Disabled Pedestrians, Micromobility, and Furthering Disability Equality Law through Consultation: A Case Study of the Toronto E-Scooter Ban

Abstract

This article documents and explores the history of the e-scooter ban in Toronto, Ontario, Canada as a pathway to examining broader issues concerning the eradication of accessibility barriers in public spaces for pedestrians with disabilities and respectful uses of consultation to develop disability-inclusive regulations. The use of e-scooters poses a particular dilemma to accessibility for persons with disabilities. On the one hand, the concept of disability contemplates attitudinal and environmental barriers, as noted, for example, in the Preamble of the United Nations (UN) Convention on the Rights of Persons with Disabilities (CRPD). Attitudinal and environmental barriers have traditionally stemmed from interests that are inherently opposed to the collective interests of disabled persons. Examples include attitudes that project stigma against persons with disabilities or a focus on seeking to preserve historical features of the built environment for their aesthetics, without consideration for their accessibility or functionality for disabled persons. They have also generally originated in periods of historical marginalization or exclusion of persons with disabilities. By contrast, e-scooter debates and connected debates regarding the regulation of micromobility vehicles, contain at least one dimension that could very well be shared with persons with disabilities—that is, the preservation of the environment. E-scooters are also a phenomenon of contemporary disability exclusion: policies concerning environmental sustainability, including those promoting e-scooters, are being developed contemporaneously with growing international and national legal recognition of disability rights. These factors render arguments over appropriate regulation of the use of public spaces more complex as, within those arguments, one sees two competing positive policy directions that need to be addressed: the rights of pedestrians with disabilities and environmental sustainability. This article concludes with theoretical and practical suggestions for strengthening regulatory policymaking to address these and other complex intersectional issues of accessibility policy design.

1. Introduction

As a city grows, so too does the traffic. With it comes congestion, pollution, transportation costs, and consequently, a search for alternative means to get from point A to point B. This phenomenon has occurred in the growing population and infrastructure of many cities in Ontario, Canada. In response, the Province of Ontario has looked to micromobility—vehicles similar in size to bicycles and with low-speed thresholds—to reduce the use and impact of motor vehicles. To further this effort, the Ministry of Transportation Ontario (MTO) posted a proposal for a dockless e-scooter (electric kick scooter) pilot program across the province (Ontario n.d.; Transportation Services 2023). Building on pre-existing bike-sharing programs, other countries and cities have already seen the practical implementation of e-scooters, resulting in immense revenues for firms in the e-scooter industry. To make use of these e-scooters, individuals locate the vehicle, unlock it via a smartphone application, drive it to their destination, and then park it accordingly, where the vehicle then awaits the next user (Watson 2020).

The use of e-scooters poses a particular dilemma to accessibility for persons with disabilities. On the one hand, the concept of disability contemplates barriers emanating from different sources. These include attitudinal and environmental barriers, as noted, for example, in the Preamble of the United Nations (UN) Convention on the Rights of Persons with Disabilities1 (CRPD). Attitudinal and environmental barriers have traditionally stemmed from interests that are inherently opposed to the collective interests of disabled persons. Examples include attitudes that project stigma against persons with disabilities or a focus on seeking to preserve historical features of the built environment for their aesthetics, without consideration for their accessibility or functionality for disabled persons. Attitudinal and environmental barriers have also generally originated in periods of historical marginalization or exclusion of persons with disabilities. By contrast, e-scooter debates and connected debates regarding the regulation of micromobility vehicles contain at least one dimension that could very well be shared with persons with disabilities—that is, the preservation of the environment. E-scooters are also a phenomenon of contemporary disability exclusion. In other words, policies concerning environmental sustainability including those promoting e-scooters are being developed contemporaneously with growing international and national legal recognition of disability rights. These factors render the arguments over appropriate regulation of the use of public spaces more complex as, within those arguments, one sees two competing positive policy directions that need to be addressed: the rights of pedestrians with disabilities and environmental sustainability. In this article, we document and explore the history of the e-scooter ban in Toronto, Ontario, Canada as a pathway to examining broader issues relating to the eradication of accessibility barriers in public spaces and respectful uses of consultation to develop disability-inclusive regulation.

2. History of the E-Scooter Ban in Toronto, Canada

While other cities in Ontario have embraced the e-scooter pilot, the Toronto City Council voted in 2021 to prohibit e-scooters “on public streets, bike lanes, sidewalks, pathways, trails and other public spaces” (City of Toronto 2021; Get Involved London Canada n.d.). With their high speeds, low noise, and ability to be parked anywhere, the Toronto City Council concluded that e-scooters pose a disproportionate risk to seniors and persons with disabilities (City of Toronto 2021; AODA Alliance 2023b). This risk is exacerbated by the less-than-onerous requirements necessary to ride an e-scooter. In Ontario, the provincial pilot places the responsibility on municipalities to decide where and how e-scooters can be used (see Ontario n.d.),2 with the Highway Traffic Act as the legislative framework.3 As a result, through a regulation enacted under the Highway Traffic Act, the pilot project sets out the foundational design aspects of an e-scooter such as the maximum weight (45 kg) and speed (24 km/h).4 It also establishes some fundamental rules relating to the equipment and safe operation of e-scooters as well as accident reporting.5 However, the very nature of ride-share programs means that it can be difficult for a regulation to protect individuals from harm effectively. Because an e-scooter can be driven, parked, or moved anywhere and by anyone regardless of what the regulation or municipalities specify, it produces a hazard for pedestrians that is unlikely to be traced back to the source. Moreover, the regulation provides porous rules—such as those stating that the operator of an e-scooter must be at least 16 years old but is not required to possess a licence or training. With so little limiting the use of an e-scooter, there is potential for significant harm.

The possibility of e-scooters becoming ubiquitous within Toronto remains an ongoing issue, despite the successful vote to ban them in 2021. The issue is pressing, as even with the ban in effect, e-scooters continue to be used throughout Toronto (AODA Alliance 2021). The growing momentum for e-scooters in Toronto can be gleaned from at least three perspectives. First, the NGO, Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance) has noted that many e-scooters are ridden illegally, with drivers forgoing regulatory guidelines to drive on streets, sidewalks, and public paths and in the absence of punitive measures by law enforcement (ibid., s. 2). In addition, in 2020, the AODA Alliance produced a report, based on its study of the Toronto Lobbyist Registry, which shows that in the course of two years, eight e-scooter companies and three corporate firms lobbying on behalf of e-scooter companies had over 1300 contacts with City Hall council members and staff. This contact included 112 meetings with city officials and 1153 emails. The AODA Alliance (2020) argues that these e-scooter companies and corporate lobbyists are pressuring the city to remove the ban on e-scooters, despite the documented dangers. Lastly, the City of Toronto is an outlier: Ottawa, Hamilton, Windsor, York Region, Brampton, Mississauga, and Waterloo Region are all major Ontario municipalities that have allowed e-scooters despite the associated harms (Get Involved London Canada n.d.). Some municipalities, like the City of Ottawa (2021a), have implemented a second pilot project for e-scooters even after improper use, limited safeguards, and accessibility barriers were cited as concerns in the City Council report on the initial pilot. To address concerns about use and enforcement, the City of Ottawa (2021b) and e-scooter rental companies have considered ideas to reduce the risks that e-scooters pose to persons with disabilities such as an acoustic vehicle alerting system which would emit a constant sound to alert pedestrians of approaching e-scooters and identification labels in Braille. However, concerns have been raised by disability groups that these proposed solutions are not necessarily effective or practical (AODA Alliance 2021).

More recently, a 2024 report from a consultation on micromobility conducted by the City of Toronto (2024) showed that many proponents of e-scooters relate micromobility to improved climate and environmental sustainability. Micromobility vehicles were seen to decrease the congestion and emissions that come with traditional forms of transportation. The shift to new forms of micromobility such as e-scooters would therefore provide “beneficial environmental outcomes and align with the city’s climate goals” (ibid., p. 9). Finally, a significant group of consultation participants expressed interest in examining the equity, diversity, and inclusion impacts of regulating micromobility. Proponents of a micromobility strategy in Toronto noted that micromobility vehicles are cheaper to operate than traditional automobiles and that many members of equity-seeking communities rely on micromobility vehicles, including for work purposes as part of the gig economy (ibid., pp. 8, 11). Participants in the consultation, therefore, encouraged the City of Toronto to use equity, diversity, and inclusion measures in developing its strategy on micromobility “in order to ensure fair outcomes for all residents” (ibid., p. 9). In the next section, we take a closer look at the risks to disabled users of public spaces as it helps to further illustrate the need for intersectional and respectful consultation with persons with disabilities in developing micromobility strategies.

3. E-Scooter Risks that Disproportionately Affect Persons with Disabilities in Public Spaces

E-scooter risks generally relate to personal safety, accessibility, and a lack of regulatory enforcement. These issues are often also intertwined. There is considerable evidence from other jurisdictions that speaks to the personal safety-related dangers associated with e-scooter use. In Calgary, there were 700 emergency-room and urgent-care visits due to injuries sustained from e-scooter use in the first year of the city’s pilot program (Carpenter 2020). Despite regulations, the common issue among these injuries was the speed at which the e-scooter travelled (ibid.). Furthermore, a 2019 study by the University of California, Los Angeles, showed that over 8% of those injured by e-scooters were pedestrians, whether as a result of being hit by a rider, tripping over a parked e-scooter, or attempting to move an out-of-use e-scooter (Transportation Services 2020). Although 8% may sound small, this number comprises only the reported incidents. The media has reported (Lau 2020) that 80% of e-scooter users in Montreal parked illegally in 2020 which heightened accessibility issues and the risk of pedestrian injury. Overall, the risks that e-scooters present to persons with disabilities are clear, whether they arise from improper use or limited regulation.

Focusing on the accessibility issues that e-scooters cause for persons with disabilities, the AODA Alliance has urged the Toronto City Council to keep the ban on e-scooters in place. They argue that e-scooters pose a risk to persons with disabilities in a variety of ways, including from in-use and parked e-scooters being dangerous for persons with visual impairments and improperly parked e-scooters limiting access to sidewalks (especially for persons using wheelchairs or other mobility devices), as well as concerns about the lack of noise to alert pedestrians that they are approaching (AODA Alliance 2021). The Toronto Accessibility Advisory Committee (2021) corroborated these arguments, stating that e-scooters create additional barriers for persons with disabilities and elderly persons and that e-scooter use is poorly overseen by law enforcement entities due to a lack of resources.

With the only restriction on the use of an e-scooter being age, there is nothing to ensure that individuals will adhere to the guidelines for safe operation or to the general rules of operation under sections 7 and 8 of the regulation (Ontario n.d.). Unlike motor vehicles which require technical knowledge and practical demonstrations before obtaining a licence, the regulation for e-scooters applies only so far as it can be enforced. With e-scooters primarily being rentals intended to be accessed from and left anywhere, liability would require oversight that is practically omniscient to be caught as it occurs (AODA Alliance 2021). Consider an incident where an e-scooter rider collides with a person who was unable to see, hear, and/or move out of the way of the vehicle before impact. Instead of reducing barriers, e-scooter use risks placing persons with disabilities in situations where they become vulnerable.

The regulatory specifications for e-scooters are skeletal (AODA Alliance 2023b). Aside from the size, weight, power, and speed, the Ontario e-scooter pilot regulation simply requires the vehicle to have a light and bell or horn.6 Moreover, the implementation of these safety specifications has not been fully considered in light of the ways in which a single safety feature such as the noise from a bell may have differing impacts on the diverse community of disabled pedestrians. For example, in Ottawa, a proposal has been made that e-scooters be equipped with a beeping sound to alert persons with disabilities of an approaching e-scooter. However, the proposal for a beeping alert fell short due to noise from other sources drowning it out (AODA Alliance 2021). By contrast, in the US, Milwaukee requires that e-scooters not make continuous sounds when in use, as this can cause issues for pedestrians with visual impairments (Arkilander 2021, p. 42). The example of e-scooter noise alerts flags the importance of finding ways to bring forward the multifaceted considerations relating to persons with disabilities and to find solutions satisfactory to disabled persons across the spectrum of human variation, and with differing needs.

Another risk that disproportionately affects persons with disabilities is the parking of e-scooters on sidewalks. While section 8(7) of the regulation specifies that e-scooters are not to be left in any location where pedestrians will pass, the regulation has proved insufficient to prevent this from happening in practice.7 E-scooter companies have proposed geo-fencing as a solution. Geo-fencing is a form of GPS tracking. However, current GPS technology is imprecise and unable to differentiate whether a person is parked on the road or on a pedestrian sidewalk immediately next to it (See TechTarget n.d. on the definition of geo-fencing; AODA Alliance 2021.). Furthermore, similar to noise alerts, the ways in which improper parking impacts persons with disabilities are varied. The AODA Alliance has aptly focused on how the vehicles will constitute a tripping hazard for persons with visual impairments (ibid.). But, improperly parked e-scooters also create accessibility barriers by limiting the area in which pedestrians can maneuver. For individuals using canes, wheelchairs, or other mobility devices, improperly parked e-scooters can deny equal access to sidewalks, pathways or other public spaces altogether. Accordingly, requiring assistance to remove e-scooters for safe passage can also deepen feelings of exclusion for persons with disabilities (AODA Alliance 2023a). These concerns have been voiced in other jurisdictions with e-scooter pilots but have not been pursued (Malina 2021).

Stakeholder feedback in 2021 spoke to several problems with regulatory law enforcement for e-scooters, including the lack of police resources to: enforce regulations and municipal by-laws, prevent the possibility of ‘hit and runs’ and, as previously mentioned, identify noncompliant riders (Transportation Services 2021, p. 4). Due to the disproportionate impact e-scooters have on persons with disabilities, insufficient enforcement mechanisms magnify pre-existing issues. Little has been suggested by e-scooter companies to remedy these issues effectively. For example, Neuron Mobility included braille identifiers for persons with visual impairments to identify and report improperly parked scooters (Malina 2021). However, this is a reactionary measure, as persons with disabilities would have had to have already experienced an e-scooter issue before being able to report it. Similarly, rather than search for effective measures to address e-scooter concerns specific to persons with disabilities, Toronto’s Transportation Services consolidated these concerns into a generic and broad oversight program (Lo 2020).

The issues that disproportionately affect persons with disabilities in relation to e-scooters bring to light the need to include persons with disabilities in the development of regulatory frameworks.

4. Furthering Disability Equality Law through Consultation

The history of the Toronto e-scooter ban and the notable risks that affect disabled pedestrians in public spaces point to a number of avenues for legal redress. On the one hand, legal recourse for violations of disability equality rights caused by accidents or a lack of enforcement may be pursued through the legal tools of extracontractual liability (tort law), equality law, or antidiscrimination law. These avenues may lead to damages, or, in the case of equality rights instruments, to reasonable accommodations and the possibility of systemic remedies such as the restructuring of policies and/or the striking down of legislative language.

On the other hand, the issues raised by the Ontario e-scooter pilot reveal an opportunity for the use of proactive tools to create a more inclusive e-scooter strategy, one that incorporates measures to eradicate the issues forecasted before they occur. More specifically, consultation with persons with disabilities is a mechanism contemplated by international and domestic law and is well suited to protect the rights of disabled pedestrians in public spaces. As a means of furthering disability rights, however, consultation is less often discussed than adjudicative approaches. It is therefore the focus of the reflections in this final part of the article.

In Ontario, the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is a statute that requires public authorities to consult with persons with disabilities in certain contexts.8 The AODA establishes municipal Accessibility Advisory Committees 9 These committees are mandated to advise the municipal council on access to buildings, structures, and premises for persons with disabilities, on certain matters relating to accessibility reports and standards, as well as on other matters for which the council may seek its advice.10 In Toronto, specifically, the Accessibility Advisory Committee’s terms of reference suggest that consultation and advice to the Toronto City Council on whether e-scooters pose barriers to disabled pedestrians in public spaces are well within its remit (City of Toronto n.d.).11 The terms of reference further indicate that the Toronto Accessibility Advisory Committee is meant to reflect the diversity of the city’s population (ibid., s. B, 2). Finally, the AODA requires that at least half of the membership of every Accessibility Advisory Committee comprise persons with disabilities.12

Even if all the technical requirements for setting up a consultation are followed, it is still necessary to employ an appropriate ethic of consultation in order to ensure that the voices of persons with disabilities are heard in their intersectional diversity (Jacobs, forthcoming). While disability advocates were successful in bringing about the e-scooter ban, the more recent 2024 Toronto micromobility consultation report (Transportation Services 2023, p. 9) risks painting the concerns of disabled pedestrians as contrary to the concerns of environmentalists although their interests may not be mutually exclusive. Similarly, the consultation report (ibid., pp. 8, 9, 11) observes that a theme among respondents was the need to take an approach that uses equity measures in order to recognize the needs of individuals with lower incomes and experiencing forms of marginalization. Yet, this portrayal overlooks the fact that disabled persons form part of the community requiring measures of equity, diversity, and inclusion. They often live disproportionately in poverty.13 In addition, it ignores the fact that e-scooters have not been designed for use by persons with disabilities (see City of Ottawa 2021a, p. 33).14 These incidents raise the question of whether an approach to consultation exists that can be used to support both disability inclusion and authentic disability recognition in complex cases of intersectionality such as these.

In implementing consultation processes in such circumstances, public authorities might take heed of the recognition dimension of inclusive equality. Inclusive equality is the model of equality developed throughout the Convention on the Rights of Persons with Disabilities. It contains a dimension on recognition which seeks to combat stigma, stereotyping, prejudice, and violence, as well as to recognize the dignity of persons with disabilities (and all human beings) and their intersectionality.15 The recognition dimension helps to centre the historical and contemporary concerns that lead to the exclusion of persons with disabilities, as well as the intersectional nature of disabled peoples’ lived experiences, where applicable. Critical disability theory (or in the context of law, disability legal studies) can also play a valuable role in buttressing an approach based on inclusive equality. Theorists (Kanter 2011; Mor 2011) from these traditions emphasize the importance of listening, documenting, and learning from the lived experiences of disabled persons.

Lastly, consultation involving complex cases of intersectionality can benefit from an approach built on the universality of the human condition. This theory focuses on highlighting the disproportionate negative impact for persons with disabilities that can arise when common life experiences are affected by disabling barriers (Jacobs 2018, pp. 59–62). It recognizes that forging connections amongst those in consultation over common life experiences has had a productive impact on reaching consultative resolutions (ibid., pp. 61–62). Furthermore, the theory stresses first-order equality for persons with disabilities, emphasizing the importance of eliminating issues of disability inequality in the development stage of policies and laws instead of attempting to provide redress for discrimination later on (including through reasonable accommodation). The universality of the human condition would not only support the design and implementation of consultation processes, it could also aid in the creation of appropriate standards under the Accessibility for Ontarians with Disabilities Act.

In sum, the Toronto e-scooter example placed competing policy considerations before stakeholders such as environmental concerns and the accessibility and safety of persons with disabilities. Yet, these considerations are not necessarily in opposition, as environmental concerns may be shared by members of the disabled and non-disabled communities. Furthermore, the Toronto e-scooter ban raised equity concerns. However, the city’s interpretation of the equity concerns ignores the place of persons with disabilities within the broader group of equity-deserving communities and also ignores the need to make e-scooters themselves accessible for all potential riders. Anchoring consultation processes in concepts that reflect the importance of authentically recognizing the intersectionality and lived experiences of disabled persons can be helpful in moving consultations forward. Equally useful are consultation processes based on the theory of the universality of the human condition. Such processes centre first-order equality and foster stakeholder connections through acknowledgement of the disproportionate impact of disabling barriers.

In the practice of regulation, applying these principles would mean starting the regulatory exercise by establishing a framework that recognizes equity, diversity, inclusion, and accessibility. Persons with lived experience of disability, individuals who are proponents of environmental sustainability (a group which should include persons with disabilities and which itself should be diverse), and individuals who have lived experience of other types of marginalization (social, economic, etc.) should make up the composition of the regulatory committee in equal measure. The committee members should commit to examining all issues and potential solutions with a lens that recognizes the barriers faced by persons with disabilities, environmentalists, and additional affected marginalized communities. Both the process of identifying barriers and thinking through ways of eradicating them should be approached through dialogue that pulls the various barriers into view and strives to reach resolutions that address the concerns of all the groups involved. The attainment of solutions for everyone is a rare if not impossible ideal. However, this approach will likely promote solutions that show recognition of the diversity within each group. It may lead, for example, to illuminating the need for e-scooters that are accessible for persons with disabilities to use, and to methods for improving safety that take into account the community of users who have disabilities relating to sight and hearing and the range of diversity within the disability community. Lastly, this approach can lead to acknowledging extant and future intersections of disability and environmental sustainability within the disability community and avoid pitting accessibility and environmental concerns against each other.

5. Conclusions

In February 2024, the Toronto Accessibility Advisory Committee (2024) made a formal recommendation that no future e-scooter pilots be implemented. At the time of writing this article, it is not clear whether the Toronto e-scooter ban will be maintained or discontinued. However, the possibility of continued implementation of e-scooter programs throughout the province has the potential to lead to an increasingly exclusionary regime focusing on the non-disabled majority. Echoing the social model of disability, the e-scooter program limits the opportunities of persons with disabilities to participate in society by creating barriers and dangers in everyday life while championing benefits for their non-disabled counterparts (Thomas 2002, pp. 38–40).

This article has documented and explored the history of the 2021 e-scooter ban in Toronto, Ontario, Canada. It has used this example to examine the disproportionate risks affecting pedestrians with disabilities, advocates’ arguments, and possible avenues for regulation. Most significantly, this article has used the Toronto e-scooter example as a catalyst for examining how the proactive mechanism of consultation with persons with disabilities could be used, exploring theoretical foundations and practical approaches that could helpfully serve as a guide to achieving productive consultation between public authorities and persons with disabilities, especially in complex cases of intersectionality.