Lepofsky Asks the Wynne Government to Reconsider This Refusal
Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
January 18, 2016
SUMMARY
When it comes to the accessibility rights of people with disabilities, how free is Freedom of Information in Ontario? Is Premier Wynne keeping her promise to ensure that hers is the most open and transparent government in Canada?
The Wynne Government has decided to refuse the request by AODA Alliance Chair David Lepofsky to waive its hefty $4,250 fee which the Government insists he must pay if the Government is to answer a substantial part of his June 4, 2015 Freedom of Information application. This Freedom of Information application seeks important up-to-date Government records and information about the AODA’s implementation and enforcement.
Below you can read the Government’s December 22, 2015 letter. It gives the Government’s reasons for refusing to waive its $4,250 fee.
The Government has agreed that financial hardship is a proper basis for asking for a fee waiver. However, the Government says that David Lepofsky has not provided “any evidence” that the unfunded unincorporated AODA Alliance has no funds.
In response, David Lepofsky wrote the Wynne Government on January 15, 2016. He asked the Government to reconsider its decision to refuse this fee waiver. He explained that his earlier letters to the Government last fall, asking for a fee waiver, are “evidence” where they state that the AODA Alliance has no funds. However, to help break this log jam, he also sent the Government his affidavit, which attests that the AODA Alliance has no funds. That affidavit is clearly “evidence.”
Back on November 4, 2015, David Lepofsky wrote the Government in support of his request for a Freedom of Information fee waiver. He asked the Government what more he could do to prove that the AODA Alliance has no funds. The Government has never answered that question.
The Government’s refusal of a fee waiver here is even harder to understand, since, as David Lepofsky’s affidavit repeats, the Government has twice in the past two and a half years agreed to drop its demands for large fees that it initially insisted on, in order to answer two earlier Freedom of Information applications concerning disability accessibility. In 2013, the Government eventually dropped its demand for a $2,325 fee. In 2014, it eventually dropped its demand for a $250 fee.
In both of these earlier instances, a key reason why David Lepofsky asked the Government not to insist on its fee was because the AODA Alliance has no funds. In the case of his 2013 Freedom of Information application about the AODA’s enforcement and implementation, it was not until the Government got blasted by the NDP in the Legislature during Question Period and in a Toronto Star editorial that the Government agreed to drop its $2,325 fee.
Does the Government think that AODA Alliance Chair David Lepofsky is not telling the truth about the AODA Alliance’s funds? Does it think that he is not in a position to know whether the AODA Alliance has no funds?
Last summer, the Wynne Government initially took the position that David Lepofsky must pay $4,250 before the Government would answer any of the requests for information in his June 4, 2015 Freedom of Information application. The Wynne Government eventually agreed last fall to his request that it not charge a fee to give him the parts of the requested information and records that it can provide without requiring much search time. On December 3, 2015, the AODA Alliance made public what we learned from the partial information disclosed as a result.
There remains undisclosed important Government records and information that David Lepofsky asked for in his June 4, 2015 Freedom of Information application, and which the Government still refuses to disclose unless he pays $4,250. It is good that the Government eventually gave him the parts of the requested information that can be easily gathered. It was wrong for the Government to include that information in its initial fee demand of David Lepofsky. It is also wrong for the Government to continue to refuse to waive that fee. We hope the Government will reconsider its position and do the right thing.
What information has the Government refused to disclose unless David Lepofsky pays $4,250? At the end of this Update, we set out the specific paragraphs that the Government has not answered, in David Lepofsky’s June 4, 2015 Freedom of Information application. The Government could readily gather much of the information that the Government refuses to provide. The unanswered requests can be summarized as follows:
Paragraph 4: What has Minister Duguid or his office asked his Ministry since June 2014 on levels of AODA compliance? What answers has he received?
Paragraph 5: A quarterly breakdown of Government AODA enforcement action in 2014 and 2015, broken down by economic sectors? This request tracks the content of public reports on AODA enforcement that the 2015 final report of the Mayo Moran AODA Independent Review recommended that the Government quarterly provide to the public. Why should anyone have to pay for the Government to reveal information that the Government’s own Independent Review recommended that it make public? Premier Wynne promised detailed annual AODA enforcement reports during the 2014 election.
Paragraph 10: Government plans since November 2013 for AODA enforcement. We would expect that with all the public and media attention on the inadequate enforcement of the AODA, the Government should easily be able to find its own 2014 or 2015 AODA enforcement plans.
Paragraph 11: Any studies or reports prepared by or for the Wynne Government since November 2013 on options for AODA enforcement.
Paragraph 15: What steps has the Government taken and does it plan to take to keep Premier Wynne’s 2014 election promise to publicize the Government’s toll-free number for the public to report AODA violations? Also a request for a breakdown of AODA violations reported to the Government on that phone line.
Paragraph 16: Records regarding the Government’s decision to cut by over one third the number of organizations it would audit in 2015 for AODA compliance.
Paragraph 18: What action has the Government taken and what future plans does it have for keeping Premier Wynne’s 2014 election promise to explore the possibility of having government inspectors and investigators under other laws also enforce the AODA and with what results?
Paragraph 21: the Government claims it does not have a detailed breakdown of the Accessibility Directorate of Ontario’s 2014 or 2015 spending, divided by AODA enforcement, development of accessibility standards and public education.
Paragraph 22: For the Government’s “enabling Change” grants program, a breakdown of annual budget and spending since 2008, and any readily-available listing of the projects funded each year and grants for each.
Paragraph 23: Where available, Economic Development Minister Duguid’s speaking notes for any speeches that address disability accessibility.
Paragraph 24: Specifics including money spent on the Government’s fall 2014 advertising campaign on the AODA, and plans and budget for any future campaign like this.
Paragraph 25: Since Minister Duguid has made public claims about the impact of the Government’s fall 2014 AODA advertising campaign, what information has the Government tracked and compiled on any changes in levels of compliance or numbers of inquiries of the Government associated with this advertising campaign?
Paragraph 27: What has the Ministry of Economic Development, Employment and Infrastructure done, and what new programs, policies or initiatives has it established, or existing ones has it modified, since May 28, 2013, to ensure that accessibility is integrated into all Ministry programs and activities?
Paragraph 28: From 2012 to the present, any record of proposals, options, research or recommendations by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games.
Paragraph 29: Records of the Government’s deliberations and decision from 2010 to consolidate the development of all future accessibility standards in the Accessibility Standards Advisory Council.
Paragraph 31: Any analysis or survey prepared after 2013 of laws in other jurisdictions in Canada or elsewhere around the world that address accessibility for people with disabilities.
From records we have eventually gotten from the Government so far under this Freedom of Information application, we have unearthed the following:
a) Rampant private sector AODA violations persist, known to the Wynne Government, almost three years after the AODA Alliance revealed this troubling trend.
b) The Wynne Government cut back on already-weak AODA enforcement in 2015 despite these known rampant AODA violations. It maintained those cuts throughout 2015 despite public and media outcry against these cuts.
c) Even in 2015, the Wynne Government continues to only have scant staffing for AODA enforcement. To enforce the AODA across Ontario, the Government has only appointed three directors and one inspector.
d) 2015 AODA enforcement cuts were not due to budget limitations. Government had 1.3 million dollars unspent in its AODA 2014-15 budget. Over the past decade, the Government has left unspent a total of 27.5 million dollars, budgeted for the AODA’s implementation and enforcement, since 2005, the year when the AODA was enacted.
e) The Wynne Government’s 2015 cutbacks to AODA enforcement remain unexplained.
f) The Government says it has no record of how much it spends each year on AODA enforcement.
g) Private sector organizations with under 20 employees are getting a virtual free pass from AODA enforcement. Of the hundreds of thousands of those organizations, only 9 were audited for AODA compliance in 2014 and the first half of 2015.
h) The Wynne Government’s failure to date to disclose a further breakdown of key detailed information on AODA enforcement, which AODA Alliance Chair David Lepofsky requested, flies in the face of recommendations of the 2014 Mayo Moran AODA Independent Review.
i) New disclosures from the Government reveal that last year, Premier Wynne sent misleading information to the AODA Alliance on Government staffing to work on embedding accessibility in Economic Development Ministry programs.
j) The Wynne Government is keenly aware of public concerns over AODA implementation and enforcement shortcomings. It planned a series of evasive answers for the media to deflect from these.
Here’s more on the theme of Premier Wynne’s promise to ensure that hers is the most open and transparent government in Canada. Economic Development Ministry Brad Duguid has still not answered the December 5, 2015 letter to him from AODA Alliance Chair David Lepofsky. In that letter, the AODA Alliance asked for important information, not covered in the June 4, 2015 Freedom of Information application.
Late last fall, the Government announced that it had hired the Deloitt firm to conduct a public consultation on the Government’s proposal to establish a private accessibility certification process. Our December 5, 2015 letter asked Minister Duguid to make public important information about that proposal and about the Deloitt consultation on it.
Below you can find:
* the Government’s December 22, 2015 letter to David Lepofsky.
* David Lepofsky’s January 15, 2016 letter to the Government, and
* the text of David Lepofsky’s January 15, 2016 affidavit.
* The specific items in David Lepofsky’s June 4, 2015 Freedom of Information application that the Government has refused to provide unless he pays $4,250.
You can read David Lepofsky’s June 4, 2015 Freedom of Information application by visiting https://www.aodaalliance.org/strong-effective-aoda/06092015.asp
You can read about the efforts last fall to try to get the Wynne Government to waive the $4,250 fee for answering this Freedom of Information application by visiting https://www.aodaalliance.org/strong-effective-aoda/11052015.asp
To read the AODA Alliance’s December 3, 2015 news release, revealing from the answers to parts of David Lepofsky’s June 4, 2015 Freedom of Information application, that there remains massive private sector non-compliance with the AODA, visit https://www.aodaalliance.org/strong-effective-aoda/12032015.asp
To read the AODA Alliance’s as-yet unanswered December 5, 2015 letter to Economic Development Minister Brad Duguid, seeking important information about the public consultation on the Government’s proposal to establish a private accessibility certification process, visit https://www.aodaalliance.org/strong-effective-aoda/12052015.asp
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We encourage you to use the Government’s toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.
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MORE DETAILS
Text of the Economic Development Ministry’s December 22, 2015 Letter to AODA Alliance Chair David Lepofsky
December 22, 2015
Dear Mr. Lepofsky,
RE: MEDEI 2015-12 Decision Fee Waiver
Thank you for your Freedom of Information request received by the Ministry on June 9, 2015 and final clarification of August 7, 2015.
In your initial FOI request and subsequent correspondence dated August 31, 2015, as well as in a more recent response to the Ministry on November 4, 2015, you indicated that you are seeking a fee waiver for any additional costs associated with this request.
At the time of the original FOI request, you asked to receive responses to parts of the request for information that the Ministry might be able to assemble in advance of the final release date. As you are aware, the Ministry accommodated this request, where possible, by providing responses to sixteen of the thirty-one questions in advance.
In order to assist you with your request for a fee waiver, the Ministry also provided you with an overview of the considerations that are necessary to determine if a request for a fee waiver meets the requirements of subsection 57(4) of the Freedom of Information and Protection of Privacy Act (the Act). Fees required by subsection 57(1) of the Act are mandatory unless it is determined that it is fair and equitable to grant a waiver of all or part of the fee, taking into account the considerations set out in section 57(4) (attached).
We have reviewed your request for consideration under subsection 57(4) of the Freedom of Information and Protection of Privacy Act (the Act), and have concluded that your request does not meet its requirements. The Ministry has not received sufficient documentation or any evidence to support your organization’s claim for a fee waiver based on a financial hardship. In the Ministry’s view, therefore, it would not be “fair and equitable” to grant a fee waiver in this circumstance.
With respect to a potential public interest in the records, this is not a consideration enumerated under subsection 57(4) of the Act or the regulations.
The Ministry remains committed to operating in an open and transparent manner, and has shown this through our previous efforts to work with your organization and provide documentation whenever possible, in a fair, affordable and equitable manner. We appreciate that, like the Ministry, your organization is determined to build an ever more accessible and inclusive Ontario, and we endeavour to work collaboratively on that front. Please feel free to contact Ministry officials to discuss your thoughts or provide suggestions at any time.
On a final note, per the respective governing laws, within 30 days of receiving this letter you may request that our decision concerning your application for a fee waiver be reviewed by the Information and Privacy Commissioner of Ontario.
The Information and Privacy Commissioner can be reached at the following address:
The Information and Privacy Commissioner of Ontario,
2 Bloor Street East, Suite 1400,
Toronto, Ontario, M4W 1A8
Tel: 1-800-387-0073
If you decide to request a review, please provide the Commissioner’s office with the following:
* Your name, address and telephone;
* The ministry name and file number assigned to the request; * A copy of this decision and the original request;
* A brief explanation of the basis for the appeal; and
* A cheque for $25.00 appeal fee (payable to the Minister of Finance)
If you have any questions, please contact Pat Carroll-Tougas at 416-326-1344 quoting the case number MEDEI 2015-12 assigned to your file.
Sincerely,
Original signed by Robert Burns
Robert Burns
Chief Administrative Officer
Assistant Deputy Minister
Corporate Services Division
c. Pat Carroll-Tougas
Text of AODA Alliance Chair David Lepofsky’s January 15, 2016 Letter to the Economic Development Ministry
January 15, 2016
Via Email
Pat Carroll-Tougas, FOI Coordinator
Service Management and Facilities Branch
Ministry of Economic Development, Employment and Infrastructure Hearst Block, Room 332
900 Bay Street
Toronto, ON M7A 2E1
Tel: (416) 326-1344
Fax: (416) 325-1118
Email: patricia.carroll-tougas@ontario.ca
From: David Lepofsky, CM, O. Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance
Email: aodafeedback@gmail.com
Re: Freedom of Information Request MEDEI 2015-12 –
I write to ask your Ministry to exercise its discretion to reconsider its refusal to grant a fee waiver for the estimated fee of $4,250 that it proposes to charge in connection with my June 4, 2015 Freedom of Information application. My reasons for this are as follows:
1. In your December 22, 2015 letter to me, explaining your reasons for refusing this fee waiver request, you wrote:
“We have reviewed your request for consideration under subsection 57(4) of the Freedom of Information and Protection of Privacy Act (the Act), and have concluded that your request does not meet its requirements. The Ministry has not received sufficient documentation or any evidence to support your organization’s claim for a fee waiver based on a financial hardship. In the Ministry’s view, therefore, it would not be “fair and equitable” to grant a fee waiver in this circumstance.
With respect to a potential public interest in the records, this is not a consideration enumerated under subsection 57(4) of the Act or the regulations.”
2. I dispute the Economic Development Ministry’s claim that I have provided no “evidence.” The statements in my correspondence on this topic, e.g. my emails to the Economic Development Ministry on August 31, 2015 and November 4, 2015, constitute “evidence.” Even if it were assumed that this was not the case, I enclose a solemnly affirmed affidavit by me dated January 15, 2016. It clearly constitutes “evidence” to the effect that the Accessibility for Ontarians with Disabilities Act Alliance has no funds.
3. In my November 4, 2015 email to the Economic Development Ministry on point, I asked as follows:
“Your Ministry asks for “further evidence” from me, showing that the AODA Alliance has no assets and income. I have told the Government, in my June 4 and August 31, 2015 letters to your Ministry, that we have no funds whatsoever. I had previously advised your Ministry of this in 2013 in connection with an earlier Freedom of Information application. I repeat that, as an unincorporated voluntary community coalition, we have no financial statements to provide. Respectfully, I am at a loss to know how to prove to the Government that we have no property. If we have no financial statements, and no bank accounts, how can I give you the further evidence that you say is required? What further evidence does the Ministry want me to provide? Does the Ministry now dispute that we have no property and no financial statements?”
3. The Ministry’s subsequent December 22, 2015 email to me did not answer those questions that I set out in my November 4, 2015 email.
4. If the Economic Development Ministry did not hitherto accept me as a credible source of the fact that the AODA Alliance has no funds, I hope and trust that the affidavit I am now providing gives sufficient basis for the Ministry to believe that I am an informed and credible source of this information.
5. I am providing the affidavit as a scanned PDF in order to expedite your receiving it. I will also mail you a hard copy of the executed affidavit.
6. Could you please promptly let me know whether the Ministry will consider my request for a reconsideration of its decision on my request for a fee waiver?
7. Could you please now let me know if the Ministry will agree that I can have up to 30 days after receiving your decision on the merits of my request for a reconsideration in order to file an appeal with the Information and Privacy Commissioner (if needed)? I would like to avoid the cost and burdens of filing an appeal to the IPC pending your consideration of the contents of this letter and the included affidavit. I ask your Ministry to agree that it will not object to the timeliness of an appeal, were I to file one within 30 days of receiving your response to this request for a reconsideration on the fee waiver issue.
Please confirm that you received this email.
Sincerely,
David Lepofsky CM, O.Ont
Chair
Accessibility for Ontarians with Disabilities Act Alliance
cc: Premier Kathleen Wynne, email kwynne.mpp.co@liberal.ola.org
Brad Duguid, Minister of Economic Development, Employment and Infrastructure email brad.duguid@ontario.ca
Giles Gherson, Deputy Minister of Economic Development, Employment and Infrastructure, email giles.gherson@ontario.ca
Ann Hoy, Assistant Deputy Minister for the Accessibility Directorate, email ann.hoy@ontario.ca
Enclosure: Affidavit of David Lepofsky dated January 15, 2016
Text of the January 15, 2016 Affidavit by David Lepofsky
In the Matter of an Application under the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31 Dated June 4, 2015, Directed to the Ministry of Economic Development, Employment and Infrastructure, for the Disclosure of Records Regarding the Implementation and Enforcement of the Accessibility for Ontarians with Disabilities Act
AFFIDAVIT OF DAVID LEPOFSKY
(Affirmed January 15, 2016)
I David Lepofsky, CM, O. Ont., LLB. (Osgoode Hall), LLM (Harvard), LLD (Hon. Queens and University of Western Ontario), 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. I make this affidavit in connection with the AODA Alliance’s request for a fee waiver regarding its June 4, 2015 application to the Ministry of Economic Development, employment and Infrastructure for access, under the Freedom of Information and Protection of Privacy Act, for production of important Ontario Government records and information regarding the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act (AODA), and for no other or improper purpose.
The AODA Alliance
3. The AODA Alliance is an unincorporated, volunteer-run community coalition of individuals and organizations. It was established in the fall of 2005, weeks after the Ontario legislature enacted the AODA. Its mission is to contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the AODA. Its activities are documented in detail on its website at https://www.aodaalliance.org
4. The AODA Alliance is the successor to the Ontarians with Disabilities Act Committee. From 1994 to mid-2005, the ODA Committee led a province-wide campaign, advocating for the enactment in Ontario of strong, effective disability accessibility legislation. The AODA Alliance builds on the ODA Committee’s work, and draws its membership from the ODA Committee’s broad grassroots base. The work of the ODA Committee from 1994 up to the time when it finished its work in mid-2005 is documented in detail at: http://www.odacommittee.net.
5. The AODA Alliance has received broad recognition as an authoritative voice on disability accessibility issues. For example:
a) The Ontario Government and members of the Ontario Legislature have repeatedly and publicly recognized and commended the efforts of the AODA Alliance, and before it, the ODA Committee, for its volunteer advocacy on the cause of accessibility for people with disabilities.
b) In every provincial election starting in 1995, at least two of the major Ontario political parties have made election commitments on accessibility for people with disabilities. In every case where such commitments were made, they were set out in letters from the party leader to the ODA Committee up to 2005, and after that, to the AODA Alliance. For example, Premier Dalton McGuinty made his 2011 election promises on disability accessibility in his August 19, 2011 letter to me, as chair of the AODA Alliance. In the 2014 election, Premier Kathleen Wynne made her party’s disability accessibility election pledges in her May 14, 2014 letter to me, as chair of the AODA Alliance. All these letters are posted on one or other of the websites referred to above.
My Involvement with the AODA Alliance
6. I am intimately familiar with the work of the AODA Alliance, and of its predecessor, the ODA Committee because:
a) I served as co-chair and later as chair of the ODA Committee from early 1995 up to its dissolution in the summer of 2005.
b) I was present during the establishment of the AODA Alliance, and was a driving force behind its establishment as the successor to the ODA Committee. Its initial chair was Catherine Dunphy Tardik. I initially took no leadership role with the AODA Alliance although I remained available to assist as requested.
c) In early 2006, the AODA Alliance appointed me as its Human Rights Reform Representative. I served as lead spokesperson for the AODA Alliance during controversial public and legislative debates over Bill 107, a reform to the Ontario Human Rights Code. Over that period, I worked very closely with the AODA Alliance chair.
d) In February 2009, I became the chair of the AODA Alliance, a position I have held to the present time.
7. My extensive work for the AODA Alliance and the ODA Committee is amply documented on the two websites identified above. All my work for these coalitions has been conducted as a volunteer. I have never been an employee of the AODA Alliance or the ODA Committee and have never received any salary from either organization.
8. Over more than two decades, I have had very extensive dealings with the Ontario Government at all levels, both in my capacity with the AODA Alliance, and prior to that, as co-chair and then chair of the ODA Committee. In these capacities, I have met with Ontario premiers, ministers, deputy ministers, Secretaries of Cabinet, assistant deputy ministers, and a myriad of other public officials in the Ontario Government and the Ontario Public service.
9. I have received several awards for my volunteer activities on disability accessibility issues, including my volunteer work for the ODA Committee and later for the AODA Alliance. Among these, I here identify two awards which emphasized my volunteer advocacy in connection with the AODA:
a) In 2008, I was awarded the Order of Ontario, presented by Lieutenant Governor David Onley, now the Economic Development Minister’s Special Advisor on Accessibility. The Order of Ontario is the province’s highest official honour, recognizing Ontarians who have made an outstanding contribution to society.
b) In 2014, I received the Ontario Lieutenant Governor’s Community Volunteer award. I understand that this award was established in 1988 to recognize Ontario volunteers for their outstanding contributions to their communities. The award honours volunteers who serve as the backbone of not-for-profit organizations and who have a direct impact on the people their organizations serve.
The AODA Alliance Has No Assets
10. The AODA Alliance, just like the ODA Committee before it, has no money. It has no bank account, and has never had one. It has no assets. As an unincorporated community coalition, it does not produce financial statements. It has never filed a tax return as it has no income. It has no official charitable status as it solicits and accepts no donations of money. It has no employees and has never had any employees. All of its work and administration is performed by volunteers and voluntary community organizations. It has no membership fees.
11. The AODA Alliance needs Government records and information about the implementation and enforcement of the AODA in order to discharge its mandate to promote and support the timely, effective, and comprehensive implementation of that statute and the accessibility standards enacted under it. I have therefore had occasion to make Freedom of Information requests to various public bodies in order to obtain accurate and complete information.
12. The provincial government, including the Ministry of Economic Development, Employment and Infrastructure (the “Ministry”), has in the past recognized that the AODA Alliance has no assets by waiving fees that might otherwise be charged to respond to the AODA Alliance’s Freedom of Information requests.
13. In 2013, the Economic Development Ministry ultimately did not charge me its initially-proposed 2,325 fee, as a condition to answer my Freedom of Information request to the Economic Development Ministry, for information and records regarding the AODA’s implementation and enforcement. I had then indicated in writing, among other things, that the AODA Alliance had no funds. In 2014, Metrolinx ultimately did not charge its initially-proposed $250 fee to respond to my Freedom of Information request for records and information regarding certain accessibility issues in the new Eglinton subway under construction. I had asked Metrolinx to waive that fee on substantially the same basis.
14. The one occasion on which I paid such a fee on behalf of the AODA Alliance was last year, when the Government imposed a fee of about $7.50 to respond to a Freedom of Information application I made to determine the number of accessible seats at the stadiums where the Toronto 2015 PanAm and ParaPanAm Games were held. In principle I objected to that fee being imposed, and to the Government’s refusal to simply provide that information, but I personally paid the charge as it was quite minimal. I suspect that the administrative cost to the Government of processing that cheque could be higher than the value of the cheque itself. In any event it is far less than the $2,325 fee that the Economic Development Ministry ultimately did not charge me in 2013, the $250 fee that Metrolinx ultimately did not charge me in 2014, or the $4,250 fee that the Economic Development Ministry now insists upon.
Request for Fee Waiver
15. On June 4, 2015, I submitted a Freedom of Information application to the Economic Development Ministry, seeking information and records regarding the implementation and enforcement of the AODA. On August 31, 2015, the Economic Development Ministry advised me that to answer the Freedom of Information application, I would have to agree to pay an estimated fee of $4,250. I have asked that the Economic Development Ministry waive that fee, on these grounds:
a) I made the Freedom of Information application in my role as chair of the Accessibility for Ontarians with Disabilities Act Alliance, an unincorporated, volunteer, non-profit community coalition that has no money or assets.
b) The Government ultimately agreed to provide information and records in two earlier Freedom of Information applications that I have submitted in the past two and a half years on disability accessibility issues, while ultimately agreeing to not charge any fee, even though it had initially required a fee for both applications. In both of those earlier cases, my requests not to have to pay the fee was made on substantially the same grounds as here, and
c) This request is made in the public interest
16. To date, the Economic Development Ministry has not agreed to grant the fee waiver I have requested in connection with my June 4, 2015 Freedom of Information application. As a partial step this past fall, at my request, the Economic Development Ministry has provided me with records or information requested which it could locate without requiring much search time or effort. However, it continues to ask me to pay the estimated fee of $4,250 if I am to obtain the rest of the important records and information I have requested. The Economic Development Ministry’s latest communication to this effect was in an email addressed to me, dated December 22, 2015.
17. In its September 24, 2015 email to me, the Economic Development Ministry said among other things:
“In our previous correspondence of August 31, 2015, you were provided with an overview of the considerations to determine if a request for a fee waiver meets the requirements of section 57(4) of the Freedom of Information and Protection of Privacy Act (the Act). Fees required by section 57(1) of the Act are mandatory unless it is determined that it is fair and equitable to grant a waiver of all or part of the fee, taking into account the considerations set out in section 57(4).
Your response of August 31, 2015 did not provide sufficient information to determine whether any of the requirements described in section 57(4) of the Act have been met in the circumstances. Your response indicated that a fee waiver should be granted on the grounds that payment of the fee would result in financial hardship, and that the disclosure of the records would benefit the public interest. While financial hardship is a consideration for granting a fee waiver, a potential public interest in the records is not a consideration under section 57(4) of the Act.
In order to make a recommendation on whether a fee waiver would be fair and equitable in the circumstances, the Ministry requires further evidence to support the claim of financial hardship. To determine if it is fair and equitable to grant a fee waiver, the onus is on the requester to establish the basis to support a fee waiver by demonstrating that the criteria for a fee waiver are present. You may wish to consider orders of the Information and Privacy Commissioner in determining where a fee waiver is justified.
For the purposes of establishing financial hardship, financial information that may be provided to support a fee waiver request includes the assets, income, expenses, and liabilities of the individual or group making the request in order to demonstrate why the payment would cause financial hardship.
Regarding your previous access request in 2013, the FOI file was closed when you obtained information outside the FOI process. As such, a fee waiver in accordance with the Act was not considered at that time. A copy of the letter closing that request is attached.”
17. In my November 4, 2015 email, responding to the Economic Development Ministry, I asked the Ministry what more I could provide to prove that the AODA Alliance had no funds. I wrote in material part:
“Your Ministry asks for “further evidence” from me, showing that the AODA Alliance has no assets and income. I have told the Government, in my June 4 and August 31, 2015 letters to your Ministry, that we have no funds whatsoever. I had previously advised your Ministry of this in 2013 in connection with an earlier Freedom of Information application. I repeat that, as an unincorporated voluntary community coalition, we have no financial statements to provide.
Respectfully, I am at a loss to know how to prove to the Government that we have no property. If we have no financial statements, and no bank accounts, how can I give you the further evidence that you say is required? What further evidence does the Ministry want me to provide? Does the Ministry now dispute that we have no property and no financial statements?”
18. In its December 22, 2015 email to me, the Economic Development Ministry said it would not grant the fee waiver I requested, stating in material part:
“We have reviewed your request for consideration under subsection 57(4) of the Freedom of Information and Protection of Privacy Act (the Act), and have concluded that your request does not meet its requirements. The Ministry has not received sufficient documentation or any evidence to support your organization’s claim for a fee waiver based on a financial hardship. In the Ministry’s view, therefore, it would not be “fair and equitable” to grant a fee waiver in this circumstance.
With respect to a potential public interest in the records, this is not a consideration enumerated under subsection 57(4) of the Act or the regulations.”
19. The Economic Development Ministry has never substantively and directly answered my question in my November 4, 2015 correspondence, quoted above. It has never told me what further information it wishes me to provide to substantiate my statement that the AODA Alliance has no funds. While I do not agree that my prior emails to the Ministry do not constitute “any evidence”, I provide this affidavit as more formal “evidence” of such, affirmed before a Commissioner of Oaths recognized as such by the Province of Ontario.
Affirmed before me this 15th day of January 2016.
Commissioner of Oaths
Specific Request for Information and Records in David Lepofsky’s June 4, 2016 Freedom of Information application that the Wynne Government Has Refused to Answer Unless He Pays $4,250
4. I seek records since June 2014 of any requests or inquiries from or on behalf of the office of the Economic Development Minister to the Ministry, including for example, to the Accessibility Directorate of Ontario, for information regarding on levels of compliance or non-compliance with the AODA or any accessibility standards enacted under it, and any reports or other answers provided to the office of the Minister on this subject since June 2014.
5. Please provide information on enforcement action under the AODA taken in 2014 on a quarterly basis, and as an annual total, and for the current year on a quarterly basis to date, and as an aggregated total, broken down by sector (private sector versus public sector) and size of organization, including, e.g.
a) The number of organizations audited for compliance with the AODA and any accessibility standards enacted under it.
b) The number of organizations that were the subject of an inspection of their premises for compliance with the AODA and any accessibility standards enacted under it, by an inspector, appointed under s. 18 of the AODA, pursuant to s. 19 of the AODA. Included within this is a request to know the number of organizations that an inspector, appointed under s. 18 of the AODA, has physically visited to discharge the powers of conducting an inspection under the AODA.
c) The number of notices of proposed compliance orders issued under the AODA, also broken down by the AODA requirement with which there was a lack of compliance.
d) Numbers and amounts of proposed monetary penalties under the AODA, also broken down by AODA requirement with which there was a lack of compliance.
e) The number of compliance orders issued and numbers and amounts of monetary penalties imposed, each also broken down by AODA requirement with which there was a lack of compliance.
f) The number of appeals to the appeal tribunal designated under the AODA, from any AODA orders, and the outcome, also broken down by AODA requirement with which there was a lack of compliance. Please also provide copies of, or links to accessible postings of all appeal tribunal decisions.
10. If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:
a) In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.
b) In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.
c) In the case of any private sector organization with fewer than 20 employees.
d) In the case of any public sector organization.
11. Any studies, reports, option papers or other records prepared by the Accessibility Directorate of Ontario, or by any other person or organization, whether within the Ontario Government or outside the Ontario Government, subsequent to the period covered by my August 15, 2013 Freedom of Information application, on options and/or policies or practices for implementing the enforcement powers under the AODA, including, without limiting the generality of the foregoing, the powers to conduct audits, to impose administrative penalties, to issue compliance orders.
15. In her May 14, 2014 letter to the AODA Alliance, Premier Kathleen Wynne made a written election promise to establish and publicize a toll-free phone number for the public to report AODA violations.
a) What specific steps has the Government taken to publicize this toll-free phone number to the public as a number for reporting AODA violations?
b) Any plans for publicizing the toll-free number to the public as a means to report AODA violations;
c) How many calls on that toll-free number has the Government received since January 2015, reported on a total basis and a monthly basis, limited to instances when the caller asked to report an AODA violation?
d) A breakdown of the AODA violations reported on that toll-free line, e.g. based on public sector versus private sector organization, size of organization, sector of the economy if known, AODA accessibility standard provision alleged to be violated, and any other criteria which the Government has applied to these calls. (I do not seek the identity of the callers.)
16. On February 19, 2015, Economic Development Minister Brad Duguid sent a letter to me, in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance. In it he reported that in 2013, the Government audited 1,906 private sector organizations under the AODA. In 2014, it audited 1,954 organizations in the private sector. Yet, in 2015, the Government plans only to audit 1,200 organizations.
I request any records regarding the Government’s decision of how many organizations to audit in 2015, including any changes to that number. Without limiting the generality of this request, I seek any record regarding who took part in any decision, options considered, and the reasons for any decision, setting that number for audits in this year, as well as the identification of the person or persons who made or approved any decision.
18. In her May 16, 2014 letter to me in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance, setting out the Government’s 2014 accessibility election pledges, Premier Wynne stated:
“With respect to additional enforcement activities, we commit to investigating the possibility of having government inspectors and investigators enforce the AODA within the context of existing resources and as training capacity exists.”
The AODA Alliance has advocated to the Government for at least four years that the Government deputize inspectors under other legislation to also serve as an AODA inspector or director. We understand that the Government conducted some research or investigation of this proposal.
a) What specific pilot project or projects have been conducted since 2010 on this, with what Ministry or Ministries, and over what periods?
b) I seek records addressing any exploration, design, conduct and/or evaluation of this avenue for enforcing and/or promoting compliance with the AODA, as far back as 2010, and up to the date that this application is answered.
c) How many inspectors, investigators or other public officials in other ministries were given authority to engage in enforcement activity under the AODA, divided by the ministry involved and the specific pilot project?
d) How many public sector organizations were the subject of any audit or inspections as part of this program, in total and divided by year?
e) How many private sector organizations were the subject of any audit or inspections as part of this program, broken down by year and by ministry involved in the program?
f) How many AODA compliance orders were issued as a result of this program, broken down by public sector or private sector organization and the category or size of organization?
g) How many monetary penalties were issued as a result of this program, broken down by public sector or private sector organization?
h) What training was given to officials in other ministries who were deputized as an AODA inspector or director, and what was the duration of that training?
i) What feedback, if any, was solicited from or obtained from officials of other ministries who were deputized as an AODA inspector or director, about their experience as such, and the effectiveness of this strategy.
j) What specific plans does your Ministry have to continue or expand using inspectors or investigators at other ministries to take part in enforcement of the AODA? What are the time lines for these plans?
21. For the last fiscal year and the current fiscal year, please provide the budget allocated and expended by the Accessibility Directorate of Ontario in a detailed breakdown including amounts for:
a) Enforcement of the AODA (e.g. by inspections, audits, issuance of compliance orders and monetary penalties, and on appeals), but not including activities aimed at securing voluntary compliance (such as public education and outreach);
b) Development of new accessibility standards and review of existing accessibility standards;
c) Public education and outreach.
22. In addition to the foregoing, the Accessibility Directorate of Ontario has administered the Enabling Change program for several years.
For each year since 2008:
a) How much was budgeted for and how much was spent by the Ministry in each year on the Enabling Change program? How much is budgeted for that program in the current fiscal year?
b) In each year starting in 2008 for which this information is either already compiled or readily available, please provide a list of each Enabling Change program or grant that the Accessibility Directorate of Ontario funded to any degree, the amount of the grant, the recipient grantee of the grant, and a description of the program funded.
23. Where available, please provide text of or speaking notes for any speeches by Mr. Brad Duguid since becoming Economic Development, Employment and Infrastructure Minister in June 2014, which address at any point in the speech, accessibility for people with disabilities, including an indication, where available or readily discoverable, of to whom and where the speech was delivered.
24. In fall 2014, the Government sponsored an advertising campaign on accessibility and compliance with the Accessibility for Ontarians with Disabilities Act. I seek:
a) the duration of this campaign;
b) the number of advertisements that were run respectively on: (i) radio
(ii) television
(iii) newspaper
(iv) any other media;
c) the text of the advertisements that were broadcast or published;
d) the budget which the Government allocated for this campaign, and the actual cost of this campaign;
e) records of any plans for any future campaign, including content, dates, and allocated or estimated budget;
f) The approved or estimated budget for the AODA advertising campaign on accessibility which the Government announced on June 3, 2015.
25. Economic Development Minister Brad Duguid has made public statements about the impact of the foregoing AODA fall 2014 advertising campaign on levels of compliance with, or inquiries to the Government, about the Accessibility for Ontarians with Disabilities Act. What information has the Government tracked and compiled on any changes in levels of compliance or numbers of inquiries of the Government associated with this advertising campaign?
27. What has the Ministry of Economic Development, Employment and Infrastructure done, and what new programs, policies or initiatives has it established, or existing ones has it modified, since May 28, 2013, to ensure that accessibility is integrated into all programs and activities at the Ministry, including, for example:
a) programs aimed at economic development within Ontario;
b) programs that assist in expanding international markets for goods and services originating in Ontario;
c) programs dealing with employment, including but not limited to that specifically aim at expanding employment opportunities for people with disabilities; and
d) programs dealing with infrastructure.
Where possible, please advise when each new initiative or revised initiative was implemented to address disability accessibility, and when that initiative has terminated or is projected to terminate.
28. From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.
29. In January 2013, the Government announced that it planned to consolidate all development of new accessibility standards and the mandatory review of existing accessibility standards under the auspices of the Accessibility Standards Advisory Council. It said it did so in response to the 2010 final report of the Charles Beer Independent Review of the AODA.
I seek any records from February 2010 to the present which address the development of and/or the implementation of the decision of the Government’s response to this recommendation of the final Charles Beer Report. Without limiting the generality of the foregoing, I seek any records which address the question of whether the Government expected that all future mandatory reviews of existing AODA accessibility standards and/or the development of proposals for all new accessibility standards would be carried out solely by the persons appointed as members of ASAC, or whether the Government contemplated or considered that multiple committees might be appointed under the auspices of ASAC, to address different accessibility standards at the same time.
31. Any analysis or survey of laws in other jurisdictions in Canada or elsewhere around the world that address accessibility for people with disabilities. I do not seek any of this dating prior to 2013.