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Ontario Government Sat on A Detailed Plan for Enforcing the Accessibility for Ontarians with Disabilities Act since at Least May 2012, According to a Front Page Story in the Toronto Star that Quotes the AODA Alliance

February 20, 2014

SUMMARY

The Toronto Star today reported on its front page that we revealed that the Ontario Government has since at least May 2012 been sitting on a detailed plan, prepared by public servants, for enforcing the Accessibility for Ontarians with Disabilities Act. Below we set out that Toronto Star report, and a briefing note that details this plan. We forced the Government to reveal this plan through a Freedom of Information Act application last year.

The Star report shows that Ontarians with disabilities must wait still longer for the Ontario Government to reveal its overdue, promised plan for effectively enforcing the Disabilities Act. There have been 94 days since we revealed last November 18 a triple blast of stunning news on this front. Namely:

1. The Government has known for months of massive violations of the Disabilities Act among private sector organizations with at least 20 employees;

2. Despite this, the Government had not been enforcing this law, and

3. This dereliction of duty took place despite the Government having budgeted ample funds for the AODA’s implementation and enforcement.

Now we add to that list a fourth item, namely that the Government had at least since mid 2012 a full plan for enforcing the AODA at its fingertips.

It is fundamentally unfair to over 1.8 million Ontarians with disabilities, and to all organizations that have complied with the Disabilities Act, for the Government to sit on plans for enforcing this legislation for almost two years. There is no reason why we should have had to resort to a Freedom of Information application to flush out this sorry news. We should not have to now wait even longer for the Government to announce its enforcement plans – plans that it should have had up and running since 2012.

MORE DETAILS

In the 2003 and 2011 elections, and at various points in between, the Ontario Liberals promised to effectively enforce the Disabilities Act. We have been trying for years to get this promise kept.

After the October 2011 Ontario election, we wrote the new cabinet minister responsible for implementing and enforcing the AODA, John Milloy, on November 1, 2011, to alert him to priorities in his new post. Among these, we highlighted the need to effectively enforce the Disabilities Act. We wrote:

“Among the top priorities that we encourage you and your Ministry to consider first are these:

2. Implementing measures for the effective enforcement of accessibility standards enacted under the AODA. There are already two standards on the books, but the full range of enforcement has not yet been fully implemented. In his August 19, 2011 letter to us, Premier McGuinty promised effective enforcement of the AODA. This echoes his 2003 election promise that the AODA would have effective enforcement. In addition to having appropriate staff in your Ministry tasked with enforcement, we urge you to consider designating Ontario Government inspectors under other legislation to include enforcement of the AODA in their activities, where feasible.”

Around six months later, the Accessibility Directorate of Ontario, the Ontario Government office with the mandate to implement and enforce the AODA, prepared a briefing note on enforcement of the AODA. It is set out below. That briefing note described a detailed plan for enforcing the AODA. This was prepared in anticipation of the fact that the private sector would be obliged to comply with the 2007 Customer Service Accessibility Standard, starting in 2012.

The Government did not then make this plan public. Moreover, from more recent events, it is clear that the plan was not implemented. We have been given no reason for the Government to have sat on that plan. We just recently learned about this plan through our ongoing review of the pile of documents that the Government was forced to give us over the past weeks, as a result of AODA Alliance Chair David Lepofsky’s Freedom of Information application last year.

On January 22, 2013, we wrote Minister Milloy to ask for the Government’s plans for enforcing the AODA. The Government did not answer.

After Kathleen Wynne became Ontario’s Premier in February 2014, she appointed Dr. Eric Hoskins as the new Cabinet Minister responsible for implementing and enforcing the AODA. On February 27, 2013, we wrote Dr. Hoskins to alert him to the top priorities he needed to address regarding the AODA. Among other things, we wrote:

“Ontario now confronts both a real challenge and an important opportunity. We are now behind schedule for achieving full accessibility by 2025. Only 12 years remain to reach that mandatory destination. We need decisive new action now. In this letter, we offer practical ways to get Ontario on schedule:

2. Promptly Announcing and Implementing Measures to Effectively Enforce Accessibility Standards enacted under the AODA.

There are already two enforceable accessibility standards on the books under the AODA, the Integrated Accessibility Standard (which addresses barriers in transportation, employment and information and communication) and the Customer Service Accessibility Standard. In the 2003 and 2011 elections, former Premier McGuinty promised that your Governments Disabilities Act would be effectively enforced. However, the Government has not yet effectively deployed the enforcement powers it enshrined in the AODA. Obligated organizations cannot be expected to take this law seriously if it is not effectively enforced.

We wrote your predecessor, Minister John Milloy, on January 22, 2013, to ask for specific information about your Governments past actions and future plans for enforcing this important legislation, and to urge prompt action. We have received no response to that inquiry.

Responsibility for that inquiry now rests with you and your Ministry. We would appreciate a response to, and effective action on our letter to Minister Milloy. The AODA Alliances January 22, 2013 letter to Minister Milloy about enforcement of the Accessibility for Ontarians with Disabilities Act is available at http://www.aodaalliance.org/strong-effective-aoda/01242013.asp

In addition to having appropriate staff in your Ministry tasked with enforcement, we urge you to designate Ontario Government inspectors under other legislation to include enforcement of the AODA in their activities, where feasible. We also urge you to make it clear to the public that this legislation will be effectively enforced.”

After unsuccessfully trying for seven months to get the Government to reveal how many organizations were not complying with the AODA, and to make public the Government’s enforcement plans, AODA Alliance chair David Lepofsky filed a Freedom of Information application on August 15, 2013. The Government initially demanded $2,325 to disclose that information. The Government was slammed for this proposed fee in Question Period in the Ontario Legislature on October 29, 2013, and in a Toronto Star editorial on October 31, 2013. After that, the Government decided to provide the requested documents without that hefty fee.

On November 18, 2013, we revealed to the public that the Government knew that some 70% of Ontario private sector organizations with 20 or more employees had not filed mandatory self-reports on their compliance with the AODA Customer Service Accessibility Standard, that the Government knew this, that the Government was not using its full range of enforcement powers to address this, and that the Government had ample budget on hand for enforcement. Minister Hoskins publicly said he wasn’t happy with the levels of AODA violations. He pledged to enforce the law (for which he is responsible) until there is full compliance. We still await that plan.

We today make public the May 24, 2012 briefing note that shows that the Government has been sitting on a detailed enforcement plan for the AODA for almost two years. In the front page February 20, 2014 Toronto Star article, the Government is quoted as saying that the previous cabinet minister (presumably John Milloy) did not receive that briefing note.

If so, we are left wondering why not? Since the public servants within the Accessibility Directorate of Ontario properly did their job in developing enforcement plans for the AODA, the successive cabinet ministers who are responsible as the law-enforcers-in-chief would be expected to ask for such plans, and to promptly approve their deployment. It is clear to us that no approvals were given, since we know from the Government’s own records that as of last November, 18 months after that briefing note, the Ontario Government had conducted no audits or inspections of any private sector organizations under the AODA, nor issued a single compliance order, nor imposed one dime in monetary penalties.

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Text of Front Page Toronto Star Story on February 20, 2014

The Toronto Star February 20, 2014
Posted at http://www.thestar.com/news/gta/2014/02/20/ontario_vows_to_enforce_accessibility_law.html News

Ontario sits on plan to enforce accessibility law; 2-year-old strategy languishes as 70% of businesses fail to comply

As Ontario scrambles to enforce its accessibility legislation for the disabled, government documents show the province had a detailed enforcement plan ready almost two years ago.

The June 2012 “briefing note” obtained by the Accessibility for Ontarians with Disabilities Act Alliance outlines a two-year strategy to target 3,600 businesses, issue compliance orders and conduct audits of violators.

As reported by the Star last fall, at that point no orders had been issued and no audits had been conducted, despite government statistics showing the vast majority of businesses covered by the legislation had failed to comply with the law’s reporting requirements.

“Clearly the bureaucrats had a plan. What happened to it? Where is the political will to enforce this legislation?” said lawyer David Lepofsky of the alliance.

The province’s 2005 Accessibility for Ontarians with Disabilities Act (AODA) includes a “customer service accessibility standard enacted in 2007.

It requires companies with 20 employees or more to electronically file reports on how they accommodate customers with disabilities, train staff and receive customer feedback. The plans had to be filed with the government by Dec. 31, 2012.

But by last November, 70 per cent of companies –
about 36,000 across the province – had not yet filed a report.

“Filing an accessibility report is a legislated requirement. . . . Failure to do so is considered a major violation of the act,” says the briefing note, entitled “AODA Compliance and Enforcement Strategy,” and obtained through a Freedom of Information request.

A spokesman for Eric Hoskins, the minister of economic development, trade and employment – who has been responsible for the legislation since last February – said the briefing note was an “internal planning document” and was never given to the former minister.

“We are currently developing a publicly available compliance plan and will be posting it in short order,” said Gabe De Roche.

The ministry is also planning to conduct 1,700 compliance audits this year to ensure companies are carrying out their customer service plans, he added.

Last fall, when the Star first reported the government’s inaction on the file, Hoskins called the percentage of businesses in compliance “unacceptably low” and vowed to crack down on violators.

In November, the ministry sent 2,500 enforcement letters to businesses that failed to submit their reports and. since then, almost half of those who got the letters have complied, De Roche said.

Up to 500 remaining businesses are being issued compliance orders that require them to file within 30 days or face fines of between $500 and $2,000, he added.

“Since November, the ministry has been able to successfully increase the number of compliance reports (from 15,000) to over 17,000,” he said. “We are continuing to work to increase this number.”

Lepofsky welcomed the government’s plan to publicly post its compliance strategy. But he said the additional 2,000 companies that have come into compliance is still a “microscopic drop in the bucket.”

“So we have gone from 36,000 companies who have not filed their reports to 34,000. You do the math. That’s still a huge majority of companies who have no plan to deal with customers with disabilities,” he said.

Laurie Monsebraaten
Toronto Star

Text of Ontario Government’s May 24, 2012 Briefing Note (Revised June 12, 2012) on Enforcement Plans for the Accessibility for Ontarians with Disabilities Act

Ministry of Community and Social Services
Briefing Note
AODA Compliance & Enforcement Strategy (APEX)
2012 2014

ISSUE

To seek ADM approval for the proposed approach to carrying out compliance and enforcement activities in 2012 2014.

CURRENT STATUS

467 private sector organizations have filed their accessibility reports for the Accessibility Standards for Customer Service Regulation, O. Reg. 429/07 (CS standard) as of June 18, 2012.

A targeted outreach strategy (the Blitz) involving approximately 1000 organizations (of the 60,000) was carried out in May June.

The Blitz is expected to increase the number of organizations filing accessibility reports by December 31st.

An overall approach to addressing compliance and enforcement activities beginning in January 2013, after the reporting deadline, is needed. The proposed approach must take into account:

Size of the obligated universe; approximately 360,000 organizations are required to comply with the CS standard. 60,000 of these organizations are required to file accessibility reports in 2012.

Organizations who fail to file accessibility reports (non-filers) will be classed as high priority.
Allocation of available resources: the Compliance Operations team consists of one Inspector, two Compliance Officers, three Program Liaison Officers and one Team Lead.

The need to strike a balance between stakeholder expectations for meaningful and effective enforcement and the governments commitment to supporting Ontario business through its Open for Business mandate.

BACKGROUND

Self-Certification Reporting: Priority Requirement

AODA compliance and enforcement is based on self-certification reporting. Reports are used to determine organizations compliance with the accessibility standards and the type of enforcement measures to be used in cases of non-compliance.

Filing an accessibility report is a legislated requirement (s.14 AODA). Failure to do so is considered a major violation of the act.

Organizations with 20 or more employees (approximately 60,000) are required to file accessibility reports, indicating their compliance with the regulation, by December 31, 2012.

Compliance & Enforcement (C&E) Activities: Integrity Model & the Blitz

The Integrity Model Strategy (IMS) was designed to support the ADOs C&E activities.

IMS requires that 1% of the approximately 360,000 obligated organizations (3600) be subject to targeted compliance improvement and enforcement activities.

All types of organizations e.g. filers, non-filers, under 20 employees, are included in the scope of the C&E activities.

In spring 2012 the ADO prioritized approximately 1000 organizations to conduct direct outreach to advise them of their reporting requirements and offer targeted assistance.

858 organizations were contacted directly as of June 21, 2012.

PROPOSED APPROACH: Compliance & Enforcement 2012 – 2014

As of January 1, 2013, enforcement of the CS standard will begin for approximately 360,000 organizations in the private and non-profit sectors.

Progressive enforcement action for organizations that were required to file accessibility reports (s.14 AODA) but failed to do so will be the focus of enforcement activities in 2013.

The proposed strategy focuses compliance resources on targeted compliance improvement and enforcement efforts for the approximately 3600 organizations in four phases.

The approximately 3600 organizations will be comprised of approximately 1000 targeted organizations (the Blitz in 2012), 2000 organizations required to report i.e. both filers and non-filers (2013), and approximately 600 organizations selected to participate in the Partners Pilot Project (2013-2014).

Appendix A sets out an Implementation Plan for this approach.

APPLICATION

Phase 1: Target Non-filers from the 2012 Blitz

Beginning January 2013, resources for Phase 1 will focus on enforcement action against non-filers from the 2012 Blitz of the approximately 1000 targeted organizations.

Organizations will be issued a directors order to comply with s.14 AODA where persistent/wilful non-compliance behaviour is evident.

Phase 2: Non-filers

In Phase 2, 2000 of the 3600 organizations will be selected for compliance audits. These organizations will consist of organizations that were required to file accessibility reports in 2012.

A percentage of non-filers from the 2000 organizations will be identified for progressive enforcement action; targeted and/or randomly selected using the ADOs risk assessment tool.

Enforcement action from Phase I includes any negotiated return to compliance plans, directors orders, and/or appeals will be ongoing in this second phase.

Phase 3: Filers

The focus in Phase 3 will be on auditing a percentage of the 2000 organizations mentioned above (randomly selected) that indicated non-compliance on their accessibility report and providing compliance improvement supports.

Phase 3 may also include:

a small percentage of organizations that are exempted from filing accessibility reports under the Exemption from Reporting Regulation, O. Reg. 430/07; and

a number of BPS organizations that were not audited in 2011 or 2012.

Compliance improvement and enforcement action e.g. directors orders and/or appeals related to non-filers and non-compliant organizations will be ongoing in this phase.

Phase 4: Partners Pilot Project

This phase involves using a 1-year pilot project that leverages the enforcement resources of partner ministries that includes the ministries of Finance, Consumer Services, Transportation and Labour.

These ministries will be responsible for carrying out file reviews on approximately 600 organizations (from the 3600) to determine compliance with the CS standard.

The project will include organizations that are exempted from filing accessibility reports under Ontario Regulation 430/07; the exemption regulation applies to organizations with 19 employees or less.

Exempted organizations do not have the same written documentation requirements as larger organizations.

OTHER ENFORCEMENT ACTION

BPS compliance with IASR requirements

In 2012 and 2013 designated public sector organizations (BPS) have to comply with some requirements of the Integrated Accessibility Standards Regulation, O. Reg. 191/11 (IASR).

BPS organizations designated under the IASR include the Government of Ontario, the Legislative Assembly, municipalities and organizations listed in Schedule 1 of the IASR.

Some of the requirements include development of accessibility policies and plans, the provision of emergency and public safety information, and the provision of workplace safety information.

In 2013, BPS organizations not yet audited in 2011 or 2012 may be selected for audits.

LOOKING AHEAD: 2014

2014 compliance activities will include follow-up from compliance improvement measures during Phases 1 through 3 and may also include any litigation resulting from appeals filed with the Licence Appeal Tribunal that year.

Program evaluation and lessons learned in 2011 2013 will enable the ADO to continually improve its processes and plan for future APEXs.

CONSIDERATIONS:

Resources within the ADO will be required to research information to enable contact with non-filers.

ADO will need to engage the License Appeal Tribunal (LAT) on the potential volume of appeals that may result from enforcement action beginning in 2013.

RATIONALE

This phased approach takes into consideration limited resources, ongoing outreach and awareness activities, identified priority areas and the lessons learned from the BPS in 2011.

Non-filers will be given priority in 2013 with emphasis being placed on demonstrating effective compliance through issuing directors orders if necessary.

Carrying out enforcement in phases will create a more structured system for monitoring and reporting on compliance and enforcement activity.

NEXT STEPS

Policy & Coordination Unit (PCU) work with the CAU to finalize the approach, taking into account implementation and resource allocation implications.

PCU will develop a strategy to address compliance and enforcement for exempted organizations in Phases 3 and 4.

The PCU return to the ADM for approval on the strategy.

Follow-up with the LAT regarding its capacity and readiness to hear written appeals of directors orders; confirm that Notices and information regarding the AODA is readily available for organizations that may wish to appeal.

Revised: June 21, 2012
Date: May 24, 2012
Prepared by: Nadine McDermott, Team Lead, Standards Policy Unit Prepared for: Glen Padassery, A/Director, Standards Policy & Coordination Branch

APPENDIX A IMPLEMENTATION PLAN

Implementation at a Glance

Phase I: Enforcement target the 2012 Blitz group

Timelines C&E Activities Notes

January – February Issue Notice of Order (s.22). 30+ days for org to provide written submission.
Only a director or Inspector has authority to issue orders

March – April If no written submission filed within the 30+ days: Issue a directors order for:

1. Compliance with s.14 of the AODA to file an accessibility report (s.21(3)); or
2. Compliance with s.14 and to pay a penalty ($500 or $2000 for a first contravention with major impact).
Organization will then have 15 days to file an appeal with the Tribunal (s.21(7)). Director can reconsider the order (s.25)
The organization also has 30 days to pay the penalty (s.85 IASR).
Review of the order: once the order is issued, the director may, within a reasonable time, review the order and decide to rescind, vary, or issue a final order (s.25)

April – May If organization is still not compliant:
(i) File the administrative penalty order with the Registrar of Superior Court; or
(ii) use the s.14 order (with no admin penalty attached) to build compliance history; or
(iii) issue a subsequent order with an admin penalty (s.21(5)) Directors order to comply with s.14 cannot be filed with the registrar; this only applies to administrative penalty orders.
The penalty amount in the subsequent order will be $1000 or $10,000 for 2nd contravention/major impact.

Phase 2: Non-Filers (% from the 2000 remaining organizations)

Timeline C&E Activities Notes

June – July ADO determines % of organizations who did not file from the remaining 2000 organizations. Non-filers will be issued Notices of Order.
Administrative work related to orders issued in Phase 1 will continue in this phase; including work related to appeals to the Tribunal.
Verification of contact information prior to issuing Notices will be required.

August – September 30+ days written submission period
Compliance improvement to organizations that contact the ADO after receipt of Notice
Organizations will be given 60 days to file an accessibility report.
ADO will provide assistance to bring the organization into compliance.

September -October If organization is still not compliant:
(i) File the administrative penalty order with the Registrar of Superior Court; or
(ii) use the s.14 order (with no admin penalty attached) to build compliance history; or
(iii) issue a subsequent order with an admin penalty higher moderate amount (s.21(5)).
Directors order to comply with s.14 cannot be filed with the registrar; this only applies to administrative penalty orders.
The penalty amount in the subsequent order will be $1000 or $10,000 for 2nd contravention/major impact.

Phases 3: Filers (% from the 2000 remaining organizations)

Month(s) C&E Activities Notes

October – November ADO determines % of organizations filed reports that indicated non-compliance; from the remaining 2000 organizations.
Some BPS organizations not audited in 2011 or 2012 selected to receive Level 2 audits.
Selected Filers contacted for compliance improvement supports; RTCs, s.17 request for additional information etc.
Group can include those who indicated non-compliance on their reports and random sample.
Administrative work related to orders issued in Phase 2 will continue in this phase; including work related to appeals to the Tribunal.

December Filers will be issued Notices where compliance improvement supports have been unsuccessful. 30+ days written submission period.
Enforcement action will be carried forward to 2014; issuing of final orders and handling of appeals.
Orgs will have 60 days to file an accessibility report.

Phase 4: Partners Projects (600 organizations)

Month(s) C&E Activities Notes
October Follow-up with compliance improvement supports for Filers/exempted orgs identified as non-compliant through the Partners Project; RTCs, s.17 requests for additional information etc. Consist of 600 organizations (of 3600).
The project has been underway and these orgs have been identified as requiring follow-up.

November Partners Project: Notices of Order for orgs identified by the as remaining non-compliant.
Compliance improvement supports have been unsuccessful. December
early 2014 30+ days written submission period
Compliance improvement to organizations that contact the ADO after receipt of Notice
Organizations will be given 60 days to file an accessibility report.
Notices of Order for Filers from who remain non-compliant. Filers will be issued Notices where compliance improvement supports have been unsuccessful.
Enforcement action will be carried forward to 2014; issuing of final orders and handling of appeals.