AODA Alliance Chair Asks Ottawa’s Integrity Commissioner to Reconsider Her Refusal to Investigate His Complaint that Ottawa’s Transportation Committee Failed to Provide Proper Disability Accommodation When Considering Whether to Support a 3rd Pilot Project With E-Scooters that Endanger People with Disabilities

Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org

Email: aodafeedback@gmail.com

Twitter: @aodaalliance

Facebook: www.facebook.com/aodaalliance/

AODA Alliance Chair Asks Ottawa’s Integrity Commissioner to Reconsider Her Refusal to Investigate His Complaint that Ottawa’s Transportation Committee Failed to Provide Proper Disability Accommodation When Considering Whether to Support a 3rd Pilot Project With E-Scooters that Endanger People with Disabilities

July 7, 2022

SUMMARY

On March 20, 2022, AODA Alliance Chair David Lepofsky filed a complaint with Ottawa’s Integrity Commissioner against the members of Ottawa City Council’s Transportation Committee. On June 23, 2022, Ottawa’s Integrity Commissioner rejected this complaint without even investigating it. Her reasons are set out below.

Undeterred, the AODA Alliance Chair has written to the Ottawa Integrity Commissioner, asking her to reconsider her decision and to investigate his complaint before reaching any conclusions on it. That letter is also set out below.

What is this all about? Members of Ottawa’s Transportation Committee contravened their duty to accommodate blind disability rights advocate David Lepofsky at its March 2, 2022 meeting, according to the complaint Lepofsky filed with Ottawa’s Integrity Commissioner. Lepofsky made a deputation to the Transportation Committee, urging Ottawa not to use vulnerable people with disabilities, seniors, and others as unwilling guinea pigs in a third pilot project with e-scooters in public places that endanger their safety and accessibility. In his affidavit submitted to the Integrity Commissioner, Lepofsky summarized:

“13. When it came time for me to speak, I faced disability discrimination in two ways.

a) Unlike sighted members of the Committee and deputants, I and other blind deputants only received electronic copies of the City’s staff report and supporting documents in an accessible format late in the day before this Transportation Committee meeting. That was far too late to be able to read them, much less to prepare a full response to them. For this reason, I asked the Committee to defer the e-scooter agenda item to a future meeting, so that we could read the documents to which we had to respond. The Chair and the Committee members did not grant this request or even discuss or deliberate upon it. As such, I—unlike the e- scooter corporate lobbyists—was at a hopeless and unfair disadvantage in speaking to the issues before the Transportation Committee.
b) The Committee used the “Zoom webinars” platform for its meeting. I was able to log on to hear the proceedings but was unable to perceive a link or button to click to enable me to speak to the Committee. I only learned of this right before I was to make my deputation. The Committee Clerk instead had me make my deputation over my phone, speaking to his phone. He held his phone up to his computer microphone in an effort to let the Committee members hear what I was saying to them. This is a far less effective way to present a deputation. Unknown to me until my deputation finished, my audio was cutting in and out. Committee members could not hear parts of my deputation. When I finished, a member of the Committee stated that he had not been able to hear much of my deputation. I asked the Committee and its Chair to let me make my deputation through an accessible medium so that they could hear it all. I identified this as an issue of disability accessibility. This request was not granted or even brought to a vote of the Committee.
As a result, I and the AODA Alliance which I serve were denied a fair chance to be effectively heard on an important issue of public policy that relates to health, safety and accessibility of people with disabilities and others. Contrary to requests of deputants with disabilities, the Committee voted that afternoon in favour of a third e-scooter pilot, with variations that do not reduce our disability concerns.”

Lepofsky’s complaint asked the Integrity Commissioner to find that the Chair and members of the Ottawa Transportation Committee at the meeting during his deputation contravened section 7 of Ottawa’s Code of Conduct. It forbids discrimination, which includes this disability discrimination. It would have been easy for the Transportation Committee to accommodate the AODA Alliance Chair’s disability-related needs, had it taken a moment to take this seriously, rather than barrelling ahead to vote against people with disabilities and in favour of e-scooters.

AODA Alliance Chair David Lepofsky’s July 7, 2022, letter points out serious errors in the Integrity Commissioner’s reasons, and asks her to reconsider her refusal to investigate his case.

Earlier this year, Ottawa’s Accessibility Advisory Committee recommended that Ottawa not again allow e-scooters because they endanger people with disabilities. E-scooters, improperly racing at 20 KPH on sidewalks by uninsured, unlicensed, and untrained joy-riders, are a silent menace to people with disabilities and others. E-scooters left strewn on sidewalks are a dangerous tripping hazard for blind people and an accessibility barrier for people using a wheelchair. An Ottawa City Staff Report shows that e-scooters posed these dangers in 2020-21 but proposes inadequate measures that won’t eliminate them. Despite all of this, Ottawa is now again exposing its residents and visitors to the dangers to safety and accessibility that e-scooters have been proven to create.

For more background on the dangers that e-scooters pose for people with disabilities, seniors and others, visit the AODA Alliance website’s e-scooter page.

MORE DETAILS

Text of the July 7, 2022 Letter from AODA Alliance Chair David Lepofsky to the Ottawa Integrity Commissioner

To: Ottawa Integrity Commissioner

Via email: integrity@ottawa.ca

From: David Lepofsky

Date: July 7, 2022

Re: Integrity Complaint against the Ottawa Transportation Committee and Its Chair

On March 20, 2022, I submitted to you a complaint against members of the Ottawa Transportation Committee. On June 23, 2022, you wrote me to advise that you have decided not to investigate this complaint, and to give me your reasons.

I hereby request that you reconsider your June 23, 2022 dismissal of my March 20, 2022 complaint against the Ottawa City Council members who serve on Ottawa’s Transportation Committee. This letter explains why. The relief I request is that you:

a) Re-consider your dismissal of my complaint.
b) Investigate my complaint on the merits, and
c) Find that the complaint has merit.

A core reason for your rejecting my complaint was your statement that you only have limited “authority” i.e., jurisdiction to consider complaints regarding the conduct and management of City Council or of its committees. Your June 23, 2022 letter includes the following:

“…I believe my authority to intervene in matters related to the management of Council and Committee meetings is limited. I have determined there are insufficient grounds to make an exception in this case.”

“In the years since municipal codes of conduct were first established, a growing body of rulings from some of my colleagues, both past and present, have taken the position that integrity commissioners should not interfere with the conduct and management of any particular meeting of Council or its Committees.

This position is strongly rooted in recognition of City Council’s statutory responsibility to establish the rules of procedure that will govern its meetings and the Chair’s duty to enforce decorum and orderly conduct during meetings. The presiding officer should have a certain degree of autonomy to ensure that a meeting is conducted in keeping with the Council’s rules of procedure.

I accept this position and am of the opinion that generally, allegations arising out of a Council or Committee meeting are not within my authority to investigate. My recent 2022 Mid-year Report to Council (p. 5 – 6) sets out this position.

This does not mean that all concerns related to the conduct of Members during meetings are beyond my authority as Integrity Commissioner, only that my authority to intervene in matters related to the management of Council and Committee meetings is limited.”

I respectfully submit that these reasons are inherently erroneous. You either have jurisdiction to review a City Council member’s conduct during a meeting of City Council or one of its committees, or you do not. In this regard, jurisdiction is an all or nothing phenomenon. It is like pregnancy. A person is either pregnant, or they are not.

Were your reasons correct, a City Council member could with impunity unleash a loud, ugly barrage of racist invective at a member of the public during a deputation before a City Council committee meeting, utterly free from any scrutiny by Ottawa’s Integrity Commissioner. That would be wrong.

Your letter relies on the view of other unnamed Integrity Commissioners. If, as I here submit, you do have jurisdiction to investigate my complaint, then that jurisdiction is not stripped from you by unnamed decisions of other unnamed Integrity Commissioners, in unspecified fact situations.

My complaint relies on the core obligations of the Ottawa City Council and of its committees and their members, owed to people with disabilities like me, under the Ontario Human Rights Code and the Canadian Charter of Rights and Freedoms. This includes the duty to accommodate deputants with disabilities like me, when seeking to make a deputation to a committee of City Council on a topic on which the elected members are about to vote.

Your June 23, 2022 decision is fatally flawed by concluding that my allegations do not fit within your jurisdiction, and hence should not even be investigated. I respectfully submit that the subject matter of my complaint, disability discrimination by members of a committee of City Council, clearly and squarely falls within your jurisdiction.

Exacerbating this error, your June 23, 2022 letter proceeds on the basis that you would need to make some sort of “exception” in order to investigate my complaint. If, as I submit, failures to accommodate a deputant’s disability fall clearly within your authority, then it is patently wrong for your decision to be based on any starting point that to investigate it would require you to make an exception. The duty to accommodate people with disabilities like me is the rule, not an exception.

It might be argued that you should show some deference to City Council members when reviewing their conduct at a meeting of City Council or one of its committees. Even if it were assumed that that was so, that does not go to the question whether you have jurisdiction to inquire into the subject matter of my complaint. That only bears on the level of substantive scrutiny that you should employ once you have accepted that you have jurisdiction to review a City Council member’s conduct during a meeting of City Council or of one of its committees. Moreover, when it comes to complying with the duty to accommodate people with disabilities like me in circumstances like this, there is no room for and no place for any such deference.

It was further legally erroneous for you to base your conclusion about your jurisdiction to any degree on a “…recognition of City Council’s statutory responsibility to establish the rules of procedure that will govern its meetings and the Chair’s duty to enforce decorum and orderly conduct during meetings. The presiding officer should have a certain degree of autonomy to ensure that a meeting is conducted in keeping with the Council’s rules of procedure.”

The statutory authority to which you refer, and the flexibility a committee chair has to implement City Council’s procedural rules, does not override, displace or diminish the duty not to discriminate against deputants with disabilities like me, nor does it reduce or eliminate their duty to accommodate me, as part of the ban on discrimination (which your office exists to investigate, among other topics). No member of City Council can discriminate against any people with disabilities when exercising that statutory authority, or otherwise.

The errors I have already listed are ample to warrant you reconsidering your decision, and agreeing to investigate my complaint. However, your June 23, 2022 decision includes further fatal errors that also warrant your reconsidering it.

In the balance of your decision, you have reviewed the substance of my complaint, and have rejected it on the merits. You in substance have decided not to investigate it because you see no merit in it, on its face. Your June 23, 2022 letter states:

“After careful review of the YouTube video of the Transportation Committee proceedings of March 2, 2022, including your delegation and the Chair’s response, I do not believe there are sufficient grounds to justify exercising my authority to investigate the allegations you have set out.”

This too, with respect, was erroneous. Your June 23, 2022 letter concedes that I made my accommodation request, and that the Transportation Committee chair did not take any of the accommodating actions that I requested. Strong authority from the Supreme Court of Canada holds that in this situation, the respondents to my complaint have the burden to prove that it would have been impossible for them to effectively accommodate my disability-related needs without undue hardship, and that they did everything they could short of incurring undue hardship. (See British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) [1999] 3 S.C.R. 3).

You then in substance conclude that the Committee chair did enough, ruling as follows:

“I note, however, that following your delegation, the Chair took specific actions in response to the concerns you raised. As your submission notes, the Chair:

Asked City staff what virtual meetings platform they had used in the past, and staff offered a reply;
Commented that he had confirmed with the Clerk that the platform had been used before and indicated that he and/or other Committee Members would follow-up with staff with respect to compliance and standardization; and
Asked staff to confirm that Committee Members had access to your presentation, to which staff replied that Members had been provided with your written submission, and that it remained available for Members to access from a shared drive.

Based on the information available to me, it is my belief that the Chair’s actions indicate that he acknowledged the concerns you raised, and took steps to confirm relevant information with staff. I have considered the Chair’s duties to enforce the Rules of Procedure and inform Members of the Committee of the procedure to be followed. Based on my review, I do not believe that there are sufficient grounds to justify exercising my authority to investigate the allegations you have set out.”

Before rejecting my complaint for these reasons, you did not contact me to get my feedback on any of this. Had you done so, I would have provided the following responses. These are fatal to any and all of them as justifications for failing to accommodate my disability:

The chair’s asking City staff what meeting platforms they have used in the past and getting their reply did not disprove that I did not get a chance to be fully and clearly heard. The audio on the Youtube recording proves that barrier beyond doubt.

The Committee chair’s confirming that the meeting platform had been used in the past as well provided no proof that this platform presented no barriers at this meeting. It provided no accommodation for my disability.

The Committee chair’s statement that he would follow up with City staff “with respect to compliance and standardization” did not accommodate my needs at that meeting. It provided no assurance that a similar barrier would be prevented in the future.

The Committee chair’s confirming with City staff that Committee members had access to my written submission did not accommodate my needs in this meeting’s circumstances. The Committee members were entirely absorbed in hearing deputations, debating the issue, and voting. They had no time to read my 10 page brief before voting. The purpose of deputations is to attempt to persuade the Committee members of the viewpoint we wanted them to take when voting. In this case, the Committee ended up voting against our position. Moreover, as one of the Committee members indicated during the exchange over my deputation, they did not even know I had filed a written submission. As such, they would not have read it in advance.

None of the reasons you stated demonstrate that it was impossible for any or all of the members of the Ottawa Transportation Committee to have done more to accommodate my undisputed disability-related needs, without incurring undue hardship.

In conclusion, I respectfully ask that you reconsider your decision, and that you investigate my complaint on the merits, before forming any adverse opinion about its merit. A refusal to even investigate my complaint would trivialize the duty to accommodate people with disabilities in the democratic process of Ottawa city government – a value that is fundamental in our society.

Respectfully submitted,

David Lepofsky CM, O. Ont, LL.B. (Osgoode Hall Law School), LL.M. (Harvard Law School), LL.D. (Honorary) (Queen’s University, Western University, the Law Society of Ontario, and Brock University

Visiting Professor, Osgoode Hall Law School

Chair, Accessibility for Ontarians with Disabilities Act Alliance

Twitter: @davidlepofsky

Text of the Ottawa Integrity Commissioner’s June 23, 2022 Refusal to Investigate the March 20, 2022 Complaint Filed by AODA Alliance Chair David Lepofsky

June 23, 2022

Dear Mr. Lepofsky,

Re: Request for Investigation – Conduct of Members of the City of Ottawa’s Transportation Committee

I have completed a comprehensive intake analysis of your Request for Investigation, submitted to my Office on March 20, 2022, into alleged contraventions of the Code of Conduct for Members of Council (the “Code of Conduct”) by Members of Transportation Committee.

My intake analysis was focused on determining if there are sufficient grounds to proceed with a formal investigation. The purpose of this communication is to provide you with the results of my review.

For the reasons set out in greater detail below, I believe my authority to intervene in matters related to the management of Council and Committee meetings is limited. I have determined there are insufficient grounds to make an exception in this case.

Request for Investigation – Summary of Key Issues

The formal complaint alleges that Members of the Transportation Committee who were present when you made your delegation on March 2, 2022, breached Section 7 of the Code of Conduct. Specifically, the complaint alleges that the breach occurred when Members did not grant your request to defer consideration of the item “2021 Electric Kick Scooter Strategy and Pilot Report”, and did not grant your request to make your delegation through an accessible medium.

Your submission includes the following statement describing how you believe the alleged actions constituted a breach of Section 7 of the Code of Conduct:

“My complaint is about the failure of the Committee chair and members of the Committee to fulfill their duty to accommodate my disability, up to the point of undue hardship, in order to ensure that I could fully and fairly take part in the Committee proceedings regarding the e-scooters issue. This constitutes discrimination based on disability contrary to section 7 of the Code of Conduct.”

Analysis

As part of my intake analysis, I carefully reviewed the information provided in your request for investigation as well as other publicly available information relevant to the issues raised, including the YouTube video recording of the March 2, 2022 Transportation Committee meeting.

Jurisdiction

In the years since municipal codes of conduct were first established, a growing body of rulings from some of my colleagues, both past and present, have taken the position that integrity commmissioners should not interfere with the conduct and management of any particular meeting of Council or its Committees.

Analysis of Allegations

After careful review of the YouTube video of the Transportation Committee proceedings of March 2, 2022, including your delegation and the Chair’s response, I do not believe there are sufficient grounds to justify exercising my authority to investigate the allegations you have set out.

I acknowledge that Members of the Transportation Committee did not grant your requests to defer consideration of the e-scooter item, or to make your delegation through an alternate, accessible medium. I note, however, that following your delegation, the Chair took specific actions in response to the concerns you raised. As your submission notes, the Chair:

Asked City staff what virtual meetings platform they had used in the past, and staff offered a reply;
Commented that he had confirmed with the Clerk that the platform had been used before and indicated that he and/or other Committee Members would follow-up with staff with respect to compliance and standardization; and
Asked staff to confirm that Committee Members had access to your presentation, to which staff replied that Members had been provided with your written submission, and that it remained available for Members to access from a shared drive.

Based on the information available to me, it is my belief that the Chair’s actions indicate that he acknowledged the concerns you raised, and took steps to confirm relevant information with staff. I have considered the Chair’s duties to enforce the Rules of Procedure and inform Members of the Committee of the procedure to be followed.^[1] Based on my review, I do not believe that there are sufficient grounds to justify exercising my authority to investigate the allegations you have set out.

Given the matters set out above, I have determined that the complaint does not provide sufficient grounds to move forward with an investigation.

Conclusion

As noted above, I find there are insufficient grounds to proceed with a formal inquiry into the matters set out in your request for investigation. As a result, I have decided not to investigate your complaint and I consider this matter closed.

Sincerely yours,

Karen E. Shepherd

Integrity Commissioner/Commissaire à l’intégrité 

Office of the Integrity Commissioner

Bureau du commissaire à l’intégrité

110 Laurier Avenue West/Ouest

Ottawa, ON K1P 1J1

Direct Line/ Ligne directe (613) 580-2424 Ext./poste 21978

integrity@ottawa.ca/integrite@ottawa.ca

cc : Donald Bur

[1] Council Procedure By-law, Section 78.