MULTIPLE SCLEROSIS SOCIETY OF CANADA, OTTAWA CHAPTER

ALAN SHAIN

MICHAEL BRADY

CITY OF OTTAWA ACCESSIBILITY ADVISORY COMMITTEE

ONTARIO BRAIN INJURY ASSOCIATION, HEAD INJURY ASSOCIATION OF OTTAWA VALLEY

RICHARD TH6BERGE

OTTAWA CITY COUNCIL

CANADIAN NATIONAL INSTITUTE FOR THE BLIND, OTTAWA DISTRICT

CHRIS STARK

EVELYN MILLWARD

DISABLED AND PROUD

GILES WARREN

DISABLED PERSONS COMMUNITY RESOURCES

PENNY LECLAIR

-------------------------------------------------------
Friday 30 November 2001 Vendredi 30 novembre 2001

The committee met at 0901 in the Crowne Plaza Hotel in Ottawa.

ONTARIANS WITH DISABILITIES ACT, 2001
LOI DE 2001 SUR LES PERSONNES HANDICAP6ES DE L'ONTARIO

Consideration of Bill 125, An Act to improve the identification, removal and
prevention of barriers faced by persons with disabilities and to make related
amendments to other Acts / Projet de loi 125, Loi visant " am1liorer le
rep1rage, l'1limination et la pr1vention des obstacles auxquels font face les
personnes handicap1es et apportant des modifications connexes " d'autres lois.

The Chair (Mr Marcel Beaubien): I would like to bring the standing committee on
finance and economic affairs to order. The standing committee is meeting this
morning to consider Bill 125, An Act to improve the identification, removal and
prevention of barriers faced by persons with disabilities and to make related
amendments to other Acts.

I would also point out that this committee will meet in Windsor on December 4,
in Toronto on December 4 and 5, in Thunder Bay on December 6 and in Sudbury on
December 7.

MULTIPLE SCLEROSIS SOCIETY
OF CANADA, OTTAWA CHAPTER

The Chair: I would like to invite the first presenter this morning, the
Multiple Sclerosis Society of Canada, Ottawa chapter. I would ask the
presenters to come forward and state their names for the record. You have 20
minutes for your presentation this morning. On behalf of the committee,
welcome.

Mr Bill Morris: Thank you. My name is Bill Morris. I'm the chair of the board
of the MS Society, Ottawa chapter. With me are Chris Pomroy, who has been a
member of our board of directors and is now a member of our social action
committee; and Alf Gunter, who has also spent a long time on our board and the
social action committee. They both have long experience with the issues we're
dealing with today, having family members affected by the disease.

We have fairly brief remarks today and would welcome your questions following
that time.

We represent the Ottawa chapter of the Multiple Sclerosis Society of Canada. MS
is the most common neurological disease affecting young adults in Canada, which
has among the highest rates of the disease in the world. It is estimated that
20,000 people have MS in Ontario, including 800 in the Ottawa chapter. Among
the symptoms of MS are loss of balance, impaired speech, extreme fatigue,
impaired vision and paralysis. On a more personal note, I probably know a
couple of hundred people within our chapter and I've never met one who has
basically the same grab bag of symptoms that I have. So while it is a disease
that is by its nature progressive, individuals are diagnosed relatively young
in life, so they're dealing with the effects of the disease for a very long
time. The bottom line is that for the vast majority the disease has a
significant impact on their lives, in fact generally on all aspects of their
lives, ranging from education to work, family, housing, you name it. So with
that context in mind, we'd just like to impress upon the committee that many of
our members could benefit from a strong and effective Ontarians with
Disabilities Act.

We thank the minister for all the hard work he has done on behalf of persons
with disabilities. Unlike the previous bill that was later withdrawn, we now
have proposed legislation that is worthy of constructive criticism.

We are pleased that the definition of "disabilities" is sufficiently broad to
encompass all groups which need to be included. We would suggest changes, such
as using generic terms, rather than naming specific diseases, but this is only
a minor shortcoming of the bill.

We are pleased with the broad definition of "public sector," by including
educational institutions, hospitals and municipalities. We do not like,
however, that these requirements are being referred to as guidelines or that
they will not be subject to the provisions of the Regulations Act. As such,
directives of the ministry are not subject to public consultation. If details
are to be spelled out in the regulations, such as in clause 22(1)(h),
"specifying a time period," we would expect that the draft regulations would be
subject to public consultation.

We are pleased that you will establish an Accessibility Advisory Council of
Ontario and that a majority of its members will be persons with disabilities.
We would like to see the size of this council established, within limits. It
must be sufficiently large that all major forms of disabilities would be
represented, perhaps from 15 to 24 persons. As an example, the city of Ottawa
has established two advisory committees that deal with issues affecting persons
with disabilities: an accessibility committee and a mobility committee. Each
has 15 members, and in the case of the accessibility committee, at least, this
is no larger than necessary. We are also pleased that you will establish an
Accessibility Directorate of Ontario to support the accessibility committee and
the ministry.

It is a positive for the broad public sector that accessibility plans are
required initially, made available to the public, and that there is a
requirement to consult with the accessibility directorate for Ontario
ministries and advisory committees for municipalities. As it is not possible to
levy fines or other penalties in the public sector, it is especially important
that timelines be established for removal of barriers, such that progress can
be measured against these plans. Failure to develop schedules is likely to
result in good intentions that are never met. It would seem reasonable to
suggest that all barriers identified initially be eliminated in stages over a
five-year period and that new barriers identified in subsequent annual reviews
also be eliminated within five years of being identified. We are extremely
disappointed that there are no timelines for removal of barriers in the public
sector and, unless amendments are made to provide them, we cannot offer our
support for this legislation.

If we have reservations about some aspects of the proposed legislation as
regards the public sector, these become insignificant in comparison to those in
the private sector, which is specifically excluded from its provisions. Indeed,
it is the private sector that presents the most barriers to persons with
disabilities, such as this hotel, for example, both in terms of employment and
access to goods and services. In countries where the elimination of these
barriers has been made mandatory, the costs have not been found to be
prohibitive and considerable economic advantages have accrued. Tourists with
disabilities from these countries, including the United States, consider Canada
a backwater and often do not return. As more persons with disabilities are able
to enter the workforce, they are removed from the welfare rolls, pay taxes and
purchase more goods and services. Modifications that are put in place to assist
persons with disabilities, such as automatic door openers, for example, have
been found to be useful to many others: mothers with baby carriages and
strollers, persons carrying parcels, and the frail elderly, for example. The
economic advantages to society in mandating the private sector to avoid and
eliminate barriers are so compelling that it is difficult to understand the
position the government has taken.

We regret that we must voice our opposition to the bill at this time, unless
you are prepared to make mayor amendments, these to include mandatory
requirements, timetables for both the public and private sectors and an
enforcement mechanism to ensure compliance by the private sector.

That concludes our remarks. We welcome any questions.

0910

The Chair: Thank you very much. We have approximately two minutes per caucus
and I'll start with the official opposition.

Mr Richard Patten (Ottawa Centre): First of all, I welcome the committee here
to Ottawa Centre today in this blustery weather. Nevertheless, we hope that the
members have the warmth of compassion to listen very carefully.

Thank you very much, gentlemen, for appearing this morning and sharing with us.
You will observe a pattern, I expect, throughout the day, a similar response
that, "Look, the intentions are there but there's no substance -- even if there
were incentives, but something on the table that would provide, especially the
private sector, some opportunities to move ahead." You referred to the city and
its initiatives to try to do something. I think those are two areas.

But I would ask you this: could you be specific? Do you have in your mind
something, an example, of what we're talking about? Because the big fear in the
government, you know, is this is going to cost the private sector a heck of a
lot money and would make us less competitive etc. Of course, that doesn't
really bear out when you scrutinize other examples in other jurisdictions and
other countries. Could you give us a specific example of what might occur?

Mr Morris: Sure. Alf Gunter has spent a great deal of time on this area and
I'll ask him to respond to your question.

Mr Alfred Gunter: One thing that happened, in this very room about nine months
ago we were at a meeting and the gentleman -- I can't remember his name right
now -- who was instrumental in the Reagan cabinet in bringing in the Americans
with Disabilities Act spoke to us. He said there was not one business that had
gone bankrupt in the United States because of the Americans with Disabilities
Act. There are a lot of little things you can do and a lot of it is
attitudinal. Bill has mentioned putting push buttons on doors. That doesn't
cost a great deal of money. Single-step ramps don't cost a great deal of money.

My wife is in a full-size electric wheelchair. We were in Niagara-on-the-Lake
this summer to see a couple of plays. We had a little vacation tied in with an
extended-family wedding. One of the three theatres is accessible, and that's
the one we wanted to go to, fortunately. But when we started looking for
accommodation, we found that even though some of them are listed as being
accessible, a phone call tells you, "Oh, yes, our restaurant is accessible, but
you can't stay here." We found one bed and breakfast place in the whole area of
Niagara-on-the-Lake, that whole area down there. We could have stayed in St
Catharines at the Comfort Inn, as we've done before, but we were looking for
something a little special, and really it wasn't available.

This lady had gone to a great deal of trouble to make hers accessible, to make
us feel comfortable, but it still wasn't very good. We couldn't go into any of
the shops. Of course, they're very concerned about the heritage aspect of the
community, but there was no sign on the door saying, "Please ring and we'll put
a ramp out for you," nothing like that. Looking at this proposed legislation,
nothing is going to change at all. The same situation will exist.

Mr Tony Martin (Sault Ste Marie): Thank you for coming this morning. We
appreciate you taking the time to look at the bill and to prepare and present
such a concise and, I think, very good critique.

You say, at the bottom of the first page, "As it is not possible to levy fines
or other penalties," and then you talk about some timelines. Do you think that
the timelines, without penalties, will actually work?

Mr Morris: I think it would be a step in the right direction that might be
palatable. It's not really what we'd want to see, but at least organizations,
in putting forward a plan, would get more specific about how exactly they would
intend to make it happen. As I say, it is not what we would really like to see.

Mr Martin: What would you really like to see?

Mr Gunter: I really don't know in the public sector if there is a great deal
more. Of course, we need to be sure that the people who are reviewing these
things are sympathetic to people with disabilities. I know these plans are
going to be reviewed, that's the way the legislation reads, but I really feel
that if you included all municipalities instead of having those under 10,000
being exempt from it, and if you had timelines and you were careful in the
selection of the people who were reviewing this, really I feel this is about
all you can do. Perhaps I'm saying the same thing as Bill here, but you put a
lot of pressure on people to do things and you make them accountable for things
they said they were going to do. That's about the only thing you can do in the
public sector.

Mr Morris: In my experience as a federal bureaucrat, making additional funding
contingent on being program-sensitive is often a way to make things happen, but
that is an implementation issue that means that the legislation has to be taken
to heart. Timelines sometimes help make that a realistic environment that the
centre of government, which is providing money to ministries, can look and see,
"Is this done? Does this meet the needs of this program that we're pushing at
the moment?"

Mr John O'Toole (Durham): Thank you very much for your presentation this
morning. It's important to hear over the next few days from all sectors the
response to this discussion on this bill.

I just want to be clear on your concluding remark. You said that you "regret"
that you "must voice opposition to the bill," basically for three reasons.
You've sort of spoken to them but I'll give you a chance to respond if you
wish.

In specific terms, the mandatory requirements, timetables and the enforcement
mechanisms seem to be the three areas that aren't specific enough for you. If
you have any advice going forward, either in the legislation or with respect to
the consultation process and advisory committees, I'd be happy to have those on
the record.

Mr Morris: I'll ask Chris Pomroy to respond.

Mr Chris Pomroy: Particularly in reference to the regulations, which it appears
may be the way in which this will be implemented, it does make reference to
timelines etc in the regulations but there is nothing in the act that says when
the regulations will be put into place. It would seem that some amendment or
some reference to "the regulations shall be enacted within six months," or
something like that would help.

Mr O'Toole: That would be more of the timeline part of it, but in enforcement:
do you have any ideas with respect to enforcement? I think I heard you say time
initiatives to funding or joint funding or other support mechanisms. Is there
any other enforcement? I think the disability parking is probably the best
example of something all of us have to consider and there are mechanisms in
here to make that a no-no; but it's part of the education that we could improve
by educating the public first and then having appropriate responses to that.

0920

Mr Gunter: Actually, it's unfortunate that the big dollar figure went in for
disability parking, because we haven't found that, at least in this area, the
major issue recently. People are now educated and sympathetic enough that it
doesn't happen very often, and when it does, the $70 fine or whatever it is is
sufficient that they're not likely to try it again.

In any field -- if you, say, have pollution -- there's a fine, and this is the
type of thing you need. If you've said you're going to do something, if the law
says something has to be done by a certain period of time, be that five years,
10 years, and you fail to comply, there's a mechanism, there are laws, there
are penalties, and you just have to decide what they are and go through the
normal course to ensure that they're enforced.

I can't be more specific than that. I don't think there's anything special that
you would put into any other type of legislation that you would have.

The Chair: With that, we've run out of time. On behalf of the committee thank
you very much for your presentation this morning.

ALAN SHAIN

The Chair: Our next presentation is from Alan Shain. I would ask Mr Shain to
please come forward; if you could please state your name for the record. On
behalf of the committee, welcome. You have 20 minutes for your presentation
this morning.

Mr Alan Shain: Forgive the technical difficulties. My parallel parking ability
is not that good at 9 am.

My name, for the record, is Alan Shain and I'm presenting as an individual
citizen. I believe in the intent of Bill 125, which is to remove all barriers
that prevent Ontarians with disabilities from leading full and productive
lives, but I do not see how, in its current format, Bill 125 would remove any
barriers.

For example, a new bagel shop opened only one block away from where I live. It
has one step to get in -- a brand new shop. I don't see how Bill 125 would
remove that one step, which would cost no more than maybe $100. If Bill 125
cannot remove that simple, straightforward barrier, then how effective is it?

On a more serious matter, people with disabilities do not have adequate access
to medical care and treatment here in Ontario. I'm not talking about
specialized treatment. I'm talking about access to basic medical care, things
like regular physical checkups and access to walk-in clinics. Most clinics have
stairs. Most medical offices are too small to get a wheelchair into. There's
only one office in Ottawa which has a lift to transfer patients from their
wheelchairs on to the examination table. There are 60,000 people here with
mobility impairments.

I don't see how Bill 125 legislates improved access to medical care. The bill
allows the government to create a wide range of regulations. However, it
doesn't require that any regulations are actually enacted and followed.

I have two main recommendations. The first is that there be specific timelines
set down in the bill, as to when these barriers will be removed. Bill 125
currently only provides for plans to identify barriers, not their removal.
Specifically, the bill should be amended to provide that the government of
Ontario shall become barrier-free within five years of this act coming into
force.

My second recommendation is that there be strict enforcement procedures set
down within the bill regarding barrier removal, with penalties for
non-compliance. Currently, the only specified penalty is for illegally parking
in a spot reserved for disabled people.

For example, the section under "government employees" covers accommodation,
with respect to interviewing, hiring and promoting of people with disabilities,
but this is already covered under human rights legislation. The problem is
enforcing these standards within government practices, something which Bill 125
is currently silent on. What body is going to enforce these standards? What
will their relationship be to the government of Ontario? How will this body of
enforcement be funded?

0930

The requirement of each ministry to draw up accessibility plans, I believe, is
new and I like that. But Bill 125 again needs to specify strict deadlines as to
when these plans would be completed and implemented; who will review these
plans and their implementation; that the disability community directs these
plans, not merely advises; that there will be a complaints procedure; and that
there will be strict penalties for non-compliance.
These same problems exist with the municipalities' accessibility plans, except
that the bill does specify an advisory committee for people with disabilities,
which again is good. But it still does not put people with disabilities in the
driver's seat. Advice from an advisory committee can be discarded.

Under the section "Other organizations, agencies and persons," the bill
provides that a list of actions these agencies intend to take shall be made
available to the public, which again is a good thing. But Bill 125 says nothing
about what happens if these actions are not taken.

Under "Restrictions on agencies," Bill 125 specifically exempts private
companies. This is a major concern to me. In this era of downloading public
services to private companies via contracting out, Bill 125 would actually
impact on fewer and fewer services which I rely on to live. For example, in
Ottawa, Para Transpo is contracted out to Laidlaw, a private company with its
own rules and regulations on how it operates.

In closing, Bill 125's purpose should be the achievement of a barrier-free
Ontario for all people with disabilities. It should cover all disabilities,
whether physical, mental or sensory. It should not only remove physical
barriers, but also barriers to service and attitudinal barriers. This can only
be done through the provision of strict time limits that are enforced with
heavy penalties for non-compliance.

The Chair: Thank you very much. We have approximately three minutes per caucus.
I'll start with Mr Martin.

Mr Martin: Thanks for coming this morning and thanks for what obviously is a
very full critique of the bill and a very concise presentation of that
critique. I think you hit all the key areas that we've been pointing to since
the bill has been tabled. You talk about timelines, you talk about the ability
to enforce, you present to us a very obvious example of where this bill also
needs to cover the private sector, you talk about the fact that advice from an
advisory committee need not be considered -- it can be discarded -- and you ask
the question, what happens if these actions are not taken.

You add an interesting new element here that I hadn't considered and I want you
to talk about it a little bit further, and that's the issue of, if it doesn't
cover the private sector and we're moving to more privatization of public
services, this is a neat loophole to exempt a whole lot of things that we
thought might be captured. So this is even worse than first thought in that
way. Could you expand a little bit on that issue for me?

Mr Shain: Only to say that, for example, home care attendant services, which
many of us require to get up in the morning to go to work or whatever, are
progressively more run by private companies. In my experience with Para
Transpo, for example, because it's run by a private company, it's that much
further removed from public input as to how it's actually run, what's actually
going on in its running. So I see that Bill 125's standing back from so-called
interference with the running of private companies actually does harm to my
needs as a public citizen.

The Chair: We'll go to the government side.

Mr Joseph Spina (Brampton Centre): Thank you, Mr Shain. I agree with our
colleague here that you had a very good critique and it was very concise. You
hit many of the important points surrounding this bill. I think your simple
example of the bagel shop is very pivotal, because it illustrates perhaps some
of the simpler things that could be done very quickly.

You talked about the time frame for implementation. My question is, do you have
a suggestion? Could it be done on a phase-in, like government first,
institutions second, and large, medium and small businesses sort of falling in
line? And would it make sense that a small business like your bagel shop, if it
is a simple removal that doesn't cost $10,000 but closer to what you suggested,
perhaps that is something that could be included in the first or second phase?
Would that work, do you think, Alan?

Mr Shain: I'm a bit unclear what you mean by phases. I think the public and
private sectors could easily work concurrently in the removal of barriers. I
don't think the private sector has to wait until after the public sector to
begin barrier removal. I think they can go on at the same time. I would urge
the government of Ontario to provide a leading example to the private sector
and I would hope that the public sector would be ahead in the removal of
barriers to provide a good example to the private sector.

I would also say something that I did mean to include in my presentation about
enforcement and the method of enforcement. I think a legal entity needs to be
created by the bill. This legal entity should be able to operate at arm's
length from the government of the day and have adequate funding and resources
to ensure that the public and private sectors are following the recommendations
of this bill and that this legal entity has the power to penalize those
agencies that don't comply. That's something that's not in the bill and I think
it's very important that the bill does create this legal entity that has the
power and means to enforce the bill itself.

Failure of sound system.

Mr Spina: Thank you, Alan, and good parallel parking.

0940

Mr Ernie Parsons (Prince Edward-Hastings): I found this very informative and
you've obviously put a lot of time into it. I would like to follow up on the
question about phasing in. You're very clearly, I suspect, not saying that
you're prepared to wait five to 10 to 15 years to phase in access to a doctor
or to a hospital, or to a grocery store. Am I correct that what you're saying
is that the phase-in may apply to a coffee shop but not certain fundamental
services?

Mr Shain: Yes, I would agree with that statement. I think what was said before,
some kind of phase-in according to the costs of the accommodation, I would find
reasonable, but I would not find it reasonable that an accommodation procedure
that would cost $100 to do would take five years to do it. I wouldn't find that
acceptable. So, yes, certain types of accommodations do require more time and
planning and cost.

The Chair: You have one minute left, if you want to ask another question.

Mr Parsons: In your day, can you give me a rough breakdown about how much time
you're looking to access services from the public sector versus how much of
your day is spent interacting with the private sector?

Mr Shain: In my day, I currently am pursuing my master's degree in university,
so that's the public sector. I go to school on campus and need that to be
accessible. There are certain accommodations like automatic doors. Other
accommodations like access to washrooms I have to really search for. What do I
do when I need to go and the nearest bathroom is down a flight of stairs? I've
developed really good aim. That's not a problem any more. But it could be.

Services within university: I need support for note taking. That's much more of
a challenge. It takes me time and energy to find these adequate supports to
meet my needs. Within the private sector I rely on Para Transpo, which I guess
is kind of in between public and private in that it is a public service but run
by a private company. Again shopping and restaurants are -- the market here in
Ottawa is notorious for its infamous one-steps to get into 80% of stores,
restaurants and coffee shops, so I really have to spend a lot of my time
looking around to see where I can get in. If you think about that, there are
1.5 million Ontarians with disabilities. Multiply that by four family members
who wouldn't go into any restaurant that I couldn't go into. Multiply that
again by maybe 10 close friends who wouldn't go into any restaurant that I
can't get into. That's upwards of about 10 million people that the government
of Ontario is barring from restaurants, stores or whatever. Does that answer
your question?

Mr Parsons: That's very good. Thank you.

The Chair: On behalf of the committee, thank you very much for your
presentation, and don't lose your sense of humour.

Mr Shain: I'll try. Thank you.

MICHAEL BRADY

The Chair: Our next presentation this morning is from Michael Brady. I would
ask Mr Brady to please come forward and state your name for the record. On
behalf of the committee, welcome. You have 20 minutes for your presentation
this morning.

Mr Michael Brady: Good morning and welcome to Ottawa. My name is Michael Brady.
I'm a private citizen. For two and a half years I was a member of the
disabilities issues advisory committee of the city of Ottawa. That committee
has now been replaced by another one called the accessibility committee. I
thought it might be useful to spend some time just relating some of the
experiences of our committee, to give you an idea of how effective the
municipal advisory committees can be but what roadblocks they currently face
that hopefully would be eliminated by Bill 125.

DIAC, the Disabilities Issues Advisory Committee, I think can be looked at as a
model for municipal advisory committees. I say this because a lot of the
activities that we were engaged in touched many aspects of life in Ottawa, from
examination of the accessibility of hotels and restaurants, as Alan has alluded
to, to housing, transportation, accessible cabs, providing awareness to
councillors and city staff and presenting annual awards for some of the many
things we engaged in.

0950

Among the other things we undertook a couple of years back was to do something
on a proactive basis rather than reactive. We thought what we should be doing
was to try to remove barriers before they were being created. We thought that
if we started reviewing site plans and looking at them in some detail -- I
suspect that all of you who are familiar with municipal government have seen
site plans. As you know, a site plan has to be approved before the building
construction actually starts, so our committee undertook to start reviewing
site plans to determine how many handicapped parking spaces were provided,
whether there were depressed curb cuts, what the elevation was, whether ramps
were provided, whether elevators were provided etc. This proved rather
instructive for all of us.

One of the first things we found when we encountered a site plan for the St
Laurent Shopping Centre, one of the largest shopping centres in Ottawa, which
was proposed to be expanded to include an office tower and more shopping space,
was that the existing Ottawa city bylaw governing the number of disabled
parking spaces was woefully outdated. We found, for instance, that if you had
from zero to 99 parking spaces, you needed one handicapped spot, and if you had
400 to 499, you needed four. The bill stopped at that point and said that if
you had 500 spots or more, then you needed five spaces. The St Laurent Shopping
Centre has 4,100 parking spaces.

So the developer could easily have been in compliance with the bylaw by
providing five parking spaces. Instead, the parking requirements were far
exceeded. There were 120 spots. They were gathered around the different stores.
The developer was quite prepared to add more spots, because we suggested that
maybe 4% of the total number of spots would be a good benchmark that he could
use. But the developer said, "Listen, if I'm going to provide extra spaces, I
need some concessions as well. Since a handicapped parking spot is 50% bigger
than a regular spot, give me credit for that extra 50% in terms of my
requirement to meet the law. For X amount of retail floor space and office
space, you need X number of parking spaces. If I'm going to provide handicapped
parking spots, give me the 50% more." We said, "OK. That sounds reasonable." We
were prepared to do that, but amalgamation and other matters got in the way of
our making recommendations to the legal staff at city hall to prepare new
bylaws. They were in the process of harmonizing all the different municipal
entities' bylaws across Ottawa and were going to tackle it on a going-forward
basis.

The other question that comes to mind is, when looking at the question of
parking spaces, what is reasonable? What should be the criteria that govern how
many parking spaces? Ottawa at least has a bylaw. There are other
municipalities that don't have a bylaw that requires any handicapped parking
spots, we found. So what guideline do you use? We discovered that there were
something like 18,000 disabled parking permits, the blue parking permits that
folks have, in the former city of Ottawa. Is that a good benchmark?

These are some of the practical problems we ran up against. Hopefully, when
resolving these, we'll have a council that would be receptive and would take
this into consideration and enact new laws. Under Bill 125, if that power is
given to the advisory committee, certainly that would happen.

Among the other things we found when we were doing the audit of the site plan
at the St Laurent Shopping Centre was that on the east side we had The Bay
anchoring it and on the west side we had Sears. The Bay had all accessible
doors. They had washrooms that were user-friendly for all, disabled and
non-disabled. They had signage that showed where the elevators were, where the
escalators were etc. The Sears store did not have accessible doors. There were
45 parking spaces gathered around the west end of the mall. Disabled persons
getting out of their cars, going over to the door, would have to rely on an
able-bodied person to open the door for them. They couldn't get in the store.
So we talked to the developer and he said, "Sure, we'll do something about
that." They made a commitment when the site plan was approved that they would
install automatic doors. Well, six months later I went by St Laurent and the
door still hadn't been installed. I called and asked what the status was and
they said, "It's coming." It did come a couple of months later.

In the meantime I wrote a letter to Mr Walters, the chairman of Sears, and
asked them what their policy was with regard to accessible doors, pointing out
that their other store in Ottawa, Carlingwood, didn't have accessible doors
either. I asked him if he would make a commitment that his company would
install automatic doors in a reasonable time frame across the nation, actually.
Two months later I still hadn't had a reply, so I sent another letter. On
November 9 I had a letter from the vice-president of retail, indicating that
they found my letter interesting and they'd like to meet with us to talk about
disability issues, because this individual was a member of the Retail Council
of Canada. I guess the Eatons store opening and other matters prevailed on the
individual's time and she never did meet with us or call us.

I did get another letter in December, however, from the general manager, store
planning and visual merchandising, who indicated that the Sears Carlingwood
store, which required updating, would be addressed in the summer of 2001. I
went by Carlingwood the other day and the store hasn't been upgraded, but Sears
has at least installed two out of the five doors with automatic doors.

So the private sector is not incented at the moment to do anything unless
they're led to water, like a horse. They won't drink of it unless there's some
penalty. For a retail store of this size -- and they're not the only one; I
used the Bay example at St Laurent as one that's a model, but their Bayshore
store is awful. They have no accessible doors at the second level of their
Bayshore store. It's hit and miss, and the businesses will get around to it in
time, as they update their stores and modernize them. So there is a need for
some enforcement to be in the legislation and some timetable to be enacted.
It's not a big deal. An automatic door costs $10,000, so they told us at Sears,
but the architect was flabbergasted that it would cost that much and he said we
should all get into that business, because there's a lot of money to be made if
it costs $10,000 for a door.

Looking at it from a business standpoint as well, the Retail Council of Canada
could get together and say, "Listen, we're going to not have any advertising on
one weekend of the year, and the money we are going to save from that
advertising we're going to put toward accessibility." If they did that every
year, I'm sure we'd have accessible stores right across the nation in jig time.

We had another example that's illustrative too. Here's Cognos, a big company,
international, that makes terrific software. It's expanding in Ottawa and put
up a 10-storey building with a parking garage beside it in the south end of the
city. The site plan showed that all the parking spaces were outside, none
inside the garage. On a day like today you can imagine parking outside rather
than inside -- not that somebody couldn't park inside, but there's no way of
getting access to that garage. Because the developer had to satisfy the
concerns about the height of that parking garage, they recessed it and half of
the first level is below ground and half is above, so the second level is above
grade level as well. We asked the city council, when they were approving the
site plan for Cognos, to require that there be handicapped spots in the garage
and they agreed. That was a condition for the approval of the site plan.

A year and a half later we went by and did an audit and there were no
handicapped spots in the indoor garage. After asking the planning staff why
this was, I got no answer, but when I went by recently there were two spots.
The spots are between two pillars and they're wide enough, but they're pretty
awkward to get in. If someone in a wheelchair, like Alan, wanted to use that
parking spot, he'd get out of his van and he'd then have to proceed up the
entrance ramp against incoming traffic in order to get to ground level because
they didn't put in an elevator. The developers said they were going to put an
elevator in that garage; they didn't. So what are we going to do?

1000

Those are some examples from our history and they're illustrative of the fact
that private industry is not going to comply unless there are some regulations
and some penalties. Cognos is an international company. They're competing
against American companies that make the same software. American companies are
governed by the Americans with Disabilities Act. Our friends at Cognos are at a
competitive advantage over their friends because they're not installing
accessible facilities.

In summary, I think the ODA is a terrific framework for progress. The municipal
and provincial advisory committees can be mechanisms for change. As long as
they have the authority to make the change and make it happen, I think we're
going to see progress, and we can see it quickly. I think you can assume good
judgment on the part of the advisory committees if you give them the authority.
These are individuals who are taxpayers, they're employers, they're employees,
they realize the economic consequences of their actions, and I think you can
expect that they'll be prudent in their judgments.

That's all I have to say. I welcome any questions.

The Chair: Thank you very much. I'd like to correct an error I made. I told you
that you had 20 minutes, but apparently it's only 15. But I will still give you
the 20 minutes. That will give us a minute per caucus for questions. I'll start
with the government side.

Mr O'Toole: Thank you very much for a very active presentation. The examples
you gave of ways to engage the private sector, as you have -- I think working
with chambers, retail councils, is extremely important and there are ways,
certainly, for all the reasons that Alan and others have said. It's about
customers, it's about customer service, and there should not be barriers. I
think we all grow up as we are educated. I appreciate your thoughtful
suggestions and observations and I applaud that effort.

Mr Patten: Thank you, Mr Brady, for being here. I found your comments very
useful. My question, though, is in terms of this legislation. I don't really
see anything that strengthens the municipality's ability to enforce things. For
example, you said the approval for the Cognos tower was contingent upon
providing some handicapped parking spots, yet it wasn't done. What, then, are
the actions of the municipality? In other words, what can they enforce?

Mr Brady: I guess if they were given the power to levy fines for non-compliance
and if the fines were stiff enough based on the size of the construction etc,
the level of non-compliance, that would be one measure. You could say that all
retailers have to have automatic doors or whatever within two years, and if
they don't they're going to have a fine of $5,000 levied on them every year on
their municipal taxes.

Mr Martin: Thank you for coming this morning and for your input. You mentioned
a couple of things that I just want you to comment on. The advisory committees
will be effective, you say, if they have the authority, but you also mentioned
if they have a council that is receptive. If they don't have a council that's
receptive, then --

Mr Brady: In that instance, the recommendations will fall on deaf ears and
nothing will happen. The ODA committee in Toronto, headed by David Lepofsky --
I don't know if he has appeared before your committee as yet but he has
prepared quite a list of amendments that I wholeheartedly endorse. They provide
the authority of the advisory councils to not only make recommendations but to
have their recommendations become I guess the force of law, with the power, of
course, of the council to modify them, since they're the elected officials. But
let's assume we don't have any bylaw, for instance, that governs the number of
handicapped parking spots. A council shouldn't be allowed, for instance, to not
have a bylaw that requires handicapped parking spots to be provided. They can't
deny that, in my opinion. They could modify it and they could have different
scales based upon the size of their municipality, but they couldn't deny the
fact that there is a requirement for such. That is what I mean by saying that
the advisory council should have the authority, if they make a recommendation
that it could be modified, as long as it's such a reasonable recommendation
that it can't be denied.

The Chair: On behalf of the committee, thank you very much for your
presentation this morning.
CITY OF OTTAWA
ACCESSIBILITY ADVISORY COMMITTEE

The Chair: Our next presentation this morning is from the city of Ottawa
Accessibility Advisory Committee. I would ask the presenter to please come
forward and state your name for the record. On behalf of the committee,
welcome.

Mr Barry McMahon: My name is Barry McMahon. I'm the chair of the newly formed
Accessibility Advisory Committee of the city of Ottawa. I'm here today to
present comments gathered from the Accessibility Advisory Committee of the city
of Ottawa.

Who are we? The accessibility advisory committee is a group of 14 volunteers
appointed by city council for terms up to three years. We advise council and
city staff on issues related to persons with disabilities. The committee
officially meets two hours a month. In reality, the volunteers are called upon
to participate much more often, advising on a myriad of topics.

The advisory committee reports through a standing committee, which in turn acts
on our behalf to bring forth issues and motions to the attention of full
council. This mechanism is facilitated by having a councillor as a committee
non-voting member. This councillor acts as a guide and advocate through the
sometimes complex municipal political process.

Our mandate is straightforward yet vast. We represent the complete spectrum of
disabilities in every aspect of city life. Transportation, housing, tourism,
employment, recreation, health and safety are all of concern to the committee.
Every age group -- youth, seniors and all in between -- is considered.

Although the amalgamated city of Ottawa is new, there have been effective
disability advisory committees for the past 20 years. It has been over these
many years that the province has not given the municipalities much-needed
direction. We have been inundated with issues that are outside municipal and
fall under provincial jurisdiction.

Ottawa has no wheelchair-accessible taxis. Our buses have only just started to
be barrier-free in the last two years. Not a single housing development has
been constructed with barrier-free access. Many schools are off limits to
students, parents, teachers and employees with certain disabilities, and the
number of issues raised relating to the grossly inadequate Ontario building
code is staggering. Each and every time, we hit the proverbial provincial
logjam.

We are guardedly optimistic with the intent of the proposed legislation. We are
encouraged that there will be form, structure and content. We have never seen a
coordinated effort to make all people with disabilities feel that they are full
participants in this great province. In many ways the process will provoke
change. We see it being powerful, because for once, it directly involves the
people it is supposed to assist. It raises the requirement to include people
with disabilities in every aspect of city and provincial life.

Once enacted, this legislation will cause the creation of literally hundreds of
accessibility plans in every part of this province. By officially making these
issues part of a municipal public document, a whole new level of access
awareness will be created.

1010

The economic cost associated with keeping people with disabilities segregated
is enormous and will continue to grow. We're faced with high demand for special
care now; imagine the future needs if we don't act immediately.

On the other hand, providing a society that includes people with disabilities
directly benefits everyone. We can see the increased number of customers who
shop at barrier-free businesses. We see people with disabilities accompanied by
their spouses, children, friends, and often just out by themselves, shopping,
travelling -- 1.5 million potential consumers and taxpayers who have been
welcomed in some doors and yet turned away from many others. This legislation
is all about good business, so we encourage you to go the extra distance and
reap the financial benefits.

We ask you to make this ODA as strong as possible so that we here on the ground
can start working quickly to make every aspect of our city and our province
barrier-free. We ask you and, through you, we ask the Legislature to consider
amending certain sections of Bill 125 that will make our task easier.

Subsection 4(2), level of accessibility, should not be there. It permits the
guidelines to be as low as the standards of the Ontario building code. It's the
weakest link, the minimum that could be used. Even if the code is amended to
plug the holes, it has never been very helpful in preventing barriers in the
built environment. The building code has many limitations and addresses only a
narrow range of barriers. To accept it as a minimum standard beyond which the
guidelines need not go would effectively exclude the removal and prevention of
many significant barriers.

Section 11, duties of municipalities: section 11 should be amended to allow
that every municipality in Ontario be included in this act. Our tourism and
recreation Industry spreads out of Ottawa to small towns and villages. Many
beautiful towns like Perth are already doing their part in eliminating barriers
but will not benefit from the process established through this legislation.
Carleton Place is now in the process of establishing an accessibility advisory
committee, as I'm sure many other small areas are doing. Shouldn't they be part
of this vision? The goal is to create a barrier-free Ontario; therefore, the
act must apply to all parts of the province.

Subsection 11(2), the contents: there needs to be a clearer definition of what
constitutes a barrier-free plan, such as:

"(2) The barrier-free plan shall include the comprehensive identification of
barriers, together with a proposed schedule for their removal, and a
description of steps to be taken for the prevention of barriers to persons with
disabilities. The municipality's bylaws and its policies, programs, practices
and services, as well as the municipal government's workplaces, will be subject
to the plan. The plan will be brought to council for approval, together with
the annual budget. Council will also receive an annual report following each
barrier-free plan approved."

Our committee wonders what will be the consequences for municipalities that
refuse to comply. Who takes the heat? What will be the impact on the
committee's volunteer members? Are municipalities free to decide who within the
corporation will have the responsibility to produce the plan?

Subsection 12(1), accessibility advisory committees: We support the
establishment of advisory committees in communities of over 10,000 people. This
is a fundamental component of this act. It puts disability issues on the agenda
all over the province. It allows each municipality the freedom to focus on
their needs, to prioritize and to put a face to the issues. If anything is
brilliant about Bill 125, it is this: hundreds of barrier-free plans across the
province, each with hundreds of items to work on. If each annual plan is even
partially successful, the overall results will be considerable.

On the other hand, the success or failure of advisory committees lies solely in
the attributes and talents of its members. An effort to facilitate the work of
the committees needs to be made. We recommend training be developed for
appointees and councillors so that a level of consistency is maintained
throughout Ontario.

Municipalities of fewer than 10,000 people must either establish a barrier-free
advisory committee or hold public consultations which include people with
disabilities in these plans.

Subsection 12(2), duty of council: There are many instances where programs or
services are approved by council. Section 12(2) only addresses the built
facilities occupied by the municipality. This section needs amending to
encourage council to seek advice on any subject that would have impact on
people with disabilities. For example, Ottawa hosted the Games of the
Francophonie last year. Very little attention was paid to visitors or athletes
with disabilities. Council would have benefited by seeking and following the
advice of its advisory committee.

Section 12 should also be amended to include that all motions to council have
an impact statement as per established guidelines, in much the same way it now
has for the LACAC and environmental issues. This will ensure that city staff
and council are well advised on potential barriers to people with disabilities
and appropriate decisions can follow.

Council shall allow for the fact that the accessibility advisory committee is
volunteer-driven and cannot be used as free labour. An amendment should be
incorporated to define the relationship between the committee, staff and
council. The effectiveness of this legislation could otherwise be compromised.

When the advisory committee makes a recommendation to the municipal council,
the council shall respond to it within 14 days. If the council decides to
decline the advisory committee's advice in whole or in part, it shall provide
written reasons for its decision. Recommendations and reports from the advisory
committee and responses to these from the municipal council shall promptly be
made public. The municipal council shall fulfill all reasonable requests for
information by the advisory council within the mandate of the advisory
committee's work. Reasonable compensation, including reasonable expenses, shall
be provided by the municipal council for the members of the advisory committee.

Section 12 should also be amended to define the link between the municipal
advisory committee, the provincial council and the ministerial directorate.
Furthermore, the committee should benefit from the establishing of information
and communication links to other accessibility advisory committees throughout
Ontario.

Section 19, Accessibility Advisory Council of Ontario: An amendment to section
19 should be added to require the council to have an annual general meeting in
which a delegation from the municipal committees is to attend. The agenda shall
include the tabling of annual reports from the council and the committees.
Training and networking will also be included. The AGM would report to the
minister.

Section 20, Accessibility Directorate of Ontario: An amendment is required to
establish a linkage between the municipal advisory committees and the
directorate. The directorate should be established as primary contact and
facilitator for the resolution of problems that require cross-ministerial
involvement.

We sincerely thank the hearing committee for this opportunity to be involved in
this historic legislation. If you see fit to pass this legislation,
incorporating the suggested amendments, we will be well on our way to an
inclusive Ontario. I thank you very much for your attention.

The Chair: We have approximately two minutes per caucus, and I'll start with
the official opposition.
Mr Parsons: I appreciate your presentation. You've obviously put a great deal
of time into it. I don't know if you've been here from the very beginning, at 9
o'clock, but I have a question for you under "Duties of Municipalities." You're
referring to the tourism and recreation industry and how it's important that
this apply to all municipalities, regardless of size. In an earlier
presentation, the presenter used the example that they had gone to a
municipality that was under 10,000 and could not get into a hotel and could not
get into shops. So I'm wondering, to say it applies to every municipality, I'm
sensing you're saying that it should apply to the municipal components of each
municipality, but the earlier presenter said that for their quality of life
they needed access to private establishments, they needed a hotel room.

Mr McMahon: I'm here speaking only on behalf of the advisory committee of the
city of Ottawa and everything that falls under municipal jurisdiction. The
promotion of tourism and recreation, and that sort of thing, falls within
municipal jurisdiction. However, it really has no authority at this point in
time over the private sector.

The access to the support plan that is available for tourism is crucially
important for Ottawa, since we make our living in tourism. Also, all you have
to do is walk around the Byward Market, which is within the shadow of the
American embassy, and on the one hand you have the American embassy, which
falls within the Americans with Disabilities Act, and you've got the Byward
Market, which has no legislation whatsoever and can operate at its own free
will. What happens is that it reflects badly on Ottawa, reflects badly on our
economy, reflects badly on people who want to meet in Ottawa, on Americans who
want to come to Ottawa, because we don't have the same regulations they do.

Basically, to get back to your question, the act has to have either a
straightforward impact on the private sector or an implied impact on the
private sector. I think right now it is implied. It should be reinforced, I
think, for stronger rules and regulations for the private sector.

1020

Mr Martin: Thanks for coming today and for the work you've done, obviously, in
preparing. On the last page you speak about the need for links between
municipal advisory committees, the provincial councils and the ministerial
directorate. It seems to me that if we're going to have a plan that is
uniformly effective across the province, we need something a bit more
consistent. Mr Parsons mentioned the reality that communities with under 10,000
people -- there are a lot of them, particularly in northern Ontario, that don't
fall in the category that's covered by this legislation. If we're going to put
a provincial plan in place, it's obvious to me -- and this is the question --
that resources are going to be needed. If we're going to make places and things
accessible to people, where do you think those resources should come from?

Mr McMahon: In the smaller communities?

Mr Martin: Anywhere.

Mr McMahon: It could come from a number of sources. It could come from the tax
base. It could come from the private sector. If you have a building and you
want to rent it out to the municipal council, to the municipality, before you
get to the municipality you know already that there are limitations to the
physical aspect of the building that you can rent. In other words, you would
have to make sure it doesn't have a negative impact on people with disabilities
before you present that property to council.

It's going to be a multifaceted, multilayered approach. Right now we don't have
any provincial vision; we don't have any provincial statement of inclusion.
With this legislation I believe it will start, it will be there. So even though
there isn't right now a mechanism for funding this sort of renovation and
retrofitting of services and places, it will come eventually through public
pressure.

If the small municipality calls its citizens into a room and says, "We want to
build a new community centre," and if they consult with their constituents,
their citizens, and they say, "We've got to make it accessible for my Aunt
Martha, who's in a wheelchair," then it's going to happen. But it's not going
to happen unless you put it on the agenda. There's the old story: I've been in
many restaurants where I've had to go through the kitchen in order to get to
it. There's even a community centre here in Nepean where I have to go through
the kitchen to go to a wedding ceremony. If people with disabilities are
consulted at every level throughout the province, whether it be the small train
stop in northern Ontario or downtown Toronto, eventually changes will be made.
I think this legislation will force consultation with people with disabilities.

The Chair: I'll go to the government side.

Mr Spina: Thank you, Mr McMahon. You had some very concrete proposed amendments
either to the bill or that would be empowered in the regulations that could be
included there. We appreciate that input.

I had a question regarding enforcement. Alan Shain suggested that there be a
body that would have the power to enforce the laws or the bylaws that would be
created for accessibility. I guess this would apply more to the urban
communities. Do you think that a bylaw enforcement office could do that job?

Mr McMahon: Yes, I think a bylaw enforcement office would be -- there are a lot
of cross-jurisdiction problems with enforcement. But as Mr Brady was
mentioning, it really is up to local authorities, in many cases, to enforce
their bylaws. I'm not sure about an overall enforcement agency. I haven't
really thought it through, but I don't know whether it's that necessary. We've
got police, we've got fire chiefs, we've got local people who write traffic
tickets. There are lots of enforcement agencies. I'm not sure if a separate
body would need to be created as an overseer.

Once the mechanism is established at the ground level, at the city level, and
once the dialogue starts between the people with disabilities and the
decision-makers, then a lot of things fall into place. I'm not too sure about
the need for a strong enforcement agency. I think enforcement will come
progressively.

The Chair: On behalf of the committee, thank you very much for your
presentation this morning.

1030

ONTARIO BRAIN INJURY ASSOCIATION
HEAD INJURY ASSOCIATION
OF OTTAWA VALLEY

The Vice-Chair (Mr Doug Galt): Our next presentation is the Ottawa chapter of
the Ontario Brain Injury Association, Teresa Van Dongen. Thank you very much
for coming forward. On behalf of the committee, we look forward to your
presentation. To begin, please state your name for the sake of Hansard.

Ms Teresa Van Dongen: My name is Teresa Van Dongen. I am the president of the
board of directors of the Head Injury Association of Ottawa Valley. I'm here in
the capacity of representing both the Ontario Brain Injury Association and our
association here in Ottawa.

Mr Chair, members of the Legislature, ladies and gentlemen, it is an honour to
speak before the committee today on a subject that is very important to our
entire community. I am here representing over 18,000 Canadians, one third of
those in Ontario alone, who receive an acquired brain injury every year. I am a
member of the Ontario Brain Injury Association and the Head Injury Association
of Ottawa Valley, here in our community.

Here are a few facts about brain injury.

Acquired brain injury is the leading cause of death and disability in Ontario
for those under the age of 45.

A brain injury doesn't heal like a broken arm or leg; the results may last a
lifetime. If you consider the thousands injured each year, and you consider
even the last 20 years, you begin to get an idea of just how many people live
with these effects every day in Ontario.
Brain injury may be the result of a motor vehicle collision, the cause of
approximately half of all brain injuries; falls, particularly among the elderly
and toddlers; assaults; and diseases such as meningitis, brain tumours and
other illness-related injuries.

Brain injury does not distinguish itself by age, gender or socio-economic
status. It could happen to any of us here in this room, at work, on the playing
field and even as we drive home from this meeting.

Chances are that there is at least one person whom you work with, know or love
who has experienced the effects of this injury, and the effects are
devastating. No two brain injuries are exactly alike and may range from mild to
severe. Brain injury cuts across all disability groups. Because our brain
controls all of our functioning, people with brain injuries may have visual
impairments, hearing impairments, speech impairments or mobility difficulties
requiring the use of a wheelchair or walker.

The most difficult impairments for family members, friends and even employers
to understand, however, are the personality changes and the effects that make
it difficult to organize thoughts and remember things that once came easily.
These invisible changes present the most difficult challenges to the survivor
of acquired brain injury.

What is the Ontario Brain Injury Association? We were formed in 1986. Currently
we are linked, with 24 community groups across the province with memberships
totalling in the thousands, the Ottawa Valley chapter being one of those 24
community groups. Our 20-member board of directors is made up of survivors of
acquired brain injuries, family members, professionals, service providers and
business people from every part of the province.

Why are we here today? We're here because we are deeply concerned that all
Ontarians have the opportunity to participate as fully as possible in all
aspects of life in Ontario, and that's easily identified and understood. The
current ODA bill makes an attempt to address these types of participation in
the community. The same can be said of some barriers for those with sensory
impairment, such as vision and hearing, where it offers to address the issue of
government communications in alternative formats.

However, the barriers that are faced by people living with cognitive and
emotional impairments are much more difficult to identify and address. I speak
of attitudinal barriers that often exclude those living with these difficulties
and leave them isolated and open to ridicule and even abuse. We recognize that
it is impossible to legislate attitudes and values, but it is possible to have
an Ontario disability act that encompasses a comprehensive program of public
awareness and education that will move Ontario society toward understanding,
acceptance and accommodation of people with cognitive and emotional
impairments.

Let me illustrate some instances of these attitudinal barriers. After a recent
presentation about acquired brain injury to a Rotary Club in a small Ontario
town, one of the audience, a man about 50, approached the speaker and related
that the presentation had left him feeling very uncomfortable. He said that he
was one of four brothers, and one of his brothers had sustained a brain injury
about eight years earlier as a result of a motor vehicle collision. Prior to
the crash, these four brothers had worked and played together regularly.
Following the crash, the brother who had been injured was very withdrawn,
claiming he was just too tired. The other three brothers had seen this as a
lame excuse to avoid them and had in turn cut the injured brother out of all
aspects of their family life. He ended his story saying to the speaker that his
comments about fatigue being a common symptom of acquired brain injury made him
realize that they had unfairly isolated their injured brother. This kind of
misunderstanding of the effects of acquired brain injury are not uncommon, even
among family members and close friends, resulting in isolation and often
devastating the person with brain injury.

There are dozens of other instances of misunderstanding that impact daily on
the lives of people living with these effects. These misunderstandings
effectively limit the disabled person's participation in family life, community
activities and employment opportunities.

We recognize that there are no simple or quick solutions to removing these
attitudinal barriers. However, since they are barriers for thousands of
Ontarians, not only those living with the effects of acquired brain injuries,
but also those with developmental impairments and those who experience mental
illness, it is imperative that the government, through the Ontarians with
Disabilities Act, provide the will and the resources necessary to develop
effective public awareness and education.

In summary, the Ontarians with Disabilities Act does attempt to address
physical barriers faced by those with disabilities but it does fall short on
its goal to support the right of every person with a disability to live as
independently as possible, to enjoy equal opportunity and to participate fully
in every aspect of life in our province through the removal of existing
barriers.

We have not had enough time to fully analyze this bill and consider its
implicates, but after careful consideration we do recommend the following:

We feel strongly that the definition of "disability" include brain injury in
its descriptions; that explicit timelines be prescribed for the removal of
specific barriers; that the bill have an effective mechanism for enforcement;
that the role and authority of the advisory councils be defined and its reports
be made public and the disability community be heard; that the bill make
provisions for the allocation of resources to raise public awareness and
education of the issues faced by those with disabilities in order to further
foster a greater understanding and influence attitudes working toward the
reduction of attitudinal barriers.

A barrier-free community is a minimum goal to full participation of the
disabled in society. Through effective regulation and mandated co-operation
with private and pubic sectors, the Ontarians with Disabilities Act can help
deliver broad public awareness and understanding of cognitive and mental
disabilities and eliminate all other barriers for disabled persons in every
part of Canada's richest province.

The Ontario Brain Injury Association, along with many other similar disability
organizations, stands prepared to assist the government through the advisory
councils outlined in the ODA to develop the means necessary to remove
attitudinal barriers. We look forward to this challenge. The disabled of
Ontario are looking for leadership on this issue. Don't let them down.

The Vice-Chair: Thank you very much for your presentation and the thoughtful
recommendations. We have approximately three minutes left per caucus for
questions. We'll start with the NDP.

Mr Martin: Thank you very much for coming today and sharing those thoughts with
us and making the recommendations that you have there. They're fairly
consistent with what we've heard so far and certainly what we've heard this
morning: the need for timelines, the need for enforceability, and the need for
resources to support the enforceability.

Who at this point in time resources the Ontario Brain Injury Association in
terms of some of the education campaigns that you carry out?

Ms Van Dongen: One of the primary mandates of the Ontario Brain Injury
Association is to provide education to professionals working in the field.
Also, they have a rather extensive resource library of written information --
articles and so on -- and they provide a lot of education through presentations
in the community. It's the responsibility of each of the community associations
to provide education within their own community as well as what is provided
through the Ontario Brain Injury Association, and some of the funding for that
comes through the Trillium Foundation and initiatives that the different
associations have had from the Ontario Neurotrauma Foundation, as well. There
have been some initiatives, particularly in the school system, to provide
education. Pediatric brain injury is another issue and prevention is probably
the best medicine with regard to brain injury.

Mr Martin: You speak this morning of attitudinal barriers that people with
brain injuries run into on a consistent basis, and you talk about a
comprehensive education campaign. Your organization is providing, where there
is a structure in place, some of that. Could you elaborate more on what it is
that you think, with this piece of legislation, we should be doing to make sure
that attitudinal barriers are being dealt with and what we would do to provide
this comprehensive education campaign?

Ms Van Dongen: Including "brain injury" in the definition within the act would
be helpful because certainly it crosses over a lot of different other
disability groups, and I think that sometimes it's missed. Oftentimes brain
injury is described as the invisible disability because even though the person
may, after an injury, be physically doing quite well and able to return to a
lot of their previous activities, cognitively they're not able to participate
in the community as they did before. In terms of making sure there's a good
understanding of the fact that that needs to be reflected in this act, I think
that's really important.

We've looked to municipal government -- we've applied ourselves here in the
community to the city of Ottawa to try and get some funding as well, because I
think through the public health pot we hope to be able to provide some more
community awareness and probably look at prevention initiatives there. But
certainly I think including brain injury in the definition is something that
we've been working with the school boards, for example, to include in their
SEAC committees to make sure that brain injury is properly represented within
the definitions of special-needs students within the school system.

1040

Mr O'Toole: Thank you, Ms Van Dongen, for your presentation this morning. It
certainly did clarify very accurately the attitudinal barriers in this
particular area. As you've said, all of us know someone either directly or
indirectly. It does really come down to a couple of the points you raised about
education and awareness, and I commend the association for doing that
relentlessly. I participate in my riding in activities that are for that
purpose, to raise awareness and improve the understanding.

I'm just looking at the definitions in the bill. It isn't precisely stated in
there specifically, but is there something in that particular section 2 in the
definitions that -- it does talk about an injury or disability for which
benefits were claimed or received under a workplace injury, etc, so it's
implied, if not directly in the words "brain injury." Is there something in
strengthening that? I have no disagreement with you at all.

Ms Van Dongen: I think probably "implied" is one thing, because certainly if
you look at workplace injuries and that type of thing you could be dealing with
mostly physical injury and not necessarily cognitive impairment. I think it's
really important to include cognitive, neurological impairment that may result
from those types of injuries because that really speaks to the invisible
portion of the injury. A lot of times the physical aspect of the injury is more
obvious and the brain injury is missed. A person thinks, "There's a person who
uses a wheelchair," but that person is also somebody who has short-term memory
deficits, who has difficulty organizing their thoughts, who isn't able to
return to work because they don't have the organizational skills to be able to
do so and that sort of thing.

Mr O'Toole: I'd be happy to bring it forward if there's a clearer definition.
You said that no two outcomes are the same for victims of these situations and,
as you say, the treatment and/or consequences are different for each individual
case, so maybe that's -- in the definition of preciseness, you could be
exclusive. I'd be happy to receive anything that's more clear, given that it's
in itself difficult to define each degree of severity, etc. There are tests and
all those kinds of things --

Ms Van Dongen: Right.

Mr O'Toole: -- and we try to say, "This is disabled, this isn't," by some test.
But I'd be happy to hear that.

Ms Van Dongen: That's great. I will certainly speak with individuals at the
Ontario Brain Injury Association and we can come to consensus as a group on
those thoughts. Thank you.

Mr Dalton McGuinty (Ottawa South): Thank you very much for your presentation
and for being here today.

I'm particularly interested in your reference to the attitudinal element and I
would urge all of us here to consider what we might do in government to help
address that.

One of the elements of the bill, of course, that is very troubling is that it
imposes no positive obligations on the private sector.

Ms Van Dongen: Right.

Mr McGuinty: I'm wondering if you have any views with respect to that and what
role the private sector might be playing in terms of helping us ensure that
those suffering from the effects of brain injuries can, as you put it so
eloquently, participate as fully as possible in society.

Ms Van Dongen: I think probably a willingness, again, to have the information
and the education that's available. A lot of times, certainly for people
re-entering the workforce, somebody with a brain injury runs into a lot of
different barriers both publicly and privately in terms of wanting to make that
extra effort to understand and accommodate individuals. The public awareness
and the community awareness piece -- the willingness, I think, to let
individuals from different organizations who want to educate the community as a
whole about brain injury, and any disability group, for that matter -- I think
that's an important piece.

Mr McGuinty: I gather that the lack of a visible, kind of evident problem makes
this a real issue in terms of the challenge you've got to contend with.

Ms Van Dongen: Yes, because when you look at the percentage of people who have
a brain injury -- you can have permanent disability, but the implication isn't
necessarily that it's physical, or that if it's physical, it's obvious. People
have a tendency to respond, unfortunately, differently to visible, as opposed
to invisible, issues that a person may have. They may attribute the disability
to a person having a problem with anger management when in actual fact it's a
communication difficulty. Cognitively they can't understand you, and that's why
they're becoming frustrated with what you're trying to communicate to them.
Definitely, that invisible piece is something that a lot of our members are
challenged by.

The Vice-Chair: On behalf of the committee, thank you very much for coming
forward. We appreciate your recommendations.

RICHARD TH6BERGE

The Vice-Chair: The next delegation is the Ottawa-Carleton Independent Living
Centre. Richard Th1berge, come forward.

On behalf of the committee, welcome. Please, for the sake of Hansard, state
your name as you begin.

Mr Richard Th1berge: It is quite fitting that the next speaker after the one we
just had is a victim of brain injury. Indeed, 30 years ago on October 29, when
I was just a nine-year-old lawyer, the youngest lawyer ever, I had a brain
injury as a result of an accident. I would ask for your tolerance. If you noted
the one thing that she said about brain injury victims, they have some
difficulty with their thoughts and all that. Also, I would like to add that the
best way to deal with brain injury victims, of which I'm one -- they're very
temperamental -- is that you have to do whatever they recommend; otherwise they
go into a fit.

Laughter.

The Vice-Chair: Thanks for the warning.

Mr Th1berge: I first wish to express to this committee my deep appreciation for
this opportunity to indicate, in a constructive spirit both my criticisms and
hopes regarding the long-awaited legislation.

Second, I need to make it absolutely clear to the committee that the views I
will be presenting here today are mine exclusively and are not endorsed by the
OCILC.

When the chairman of Ottawa's accessibility committee, whom you heard this
morning, asked us at our last meeting, on November 21, whether any one of us
would be making a presentation today, I indicated that I would. For the sake of
expediency, the chairman indicated that I would be representing the
Ottawa-Carleton Independent Living Centre, OCILC, because he knows that I am
involved, both as a member of the board and as a frequent volunteer with this
organization. It must be made clear, however, that while the OCILC is engaged
from time to time in an individual advocacy role on behalf of individual
clients, it is not an organization engaged in collective advocacy, as such.
Therefore -- I believe I have cut myself of five minutes -- I do not represent
an organization.

Having said that, as a jurist who has pursued post-graduate studies in law, I
have always had a keen interest in administrative law, which deals with the
legal limitations on the actions of government officials.

1050

As I was going through the Hansard records of the first days of debate
regarding the ODA, I observed several instances where, in response to
criticisms that as initially drafted the ODA is unenforceable against either
private or public sector organizations, there was a tendency on the
government's part to rely on the regulations to provide, in due course,
appropriate enforcement mechanisms. I thought it important and appropriate
therefore to examine whether the validity of such eventual regulations could be
easily challenged by some smart-ass lawyer on the grounds that they exceeded
the jurisdiction of the Legislative Assembly. I needed to analyze as a jurist
from the precepts of administrative law whether in some respects the delegation
of authority by the Legislature amounted in any way to an abdication by the
Legislative Assembly of its prerogative to provide substantive rights.

In general, a legislation provides the substance of rights while the
regulations provide the procedural aspects of such rights, including the form,
the timing and the manner of their exercise.

In recent days therefore I spent some time analyzing objectively how section 22
of the proposed legislation satisfied the principles of administrative law
recognized in common law jurisdictions. To test the validity of the regulation,
administrative law has three criteria, or three tests: (1) whether the
delegation exceeded the jurisdiction of the delegating Legislative Assembly;
(2) whether it had the ability to delegate; and (3) whether the delegation
amounted to an abdication.
It's dull, I know, but we have to go through it.

One, the jurisdiction of the Ontario Legislature: even if it may seem obvious,
the first step in determining the validity of any eventual regulation under the
ODA is whether the parent legislation under whose authority any eventual
regulation would be prescribed is constitutional.

We can affirm unequivocally that the proposed Ontarians with Disabilities Act
relating to the identification, removal and prevention of barriers to
accessibility is a subject matter relating to property and civil rights which
falls within the ambit of what the Constitution Act of 1867, as modified in
1982, considers a matter of exclusive provincial jurisdiction.

Ability to delegate, the second point: In Canadian constitutional law, it is
generally accepted that, subject to constitutional constraints, both the
federal Parliament and the provincial Legislature are supreme or sovereign
within their respective legislative sphere of competence. This means, among
other things, that the legal maxim "Delegatus non potest delegare" does not
apply to limit the ability of a provincial Legislature to delegate its
legislative powers to members of the executive government or, for that matter,
to anyone else if it so chooses. The right of a provincial Legislature to
validly delegate matters falling within the sphere of its legislative
competence was upheld by the privy council long ago when very few of us were
born, in the case of Hodge v Regina in 1883.

Third, delegation, not abdication: It is extremely difficult to draw the line
between proper delegation and improper abdication of legislative powers, and
courts lean heavily in favour of the former. Instances of delegation being held
by the courts to constitute impermissible abdication are extremely rare; in
fact, I could not find any. However, the general lack of success in applying
the abdication principle to strike down does not detract from the importance of
having some idea as to what matters must be dealt with by the legislators
themselves and what matters must be delegated to others. Indeed, there is
considerable concern currently in Canada and elsewhere about the volume and the
breadth of delegated powers which have been authorized by all legislative
bodies.

In short, in Canada it is generally accepted as a principle -- and this is
again derived from the Hodge case over a century ago -- that, short of a
permanent or near-permanent divestment of the legislative body's power to make
laws and to supervise the exercise of delegated functions, even very broad
delegations are lawful. In other words, the Legislature may delegate, but as
long as it retains some power to take back the powers, the delegation of
authority will be found lawful.

Now we get to the crux of the matter, proposed section 22 of the ODA. Applying
these three criteria to proposed section 22 of the ODA, one could easily
conclude that the validity of any eventual regulation made by the Ontario
cabinet or Lieutenant Governor in Council would be undisputable. As such, we
find it highly unlikely that any delegated legislation, as regulations are
sometimes referred to in the world of academia, would be found ultra vires, or
invalid, on the grounds that (1) the ODA clearly falls under provincial
jurisdiction; (2) the Legislative Assembly of Ontario has the ability to
delegate; and (3) despite this delegation being very broad, it does not
constitute an abdication by the Legislative Assembly of its prerogative.
Rather, section 22 is to be regarded as translating the government's intention
to have the accessibility rules designed largely by the disability community,
as opposed to having them largely determined by the Legislative Assembly.

One of the corollaries to be derived from the government's commitment according
to the literature of its program Independence and Opportunity, unveiled on
November 1 by Minister Cam Jackson, is to put the disability community in the
"driver's seat." In this connection, I would also like to remind the committee
that the Legislature unanimously approved a couple of years ago that the ODA
would include 11 principles, including principle 7 requiring that, "As part of
its enforcement process, the ODA should provide for a process of
regulation-making that ... include a requirement that input be obtained from
affected groups such as persons with disabilities before such regulations are
enacted."

As presently drafted, section 22 of the ODA doesn't cut it. There is no
requirement to involve the disability community in the drafting of the
regulations or simply in receiving its input.

I have brought with me other suggestions for amending section 22 and explaining
the rationale of each proposed amendment. With the committee's permission, I
respectfully submit these proposed amendments to their attention.

I had the pleasure of meeting Mr Jackson when he came to meet the city's new
advisory committee on October 22. Following this meeting, I met with Mr Jackson
privately and discussed, for perhaps 15 minutes while I was waiting for Para
Transpo, the impending ODA. I told Mr Jackson how excited I was about the
future legislation and that I truly sensed and appreciated a genuine commitment
on his part to do what is just and to really contribute to improving the life
of disabled persons in Ontario.

On November 7, after I had read the proposed ODA but before I had had a chance
to examine it in detail or discuss with anyone its contents, I wrote to Mr
Jackson a letter congratulating him for what had the potential of turning into
exciting, trail-blazing legislation.

Gentlemen and ladies, this proposed legislation places the disability community
in a difficult conundrum. In the absence of any current legislation designed to
remove barriers to accessibility, many members of our community worry that by
asking for too many changes to Bill 125, we run the risk of seeing it withdrawn
and, in so doing, with the impending campaign to replace the retiring Premier
and the elections to come in due course after that, we risk seeing an
opportunity like the present one put off again for several years. On the other
hand, there are those in the community who want to seize this unique
opportunity to really improve life in Ontario for the disabled and who argue
that, having gone this far, the government would not dare withdraw this
legislation.

Ladies and gentlemen, the stakes for the disability community have never been
this high. With the time allocation which has been approved by the Legislature
to dispose of Bill 125, it is obvious that a lot has to be done between now and
December 12. But I am confident that you will find the courage to do whatever
is necessary to bring this to fruition because it is just, because it is right
and because it is imperative.

1100

The Chair: Merci, monsieur Th1berge. We have approximately two minutes per
caucus. I'll start with the government side.

Mr O'Toole: Thank you, Mr Th1berge. I appreciate your presentation and your
thoughtful review from the perspective of a trained lawyer, which I'm not.

Mr Th1berge: It sounded scientific, eh? We don't get many chances, as lawyers,
to sound scientific.

Mr O'Toole: Just looking at some of the background paper, I'd put on the record
that the independent living approach recognizes the rights of citizens with
disabilities to take control of their lives by examining choices, making
decisions and even taking risks. I think that's an extremely progressive
attitude toward getting on with life and just needing accessibility addressed.

I want to ask a specific question. You questioned the regulations section,
which is section 22, and there are a number of subsections in it. I'm not, as I
said, a lawyer, but in my reading it's very broad. It gives the LG the power to
make regulations in a specific, broad range of inclusions and exclusions. But
in subsection 22(6), "Adoption of codes," it does say, "If the Lieutenant
Governor in Council is satisfied that, at the request of the minister, the
Accessibility Directorate of Ontario has consulted with the persons and
organizations that the minister directs" -- so in other words, it implies to me
that there is consultation in the making of regulations, which is something you
said maybe wasn't strong enough in that regulations section.

Mr Th1berge: I would hope so. My understanding of the concept behind the
accessibility council which would advise the minister would be to assist him,
initially at least, at first, to advise him as to what regulations need to be
made in order to make this legislation e