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Despite Mayo Moran Independent Review Report Recommending that Ontario Should Beef Up Enforcement, the Wynne Government Plans to Cut Back on Enforcement of Accessibility for Ontarians with Disabilities Act, Even Though Violations of this Law Remain Rampant Among Private Sector Organizations with At Least Twenty Employees

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

Wynne Government at Last Has a Toll-Free Phone Number the Public Can Call to Report AODA Violations But You would not Know that from the Governments Website, or from the Audio Announcement When You Call that Number

February 25, 2015

SUMMARY

With only 9 years, 10 months and 3 days left for the Government to lead Ontario to become fully accessible for people with disabilities by 2025, the Ontario Government has taken the backwards step of planning to reduce its already-paltry enforcement of the AODA. This is so even though the Government knows that there remain rampant violations of that legislation among over 60% of private sector organizations with at least 20 employees. This is so also despite the fact that the final report of the Mayo Moran AODA Independent Review, delivered to the Government last November, recommended that the Government strengthen, and not weaken its enforcement of this important legislation.

This is revealed in a February 25, 2015 article in the Toronto star set out below. We first learned this information in a February 19, 2015 letter from Economic Development Minister Brad Duguid to the AODA Alliance, also set out below. Minister Duguid was answering our January 21, 2015 letter to him, in which we asked for detailed information about AODA compliance and enforcement.

According to Minister Duguids newest letter, 33,097 of the 53,181 private sector organizations in Ontario with at least 20 employees have violated the AODA, by failing to file a mandatory accessibility self-report with the Government by the end of 2014. Fully 28,357 failed to file that mandatory accessibility self-report in 2012 and 2014. That makes them repeat offenders.

Yet in the face of this, Minister Duguids letter reports a huge cut in the number of those organizations that the Government will audit in 2015. In 2013, the Government audited 1,906 private sector organizations. In 2014, it audited 1,954 organizations in the private sector. Yet, in 2015, the Government plans only to audit 1,200, a reduction of about 800 private sector organizations.

The Government has promised us over and over that the AODA would be effectively enforced. On May 10, 2005, when the Legislature unanimously passed the Disabilities Act, the Government proudly proclaimed at a Queens Park news conference that there would be spot audits, inspections, and available monetary penalties and enforcement for violators. Then-Minister Marie Bountrogianni reiterated why it is important for the AODA to be effectively enforced, not voluntary, referring to the previous Conservative Governments weak and unenforceable disability law:

They will be given of course chances to remedy their situation. It’s not about punishment. It’s about doing the right thing. However if they do not comply, there is a fine — fifty thousand dollars for individuals and a hundred thousand dollars for corporations. So we’re serious. That was missing in the previous act. That was one of the things that was missing in the previous act. And without that enforcement compliance, when you just leave it to the good will of the people, it doesn’t always get done. And so we know that we know that from the psychology of human nature. We know that from past research in other areas, like the environment, like seatbelts, like smoking. And so we acted on the research in those areas.

We know from information the Government has previously given to us that when the Government actually does deploy its enforcement powers, they get a high rate of improved compliance. We have also documented that the Government has money on hand to conduct more enforcement efforts. In every year since the AODA was passed in 2005, the Accessibility Directorate has been under-budget. A total of 26.2 million dollars in its budget over those years has gone unspent.

On a related topic, in our January 21, 2015 letter to Minister Duguid, we asked what steps the Government had taken to keep Premier Wynnes 2014 election promise to establish and publicize a toll-free number for the public to report AODA violations. That promise was set out in Premier Wynnes May 16, 2014 letter to the AODA Alliance, during last years election campaign. We have been campaigning for that toll-free line for over two years.

In his February 19, 2015 reply, Economic Development Minister Duguid said that the public can now call toll-free to 1-866-515-2025 to report AODA violations. In the Toronto Star, a spokesperson for the Minister made it seem as if this has been available to the public for some four years. We dont understand why, if that line had been available for four years, the Government would not tell us. We dont know why Premier Wynne would promise to establish such a phone line in last years election, if it had already existed for years.

We could find no Government announcement on the web telling the public that they can use this phone number for that purpose. If you Google that phone number, the Governments website says it is for organizations to learn how to comply with the AODA. The audio announcements on that phone number, as of the start of this week, do not tell a caller that they can use this number to report AODA violations. AODA Alliance chair David Lepofsky has twice tried calling this number to report an AODA violation. The first time was on February 19, 2015, minutes after receiving Minister Duguids letter. The second time was on Monday, February 23, 2015.

During his first attempt, the operator told him that they dont take reports of AODA violations on that number. The operator referred him to the option of personally filing a human rights complaint with the Ontario Human Rights Tribunal. On the second attempt, four days later, the operator routed his call to an operator at the Accessibility Directorate of Ontario, who said he would take the report of an AODA violation.

We are concerned that up until now, this number has not been publicized to the public at all, despite Premier Wynne promising to establish and publicize this number. The Government should now widely publicize it. Moreover, a caller who dials that number would, as of the start of this week, have no idea from the announcement on the phone line that it is a place to report AODA violations.

We encourage anyone who experiences or witnesses an AODA violation to call 1-866-515-2025. Select your language. Then press 1 for an individual calling, not an organization. Then you should press 0 to get to an operator.

We will have more to say about this toll-free number in future AODA updates. We dont know what number the Government has for TTY calls, but will provide it when we obtain it.

Below we set out:

* The Toronto Stars February 25, 2015 article.

* Economic Development Minister Duguids February 19, 2015 letter to the AODA Alliance.

* A few excerpts about AODA enforcement from the final report of the Mayo Moran AODA Independent Review (Professor Moran has more to say on enforcement than what we set out below); and

* Links to important information on this topic.

MORE DETAILS

1. Toronto Star February 25, 2015

Originally posted at http://www.thestar.com/news/gta/2015/02/24/ontario-to-reduce-enforcement-of-accessibility-law.html Ontario to ease crackdown on accessibility law; Fewer businesses will face inspection despite report urging more action
Graphic: Activist David Lepofsky blasted the province for its “rampant private sector violations” of the accessibility act.

Ontario plans to conduct fewer compliance inspections this year, even though more than 60 per cent of businesses are still in violation of the province’s landmark accessibility legislation, according to new government data.

This is despite an independent review last month that urged the province to step up efforts to enforce the Accessibility for Ontarians with Disabilities Act (AODA).

“The Wynne government knows rampant private-sector violations of the AODA persist,” said accessibility activist David Lepofsky, head of the AODA Alliance. “And yet the government plans to substantially reduce its already-paltry enforcement, rather than expand it.”

Under the act, passed unanimously in 2005, the government is responsible for developing, implementing and enforcing accessibility standards for Ontario’s 1.8 million people with disabilities by 2025. The act covers goods, services, facilities, accommodation, employment and buildings.

As part of the legislation, the province’s 53,000 private businesses with 20 employees or more had to file online reports by the end of 2012 on how they accommodate customers with disabilities, train staff and receive customer feedback. They were required to update their reports by the end of last year.

But so far, 65 per cent of businesses still have not filed their 2012 accessibility reports and 60 per cent have failed to meet the 2014 deadline, said Economic Development Minister Brad Duguid, in a letter to Lepofsky last week.

Duguid, responsible for the accessibility legislation, acknowledged the government “has more work to do.”

But instead of boosting enforcement measures, Duguid’s letter reveals the government will be conducting just 1,200 “compliance activities” in 2015. That is considerably less than last year when 2,000 audits were completed and fewer than 2013 when the government audited 1,900 businesses, Lepofsky said.

A spokesman for Duguid said the ministry is concentrating this year on pilot projects with the ministries of labour, transportation, and training, colleges and universities to improve private sector compliance with the act.

Andrew Forgione said the government is also working on a new accessibility standard to address barriers in the health-care sector, as recommended by both the disability community and last month’s independent review by University of Toronto Provost Mayo Moran.

Lepofsky is also angry that Duguid’s letter is the first time he heard the government has set up a long-awaited toll-free phone line to report AODA violations. “This is something we have been calling for since 2012 and which Premier Wynne promised in the 2014 election,” he said.

A toll-free AODA line (1-866-515-2025 FREE) has been operating for at least four years to answer questions, hear feedback and raise awareness of the legislation, Forgione said Tuesday.

But Queen’s Park has been improving the line since last fall to reflect the premier’s campaign promise and Moran’s recommendations from her review released Feb. 13, he said.

The recorded message will be updated by the end of the week to make it clear that individuals are welcome to comment and lodge complaints, Forgione said.

Laurie Monsebraaten
Toronto Star

2. Text of Economic Development Minister Brad Duguids February 19, 2015 Letter to the AODA Alliance

Ministry of Economic Development,
Employment and Infrastructure
Office of the Minister
8th Floor, Hearst Block
900 Bay Street
Toronto, ON M7A 2E1
Telephone: 416-325-6900
Facsimile: 416-325-6918

February 19, 2015

Mr. David Lepofsky
Accessibility for Ontarians with Disabilities Act Alliance
1929 Bayview Avenue
Toronto, Ontario
M4G 3E8

Dear Mr. Lepofsky:

Thank you for your letter of January 21, 2015, regarding the enforcement of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). I am pleased to respond to your enquiries on this important topic.

I want to begin by saying that our government is fully committed to making Ontario accessible by 2025. I know this is a goal you share passionately, and I thank you for your efforts to help us reach this important milestone.

The AODA is a significant piece of legislation, directly or indirectly touching the lives of all Ontarians, and so I was pleased that Provost Mayo Morans recently tabled review of the AODA found strong support for accessibility across the province. We are carefully reviewing all of Mayo Morans recommendations, and thank her for the advice she provided.

We are making real progress in many of the areas identified in the report including increased business reporting rates. The review also identified areas where improvements can be made, so the Ministry of Economic Development, Employment and Infrastructure will continue to work with a broad range of partners in the private, public and non-profit sectors to ensure understanding and compliance with the AODA and its standards.

I have tried to answer most of your questions in the body of this letter; for your convenience, the more technical data are captured in the Appendix.

In December 2014, I committed to tabling Provost Morans review at the earliest opportunity. Provost Moran submitted her report in late 2014; the Act requires the report to be tabled in the Legislative Assembly before being made publicly available. The report was approved by Cabinet and acknowledged by the Lieutenant Governor in Council on February 4, 2015. The government tabled the report in the Legislature on February 12, 2015, and made the report public the next day.

In response to your question about a phone number to report AODA violations, the ministry already has a system in place to answer questions through its call centres. The call centres use a toll-free number where the public can also submit feedback and lodge complaints. This information can be used to inform public education and outreach activities. The toll-free number is 1-866-515-2025.

As I have repeatedly stated in the past, the act is not complaints-based legislation the goal is to promote the proactive removal and prevention of accessibility barriers through implementing and enforcing standards. Individuals who believe their rights have been violated can file an application with the Ontario Human Rights Tribunal.

You asked about the number of public sector organizations required to file accessibility reports; I am happy to report that as of July 28, 2014, all 825 public sector organizations required to file a report had done so.

When it comes to private sector organizations, there is more work to do: 65 per cent of the organizations that were required to file a 2012 Accessibility Report have not filed. As of February 2015, 60 per cent of organizations required to file a 2014 Accessibility Report have yet to file.

As a result, the government will be conducting over 1,200 compliance activities on organizations in 2015, including reaching out to organizations that have never filed an accessibility compliance report. If these organizations do not come into compliance, they may be subject to inspections, notices of order, directors orders and possible prosecution.

As of the reporting deadline on December 31, 2014, 38 per cent of obligated organizations had submitted a report indicating their compliance. This represents a 150 per cent increase in the number of reports filed compared to the 2012 deadline.

It is important to note that enforcement is a means to an end; the goal is a more accessible province for all Ontarians, not more enforcement action. By following a compliance continuum that focuses on helping organizations understand and meet their requirements, and using enforcement action only when necessary, the directorate has been able to resolve cases of non-compliance with public sector organizations without the need for enforcement action. Please see our Compliance Action Plan Report posted online for more statistics on compliance and enforcement with the private and not-for-profit sectors.

The directorate has a number of tools that it can use to address areas of non-compliance, including audits, orders and administrative penalties. Given the directorates success in identifying and addressing areas of non-compliance using these tools, the use of inspections has not been required to date, and neither compliance orders nor monetary penalties have been issued to broader public sector organizations. To date, the directorate has not needed to file a penalty with a local registrar of the Superior Court of Justice and therefore there have been no appeals to date. Information regarding compliance and enforcement activities for the private sector is included in the appendix.

With respect to additional enforcement activities, in spring 2013, my ministry partnered with the Ministry of Labour to add an accessibility component to their outreach survey to small businesses. We also partnered with the Ministry of Training, Colleges and Universities that year to help improve compliance reporting. In 2013-14, we partnered with the Ministry of Transportation to help improve compliance for private sector organizations. A second pilot project with the Ministry of Labour focused on improving private sector compliance began in October 2014 and is ongoing.

The focus of these pilot projects has been on private and not-for-profit sector compliance. Twenty-one organizations were audited as a part of the Ministry of Transportation pilot project. The ongoing Ministry of Labour pilot project will result in up to 50 site visits and audits to confirm compliance. The ministry continues to explore the potential cross-appointment of inspectors or investigators from other ministries to support enforcement activities under the act.

No less important than enforcement activities is the need to raise the profile of accessibility, and to celebrate our successes. Our government continues to recognize people who are working to improve accessibility: last year, we launched the annual David C. Onley Award for Leadership in Accessibility, which will recognize four individuals and organizations who demonstrate leadership in accessibility and disability issues. The inaugural awards will be presented this June during National Access Awareness Week.

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 ministers 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.

Per the 2014-15 Estimates, the 2014-15 budget for the Accessibility Directorate of Ontario is $15,071,800. The public account for fiscal year 2014-15 is released within 180 days after the fiscal year ends (March 31).

As an employer, policy-maker and service provider, the Ontario Public Service is committed to leading by example in the area of accessibility. I am working collaboratively with my colleague, the Minister of Government and Consumer Services, to ensure that the Ontario Public Service is inclusive, diverse, equitable and accessible at all levels.

We will continue to work closely with the Ontario Human Rights Commission to help private, non-profit and broader public sector organizations understand how the law and the human rights code work together to promote inclusion and accessibility in Ontario.

This summer, the 2015 Pan Am/Parapan Am Games will provide an opportunity to showcase Ontarios accessibility leadership by featuring accessible transportation, travel information, seating, training and sport infrastructure. We expect these games to be the most accessible Pan Am / Parapan Am Games to date.

Over the coming months, I will carefully review and consider Provost Morans recommendations, which will help to inform the development of a comprehensive accessibility plan that will clearly outline the path forward as we continue building an accessible province by 2025.

Thank you again for your efforts to help make Ontario accessible. I hope we can continue to work together to make Ontario a place where everyone, regardless of their abilities, is able to reach their full potential.

Sincerely,

Original signed by

Brad Duguid
Minister

c: The Honourable Kathleen Wynne, Premier
Giles Gherson, Deputy Minister of Economic Development, Employment and Infrastructure and Deputy Minister of Research and Innovation
Ann Hoy, Assistant Deputy Minister, Accessibility Directorate of Ontario, Ministry of Economic Development, Employment and Infrastructure
Steve Orsini, Secretary of the Cabinet, Head of the Ontario Public Service

APPENDIX TO AODA ALLIANCE LETTER

The Directorate uses Statistics Canadas Establishment Counts for Ontario dataset from Canadian Business Patterns to determine the total number of private sector organizations in Ontario with 20 or more employees. In 2013, there were 53,181 organizations in Ontario with 20 or more employees.

As of December 31, 2014, there were 33,097 private sector organizations that had yet to file an Accessibility Report.

There are 28,357 private sector organizations that were required to file both a 2012 and 2014 accessibility report, but had not filed either required report as of January 18, 2015.

Below is the number of public and private sector organizations audited by year by the Directorate:

2010 36 public sector organizations
2011 41 public sector organizations
2012 200 public sector organizations
2014 218 public sector organizations

2013 Audits = 1906 private sector organizations
2014 Audits = 1954 private sector organizations

The Directorate has issued 3,573 compliance orders to private sector organizations. These Orders include Notice of Proposed Orders and Directors Orders with administrative penalties. Compliance orders were issued for non-compliance with s. 14 and s. 17 of the Accessibility for Ontarians with Disabilities Act.

The Directorate has issued 332 monetary penalties to private sector organizations, for non-compliance with s. 14 and s. 17 of the Accessibility for Ontarians with Disabilities Act.

In 2014, the License Appeal Tribunal reviewed 4 appeals from private sector organizations. All License Appeal Tribunal decisions (4) upheld the Directors Orders issued by the Accessibility Directorate of Ontario.

3. Some Excerpts from the Mayo Moran Final Report of the 2014 Independent Review of the AODA on the Issue of Enforcement:

* There can be no doubt of one central theme that emerged loud and strong from all of the consultations, and that is the vital importance of robust, effective and visible enforcement to the integrity of the AODA regime. A wide range of stakeholders reported that the lack of visible enforcement is a critical impediment that is holding Ontario back from achieving the 2025 goal for an accessible province. Just as the Ontarians with Disabilities Act was criticized by the disability community as toothless, some now feel the same way about the AODA. This concern, it should be noted, is by no means limited to disability advocates. Others, including business groups observed that the Government has shown little appetite to wield the substantial enforcement mechanisms contained in the legislation. The result as reported to the Review is a very mixed message about the importance of the AODA.

* Much of the enforcement discussion focused on the private sector. Figures released by the Government in November 2013 showed that only about 30 per cent of the 51,000 organizations with 20 or more employees that were required to file compliance reports had done so. Based on publicly available information, participants said there was no evidence of penalties having been imposed for non-compliance, undermining efforts to persuade organizations to meet their obligations. These statistics were said to bear out the anecdotal impression that businesses are not complying well.

* Disability stakeholders described the tolerance of such non-compliance as a stunning contrast with the way government enforces other laws, such as environmental protection measures. A number of consultants and disability groups that work with the private sector feel some businesses are waiting to see who gets fined and will not move until they see enforcement happening. As one participant put it, how effective would speed limits be without speeding tickets? Many called for the Government to take steps to ensure non-compliant organizations correct their infractions in a timely fashion. The Review was frequently told that a few high-profile fines could make a big impact. Despite weak public education efforts by Government, some disability stakeholders felt that the private sector has still had ample notice of the AODAs requirements. Hence they did not believe that enforcement should be delayed while publicity campaigns are ramped up.

A wide range of stakeholders reported that the lack of visible enforcement is holding Ontario back from achieving the 2025 goal for an accessible province. One asked, How effective would speed limits be without speeding tickets?

4. Key Links

To read the AODA Alliances January 21, 2015 letter to Economic Development Minister Duguid, seeking current information on the AODAs enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/01222015.asp

To read our November 18, 2013 revelation that the Government was failing to effectively enforce the Disabilities Act despite knowing of rampant private sector violations, and funds on hand for enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/11182013.asp

To read the Government’s February 20, 2014 pledge to publish in “short order” its plan for enforcing the Disabilities Act, visit http://www.aodaalliance.org/strong-effective-aoda/02202014.asp

To read the Governments May 14, 2014 election promise to establish a toll-free line to report disability accessibility barriers, visit http://www.aodaalliance.org/strong-effective-aoda/06132014.asp

To read the AODA Alliances February 13, 2015 news release, responding to the final report of the Mayo Moran AODA Independent Review, visit http://www.aodaalliance.org/strong-effective-aoda/02132015.asp

To read the AODA Alliances February 13, 2015 brief summary of key findings in the final report of the Mayo Moran AODA Independent Review, visit http://www.aodaalliance.org/strong-effective-aoda/02132015a.asp

To visit the Governments web page where it has posted the final report of the Mayo Moran AODA Independent Review originally only in PDF format, and later also in MS Word format (after we pressed the Government to do so), visit https://www.ontario.ca/document/legislative-review-accessibility-ontarians-disabilities-act To download the final report of the Mayo Moran AODA Independent Review in MS Word format, posted on our website, visit http://www.aodaalliance.org/strong-effective-aoda/Final-Report-Second-Legislative-Review-of-the-AODA.docx To read our analysis of the Governments paltry November 7, 2014 web posting on the AODAs enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/11182014.asp

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