INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO
IN THE MATTER of Appeal Number PA 16-156 under the Freedom of Information and Protection of Privacy Act
REPLY AFFIDAVIT OF DAVID LEPOFSKY
I, David Lepofsky, CM, O. Ont., LL.B. (Osgoode Hall), LL.M. (Harvard), LL.D. (Hon. Queen’s University, University of Western Ontario, and the Law Society of Upper Canada), of the City of Toronto, affirm as follows:
1. I am the chair of the Accessibility for Ontarians with Disabilities Act Alliance (the “AODA Alliance”). As such I have knowledge of the matters to which I depose in this affidavit.
2. This affidavit provides evidence to respond to new information and arguments that the Ministry raised in its January 24, 2017 Memorandum of Argument and January 24, 2017 Affidavit of Jennifer Brown, filed on this appeal, and for no other or improper purpose.
2. Ministry Position Dramatically Shifts at the Last Minute
3. By its January 24, 2017 Memorandum of Argument, the Ministry has dramatically changed its position on this Freedom of Information application’s key issues. Until this eleventh hour, as in the case of my earlier 2013 Freedom of Information application, the Ministry had repeatedly said that I had not provided any or enough evidence, like financial statements, to prove that the AODA Alliance has no money or assets. That was the central focus of exchanges. The Ministry repeatedly refused to accept my assertion regarding the AODA Alliance’s assets, either in connection with the current June 4, 2015 Freedom of Information application, or in connection with my earlier August 15, 2013 Freedom of Information application.
4. In sharp contrast, in paragraph 2 of its January 24, 2017 memorandum of argument (filed on the Information and Privacy Commission’s filing deadline), the Ministry now agrees for the first time:
“It is accepted that the Alliance does not have money or bank accounts.”
5. I had tried, over and over, to get the Ministry to agree that the AODA Alliance has no money or assets. To that end, I tried to get the Ministry to specify for me what more our unincorporated, unfunded AODA Alliance can do to prove this to the Ministry’s satisfaction. This is set out in correspondence between me and the Ministry on this Freedom of Information application, which I filed with the Information and Privacy Commission on January 24, 2017. The Ministry never admitted this fact or properly answered my requests of what more I could do to prove it to the Ministry’s satisfaction, before its January 24, 2017 memorandum of argument.
6. The Information and Privacy Commission conducted a mediation between me and the Ministry in 2016, in an successful effort to resolve this appeal. That mediation was conducted entirely in letters between me and the Ministry via the mediator. There was no face-to-face meeting convened with me, the mediator and the Ministry. On January 24, 2017, I filed with the Information and Privacy Commission all the correspondence during that mediation that addresses this appeal’s substance. I did not file emails that simply dealt with procedural matters, such as requesting a phone call, or seeking an answer to an earlier email. I filed these because the mediator and Ministry earlier confirmed that they are not privileged or confidential, and because they relate to this appeal’s issues.
7. In correspondence forming part of that mediation, I asked the Ministry if it would admit the key fact that the AODA Alliance has no money or assets. In my August 18, 2016 letter to the mediator and the Ministry, I wrote in part:
“4. Accordingly, may I ask the Ministry to now let me know if it disputes any of the following, and if so, why. This includes and builds on questions I asked the Ministry in my June 24, 2016 letter and in earlier correspondence. Its answers are pivotal to a meaningful effort at resolving this appeal:
a) Does the Ministry question that the AODA Alliance exists, and that it is unincorporated?
b) Does the Ministry dispute that I am the AODA Alliances chair, and that this is a volunteer position?
c) Does the Ministry dispute that I made this Freedom of Information application in good faith in my role as AODA Alliance chair?
d) Does the Ministry dispute the fact that:
i) the AODA Alliance has no funds, bank accounts, or other assets?
ii) the AODA Alliance has no membership fees?
iii) the AODA Alliance has no financial statements or financial records to produce?”
8. During that mediation, the Ministry never agreed to the key fact that the AODA Alliance has no funds or assets.
9. For over a year, the Ministry has had in its possession all the information to base its last-minute January 24, 2017 admission of this fact.
10. Until very recently, the Ministry did not raise with me an assertion that I must prove we have done some sort of fund-raising, in order to qualify for a fee waiver based on undue financial hardship. In earlier correspondence, I had asked the Ministry to tell me what more it wanted, since it said I had not given it sufficient evidence. For example, the Ministry did not raise this fund-raising issue with me during the 2016 mediation. The first time the Ministry raised this with me was in its January 24, 2017 memorandum of argument and Jennifer Brown affidavit, and in informal discussions with its counsel over the days just prior.
11. In contrast, I have bent over backwards to be open with and fair to the Ministry. When I filed this appeal in March, 2016, I went far beyond filing a one-page notice of appeal. I filed a very detailed memorandum of argument. Had the Ministry raised this fund-raising issue with me earlier, I would have readily provided the information I set out below on this topic.
3. Fund-Raising Not an Option in this Case’s Distinctive Circumstances
12. Building and sustaining a major non-partisan voluntary cross-disability community coalition, and achieving consensus positions to bring forward to the Government and the public, is an enormous and challenging task. I have had the privilege of playing a volunteer leadership role in this for over two decades. Figuring out what works and what does not work is neither instant nor easy and, at times, is counter-intuitive.
13. The AODA Alliance, like its predecessor the Ontarians with Disabilities Act Committee (from 1994 to 2005), does not engage in fund-raising for several important reasons. These reasons, taken together, have been and remain central to our work and our success.
14. The AODA Alliance is not incorporated. We do not have charitable status. As such, we cannot give a charitable tax receipt.
15. For many years, we have had an ongoing commitment not to ask our supporters for money. Our not having our own funds or assets has been an important part of our community organizing strategy.
16. This has served us very well. Because the AODA Alliance has no money, we never risk mishandling money. We are protected from being accused of mishandling money. We have no infighting over how to spend our money.
17. We have no capacity to properly receive, manage, spend and account for money. We have no bank account, no accountant or book-keepers, and no fund-raisers. To fund-raise, as the Ministry now contemplates, would require us to invest time and resources in handling money. To be demonstrably responsible, we would have to invest effort and resources into ensuring we are accountable for the money we have received, and are not misusing or misappropriating it. That would take away from our core work on advocating on accessibility.
18. Our not engaging in fund-raising has helped us in important ways. Because we have no money, we have found over many years that our supporters are more willing to help out with our activities, lending us their energy and time. I have found it is easier to motivate others to pitch in with their efforts by emphasizing that the AODA Alliance is volunteer-driven and has no money.
19. Our AODA Alliance email updates are a key way, if not the key way we maintain contact with our supporters, get their feedback and give them ideas for action. Their action at the grass roots is vital to our work. The more we can grow that email list, the more effective we can be. We have over 3,700 people on that email list. That is over three times the number we had during the campaign by our predecessor, the ODA Committee, that won enactment of the Accessibility for Ontarians with Disabilities Act. It is important for us to ensure that those who get involved don’t fear that they are exposing themselves to later fund-raising solicitations of any sort.
20. When I give a speech to a community organization or accessibility public forum, I urge people to sign up to receive our AODA Alliance email updates. That is a key way we have built up such a large list. As part of my typical speech at these events, I routinely make it clear that we have no funds, no membership fees, and will not ask for money. I have been doing this for years. We don’t want people feeling reluctant to sign up, out of a fear they would later get pressured to donate money to us. To now embark on fundraising would be to betray that commitment and undermine our and my credibility with our supporters.
21. Our supporters include but are not limited to, of course, people with disabilities who too often face tough economic circumstances. We want all to feel entirely welcome. Ontarians with disabilities are disproportionately poor, unemployed or under-employed. David Onley, former Ontario Lieutenant Governor, and the Ministry’s Special Advisor on Accessibility, has publicly stated, in my presence and in public, that the national unemployment rate facing people with disabilities is not only a national crisis – it is a national shame.
22. Because we have no money and don’t fund-raise, our supporters among disability community organizations, who are also important players in our efforts, are assured that we will not enter the fund-raising market, in competition with them.
23. For us to accept money from an outside organization, such as a private business or Government agency, would threaten to compromise our independence. Our independence is buttressed by the fact that we are not financially beholden. Because we depend on no one for funds, we never need worry that our focusing the public spotlight on a particular accessibility barrier could threaten our funding.
24. I have found from years of face-to-face advocacy efforts that our credibility with politicians, public servants, the media, the public and the disability community is enhanced by the fact that we are not in it for the money, and are doing this as a voluntary effort. We can proudly say that we have been able to make so many strides, while maintaining ourselves as an unfunded voluntary coalition.
25. Our successes include influencing the content of legislation and regulations, getting political parties and candidates to make accessibility commitments, in election after election in the form of letters to the AODA Alliance, garnering supportive media attention time and again, and securing many opportunities to give advice and feedback to the Ontario Government at all levels. I am not saying that this is all due to our not fund-raising. I am saying that our credibility plays a critical role in our successes, and the fact that this is the work of a coalition that has no money has contributed to our credibility.
26. Our advocacy efforts are extraordinarily time-consuming. Researching and writing our many submissions to the Ontario Government and responding to the Ontario Government’s requests for input and advice takes an untold number of hours. I devote the substantial majority of my time to AODA Alliance volunteer efforts, since my retirement from the Ontario Public Service in December 2015. To be distracted by fund-raising would take away from those efforts. As it is, it is hard to keep up with the flood of emails, requests from Government, from the media and from the disability community, and efforts to mobilize grass roots action.
27. Our website www.aodaalliance.org includes no button to donate. Our public postings do not solicit donations. They ask people to take part in our non-partisan campaign, to raise accessibility issues with their MPP, with the media, and with the community.
28. I have been asked several times over the years to give training sessions here and abroad on effective strategies for community organizing and advocacy. I have lectured here and in Israel on the importance to the AODA Alliance’s success of being a coalition that has no money and does not fund-raise.
29. I know all too well that unfortunately, many in the public still have a strong association of people with disabilities with pity and charity. This contributes to the attitudinal barriers that impede full inclusion and full participation in society by people with disabilities.
4. August 7, 2015 Conference Call with the Ministry Application
30. In paragraph 8 of her affidavit, Jennifer Brown gives evidence about a telephone conference call between the Ministry and me on August 7, 2015, convened to ask me to give guidance on what I sought in the 2015 Freedom of Information application. It was my understanding at that time that that the back-and-forth in that discussion was to be “without prejudice.” I wanted Ministry officials to speak freely, without fearing that I would publicly quote what they said or what they asked. I have no notes from that conversation. I cannot identify a specific call, date or time when the ground rules for that conference call were discussed.
31. On reviewing Ms. Brown’s affidavit, I asked the Ministry to produce any notes they have from that conference call. So far, the Ministry has not agreed to do so. I am thus placed at a disadvantage in addressing it.
32. To avoid protracting and complicating this appeal, I do not seek a ruling on whether that call was “without prejudice.” Regardless of my not having notes from that conference call, and whether or not the Ministry shares my recollection of the basis of the conversation, I believe I made it clear to the Ministry, during that conversation and elsewhere during this Freedom of Information process, that I was happy to help the Ministry at any time to focus or narrow its search efforts, by my sharing the nub that I am seeking in any part of my Freedom of Information application.
5. Ministry Gathering of Requested Records and Information
33. In 2015 and 2016, and leading up to this appeal’s oral argument, I did not know that back in the 2015 summer, the Ministry had already collected the documents and information that I had requested in my 2015 Freedom of Information application. I had thought the Ministry’s fee estimate was an effort to project what search time would be required, if I agreed to pay the search fee.
34. When the Ministry staff was conducting its summer 2015 search, I was not notified that they were in the middle of the search and had run into the problems Ms. Brown’s affidavit details. I was only aware of a list of specific issues they sent me in the Ministry’s July 7, 2015 letter, which I filed with the Information and Privacy Commission among the other documents for this appeal. Had the Ministry notified me in a timely way of the problems Ms Brown says it was encountering, I would have been prepared to offer clarifications to try to reduce the time and effort. I here give some examples:
35. At paragraph 5, Ms. Brown indicates that I created more work for the Ministry because in a number of cases I asked for information, and not for records. Yet the Ministry did not tell me at the time that this created more work for them.
36. My intention, in asking for information instead of for records in certain instances, was to reduce, and not to increase the Ministry’s workload. I thought it would make things easier for them. When I asked, for example, for the number of audits conducted, I did not want the Ministry to have to look for every record that records the number of audits. I just wanted the Ministry to push whatever search button needed, to get the number.
37. Had the Ministry told me it made more work for them to look for information, rather than records, I would have been happy to look at modifying my request’s wording. By so stating, I shouldn’t be taken as accepting as true Ms. Brown’s suggestion that my requesting information, rather than records, made my request more burdensome.
38. Before receiving the Ministry’s January 24, 2017 memorandum of argument, the Ministry had not taken the position with me that I am only entitled to request records, and not information. The Ministry has not shown itself reluctant at any time to raise technical arguments in opposition to my Freedom of Information application.
39. In paragraph 18(c) of her affidavit, Ms. Brown said it made more work for the Ministry because I asked for Ministry AODA enforcement policies and plans that post-date my 2013 Freedom of Information application. Here again, I did something aiming to make it easier for the Ministry, and yet Ms. Brown now says it made things harder. In my Freedom of Information 2013 application, I had earlier obtained certain AODA enforcement plans or policies. In my 2015 Freedom of Information application, I was simply trying to get the Ministry to update their 2013 disclosures with anything new. I didn’t want the Ministry to have to duplicate the effort it undertook in 2013 to find its enforcement policies and plans up to that date. In my July 29, 2015 letter to the Ministry (already filed on this appeal), answering the Ministry’s written request for clarifications, I wrote in part:
“1. Re my Q. 10
Clarification Requested: The ministry assumes you are seeking any updated versions of documents that were provided in 2013 along with any net new, final documents. Is that correct?
My Response: I am seeking any updated versions of documents that were provided in 2013, as well as any new documents, whether or not they are “net new” or “final.” I do not know what you mean by “net new” and as such, I do not include it in my clarification. I am happy to discuss this with you on the phone if that would help.”
40. I did not thereby aim to create added work, requiring the Ministry to cross-check whether a document had previously been released to me. Had the Ministry contacted me to further review this problem they say they faced, I would have clarified this, to save the Ministry the trouble of making comparisons of what it released in 2013 and what it had gathered in 2015. Had they inadvertently given me the same document in 2015 that they earlier gave me in 2013, that would have been fine by me.
41. At paragraph 23 of her affidavit, Ms. Brown states that requested information regarding the Government’s “Enabling Change” program was easier to gather from 2012 forward, but harder to gather before 2012. She said this was due to a change in their information technology. Had the Ministry told me this at the time, I would have been open to discussing limiting that request to 2012 and forward.
42. At paragraph 24, Ms. Brown describes efforts to locate speeches by the Economic Development Minister that include references to disability accessibility. I had at some earlier time which I cannot now specify, verbally told the Minister’s office to please send us copies of the minister’s speeches when that Minister makes a speech that addresses disability accessibility, so we could share it with our supporters. In my experience, elected cabinet ministers welcome such free publicity. Having put the Government on notice of that request, it should have been easy to keep track of them. Had they inadvertently missed some speeches, it would not have been something I’d fuss about.
43. In paragraph 19 of her affidavit, Ms. Brown described the time she says the Government took to answer my Freedom of Information application para 11’s request for any studies, reports, option papers or other records related to options and/or policies or practices for implementing the enforcement powers under the AODA from 2013 to the date of the request. It is my recollection that that part of my Freedom of Information application was merely an update to a request the Ministry had answered, at no charge, in response to my 2013 Freedom of Information application.
44. Had the Ministry contacted me back then, to express a concern about the time it would need to answer that part of my Freedom of Information application, I would have told the Ministry that I would have been content if the Ministry had simply emailed the Accessibility Directorate of Ontario’s senior managers to identify, from their memory, any such studies. The Accessibility Directorate of Ontario is a small enough office, with a small enough senior team. They should have been able to readily answer such request in short order.
45. Elsewhere in her affidavit, Ms. Brown lists other problems she says the Ministry encountered when trying to find the answers to my 2015 Freedom of Information application. Here again, had the Government called me at that time, and told me about it, I would have tried to find a way to focus the request and simplify the search.
46. Ms. Brown’s affidavit para. 22 discusses work the Government said it needed to do to find answers to my questions regarding Ministry efforts to try using inspectors under other legislation to also enforce the AODA. In response, I note that in the 2014 Ontario election, Premier Wynne made a promise to investigate this very idea, and set out that promise in a letter to me, as chair of the AODA Alliance. It was the AODA Alliance that had been proposing this idea for strengthening AODA enforcement. Premier Wynne’s May 14, 2014 letter to me, on the AODA Alliance’s behalf, setting out her party’s 2014 election promises on disability accessibility, included:
“5. 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.”
Premier Wynne’s May 14, 2014 letter to the AODA Alliance, setting out her Government’s 2014 accessibility election pledges, is available at http://www.aodaalliance.org/strong-effective-aoda/06132014.asp
47. In paragraph 6 of her affidavit, Ms. Brown suggests that I worked together with the Ministry to divide my 2015 Freedom of Information application into items that can be answered without much search time on the one hand, and items requiring more search time on the other. Her paragraph 6 states:
“the Ministry worked with the Requester to divide the request into two parts:”
48. As I can best recall, the Ministry did not work together with me on that division. The Ministry decided on its own which items went into each category.
49. The Ministry’s memorandum of argument para. 7 suggests that its work on searching for documents to answer this Freedom of Information application took away time from its enforcement of the AODA. It states:
“The user-pay system encourages requests that are reasonable in scope and offsets costs to the public in circumstances such as the present case, where Ministry staff were redirected from enforcement activities to satisfy the FIPPA request.”
50. I offer the following evidence in response:
a) The Ministry has never suggested to me that to fulfil any part of my Freedom of Information application would take away from AODA enforcement efforts. I and the AODA Alliance have been a leading voice in Ontario, calling for strengthened AODA enforcement, and exposing inadequate AODA enforcement and Government knowledge of rampant AODA violations. We have offered time and again to work with the Ontario Government on ways to beef up AODA enforcement.
b) On whether my 2013 Freedom of Information application could have taken away from any AODA enforcement efforts in the private sector, I note that the Ministry eventually revealed to us that the Government had until then not imposed a single monetary penalty or compliance order on any of the roughly 70% of private sector organizations with at least 20 employees that the Government knew to be in violation of the AODA. The key results of my 2013 Freedom of Information application on which I here draw are available at: http://www.aodaalliance.org/strong-effective-aoda/11182013.asp
c) Information the Government has disclosed to me, including information in response to my 2013 and 2015 Freedom of Information applications, show that in every year from 2005 (when the AODA was enacted) to and including 2014-15, the Accessibility Directorate of Ontario was under budget. Indeed, from 2005 up to the end of fiscal year 2014-2015, the total allocated but unused budget of the Accessibility Directorate of Ontario was $27.5 million. For example, in Fiscal 2014-15, the Accessibility Directorate of Ontario left $1.3 million unspent. I don’t mean to imply that the unused $27.5 million stays in the Accessibility Directorate of Ontario for future use. Our public release of this information is available at http://www.aodaalliance.org/strong-effective-aoda/12032015.asp
d) According to Ministry disclosures to me as of December 2015, to discharge statutory enforcement powers for the entire Ontario economy, the Government had appointed a mere three directors and one inspector. I acknowledge that the Government can also delegate their enforcement powers to others. Our public release of this information is available at: http://www.aodaalliance.org/strong-effective-aoda/12032015.asp
6. The Cost of Converting the Requested Documents into an Accessible Format
51. Ms. Brown’s affidavit states at paragraph 13:
“The Ministry would also incur additional costs to have the records converted into the accessible format requested by the Requester. The Ministry will be responsible for these costs. Given the number of records the Ministry has located, it is likely that the Ministry will require the services of an external vendor to convert documents, like power point presentations, into accessible MS word formats.”
52. Before receiving its January 24, 2017 affidavit and memorandum of argument, the Ministry had not raised this cost issue with me in connection with my 2015 Freedom of Information application, or asked if there was a way to avoid it.
53. In or about November 2013, after the Ministry agreed to answer my 2013 Freedom of Information application at no charge, I was told by the deputy minister or the minister’s office that a significant part of those requested documents were not in an accessible format. I was also told that the Government would have to pay a substantial cost to convert them to an accessible format. The Government did not then suggest that it would not pay for that, if I requested it.
54. On being told this in late 2013, and in an effort to minimize cost burdens to the Government, I told the Ministry to release those records to me “as is” i.e. in their original formats, and without converting them to an accessible format. I let the Government know that we had some AODA Alliance volunteers (who are sighted) who would go through those documents. I indicated back then to the Ministry that if we discovered specific documents that I would need the Government to convert to an accessible format, I would ask the Government to do so. I did this to avoid making my Freedom of Information application cost any more than necessary. It is my best recollection that we did not end up asking the Government to convert any of those documents to an accessible format. I have not searched my emails on this topic, but my best recollection is that this issue was entirely dealt with at that time by conversations, and not in writing.
55. The Ontario Government has stated on many occasions, to the public and to the AODA Alliance, that it aims to lead Ontario by example, when it comes to accessibility i.e. to provide a model of accessibility for others to follow.
7. The Ministry’s Willingness to Release Information without Resort to a Freedom of Information Application
56. In paragraph 15 of her affidavit, Ms. Brown stated in part:
“As noted above, the Ministry divided the Appellant’s request into two parts. Records that were identified as responsive to the subject areas described in Part A were provided directly to the Appellant. For the most part, these records include statistical and other information that the Ministry would make publicly available and would provide in response to an informal or oral request in accordance with subsection 63(1) of the Act. ”
57. My experience with the Ministry does not always accord with Ms. Brown’s evidence. For example, on January 22, 2013, I wrote the minister then responsible for the AODA, Community and Social Services Minister John Milloy, to ask for information on AODA levels of compliance and enforcement. I then wrote in material part:
“We would like to know how many private sector organizations with 20 or more employees have filed those required accessibility reports by the December 31, 2012 deadline. Of the private sector organizations who were required to file an accessibility report by the end of 2012, how many have not filed the required report? What is the total number of organizations that were required to meet the December 31, 2012 filing deadline?
We would also like to know in detail what your Government’s specific plans and time lines are for enforcing compliance with AODA standards. For example:
1. What plans does your Government have for enforcement in the case of any private sector organization with 20 or more employees that has not filed the required accessibility report for the Customer Service Accessibility Standard? What financial penalties will you be seeking? What time lines have you set for various stages of enforcement? In relation to how many such organizations do you plan to take each successive step for enforcement? In other words, we want to know what enforcement steps you will be taking, and in relation to how many organizations.
Enforcement of this reporting requirement should be extremely easy. Your Ministry will now know which organizations have to report and which in fact have reported. Either an organization is in compliance or it is not.
2. What plans does your Government have for auditing private sector organizations for compliance with the Customer Service Accessibility Standard? For how many organizations per year? The accessibility reports that organizations must file under the AODA are simply self-reports. In them, an organization states whether it is in compliance with the standard. A key part of enforcement is going beyond such self-reporting, lest the legislation be nothing more than a form of voluntary compliance.
Enforcement here as well should be easy to do. The Customer Service Accessibility Standard requires that organizations have certain required documentation regarding their accessibility policies, practices, training and customer feedback systems. It should be readily apparent to any Government officials who take enforcement steps under the AODA that an organization either has the required documentation, or it does not.
3. We appreciated receiving a briefing some months ago about initial compliance initiatives regarding public sector organizations. Building on that information, what steps has your Government taken since 2010 to audit compliance by public sector organizations with the Customer Service Accessibility Standard? How many public sector organizations must comply with that standard? How many have been audited? What has been the aggregated result of these audits? In what number and in what percentage of cases were the audited public sector organizations in full compliance? To what extent, if any, did the audits reveal a situation different from that found in that organization’s accessibility report that it had filed with the Ministry?
4. In how many cases has the Ministry levied a financial penalty against a public sector organization for non-compliance with the Customer Service Accessibility Standard? What was the amount of the fines, if any? Were there any appeals from these fines? If so, what was the result of the appeals?
5. What plans does the Ministry now have to go beyond auditing an organization’s documentation? It is not good enough for an organization to have required pieces of paper on file, or in a computer. It is important for these documents to be translated into actual removal and prevention of barriers against persons with disabilities in customer service.
6. What specific plans does your Government have for enforcing the requirements of the Integrated Accessibility Regulation? It addresses barriers against persons with disabilities in transportation, employment, public spaces, and information and communication. A number of its provisions have already gone into effect, or will shortly go into effect.
7. What steps has your Government taken to date to publicize to obligated organizations that it will be actively enforcing these standards? What plans does the Government have for conveying this to obligated organizations now or in the future?”
The AODA Alliance’s entire January 22, 2013 letter to Minister John Milloy is available at http://www.aodaalliance.org/strong-effective-aoda/01242013.asp
58. For fully seven months, the Government did not answer that letter. After this dragged on, I ran a public count on many days on Twitter on how many days had passed since we asked the Government for this information on AODA compliance and enforcement. Out of frustration, I resorted to my first Freedom of Information application on August 15, 2013. This was due to that protracted Government refusal to answer that inquiry, which, according to Ms. Brown’s Paragraph 15, the Government would be readily willing to answer without need of a Freedom of Information application.
59. I certainly do not suggest that the Ministry always refuses to release information to the AODA Alliance, without resort to a Freedom of Information application. As is amply documented in our AODA Alliance Updates, posted on our website, there are a number of times when the Government does answer our requests for information. There are a number of times when it does not. As examples:
a) On February 19, 2015, the Economic Development Minister wrote us, providing some requested information on AODA compliance and enforcement. The Economic Development Minister’s February 19, 2015 letter to the AODA Alliance is available at http://www.aodaalliance.org/strong-effective-aoda/02252015.asp
b) In contrast, on December 5, 2015, we wrote the Economic Development Minister to ask for information and records regarding the Government’s proposal to establish a private accessibility certification process in Ontario. The Minister did not answer that letter. As a result, on February 11, 2016, I had to resort to filing a Freedom of Information application to force access to the requested information. The AODA Alliances December 5, 2015 letter to the Economic Development Minister is available at http://www.aodaalliance.org/strong-effective-aoda/12052015.asp
8. Health and Safety Implications of Accessibility Regulations
60. I have personal experience as a blind person who encounters accessibility barriers. As a community advocate on accessibility, I regularly get feedback from other people with disabilities on accessibility issues. Based on this, I know that accessibility on the one hand, and health and safety on the other, are often inextricably intertwined. A lack of accessibility can often present public health and safety problems. I am not saying that this is so in the case of every last accessibility barrier. For example:
a) If a street corner sidewalk does not have the tactile walking surface indicators provided for under the Integrated Accessibility Standards Regulation, I run the risk of walking into oncoming traffic. That poses a safety risk to me and to drivers.
b) If a ramp does not have the required railing on both sides, this presents a safety risk to me i.e. of falling down off the ramp, where there is an exposed drop-off. An example of such a failure to put a required railing in place is depicted in a widely-publicized AODA Alliance video of the new Centennial College culinary Arts Centre, which is available at http://www.aodaalliance.org/strong-effective-aoda/11292016.asp
c) If a bus or subway does not announce a route stop accurately, and a blind person ends up getting off at an incorrect stop, they can end up in a strange environment that they do not know. This can present safety risks.
d) If a person with hearing loss or other communication disabilities is not provided the communication supports to which they are entitled, this can create health and safety concerns e.g. if the person with hearing loss cannot hear a safety announcement, or is at a health care facility but cannot effectively communicate with health care professionals.
e) If a website that provides public health or safety information does not meet accessibility requirements, this can present health and safety concerns.
9. Likelihood of the AODA Alliance Making Public Information the Ministry Discloses
61. The AODA Alliance website documents that we regularly make public important information we receive from the Government regarding accessibility issues. Information we unearthed from the Government in response to my 2013 Freedom of Information application played an important role in recommendations that were made in the final report of the Mayo Moran AODA Independent Review, appointed by the Government to review progress towards accessibility under the AODA. We also share with the media and on social media important information that we obtain from the Government.
10. Substantial Benefits to the Ontario Government and the Public of Disclosing this Information
62. I and the AODA Alliance have devoted innumerable volunteer hours to give the Ministry and the Ontario Government advice, input and feedback on disability accessibility issues. For example, I have many times volunteered a substantial number of hours to meeting with ministers, deputy ministers, assistant deputy ministers, all the way to front-line Government staff.
63. I cannot count the number of times the Government has asked us for advice or input, to assist in its work. At times, we go to the Government to advocate on issues. At other times, the Government comes to us in person, by email or over the phone, seeking advice.
64. Adding to the time devoted to these activities are the great many hours devoted to drafting detailed briefs and submissions on issues where the Government has requested our input, gathering feedback from our supporters, and then finalizing those briefs. Those briefs are available on the AODA Alliance website. We have offered the Government detailed advice and feedback for free, on topics where the Government has used public money to hire a big private consulting firm. Neither I nor the AODA Alliance charges the Ontario Government for our time and effort in these activities. We have been told that our advice and feedback is helpful, thorough and well-organized.
65. We have drawn on the contents of information disclosed through my 2013 Freedom of Information application and on information disclosed to date under the 2015 Freedom of Information application, to formulate some of the free advice and input I describe here.
66. From my experience working as a lawyer at the Ministry of the Attorney General for 33 years before I retired in December 2015, and from my extensive dealings with the Ontario Public Service over my 22 years doing volunteer accessibility advocacy for people with disabilities in Ontario, I know that public servants are regularly called upon to prepare briefings and briefing notes for senior officials, such as assistant deputy ministers, deputy ministers, ministers and the Premier. This is especially so in the case of high profile issues, such as issues which can come up in the media and in the Legislature.
67. In my experience, these senior officials need and want such briefing resources in hand in advance, for example, in case a reporter asks a question about it, or an opposition member raises a question about it during proceedings at the Legislature.
68. I would expect that information which my 2015 Freedom of Information application addresses fit within such topics. The Government’s efforts to enforce and implement the Accessibility for Ontarians with Disabilities Act, and its efforts on accessibility at the 2015 Toronto Pan/ParaPan American Games secured attention in the media and the Legislature. As such, the Government benefits from having information, such as I have requested, in hand in order to be able to address such questions.
11. The Ministry’s Dropping Its Demand for a Fee in Response to My 2013 Freedom of Information Application
69. When the Ministry agreed in November 2013 to give me all the information and records I requested without charging a fee, I was told this at a meeting that included the then-Economic Development Minister Eric Hoskins, as well as the then-deputy minister and some other senior ministry public officials. No one, to my memory, specifically stipulated that this is not a “fee waiver,” or that it was somehow outside the FIPPA process. My recollection is that I was then told that when the information was released to me, my Freedom of Information application would thereafter be treated as closed. That seemed both obvious and inconsequential to me. I don’t claim to recall the exact words used. I was not asked to sign any release, or agreement that this did not constitute a fee waiver under the Freedom of Information legislation.
12. Burdens on Me and the AODA Alliance
70. Pressing this Freedom of Information application has imposed real and significant time burdens on me. It is a very frustrating process, made even more so when, on more than one occasion, the very Ministry that is responsible for leading Ontario on accessibility has persisted at times in sending me correspondence in an inaccessible format, despite my requests to always be sent accessible documents.
71. It is enormously frustrating to ask the Government more than once what more it needs from me to address the fee waiver request, and for the Government to raise the fund-raising issue, described above, at the last minute, as if it were decisive. It is similarly enormously frustrating to have the Government raise the spectre of claiming exemptions to disclosure, only this past December, and even then, an inaccessible inkprint letter.
72. The hours and hours I have spent reviewing and responding to Ministry correspondence, drafting affidavits and memoranda of argument, were hours that could instead have been spent researching and preparing proposals on what the Government should include in its promised Education Accessibility Standard and Health Care Accessibility Standard, and in revisions to its Transportation Accessibility Standard, Information and Communication Accessibility Standard and Employment Accessibility Standard. There are only so many volunteer hours in a day. I fear that the Ministry’s conduct will deter many from seeking such important public information if they know they will run into such an ordeal when trying to help ensure that the Ontario Government leads Ontario to full accessibility by 2025, as it is obliged to do under the Accessibility for Ontarians with Disabilities Act.
Affirmed before me this 31th day of January, 2017.
Commissioner of Oaths