ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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Government Email Reveals Wynne Government is Paying Deloitte A Staggering $415,000 to Consult on a Proposal to Establish a Private Accessibility Certification Process – Wynne Government’s Spending Priorities Are Questionable As It Continues to Drop the Ball on Keeping Its Promise to Effectively Enforce Ontario’s Accessibility Law

February 12, 2016

SUMMARY

1. The News and Why It Matters

The Wynne Government has questionable spending priorities, when it comes to fulfilling its duty under the Accessibility for Ontarians with Disabilities Act to lead Ontario to full accessibility to people with disabilities by 2025, under nine years from now.

Last fall, the Wynne Government announced a controversial decision to hire the Deloitte firm to consult the public on the Government’s problem-ridden idea of a private accessibility certification process being established. A Government email, forwarded to the AODA Alliance by two of its recipients, reveals the Government is paying Deloitte a staggering $415,000 for this five-month project.

“Less than nine years remain for the Government to lead Ontario to full accessibility. Ontario is falling further and further behind schedule for reaching full accessibility by 2025, the deadline which Ontario’s accessibility law imposes”, said David Lepofsky, chair of the AODA Alliance, a non-partisan grassroots coalition that spearheads the campaign to make Ontario fully accessible to over 1.8 million people with disabilities. “This $415,000 would be far better spent on developing new accessibility standards that we need, to tackle accessibility barriers in our schools, residential housing, and health care system. Those funds could also be far more effectively spent on keeping the Government’s broken promise to effectively enforce Ontario’s accessibility laws.”

The provincial government continues to fail to fulfil its most basic obligations under the AODA. It appears instead to be dithering and thrashing about, trying to find some way to change the channel away from its fundamental duties under the AODA. The Wynne Government is required to create all the accessibility standards needed to lead Ontario to full accessibility by 2025, and to effectively enforce those accessibility standards. The Government knows of three straight years of rampant AODA violations among thousands of private sector organizations with at least 20 employees. Yet it is doing far too little to enforce this law. A private accessibility certification process can’t make up for this failure.  

2. Finding Out About the $415,000 Deloitte Fee

The December 14, 2015 email from Accessibility Directorate of Ontario official Phil Simeon (forwarded to us   by two of its recipients, Charles Silverman and Louise Bark) states:

“The contract with Deloitte covers the requirements for a consultation process that encourages transparent dialogue through all phases, where participants can openly express their views.  Deloitte's contract is valued at $415,000 over a five-month timeframe and services include:

On December 5, 2015, AODA Alliance Chair David Lepofsky wrote Economic Development Minister Brad Duguid, asking, among other things, how much the Government is paying Deloitte. Two months later, Mr. Duguid has still not answered.

When we learned about this fee from the email that we quote above, we offered the Government a chance to tell us if it denied its authenticity. In a January 31, 2016 email to Accessibility Directorate of Ontario official Phil Simeon, set out below, AODA Alliance Chair David Lepofsky asked Mr. Simeon to confirm that he sent the email quoted above, that revealed Deloitte’s $415,000 fee. Mr. Simeon has not responded. David Lepofsky’s January 31, 2016 email to Mr. Simeon, set out below, includes the text of Mr. Simeon’s December 14, 2015 email that Charles Silverman and Louise Bark forwarded to the AODA Alliance, and that reveals the Deloitte fee.

We have no reason to doubt its authenticity. It would be a remarkable coincidence for both Charles Silverman and Louise bark to each have forwarded to us that email, if it were not authentic. Both people are long-standing and dedicated accessibility supporters.  

3. More Information about This and Why It is So Troubling

We recently learned yet more troubling information about the Deloitte project. In a February 5, 2016 conference call, Deloitte told us that the Wynne Government hired Deloitte to develop a business plan for a private accessibility certification process. That business plan will be made public. Any private organization can then use it, and decide if it wants to offer a private accessibility certification process. More than one private organization may decide to offer this certification service at the same time.

The “certifier” would be self-appointed. The Government would not be involved in selecting any organization or organizations to offer this service. The certifier would work independent of the Government. Set out below is AODA Alliance Chair David Lepofsky’s February 10, 2016 email to Deloitte, confirming this new information.   

This is a very questionable use of hundreds of thousands of the public’s dollars, for several reasons. First, after the Government spends all this public money, no private organization may decide to come forward to offer this certification service. The public will have spent $415,000 for nothing.

Second, it may be that a company will come forward to offer a private accessibility certification process for a profit. That means that the public will have paid for the research. Then that private organization will make the profits. We have never before heard of a government using public money to create a business plan and then handing it to private businesses, at no charge, for them to make a profit.

Third, it also seems questionable that using tax dollars, the Government would hire Deloitte, a private for-profit consulting firm, to ask stakeholders including people with disabilities and disability organizations, to volunteer hours and hours of their time, to give Deloitte feedback so it can draft a business plan that a private organization would later use to run a revenue-generating or for-profit private accessibility certification process.

Fourth, the steep Deloitte fee is even more questionable since Deloitte indicated on the February 5, 2016 conference call that its final report will make no findings. It will just compile feedback has received. That seems a big price for such a project.

Fifth, the Wynne Government has not explained why it has hired a private firm to conduct this consultation. The Government’s Accessibility Directorate of Ontario has far more expertise in disability accessibility. It has extensive experience conducting accessibility public consultations. The Accessibility Directorate could run this consultation for much less than $415,000. The Government has not answered AODA Alliance Chair David Lepofsky’s December 5, 2015 letter to Economic Development Minister Duguid, where we asked why the Government used Deloitte instead of the Accessibility Directorate to run this consultation.

Sixth, for such a generous fee, we would expect Deloitte to do a very good job of reflecting the feedback it received. Yet as our February 1, 2016 AODA Alliance Update shows, Deloitte’s recent draft report on the first phase of its consultations ignored or rejected the AODA Alliance’s key feedback. Our feedback made a compelling case why the entire idea of a private accessibility certification process is fatally flawed and should not be pursued. If one reads Deloitte’s draft First Phase report, one would have no idea that such strong opposition had been voiced.

Important points we have made to Deloitte include:

a) The entire idea of a private organization certifying an obligated organization as “accessible” is fraught with inescapable problems. Obligated organizations will ultimately realize that a so-called “accessibility certification” through a private accessibility certification process is practically useless. It does not mean that their organization is in fact accessible. It cannot give that obligated organization any defence if an AODA inspection or audit reveals that the organization is not in compliance with an AODA accessibility standard, or if the organization is subject to a human rights complaint before the Ontario Human Rights Tribunal. An obligated organization cannot excuse itself from a violation of the AODA, the Ontario Human Rights Code or the Charter of Rights by arguing that thanks to its private accessibility certification, it thought it was obeying the law.

b) A private accessibility certification could mislead people with disabilities into thinking an organization is fully accessible in a situation where that organization is not in fact fully accessible.

c) Obligated organizations that spent their money on a private accessibility certification will understandably become angry or frustrated when they find that this certification does not excuse unlawful conduct. They will understandably share these feelings with their business associates. Ontarians with disabilities don’t need the Government initiating a new process that will risk generating such backlash.

d) A private accessibility certification could have a very limited shelf-life. When the Government enacts a new accessibility standard (as it has promised to do in the area of health care), or revises an existing one, (as the Government is required to consider every five years in the case of existing AODA accessibility standards), that certification would have to be reviewed once new accessibility requirements come into effect.

e) Any private certification process raises serious concerns about public accountability. The public will not be able to find out how it is operating, beyond any selective information that the Government or the private certifier decides to make public.
Seventh, Deloitte is now plunging into its contract’s second phase, designing the details of how a private accessibility certification process should work. It has recruited multiple working groups of volunteers and booked a good number of meetings, staffed by Deloitte, to dive into design details.

Yet the Government has made no clear announcement that it has in fact decided that there should be a private accessibility certification process. As our February 1, 2016 AODA Alliance Update shows, Deloitte’s draft First Phase Report does not squarely and thoroughly explore whether there should be a private accessibility certification process, a pivotal first issue.

Why are hundreds of thousands of public dollars now being spent to design the details of a private accessibility certification process, before any public decision is made and clearly announced, that we should proceed to that next step. Were the Government to review the feedback received to date, and decide that this is not worth pursuing any further, public money and community volunteer efforts would be saved. Economic Development Minister Duguid has not answered our request in our December 5, 2015 letter, that he clarify whether the Government has already pre-decided that there should be a private accessibility certification process.

The very idea of calling an accessibility consulting service or a website “Certified for Access” (the branding on Deloitte’s consultation website and Twitter feed) wrongly puts the cart far before the horse. If the question is still open, whether there will be a private accessibility certification process, then a project or website name that presupposes that it is a done deal is inappropriate.

Eighth, the loaded label “certified” is misleading. For some private organization to “certify" another organization as “accessible” makes it sound as if that “certifying” organization has some externally-imposed authority to grant a “certification.” Of course, it won’t.

A self-appointed private accessibility “certifier” would be a private organization that simply takes this role on itself, on a hope that it will be self-financing or profitable. It would have no public mandate to “certify” anything. At most, it is playing the role of a self-appointed private accessibility consultant.  Yet its private accessibility advice would, through branding and marketing, be misleadingly over-inflated to sound as if it constitutes an official and authoritative stamp of approval.

4. Being Forced to Resort to Another Freedom of Information application

Because the Wynne Government has refused for over two months to answer important questions that swirl around this dubious Deloitte venture, AODA Alliance Chair David Lepofsky has had to again resort to a Freedom of Information application. On February 11, 2016, he filed a new Freedom of Information application with the Economic Development Ministry. Its key contents are set out below. It seeks the key information that we asked of Economic Development Minister Duguid in our December 5, 2015 letter, and which the Wynne Government has not answered.

The Wynne Government has a regrettable practice of claiming huge search fees for our Freedom of Information applications. This application is carefully worded to not require the Government to have to make much effort at all to locate the information requested.

5. Links to Helpful Background Information

To download in an accessible MS Word format the AODA Alliance’s February 1, 2016 written submission to the Deloitt company on the first phase of its private accessibility certification process consultation.

You can download the Deloitte company’s draft report on the first phase of its publicly-financed consultation on a private accessibility certification process, in MS Word format.

You can see the Government’s original announcement of this consultation.

Check out the AODA Alliance’s December 5,2015 letter to Economic Development Minister Brad Duguid (which the Government has not answered), seeking more details about its private accessibility certification process.

You can always send your feedback to us on any AODA and accessibility issue at aodafeedback@gmail.com

To sign up for, or unsubscribe from AODA Alliance e-mail updates, write to: aodafeedback@gmail.com

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

1. January 31, 2016 AODA Alliance Chair David Lepofsky Email to the Accessibility Directorate of Ontario Which Includes the December 14, 2015 Email from Accessibility Directorate of Ontario Official Phil Simeon  

To: Mr. Phil Simeon, Accessibility Directorate of Ontario
Via Email: Phil.Simeon@ontario.ca

CC: Charles Silverman

From: David Lepofsky, Chair, AODA Alliance

Date: January 31, 2016

Mr. Charles Silverman has forwarded to us what appears to be an email exchange between you and him in December 2015 regarding the Deloitt consultation on the proposed Accessibility Directorate of Ontario. We have no reason whatsoever to doubt its authenticity. May I ask you to let me know if you confirm or dispute that you had this email exchange, set out below. I have removed Mr. Silverman’s email address but otherwise left the exchange that he forwarded to me intact.

It would be very much appreciated if you could let us know as soon as possible. As well, please confirm that you received this email, and let me know your position at the Accessibility Directorate of Ontario.

Thank you in advance for your help.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance

Text of Email Exchange Between Charles Silverman and Phil Simeon

From: "Simeon, Phil (MEDEI/MRI)" <Phil.Simeon@ontario.ca>
Subject: RE: Accessibility Certification Roundtable Session - Last Logistics
Date: December 14, 2015 at 4:12:02 PM EST
To: Undisclosed recipients

Thanks to all of you who have taken the time to write with your comments and questions following our public engagement session last week.

As we all work to keep this ongoing process as transparent as possible, I'd also like to encourage you to also post comments about our ongoing public engagement on the certifiedforaccess.ca site so they can be read and discussed by as wide an audience as possible. Certainly, any constructive feedback we receive during this problem-identification phase of our consultation is welcome.

Although it is difficult to cover every issue and question raised in this recent correspondence, I'd like to address the two main ones that have arisen: The issue of payment for participants in this public engagement and the details of our engagement with Deloitte. 

As is standard practice for government consultations in Ontario, participation in the process is on a volunteer basis.

Regarding the role of Deloitte, these consultations are being conducted in accordance with well-established Government of Ontario practices. This approach commonly involves an independent facilitator, in this case Deloitte's project team, who were chosen after a competitive procurement process.  Deloitte's project team has extensive experience in open government consultation.

The contract with Deloitte covers the requirements for a consultation process that encourages transparent dialogue through all phases, where participants can openly express their views.  Deloitte's contract is valued at $415,000 over a five-month timeframe and services include:

Please keep in mind, as we move forward, that the desired outcome of this process is the development of an independent, financially self-sustaining, made-in-Ontario certification model.  It will not replace the requirements that organizations need to meet under the Accessibility for Ontarians with Disabilities Act (AODA). It is not intended to be a replacement or alternative to compliance and enforcement activities.  

Phil Simeon | Manager | 416-326-6222
Accessibility Directorate of Ontario | Standards Development

-----Original Message-----
From: Charles Silverman
Sent: December 10, 2015 6:07 PM
To: Simeon, Phil (MEDEI/MRI); Orr, Tracy (CA - Ottawa); don.lenihan@canada2020.ca
cc: [list of attendees removed]
Subject: Re: Accessibility Certification Roundtable Session - Last Logistics

Dear Phil, Tracy and Don,

During the consultation today there was a commitment to transparency. It was mentioned that people with disabilities were contributing their time and expertise. There was admission that there would be no compensation for this contribution of time.

Given the limited funds available for this effort, especially public funds, and given the commitment to transparency, can you tell us how much Deloitte is being paid to run this process, in other words what is the cost of the Deloitte contract?

thanks,
Charles, on behalf of several participants

2. Text of AODA Alliance Chair David Lepofsky’s February 10, 2016 Email to Deloitte

To: Sarah Wilson, Tracy Orr 
From: David Lepofsky
Date: February 10, 2016
Re: Deloitte Consultation on the proposal that Ontario Have a Private Accessibility Certification Process

I am writing to confirm some of the helpful information you shared during the February 5, 2016 call-in orientation session on the proposal for a private accessibility certification process.

You explained that in your current second phase of this project, Deloitte’s assignment is to design a private accessibility certification process. At this point in your work, there is now to be no discussion of whether Ontario should have a private accessibility certification process. Your current activity is to design what one should look like.

You explained that during this consultation, Deloitte will be receiving input from the people it consults on this proposal, and will be compiling it in its final report. It will not be evaluating it, or offering any findings based on it. The final report will simply be an aggregation of the feedback which Deloitte receives.

You also explained that the assignment for Deloitte is through this feedback, to prepare a report that sets out a business plan for how a private accessibility certification process might be operated. It would be independent of the Ontario Government.

When that report is made public, it would be open for a private organization to come forward if it wishes, take the contents of the final report, and use it to create its own private accessibility certification process it would operate itself. It would be open to more than one private organization to come forward and operate a private accessibility certification process at the same time. The Government would not be deciding who should operate the private accessibility certification process. 

I asked if it was a premise of any private accessibility certification process that the Government would provide funding to get it started. You told us that that had not been decided, and that it would be open to those with whom Deloitte is now consulting to make recommendations on this.

You told us that the “Certified for Access” website was created by Deloitte, and that at the end of this project, all the product of Deloitte’s work will go to the Accessibility Directorate of Ontario. You explained that in your 25 years of consulting work, you had never before seen a situation like this, where the Government funds the preparation of  a plan to be a catalyst, but not being involved in the project that results from it.

Deloitte won’t now give out a copy of the research paper it prepared last summer for the Ontario Government on the topic of a private accessibility certification process. Deloitte will be giving working groups a condensation of that paper. However, the Government must decide if it will give out that entire paper. You kindly agreed to ask the Government for permission to give the paper out to us.

Your agenda for volunteers who take part in Phase 2 of this consultation shows that Deloitte asks us to donate up to 5 or more hours in meetings with Deloitte.

3. Text of Records and Information that AODA Alliance Chair David Lepofsky’s February 11, 2016 Freedom of Information application Requests from the Ontario Economic Development Ministry

C.        Description of Records Requested

1. Last fall, the Economic Development Ministry announced a public consultation on a possible private accessibility certification process. The Deloitte company is conducting this consultation.

Government statements about the scope of this consultation are unclear. Some Government statements make it sound as if the Government has already decided that a private accessibility certification process should be established. The Government is merely trying to decide what it should look like, and who should operate it.

Has the Government already decided that a private accessibility certification process will in fact be established? What specifically has the Government decided as of now?

2. Please provide us with the terms of reference or instructions to Deloitte about the scope of this public consultation, including on what questions the Government is asking Deloitte to consult and/or report, and the deliverables the Government has asked Deloitte to provide.

3. Please provide any Request for Proposal (RFP) or other procurement issuance that the Government issued in connection with this project, and the dates of any RFP posting or procurement issuance process, in connection with this private accessibility certification process consultation and/or research. Was this procurement posted on the MERX website? If not, to which potential provider organizations did the Government send it as part of its procurement exercise?

4. Please provide any contract or retainer with the Government and Deloitte in connection with the private accessibility certification process consultation and research.

5. How much is the Government paying, or to pay Deloitte for the conduct of this consultation? We have had forwarded to us a December 14, 2015 email from Accessibility Directorate of Ontario official Phil Simeon, stating that the fee is $415,000. We have not received Government confirmation of this.

6. Why did the Government retain a private company (i.e. such as Deloitte) to conduct this consultation, rather than having the Accessibility Directorate of Ontario conduct this consultation?

7. Is the Government’s proposal for establishing a private accessibility certification process aimed solely or predominantly at built environment accessibility barriers in buildings?

8. When the Deloitte organization spoke with AODA Alliance Chair David Lepofsky late last fall, Deloitte’s representative advised that last summer; Deloitte prepared some sort of research paper or backgrounder on this private accessibility certification process proposal, including a scan of such initiatives elsewhere. A Deloitte official again confirmed in a phone call on February 5, 2016 that such a paper had been prepared and submitted to the Ontario Government, and that its public release is up to the Accessibility Directorate of Ontario.

I request any research papers or documents that Deloitte has submitted to the Government on any aspect of the proposal to establish a private accessibility certification process. I request in advance that any future papers or documents that Deloitte submits to the Government on the results of its consultations, any research on the idea of a private accessibility certification process, and/or any recommendations be provided to us.

9. Please provide us with any research, advice or recommendations prepared by the Accessibility Directorate of Ontario on the idea to establish a private accessibility certification process, that is readily available without significant search efforts and whose existence is known to senior officials in the Accessibility Directorate of Ontario.

10. What estimate if any has been prepared either by the Accessibility Directorate of Ontario or the Deloitte company of the cost to the public of establishing a proposed private accessibility certification process. What public funding, if any, has been approved within the Government for this, or has the Economic Development Minister sought approval for from within the Government?

11. Would any such expenditure come from a new appropriation, or is the Economic Development Ministry considering diverting existing budget from other accessibility functions, like the creation of new AODA accessibility standards, reviewing and enforcing existing AODA accessibility standards, or AODA enforcement.

To make the fulfillment of this request an easy process for your officials, may I clarify that these requests only relate to documents that date back to November 1, 2014 and up to the present. 

Premier Wynne has commendably pledged that your Government would be the most open and transparent government in Canada. As such, we hope and trust that this request for information will be fulfilled expeditiously. We would ask that if certain of the information we request can be quickly provided, please don’t hold it back until all other items are collected.

CLARIFICATIONS

1. Please provide all documents in an accessible format in MS Word, so that they can be read by screen-reading software used by people with vision loss and other print disabilities. If this presents any difficulty, please advise me and I will do my best to see if there are ways to effectively address this.

2. Please provide any requested information as soon as available. In other words, please do not hold back all requested information until it is all assembled. If some information can be quickly provided, while other requested information may take longer, please provide the immediately available information as soon as possible, and do not hold it back until all other requested information is sought and obtained.

3. If some requested information would require extensive efforts to collect and provide, please contact me. I am open to adjusting the request for information to reduce the time and cost to the Government of complying with this request, so long as I can obtain the substance of the information I am seeking. I have assisted with just such an issue in the past, and am happy to do so again.

4. I am not seeking disclosure of any privileged legal advice sought or obtained by or within the Government.

5. I ask in advance that any fee for complying with this request be waived. I do so because this is a public interest application. I make the request for information under the Freedom of Information Act as a matter of public interest. I am the chair of the Accessibility for Ontarians with Disabilities Act Alliance, a volunteer position with a volunteer coalition. Our coalition is a non-partisan, non-profit community coalition advocating for the effective implementation of the Accessibility for Ontarians with Disabilities Act 2005. We have no funds of our own.

I make this request for information in good faith. The search fee should not become an unfair barrier to access to information for such a community group or for people with disabilities generally. The AODA Alliance has been recognized by all parties in the Ontario Legislature as a leading voice advocating for accessibility for people with disabilities in Ontario. As one illustration of this, each of the political parties has made their election commitments on disability accessibility in the form of letters to the AODA Alliance.

Method of access:  Receive copy