Wynne Government’s Spending Priorities Are Questionable As It Continues to Drop the Ball on Keeping Its Promise to Effectively Enforce Ontario’s Accessibility Law
Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities https://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
February 12, 2016
SUMMARY
1. The News and Why It Matters
The Wynne Government has questionable spending priorities, when it comes to fulfilling its duty under the Accessibility for Ontarians with Disabilities Act to lead Ontario to full accessibility to people with disabilities by 2025, under nine years from now.
Last fall, the Wynne Government announced a controversial decision to hire the Deloitte firm to consult the public on the Government’s problem-ridden idea of a private accessibility certification process being established. A Government email, forwarded to the AODA Alliance by two of its recipients, reveals the Government is paying Deloitte a staggering $415,000 for this five-month project.
“Less than nine years remain for the Government to lead Ontario to full accessibility. Ontario is falling further and further behind schedule for reaching full accessibility by 2025, the deadline which Ontario’s accessibility law imposes”, said David Lepofsky, chair of the AODA Alliance, a non-partisan grassroots coalition that spearheads the campaign to make Ontario fully accessible to over 1.8 million people with disabilities. “This $415,000 would be far better spent on developing new accessibility standards that we need, to tackle accessibility barriers in our schools, residential housing, and health care system. Those funds could also be far more effectively spent on keeping the Government’s broken promise to effectively enforce Ontario’s accessibility laws.”
The provincial government continues to fail to fulfil its most basic obligations under the AODA. It appears instead to be dithering and thrashing about, trying to find some way to change the channel away from its fundamental duties under the AODA. The Wynne Government is required to create all the accessibility standards needed to lead Ontario to full accessibility by 2025, and to effectively enforce those accessibility standards. The Government knows of three straight years of rampant AODA violations among thousands of private sector organizations with at least 20 employees. Yet it is doing far too little to enforce this law. A private accessibility certification process can’t make up for this failure.
2. Finding Out About the $415,000 Deloitte Fee
The December 14, 2015 email from Accessibility Directorate of Ontario official Phil Simeon (forwarded to us by two of its recipients, Charles Silverman and Louise Bark) states:
“The contract with Deloitte covers the requirements for a consultation process that encourages transparent dialogue through all phases, where participants can openly express their views. Deloitte’s contract is valued at $415,000 over a five-month timeframe and services include:
o organizing and leading the in-person consultation sessions;
o building and maintaining the interactive website and social media presence; o gathering feedback from a wide range of stakeholders; and
o publishing information and reports from the dialogue occurring in each phase.”
On December 5, 2015, AODA Alliance Chair David Lepofsky wrote Economic Development Minister Brad Duguid, asking, among other things, how much the Government is paying Deloitte. Two months later, Mr. Duguid has still not answered.
When we learned about this fee from the email that we quote above, we offered the Government a chance to tell us if it denied its authenticity. In a January 31, 2016 email to Accessibility Directorate of Ontario official Phil Simeon, set out below, AODA Alliance Chair David Lepofsky asked Mr. Simeon to confirm that he sent the email quoted above, that revealed Deloitte’s $415,000 fee. Mr. Simeon has not responded. David Lepofsky’s January 31, 2016 email to Mr. Simeon, set out below, includes the text of Mr. Simeon’s December 14, 2015 email that Charles Silverman and Louise Bark forwarded to the AODA Alliance, and that reveals the Deloitte fee.
We have no reason to doubt its authenticity. It would be a remarkable coincidence for both Charles Silverman and Louise bark to each have forwarded to us that email, if it were not authentic. Both people are long-standing and dedicated accessibility supporters.
3. More Information about This and Why It is So Troubling
We recently learned yet more troubling information about the Deloitte project. In a February 5, 2016 conference call, Deloitte told us that the Wynne Government hired Deloitte to develop a business plan for a private accessibility certification process. That business plan will be made public. Any private organization can then use it, and decide if it wants to offer a private accessibility certification process. More than one private organization may decide to offer this certification service at the same time.
The “certifier” would be self-appointed. The Government would not be involved in selecting any organization or organizations to offer this service. The certifier would work independent of the Government. Set out below is AODA Alliance Chair David Lepofsky’s February 10, 2016 email to Deloitte, confirming this new information.
This is a very questionable use of hundreds of thousands of the public’s dollars, for several reasons. First, after the Government spends all this public money, no private organization may decide to come forward to offer this certification service. The public will have spent $415,000 for nothing.
Second, it may be that a company will come forward to offer a private accessibility certification process for a profit. That means that the public will have paid for the research. Then that private organization will make the profits. We have never before heard of a government using public money to create a business plan and then handing it to private businesses, at no charge, for them to make a profit.
Third, it also seems questionable that using tax dollars, the Government would hire Deloitte, a private for-profit consulting firm, to ask stakeholders including people with disabilities and disability organizations, to volunteer hours and hours of their time, to give Deloitte feedback so it can draft a business plan that a private organization would later use to run a revenue-generating or for-profit private accessibility certification process.
Fourth, the steep Deloitte fee is even more questionable since Deloitte indicated on the February 5, 2016 conference call that its final report will make no findings. It will just compile feedback has received. That seems a big price for such a project.
Fifth, the Wynne Government has not explained why it has hired a private firm to conduct this consultation. The Government’s Accessibility Directorate of Ontario has far more expertise in disability accessibility. It has extensive experience conducting accessibility public consultations. The Accessibility Directorate could run this consultation for much less than $415,000. The Government has not answered AODA Alliance Chair David Lepofsky’s December 5, 2015 letter to Economic Development Minister Duguid, where we asked why the Government used Deloitte instead of the Accessibility Directorate to run this consultation.
Sixth, for such a generous fee, we would expect Deloitte to do a very good job of reflecting the feedback it received. Yet as our February 1, 2016 AODA Alliance Update shows, Deloitte’s recent draft report on the first phase of its consultations ignored or rejected the AODA Alliance’s key feedback. Our feedback made a compelling case why the entire idea of a private accessibility certification process is fatally flawed and should not be pursued. If one reads Deloitte’s draft First Phase report, one would have no idea that such strong opposition had been voiced.
Important points we have made to Deloitte include:
a) The entire idea of a private organization certifying an obligated organization as “accessible” is fraught with inescapable problems. Obligated organizations will ultimately realize that a so-called “accessibility certification” through a private accessibility certification process is practically useless. It does not mean that their organization is in fact accessible. It cannot give that obligated organization any defence if an AODA inspection or audit reveals that the organization is not in compliance with an AODA accessibility standard, or if the organization is subject to a human rights complaint before the Ontario Human Rights Tribunal. An obligated organization cannot excuse itself from a violation of the AODA, the Ontario Human Rights Code or the Charter of Rights by arguing that thanks to its private accessibility certification, it thought it was obeying the law.
b) A private accessibility certification could mislead people with disabilities into thinking an organization is fully accessible in a situation where that organization is not in fact fully accessible.
c) Obligated organizations that spent their money on a private accessibility certification will understandably become angry or frustrated when they find that this certification does not excuse unlawful conduct. They will understandably share these feelings with their business associates. Ontarians with disabilities don’t need the Government initiating a new process that will risk generating such backlash.
d) A private accessibility certification could have a very limited shelf-life. When the Government enacts a new accessibility standard (as it has promised to do in the area of health care), or revises an existing one, (as the Government is required to consider every five years in the case of existing AODA accessibility standards), that certification would have to be reviewed once new accessibility requirements come into effect.
e) Any private certification process raises serious concerns about public accountability. The public will not be able to find out how it is operating, beyond any selective information that the Government or the private certifier decides to make public.
Seventh, Deloitte is now plunging into its contract’s second phase, designing the details of how a private accessibility certification process should work. It has recruited multiple working groups of volunteers and booked a good number of meetings, staffed by Deloitte, to dive into design details.
Yet the Government has made no clear announcement that it has in fact decided that there should be a private accessibility certification process. As our February 1, 2016 AODA Alliance Update shows, Deloitte’s draft First Phase Report does not squarely and thoroughly explore whether there should be a private accessibility certification process, a pivotal first issue.
Why are hundreds of thousands of public dollars now being spent to design the details of a private accessibility certification process, before any public decision is made and clearly announced, that we should proceed to that next step. Were the Government to review the feedback received to date, and decide that this is not worth pursuing any further, public money and community volunteer efforts would be saved. Economic Development Minister Duguid has not answered our request in our December 5, 2015 letter, that he clarify whether the Government has already pre-decided that there should be a private accessibility certification process.
The very idea of calling an accessibility consulting service or a website “Certified for Access” (the branding on Deloitte’s consultation website and Twitter feed) wrongly puts the cart far before the horse. If the question is still open, whether there will be a private accessibility certification process, then a project or website name that presupposes that it is a done deal is inappropriate.
Eighth, the loaded label “certified” is misleading. For some private organization to “certify” another organization as “accessible” makes it sound as if that “certifying” organization has some externally-imposed authority to grant a “certification.” Of course, it won’t.
A self-appointed private accessibility “certifier” would be a private organization that simply takes this role on itself, on a hope that it will be self-financing or profitable. It would have no public mandate to “certify” anything. At most, it is playing the role of a self-appointed private accessibility consultant. Yet its private accessibility advice would, through branding and marketing, be misleadingly over-inflated to sound as if it constitutes an official and authoritative stamp of approval.
4. Being Forced to Resort to Another Freedom of Information application
Because the Wynne Government has refused for over two months to answer important questions that swirl around this dubious Deloitte venture, AODA Alliance Chair David Lepofsky has had to again resort to a Freedom of Information application. On February 11, 2016, he filed a new Freedom of Information application with the Economic Development Ministry. Its key contents are set out below. It seeks the key information that we asked of Economic Development Minister Duguid in our December 5, 2015 letter, and which the Wynne Government has not answered.
The Wynne Government has a regrettable practice of claiming huge search fees for our Freedom of Information applications. This application is carefully worded to not require the Government to have to make much effort at all to locate the information requested.
5. Links to Helpful Background Information
To download in an accessible MS Word format the AODA Alliance’s February 1, 2016 written submission to the Deloitt company on the first phase of its private accessibility certification process consultation, visit https://www.aodaalliance.org/strong-effective-aoda/feb12016-aoda-alliance-accessibility-certification-submission-to-deloitt-final.docx You can download the Deloitte company’s draft report on the first phase of its publicly-financed consultation on a private accessibility certification process, in MS Word format, by visiting https://www.aodaalliance.org/strong-effective-aoda/Phase-1-Deloitt-Report-Identifying-the-Issues.docx You can see the Government’s original announcement of this consultation by visiting https://www.aodaalliance.org/strong-effective-aoda/11252015.asp
Check out the AODA Alliance’s December 5,2015 letter to Economic Development Minister Brad Duguid (which the Government has not answered), seeking more details about its private accessibility certification process, by visiting https://www.aodaalliance.org/strong-effective-aoda/12052015.asp
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MORE DETAILS
1. January 31, 2016 AODA Alliance Chair David Lepofsky Email to the Accessibility Directorate of Ontario Which Includes the December 14, 2015 Email from Accessibility Directorate of Ontario Official Phil Simeon
To: Mr. Phil Simeon, Accessibility Directorate of Ontario
Via Email: Phil.Simeon@ontario.ca
CC: Charles Silverman
From: David Lepofsky, Chair, AODA Alliance
Date: January 31, 2016
Mr. Charles Silverman has forwarded to us what appears to be an email exchange between you and him in December 2015 regarding the Deloitt consultation on the proposed Accessibility Directorate of Ontario. We have no reason whatsoever to doubt its authenticity. May I ask you to let me know if you confirm or dispute that you had this email exchange, set out below. I have removed Mr. Silverman’s email address but otherwise left the exchange that he forwarded to me intact.
It would be very much appreciated if you could let us know as soon as possible. As well, please confirm that you received this email, and let me know your position at the Accessibility Directorate of Ontario.
Thank you in advance for your help.
Sincerely,
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
Text of Email Exchange Between Charles Silverman and Phil Simeon
From: “Simeon, Phil (MEDEI/MRI)”
Subject: RE: Accessibility Certification Roundtable Session – Last Logistics Date: December 14, 2015 at 4:12:02 PM EST
To: Undisclosed recipients
Thanks to all of you who have taken the time to write with your comments and questions following our public engagement session last week.
As we all work to keep this ongoing process as transparent as possible, I’d also like to encourage you to also post comments about our ongoing public engagement on the certifiedforaccess.ca site so they can be read and discussed by as wide an audience as possible. Certainly, any constructive feedback we receive during this problem-identification phase of our consultation is welcome.
Although it is difficult to cover every issue and question raised in this recent correspondence, I’d like to address the two main ones that have arisen: The issue of payment for participants in this public engagement and the details of our engagement with Deloitte.
As is standard practice for government consultations in Ontario, participation in the process is on a volunteer basis.
Regarding the role of Deloitte, these consultations are being conducted in accordance with well-established Government of Ontario practices. This approach commonly involves an independent facilitator, in this case Deloitte’s project team, who were chosen after a competitive procurement process. Deloitte’s project team has extensive experience in open government consultation.
The contract with Deloitte covers the requirements for a consultation process that encourages transparent dialogue through all phases, where participants can openly express their views. Deloitte’s contract is valued at $415,000 over a five-month timeframe and services include:
o organizing and leading the in-person consultation sessions;
o building and maintaining the interactive website and social media presence; o gathering feedback from a wide range of stakeholders; and
o publishing information and reports from the dialogue occurring in each phase.
Please keep in mind, as we move forward, that the desired outcome of this process is the development of an independent, financially self-sustaining, made-in-Ontario certification model. It will not replace the requirements that organizations need to meet under the Accessibility for Ontarians with Disabilities Act (AODA). It is not intended to be a replacement or alternative to compliance and enforcement activities.
Phil Simeon | Manager | 416-326-6222
Accessibility Directorate of Ontario | Standards Development