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AODA Alliance Chair Files New Freedom of Information Application with the Ontario Government Ministry Responsible for Implementing and Enforcing the Accessibility for Ontarians with Disabilities Act

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities

June 9, 2015

SUMMARY

Now that the Ontario Government has announced its June 3, 2015 Accessibility Action Plan in response to the final report of the Mayo Moran AODA Independent Review, should we sit back and rest? Not us!!

We need to be vigilant to ensure that the Government promptly and fully implements its Action Plan. We also need to continue to advocate for additional action on accessibility which that Plan did not include.

Where to begin? Premier Kathleen Wynne has promised to make the Ontario Government the most open and transparent government in Canada. Here is a great opportunity for the Government to live up to that pledge.

On June 4, 2015, AODA Alliance chair David Lepofsky submitted a detailed Freedom of Information application to Ontario’s Ministry of Economic Development, Employment and Infrastructure. That is the Ontario ministry that is responsible for implementing and enforcing the AODA across Ontario. We set out the key part of that application below the part that lists the information requested. To summarize, the information requested includes:

* updated information on how many organizations are complying with the AODA.

* updated information on what the Government is doing to enforce the AODA, including the kinds of information that the report of the Mayo Moran AODA Independent Review recommended that the Government make public.

* what the Government has done to keep Premier Wynne’s May14, 2014 election promise to publicize a toll-free number for the public to report AODA violations.

* a summary of the reports of AODA violations that the Government has received on that toll-free number.

* details and background of the Government’ plans, announced on June 3,2015, to eventually increase to 4,000 the number of obligated organizations it will annually audit under the AODA.

* specifics on Government efforts and plans to use inspectors under other legislation to also serve as AODA enforcement officials.

* details on the budget that has been given to the Accessibility Directorate of Ontario for implementing and enforcing the AODA, and the money actually spent on this.

* specifics on certain Government activities aimed at educating the public on the AODA.

* specifics on what the Government has done to incorporate accessibility into the spectrum of programs offered or operated by the Economic Development Ministry.

* proposals or options that the Accessibility Directorate of Ontario has developed or proposed for increasing the accessibility of tourism/hospitality services, like stores and restaurants, in advance of the Toronto 2015 Pan/ParaPan American Games.

* records on what plans the Government has, or contemplated, for the Accessibility Standards Advisory Council ASAC being able to develop more than one new accessibility standard at a time;

* the report submitted to the Economic Development Minister in May 2015 by the council that the minister appointed in 2014 to give recommendations on improving employment opportunities for people with disabilities.

* any surveys of legislation on accessibility from across Canada or around the world that the Accessibility Directorate of Ontario has prepared.

In the past, Ontario’s Freedom of Information legislation has played an important role in our accessibility campaign. Almost two years ago, on August 15, 2013, AODA Alliance chair David Lepofsky submitted a Freedom of Information application to the Government, to unearth what the Government knew about private sector compliance with the AODA, and to reveal what the Government was doing to enforce the AODA. That led to our discovery that the Government had known of rampant AODA violations in the private sector, among organizations with at least 20 employees. It also unveiled for the public to see the fact that the Government had not issued a single compliance order, or impose a single monetary penalty, under the AODA, even though it had ample unspent budget for AODA implementation and enforcement on hand. This revelation trigged media coverage, an editorial in the Toronto Star, and, eventually, increased Government action on the AODA’s enforcement.

We will keep you posted on what happens with this Freedom of information application. To learn more about David Lepofsky’s earlier August 15, 2013 Freedom of Information application, visit http://www.aodaalliance.org/strong-effective-aoda/08152013.asp

We bring this news to you on an interesting day in accessibility history. It was 34 years ago, on June 9, 1981, that the great-grandparent coalition of the AODA Alliance, made an historic presentation to an Ontario Legislature Standing Committee, to press for the Legislature to amend the Ontario Human Rights Code to protect against discrimination because of physical or mental disability. On that day, the Coalition on Human Rights for the Handicapped demonstrated why people with disabilities needed that important human rights protection. The ensuing 1982 Human Rights Code amendments in turn underpin the Accessibility for Ontarians with Disabilities Act which, 34 years later, we continue to battle to get effectively implemented.

The Ontario Government only has 9 years, 6 months and 21 days left to lead Ontario to become fully accessible to 1.8 million Ontarians with disabilities by 2025, as the Accessibility for Ontarians with Disabilities Act requires.

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MORE DETAILS

Excerpt from June 4,2015 Freedom of Information Application by David Lepofsky, Addressed to the Ontario Ministry of Economic Development, Employment and Infrastructure

C. Description of Records Requested

I. Regarding Levels of Compliance with the AODA

1. By December 31, 2012, private sector organizations in Ontario with at least 20 employees had to file a first Accessibility for Ontarians with Disabilities Act (AODA) Accessibility Report with the Government under s. 14 of the AODA.

a) As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, how many private sector organizations, that were required to file an AODA Accessibility Report by December 31, 2012, had still not filed the required AODA Accessibility Report?

b) What percentage of the total number of private sector organizations which had been required to file an AODA Accessibility Report by December 31, 2012 had not filed one as of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015?

2. By December 31, 2014, all private sector organizations in Ontario with at least 20 employees were required to file with the Government a second AODA Accessibility Report. As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, how many private sector organizations that were required to file a first AODA Accessibility Report by December 31, 2012, and a second AODA Accessibility Report by December 31, 2014, had not filed either required report? Please state this as a number of organizations, and as a percentage of the organizations which were required to so file.

3. I understand that public sector organizations were all required to file a first AODA Accessibility Report by December 2010. All public sector organizations were also required to file an AODA accessibility report by December 31, 2013.

a) If all public sector organizations had not filed their required AODA Accessibility Report by December 31, 2013, by when had all of those organizations filed them?

b) As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, if all had still not filed them, how many have not filed them? And what percent of public sector organizations that were required to file then?

4. I seek records since June 2014 of any requests or inquiries from or on behalf of the office of the Economic Development Minister to the Ministry, including for example, to the Accessibility Directorate of Ontario, for information regarding on levels of compliance or non-compliance with the AODA or any accessibility standards enacted under it, and any reports or other answers provided to the office of the Minister on this subject since June 2014.

II. Regarding the Government’s Enforcement of the AODA

5. Please provide information on enforcement action under the AODA taken in 2014 on a quarterly basis, and as an annual total, and for the current year on a quarterly basis to date, and as an aggregated total, broken down by sector (private sector versus public sector) and size of organization, including, e.g.

a) The number of organizations audited for compliance with the AODA and any accessibility standards enacted under it.

b) The number of organizations that were the subject of an inspection of their premises for compliance with the AODA and any accessibility standards enacted under it, by an inspector, appointed under s. 18 of the AODA, pursuant to s. 19 of the AODA. Included within this is a request to know the number of organizations that an inspector, appointed under s. 18 of the AODA, has physically visited to discharge the powers of conducting an inspection under the AODA.

c) The number of notices of proposed compliance orders issued under the AODA, also broken down by the AODA requirement with which there was a lack of compliance.

d) Numbers and amounts of proposed monetary penalties under the AODA, also broken down by AODA requirement with which there was a lack of compliance.

e) The number of compliance orders issued and numbers and amounts of monetary penalties imposed, each also broken down by AODA requirement with which there was a lack of compliance.

f) The number of appeals to the appeal tribunal designated under the AODA, from any AODA orders, and the outcome, also broken down by AODA requirement with which there was a lack of compliance. Please also provide copies of, or links to accessible postings of all appeal tribunal decisions.

6. How many times in 2015 has an administrative penalty order been filed with a local Registrar of the Superior Court of Justice under s. 23 of the AODA?

7. How many AODA compliance orders, monetary penalties or other enforcement efforts have been appealed to court in 2015? Please provide specifics of any such case or links to accessible postings of any decisions. How many such appeals or court proceedings are now pending?

8. In addition to enforcement statistics sought above, what specific steps has the Government taken in 2014 or 2015 to deploy its enforcement powers under the AODA, in relation to private sector organizations that have failed to file both a first AODA Accessibility Report and a second AODA Accessibility Report, and in relation to how many organizations? Has there been any focused effort to address organizations that have failed to file both a 2012 and 2014 AODA Accessibility Report, and if so, what focused effort?

9. Without limiting the information sought above, what enforcement steps has the Government taken under the AODA in relation to private sector organizations with fewer than 20 employees, an in relation to how many private sector organizations:

a) In 2014?

b) In 2015?

10. If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:

a) In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.

b) In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.

c) In the case of any private sector organization with fewer than 20 employees.

d) In the case of any public sector organization.

11. Any studies, reports, option papers or other records prepared by the Accessibility Directorate of Ontario, or by any other person or organization, whether within the Ontario Government or outside the Ontario Government, subsequent to the period covered by my August 15, 2013 Freedom of Information application, on options and/or policies or practices for implementing the enforcement powers under the AODA, including, without limiting the generality of the foregoing, the powers to conduct audits, to impose administrative penalties, to issue compliance orders.

12. The number of

a) Directors appointed under s. 30 of the AODA now working within the Ontario Government or under its authority;

b) Inspectors appointed under s. 18 of the AODA now employed in or on behalf of the Ontario Government;

c) Inspectors that the Government plans in the next six months to appoint under s. 18 of the AODA; and

d) Directors that the Government plans to appoint in the next six months under s. 30 of the AODA.

13. For the period subsequent to my August 15, 2013 Freedom of Information application, any requests for permission, authority, directions or instructions by or on behalf of the Accessibility Directorate of Ontario, on use or deployment of any enforcement powers under the AODA including but not limited to those specified in sections 12 to 28 of the AODA, e.g. any request for permission to take enforcement actions such as inspections under the AODA.

14. For the period subsequent to my August 15, 2013 Freedom of Information application, any permission, authority, directions or instructions, or any refusal or restriction of permission, authority, directions or instructions, formal or informal, given to the Accessibility Directorate or any official of, or working on behalf of the Accessibility Directorate, on whether or to what extent the enforcement powers under the AODA (including but not limited to those in sections 12 to 28 of the AODA) are to be used, and if so, under what circumstances they are to be used.

This includes, without limiting the generality of the foregoing, any directions or instructions that the AODA or any accessibility standards under it, are not to be enforced, or limiting in any way the deployment or use of any enforcement powers conferred by or under the AODA.

This entire request includes any directions, instructions, authority or permission given or refused from any source, such as (but not limited to) those from a minister’s office, deputy minister’s office, Cabinet Office, or the Premier’s Office.

15. In her May 14, 2014 letter to the AODA Alliance, Premier Kathleen Wynne made a written election promise to establish and publicize a toll-free phone number for the public to report AODA violations.

a) What specific steps has the Government taken to publicize this toll-free phone number to the public as a number for reporting AODA violations?

b) Any plans for publicizing the toll-free number to the public as a means to report AODA violations;

c) How many calls on that toll-free number has the Government received since January 2015, reported on a total basis and a monthly basis, limited to instances when the caller asked to report an AODA violation?

d) A breakdown of the AODA violations reported on that toll-free line, e.g. based on public sector versus private sector organization, size of organization, sector of the economy if known, AODA accessibility standard provision alleged to be violated, and any other criteria which the Government has applied to these calls. (I do not seek the identity of the callers.)

16. On February 19, 2015, Economic Development Minister Brad Duguid sent a letter to me, in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance. In it he reported that in 2013, the Government audited 1,906 private sector organizations under the AODA. In 2014, it audited 1,954 organizations in the private sector. Yet, in 2015, the Government plans only to audit 1,200 organizations.

I request any records regarding the Government’s decision of how many organizations to audit in 2015, including any changes to that number. Without limiting the generality of this request, I seek any record regarding who took part in any decision, options considered, and the reasons for any decision, setting that number for audits in this year, as well as the identification of the person or persons who made or approved any decision.

17. The June 3, 2015 Toronto Star reported that Economic Development Minister Brad Duguid told the Star that starting in 2016, the Government would increase the number of obligated organizations to be audited under the AODA, rising to 4,000 per year, as part of the Government’s 10 Year Accessibility Action Plan, to be released on June 3, 2015. I seek:

a) Copies of any documents or records (including any emails from the Government) that Economic Development Minister Duguid or Ministry officials provided to the Toronto Star in connection with the preparation of this June 3, 2015 report in the Toronto Star. I do not seek any communications from the Toronto Star to the Minister or Ministry;

b) details about, and records concerning the preparation of, the Government’s plans to increase the number of obligated organizations to be audited under the AODA, as reported in the June 3, 2015 report in the Toronto Star.

c) Any records on anticipated or approved budget for enforcement of the AODA in any fiscal year after the current fiscal year.

18. In her May 16, 2014 letter to me in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance, setting out the Government’s 2014 accessibility election pledges, Premier Wynne stated:

“With respect to additional enforcement activities, we commit to investigating the possibility of having government inspectors and investigators enforce the AODA within the context of existing resources and as training capacity exists.”

The AODA Alliance has advocated to the Government for at least four years that the Government deputize inspectors under other legislation to also serve as an AODA inspector or director. We understand that the Government conducted some research or investigation of this proposal.

a) What specific pilot project or projects have been conducted since 2010 on this, with what Ministry or Ministries, and over what periods?

b) I seek records addressing any exploration, design, conduct and/or evaluation of this avenue for enforcing and/or promoting compliance with the AODA, as far back as 2010, and up to the date that this application is answered.

c) How many inspectors, investigators or other public officials in other ministries were given authority to engage in enforcement activity under the AODA, divided by the ministry involved and the specific pilot project?

d) How many public sector organizations were the subject of any audit or inspections as part of this program, in total and divided by year?

e) How many private sector organizations were the subject of any audit or inspections as part of this program, broken down by year and by ministry involved in the program?

f) How many AODA compliance orders were issued as a result of this program, broken down by public sector or private sector organization and the category or size of organization?

g) How many monetary penalties were issued as a result of this program, broken down by public sector or private sector organization?

h) What training was given to officials in other ministries who were deputized as an AODA inspector or director, and what was the duration of that training?

i) What feedback, if any, was solicited from or obtained from officials of other ministries who were deputized as an AODA inspector or director, about their experience as such, and the effectiveness of this strategy.

j) What specific plans does your Ministry have to continue or expand using inspectors or investigators at other ministries to take part in enforcement of the AODA? What are the time lines for these plans?

III. Regarding Budget for and spending on the AODA’s Implementation and Enforcement

19. What is the budget that was appropriated for the Accessibility Directorate of Ontario for the fiscal year 2014-15? How much of that amount did the Directorate spent in that fiscal year?

20. What is the total budget appropriated for the Accessibility Directorate of Ontario for the current fiscal year?

21. For the last fiscal year and the current fiscal year, please provide the budget allocated and expended by the Accessibility Directorate of Ontario in a detailed breakdown including amounts for:

a) Enforcement of the AODA (e.g. by inspections, audits, issuance of compliance orders and monetary penalties, and on appeals), but not including activities aimed at securing voluntary compliance (such as public education and outreach);

b) Development of new accessibility standards and review of existing accessibility standards;

c) Public education and outreach.

22. In addition to the foregoing, the Accessibility Directorate of Ontario has administered the Enabling Change program for several years.

For each year since 2008:

a) How much was budgeted for and how much was spent by the Ministry in each year on the Enabling Change program? How much is budgeted for that program in the current fiscal year?

b) In each year starting in 2008 for which this information is either already compiled or readily available, please provide a list of each Enabling Change program or grant that the Accessibility Directorate of Ontario funded to any degree, the amount of the grant, the recipient grantee of the grant, and a description of the program funded.

IV. Regarding Public Education on Accessibility

23. Where available, please provide text of or speaking notes for any speeches by Mr. Brad Duguid since becoming Economic Development, Employment and Infrastructure Minister in June 2014, which address at any point in the speech, accessibility for people with disabilities, including an indication, where available or readily discoverable, of to whom and where the speech was delivered.

24. In fall 2014, the Government sponsored an advertising campaign on accessibility and compliance with the Accessibility for Ontarians with Disabilities Act. I seek:

a) the duration of this campaign;

b) the number of advertisements that were run respectively on: (i) radio
(ii) television
(iii) newspaper
(iv) any other media;

c) the text of the advertisements that were broadcast or published;

d) the budget which the Government allocated for this campaign, and the actual cost of this campaign;

e) records of any plans for any future campaign, including content, dates, and allocated or estimated budget;

f) The approved or estimated budget for the AODA advertising campaign on accessibility which the Government announced on June 3, 2015.

25. Economic Development Minister Brad Duguid has made public statements about the impact of the foregoing AODA fall 2014 advertising campaign on levels of compliance with, or inquiries to the Government, about the Accessibility for Ontarians with Disabilities Act. What information has the Government tracked and compiled on any changes in levels of compliance or numbers of inquiries of the Government associated with this advertising campaign?

V. Regarding Efforts to Incorporate the Promotion of Accessibility across Ontario’s Economy in the Economic Development Ministry’s Various Programs and Activities

26. In her May 14, 2014 letter to us, written during the 2014 election, Premier Wynne committed:

“The Ministry of Economic Development, Trade and Employment as the government’s lead for the Accessibility Directorate of Ontario has created a new position in its Ministry, a Director of Accessibility Integration and planning, to work within the Ministry to ensure that accessibility is integrated into all business practices.”

In Premier Wynne’s December 23, 2014 letter to us, she wrote:

“As referenced in your letter, the ministry has also worked to incorporate accessibility into all of its economic development and employment strategies, programs and initiatives. In support of this, a Director of Accessibility Integration and Planning position was created within the deputy minister’s office. A key outcome of this work is the integration of accessibility criteria into our Ontario Youth Jobs Strategy, and investment funding programs, services and supports.”

I understood that the Economic Development Ministry’s “Director of Accessibility Integration and Planning” position to which the Premier refers was only a temporary position, which terminated some months ago.

a) Does that position still exist in your Ministry, as the Premier described it?

b) If so, who currently fills that position?

c) How long has that person been in that position?

d) Is it a full time or part time position?

e) If that position no longer exists, when was it created and when was it terminated, completed or vacated?

27. What has the Ministry of Economic Development, Employment and Infrastructure done, and what new programs, policies or initiatives has it established, or existing ones has it modified, since May 28, 2013, to ensure that accessibility is integrated into all programs and activities at the Ministry, including, for example:

a) programs aimed at economic development within Ontario;

b) programs that assist in expanding international markets for goods and services originating in Ontario;

c) programs dealing with employment, including but not limited to that specifically aim at expanding employment opportunities for people with disabilities; and

d) programs dealing with infrastructure.

Where possible, please advise when each new initiative or revised initiative was implemented to address disability accessibility, and when that initiative has terminated or is projected to terminate.

VI. Other Topics

28. From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.

29. In January 2013, the Government announced that it planned to consolidate all development of new accessibility standards and the mandatory review of existing accessibility standards under the auspices of the Accessibility Standards Advisory Council. It said it did so in response to the 2010 final report of the Charles Beer Independent Review of the AODA.

I seek any records from February 2010 to the present which address the development of and/or the implementation of the decision of the Government’s response to this recommendation of the final Charles Beer Report. Without limiting the generality of the foregoing, I seek any records which address the question of whether the Government expected that all future mandatory reviews of existing AODA accessibility standards and/or the development of proposals for all new accessibility standards would be carried out solely by the persons appointed as members of ASAC, or whether the Government contemplated or considered that multiple committees might be appointed under the auspices of ASAC, to address different accessibility standards at the same time.

30. On or about June 3, 2015, the Government announced that in May 2015, it received a report from the council that the Economic Development Minister appointed in 2014 to give advice to the Government on strategies to increase employment opportunities for people with disabilities. I seek a copy of that report, and any other reports that the Government has received from that Council at any time up to the date of the fulfilment of this application.

31. Any analysis or survey of laws in other jurisdictions in Canada or elsewhere around the world that address accessibility for people with disabilities. I do not seek any of this dating prior to 2013.

CLARIFICATIONS

1. Please provide all documents in an accessible format in MS Word, so that they can be read by screen-reading software used by people with vision loss and other print disabilities. If this presents any difficulty, please advise me and I will do my best to see if there are ways to effectively address this.

2. Please provide any requested information as soon as available. In other words, please do not hold back all requested information until it is all assembled. If some information can be quickly provided, while other requested information may take longer, please provide the immediately available information as soon as possible, and do not hold it back until all other requested information is sought and obtained.

3. If some requested information would require extensive efforts to collect and provide, please contact me. I am open to adjusting the request for information to reduce the time and cost to the Government of complying with this request, so long as I can obtain the substance of the information I am seeking. I have assisted with just such an issue in the past, and am happy to do so again.

4. I am not seeking disclosure of any privileged legal advice sought or obtained by or within the Government.

5. I ask in advance that any fee for complying with this request be waived. I do so because this is a public interest application. I make the request for information under the Freedom of Information Act as a matter of public interest. I am the chair of the Accessibility for Ontarians with Disabilities Act Alliance, a volunteer position with a volunteer coalition. Our coalition is a non-partisan, non-profit community coalition advocating for the effective implementation of the Accessibility for Ontarians with Disabilities Act 2005. We have no funds of our own.

I make this request for information in good faith. The search fee should not become an unfair barrier to access to information for such a community group or for people with disabilities generally. The AODA Alliance has been recognized by all parties in the Ontario Legislature as a leading voice advocating for accessibility for people with disabilities in Ontario. As one illustration of this, each of the political parties has made their election commitments on disability accessibility in the form of letters to the AODA Alliance.