ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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United for a Barrier-Free Ontario

AODA Alliance sends the Wynne Government Detailed Recommendations to Make Sure that the major Renovation to the Government's Hub in Toronto, the Macdonald Block, Is Fully Accessible to People with Disabilities

April 7, 2017

Summary

The Wynne Government is planning a major renovation to the Macdonald Block, the major complex in the heart of downtown Toronto that houses the headquarters of a number of key Government ministries and offices.

The Government recently reached out to the AODA Alliance for input on what it should do to ensure that the new Macdonald Block is fully accessible to people with disabilities. On April 7, 2017, we sent a detailed letter to the senior team, responsible for this project, with nine recommendations. We set that letter out below. AODA Alliance chair presented these recommendations to the Government's senior project team, at a meeting on March 14, 2017. In summary, we made these recommendations:

1. The Government should commit to ensuring full accessibility of the Macdonald Block and to fulfilling the Ontario Human Rights Code's accessibility requirements, not just to exceeding the lesser Ontario Building Code and AODA accessibility standards where practicable.
2. The Government should set accessibility requirements for interior design and not just for building construction.
3. The Government should ensure that the design professionals on the Macdonald Block project have strong accessibility expertise.
4. The Government should promptly make public its accessibility criteria for the Macdonald Block project.
5. The Government should make its entire planning process on accessibility at the Macdonald Block public at every step along the way.
6. The Government should prepare public mock-ups of proposed accessibility designs for public input.
7. The Government should ensure accessibility is required at the very earliest stage of the design process, not just as a later interjection.
8. The Government should crowd-source good accessibility ideas.
9. The Government should implement and publicly report on A strong proactive enforcement process to Ensure that those building the new Macdonald Block fulfil all accessibility requirements.

We have to make these recommendations because even in 2017, a dozen years after the Legislature passed the Accessibility for Ontarians with Disabilities Act, the Ontario Building Code and AODA accessibility standards do not set sufficient requirements that ensure that a new building or major renovation is fully accessible to people with disabilities. Last month we wrote Accessibility Minister Tracy MacCharles to ask for her plans on accessibility over the next year, including on the need to strengthen Ontario's laws on built environment accessibility. We await her response.

Here is an interesting historical reflection! We wrote this letter on the 14th anniversary of the day when Liberal leader Dalton McGuinty wrote the AODA Alliances predecessor, the Ontarians with Disabilities Act Committee, to promise in the 2003 election that if elected, he'd pass a strong provincial accessibility law. The Accessibility for Ontarians with Disabilities Act 2005 was the eventual result of that promise. To read Dalton McGuinty's April 7, 2003 letter to David Lepofsky, then chair of the ODA Committee.

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MORE DETAILS

Text of the AODA Alliances April 7, 2017 Letter to the Wynne Government on the Macdonald Block Renovation Project

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue,
Toronto, Ontario M4G 3E8
Email aodafeedback@gmail.com Twitter: @aodaalliance www.aodaalliance.org

April 7, 2017

To: David Hallett, Associate Deputy Minister, Government Infrastructure Projects, Ministry of Infrastructure,
Via email:  david.hallett@ontario.ca

Dear Sir,

Thank you for inviting me to meet on March 14, 2017 with the team that leads the major renovation of the Macdonald Block in Toronto. That team included you as well as Tera Oswald, Senior Vice President, Office Real Estate, Infrastructure Ontario, Nick Munaretto, Executive Vice President, Portfolio Strategy & Transactions Services, Infrastructure Ontario, Norm Tanaka, vice President, Office Portfolio Strategy, Infrastructure Ontario, Jitka Christof, your executive assistant, and Susan Picarello, Assistant Deputy Minister of the Ministry of Accessibility, Division responsible for Ontario Public Service Accessibility, and employment strategy for people with disabilities.

We appreciate your seeking the AODA Alliance's input regarding the Ontario Government's plans to ensure that the new Macdonald Block facility will be fully accessible for people with disabilities. We commend the Government's goal.

This discussion is especially important because the Accessibility for Ontarians with Disabilities Act's (AODA's) mandatory deadline for Ontario to become fully accessible to people with disabilities, 2025, is fast approaching. It is under eight years away. Making your task more difficult, the Ontario Government has not yet put in place the comprehensive legal requirements needed to ensure that Ontario's built environment becomes fully accessible by 2025.

This is a very important project. The Macdonald Block is in the heart of downtown Toronto. It is the headquarters of many Ontario Government ministries. It is the central hub of the Ontario Public Service. Any renovation must effectively ensure its full accessibility for people with disabilities for many decades to come.

The renovation project is to be completed by 2024. That is the eve of the AODA's full accessibility deadline for all Ontario. The Government will invest a large amount of money and extensive effort to plan this renovation. It is essential to get it right from the accessibility perspective.

 It is commendable that the Ontario Government's new Multi-Year AODA Accessibility Plan, released at the start of this year, includes important new public commitments on accessibility of the Government's built environment. For example, it commits:

•           When constructing or renovating government facilities, all features, such as elevators, doors, washrooms, parking, and furnishings, will be fully accessible. [MOI]
Infrastructure Planning and Projects

•           Develop a Long Term Infrastructure Plan (LTIP) that will include a description of the state of government-owned infrastructure assets, a description of anticipated infrastructure requirements and a strategy to meet these requirements. The LTIP will ensure that infrastructure planning is integrated and aligned with other provincial plans and strategies, including accessibility requirements under the AODA, as well as Ontario's commitment to building an accessible province by 2025. Ontario will release this plan in 2017. [MOI]

•           Continue to prioritize accessibility in every element of the infrastructure projects at government owned facilities and properties. [MOI, Ministry of Natural Resources and Forestry (MNRF)]

•           User groups will be engaged during infrastructure project planning, design and implementation stages. [MOI, MNRF]

•           The reconstructed Macdonald Block Complex will be a modern, efficient and environmentally responsible workplace that supports greater collaboration and innovation, and showcases Ontario's leadership in accessibility. The new work space will be more accessible, accommodate employees of varying abilities and act as a model for the province. [MOI]

However, the fact that the Government new Plan makes commendable accessibility commitments does not ensure that these translate into action. The Government's 2012 Multi-Year Accessibility Plan included commendable commitments on accessibility. Sadly too many were not fulfilled.

We welcome any opportunity to help the Government meet these new accessibility commitments. We summarize our recommendations for the Macdonald Block project:

1. The Government should commit to ensuring full accessibility of the Macdonald Block and to fulfilling the Ontario Human Rights Code's accessibility requirements, not just to exceeding the lesser Ontario Building Code and AODA accessibility standards where practicable.

2. The Government should set accessibility requirements for interior design and not just for building construction.

3. The Government should ensure that the design professionals on the Macdonald Block project have strong accessibility expertise.

4. The Government should promptly make public its accessibility criteria for the Macdonald Block project.

5. The Government should make its entire planning process on accessibility at the Macdonald Block public at every step along the way.

6. The Government should prepare public mock-ups of proposed accessibility designs for public input.

7. The Government should ensure accessibility is required at the very earliest stage of the design process, not just as a later interjection.

8. The Government should crowd-source good accessibility ideas.

9. The Government should implement and publicly report on A strong proactive enforcement process to Ensure that those building the new Macdonald Block fulfil all accessibility requirements.

1. The Government Should Commit to Ensuring full Accessibility of the Macdonald Block and to Fulfilling the Ontario Human Rights Code's Accessibility Requirements, Not Just to Exceeding the Lesser Ontario Building Code and AODA Accessibility Standards Where Practicable

At our March 14, 2017 meeting, that the Government's aim was to meet the accessibility requirements in the Ontario Building Code and in the AODA accessibility standards, and to exceed them where it is practicable. I told you that that proposed approach is a fundamentally incorrect starting point. It falls well below the Government's duty. Regrettably it appears to be a common approach within the Ontario Government and among too many design professionals

The Government's proposed approach to accessibility will very likely lead to serious accessibility deficiencies and is inconsistent with the commitments in the Government's new Multi-Year Accessibility Plan, quoted above.

The Ontario Government must fulfil its accessibility obligations under the disability equality guarantees in the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. The built environment accessibility provisions in the Ontario Building Code and AODA accessibility standards fall well below those paramount duties.

There is ample proof that a new building or major renovation can lack needed accessibility even though it fully meets the weaker accessibility requirements in the Ontario Building Code and AODA accessibility standards. A striking example is the brand new Culinary Arts Centre at Centennial College. As we discussed at our meeting, that new building's accessibility problems are highlighted in a widely-viewed AODA Alliance video, available at https://www.youtube.com/watch?v=Dgfrum7e-_0&t=87s**.**
For years, the Ontario Human Rights Commission and the disability community have pressed the Ontario Government to increase the accessibility requirements in the Ontario Building Code in order to meet the accessibility requirements in the Ontario Human Rights Code. See:

* from the Ontario Human Rights Commission:  http://www.ohrc.on.ca/en/submission-ontario-human-rights-commission-concerning-barrier-free-access-requirements-ontario
* from the AODA Alliance's predecessor, the Ontarians with Disabilities Act Committee: http://www.odacommittee.net/ODA_Bill_125_news18.html

It is a profound ongoing disservice to people with disabilities, to design professionals, to builders and to building owners that Ontario has not made the Ontario Building Code and AODA accessibility standards reach the accessibility bar that the Ontario Human Rights Code and Charter of Rights set. Because of this, too many new accessibility barriers are being created in Ontario's built environment. It hurts all Ontarians. It makes Ontario lag further and further behind schedule for reaching full accessibility by 2025. It exposes design professionals and contractors to liability.

As noted above, it is all too common for design professionals, like architects and interior designers, to think that all they must do on disability accessibility is fulfil the accessibility requirements in the Ontario Building Code and AODA accessibility standards. We fear that such an erroneous belief has persisted at Infrastructure Ontario.

This is even more troubling, since the Macdonald Block project is being carried out under the Ontario Government's Alternative Finance Procurement (AFP) model. It will be privately financed. Bidders know the Government seeks the lowest bidder. This creates a strong economic incentive for a bidder to do the least they can on accessibility, e.g. by only doing the bare minimum on accessibility under the inadequate Ontario Building Code, just enough to get site plan approval and building permits. A bidder will fear including additional accessibility components because a competitor might win the job, by offering to do less, and at a lower cost.

 Under the Ontario Human Rights Code, the Government can only justify a failure to provide accessibility if it can prove that to provide it would cause the entire Government an undue hardship. The Human Rights Code presumes that accessibility can be achieved, unless the Government can prove the contrary, by evidence. As I explained at our meeting, it is incorrect and harmful for the Government to approach the Macdonald Block project, from the starting point that it will only do more on accessibility than what the Ontario Building Code and accessibility standards stipulate if practicable. That sets the accessibility starting point far too low. It wrongly reverses the burden of proof.

It is commendable that the Ontario Government wants to make the Macdonald Block a good accessibility example, for other public and private sector organizations to follow. However, for the Government to start from such a wrong starting point on accessibility, would set the wrong example for other organizations.

 We recommended at our March 14, 2017 meeting that you take the Macdonald Block design work back to the beginning, to ensure that it starts from the right starting point on accessibility. The later in the design process that the Government starts to get equality right, the harder it will be to ensure that it is properly addressed.

2. The Government Should Set Accessibility Requirements for Interior Design and Not Just for building Construction

As we discussed at our meeting, the Government should set and implement strong accessibility requirements, not only for the building structure, but as well, for the entire interior design. Your accessibility standards must cover everything inside and around the building. This includes such things as furniture, furniture layout, paths of travel, signage, etc. Interior and exterior design professionals, like building design professionals, too often lack sufficient knowledge of what is needed to ensure full accessibility.

3. The Government Should Ensure that the Design Professionals on the Macdonald Block Project Have Strong Accessibility Expertise

We recommend that the Ontario Government include in any Request for Proposal or other procurement activity for the Macdonald Block project, a strong requirement that any design professionals, retained to work on this project, have good, demonstrated expertise in accessible design, well beyond the Ontario Building Code and AODA accessibility standards. The Government should not rely solely on accessibility experts to later clean up the design mess after other design professionals. Instead, the Government should ensure that those whom it hires to design this project have accessibility expertise. Accessibility experts the Government may also retain can augment the architect design team's work.

Awarding of the contract should also be contingent on the design's accessibility. If it's not inclusive for all it should not be considered during the AFP bidding process.

4. The Government Should Promptly Make Public Its Accessibility Criteria for the Macdonald Block Project

We recommended at our meeting that the Government make public the detailed accessibility design standard it will use for the Macdonald Block project. This will enable the Government to crowd-source feedback on the sufficiency of that standard.

 At our meeting, I indicated that back in 2009, a senior official at the Ministry of Infrastructure told the AODA Alliance that the Government was then developing a new accessibility standard for built environment projects. In a November 18, 2009 letter to the AODA Alliance, Assistant Deputy Minister of Infrastructure Bill Hughes and assistant Deputy Minister for the Accessibility Directorate, Ellen Waxman, wrote us as follows:

"In addition, through the Ministry of Energy and Infrastructure, the Ontario Realty Corporation, the government's real estate service provider, is developing a new Pilot Accessibility Design Standard for Ontario Government Facilities. This pilot standard will proactively override and inform new builds and will include application criteria for retrofits, as well as an audit checklist. It is complemented by an Accessibility Management Framework and the interim universal signage and wayfinding technical backgrounder, which are used to implement the objectives of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). This Framework will support government commitments on the implementation of the AODA by taking a centre-of-excellence perspective to accessibility. The Framework will help ensure all new construction and significant renovations consider the best of contemporary accessibility practices."

The Government's November 18, 2009 letter to the AODA Alliance is available at http://www.aodaalliance.org/strong-effective-aoda/12162009.asp  

At our March 14, 2017 meeting, I asked for a copy of the "Pilot Accessibility Design Standard for Ontario Government Facilities", referred to above. We would like to receive it, whether or not it is now being used, and whether or not it was only in draft form. We would like to know if that is the accessibility standard that the Ontario Government has used since then on infrastructure projects. If another accessibility standard has been used, please let us know what it is, and give us a copy as well.

5. The Government Should Make Its Entire Planning Process on Accessibility at the Macdonald Block Public at Every Step along the Way

At our meeting, I identified a major problem that can occur when a large project such as the Macdonald Block is underway. The Government could well receive good ideas for action on accessibility during the planning process. Yet some or all of these can get nixed along the way during internal deliberations. The public won't know what was proposed and what was rejected along the way, or who rejected them, or why.

The Macdonald Block will not be re-opened until 2024. By then, those who block good ideas on accessibility during internal deliberations over the next weeks and months may well have moved on to other jobs. Those individuals would never be accountable for the harmful consequences of their actions.
 We therefore recommended at our March 14, 2017 meeting that the Government should make its entire internal deliberation and decision-making process on accessibility features in the Macdonald Block open to the public at every stage, and fully transparent. This should be done right away, as the process happens, and not long after the fact, when it would be too late to make a difference. This is consistent with Premier Wynne's public commitment to make Ontario the most open and transparent government in Canada.

 The Government should make public at each design stage what it is considering doing on accessibility, what proposals or options are under consideration and what advice it has received on accessibility. If anyone, whether a public official or private contractor, recommends or decides that an accessibility feature be excluded, that should promptly be made public, along with their identity and their reasons. Now, such deliberations go on without any public accountability, behind closed doors. The result, too often, is bad decisions.

This approach could have avoided the serious errors in the design of two huge new court facilities, opened years after the AODA was passed, in Durham Region and in Waterloo. Ontario's Ministry of the Attorney General made the wrong-headed decision to make a large majority of the judge's benches in those buildings wheelchair-inaccessible. Had such a proposal been made public when it was being considered, it undoubtedly would have been shot down via public input. The cost of fixing such design mistakes is greater once the mistakes have been made.

6. The Government Should Prepare Public Mock-Ups of Proposed Accessibility Designs for Public Input

It is good that the Government is reaching out to get input from some within the disability community, as its design for the Macdonald Block is prepared. However, it is important to ensure that the input obtained is meaningful and well-informed, and is acted upon.

Regrettably, in instances like the Presto Smart Card's development, the Ontario Government reached out and consulted, and made positive accessibility commitments, but then rejected key advice. The Government then designed Presto Smart Card technology with serious accessibility barriers. The transparency we urge could reduce or eliminate that risk. However, we have recommended additional action to make your input-gathering as effective as possible.

It would be helpful for the Government to create a life-size mock-up of key parts of the new facility, such as the foyer and reception area. Given the major cost of this project, this is worth the investment. People with disabilities can visit it and then give feedback on it. Drawings or small models cannot replicate the experience of trying to navigate a space. Moreover, for people with vision loss, whose needs are far too often disregarded by design professionals, drawings and small models don't enable our fully-informed feedback.

We appreciated your giving us an extremely general, high level summary in preparation for our meeting. However, it did not give us the detail we need to give concrete feedback. The devil is always in the design details.

As we discussed, you have an additional excellent opportunity to get it right. Soon, the Government will relocate many public servants who now work in the Macdonald Block. They will move to new temporary locations until the Macdonald Block project is finished. These temporary offices can and should be designed to be fully accessible. You can use these as some of the "mock-ups": which people with disabilities can visit to give you feedback on the permanent Macdonald Block design.

7. The Government Should Ensure Accessibility is Required at the very Earliest stage of the Design process, Not Just As a Later Interjection

Too often, design professionals map out and design a major construction project, without having accessibility expertise at the table from the start. Accessibility experts may be brought in later, to comment on the design. The design, well underway, must then undergo an accessibility retrofit. Push-back against such retrofits can occur. Undoing or re-doing the design adds costs, that would have been prevented, had accessibility expertise been front and centre from the beginning.

This must change. The Ontario Government should commit that accessibility will be incorporated, with accessibility design expertise at the table with a decisive role, from the very conceptual start and at every later stage.

8. The Government Should Crowd-Source Good Accessibility Ideas

At our meeting, you asked for examples of buildings using good accessibility design. We recommended that the Government reach out to the public broadly for this input. We would be happy to help publicize any Government request for input. You can get ideas on mistakes to avoid, by searching Twitter for tweets using the #AODAfail hashtag. People all over Ontario and elsewhere are taking part in the AODA Alliance's successful "Picture Our Barriers" campaign.

9. The Government Should Implement and Publicly Report on  A Strong Proactive Enforcement Process to Ensure that Those building the New Macdonald Block fulfil All Accessibility Requirements

It is not enough for the Government to set strong and effective built environment accessibility requirements for the Macdonald Block project. The Government must also ensure that those who build this building strictly adhere to those requirements, and don't cut accessibility corners.

At our meeting you confirmed that the Macdonald Block project will be an "Alternative Financing Project" (AFP). We understand that this means that it is privately financed. We are especially concerned that this can give rise to a real risk of such corner-cutting. When the Toronto Star contacted Centennial College to ask about accessibility problems at the new Culinary arts Centre, the Star reported that that project was built with private and not public money. The December 2, 2016 Toronto Star article included:

"The Centennial College building is owned and operated by the private sector, said Shannon Brooks, associate vice-president of corporate services for the college. There are no public funds invested in the construction of the building, she said.

"Are they saying that therefore they don't have to obey the law?" Lepofsky asked."

It is a cause for real concern that a major public institution like Centennial College, operating under the Ontario Government, might wrongly think that that makes a difference.

At our meeting, your team said there are measures in place to ensure that a privately-funded project meets Government requirements. We recommend that the Government commit to these important steps to ensure that there are no problems once this project is underway:

a)  Any RFP or other offers for companies to bid on the contract should prominently require that this project is expected to meet strong accessibility requirements in excess of what has been done in the past in the Ontario Government, and for which strict accountability requirements will be built into the contract.
 b) Any contract should include all the detailed accessibility requirements   to be imposed, and a periodic accessibility public reporting requirement during the project on compliance with them. Any such reporting should be immediately made public, for crowd-sourced monitoring.

c) Any contract should require the contractor to remediate any accessibility deficiencies, at its own expense. This should extend for several years after completion of the project. It should include guarantees to protect the Government against contractors that try to avoid having funds left over for such remediation.

d) The Government should publicly report semi-annually on its efforts to monitor and enforce accessibility requirements in the Macdonald Block project.

Conclusion

As this letter shows, it is not enough to approach a project with a commitment to ensure that the resulting building is accessible. There are glaring examples of new public buildings, built with Government involvement, where the project involved a desire to ensure accessibility, but where the results were far from accessible. See e.g. Centennial College's new Culinary Arts Centre referred to above, the brand new Women's' College Hospital, and the newly renovated Osgoode Hall Law School at York University.
 We would be pleased to take part in consultations on this project as it unfolds. We look forward to receiving the information we requested at our meeting, and again identified in this letter. We would welcome the Government making the commitments proposed in this letter, to help ensure that the Macdonald Block project is a success. If the Government follows our recommendations, the new Macdonald Block's development and design can become a model of accessibility.

Sincerely,

David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance 
cc: Premier Kathleen Wynne, premier@ontario.ca   
Tracy MacCharles, Minister for Accessibility, Minister of Government and Consumer Services tracy.maccharles@ontario.ca
Steve Orsini, Secretary to Cabinet steve.orsini@ontario.ca
Marie-Lison Fougère, Deputy Minister of Accessibility, marie-lison.fougere@ontario.ca
Ann Hoy, Assistant Deputy Minister for the Accessibility Directorate, ann.hoy@ontario.ca
Angela Coke, Deputy Minister of Government and Consumer Services angela.coke@ontario.ca
Tera Oswald, SVP, Office Real Estate, IO, Tera.Oswald@infrastructureontario.ca ;
Nick Munaretto, EVP, Portfolio Strategy & Transactions Services, IO, Nick.Munaretto@infrastructureontario.ca ;
Norm Tanaka, VP, Office Portfolio Strategy, IO, Norm.Tanaka@infrastructureontario.ca;
Jitka Christof, EA to ADM Hallett, Government Infrastructure Projects, Ministry of Infrastructure, Jitka.Christof@ontario.ca;
Susan Picarello, ADM, Division responsible for OPS Accessibility, and employment strategy for people with disabilities, susan.picarello@ontario.ca