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Feature Issue: Key Findings from Review of Strategic Legislative Options

BakerLaw, a Toronto-based legal firm that is a nationally recognized leader in disability and human rights law, prepared a report that identifies and assesses strategic options for the accessibility-rights legislation that has been proposed in Manitoba.

The full report is downloadable in regular (Word and pdf) and large print (Word and pdf) formats.

Following are selected excerpts from their report.  

CONTEXT (From the Report's Conclusion)

The new disability-related legislation that has been proposed in Manitoba provides the possibility of a significant advance in the accessibility of the province. The legislation provides an excellent opportunity for the proactive identification and removal of barriers of all kinds across Manitoba.. As this paper demonstrates, there are many factors that go into the success of the legislation contemplated by the Manitoba government. However, the complexity of these issues and the uncertainty of success should not dissuade Manitobans from taking this positive step toward accessibility.

With draft legislation being considered, it is time to focus energy on the content of the legislation itself. While some factors beyond the scope of the legislation will affect its success, including the content of the standards and maintaining momentum, it is time to focus the community’s energy on ensuring the strongest possible legislation is adopted. Throughout this process, the disability community should remain mindful of the Ontario experience and continue to draw lessons from it, particularly as Charles Beer’s independent review of the legislation concludes

SUMMARY OF KEY FINDINGS (from the Report's Executive Summary)

Definition of Disability:

The Canadian model of disability defines the term in a broad manner such that conditions of all kinds qualify as a disability, whether they result in functional limitations or only the perception of limitations, including past and future disabilities. The Americans with Disabilities Act (ADA) defines disability in a narrower manner and requires an individual to demonstrate that they currently have, previously had or are perceived to have a physical or mental impairment that substantially limits one or more major life activities. The Canadian model of defining disability best ensures that all disabilities will be covered and reflects a principled approach to equality. While the definition may exclude particular conditions that are perceived as blame-worthy, like the ADA’s exclusion of addictions, the desire to cover all disabilities, by necessity, requires that no conditions are specifically-excluded from the definition.

Development of Accessibility Standards:

Standards can be developed by industry, though we assume such standards are more likely to represent the interests of industry rather than the disability community. Standards can also be developed by government, as in the United States, or through committees of stakeholders, as in Ontario. Any of these models can incorporate a leadership role for the disability community; the key is not the mechanism through which the community is consulted, but how meaningful the consultation is and whether the comments are incorporated in further revisions of the standards. The Ontario experience with standard development committees demonstrates that their proper functioning depends, in large part, on the exact details of how they function, which the disability community must be cognizant of.

Monitoring Compliance with the Standards:

Once developed, government needs to monitor their implementation by organizations. Annual reporting can be used, but is unlikely to be useful for any organization that is intentionally or negligently contravening the standards, though the reporting could provide useful information for other monitoring mechanisms. Either individuals or government investigators could also identify organizations not complying with the standards, the main difference being who bears the burden of monitoring implementation. In Ontario, both annual reporting and investigations are envisioned, though their implementation is still in its early stages. The legislation ought to primarily adopt a monitoring system using investigations by an independent agency. When deciding which organizations to investigate, the body ought to consider complaints of non-compliance received by people with disabilities.

Ensuring Compliance with the Standards:

Monitoring implementation is one mechanism through which compliance can be promoted, particularly if there is broad knowledge of a rigorous monitoring mechanism. In addition, the government can develop incentive or penalty-based programs. All of these mechanisms and the incentive created by the purchasing power of people with disabilities form part of the Accessibility Directorate of Ontario’s compliance planning. For any of these mechanisms to be an adequate motivator for an organization to consider expending resources on compliance, it must be significant. The legislation or regulations ought to provide direction as to the calculation of fines or damages to ensure that they are sufficiently large to discourage non-compliance.

Public Accountability:

An important aspect of the legislation is providing a means by which the government can be held accountable for implementing the legislation in a way that advances its objective. There are many non-exclusive options, including annual reporting by the government, legislative provisions that mandate rather than permit government action, public consultation throughout the legislation’s implementation, and external independent reviews (each of which is contained in the Ontario legislation). The primary use of each of these mechanisms is to provide adequate information to allow the disability community to praise a government providing leadership toward barrier-removal or hold the government to account for any lack of political will. Barrier-Free Manitoba should advocate to ensure that as many strong public accountability mechanisms as possible are incorporated within the legislation.

Interaction of the Accessibility Standards and the Manitoba Human Rights Code:

If the legislation is to have a broad and sustained impact on the accessibility of Manitoban society, a principled approach must be taken on how standards interact with the Code. As quasi-constitutional legislation, the Code supersedes all other legislation unless specifically stated otherwise and the standards could be used to raise the level of accessibility required by providing the “floor” of accessibility (as in Ontario). In practice, this rule creates uncertainty over which provides the higher level of accessibility as the Code’s requirements are presumably less certain than those of the standards. Alternatively, compliance with a standard can act as a defence to a related claim of discrimination under the Code, which ensures greater certainty at the cost of accessibility. In light of Barrier-Free Manitoba’s principle that the standards not diminish other legal and human rights protections and supersede all other provincial legislation that proves lesser protections, there can be little doubt that the floor model is the most appropriate.

Interaction of the Accessibility Standards with Other Legislation: Where two laws conflict with one another, the legislation may say that the law that requires the highest level of accessibility prevails and may also provide specific exception to this general rule; this is the approach in Ontario. If the legislation is silent, traditional principles of statutory interpretation will dictate that the more recent, more specific, or more exhaustive statute will prevail in case of conflict. To best ensure that existing standards are not diminished, the legislation should specifically state that whatever legislation or standard sets the higher level of accessibility prevails. If exceptions to that general rule are required, the standards or legislation can explicitly state otherwise.