Human Resources Committee on Oct. 25th, 2018

[David Lepofsky]

Let me offer it to you in a couple of sentences. Then my colleagues can add in.

All enforcement should be under the accessibility commissioner, pure and simple. Right now, the way the enforcement works.... This is a specialty of mine. I teach law, and I'm having trouble figuring out this bill, so I have to figure that other people are going to likely have similar difficulties.

On the making of accessibility standards, they should all be recommended by CASDO, the Canadian accessibility standards development organization. That's the way the government designed it and that's right, but they should all then be enacted by one body, and that's cabinet. The bill doesn't say that. That's wrong.

There is a chief accessibility officer. Their mandate is confusing. We've provided in our brief a way to clarify it. Their role really should be as a national watchdog to keep us all on topic and on schedule. They should be issuing reports and recommendations to all of us, not prevented by any minister, and they should be doing so to let us know when we're doing well but also where we have to do more.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Does anybody else want to add to that?

[Angela Bonfanti]

I agree. I think CASDO is a great element of the bill, and that's what our survey told us after the bill was introduced when we surveyed thousands of people with sight loss.

I also think it's really important that we have a group of people with disabilities who are part of this process, especially when we start talking about those who want to put forward exemptions and other pieces, which will inevitably happen. I think the body is right, and we are in total agreement with David on this, but we need to have a group of people who have the lived experience at the deciding table.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

That gets me back to the issue of exemptions. Where do you think we should be going in terms of pushing for amendments for this bill? If amendments are a reality, should we be asking for an appeal process and that reasons be provided, or should we get rid of that entirely?

[David Lepofsky]

I think the first step should be that the sweeping exemptions in this bill, whereby the government can give itself exemptions and the CTA can be giving out exemptions to transit providers, are all wrong. There are no exemptions from human rights, much less ones done behind closed doors with no input. The government said this bill is to be based on “nothing about us without us”. This is about taking it all away from us without us, and that shouldn't happen.

If the concern is that there should be exemptions related to small businesses or something, for the most part the government doesn't regulate small business, and Air Canada and Bell Canada are not small businesses. In that case, create an exemption power for small businesses. If exemptions are to be granted, the bill should explain what the criteria are, and they should be time-limited and should not be extended if there is anything showing that the company that gets the exemption has accessibility problems.

The way it's written now, the government can give a carte blanche exemption forever to an organization, and the day after, the same organization can set about creating all sorts of new barriers, and we have no recourse in relation to the exemption. The bill doesn't make any sense now. If there's to be any exemption power at all, it should be tiny, narrow, time-limited, and subject to an appeal process, and there should be strict, narrow criteria about when the government can grant exemptions.

[Cheryl Hardcastle, NDP, Windsor—Tecumseh, ON]

Thank you.

Very quickly, can you comment on the way we should be bringing timelines into force?

I know that with UN treaties, we use the concept of progressive realization. We don't have any coming into force provisions here, either. Can you expand on how we could be using that more effectively for this bill?

[The Chair, Liberal, Bryan May]

Be very brief, please.

[David Lepofsky]

The AODA Alliance brief and the ARCH Disability Law Centre brief give you specifics on which provisions need to be amended to include specific timelines.

[The Chair, Liberal, Bryan May]

Thank you.

MP Hogg, go ahead, please.

[Gordie Hogg, South Surrey—White Rock, Lib.]

Thank you again to all of the witnesses.

As we've gone through a number of hearings, we've heard a number of issues come up. I think there are two or three principles that seem to be coming up consistently.

First, everyone thinks that it's wonderful that this initiative has been taken. Concerns have been expressed around implementation, accountability and the principles that are inherent within those, in terms of them becoming operationalized, as well as around funding culture, procurement and accessibility.

Certainly the principle that the minister talked about from the beginning was wanting to have an approach that was not about disability but about openness and an inclusive society, and those are some of the principles that are driving us.

Mr. Lepofsky, you've talked a little bit about the timelines and how there would be some time-limited exemptions granted. Do you see those exemptions being for a whole field of organizations, or do you see those being individual organizations? How in fact would that be operationalized? I like the principle, but I'm not sure how that becomes operational in a meaningful way.

[David Lepofsky]

Let me begin by saying we don't really see the case for needing it; it's the government that came forward with it, so our answer is that if you're going to do it at all, do it subject to the restraints that we mentioned.

Here's why we don't think you need it. When you design an access standard, when you say to an organization, “Here's what you have to do”, it's not a one-size-fits-all standard. Different timelines can be set for taking action, depending on whether you're public sector or private sector or whether you're bigger or smaller. The flexibility can be designed in, based on the costs and the abilities of the obligated organizations.

Properly designed standards build those in. They've done it in Ontario, and if anything, the timelines have been too long. In other words, they've given obligated organizations more time than they needed to. It's certainly never been the case that they've been making them rush into action sooner. That's where the flexibility gets built in anyway.

Some members at this committee have asked at the hearings, “What's the cost of doing this?” Well, the cost of taking these actions is already required under the human rights code. This bill doesn't actually impose new obligations. It should codify the obligations that have been on the books under the charter and the Canadian Human Rights Act for decades. Recognizing that some organizations can do more sooner, because they have more resources and more capacity, you build that into the standards. You don't need to then turn around and create exemptions that essentially double-count and double-credit that situation.

[Gordie Hogg]

If I'm an organization or a small business somewhere in a rural part of Manitoba and I'm not meeting the standards, are you suggesting we grant exemptions to small organizations, or is it to the whole business community? How do you break that down into an operational model?

[David Lepofsky]

First, we wouldn't create any exemptions to an entire sector of the economy. That wouldn't make any sense. You build into the standard different requirements based on the size of the organization and the resources or capacity of the organization. The human rights code is written exactly that way, and so is the Charter of Rights.

[Gordie Hogg]

Then would an individual organization be given an exemption because it was part of an area, or would I have to change my hardware and individually have to apply to you?

[David Lepofsky]

I'm going to turn it around and say it's the government side that is asking for the exemption power, so if you're going to have one at all—we don't see the need for it—make it as narrow as possible. If the motivation behind the government wanting to create an exemption power is concern about small business, create a power that says exemptions can be granted, but only to organizations of this size, based on capacity, based on an application and a request, and make it time-limited based on specific criteria. In other words—

[Gordie Hogg]

Ms. Bonfanti—

[David Lepofsky]

Do you follow me? In other words, if that's the worry—and I can't tell you that's the worry, because we're not the one espousing it.... The bill gives the power to grant an exemption to anybody, anytime, for any reason.

[Angela Bonfanti]

David, I'd like to weigh in on this, if that's okay.

I think federal regulations should have no exemptions. That's our stance completely. Where there are exemptions outside of that, we need to have a published, online, accessible format, a very transparent way for someone to put forward a request for exemption. This alleviates the backdoor conversations and the smaller routes that somebody can take that often happen when there's bureaucracy. Make it public, make it accessible, and give it a timeline.

[Gordie Hogg]

Given that statement, can you describe for me how you might grant exemptions, what criteria, culture or organization you might grant an exemption to? Can you describe some of those?

[Angela Bonfanti]

I don't think it would be organization or sector, because even under the small business area the revenue levels vary, the debt levels vary. I think we have to be smarter about the criteria, and it should not be a blanket approach. If I'm a small business in Manitoba and I'm running a small restaurant with 20 seats and I'm running at a deficit, there should be criteria online so that if I fall within that category and I need an exemption for now, not forever, I have a plan in place to become compliant under the act.

[Gordie Hogg]

You're saying there would be a firm deadline, and then you're suggesting people can apply to extend that deadline for particular circumstances—

[Angela Bonfanti]

Not forever. There are improvements everywhere.

[Gordie Hogg]

—and those are the types of circumstances you would see.

[David Lepofsky]

Let me just give you another example of where things can go wrong.

[The Chair, Liberal, Bryan May]

Be very brief, sir.