Divisional Court Declines to Rule on Argument that Ontario’s Accessibility Minister Violated Ontario’s Disabilities Act — AODA Alliance Urges Accessibility Minister to Obey the Law He’s Mandated to Spearhead

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

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Divisional Court Declines to Rule on Argument that Ontario’s Accessibility Minister Violated Ontario’s Disabilities Act — AODA Alliance Urges Accessibility Minister to Obey the Law He’s Mandated to Spearhead

October 8, 2021

Summary

Here are two major updates in our campaign to get the Ontario Government to effectively implement the Accessibility for Ontarians with Disabilities Act.

1. Ontario’s Divisional Court Dismisses David Lepofsky’s Court Application, Without Ruling On Whether Accessibility Minister Raymond Cho Violated the AODA

On Friday, October 1, 2021, the Ontario Divisional Court released its ruling in Lepofsky v. Cho. We set the 2-page ruling out below.

The Court dismissed the application by AODA Alliance Chair David Lepofsky, without ruling on his contention that Accessibility Minister Raymond Cho violated s. 10(1) of the AODA. That section requires the minister to publicly post a Standards Development Committee’s initial report upon his receiving it. Minister Cho did not post the health care Standards Development Committee’s initial report until over four months after he received it. He did not post the Post-Secondary Education Standards Development Committee’s initial report until 3.5 months after he received it. He did not post the K-12 Education Standards Development Committees initial report until 2.5 months after he received it.

The Court decided not to rule on the merits of David Lepofsky’s claim, concluding that the application had become moot after the Government eventually publicly posted all three reports. The Court had the authority to rule on the case, even though it was moot, but decided not to, for the reasons set out below. Minister Cho had urged the Court not to rule on the question whether he had violated the AODA. David Lepofsky urged the Court to rule on the case even if it was moot.

This ruling does not vindicate the Ford Government’s conduct. There are at least two important developments arising from this case.

First, Minister Cho, through his lawyer, conceded in court for the first time that he must post a Standards Development Committees initial report after taking the steps that are reasonably necessary to prepare the report for public posting. See the ruling, below. Second, the evidence in the case showed that the Government had created bureaucratic barriers that delayed the public posting of these reports. For example, the Government requires Cabinet Office to give permission to post something online, in accordance with Government marketing priorities. Yet, the AODA gives Cabinet Office no right to veto or delay the public posting of these reports.

2. AODA Alliance Writes Accessibility Minister Cho to Call on Him to Fulfil His Unmet Statutory Duties

On October 8, 2021, the AODA Alliance sent a detailed letter to Accessibility Minister Raymond Cho, set out below. It gives some specific examples of how the Ford Government has violated the AODA. It asks the Government to give these three commitments:

“1. Will you commit to now appoint Standards Development Committees to review the Customer Service Accessibility Standard and the Design of Public Spaces Accessibility Standard, after advertising for people to apply to serve on those Committees? Will you give the latter Committee a mandate to make recommendations generally addressing measures needed to make the built environment accessible?”

“2. Will you commit to strengthen the insufficient Transportation Accessibility Standard, Employment Accessibility Standard and Information and Communication Accessibility Standard in the next four months, after you consult us on the revisions needed to strengthen them?”

“3. Will you commit that you will now put in place effective procedures to ensure that the final reports of the Health Care Standards Development Committee, the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee will each be made public within a few days of your receiving a final report, at the latest? To do this will you commit as follows:

  1. a) Will you agree that under the AODA, you as Minister are required to publicly post a Standards Development Committee’s final report “upon receiving” it?
  1. b) When a Standards Development Committee submits its initial or final report to you, will you immediately let the AODA Alliance and the public know that it has been received?
  1. c) Since your Ministry officials work closely with a Standards Development Committee as it prepares and votes to approve an initial or final report, will you direct your officials to take all the steps that are reasonably necessary to publicly post the report as quickly as possible, and wherever possible, even before the report is formally transmitted to you? For example, most if not all of this work can be started and even completed after a Standards Development Committee formally votes to approve its report, and before that report is formally transmitted to you.
  1. d) Once you receive a Standards Development Committee’s initial or final report, will you have it immediately posted online as soon as it is translated into French and the minimum steps are taken that are needed to code the document for posting, e.g., as a downloadable file?
  1. e) Once you receive an initial or final report from a Standards Development Committee, will you agree not to delay its public posting in order for the Government to take steps that are not necessary for its public posting? For example, will you agree not to delay the report’s public posting until there are briefings of the minister, deputy minister or other public officials on it, and/or to prepare a public survey on it, and/or to prepare other web pages or communication web pages, or other strategies regarding it, and/or to seek permission of Cabinet Office for it to be publicly posted, and/or to edit it to conform to any Government style or writing standards for publicly posted documents, and/or to align the timing of its public posting with the Government’s political, marketing or other strategies or priorities?”

3. Getting Close to 1,000 Days of Ford Government Inaction on the David Onley Report

There have now been a breathtaking 981 days since the Ford Government received the final report of the Independent Review of the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act undertaken by former Lieutenant Governor David Onley. That report found that Ontario is well behind schedule for becoming accessible to people with disabilities by 2025, the AODA’s mandatory deadline. It found that Ontario is full of “soul-crushing barriers” impeding people with disabilities. The Ford Government still has no comprehensive plan in place for implementing the Onley Report.

Send us your feedback. Write the AODA Alliance at aodafeedback@gmail.com

        MORE DETAILS

October 1, 2021 Divisional Court Ruling in Lepofsky v. Cho

CITATION: Lepofsky v. Cho, 2021 ONSC 6466

DIVISIONAL COURT FILE NO.: 364/21 DATE: 2021/10/01

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: DAVID LEPOFSKY, Applicant

AND:

RAYMOND CHO, THE MINISTER FOR SENIORS AND ACCESSIBILITY, Respondent

BEFORE: Sachs, R. D. Gordon and Kristjanson JJ.

COUNSEL: David Lepofsky, on his own behalf

Michael J. Sims and Wan Yao Chen, for the Respondent

Dianne Wintermute, for the Intervenor, Citizens with Disabilities, Ontario

HEARD at Toronto by videoconference: September 27, 2021

ENDORSEMENT

The Applicant initially sought an order in the nature of mandamus compelling the Respondent to make public proposed accessibility standards the Minister had received from three committees (the “Reports”). The Reports have now been made available. The Applicant amended his application to seek a declaration that the Respondent breached his duty to make the Reports public upon receipt, as is required by s. 10(1) of the Accessibility for Ontarians with Disabilities Act, 2005 (the “Act”).

We agree with the Respondent that the Application’s application is moot. The live controversy between the parties, namely, the failure to make the Reports available to the public, has now disappeared.

The Applicant argues that even if we find that the application is moot, we should proceed to hear it as to do so would provide guidance to the parties for future cases. We agree with the Applicant that accessibility for Ontarians with disabilities is an urgent issue and that the deadline provided for in the Act for achieving the purpose of the Act is fast approaching. Thus, anything that can be done to eliminate delay in achieving the goal of accessibility should be done. We disagree that issuing a declaration in this case to the effect that the Respondent breached its duty to make the Reports public upon receipt would meaningfully advance this goal.

Page: 2

Issuing a declaration that would have a meaningful effect in the future requires adopting an interpretation of the term “upon receipt” used in the English version of s. 10(1) of the Act (the term does not appear in the French version) that is not dependent on the analysis of a particular set of circumstances. Yet, neither the Applicant nor the Respondent is advocating such an interpretation. Both agree that the Reports are required to be released only after the Respondent has taken the reasonable steps necessary to prepare the Reports for public release. Where they disagree is on the question of which steps were reasonably necessary in this particular case and how much time was reasonably required to take those steps. For example, the Respondent asserts that it was necessary to brief the government about the content of the Reports and to make sure that the Reports did not exceed the mandate of the committees who issued them and that the language in the reports is appropriate. The Applicant counters by stating that these steps were not necessary since in this case the Respondent had representatives on the committees that prepared the Reports, which should have obviated the necessity for any more review. Both parties agree that before the Reports could be released they had to be “coded” and translated into French. Where they disagree is on the question of how long this process should have taken.

The Respondent states that part of the delay in this case was due to COVID 19. The Applicant disputes this explanation. Determining whether the requested declaration should be issued would require this Court to assess the evidence about the circumstances in this particular case. If we were to conclude that in this case the Respondent breached its duty, this would say nothing about what a subsequent court might decide in a different case. The analysis is an individual and contextual one and will necessarily vary in each case. For the court to engage in this exercise when the desired objective (the release of the Reports) has been achieved would not be an appropriate use of its resources.

The Applicant argues that failing to hear his application would be deny him a remedy in the face of the Respondent’s breach of its statutory obligation. Again, we disagree. The Applicant’s remedy in this situation was to seek an order requiring the Respondent to comply with its obligation and make the Reports available. Due to the fact that the Reports have now been made available, there is no further need for court intervention.

For these reasons the application is dismissed. The parties agree that there should be no order as to costs.

Sachs J.

I agree

  1. D. Gordon J.

I agree

Kristjanson J.

Date: October 1, 2021

October 8, 2021 Letter from AODA Alliance Chair David Lepofsky to Ontario Accessibility Minister Raymond Cho

Accessibility for Ontarians with Disabilities Act Alliance

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/

October 8, 2021

To: The Hon Raymond Cho, Minister for Seniors and Accessibility

Via email: raymond.cho@ontario.ca

College Park 5th Floor

777 Bay St

Toronto, ON M7A 1S5

Dear Minister,

Re: Your Statutory Duties Under the Accessibility for Ontarians with Disabilities Act

We ask you to take specific overdue actions, required of you as Ontario’s cabinet minister responsible for the implementation and enforcement of the Accessibility for Ontarians with Disabilities Act. These actions would help you fulfil your duty under section 7 of the AODA to oversee the development and implement all the accessibility standards necessary to achieving the AODA’s purpose.

The AODA’s purpose is to lead Ontario to become accessible to Ontarians with disabilities by 2025. That looming deadline is only a little more than three years away. It is beyond dispute that Ontario is not on schedule for becoming accessible by 2025. A failure to swiftly take the actions we identify in this letter would push Ontario further behind in reaching that deadline.

The Duty to Appoint Standards Development Committees to Review the Sufficiency of an Accessibility Standard Enacted Under the AODA Within Five Years After It is Enacted

Within five years after an accessibility standard is enacted under the AODA, section 9 of the AODA requires the minister, responsible for the AODA, to appoint a Standards Development Committee to review the sufficiency of that accessibility standard. You are in clear violation of that requirement in the following two instances.

  1. a) The Design of Public Spaces Accessibility Standard was enacted in December 2012. The AODA required that a Standards Development Committee be appointed to review it no later than December 2017. Yet in the almost four years since then, no Standards Development Committee has been appointed for that purpose.

The previous Kathleen Wynne Government is responsible for not taking this action over the last six months of its term in office, from December 2017 to June 2018. You and your Government have been in violation of that mandatory requirement for your entire term in office to date, well over three years.

We have brought this unfulfilled requirement to your Government’s attention. We and others have urged your Government on several occasions to develop a Built Environment Accessibility Standard, in order to fulfil the AODA’s requirement that buildings become accessible to people with disabilities by 2025. Your Government has never agreed to do so. To the contrary, during debates on this idea in the Legislature on May 30, 2019, during National Access Awareness Week, you inaccurately and hurtfully condemned this idea as creating “red tape.”

  1. b) In 2007, the previous Ontario Government enacted the Customer Service Accessibility Standard, the first accessibility standard to be enacted under the AODA. In June 2016, the previous Government enacted revisions to the Customer Service Accessibility Standard. You were therefore required to appoint a Standards Development Committee no later than June 2021, to review the sufficiency of the Customer Service Accessibility Standard. You have not done so. As far as we have seen, you have announced no plans to do so.

People with disabilities in Ontario continue to face recurring disability barriers in many areas, such as in the built environment and in access to customer service. In important areas, the COVID-19 pandemic has made this situation even worse for people with disabilities. Moreover, your own Ministry enforcement data has revealed over the years that there have been rampant AODA violations in the context of the Customer Service Accessibility Standard.

  1. Will you commit to now appoint Standards Development Committees to review the Customer Service Accessibility Standard and the Design of Public Spaces Accessibility Standard, after advertising for people to apply to serve on those Committees? Will you give the latter Committee a mandate to make recommendations generally addressing measures needed to make the built environment accessible?

 The Pressing Need to Strengthen the Transportation Accessibility Standard, the Employment Accessibility Standard and the Information and Communication Accessibility Standard

In 2011, the Ontario Government enacted three important accessibility standards under the AODA, the Transportation Accessibility Standard, the Employment Accessibility Standard and the Information and Communication Accessibility Standard. These three standards are enacted together in one regulation, the Integrated Accessibility Standards Regulation 2011.

The AODA required the previous Government to appoint Standards Development Committees by 2016 to review the sufficiency of each of those three accessibility standards. It therefore appointed the Transportation Standards Development Committee, the Employment Standards Development Committee, and the Information and Communication Standards Development Committee.

Quite some time ago, each of those advisory committees fully completed their reviews and submitted their final reports to the Ontario Government. The Transportation Standards Development Committee’s final report was made public in the spring of 2018, before the June 2018 Ontario election. The Employment Standards Development Committee submitted its final report to you over two and a half years ago, on January 22, 2019. The Information and Communication Standards Development Committee submitted its final report to you over one and a half years ago, on February 23, 2020.

According to the AODA, once the Government receives a Standards Development Committee’s final report, the Government can amend the accessibility standard that it reviewed. It can enact some, all or none of the changes that the Standards Development Committee recommended, and/or can make other reforms to the standard that the Government thinks helpful.

Despite all this work having been done, and all the recurring barriers that people with disabilities continue to face in transportation, employment and information and communication, your Government has enacted no revisions to the Transportation Accessibility Standard the Employment Accessibility Standard or the Information and Communication Accessibility Standard. In fact, your Government has not enacted or strengthened any accessibility standards at all in its entire term in office.

You have failed to do so, even though over two and a half years ago, you received the final report of David Onley’s Independent Review of the AODA. He found that Ontario is well behind schedule for becoming accessible by 2025, and is full of “soul-crushing barriers” that hurt people with disabilities. In the Legislature, you said that Mr. Onley did a “marvelous job” in preparing his report.

  1. Will you commit to strengthen the insufficient Transportation Accessibility Standard, Employment Accessibility Standard and Information and Communication Accessibility Standard in the next four months, after you consult us on the revisions needed to strengthen them?

Ensuring that the Forthcoming Final Reports of the Health Care Standards Development Committee, the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee Are Made Public Upon Your Receiving Them, Without Delay

Three Standards Development Committees, appointed under the AODA, are to resume their work this fall. They are required to review public feedback on their respective initial reports received over the summer and fall. They must then come up with their final reports and submit them to you. They will address disability barriers facing people with disabilities in the health care system, in the K-12 education system, and the post-secondary education system.

It is very important that you make public each of those Committees’ final reports upon receiving each of them, and that you not continue the Government’s practice of delaying for months the public posting of initial and final reports of Standards Development Committees appointed under the AODA.

These three forthcoming reports will, taken together, address serious disability barriers in the important areas of health care and education. The initial reports of these three Government-appointed advisory Standards Development Committees already documented that Students with disabilities face far too many disability barriers in Ontario’s schools, colleges and universities. Their initial reports also reaffirm how patients with disabilities face far too many disability barriers in Ontario’s health care system.

The AODA requires the minister responsible for the AODA to make public the initial or final report of a Standards Development Committee “upon receiving” the report. Regarding a Standards Development Committee’s initial report, s. 10(1) of the AODA provides:

  1. (1) Upon receiving a proposed accessibility standard from a standards development committee under subsection 9 (5) or clause 9 (9) (c), the Minister shall make it available to the public by posting it on a government internet site and by such other means as the Minister considers advisable.

As for any progress report that a Standards Development Committee submits to you, including the Committee’s final report, s. 11(2) of the AODA provides:

Progress reports

  1. (1) Each standards development committee shall provide the Minister with periodic reports on the progress of the preparation of the proposed standard as specified in the committee’s terms of reference or as may be required by the Minister from time to time.

Progress reports made public

(2) Upon receiving a report under subsection (1), the Minister shall make it available to the public by posting it on a government internet site and by such other means as the Minister considers advisable.

The Government has a troubling track record of withholding the initial or final reports of Standards Development Committees from the public for months or even years after receiving them, despite the minister’s statutory duty to post these reports upon receiving them. One troubling example of these was your Government’s withholding the final report of the Employment Standards Development Committee for over two years, from the time you received it in January 2019 to the time you publicly posted it in February 2021. You did so while people with disabilities continued to languish, facing troubling barriers in access to employment.

Another troubling illustration of this pattern was your withholding the initial report of the Health Care Standards Development Committee from the public for over four months after you received it. You did this during some of the worst of the COVID-19 pandemic, when you knew that people with disabilities were facing added barriers and hardships during that pandemic, and that the initial report you withheld from the public called for strong action on health care barriers, including those which are COVID-19-related.

In the recent case of David Lepofsky v. Raymond Cho, a senior Ministry official took the incorrect and harmful position that the AODA does not even require you to ever make public a Standards Development Committees final report. The Government had never before claimed that it had no statutory duty to make a Standards Development Committee’s final report public upon receiving it. That official’s affidavit, filed on your behalf, stated:

While posting of Initial Recommendations Reports is required by the Act and follows the process as outlined above, the Act does not require that the Minister post Final Recommendations Reports. In practice, the Ministry has posted these final reports as well.

In Lepofsky v Cho, I had filed a court application for judicial review on May 7, 2021, seeking a court order to force you to fulfil your duty to make public the initial reports that you had already received from the Health Care Standards Development Committee, the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee. You had withheld those reports from the public much longer than necessary to post them online. It remains my position that you were in violation of your duty under s. 10(1) of the AODA to post each of those initial reports upon receiving them.

Although the court dismissed my application, it did not conclude that you complied with your legal obligations. Instead, at your request and over my objection, the Divisional Court declined to rule on my application, based on the fact that you had subsequently made all those initial reports public.

Your delay in posting those three initial reports was inexcusable. The Health Care Committee’s initial report was posted over four months after you received it. The K-12 Committee’s initial report was posted two-and-a-half months after you received it. The Post-Secondary Committee’s initial report was posted three-and-a-half months after you received it.

You made public the Health Care Standards Development Committee’s initial report just moments after I filed my court application on May 7, 2021, and no doubt before you had learned of my court application. You made public the K-12 Education Standards Development Committee’s initial report on June 1, 2021, over three weeks after I filed my court application. You made public the Post-Secondary Education Standards Development Committee’s initial report on June 25, 2021, over six weeks after I filed my court application.

During the September 27, 2021 oral argument on my court application, your counsel conceded that section 10(1) of the AODA requires you to post an initial report that you have received after taking the steps that are reasonably necessary to prepare the report for public posting. The evidence that you placed before the Court showed that in the case of each of those three initial reports, your Ministry delayed its public posting well beyond the time it took to translate the report into French and to code it for online posting. (Even if it were assumed that your Ministry needed as much time as it actually took for French translation and coding.

According to your Ministry’s own evidence, you and your Government injected additional bureaucratic steps that delayed their posting. This included time taken to brief you or your office, and/or other Government officials. It included time taken to get Cabinet Office’s approval for their public posting in according with the Government marketing priorities, even though s. 10(1) gives Cabinet Office no authority to veto or delay their public posting. It included time taken to develop an online survey about each initial report, even though this is unnecessary to ready a report for public posting. It included time taken for the Government to develop a communication strategy (even though this too is unnecessary before a report is publicly posted). Finally, included time taken to edit the report for conformity with the Government’s standard for online posts, even though the Government has no authority to alter a Standards Development Committees report before publicly posting it.

It is extremely significant that your lawyer conceded in the face of the Court’s questions that the time needed to translate a report into French and to code it for public posting was a small part of the time which the Government actually took before it publicly posted an initial report. There was no evidence that your Government tried to speed up the reports’ translation or coding as a priority, or that most if not all of this work could not be done during the days or weeks before each report was formally submitted to you. Your staff were intimately involved with the work of each Standards Development Committee from beginning to end.

Your delays in publicly posting those three initial reports has further delayed Ontario’s progress toward reaching the AODA’s mandatory goal of becoming accessible to people with disabilities by 2025. As noted earlier, Ontario is already well behind in reaching that goal, as the David Onley Independent Review of the AODA amply documented over two years ago. Moreover, you withheld those reports from the public at an especially harmful time, during pivotal months of the COVID-19 pandemic. It was especially urgent to let hospitals, other health care providers, schools, colleges, and universities know as soon as possible about their disability barriers, and about initial recommendations of what they should do to remove and prevent them. Instead, you stalled that process.

It is essential that the Health Care, K-12 and Post-Secondary Standards Development Committees are able to complete their work and submit their final reports to you as soon as possible. Your Ministry should take every step it can to facilitate this.

Once any of those Committees submit their final report to you, you should make public the fact that you have received it. You should publicly post it upon receiving it, without any delay. You should not hold up the public posting for such things as briefing ministers or other Government officials, for getting Cabinet Office approval, for formatting the report to meet Ontario Government posting standards, or for developing communication strategies or survey instruments.

The next Ontario election is only eight months away. We want to ask each party to make commitments to implement those final reports. For you to delay the public posting of any of those reports would impede and frustrate that effort.

  1. Will you commit that you will now put in place effective procedures to ensure that the final reports of the Health Care Standards Development Committee, the K-12 Education Standards Development Committee and the Post-Secondary Education Standards Development Committee will each be made public within a few days of your receiving a final report, at the latest? To do this will you commit as follows:
  1. a) Will you agree that under the AODA, you as Minister are required to publicly post a Standards Development Committee’s final report “upon receiving” it?
  1. b) When a Standards Development Committee submits its initial or final report to you, will you immediately let the AODA Alliance and the public know that it has been received?
  1. c) Since your Ministry officials work closely with a Standards Development Committee as it prepares and votes to approve an initial or final report, will you direct your officials to take all the steps that are reasonably necessary to publicly post the report as quickly as possible, and wherever possible, even before the report is formally transmitted to you? For example, most if not all of this work can be started and even completed after a Standards Development Committee formally votes to approve its report, and before that report is formally transmitted to you.
  1. d) Once you receive a Standards Development Committee’s initial or final report, will you have it immediately posted online as soon as it is translated into French and the minimum steps are taken that are needed to code the document for posting, e.g., as a downloadable file?
  1. e) Once you receive an initial or final report from a Standards Development Committee, will you agree not to delay its public posting in order for the Government to take steps that are not necessary for its public posting? For example, will you agree not to delay the report’s public posting until there are briefings of the minister, deputy minister or other public officials on it, and/or to prepare a public survey on it, and/or to prepare other web pages or communication web pages, or other strategies regarding it, and/or to seek permission of Cabinet Office for it to be publicly posted, and/or to edit it to conform to any Government style or writing standards for publicly posted documents, and/or to align the timing of its public posting with the Government’s political, marketing or other strategies or priorities?

As always, we remain ready, willing and able to assist the Government on the effective implementation and enforcement of the AODA. May we ask for your prompt reply to this letter, including the three commitments that we seek.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

Twitter: @davidlepofsky

CC: The Hon. Premier Doug Ford premier@ontario.ca

Denise Cole, Deputy Minister of Accessibility, Denise.Cole@ontario.ca

Alison Drumming, Acting Assistant Deputy Minister for the Accessibility Directorate, alison.drummond@ontario.ca