barriers faced by persons with disabilities. A review of legislation in other jurisdictions can elucidate the discussion of whether similar legislation would assist barrier removal in Canada.

The American Experience: The Americans with Disabilities Act

Existing Legal Framework

The Americans with Disabilities Act ("ADA") is a comprehensive single piece of legislation aimed at addressing the needs of persons with disabilities. Since it came into force in 1990, many Canadians have looked to it with envy. Indeed, although the ADA does contain some weaknesses, many believe that it has significantly benefited persons with disabilities in the United States. Nonetheless, it is perhaps premature to pass judgment. It has been stated that the lack of significant survey data and its newness make it difficult to measure the overall effectiveness of the ADA.

The ADA prohibits discrimination against persons with disabilities in a number of areas including employment, access to and benefits of public services, access to public accommodations and services provided by "private entities" (e.g. restaurants, hotels and movie theatres) and transportation. It is enforced by several different departments and agencies, with the Department of Justice providing overall leadership. In addition, several agencies give technical assistance to employers, service providers and persons with disabilities. This includes training, promotion of public awareness and provision of information.

Much of the ADA is a complaints based system. The administering bodies resolve complaints through primary assessments of incoming complaints, mediation and, as a last resort, legal action. Compensatory damages, back pay and civil penalties are all available remedies. Individuals always maintain the right to take private action and may sometimes obtain support under ADA publicly-funded agencies. The Department of Justice, which has overall leadership in enforcement, is not obligated to take on more cases than it can adequately handle. It is therefore able to establish priority areas in which it is committed to achieving specific goals.

Enforcement and litigation have been avoided by creating an atmosphere conducive to social and economic integration and indeed significant change has occurred notwithstanding the small number of cases that have gone to litigation. Considerable success has been achieved with voluntary compliance since many cases in which mediation is completed are successfully resolved.

Measures of Success

The following strengths of the ADA have been identified:

a) The establishment, within the Department of Justice, of priority areas ensures that systemic issues are addressed.

b) Cases are resolved in a timely fashion because only those cases that can be adequately dealt with are accepted.

c)Compliance has been enhanced by the provision of technical and legal assistance. The ADA is being enforced following a phase-in period during which advice has been provided.

d) The business sector, the general public as well as persons with disabilities have all supported the ADA.

e)Legislated standards are specific and clear.

The following weaknesses of the ADA have been identified:

a) The interpretation of various phrases such as "undue hardship" and "reasonable accommodation" has been ambiguous. As a result, the nature and extent of the obligations are unclear.

b) Limited administrative funding inhibits the departments responsible for implementation to use the full extent of their authority to implement the ADA.

c) There is little overall coordination of administrative responsibilities among the several different departments and agencies that enforce the ADA.

The Australian Experience: The Disability Discrimination Act

Existing Legal Framework

The Disability Discrimination Act 1992 ("DDA") is a Commonwealth (federal) act that seeks to eradicate discrimination on the basis of disability. The DDA has been an extremely significant development in Australian disability law and has the potential to effect substantial change in Australian society. It is generally viewed very positively as a broad and comprehensive piece of legislation which has achieved a profile as a legitimate system in Australia. The drawbacks are rooted primarily in the lack of success that has been experienced in its implementation, largely due to lack of funding. Disability groups and individuals with disabilities have found the system frustrating and disappointing as it has been plagued with many of the same problems faced by the human rights system in Canada.

One of the objects of the DDA was to entrench optimal standards. Unlike Canada, Australia has no charter or bill of rights. Prior to the DDA, discrimination on the basis of disability was covered generally in the Commonwealth Human Rights and Equal Opportunity Act and addressed in state (provincial) legislation. Coverage was piecemeal.

The system is largely complaints-based. It seeks to remove discriminatory practices in the areas of employment, education, accommodation, the provision of goods and services and Commonwealth laws and programs. It applies to all levels of government, private companies, sporting clubs, associations, employers, teachers, service providers, building owners, landlords and land owners. The DDA creates the office of the Disability Discrimination Commissioner with the Human Rights and Equal Opportunity Commission. The Commissioner's office promoted the Act by establishing a DDA legal service in each state in Australia, in an attempt to make the complaints process locally based.

The DDA allows for the formation of "action plans" as a strategy for ensuring that disability discrimination is eliminated from the delivery of goods and services for which the agency is responsible. The purpose of these plans is to reduce the number of complaints through heightened awareness of barrier removal issues. The private sector, local and State governments and community organizations can submit action plans voluntarily. However, Commonwealth departments were required to prepare action plans by January 1, 1997. They are not a defense to a DDA complaint.

The DDA allows for the development of standards to elaborate on access requirements in relation to employment, education, transport, the provision of goods and services and Commonwealth laws and programs. Their function is to clarify rights and obligations under the Act.

Measures of Success

a) Definition of Disability

The DDA contains a very comprehensive definition of "disability", which includes:

-loss of physical or mental function

-loss of part of the body

-infectious and non-infectious diseases and illnesses

- the malfunction, malformation or disfigurement of a part of a person's body

-learning disorders

-any condition which affects a person's thought processes, understanding of reality, emotions or judgment or which results in disturbed behaviour.

In addition, the DDA extends the range of people able to make complaints, and includes those who used to have a disability, those who might have a disability in the future, those who are thought to have a disability and those who are associates of a person with a disability.

b) Representative Complaints: Class Actions

Unlike the various pieces of federal legislation in Canada, the DDA does accommodate "representative complaints", or class actions. These have been used successfully. The requirements for representative complaints are: class members must have complaints against the same person (or entity), the complaints must arise out of similar or related circumstances, and all the complaints must give rise to a substantial common issue of law or fact.

c) Interim Determinations

Interim determinations can be made in cases involving disability discrimination. This too is a feature which does not exist in Canadian legislation. It can be requested where there is a real possibility that discrimination will occur immediately if no intervention is made.

d) Standards

The development of standards is appealing as the results are clear and precise. They clarify otherwise very general legislation. That aspect is attractive to all parties involved. The problem is that compliance with a standard is a complete defense to any claim of discrimination and that a standard will operate as if it formed part of the Act itself. It is thus imperative that the standards attempt to cover every conceivable eventuality.

In addition, the standard development process has been problematic. Well resourced employer, transport, education and other organizations have marginalized disability representation on the reference groups developing the standards, thereby jeopardizing the effectiveness and legitimacy of the whole project.

e) Implementation

The primary weaknesses with the DDA result from the problems faced with implementation. As with the Canadian human rights system, the DDA is faced with a lack of resources, lengthy delays and a backlog of complaints. In addition, the DDA Commissioner has not been active in cases of systemic discrimination.

Lessons Learned from the United States and Australia

a) Funding is crucial to the success of any law or program. Lack of funding has been cited as a problem in both the American and Australian system. The best legislation will fail if there is not sufficient funding to support implementation.

b) Clear and precise standards are more effective at barrier removal than generalized criteria which rely upon litigation for enforcement. Standards are most effective if they are reviewed periodically to ensure that they remain current and if persons with disabilities are involved in the process of their development. Standards have been used effectively in the United States and have shown potential in Australia.

c) Consultation with service providers and persons with disabilities, as was done extensively in the United States, is an essential step in disseminating information and encouraging compliance.

d) No success will be achieved in removing barriers if the legislation and process does not allow for a practical method of addressing systemic issues, such as the possibility of class actions or controlling case load.

e) The definition of "disability" should be framed very carefully. It should be sufficiently broad so that it does not exclude anyone who should be included. Otherwise there is a risk that the legislation will only cover certain disabilities and itself discriminate against individuals with disabilities that are not covered by the legislation.

f) The availability of technical assistance, such as provided to support implementation of the ADA, results in a constructive, rather than adversarial approach, and is important in generating support and facilitating compliance.

Return to top.

A Canadians with Disabilities Act

Since the enactment of the Americans with Disabilities Act ("ADA") in the United States, a recurring theme for Canadians with disabilities has been whether the ADA model, or at least a law with similar goals, might be the answer for removing the barriers faced by Canadians with disabilities. The enactment of "omnibus legislation" in the early 1990s was the first Canadian attempt at anti-discrimination legislation comparable to the ADA. The legislation amended a number of separate pieces of federal legislation with the goal of improving the social condition of persons with disabilities. Unfortunately, its impact has generally been acknowledged to have been inconsequential.

Since then a long line of reports have addressed the potential for a Canadians with Disabilities Act ("CDA") and a report of the 1996 Federal Task Force on Disability Issues, "Equal Citizenship for Canadians with Disabilities: The Will to Act", recommended the enactment of a CDA. The Canadian Human Rights Commission in its 1998 Annual Report agreed with and supported the recommendation of the Federal Task Force.

There is agreement within the disabled community that the current situation, and in particular the systemic discrimination which goes largely unchecked, must be addressed. The idea of a CDA as the panacea has been controversial. While some believe it is necessary, others believe that either it is not necessary given the current legal framework or that it would not have the capacity to achieve the goals for which the community has been advocating for so long.

Whether the ultimate solution is to enact new legislation or to work to improve upon the current laws, it is clear that it must be a 'made in Canada' solution. Ideally it would draw upon experiences from other jurisdictions, such as the United States and Australia, while being sensitive to the political climate and legal structures already in place. Political intangibles cannot be underestimated. For example, the unifying movement in the ADA process was one of the most inspirational aspects. People believed in the law and there was political mobilization in support of it. Dissent was minimal, both among persons with disabilities and the rest of the community. For change to occur, communities must work together. There is no guarantee that a CDA initiative would have the same effect as the ADA initiative did.

Some hold the view that a rights based approach is inconsistent with the pursuit of social justice. CCD must be prepared to respond if the government frames these issues as either/or alternatives or attempts to confuse the issues.

It is unrealistic to expect that voluntary action would make headway in removing barriers as the market forces that reign would not take such action without government intervention. Action will need to be taken by all communities together to affect the necessary changes.

Arguments in Favour of a CDA

The major problem that currently exists is wide-spread discrimination affecting large groups of people in the disabled community. The recurrent criticism that emerged from examining the existing pieces of federal legislation is that systemic issues are not being addressed and that no current initiatives, other than the Employment Equity Act, are in place to remedy the problem. The systems continue to rely on the complaints-based approach which does not have the capacity to make sweeping improvements for large groups of people. Many believe that a CDA should be enacted as a means of garnering the political support necessary to address systemic issues.

There is no single piece of federal legislation aimed solely at persons with disabilities. Some have expressed the opinion that enacting such legislation would heighten awareness of the issues and give them more status. The legislation could be more geared to the particular concerns of persons with disabilities than the legislation that currently exists. The legislation would provide tangible evidence of the federal government's commitment to persons with disabilities. It would provide leadership and an example which the provinces and territories would hopefully follow.

An independent office within the federal government could be established along with the enactment of a CDA. Many believe that what is needed almost more than new legislation is an effective office whose purpose it is to deal solely with disability issues. This office would combine the expertise needed to develop barrier removal standards and the means of effectively communicating with the disabled community.

Arguments Opposing a CDA

The Charter and the Human Rights Act are most frequently cited by those who oppose a CDA. In theory, these are both powerful and comprehensive laws which prohibit discrimination against a number of groups, including persons with disabilities. The federal government has enacted additional specialized laws that cover employment equity, transportation, broadcasting and telecommunications, all of which have the power to remove barriers faced by persons with disabilities in these discreet areas. Many argue that these laws taken together should have the same effect as the ADA does. The true challenge is not to enact an ADA-equivalent but to affect change in the existing laws and the ways they are administered and being used. Hope has been expressed that the review of the Canadian Human Rights Act that is currently underway will improve the system. This along with taking strong initiatives to make changes within the current framework, as are exemplified in the recommendations found in this paper, may be the solution to positive change.

There is a concern that some of the factors which have contributed to the ineffectiveness of the current laws would not be resolved with the enactment of a CDA. All that would result would be yet another piece of legislation that has a lot of potential but produces insufficient results. These factors include lack of funding and not enough involvement of persons with disabilities in all aspects of the laws and systems which allegedly protect their rights. In other words, a new law burdened with existing problems is not an improvement over the current laws.

The reaction of other disadvantaged groups to a CDA must be weighed in the balance. It is possible that these groups will take exception to legislation aimed specifically at persons with disabilities.

Those who were involved in the omnibus process, when the last similar effort was made, were disillusioned as a result of the extensive amount of work involved with little or no results. There is a concern about expending energy to repeat a failure. The resources could be better spent by improving the effectiveness of the current laws and systems.

Important Features of any Law aimed at Removing Barriers

Underlying the debate about whether Canada needs a CDA lies the question of what features a law and legal system require to ensure that it not only has the capability to, but that it, in reality, actually does advance the rights of persons with disabilities. Whether the decision is made to advocate for a CDA or to advocate for changes to the current system, our research showed that there are certain features that would seem necessary to ensure the success of either decision. These are themes that surfaced in our analysis of all pieces of existing federal legislation and legal systems.

1. Funding: The best written statute will not be effective without sufficient funding for administration. For example, an amendment to the Canadian Human Rights Act which incorporates deadlines would be useless if the Commission did not have enough investigators to complete investigations in a timely fashion. Similarly, a new mandate requiring the CRTC to make the complaints process more accessible and widely publicized would fail without the resources necessary to implement the new complaints process and to prepare and distribute materials.

2. Government Commitment: All changes, whether they are to laws or processes, require government initiative, action and funding. Without the will and approval of government, further regulations pursuant to the Canada Transportation Act will not be developed.

3. Systemic Discrimination: Most people with disabilities cite systemic discrimination as the major issue which is not being addressed. Any successful law will have to incorporate a method for eliminating systemic discrimination. The complaints-based approach employed by the Canadian Human Rights Commission and the Canadian Transportation Agency were premised on the view that discrimination is an individual problem. Resolving individual incidents of discrimination, as those systems currently do, does nothing to remove the barriers faced by thousands of similarly situated individuals and does nothing to prevent the discrimination from recurring.

An alternative would be to establish A Centre of Responsibility for the Coordination of Disability Policy. This would be an office within the federal government and would apply a "disability lens" to all federal programs and new initiatives. It would generally play the role of internal advocate for persons with disabilities within the federal government. It would not be directly involved in the delivery of programs or services, but would participate in and monitor their implementation.

Standards, which have been proven to be effective at addressing systemic discrimination, could be developed and enforced by the office. The office would monitor and enforce judgments. Once a decision is made, it would be the responsibility of the office to put all others in comparable situations on notice that compliance is required. The only cases that would be litigated would be those that are clearly different.

4. Involvement of Persons with Disabilities: The failure to include persons with disabilities in all aspects of barrier removal can lead to failure of any law. Involvement should be mandatory in a number of areas from drafting legislation to making policy decisions to deciding cases to being involved in the development of technology and provision of services aimed at persons with disabilities. An important aspect of the office described above would be a requirement that there is effective and meaningful consultation on a regular basis with representatives of the community of persons with disabilities. How can a CDA be responsive to the needs of persons with disabilities if their voices are not heard?

5. Specificity

a) Enforceable Time Limits: Resolving a case months to years after the act of discrimination has occurred is no resolution at all. Enforceable time limits are a requirement of meaningful barrier removal law. A comparison of the Canadian Transportation Agency with the Canadian Human Rights Commission shows the importance of time limits. The Agency is repeatedly commended for its speedy resolution of cases, which must be resolved within 120 days. In contrast, the most frequent complaint about the Commission is the inordinate delays in dealing with complaints. With no existing deadlines, the cases carry on for so long that people do not believe that justice has been done at all, regardless of the end result.

b) Clear and Precise Standards: The clear and precise standards provided under the ADA have been demonstrated to be far more effective at barrier removal than the Canadian approach involving generalized criteria and relying upon litigation for enforcement. The Canadian approach is adversarial in nature and can develop resistance rather than support for barrier removal. Standards will not be established unless the barrier removal purpose is stated functionally (i.e. as opposed to prescriptively) in enacting legislation, a process is identified and time frames prescribed. In many cases the standards should be reviewed periodically to ensure they are meeting the purpose for which they were enacted and to ensure changes in technology have not rendered them obsolete. How best to achieve a stated goal can be debated but there should be no debate as to what the goal is.

Return to top.

Conclusion

In this paper, it is not our intention to advocate for a particular position. Rather, we endeavored to provide you with the tools necessary to form your own conclusions and make your own decisions. We made every effort to draw upon a variety of sources and to canvass a wide range of perspectives.

Our goal was to produce a paper to be used as a starting point for a lively and productive discussion about the potential for a Canadians with Disabilities Act. We urge you to bring your thoughts to the meeting, but also, to come prepared to listen. Ultimately, we hope that a consensus will emerge. Whatever direction is taken, a unifying movement is essential for success to be achieved.

Return to top.