Accessibility for Ontarians with Disabilities Act Alliance

What Ontarians with Disabilities Learned a bout the Implementation and Enforcement of the Accessibility for Ontarians with Disabilities Act from Ontario Government Documents Released on November 25, 2015 u nder a Freedom of Information A pplication

December 3, 2015

1. Introduction

Premier Kathleen Wynne has promised to lead the most open and transparent government in Canada. Her Government has also promised that the Accessibility for Ontarians with Disabilities Act (AODA) would be effectively enforced. It requires the Government to lead Ontario to become fully accessible to people with disabilities by 2025.

On June 4, 2015, AODA Alliance Chair David Lepofsky had once again to resort to a Freedom of Information application, addressed to Ontario’s Ministry of Economic Development, Employment and Infrastructure. He sought current information on the Wynne Government’s implementation and enforcement of the AODA.

On August 31, 2015, the Government wrote David Lepofsky, telling him he must pay $4,250 to get answers to his Freedom of Information application. That same day, the AODA Alliance chair repeated his request that the Government waive this fee. It had waived such fees for him twice before when making comparable requests. He also again asked the Government, without any fee, to answer the parts of his Freedom of Information application that the Government can quickly answer.

The Government decided to give the AODA Alliance chair, at no charge, the answers to part of his requests. These were sent to him on November 25, 2015. The Government has still not decided on his request that the Government waive the $4,250 fee for answering the rest of his request.

This is the AODA Alliances analysis of the documents that the Government has just disclosed. In summary:

a) Rampant private sector AODA violations persist, known to the Wynne Government, almost three years after the AODA Alliance revealed this troubling trend.

b) The Wynne Government cut back on already-weak AODA enforcement in 2015 despite these known rampant AODA violations. It maintained those cuts throughout 2015 despite public and media outcry against these cuts.

c) Even in 2015, the Wynne Government continues to only have scant staffing for AODA enforcement. To enforce the AODA across Ontario, the Government has only appointed three directors and one inspector.

d) 2015 AODA enforcement cuts were not due to budget limitations. Government had 1.3 million dollars unspent in its AODA 2014-15 budget. Over the past decade, the Government has left unspent a total of 27.5 million dollars, budgeted for the AODA’s implementation and enforcement, since 2005, the year when the AODA was enacted.

e) The Wynne Government’s 2015 cutbacks to AODA enforcement remain unexplained.

f) The Government says it has no record of how much it spends each year on AODA enforcement.

g) Private sector organizations with under 20 employees are getting a virtual free pass from AODA enforcement. Of the hundreds of thousands of those organizations, only 9 were audited for AODA compliance in 2014 and the first half of 2015.

h) The Wynne Government’s failure to date to disclose a further breakdown of key detailed information on AODA enforcement, which AODA Alliance Chair David Lepofsky requested, flies in the face of recommendations of the 2014 Mayo Moran AODA Independent Review.

i) New disclosures from the Government reveal that last year, Premier Wynne sent misleading information to the AODA Alliance on Government staffing to work on embedding accessibility in Economic Development Ministry programs.

j) The Wynne Government is keenly aware of public concerns over AODA implementation and enforcement shortcomings. It planned a series of evasive answers for the media to deflect from these.

At the end of this 17-page analysis are links to key background information. After that are the actual documents that the Government disclosed. After that is the Government’s November 25, 2015 letter to AODA Alliance Chair David Lepofsky. That letter disclosed these records and said the Government has still not decided on the request

2. Rampant Private Sector AODA Violations Persist in 2015 , Known to the Wynne Government

Under the AODA, private sector organizations with at least 20 employees must e-file with the Government an AODA Accessibility Report at the end of 2012 and once again at the end of 2014. New documents that the AODA Alliance obtained under a Freedom of Information application show that the Government knows that as of June 30, 2015 the total number of AODA violators among private sector organizations with at least 20 employees for the 2012 version of the AODA accessibility report totalled 33,285 or 65%. The Government also knows that as of June 30, 2015, the total number of non-filers for the 2014 version of the AODA Accessibility Report among private sector organizations with at least 20 employees was 31,017 or 58%.

The Government’s response to this Freedom of Information application boasts that the reporting rate for private and non-profit sectors more than doubled by the 2014 deadline, compared to the 2012 reporting deadline. Yet these reporting rates have not significantly improved since Economic Development Minister Duguid reported to us in his February 19, 2015 letter. As of February 19, 2015, he described private sector compliance rates for filing the mandatory AODA Accessibility Report as follows:

“65 per cent of the organizations that were required to file a 2012 Accessibility Report have not filed. As of February 2015, 60 per cent of organizations required to file a 2014 Accessibility Report have yet to file.”

In reality, there has been no improvement in the 2012 filings and only a 2% improvement in the 2014 filings since February 2015. What the Government offered as “doubling” filing rates is, in reality, government spin. Even assuming this claim to be true, doubling a tiny rate of compliance still results in a very small number of organizations that comply. It is nothing to brag about.

Two years ago, from an earlier Freedom of Information application, we made public on November 18, 2013 that fully 70% of private sector organizations with at least 20 employees were in violation of the AODA. Over a year later, in February of this year, we made public the fact that as of then, the Government knew that there remain rampant violations of that legislation among over 60% of private sector organizations with at least 20 employees. The February 25, 2015 AODA Alliance Update reported as follows:

“According to Minister Duguid’s newest letter, 33,097 of the 53,181 private sector organizations in Ontario with at least 20 employees have violated the AODA, by failing to file a mandatory accessibility self-report with the Government by the end of 2014. Fully 28,357 failed to file that mandatory accessibility self-report in 2012 and 2014. That makes them repeat offenders.”

Private sector organizations will only significantly increase their AODA compliance when they see up-close that the Government will effectively enforce this law against those who do not comply. In late 2013 and 2014, the Government zeroed in on just over 3,000 such organizations. This was a result of our advocacy and media criticism of the Government’s inaction. According to the Government’s earlier statements, this enforcement effort led to those targeted organizations substantially increasing their AODA compliance.

3. The Wynne Government Persisted in its Cutbacks on Already-Weak AODA Enforcement in 2015 D espite Known and Persistent Rampant AODA Violations

We unearthed from the newest Freedom of Information disclosures that throughout 2015, the Government evidently took no steps to increase the number of AODA audits or other enforcement/compliance efforts in 2015. In February 2015, we made public the fact that the Government had without explanation decided to cut by over one third the number of obligated organizations it would audit for AODA compliance this year. In 2013, the Government audited 1,906 private sector organizations. In 2014, it audited 1,954 organizations in the private sector. In 2015, the Government cut that number to just 1,200 in 2015. The 2015 number appears to include not only the number of obligated organizations the Government will audit, but any organizations at which the Government will direct any compliance efforts whatsoever (including efforts that fall far short of an AODA audit).

In February 2015, after we discovered this AODA enforcement 2015 cutback, the Government was blasted for this in the media and the Ontario Legislature.

Consequently, on June 3, 2015, to mark the AODA’s 10th anniversary, the Government changed its position. It announced that it would double the number of organizations to be audited, to rise to 4,000 per year. The increase is to start next year. This was no doubt due to the criticism that the Government’s enforcement cuts triggered.

From this most recent Freedom of Information disclosure, the Government appears to have stuck to its downsized enforcement plans for this year. It did so despite major criticisms of that cutback. News headlines and tweets on social media that announced a government crack-down on AODA violators turn out to only speak to future years, not this year.

In his February 26, 2015 interview on CBC Radio Toronto’s flagship Metro Morning program, Economic Development Minister Duguid said that there were 400,000 businesses in Ontario. If so, then the Government taking enforcement efforts only for 1,200 in 2015 is miniscule if not microscopic.

4. The Wynne Government Continues to Only Have Scant Staffing for AODA Enforcement

The Government’s response to the Freedom of Information application also shows how paltry is its staffing for AODA enforcement. The AODA mandates the Government to appoint directors under section 30. Section 17 of the AODA gives directors specific enforcement powers, such as the power to assess an organization’s AODA Accessibility Report to decide if it complies with the AODA. A director can direct that an obligated organization produce further reports and information on the organization’s AODA compliance. Under section 21 of the AODA, a director can impose compliance orders and monetary penalties on the obligated organization. A director can delegate these powers to others.

Section 18 of the AODA mandates the Government’s appointment of AODA inspectors. Inspectors can inspect an obligated organization for its AODA compliance. An inspector can enter an obligated organization, question employees, and obtain documents on AODA compliance.

Even though AODA obligations gradually became enforceable starting a half a decade ago, the Government has never appointed more than a tiny number of directors and inspectors. In November 2013, we revealed via an earlier 2013 Freedom of Information application that the Government only then had two directors and one inspector for the entire province. As a result of this most recent 2015 Freedom of Information application, the Government revealed no significant increases in the numbers of directors or inspectors.

Despite the Government’s promises of effective AODA enforcement, the adverse media publicity of its faltering AODA enforcement, and its subsequent commitments to crack down on AODA violators, there are now only three AODA directors and one inspector appointed for the entire province. Moreover, the recent 2015 Freedom of Information application revealed that the Government does not plan to appoint any more directors or inspectors in the next six months.

The Government’s answer states:

“The number of directors and inspectors appointed under the AODA provides the government with the resources currently required to meet its compliance and enforcement objectives.”

The Government’s enforcement objectives must be exceedingly lethargic and unambitious if all of Ontario, including 400,000 obligated organizations, needs only one AODA inspector.

Documents that the recent Freedom of Information application unearthed show that the Government knew at senior levels how few officials were appointed to enforce the AODA. This is clear from memos from the Accessibility Directorate of Ontario to the Economic Development Deputy Minister, dated July 28, 2014 (reporting 3 directors and 1 inspector), January 28, 2015 (reporting 4 directors and 2 inspectors), March 9, 2015 (reporting 3 directors and 1 inspector), and June 15, 2015 (reporting 3 directors and 2 inspectors).

These records also show that among the tiny number of people assigned with these roles, there is too much staff turnover. This is inconsistent with ensuring institutional memory and increasing expertise.

5. 2015 AODA Enforcement Cuts Were Not Due to Budget Issues – Government Had 1.3 Million Dollars Unspent in its AODA 2014-15 Budget

This Freedom of Information application revealed that in the fiscal year 2014-15, the Government had fully 1.3 million dollars in its budget for the Accessibility Directorate of Ontario that went unspent. This is money that easily could have been used to audit or inspect more obligated organizations for AODA compliance. For the fiscal year 2014-15, the Accessibility Directorate had a budget of $ 15,071,800 and actual spending of $13,758,104.

Therefore, the Government’s dramatic cuts to AODA enforcement in 2015 were NOT due to any cuts or shortfalls in the Accessibility Directorate’s budget. The Government cannot cry poor to justify its huge AODA enforcement reduction.

This Freedom of Information application strongly shows that the Government could have but did not accelerate its AODA enforcement in the 2015 winter/spring, after the Government was publicly blasted in the media, the public and the Legislature for its plans to cut 2015 AODA audits by over one third. As a fiscal year end approaches, a government office normally can and often does move to use unspent budget to help accelerate efforts on its important mandate, before year’s end. Here, it seems obvious that that did not happen at the Accessibility Directorate. This is so despite the fact that the Government announced amidst great media fanfare on June 3, 2015 (to mark the AODA’s 10th anniversary) that it would crack down on AODA violators.

With ample earlier public and media criticism of ineffective AODA enforcement in and after November 2013, the public would expect that the Government would have made more effective use of the money it annually budgeted for AODA implementation and enforcement. On November 18, 2013, based on information we obtained from the earlier 2013 Freedom of Information application, we made public the fact that the Accessibility Directorate of Ontario had failed to deploy its full budget in every year since the AODA was enacted in 2005. Fully 24 million dollars went unspent from that budget between 2005, the year the AODA was enacted, and 2013. The November 18, 2013 AODA Alliance Update reported:

“Government records reveal that that office has operated well under budget each year since 2005, the year the Disabilities Act was enacted. Between 2005 and the present, fully $24,264,833.00 has been unspent that was allocated to it.”