ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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January 24, 2017 memorandum of argument Filed with the Information and Privacy Commission Against AODA Alliance Chair David Lepofsky

January 24, 2017

Wynne Government's INFORMATION AND PRIVACY COMMISSIONER OF ONTARIO

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 Bearing Ministry file Number MEDEI 2015 -12

- and -

In the Matter of an Appeal to the Information and Privacy Commissioner from a Refusal of the Ministry to Waive Its Fee Estimate at $4,250 for Disclosing Requested Information and Records

Memorandum of Argument of the Ministry of Economic Development, Employment and Infrastructure ("The Ministry")

Counsel:         Sara Blake LSUC #25251P /Emtiaz Bala LSUC #55452M
Crown Law Office – Civil Law
720 Bay Street, 8th Floor, Toronto, ON M7A 2S9
                        Sara.blake@ontario.ca / Emtiaz.bala@ontario.ca

Witness:         Jennifer Brown, Manager of the Accessibility Policy Unit of the Accessibility Directorate of Ontario

Documents:    (1) Memorandum of Argument, (2) Book of Authorities, and (3) Affidavit of Jennifer Brown

PART I - OVERVIEW

  • On June 4, 2015, the Accessibility for Ontarians with Disabilities Act Alliance ("the Alliance") submitted a Freedom of Information request to the Ministry. The application contains 31 separate requests for information with several sub-requests, bringing the total to approximately 84.

 

  • Some of the information was provided at no charge, as it required relatively little time to gather. Other information will take many days to collect. The Ministry estimated that search-time will cost $4,250.
  • In response to the requestor's issues, the Ministry states as follows:
    • Extension Of Time – The requestor is likely to meet the test prescribed in s.50(2.0.1), and thus, the Ministry does not object to the request for an extension of time;
    • Financial Hardship - It is accepted that the Alliance does not have money or bank accounts. That, however, is not the test. The Alliance must establish that payment of the fees will result in "severe suffering or privation," which requires evidence that the Alliance has at least attempted to raise funds;
    • Public Health and Safety – The IPC has appropriately drawn a distinction between accessibility and "public health and safety." The documents requested do not bear a direct connection to public health and safety;  
    • "Fair and Equitable" - FIPPA establishes a user-pay system. Notwithstanding this, the Ministry has provided information to the Alliance without charge in this case as well as earlier instances. It is, however, unfair to have the public assume this entire cost of a large 31-part request (containing approximately 84 questions in total) without any evidence that the Alliance has at least tried to offset the cost to the public;
    • Quantum of Fees - Ministry officials required 140 hours to satisfy the 84-part request. In light of the scope and format of the request, this amount is reasonable.

PART II - THE FACTS

 

  • The following facts appear to not be in dispute:
  • The Alliance is an unincorporated association without bank accounts or assets;
  • The Alliance is an advocacy organization;
  • The Alliance's FIPPA request contains 31 questions, which in turn, contain sub-questions that bring the total number of requests to approximately 84;
  • The Alliance has not sought to raise any funds for this FIPPA request;
  • In the past, the Alliance has made FIPPA requests concerning some of the same subject-matter as exists here. In 2013, the Ministry first provided a fee estimate of $2,325. The fee was not waived, and instead, the responsible Minister provided the documents free of charge pursuant to s.63. In 2015, Mr. Lepofsky paid a fee of $7.50 on behalf of the Alliance.
  • In addition, the Ministry states as follows with respect to the present request:
    • The format of the FIPPA request, in the form of questions as opposed to requests for specific records, increased the amount of search time. Section 10(1) of FIPPA grants a right of access to records. It does not provide for questions or requests for information;
    • The Ministry worked with the Alliance to divide the request into two sections: Part A (questions that did not require extensive search time) and Part B (complex questions that required significant search time). Part A records required 8 hours of search time, were provided free of charge, and answer 15 of the 31 questions;
    • On July 7, 2015, the Ministry asked for clarification in relation to questions 10, 16, 18, 28 and 29. The purpose of this was to narrow the types of records that would be acceptable, which in turn, would reduce the volume of records that needed to be reviewed;
    • On August 7, 2015, Ministry officials participated in a telephone call to narrow the scope of the records sought. The purpose of this was, again, to reduce search time. Unfortunately, this meeting did not result in a resolution; and,
    • In total, Ministry officials spent 140 hours of search time to locate the relevant documents. By contrast, the 2013 request took 77.5 hours. The difference in the quantum of hours is due to the fact that the present request is broader, and the Accessibility Directorate holds more records now than it did in 2013;

PART III – ISSUES AND THE LAW

  • The Appellant has raised two issues:
  • Does the Alliance qualify for a fee-waiver?
  • In the alternative, is the Ministry's fee estimate reasonable?

A. Fee-Waiver

  • Section 57(1) of FIPPA states that the Ministry "shall require the person who makes the request for access to a record to pay fees in the amounts prescribed by the regulations." The fees "are mandatory unless the requester can present a persuasive argument" otherwise. The user-pay system that "is founded on the premise that requesters should be expected to carry at least a portion of the cost of processing a request unless it is fair and equitable that they not do so." The user-pay system encourages requests that are reasonable in scope and offsets costs to the public in circumstances such as the present case, where Ministry staff were redirected from enforcement activities to satisfy the FIPPA request.
  • FIPPA allows fees to be waived in prescribed circumstances. The requestor must establish (1) the enumerated grounds in section 57(4), and (2) that the fee-waiver is "fair and equitable." With respect to the enumerated grounds, the following must be considered: 57(4)(a) (difference between actual cost and that calculated under 57(1)), 57(4)(b) (financial hardship), and 57(4)(c) (public health and safety). The Ministry submits that, after considering these factors, it is not fair and equitable to grant a fee waiver.
    • The difference in the actual cost relative to allowable costs
  • Section 57(4)(a) requires consideration of "the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1)." Here, the actual cost includes time for creating new records to satisfy some of the questions, conversion of the records into an accessible format, and working with the Alliance (through telephone calls and correspondence) to narrow the scope of the records sought.
    • Financial Hardship
  • "Hardship" means "severe suffering or privation." The onus is on the requester to provide evidence of its financial circumstances. This includes evidence of fundraising efforts.
  • PO-3602, a 2016 decision, is similar to this case. The appellant was the editor of a small online newspaper. The three-year old organization was run by volunteers and did not accept paid advertisements or donations. The editor paid some of the expenses of the organization out of her own personal income. The Ministry argued, inter alia, that the appellant did not provide information about the newspaper's ability to raise funds for the FIPPA request. Adjudicator Gillian Shaw agreed:

[T]hrough the newspaper's ability to raise funds, I find that it is not unreasonable to expect that money could be raised from the approximately 13,000 readers that the appellant indicates the newspaper reaches.

It is reasonable to expect that some funds could be raised from the members of the community who will be affected by the project.

  • This case is no different. The Alliance has been in existence for 12 years. It grew out of another organization – the ODA – which was in existence from 1994 to 2005. The Alliance "draws its membership" from the ODA and enjoys a "broad grassroots base." The Alliance has been "publicly recognized and commended" and Mr. Lepofsky himself has been publicly recognized in his capacity as Chair of the organization. It is reasonable to expect an organization with such prominence to make fundraising attempts prior to claiming "financial hardship." The Alliance cannot satisfy the test under 57(4)(a) as it chose not to fundraise.
    • Public Health and Safety
  • In Order P-474, Assistant Commissioner Glasberg outlined factors in determining section 57(4)(c) ("Glasberg Factors"):
  • Whether the subject matter of the record is a matter of public rather than private interest;
  • Whether the subject matter of the record relates directly to a public health or safety issue;
  • Whether the dissemination of the record would yield a public benefit by a) disclosing a public health or safety concern or b) contributing meaningfully to the development of understanding of an important public health or safety issue;
  • The probability that the requester will disseminate the contents of the record.

 

  • A public interest alone is insufficient. Most advocacy organizations claim to be pursuing the public interest. The Williams Commission recommended a fee waiver when disclosure of the records serves the public interest, however, the Legislature chose a more onerous standard.   The public interest in the dissemination of the records (Glasberg Factors #3 & #4) must bear a "causal connection" to "public health and safety." The connection must be direct and not remote.
  • The IPC has drawn a distinction between "public health and safety" and "accessibility." In PO-2686, a reporter sought records under the Accessible Parking Permit Program (APPP) on "how the program is run and the validity of permits issued under the program." The appellant made submissions that are very similar to those made by the Alliance in this case:

[T]he subject matter relates directly to a public health and safety issue because disabled people require the permits…if permits are "being abused by able-bodied people, legitimate permit holders would not have the ability to use something that improves their health.
***
Consider the elderly person with a legal permit who cannot park near his or her destination because people illegally using permits have clogged the street.  In winter, this becomes a particular problem in many areas of the province.

  • The Ministry's position in that case is also similar to its position here:

The Accessibility Parking Permit Program (APPP) is primarily concerned with accessibility, not with public health or safety.  The goal of accessibility programs such as the APPP, while certainly not inconsistent with programs related to public health or safety, is to facilitate the participation of disabled persons in society on an equal footing with those not suffering from disabilities…
***
[T]o include the APPP under the rubric of public health or safety would attribute a meaning to that term beyond what it can reasonably bear.

  • Adjudicator Corban ruled in the Ministry's favour:

I agree with the Ministry's position that the subject matter of the records at issue relates to the APPP which is best characterized as an accessibility program with the primary concern of eliminating barriers to the disabled rather than the health and safety of those who use the program. 

Accordingly, in my view, the subject matter of the records directly relates to accessibility and the equality rights of the disabled and does not directly relate to a matter of public health and safety.

  • Adjudicator Corban also applied the directness requirement between "public health and safety" and the records sought, and ruled that the link is too remote:

I understand that to qualify for a permit under the APPP program, an individual must consult a health practitioner to certify the existence of a disability or medical condition.  

I also accept that the misuse of such permits could possibly give rise to individual health and safety concerns as a result of individuals attempting to reach certain destinations which were rendered inaccessible to them by inconsiderate citizens.  

However, in my view, these are neither matters related to public health and safety issues nor are they matters to which the responsive records relate directly [original emphasis].

  • In this case, there is at best a tenuous link between the records sought and "public health and safety." The Ministry's Affidavit demonstrates the lack of any direct connection between each of the requests and "public health and safety." On the other hand, the Alliance points to specific regulations made under the Accessibility for Ontarians with Disabilities Act without establishing a nexus between these and the documents requested. Specifically, with reference to the Alliance's Memorandum of Argument:
  • Para. 55(a) – the regulation cited is with respect to emergency procedures, however, none of the records sought relate to emergencies;
  • Para. 55 (b) – (h) – the regulations cited focus on accessible transportation, but none of the records sought relate to transportation; and
  • Para. 55 (i) – the regulation identified concerns "major contraventions," which do not form the subject matter of any of the records sought.
  • The above is in contrast to cases in which the "public health and safety" criterion was satisfied. These cases bear a causal link between the records sought and public health and safety:  PO-2278 (quality of long term health care), PO-754 (complaints of abuse at mental health care centres), PO-1962 (quality of care at group homes), MO-2862 (police response to lost use of force equipment), MO-2730 (policies on the police practice of kettling) and MO 2163 (quarry's possible effects on the groundwater supply).
  • "Fair and Equitable"
  • This component of the test is a discretionary balancing of all factors. Relevant factors include:
  • the manner in which the institution responded to the request;
  • whether the institution worked constructively with the requester to narrow and/or clarify the request;
  • whether the institution provided any records to the requester free of charge;
  • whether the requester worked constructively with the institution to narrow the scope of the request;
  • whether the request involves a large number of records;
  • whether the requester has advanced a compromise solution which would reduce costs; and
  • whether the waiver of the fee would shift an unreasonable burden of the cost from the appellant to the institution.

 

  • Prior fee waivers granted by the Institution or the courts, without reasons, provides an insufficient precedent. A prior settlement of a fee-waiver request cannot create an estoppel binding on the Minister. In any event, the Act governs and the Minister does not have the authority to waive a fee except as authorized under FIPPA.
  • Additionally, the Ministry states:  
  • FIPPA establishes a user-pay principle;
  • The Ministry provided many documents without charge (which amounts to a partial fee waiver);
  • The Ministry attempted to work with the Alliance to narrow the scope of the request, and thus, the cost of the request;
  • The Ministry provided documents without charge in the past;
  • The request is broad. It lists 31 questions, most of which have sub-questions that bring the total number of requests to approximately 84; and
  • The appellant has made no effort to try to pay through fundraising efforts.

 

  • As a result of the foregoing, the Ministry submits that Alliance has not satisfied the test for a fee waiver.

 

B. Cost is Justified

  • In total, Ministry officials spent 140 hours of search time. The Ministry repeats and relies on the evidence contained in the affidavit of Jennifer Brown with respect to why 140 hours was required.

 

PART IV – ORDER REQUESTED

 

  • The Ministry respectfully requests that this appeal be dismissed.

 

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 24th day of July, 2017.

 

                                                                                ___________________________________
                                                                                               
                                                                                ATTORNEY GENERAL FOR ONTARIO
                                                                                Crown Law Office – Civil
                                                                                720 Bay Street, 8th Floor
                                                                                Toronto, ON     M7A 2S9

                                                                                Sara Blake/Emtiaz Bala


Schedule "A"
Authorities

No.

Case

1

Ministry of Transportation, Re, PO-3351

2

Brock University, Re, PO-3493

3

Ministry of the Environment and Climate Change, Re, PO-3480

4

Municipality of the Townships of Sherwood, Jones and Burns, Re, Order M-914

5

Management Board Secretariat, Re, Order P-591

6

Ontario Ministry of the Attorney General, Re, Order P-700

7

Ontario Ministry of the Attorney General, Re, PO-2848

8

Ministry of the Attorney General, Re, P-1142

9

Ministry of Community and Social Services, Re, P-1365

10

Toronto Police Services Board, re, MO-2529

11

Ministry of the Environment and Climate Change, Re, PO-3602

12

Ontario Hydro, Order P-474

13

Waterloo Region District School Board, Re, MO-1336

14

Toronto Police Services Board, Re, MO-2071

15

Ontario (Secretariat for Aboriginal Affairs, Re, PO-2592

16

Ministry of Community Safety and Correctional Services, Re, PO-2726

17

Ontario Ministry of Transportation, Re, PO-2686

18

Ontario (Ministry of Health and Long-Term Care, Re, PO-2278

19

Ministry of Health, Re, P-754

20

Ministry of Community and Social Services, Re, PO-1962

21

York Regional Police Services Board, Re, MO-2862

22

Toronto Police Services Board, Re, MO-2730

23

City of Hamilton, Re, MO 2163

24

Halton Board of Education, Re, Orders M-166

25

The Corporation of the County of Northumberland, Re, M-408

26

Ontario (Ministry of Natural Resources), Re, PO-1953-F

27

Ministry of Transportation, Re, PO-3383

28

Canada Post Corp. v. G3 Worldwide 2007 ONCA 348 at para. 44

 


Schedule "B"
Legislation

 

1. Freedom of Information and Protection of Privacy Act, R.S.O. 1990, CHAPTER F.31

 

Fees
57. (1) A head shall require the person who makes a request for access to a record to pay fees in the amounts prescribed by the regulations for,
(a) the costs of every hour of manual search required to locate a record;
(b) the costs of preparing the record for disclosure;
(c) computer and other costs incurred in locating, retrieving, processing and copying a record;
(d) shipping costs; and
(e) any other costs incurred in responding to a request for access to a record.  1996, c. 1, Sched. K, s. 11 (1).
(2) Repealed:  1996, c. 1, Sched. K, s. 11 (1).

Estimate of costs

(3) The head of an institution shall, before giving access to a record, give the person requesting access a reasonable estimate of any amount that will be required to be paid under this Act that is over $25.  R.S.O. 1990, c. F.31, s. 57 (3).

Waiver of payment

(4) A head shall waive the payment of all or any part of an amount required to be paid under subsection (1) if, in the head's opinion, it is fair and equitable to do so after considering,
(a) the extent to which the actual cost of processing, collecting and copying the record varies from the amount of the payment required by subsection (1);
(b) whether the payment will cause a financial hardship for the person requesting the record;
(c) whether dissemination of the record will benefit public health or safety; and
(d) any other matter prescribed in the regulations.  R.S.O. 1990, c. F.31, s. 57 (4); 1996, c. 1, Sched. K, s. 11 (2).

Review

(5) A person who is required to pay a fee under subsection (1) may ask the Commissioner to review the amount of the fee or the head's decision not to waive the fee.  R.S.O. 1990, c. F.31, s. 57 (5); 1996, c. 1, Sched. K, s. 11 (3).

Disposition of fees

(6) The fees provided in this section shall be paid and distributed in the manner and at the times prescribed in the regulations.  1996, c. 1, Sched. K, s. 11 (4).
Section Amendments with date in force (d/m/y)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Purpose

1. Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this Act is to benefit all Ontarians by,
(a) developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and
(b) providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.  2005, c. 11, s. 1.

Affidavit of David Lepofsky, para. 10

Appellant's Record of Documents, pp. 1-11

Affidavit of David Lepofsky, paras. 10-14

Affidavit of Jennifer Brown

Affidavit of Jennifer Brown

Affidavit of Jennifer Brown

Affidavit of Jennifer Brown

Affidavit of Jennifer Brown

Section 57(1), FIPPA

PO-3351, at para 15 (emphasis added).

PO-3493, at para 13.

Section 57(4)(a)

PO-3480, at para 196.

Orders M-914, at para 8; P-591, P-700, PO-2848, at para 34; P-1142, at para 8; P-1365, at para 11-12; MO-2529, at para 17.

PO-3602, at para 54-59.

PO-3602, at paras. 45, 51, 52  54-59.

Affidavit of David Lepofsky, para. 3

Affidavit of David Lepofsky, para. 4

Affidavit of David Lepofsky, para. 4

Affidavit of David Lepofsky, para. 5

Affidavit of David Lepofsky, para. 9

Order P-474

Order P-474

MO-1336, at para 55; MO-2071, at para 53; PO-2592, at para 94; PO-2726, at para 26; Brock University, Re, PO-3493, at para 16.

PO-2686, at para 64-65.

PO-2686, at para 1.

PO-2686, at para 51, 56.

PO-2686, 52-53.

PO-2686, at para 66.

PO-2686, at para 65.

PO-2278, at para 25.

P-754

PO-1962, at para 34, 48.

MO-2862 at para. 83.

MO-2730, at para 55.

MO 2163

Orders M-166, M-408, PO-1953-F, at para 66.

PO-3383, 27-31

Canada Post Corp. v. G3 Worldwide (Canada) Inc. 2007 ONCA 348, at para. 44, citing: Sturdy Truck Body (1972) Ltd. v. Minister of National Revenue (1995), 95 F.T.R. 270 (Fed. T.D.) at para. 10.

This is conceded in the Alliance's Memorandum of Argument, para. 65