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Toronto Star Reports on Massive Private Sector Violations of Ontario’s Disability Accessibility Law and Continued Weak Enforcement – Wynne Governments Reported Response Is Quite Troubling

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance

January 27, 2016

SUMMARY

An excellent article published in the Toronto Star one month ago, while the AODA Alliance email Update service was off on holidays, remains current and important! The Toronto Star’s December 14, 2015 edition include a powerful report reported on the fact that there remains in Ontario massive private sector non-compliance with the Accessibility for Ontarians with Disabilities Act, and inadequate AODA enforcement by the Wynne Government, despite the fact that the Government has unused budget on hand that could have been used to beef up AODA enforcement. AODA Alliance Updates and media coverage shows that this has been going on for fully three years! We set the Star’s article out below, along with our analysis of it, our response to the Government’s statements in the article, and links to key background information on this issue.

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MORE DETAILS

1. Text of An Article in the December 14, 2015 Toronto Star

Toronto Star December 14, 2015

Originally posted at: http://www.thestar.com/news/gta/2015/12/13/thousands-of-ontario-businesses-missing-accessibility-deadlines.html Thousands of businesses miss accessibility deadlines; Government hasn’t done enough to crack down on offenders, lawyer says

Tara Deschamps

Thousands of Ontario businesses have missed deadlines aimed at making the province accessible by 2025, but the government isn’t using all its resources to crack down on them.

Some 65 per cent of businesses with at least 20 employees did not file mandatory accessibility reports due in 2012, provincial documents disclosed to a disability advocacy organization through a freedom of information request revealed. They also show that 58 per cent did not file compliance reports due at the end of 2014.

The reports are part of legislation undertaken by the province to develop, implement and enforce accessibility standards for goods, services, facilities, accommodations, employment and buildings by 2025.

“It is enormously frustrating,” said lawyer David Lepofsky, who filed the requests on behalf of the Accessibility for Ontarians with Disabilities Act (AODA) Alliance.

“At the rate we are going at now, I don’t think we will ever reach full accessibility.”

Part of his frustration stems from a cache of money the government has available to use on compliance enforcement, but hasn’t.

Last year’s unspent total reached $1.3 million.

“They have the power to do the enforcing and the money to do the enforcing and yet we have rampant non-compliance and unspent money,” said Lepofsky.

“It’s one thing for a government to say we would love to do more but we don’t have the money, but they are not doing more and they have the money … ”

But Economic Development Minister Brad Duguid refused to equate having unspent money with a lack of progress.

“To suggest that because you don’t spend every last dime in your budget, you’re not fulfilling your mandate is incorrect,” he fired back at Lepofsky.

“We are fulfilling our mandate, but there are times you can do that and come in under budget.”

Compliance rates, he told the Star, have already jumped to 40 per cent from 20 per cent and the government has taken on ambitious projects aimed at increasing awareness.

Duguid conceded that the progress made so far “is nowhere near where we are satisfied and where we think we ought to be,” but maintained that “we have done more in the last 12 months on accessibility than I would suggest any government probably in North America.”

In February, however, he revealed the government would be conducting 1,200 “compliance activities” in 2015 – less than the 2,000 completed last year and 1,900 the year before.

An independent review earlier in the year criticized AODA regulations as too weak and confusing.

2. Background: Three years of Insufficient Enforcement Action and Our Ongoing Efforts to Unearth What’s Going On

The frustrating saga of the AODA Alliance’s uphill battle over the past three years to get the Ontario Government to keep its election promises to effectively enforce the AODA is long and troubling. Links to the Government’s promises of effective AODA enforcement are provided at the end of this Update.

Three years ago, in January 2013, we asked the minister then charged with AODA enforcement, John Milloy, for information on levels of AODA compliance and the Government’s enforcement plans. The Government did not answer for months.

AODA Alliance Chair David Lepofsky had to resort to a Freedom of Information application in August 2013. The Government tried charging him $2,325 for the information he sought. For this, the Government was blasted in October 2013 in the Legislature and in a Toronto Star editorial.

As a result, the Government backed down in November 2013. It handed over all the requested information, free of charge.

Government documents that we unearthed showed that the Government had known of rampant private sector AODA violations. We also revealed that back then there was little if any AODA enforcement aimed at the private sector, even though the Government had unused funds for AODA implementation on hand, and had promised to effectively enforce the AODA.

Once it was publicly embarrassed by these revelations, the Government agreed in November 2013 that the situation of sweeping AODA non-compliance in the private sector was unacceptable. It promised to do better.

the Government launched an initial enforcement blitz in late 2013 and 2014, aimed at about 3,250 of the more than 30,000 private sector organizations with at least 20 employees, known to be violating the AODA. The Government said that this resulted in a substantial improvement in compliance, among those targeted organizations.

What we learned from the experience in 2013-14 is that when the Government effectively deploys enforcement powers at a group of obligated private sector organizations, this can far more effectively lead to substantial increases in those organizations’ compliance. That, of course, makes perfect sense. In contrast, when the Government sits on its enforcement hands, as has been the case for too much of the past five years, a clear majority of private sector organizations don’t comply.

On February 13, 2015, almost one year ago, the Wynne Government made public the landmark report of the Mayo Moran AODA Independent Review. That report was critical of the Government’s insufficient AODA enforcement, especially in the face of such rampant known AODA violations and made recommendations.

In the face of that Report, the Government should have quickly ramped up AODA enforcement. Instead, The Government, by its actions, in effect rejected or disregarded what the Government’s own Independent Review had said. The minister responsible, Economic Development Minister Brad Duguid, wrote us on February 19, 2015 to announce that he had cut by over one third the number of organizations to be audited in that year for AODA compliance. He made a bad situation worse.

This in turn led to yet more adverse media coverage for the Government on the AODA enforcement topic. As a result, on June 3, 2015, the Government made it sound like it would shift gears. Minister Duguid announced that he intended to eventually double the number of organizations to be audited under the AODA. Yet this would not be fully achieved until some future, as yet unspecified year.

On June 4, 2015, AODA Alliance Chair David Lepofsky filed another Freedom of Information application to get current information on AODA enforcement and implementation. Again, the Government tried to block access to this information by telling David Lepofsky he must pay $4,250 to get this information. The Government took the position that it was simply irrelevant that in 2013, the Government eventually backed down from insisting on a hefty fee to get access to similar information.

Late last fall, the Wynne Government eventually gave David Lepofsky a part of the information he had requested, at no charge. We received this information fully five months after it was requested. Some of that information formed the basis for the Toronto Star’s December 14, 2015 article, set out above.

Yet the Government is still insisting that David Lepofsky must pay $4,250 for the rest of the information his June 4, 2015 Freedom of Information application requested. That saga continues.

We also continue to wait to see when the Government’s June 3, 2015 promise of doubled AODA enforcement will become a reality. Among the information the Government has refused to disclose unless paid $4,250 are the Government’s current enforcement plans.

3. Our Response to the Wynne Government Statements in the December 14, 2015 Toronto Star Article

The Toronto Star’s December 14, 2015 article on AODA enforcement provides one of those rare glimpses into the Government’s thinking on this issue. The Star interviewed Economic Development Minister Duguid, the AODA’s enforcer-in-chief. He was the minister in charge during last year’s substantial Government cutback to already-weak AODA enforcement.

Here is what reportedly was said, and our take on it. At the end of this Update, we provide links to key background on which we draw in providing this assessment.

* the article states:

“But Economic Development Minister Brad Duguid refused to equate having unspent money with a lack of progress.

“To suggest that because you don’t spend every last dime in your budget, you’re not fulfilling your mandate is incorrect,” he fired back at Lepofsky.

“We are fulfilling our mandate, but there are times you can do that and come in under budget.””

AODA Alliance Response:

It is untrue for the Government to say it is fulfilling its mandate. the Government is not keeping its promise to effectively enforce the AODA. There is obviously need for more enforcement, based on the Government’s own internal data.

Minister Duguid’s remark misses the point. We are not saying that the Government proves it fulfils its mandate by simply spending its entire budget. Instead, it fulfils its mandate by effectively using its budget to get the results to which Ontarians are entitled.

The AODA requires the Government to lead Ontario to full accessibility by 2025. The final report of the Mayo Moran AODA Independent Review shows that we are not on schedule. Government records and the Government’s own enforcement experience show a pressing need for more AODA enforcement. The unspent AODA budget shows the Government can afford to engage in more enforcement. To this compelling argument, the Government offers no direct answer.

From Government documents we unearthed last fall, we know that as late as 2015, when the Wynne Government knew of rampant AODA violations, insufficient AODA enforcement, and available unspent budget, the Government only had scant staffing for AODA enforcement. To enforce the AODA right across Ontario, the Government had only appointed a mere three directors and one inspector. For the Government to consider that to be fulfilling the Government’s mandate is to take an impoverished view of that mandate.

* Referring to Minister Duguid, the article states:

“Compliance rates, he told the Star, have already jumped to 40 per cent from 20 per cent and the government has taken on ambitious projects aimed at increasing awareness.”

AODA Alliance Response:

The increase in compliance rates to which the Wynne Government appears to refer, largely if not entirely occurred two or three years ago. They do not appear to be substantially due to any new Government effort. Those earlier compliance increases simply brought the non-compliance rate down from an even higher percentage than the more recent and unacceptable 65% to which the article refers.

The Government here says it “has taken on ambitious projects aimed at increasing awareness.” We have been shown no evidence that this has substantially increased compliance.

What businesses are now largely aware of, if they are aware of the AODA at all, is that they have too little to fear from the Government if they don’t comply. Moreover, among the information in David Lepofsky’s June 4, 2015 Freedom of Information application which the Government refused to disclose unless he pays $4,250, are details of earlier and new Government public education efforts.

* The article states:

“Duguid conceded that the progress made so far “is nowhere near where we are satisfied and where we think we ought to be,” but maintained that “we have done more in the last 12 months on accessibility than I would suggest any government probably in North America.””

AODA Alliance Response:

Earlier in the article, the Government said it was fulfilling its AODA mandate. Here, the Government conceded that the progress made so far “is nowhere near where we are satisfied and where we think we ought to be.” This seems contradictory.

As for the Government’s claim that it has in the last 12 months probably done more on accessibility than any other government in North America, this appears to repeat the wildly-exaggerated self-congratulatory claims that the Government has made about its AODA efforts in recent years, especially when it faces documented proof of its ineffective AODA implementation. One year ago, on February 13, 2015, the Wynne Government made a similar claim at the same time as it made public the damning final report of the Mayo Moran AODA Independent Review. The upshot of that report was that Ontario was not on schedule for full accessibility by 2025, and that after 10 years on the books, the AODA had not made a significant difference in the lives of people with disabilities. The Wynne Government responded with a news release on the same day, describing itself as a global leader on accessibility.

Minister Duguid’s claim in the December 14, 2015 Toronto Star article flies in the face of his admission when speaking to the media on June 3, 2015. He then admitted that the Government’s implementation of the AODA had been flagging somewhat in recent years, and needed rejuvenation. An excellent Press article by reporter Michelle McQuigge, published by CP 24 on June 3, 2015, included:

“The Ontario government says its latest plan to address the needs of people with disabilities is meant to re-energize a movement that has lost momentum in recent years.

Brad Duguid, minister of economic development, employment and infrastructure, said Wednesday that the plan is aimed at bringing the province closer to compliance with the Access for Ontarians with Disabilities Act (AODA), which went into effect 10 years ago.”

It also included:

“I think that over the last couple of years, it’s understandable, it’s a 20-year program, we’ve seen a bit of a flag in momentum,” Duguid said in a telephone interview.

“Well, as of today, I think we’re successfully reinvigorating momentum with a number of new, ambitious programs.”

4. Links to Key Background Information

To read the AODA Alliance’s December 2, 2015 analysis of the Government’s November 25, 2015 FOI disclosures, and to read the documents that the Government disclosed, visit http://www.aodaalliance.org/strong-effective-aoda/dec-3-2015-analysis-of-1st-batch-of-FOI-aoda-enforcement-disclosures.docx To read AODA Alliance Chair David Lepofsky’s June 4, 2015 Freedom of Information application, visit http://www.aodaalliance.org/strong-effective-aoda/06092015.asp

To learn about the AODA Alliance Chair David Lepofsky’s attempts to get the Wynne Government to waive its $4,250 fee for answering all of his June 4, 2015 Freedom of Information application, visit http://www.aodaalliance.org/strong-effective-aoda/11052015.asp

To read Economic Development Minister Brad Duguid’s February 19, 2015 letter to the AODA Alliance, revealing 2015 cuts to AODA enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/02252015.asp

To read the 2014 final report of the Mayo Moran 2nd AODA Independent Review, visit http://www.aodaalliance.org/strong-effective-aoda/Final-Report-Second-Legislative-Review-of-the-AODA.docx To read the Toronto Star’s February 28, 2015 editorial, blasting the Government’s 2015 cuts to AODA enforcement, visit http://www.aodaalliance.org/strong-effective-aoda/03022015.asp

To read the Toronto Star’s November 19, 2013 editorial, criticizing the Ontario Government’s failure to effectively enforce the AODA, visit http://www.aodaalliance.org/strong-effective-aoda/11212013.asp

To read the Toronto Star’s October 31, 2013 editorial on enforcement of the Disabilities Act, visit http://www.aodaalliance.org/strong-effective-aoda/11052013.asp

For the AODA Alliance’s response to the Wynne Government’s October 5, 2015 announcement of AODA enforcement targeted at retail establishments with at least 500 employees, visit http://www.aodaalliance.org/strong-effective-aoda/11022015.asp

To read the AODA Alliance’s January 22, 2013 letter to the Ontario Government, requesting the Ontario Government’s plans for enforcing the Accessibility for Ontarians with Disabilities Act, visit http://is.gd/XdwlVG

Learn more about AODA Alliance Chair David Lepofsky’s August 15, 2013 Freedom of Information application by visiting http://www.aodaalliance.org/strong-effective-aoda/08152013.asp

Dalton McGuinty’s August 19, 2011 letter to the AODA Alliance, promising effective enforcement of the AODA, is available at: http://www.aodaalliance.org/strong-effective-aoda/090220111.asp

Dalton McGuinty’s April 7, 2003 letter, promising a Disabilities Act with effective enforcement, is available at http://www.odacommittee.net/news80.html

Kathleen Wynne’s December 3, 2012 letter to the AODA Alliance, promising to keep all Dalton McGuinty’s disability accessibility commitments, is available at http://www.aodaalliance.org/strong-effective-aoda/12032012.asp

The transcript of the May 10, 2005 Queen’s Park news conference, held immediately after the Legislature passed the Disabilities Act, is available at http://www.aodaalliance.org/strong-effective-aoda/09272013.asp

To learn about the campaign from 2005 to the present to get the AODA effectively implemented and enforced, visit www.aodaalliance.org