by Laverne Jacobs, Associate Professor, Windsor Law.
Read my latest article, published in Revue Internationale des Gouvernements Ouverts, (2016), p. 79-106. Presented in Paris, France at L’Institut de Recherche Juridique de la Sorbonne, Université Paris 1 Panthéon Sorbonne, March 8, 2016.
Full text available here:
Here is an excerpt:
Consultation is becoming increasingly popular among the federal and provincial/territorial governments in Canada. This paper examines one of the most recent and most widespread cases of consultation to occur in the development of lawmaking in Canada: citizen participation in the enactment of accessibility standards for persons with disabilities. The first attempt at legislation designed to enable this form of participatory governance came about in Ontario with the Ontarians with Disabilities Act, 2001 (ODA). Systematic discontent and a grassroots movement by the disability community eventually pushed for the development of legislation with more enforcement potential –namely, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Both statutes, but especially the AODA, show a radical shift in the process of developing laws in terms of incorporating citizen participation. Under the AODA, regulations are created by the responsible Minister, after the content of those regulations have been agreed upon and put forward by committees comprised of persons with disabilities, industry, government and other affected stakeholders. The legislation therefore adds a new dynamic to the creation of regulations in Canada. The degree of citizen participation is much more extensive, more formal, and lengthier than what is typically used for the development of regulations. More importantly, the new form of consultation process seeks to bring together opposing views in a deliberative democratic battleground with the reality of regulations built on consensus or compromise. In addition to the two Ontario statutes mentioned above, the ODA and the AODA, accessible standards legislation has now also been enacted in the province of Manitoba.
The move to this consultation model was prompted by dissatisfaction in the existing approach to remedying disability discrimination…. Prior to the enactment of the ODA and the AODA, persons who suffered disability discrimination had, as their only source of redress, the option of filing a complaint before an administrative body or the court. With respect to administrative bodies, a collection of human rights commissions and tribunals exists in every province and territory and at the federal level. The aim of these statutory administrative bodies is to achieve remedial and transformative change in society by remedying disputes in which discrimination has been alleged. Statutory human rights bodies fit within a swath of administrative actors in Canada and elsewhere that can be described as reactive regulatory bodies. I use the term reactive regulation to represent the idea that regulation by these administrative actors is triggered only in response to a complaint by an aggrieved party. These bodies are not inquisitorial or investigative. They do not rely on the initiative of the administrative actor to initiate a search for wrongs and to remedy them. More importantly, they are also not forward-looking beyond the parties in the dispute. …
In addition to the limited scope of the remedy, members of the disability community were also concerned about the costs of bringing forward complaints over disability discrimination within the reactive regulatory human rights system. In many instances, human rights statutes may not allow for the complainants to be awarded the costs of their litigation. Moreover, persons with disabilities often represent a large proportion of society that lives below the poverty line. … Persons with disabilities therefore sought a new method through which the eradication of disability discrimination and the concomitant goal of social transformation could be achieved. In contrast to the complaint-triggered human rights system, regulations setting standards of accessibility were seen as a desirable complementary tool to assist in lowering instances of disability discrimination and developing a society more inclusive of persons with disabilities. I use the term proactive regulation to describe this approach as it aims to break down discriminatory barriers before it becomes necessary for individuals to suffer discrimination. In this way, the proactive regulatory system should skirt the need for at least a portion of disability discrimination claims to be brought to human rights agencies and the courts.
In Part II of the paper, I present a detailed and comparative description of the statutes in Canada providing for citizen participation in the development of disability access standards. In Part III, I set out Sunstein’s framework of analysis for humanizing the regulatory state. I then apply the analysis to demonstrate 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. …
Lastly, using empirical examples primarily drawn from Manitoba’s consultations during the development of its Customer Service Standard, I argue that any unclear aspects of the legislation can and should be clarified through further consultative dialogue rather than analysis based on monetary valuation.[…]
 Canada’s 2007 Cabinet Directive on Streamlining Regulation (available online at: http://publications.gc.ca/collections/Collection/BT22-110-2007E.pdf), specifies that federal regulations will be made in an inclusive and transparent manner and that all departments and agencies are responsible for ensuring that there are “open, meaningful, and balanced consultations at all stages of the regulatory process”. The federal government currently runs a consultation website where the public can view which consultations are taking place: http://www1.canada.ca/consultingcanadians/. Some provinces run similar websites. See, for example, the province of Ontario’s Consultations Directory website: https://www.ontario.ca/page/consultations-directory .
 S.O. 2001, CHAPTER 32.