ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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United for a Barrier-Free Ontario

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 Government’s 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 Government’s 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 Alliance’s January 22, 2013 letter to Minister Milloy about enforcement of the Accessibility for Ontarians with Disabilities Act .

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

CURRENT STATUS

BACKGROUND

Self-Certification Reporting: Priority Requirement

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

APPLICATION

Phase 1: Target Non-filers from the 2012 Blitz

Phase 2: Non-filers

Phase 3: Filers

Phase 4: Partners Pilot Project

OTHER ENFORCEMENT ACTION

BPS compliance with IASR requirements

LOOKING AHEAD: 2014

CONSIDERATIONS:

RATIONALE

NEXT STEPS

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

March - April

If no written submission filed within the 30+ days:

  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).

April - May

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

Timeline C&E Activities Notes

June - July

August - September

September -October

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

Month(s) C&E Activities Notes

October - November

December

Phase 4: Partners Projects (600 organizations)

Month(s) C&E Activities Notes
October

November

December – early 2014