Jacobs, Laverne "'Humanizing’ Disability Law: Citizen Participation in the Development of Accessibility Regulations in Canada," Revue Internationale des Gouvernements Ouverts, (2016), p. 93-120.
Windsor Law Faculty Author: Laverne Jacobs
Ontario is attempting a new politico-legal experiment to combat disability discrimination. Through consultation processes leading to binding regulations, it is enacting mandatory standards of accessibility under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). The AODA creates an antidiscrimination regulatory process designed to offer participatory rights to persons with disabilities and other interested stakeholders in the development of accessibility standards. The standards address social areas such as customer service, employment, and information and communication, and aim to break down a host of barriers including architectural and attitudinal ones. Collaborative standard development is a new and proactive approach to addressing disability barriers in society.
Consultation with citizens to create accessibility standards is a trend that is now being picked up by other provincial governments across Canada and which is currently garnering interest in other countries. But, how well does it work? Using the theoretical framework created by Cass Sunstein in his most recent work, Valuing Life: Humanizing the Regulatory State, this paper argues that the Canadian regulatory legislation and consultative processes succeed, to varying degrees, in: i) capturing qualitatively diverse goods and promoting sensible trade-offs among them, ii) taking account of values that are difficult or impossible to quantify, and iii) attempting to benefit from the dispersed information of a wide variety of human beings. At the same time, however, unlike Sunstein this paper argues for an approach to humanizing the regulatory process that does not necessarily depend on monetary valuation. Instead, in order to foster disciplinary analysis instead of intuition, further dialogue on points that need clarification is more appropriate and respectful in the context of regulating for the equality rights of persons with disabilities. This evaluation of Canadian regulation is offered in an attempt to fill a gap in the literature relating to how consultation processes of accessibility standards might be evaluated for their effectiveness.