Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Mayo Moran

BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE TO THE MAYO MORAN 2014 INDEPENDENT REVIEW OF THE IMPLEMENTATION AND ENFORCEMENT OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT

JUNE 30, 2014

CONTENTS

Part I. Introduction and Summary 8

1. Overview 8

2. Summary of this Brief 11

3. Who Are We? 17

4. The AODA - How It Works 17

5. What This Independent Review Should Ask 17

6. Ontario is Not on Schedule for Full Accessibility by 2025 18

7. Picking up Where the Beer AODA Independent Review Left Off 20

8. Summary of our December 11, 2009 Brief to the Beer AODA Independent

Review 24

9. Spoiler Alert -- Reflections on the Story that This Brief Reveals 27

Part II. The Government's Deliberate Failure to Keep Its Promise to Effectively Enforce

the AODA 38

1. Introduction 38

2. The Government's Promise of Effective Enforcement of the AODA 39

3. Our Long, Arduous and Frustrating Efforts to get the AODA Effectively

Enforced 42

4. The Government's Ten-Month Cover-Up of Its Failure to Effectively Enforce

the AODA 46

5. The Truth Revealed - the Government Knew for Months of Massive Non-

Compliance with the AODA, but Refused to Effectively Enforce the Law,

Despite Having Funds to Do So, Ample Enforcement Powers, and a Detailed Enforcement Plan on Hand 56

a) The News Becomes Public 56

b) The Immediate Aftermath 62

c) Exploring the Government's Initial Excuses 64

d) The Fallout Continued for the Next Six Months 73

6. Bill 107's Privatization of Human Rights Enforcement in 2006 Made

Effective AODA Enforcement Even More Pressing 75

a) Overview 75

b) Our Concerns in 2006 with Bill 107's Proposed Privatization of

Human Rights Enforcement 76

c) Four Years of Experience under Bill 107 from 2008 to 2012

Demonstrated that Our Concerns with It Were Well-Founded 81

7. Commitments in the 2014 Ontario Election Campaign on AODA

Enforcement 92

8. Reflections 96

a) The Failure to Effectively Enforce the AODA Sends a Very Bad

Signal to Obligated Organizations 96

b) The Government's Few Enforcement Efforts are Too Narrowly

Focused 101

c) The Government Has No Good Reason for Failing to Effectively

Enforce the AODA 102

d) The Government's Failure to Effectively Enforce the AODA Dilutes

Effective Monetary Penalties 103

e) Final Thoughts 105

9. Recommendations on the AODA's Enforcement 107

Part III. Accessibility Standards Enacted to Date Inadequately Address Barriers in

Areas they Regulate 110

1. Introduction 110

2. The Customer Service Accessibility Standard 110

3. The Integrated Accessibility Standard Regulation IASR 121

a) Overview 121

b) All Known Recurring Barriers are Not Addressed 121

c) The IASR Mainly Addresses Preventing New Barriers,

Not Removing Existing Barriers 123

d) Too Often, IASR Accessibility Requirements Are Too Weak 125

e) IASR Exemptions from Accessibility Requirements Are Often

Too Broad 132

(i) Unjustified Blanket Exemptions for Small Private Sector

Organizations 132

(ii) Inappropriate Total Exemption for Entire Private Sector 135

(iii) Exemptions from Accessibility Requirements That Are

Unjustifiably Less Exacting than the Human Rights Code's

Undue Hardship Requirement 135

(iv) Exemptions Permitting Barrier-Creation Even After the IASR

Was Enacted in June 2011 141

(v) Other Sundry Problematic Exemptions from IASR

Accessibility Requirements 142

f) IASR Time Lines for Action on Accessibility Too Often Are

Too Long 143

4. 2013 Built Environment Amendments to the Ontario Building Code 147

5. Reflections 148

6. Recommendations on Deficiencies in Current AODA Accessibility

Standards 150

Part IV. The Government's Multi-Year Delay Deciding Which New Accessibility

Standards to Next Make and Delivering the Promised Built Environment Accessibility

Standard 151

1. Introduction 151

2. Our Exhausting Effort to Get the Government to Decide Which Accessibility Standards to Next Make -- Another Saga of Counterproductive Government

Delay and Inaction 152

3. Reflections on the Government's Delay in Deciding which Accessibility

Standards to Next Make 165

4. The Long, Sad and Unfinished Saga of the Promised Built Environment

Accessibility Standard 168

a) Overview 168

b) Hurry Up and Wait 168

c) Reflections on the Promised Built Environment Accessibility

Standard 178

5. Recommendations on Next Accessibility Standards to be Developed 181

Part V. Reforming the Standards Development Process Has Not Fully Fixed Earlier

Problems 182

1. Introduction 182

2. The Government's Failing to Comply with the Statutory Deadline for Making

an Accessibility Standard after One is Recommended 182

3. Transferring Responsibility for Developing New Accessibility Standards to

the Accessibility Standards Advisory Council 183

4. Other Sundry Issues 187

5. Recommendations on Improving the Process for Developing New

Accessibility Standards and Revising Existing Standards 188

Part VI. Public Education on Accessibility Remains Insufficient 190

1. Introduction 190

2. Public Education Targeted at Obligated Organizations 191

3. Public Education Targeted at School Children and Key Professions 201

4. Public Education Aimed at the General Public 210

5. Government Action that Undermines Effective Public Education on

Disability Accessibility 210

6. Reflections 212

7. Recommendations on Public Education on the AODA 213

Part VII. The Government's Failure to Effectively Ensure that Public Money Is Never

Used to Create, Perpetuate or Exacerbate Disability Barriers 215

1. Introduction 215

2. The Idea - No Barriers Funded with the Public's Money 215

3. Yet Another Long Story of Our Repeated Efforts 217

a) The Early Years - 1998 to 2005 217

b) 2009 - We Ramp Up Our Advocacy Efforts 219

c) Actual Progress in June 2011 224

d) Stretches of Inaction and a More Recent Glimmer of Progress -

2011 to the Present 228

4. Barrier-Creation Using Public Money Continues 231

a) Overview 231

b) Barriers in the Ontario Government's New "Presto" Smart Card 231

c) Barriers in New Courthouses 240

d) The Need for the Government to Plan Well in Advance for a

Lasting Accessibility Legacy for The 2015 Toronto Pan/ParaPan

American Games 241

5. Trying to Make Progress During the 2014 Election 243

6. Recommendations on Ensuring Public Money Is Not Used to Create,

Perpetuate or Exacerbate Barriers 246

Part VIII. Meeting the Unmet Need to Ensure that All Ontario Laws Do Not Authorize

or Require Disability Barriers 249

1. Introduction 249

2. The Promise Made to Us 249

3. Progress Far Too Slow 250

4. Reflections 259

5. Recommendations on the Government's Review of Ontario Statutes

and Regulations for Accessibility Barriers 260

Part IX. Our 15-Year Campaign to Make Municipal and Provincial Elections in Ontario

Fully Accessible to Voters and Candidates with Disabilities 262

1. Introduction 262

2. Progress on Elections Accessibility Since 2005 264

a) Overview 264

b) Bill 212 and the Accessibility of Municipal Elections 265

c) Bill 231 - An Unsuccessful Solution to Barriers in Ontario Elections 269

(i) The Lead-up to Bill 231 -The Select Committee of the

Legislature on Elections 269

(ii) The Weak and Ineffective Bill 231 is Introduced

In the Legislature 269

(iii) Our 2010 Submissions to the Legislature's Standing

Committee on How to Improve Bill 231 270

(iv) Clause-by-Clause Debate and Accessibility Amendments to

Bill 231 280

(v) Bill 231 in Operation Since May 2010 - Elections

Accessibility Barriers Remain 290

3. The Parties' 2014 Platforms on Elections Accessibility in the 2014 Ontario

Election 299

4. Reflections 300

5. Recommendations on Ensuring Municipal and Provincial Elections are

Barrier-free for People with Disabilities 301

Part X. Ontario Government - Leading by Example, But by What Example is it Leading? 303

1. Introduction 303

2. Failure to Put in Place An Effective Front-line Internal System within the

Government for Embedding Accessibility Across the Ontario Public Service 305

3. Examples of the Ontario Government Violating or Attempting to Violate

Its Own Disability Accessibility Laws 310

a) Overview 310

b) Failure to Appoint this Independent Review by the Mandatory

Deadline 311

c) Illegally Abolishing the Government's Statutory Employment

Accommodation Fund 314

d) Attempting to Amend the IASR without Following Mandatory

AODA Provisions on Revising an Existing Accessibility Standard 316

e) Violating the Statutory Deadline for Making an Accessibility Standard

after One is Recommended 325

4. Recent Government Initiatives to Improve its Implementation of the AODA

Have Not Made a Significant Difference 326

a) Overview - Impact of Moving the Lead Responsibility for the

AODA's Implementation and Enforcement to the Ministry of

Economic Development, Trade and Employment 326

b) Incorporating Accessibility into the Economic Development, Trade

and Employment Ministry's Programs 328

c) New Initiatives for Increasing Private Sector Employment of People

with Disabilities 331

d) Encouraging Ontario Businesses to Produce Goods and Services that

are Disability-Accessible 336

e) Assigning Responsibility for Developing New Accessibility Standards

to the Accessibility Standards Advisory Council 337

5. Failing to Consistently Provide a Simple, Cost-Free Accommodation -

the Case Study of Government Documents in PDF Format 337

6. Reflections 341

7. Recommendations on the Ontario Government Leading By Example on

Accessibility 343

Part XI. Concluding Reflections and Recommendations 346

1. Ontario Needs a Plan to Get to Full Accessibility by 2025 346

2. The Government Should Not Use the Government's "Open For Business"

Strategy to Water Down Efforts on Disability Accessibility 346

3. Sundry Recommendations 347

APPENDIX 1. RECOMMENDATIONS 348

APPENDIX 2. LIST OF RECOMMENDATIONS SUBMITTED TO THE

CHARLES BEER AODA INDEPENDENT REVIEW IN OUR

DECEMBER 11, 2009 BRIEF 360

JUNE 30, 2014

Part I. Introduction and Summary

1. Overview

The Accessibility for Ontarians with Disabilities Act Alliance submits this brief to the second Independent Review of the Accessibility for Ontarians with Disabilities Act (AODA). This Independent Review is being conducted by University of Toronto Dean Mayo Moran pursuant to s. 41 of the AODA.

We begin with the story of six preventable barriers against persons with disabilities in Ontario. The first three were described in the following words, which first appeared in our April 4, 2014 brief to the Ontario Government on needed revisions to its 2007 Customer Service Accessibility Standard:

"According to an article in the April 20, 2013 on-line edition of the Toronto Star, Spring Rolls, a Toronto restaurant, part of a chain, restricted a customer from bringing his Hearing Ear dog with him wherever he wished to sit into the restaurant. This occurred fully eight years after the Accessibility for Ontarians with Disabilities Act (AODA) was enacted. That law requires the Ontario Government to lead Ontario to becoming fully accessible to persons with disabilities by 2025. It was also a full six years after the Government enacted the Customer Service Accessibility Standard under the AODA, to ensure fully accessible customer service in Ontario. Media reports on this incident made it appear manifestly doubtful that this restaurant had an effective accessible customer service policy, and had sufficient accessible customer service training for its staff, as the Customer Service Accessibility Standard required.

Days later, according to an article in the May 3, 2013 on-line edition of the Windsor Star, a store in Windsor restricted access to a patron using a motorized wheelchair. This was reportedly not an issue of stairs blocking physical access. Rather, according to the article, the store’s staff did not want people in motorized wheelchairs to even be in the store at all, out of fear that they could damage products for sale.

Just a short month after that, one day in June, the AODA Alliance chair, David Lepofsky went to a major downtown Toronto Service Ontario office, to get a new health card.

David Lepofsky had his white cane with him, in plain view. He lined up. A Service Ontario representative handed him a number, written on a piece of paper, and told him to watch the monitors for his number, and hence his turn.

No one at Service Ontario was audibly announcing the numbers as they came up on the monitors. This would be an easy and obvious accessibility accommodation. It would cost nothing. Fortunately, he was accompanied by a sighted friend. However, it should have been obvious that this was a clear customer service barrier to a blind person.

On further investigation, this was not just a fluke, or a one-off, exceptional incident. Rather, it is a deliberate and regular practice or policy of Service Ontario.

Service Ontario is part of the Ontario Government. It daily deals directly with delivering services to large numbers of people from the general public. It is part of the very Ontario Government ministry, the Ministry of Government Services, that is supposed to lead the Ontario Government's efforts to get its own accessibility house in order by delivering accessible customer service to the public.

Under the 2007 Customer Service Accessibility Standard, the Government was the first organization to be required to implement that standard. The Government has proudly announced that it has fully implemented that standard, established policies on accessible customer service and trained all its employees on accessible customer service. It has also proudly proclaimed that it aims to go beyond the requirements of the AODA and its accessibility standards, to be a role model when it comes to providing accessibility.

What makes this third incident especially shocking is that among the many people who use Service Ontario are Ontario Government employees at all levels, from front line staff to deputy ministers. All those public officials are said to have received effective training on accessible customer service. Yet it seems that no one either noticed this obvious barrier, or acted effectively to correct it, even fully six years after the Government enacted the Customer Service Accessibility Standard."

In the June 12, 2014 Ontario general election, carried out four years after the Legislature amended Ontario's Elections Act to ensure the accessibility of Ontario elections for voters with disabilities, accounts surfaced of a Toronto All Candidates Debate planned to be held in an inaccessible school. It was moved to an accessible location in the school's outdoor parking lot only after we turned up the heat, and called the media. Days later, a Cambridge, Ontario All Candidates Debate was in fact held in an inaccessible location, preventing voters with disabilities from attending.