Human Resources Committee on Oct. 23rd, 2018

[Robert Lattanzio, Executive Director, ARCH Disability Law Centre]

Thank you, Mr. Chair.

Thank you to this committee for this opportunity to speak with you this morning.

ARCH Disability Law Centre is a specialty legal clinic focused solely on disability rights. We work on the ground with communities of persons with disabilities, with disability organizations, and within all levels of courts and tribunals in test case litigation. We commend the government and the minister for introducing Bill C-81, an important and positive step towards advancing full inclusion for persons with disabilities. We believe that amendments are needed for this bill to achieve its stated purpose.

Today we highlight four recommendations.

First, we would like to address exemptions. This committee has heard from government that exemptions are needed to ensure innovation and flexibility for small organizations and those who exceed accessibility standards. We do not agree that the broad exemption powers currently in the bill are necessary to achieve these policy objectives. The bill must send a strong message that accessibility is everyone's responsibility. Therefore, as a general matter, regulated entities must not be exempt from complying with accessibility requirements. If exemption provisions do remain in the bill, we recommend safeguards, including these next three: one, exemptions should be granted only in the narrowest of circumstances; two, reasons for the exemption should be made public and the public should be afforded opportunities to provide feedback; three, any exemptions should be subject to periodic review and should be removed if and when they are no longer necessary.

The second recommendation today, as the committee is aware, relates to the fact that the bill lacks timelines. ARCH shares the concerns of disability communities. Timelines are essential for ensuring that the bill will advance accessibility in Canada and for measuring progress towards this goal. We support recommendations that clause 5 include a timeline for achieving a Canada without barriers. We support recommendations that the bill include timelines by which accessibility standards are developed and enacted into law.

With regard to timelines, progressive realization is an important international law concept that can provide a framework for ongoing implementation and monitoring of accessibility requirements. ARCH recommends that the minister and regulated entities establish benchmarks for progressively realizing a Canada without barriers in all the designated areas, establish specific and progressive timelines for meeting these benchmarks, and monitor progress towards meeting these benchmarks.

We also recommend that independent reviews of the act be held to coincide with Canada's reporting obligations under the UN Convention on the Rights of Persons with Disabilities. We recommend that the first independent review of the act be held in 2025, to coincide with Canada's third report to the UN CRPD committee, and every four years thereafter.

Third, we need amendments to ensure that accessibility requirements do not diminish existing legal rights of persons with disabilities. The Canadian Human Rights Act and the charter provide vitally important protections from discrimination for people with disabilities. Disability communities fought hard for these protections. We are concerned that regulated entities may believe that compliance with accessibility requirements is the same as fulfilling their obligation to accommodate and not discriminate. This would be a troubling, unintended consequence of Bill C-81. The bill must work together with the Canadian Human Rights Act and the charter. Therefore, we recommend that the preamble and the purpose clause of Bill C-81 clarify that nothing in the act lessens existing human rights obligations of federally regulated entities under the Canadian Human Rights Act, and that where a conflict arises between the proposed accessible Canada act and another law, the law that provides the greatest accessibility for persons with disabilities will apply.

Fourth, Bill C-81 does not designate one central agency to oversee compliance of accessibility requirements and to adjudicate complaints. Rather, it creates an overly complex system of multiple agencies. This will create confusion and additional unnecessary barriers to access to justice for persons with disabilities. We heard this concern consistently throughout the consultations that we conducted. Multiple bodies adjudicating accessibility complaints will likely result in uneven or unfair enforcement, delay and inefficiency.

Following a legal analysis of CTA decisions, and from our experience, we are concerned that the CTA may be more likely to treat human rights and accessibility as secondary to technical concerns, resulting in weak enforcement of accessibility requirements in transportation. We heard similar concerns from the community about the CRTC.

To avoid these problems, the accessibility commissioner should receive all complaints about violations of accessibility standards. The no-wrong-door policy is inadequate to address our concerns.

Our materials include recommendations in relation to the rights of indigenous persons with disabilities, intersectionality and recognition of sign languages, among other important issues.

Thank you. We would be happy to take any questions.

[The Chair, Liberal, Bryan May]

Thank you very much.

Up next, from the Canadian Radio-television and Telecommunications Commission, is Scott Shortliffe, chief consumer officer and executive director, as well as Marie-Louise Hayward, manager, social and consumer policy, and Adam Balkovec, legal counsel.

Thank you to all three of you. You have five minutes, please.

[Scott Shortliffe, Chief Consumer Officer and Executive Director, Canadian Radio-television and Telecommunications Commission]

Thank you, Mr. Chair, for this opportunity to participate in the committee’s review of Bill C-81, an act to ensure a barrier-free Canada.

I’d like to begin today by saying two things. First, I'd like to acknowledge that we meet today on traditional Algonquin territory. Second, if you'll permit me:

[Witness speaks in sign language]

The CRTC's approach to accessibility is based upon the fundamental belief that a person's ability to access broadcast and telecommunications services dictates their ability to participate meaningfully in society. Our accessibility policy is grounded in the principle that equality is a core Canadian value and is central to public interest.

During the last three decades, the CRTC has adopted a series of regulatory policies to enhance the ability of Canadians with disabilities to access communications networks. We have updated these policies as new technologies and resources have become available.

The CRTC has continually championed accessibility and has required service providers to deploy appropriate technologies to improve access for all Canadians, regardless of their level of ability.

In the mid-1980s, for example, the CRTC began to mandate teletypewriter, or TTY, relay services for Canadians who have a hearing or speech disability. In 2009, the requirement was expanded to include the provision of IP relay services, and, five years later, the provision of video relay service.

Accessibility requirements for broadcasters have followed a similar evolution. Initially, broadcasters were required to closed-caption only a percentage of programming. Today, all pre-recorded English and French programming must be closed-captioned.

In 2009, the CRTC began to require that broadcasters provide described video services four hours per week. Beginning next year, all large integrated broadcasters must provide the services throughout prime time.

The CRTC's work in the domain of accessibility also includes regulatory measures designed to facilitate access to the devices Canadians use to access communications services, whether it is accessible set-top boxes, remote controls or wireless mobile handsets.

The CRTC also recognizes the importance of facilitating interactions with service providers. This is why we established mandatory industry codes of conduct: the Wireless Code and the Television Service Provider Code. These codes ensure that persons with disabilities can receive contracts and bills in accessible formats, and can access extended trial periods to ensure that equipment and services will meet their individual needs.

To develop regulatory policies, the CRTC consults with Canadians—including those with disabilities—along with service providers and other stakeholders by holding open, public proceedings. The input of Canadians with disabilities is crucial to developing effective and impactful accessibility policies. It's also why the CRTC website presents key content, such as a guide to our Rules of Procedure, in ASL—American Sign Language—and LSQ—Quebec's Langue des signes québécoises.

To achieve the larger goal of barrier-free access, the CRTC recognizes that it must engage with other administrative tribunals. To this end, the CRTC participates in working groups alongside the Canadian Human Rights Commission and other administrative tribunals in order to leverage accessibility expertise and increase efficiency.

As a federal regulatory tribunal, the CRTC must pursue the policy goals set by the Broadcasting Act and the Telecommunications Act and also act fairly, abiding by the Canadian Charter of Rights and Freedoms. This requires the CRTC to balance competing objectives in rendering decisions that ultimately serve the public interest.

As communications technologies evolve, Canada's regulatory framework must be flexible and rigorous enough to make the most of new opportunities and to eliminate and prevent systemic barriers related to accessibility. Advances in communications technologies have opened the door to an unprecedented wealth of content and interactivity. The CRTC's position is that it is the right of all Canadians to be able to access this wealth regardless of their ability, and it is committed to working to ensure that all Canadians can benefit from it.

As I mentioned, the CRTC's approach is informed by Canadian human rights principles, and these principles will continue to guide our regulatory work.

I'd like to remind this committee that the CRTC is an independent regulator. I note that this panel includes a party regulated by the CRTC. As such, and to preserve the commission's independence as a regulator, I may be unable to comment on certain issues raised or to fully answer certain questions. That said, I will do my best to answer any questions this committee may have.

Thank you very much.

[The Chair, Liberal, Bryan May]

Thank you, sir.

Up first is MP Falk for six minutes, please.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

I'd like to thank you all for taking time out of your day to be here today. The committee really appreciates it, because we are hearing different things.

Earlier today, colleagues across the way mentioned that they'll be pushing for no timelines, or they alluded to that. On that, I have a question for ARCH, for Mr. Lattanzio and Ms. Joffe.

You mentioned in your opening remarks the importance of timelines and benchmarks. Do you have suggestions of what those timelines or benchmarks should be?

[Robert Lattanzio]

We have some examples, but I would just like to start, if I may, by talking a little bit more about what flowed from the earlier session in terms of “progressive realization”. We understand it to be much more rigorous than what was discussed at that previous session. When we think about examples of timelines, we're really thinking about how we break down the various pieces. As complex as this piece of legislation is, we're really thinking about creating a structure whereby we can start parcelling off and achieving certain benchmarks.

Some examples would be just around the standards development process—having some timelines, some measurements, and some benchmarks for regulated entities to develop and implement their accessibility plans. Those are just a few examples, but we can really break that down and identify various other things.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Even with regard to having the accessibility commissioner and CASDO established, and the timelines with that, with the way the legislation sits right now, once this receives royal assent, what happens?

[Kerri Joffe, Staff Lawyer, ARCH Disability Law Centre]

As my colleague stated, we certainly support the calls from the other disability organizations that have appeared before the committee that of course there should be timelines attached to part 5 of the bill for bringing in the regulations and standards, for CASDO being set up, and for the standards development process.

I think what we've been trying to emphasize as well, in addition to those standards, which are crucial for ensuring that we can monitor progress towards meeting accessibility requirements, is that we also need to insert benchmarks and some kind of timeline process within the development of the standards process in order to ensure that we do reach markers for progressive realization of the standards and the ongoing work toward improving meeting the standards.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Do you think that having some type of timelines or benchmarks while doing this piece by piece, step by step, would achieve the balance? The trend I'm seeing or hearing from people within the disability community is that they expect timelines to be in this. A lot of the organizations I've met with said that this should have been dealt with yesterday, not today, just as a whole.

I understand that we're moving forward. Things are evolving. Things change over time. I understand that. I'm just concerned that if this legislation has no timelines, no benchmarks, what type of message would that send to people in the disability community?

[Robert Lattanzio]

I would be concerned about that message. I think overall the concern, as you mentioned, is that as of day one, when this bill receives royal assent, there isn't anything else required.

In addressing the concern about the progression of technology, for example, or how we understand disability and how it evolves, our response would be that standards would have to be updated as we go, and that these updates would fit within whatever timeline is set out. There are ways of dealing with that kind of progression and change.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Perfect. Thank you.

I have one other question regarding complaints. We know—and I believe you touched on this—that we have four administrative bodies that would be responsible for dealing with accessibility-related complaints. These would include the accessibility commissioner, the CRTC, the Canadian Transportation Agency, and the Federal Public Sector Labour Relations and Employment Board. I'm wondering what would happen, theoretically and hypothetically, if an individual were to bring a complaint to the wrong administrative body. What would happen if, for example, somebody brought a complaint to the accessibility commissioner when it should have instead been filed with the Canadian Transportation Agency?

[Kerri Joffe]

That's an excellent question. I don't think that we know right now what would happen in the absence of regulations and without sufficient experience in how the process would roll out within the various agencies.

What I will say is that in doing our analysis of the bill and in coming up with recommendations, we consulted with our members, with disability communities and with a number of the other groupings of disability organizations that have appeared before the committee and will appear before the committee later this week. We heard consistently across all those consultations that there is great concern within the community about having these various agencies deal with complaints and about the additional access-to-justice barriers that this would create, especially when disabled people already experience a number of barriers to accessing justice and accessing extremely complicated service delivery systems and programming systems. People are very concerned about that.

From a legal point of view, we are concerned about the ability of the other bodies charged with addressing these complaints to apply a robust human rights analysis in conjunction with a full understanding of disability accessibility and human rights. We've made a number of recommendations in our other materials for ensuring that either complaints all go to the accessibility commissioner, a body that we would anticipate would have a deep understanding of human rights and can do justice to those kinds of complaints, or, if the complaints are going to continue across multiple agencies, that those agencies have obligations in the legislation to apply a much more robust human rights analysis than they currently do.

[Rosemarie Falk, Conservative, Battlefords—Lloydminster, SK]

Thank you.

[The Chair, Liberal, Bryan May]

Thank you very much.

MP Morrissey is next, please.

[Bobby Morrissey, Liberal, Egmont, PE]

Thank you, Chair.

My question is to ARCH. An earlier witness made the statement that at no time will Canada be barrier-free, which then leads to a question we've heard from a number of stakeholders, namely, that there is no deadline to make Canada fully accessible. Should the goal be to always strive to achieve a more accessible Canada, or should the goal be to achieve a static standard of accessibility? I'd be interested in your observation.

[Robert Lattanzio]

I don't think that having timelines means we are taking the position that we are accepting a static accessibility goal. We think about timelines just as a way to move us forward into whatever evolution.

I think we also need to remember that this bill is not going to do it all. This isn't the one law that will make inclusion real for people with disabilities. This isn't the law that will make full citizenship real. This is one important piece—one piece—and we need to understand that we have a lot of different layers. We have an incredibly aspirational convention that we've ratified. We have the charter, of course, and we have the Canadian Human Rights Act. I think this committee has heard a lot about how the Canadian Human Rights Act, like those types of laws, is a piece of legislation that is reactive, and that this bill is proactive.

I want to challenge that a bit, because I think that in order to really understand where this bill fits into the larger landscape, we need to acknowledge that the human rights legislation is actually not just reactive. There are a lot of things from a rights perspective that really strive to encourage government and the private sector to push for accessibility through a non-discrimination lens. When you think about that with the charter, and then you add this piece, you start to really understand the importance of some of the recommendations we're making around ensuring that one piece of law doesn't impact the other, but rather complements the other.

I hope that answers your question.

[Bobby Morrissey, Liberal, Egmont, PE]

It spoke to the global issue, but it didn't get back to what the target should be: to achieve a more accessible Canada or to achieve a static accessibility goal.

I have another question for ARCH. This legislation, as was referenced a number of times, takes on an access approach versus an anti-discriminatory route. Could you comment?

[Robert Lattanzio]

Sure. I guess this—

[Bobby Morrissey, Liberal, Egmont, PE]

Other jurisdictions have used an anti-discriminatory route rather than the focus on access.

[Robert Lattanzio]

Again, if we think about how these different laws operate, we see that we have a more individually driven system through an anti-discrimination approach, whereby you have a complainant identifying an issue of discrimination and bringing it forward through a process. It's somewhat piecemeal. It's embedded within the facts of that scenario, within the facts of that complaint. The attempt here is that we are thinking about it more globally. We are thinking about a level of minimum standards.

Again, I don't want to treat them as different. I think they need to really work together for this to really work. Think about how we work through human rights complaints. Obviously we deal with the facts before us, but we think about the systemic implementation of some of the remedies. We think about the impact. Sometimes we deal with issues that this act may very well deal with. There are a lot of those commonalities.

Again, I fear to draw clear distinctions between the two. There is overlap, and there is a real need to make sure they work together.

[Bobby Morrissey, Liberal, Egmont, PE]

Did your group participate in the consultation process?

[Robert Lattanzio]

Yes, we did.

[Bobby Morrissey, Liberal, Egmont, PE]

In that consultation process, did you comment on or question the situation that I just posed to you?

[Kerri Joffe]

We did. During the consultation process, we made comments and provided information around trying to think about this legislation as not only focused on accessibility but really focused on rights for persons with disabilities, in terms of thinking about persons with disabilities as rights holders and about the CRPD implementation kind of legislation.

We wrote a couple of papers in the pre-bill consultation period that tried to think about and put forth some recommendations around how this legislation could implement a number of rights that are in the Convention on the Rights of Persons with Disabilities and implement those much more fully into Canadian domestic law. We can provide those to you if that would be of interest after today.

Yes, when Bill C-81 was getting going, I think we definitely were thinking of this legislation much more as rights-conferring legislation, rather than focusing only on accessibility.

[The Chair, Liberal, Bryan May]

Thank you very much.

MP Hardcastle is next, please.