January 24, 2017 Affidavit that the Wynne Government Filed against AODA Alliance Chair David Lepofsky with Ontario’s Information and Privacy Commission

January 24, 2017

INFORMATION AND PRIVACY COMMISSIONER of ONTARIO 
IN THE MATTER of Appeal Number PA 16-156 under the Freedom of Information and Protection of Privacy Act

AFFIDAVIT OF JENNIFER BROWN 
This affidavit was created as a result of an oral inquiry pursuant to the Freedom of Information and Protection of Privacy Act (FIPPA). Accordingly the use of this affidavit and the information contained within it is restricted by ss. 52(9) and 52(10) of the FIPPA.

I, Jennifer Brown, of the City of Toronto, MAKE OATH AND SAY:

  1. I am the Manager of the Accessibility Policy Unit of the Accessibility Directorate of Ontario (“ADO”), a position I have held since May 2015. In my capacity as Manager, my duties have included:  leading policy, legislative and regulatory development related to the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) by the Ministry and across government; leading standards reviews by working with Standards Development Committees; and identifying emerging accessibility needs and trends through research and analysis.

Background

 

  1. On June 4th, 2015, the ADO received a freedom of information request from the Requester (now Appellant) that was divided into 31 subject areas, many of which were questions. These questions contained multiple parts and many did not refer to specific records. The general subject areas of the request include: levels of compliance with the AODA; the government’s enforcement of the AODA; the government budget and spending on the AODA’s implementation and enforcement; public education on accessibility; efforts to incorporate the promotion of accessibility across the Ministry’s various programs and activities; efforts to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games; consolidation of the development of new accessibility standards and the review of existing standards; and analyses of laws in other jurisdictions that address accessibility for people with disabilities.
  1. In relation to the request at issue, I provided management oversight for the coordination of the search for records in response to the request.  I was assigned to this role in June 2015 after receipt of the request, and only for this specific FOI request, due to its complex and broad nature. In this capacity, I provided direction, assistance and advice to my management colleagues in the ADO who were tasked with searching for records related to their roles and individual files. I was also responsible for providing updates to divisional leadership. I directly oversaw the work of one (at times two) coordinators in the ADO that were leading the searches within their divisions. Because of this experience, I have knowledge of the facts as set out in this affidavit.

 

  1. The information in my affidavit, which I believe to be true, has been obtained by me directly or provided to me by other staff members in the ADO and the Ministry of Economic Development and Growth (MEDG) who conducted searches for responsive documents. In particular, a Team Lead/Senior Coordinator worked with me for the purposes of this project. This individual worked with staff leads in units that conducted the searches, while I worked directly with managers. Information about the amount of time employed in the search and other information related to the search was provided to us by unit leads and their managers.

Background on 2015 request

  1. The format of the request, which was, for the most part, framed as a series of questions, as opposed to requests for specific records, increased the amount of search time necessary to identify responsive or potentially responsive records  that would enable the ministry to obtain information necessary to respond to  each question.
  1. Due to the large scope of the request and to enable the Ministry to provide responsive records to the Requester in a timely manner, the Ministry worked with the Requester to divide the request into two parts: Part A, attached as Exhibit “A” to this affidavit, included questions which did not require extensive search time to locate responsive records.  Part B, attached as Exhibit “B” to this affidavit, included topics or complex questions  which required significant search time to locate  responsive records,  and/ or were likely to require review of responsive records in order to determine whether information contained in the records was exempt from release.

 

  1. After receiving the request, the Ministry undertook a series of efforts to work with the requester to clarify and narrow the scope of his request.  On July 7, 2015, the Ministry provided questions for clarification to the Requester in relation to questions 10, 16, 18, 28 and 29 of the request, attached as Exhibit “C” to this affidavit. The purpose of the clarification questions was to narrow the types of records the requester was seeking in response to these questions, in order to reduce the volume of records that would need to be searched in order to identify responsive records.
  1. Further, on August 7, 2015, after receiving the requester’s response to the questions. I participated on a teleconference call with the Requester and other staff members from the ADO and the Ministry’s Freedom of Information coordinator to further clarify and narrow the scope of the request. In particular, the Requester provided some clarification on what types of records he was seeking for questions 4, 11, 16, 17, 18 & 29 of the request, but he did not propose to significantly narrow the scope or reduce the number of questions. For instance, only final drafts of documents were to be included in the records package.

 

Calculation of Fees

  1. The fee estimate of $4,250.00 provided to the Requester on September 24, 2015 is based on the actual search time by ADO and Ministry of Economic Development and Growth (the “Ministry”) staff, who spent a total of 140 hours locating records in response to Part B, over a period of approximately two months, between June and August of  2015. Time estimates were tracked by number of search hours (i.e., 140) and the number of staff involved in searches for each question. Searches were conducted by staff members in different units within the ADO and the Ministry with specific knowledge of the subject area, as well as records and information that would be responsive to each question in Part B of the request.

 

  1. The estimate provided to the requester included only search time. The estimate does not include other fees that could be charged under the fee regulation of FIPPA in relation to document preparation. For instance, some of the responsive records contain information that would be subject to FIPPA exemptions and would require redactions.
  1. On December 5, 2016, attached as Exhibit “D” to this affidavit, the Ministry provided an estimate based on a preliminary review  that  376 records identified in response to Part B may contain information that would subject to exemptions from disclosure under sections 12 (cabinet records), 13 (advice to government) and 19 (solicitor-client privilege) of FIPPA.  The Ministry has currently  located approximately 3600 pages that have been identified as responsive to the questions under Part B.  While the Ministry has not yet conducted a detailed review of the records, or made a final decision regarding exemptions pending the outcome of this appeal, we anticipate that approximately 15 percent of these records (or 540 pages) likely contain information that may be exempt.

 

  1. The Ministry would also incur additional costs to have the records converted into the accessible format requested by the Requester. The Ministry will be responsible for these costs. Given the number of records the Ministry has located, it is likely that the Ministry will require the services of an external vendor to convert documents, like power point presentations, into accessible MS word formats.
  1. At this point in time, the costs of conversion of records to an accessible format are not known and will depend on the number of records that require conversion and the pricing offered by vendors.  For example, following the Requester’s 2013 freedom of information request, explained in further detail below, the Ministry’s Corporate Services Division conducted a search for a vendor to obtain  an estimate of the cost to convert records into accessible formats. One vendor consulted (accessibil-iT) provided an estimate of $150.00 for 1.5 hours of work to convert 5 pages text-only information. Attached as Exhibit “E” to this affidavit is an invoice for $169.50 from accessibil-IT to the Ministry for the cost of converting one 5 page test document, a Power Point presentation, into accessible Microsoft Word format.

 

Background on 2013 Request

  1. The Requester also submitted a request for information to the Ministry in 2013, which was separated into 21 questions attached as Exhibit “F” to this affidavit. A fee estimate of $2,350.00 was provided to the Requester on October 2, 2013 based on an estimated search time of 77.5 hours. The estimated search time for that request was lower because there were fewer parts to the 2013 request, and fewer records and databases that required searching to identify responsive records. The Appellant also requested a fee waiver for the 2013 request.

 

  1. The Minister’s office decided to provide the records, free of charge, outside of the FIPPA process. Accordingly, in correspondence dated February 13, 2014, attached as Exhibit “G” to this affidavit, the Ministry’s FOI coordinator advised the Requester that the FOI file for the 2013 request had been closed. The provision of records was in accordance with subsection 63(1) of FIPPA, which provides that a head may give access to information informally in response to an oral request. The Ministry treated the Appellant’s request as resolved, and no formal decision regarding the Appellant’s request for a fee waiver in respect of the initial FOI request was made by the Ministry in 2013.

Ministry searches in response to 2015 request

  1. As noted above, the Ministry divided the Appellant’s request into two parts.  Records that were identified as responsive to the subject areas described in Part A were provided directly to the Appellant. For the most part, these records include statistical and other information that the Ministry would make publicly available and would provide in response to an informal or oral request in accordance with subsection 63(1) of the Act. The Appellant was not charged a fee in relation to these records.

 

  1. As noted above, the work involved in searching for and identifying records that would respond to the Appellant’s request in Part B was substantive. The following sets out the process that was undertaken to locate responsive records for each question in Part “B” of the 2015 request.
  1. Question 5 related to enforcement actions undertaken under the AODA since 2014.

 

    1. Locating records responsive to this part of the request required one hour of search time by two staff members in the Compliance Enforcement Unit.
    1. The staff members searched two electronic databases, the Accessibility Compliance and Tracking System (Organization interaction and reporting database) and the ADO’s Compliance and Enforcement Database (CRIS). The Accessibility Compliance and Tracking System and the CRIS are databases that track all activities conducted between compliance staff and organizations required to comply with the AODA.

 

    1. Filters were applied to the databases to isolate the number of specific activities that were requested in question 5. Additional filters were applied in order to break these activities down according to the organization’s sector and the quarter in which the activity took place. One record was located in response to question 5, which includes data extracted from the databases described above.
  1. Question 10 was a broad request for all plans, policies, directives or instructions for enforcement of any requirement or provision of the AODA, or of any accessibility standards enacted under it.

 

  1. Responding to this question required searches to be conducted by eight staff members in the Compliance and Enforcement Unit, which totaled 50 hours of search time. Staff members searched paper records and several electronic databases, including shared drives, emails, the Ontario Correspondent Management System (“OCMS”).
  1. The Ministry was required to consult with Treasury Board and Ontario Shared Services for recommendations regarding disclosure of certain  records identified in response to question 10.

 

  1. Locating records in response to question 10 posed challenges for ADO staff, as the time period for responsive records was uncertain. The request was for all responsive records that had not been provided in response to the Requester’s prior 2013 request, and any records created since 2013.  This resulted in significantly more search time as every potentially responsive record in the custody or control of the ADO that could be within scope had to be identified, then compared against the records disclosed in response to the Requestor’s prior request, then either included or excluded accordingly.
  1. The records search for question 10 also involved the evaluation of a large amount of data to determine if it was within the scope of the request. Many changes and updates have recently been made to the ADO’s compliance and improvement framework, including new compliance improvement policies and procedures and updated and new inspections policies and procedures. The Compliance and Enforcement Unit also recently implemented the enforcement piece of Compliance and Enforcement Strategy. This resulted in a large volume of new policies, operational procedures, operations documents and new linkages (for example, Ontario Shared Services which collects monetary penalties, and the License Appeal Tribunal which hears enforcement appeals under the AODA). Since the requester’s previous FOI request in 2013, the ADO’s framework for assuring compliance (from providing education and assistance to auditing and enforcement) has matured and developed.

 

  1. For example, since 2013 the ADO has begun issuing director’s orders to comply under the AODA, some of which have included requirements to pay administrative monetary penalties. In order to collect unpaid penalties, the Directorate had to establish protocols and procedures with Ontario Shared Services in order to provide collections services and track payments. Similarly, protocols and procedures had to be established with the License Appeal Tribunal that was designated to hear appeals under the AODA made by organizations.
  1. For each of these new areas of business, the ADO generated new records and documents in its electronic database that had to be searched. A total of 165 responsive records were identified in response to question 10.  Responsive records include: reports, briefing materials for decision makers, feedback from decision-makers, proposals, planning documents, decision notes over several years, templates, scripts, internal protocols and processes for the purposes of conducting compliance activities; Documents for appointing inspectors; and third-party terms of reference.

 

  1. Question 11 was a broadly worded request for any studies, reports, option papers or other records related to options and/or policies or practices for implementing the enforcement powers under the AODA from 2013 to the date of the request.
  1. One staff member in the Compliance and Enforcement Unit, and one from the Standards Development Unit spent 2.5 hours searching the ADO’s electronic shared drive filing system, hard copy records and email records for responsive records.
  2.  In total, 52 records were identified as responsive to question 11. Responsive records include reports prepared by external consultants, procurement process and approval documents, briefing materials for decision makers and meeting materials shared with ministry partners. These records were gathered by policy staff in the Standards, Policy and Compliance Branch and by Corporate Services Staff in the Business Planning and Finance Division of the Ministry.

 

  1. Question 15 was a four-part question, related to a proposal to establish a toll-free phone number for the public to report AODA violations, which required 4 hours of search time by one staff member in the Compliance Operations Unit.
  1. The staff member searched shared drives, emails and digital reports from ServiceOntario and the Accessibility Compliance and Tracking System (an online reporting system) to gather and review potentially responsive records.
  2. One record was identified as responsive to question 15. The record includes data extracts in the form of excel spreadsheets from the Accessibility Directorate’s Accessibility Compliance and Tracking System and the Service Ontario Call Center database, OASIS. This data was consolidated and summarized in monthly operational reports

 

  1. Question 16 was a broad request for any records regarding the Ministry’s decision-making process related to auditing obligated organizations under the AODA.   This question required one hour of search time by three staff members in the Compliance Enforcement Unit and Compliance Operations Unit.
  1. Electronic shared drive and email records were searched for responsive records. Three records were identified as responsive to question 16. Responsive records include annual planning documents outlining compliance activities and staffing action request forms.

 

  1. Question 18 was a ten- part question, related to records that address the development of policies and proposals being considered by the Ministry and ADO related to enforcement of the AODA using existing resources and inspectors under other government legislation.
    1. The records search for question 18 required 16 hours of search time by three staff members in the Standards Development Unit to locate responsive records. Policy and administrative staff searched electronic (shared drive), hard copy (paper filing system), and emails for responsive records.

 

    1. The sub-questions covered a number of programs developed and administered by the ADO in partnership with several other Ministries, including the Ministry of Labour, the Ministry of Advanced Education and Skills Development and the Ministry of Transportation.  The sub-questions regarding compliance outcomes also required information from other units within the ADO.
    1. A total of 62 records were identified in response to question 18. Responsive records include reports, briefing materials for decision makers and meeting and training materials shared with Ministry partners.

 

  1. Question 22 was a two part question related to the ADO’s administration of the EnAbling Change Program since 2008, which required 15.25 hours of search time by two staff members in the Public Education and Partnerships Unit.
    1. Searches of electronic shared drive records and paper records dating back to 2008 were required to locate responsive records. Each record had to be reviewed to verify dates, funding amounts and to create project summaries.

 

    1. Grants Ontario was also used in the search for documents. This database has archiving functions and reporting functions, but staff were still required to review some EnAbling Change files outside the system.
    1. Additionally, the system was only implemented in 2012, as the request goes back to 2008, substantial time was spent looking into older files created before the system was incorporated. ADO staff consolidated all the information from the various contracts into a new spreadsheet in response to question 22.

 

  1.  Question 23 was a request for the text or speaking notes for any speeches by Brad Duguid, who was then Minister of Economic Development, Employment and Infrastructure, from June 2014 which address accessibility.
    1. Searches were conducted by staff in the Ministry’s Communications Branch. Locating responsive records required 8 hours of search time, 22 responsive records were identified.

 

  1. Questions 24 and 25 were requests for records related to a 2014 government advertising campaign on accessibility and compliance with the AODA, including related budgeting and costs for the campaign, records related to any plans for future campaigns, and any information the government compiled on changes in levels of compliance or inquiries received as a result of the campaign.
    1. The search for questions 24 and 25 required a total of three hours of search time by one staff member in the Strategic Initiatives Unit. Searches of the electronic shared computer network drive and the Ontario Correspondent Management System (“OCMS”) were conducted.

 

    1. Three records were identified in response to question 24, and one record was identified in response to question 25. Responsive documents included existing data analysis spreadsheets and research summaries that were validated to evaluate the success of the 2014 advertising campaign on accessibility and compliance with the AODA.
  1.  Question 27 was a request for any information  related to new programs, policies or initiatives of the Ministry, or modifications to existing ones,  since May 28, 2013,  that ensure that accessibility is integrated into all programs and activities at the Ministry.

 

    1. The searches for question 27 required 2 hours of search time, by staff in the Open for Business, Policy & Strategy, and Entrepreneurship divisions of the Ministry. A total of 52 records were identified in response to question 27. Responsive records include briefing materials and Cabinet submissions.

 

  1. Question 28 was a request for any records of proposals, options, research or recommendations related to increasing the accessibility of tourism or hospitality services in any part of Ontario, from 2012 to the request date, in connection with the Pan/Para Pan American Games in Toronto.
    1. The search for question 28 required 12 hours of search time by one staff member in the Strategic Initiative Unit.

 

    1. The search time is a result of the volume of electronic records required to be searched and the time frame of the requested records (from 2012 to the request date).
    1. The search also involved obtaining responsive records from the Ministry of Tourism, Culture and Sport (MTCS). The Ministry was also consulted with the Ministry of Transportation, Ministry of Government and Consumer Services, and other third party organizations including Ontario College of Art and Design and the Tourism Industry Association of Ontario for recommendations regarding disclosure of certain records.

 

    1. In total, 55 records were identified in response to question 28. Responsive records include proposals, contracts, research, business cases and option papers over several years. This includes briefing materials for decision makers. These records were gathered by staff in the Outreach and Strategic Initiatives Branch and MTCS.
  1. Question 29 was a request for any records from February 2010 to the date of the request  that relate to the development and implementation of the government’s consolidation of the development of new accessibility standards, and the review of existing accessibility standards by the Accessibility Standards Advisory Council.

 

    1.  Searches for question 29 required 10.5 hours of search time by three staff members in the Standards Development Unit.
    1. Staff searched for responsive records in emails, electronic shared drive and OCMS, as well as hard copy records.

 

    1. Identifying responsive records also involved reviewing partially responsive records.
    1. Staff identified 18 records in response to question 29. Records include: Briefing materials and Treasury Board materials including submissions, Minister’s remarks, and question and answer documents.

 

  1. Question 31 was a general request for any analysis or survey of laws in other jurisdictions related to accessibility for people with disabilities, which required 10 hours of search time by 3 staff members in the Accessibility Policy Unit.
  1. The search involved a locating records in the electronic shared drive and filing system, as well as searching through hard copy records.

 

  1. Staff identified 15 records in response to question 31. Responsive records include jurisdictional/environmental scans and research summaries of accessibility laws/efforts in other jurisdictions. This includes briefing materials for decision makers.
  1.  The ADO is committed to successful implementation of the AODA through its programs, policies and hardworking staff. It also values and respects its role as a FIPPA institution enabling access to information under that Act. The impact of the extensive time and staff resources required to conduct searches for records responsive to the Appellant’s request can be offset by the fees required.

 

  1. This affidavit is made in support of the Ministry’s response to Appeal No. PA16-156 and for no other or unlawful purpose.

 

SWORN before me at the City of Toronto,)
in the Province of Ontario,                       )
this 24th day of  January, 2017                 )
)
)

________________________________)    _______________________________
A COMMISSIONER FOR TAKING
AFFIDAVITS FOR THE PROVINCE OF
ONTARIO

Exhibit “A”

1.         By December 31, 2012, private sector organizations in Ontario with at least 20 employees had to file a first Accessibility for Ontarians with Disabilities Act (AODA) Accessibility Report with the Government under s. 14 of the AODA.

a) As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, how many private sector organizations, that were required to file an AODA Accessibility Report by December 31, 2012, had still not filed the required AODA Accessibility Report?

b) What percentage of the total number of private sector organizations which had been required to file an AODA Accessibility Report by December 31, 2012 had not filed one as of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015?

2.         By December 31, 2014, all private sector organizations in Ontario with at least 20 employees were required to file with the Government a second AODA Accessibility Report. As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, how many private sector organizations that were required to file a first AODA Accessibility Report by December 31, 2012, and a second AODA Accessibility Report by December 31, 2014, had not filed either required report? Please state this as a number of organizations, and as a percentage of the organizations which were required to so file.

3.         I understand that public sector organizations were all required to file a first AODA Accessibility Report by December 2010. All public sector organizations were also required to file an AODA accessibility report by December 31, 2013.

a) If all public sector organizations had not filed their required AODA Accessibility Report by December 31, 2013, by when had all of those organizations filed them?

b) As of the date of this application’s fulfilment, and, if this application is not answered before June 30, 2015, as of June 30, 2015, if all had still not filed them, how many have not filed them? And what percent of public sector organizations that were required to file then?

4.         I seek records since June 2014 of any requests or inquiries from or on behalf of the office of the Economic Development Minister to the Ministry, including for example, to the Accessibility Directorate of Ontario, for information regarding on levels of compliance or non-compliance with the AODA or any accessibility standards enacted under it, and any reports or other answers provided to the office of the Minister on this subject since June 2014.

 

6.         How many times in 2015 has an administrative penalty order been filed with a local Registrar of the Superior Court of Justice under s. 23 of the AODA?

7.         How many AODA compliance orders, monetary penalties or other enforcement efforts have been appealed to court in 2015? Please provide specifics of any such case or links to accessible postings of any decisions. How many such appeals or court proceedings are now pending?

8.         In addition to enforcement statistics sought above, what specific steps has the Government taken in 2014 or 2015 to deploy its enforcement powers under the AODA, in relation to private sector organizations that have failed to file both a first AODA Accessibility Report and a second AODA Accessibility Report, and in relation to how many organizations? Has there been any focused effort to address organizations that have failed to file both a 2012 and 2014 AODA Accessibility Report, and if so, what focused effort?

9.         Without limiting the information sought above, what enforcement steps has the Government taken under the AODA in relation to private sector organizations with fewer than 20 employees, an in relation to how many private sector organizations:

a) In 2014?

b) In 2015?

12.       The number of

a) Directors appointed under s. 30 of the AODA now working within the Ontario Government or under its authority;

b) Inspectors appointed under s. 18 of the AODA now employed in or on behalf of the Ontario Government;

c) Inspectors that the Government plans in the next six months to appoint under s. 18 of the AODA; and

d) Directors that the Government plans to appoint in the next six months under s. 30 of the AODA.

13.       For the period subsequent to my August 15, 2013 Freedom of Information application, any requests for permission, authority, directions or instructions by or on behalf of the Accessibility Directorate of Ontario, on use or deployment of any enforcement powers under the AODA including but not limited to those specified in sections 12 to 28 of the AODA, e.g. any request for permission to take enforcement actions such as inspections under the AODA.

14.       For the period subsequent to my August 15, 2013 Freedom of Information application, any permission, authority, directions or instructions, or any refusal or restriction of permission, authority, directions or  instructions, formal or informal, given to the Accessibility Directorate or any official of, or working on behalf of the Accessibility Directorate, on whether or to what extent the enforcement powers under the AODA (including but not limited to those in sections 12 to 28 of the AODA) are to be used, and if so, under what circumstances they are to be used.

This includes, without limiting the generality of the foregoing, any directions or instructions that the AODA or any accessibility standards under it, are not to be enforced, or limiting in any way the deployment or use of any enforcement powers conferred by or under the AODA.

This entire request includes any directions, instructions, authority or permission given or refused from any source, such as (but not limited to) those from a minister’s office, deputy minister’s office, Cabinet Office, or the Premier’s Office.

17.       The June 3, 2015 Toronto Star reported that Economic Development Minister Brad Duguid told the Star that starting in 2016, the Government would increase the number of obligated organizations to be audited under the AODA, rising to 4,000 per year, as part of the Government’s 10 Year Accessibility Action Plan, to be released on June 3, 2015. I seek:

a) Copies of any documents or records (including any emails from the Government) that Economic Development Minister Duguid or Ministry officials provided to the Toronto Star in connection with the preparation of this June 3, 2015 report in the Toronto Star. I do not seek any communications from the Toronto Star to the Minister or Ministry;

b) details about, and records concerning the preparation of, the Government’s plans to increase the number of obligated organizations to be audited under the AODA, as reported in the June 3, 2015 report in the Toronto Star.

c) Any records on anticipated or approved budget for enforcement of the AODA in any fiscal year after the current fiscal year.

 

19.       What is the budget that was appropriated for the Accessibility Directorate of Ontario for the fiscal year 2014-15? How much of that amount did the Directorate spent in that fiscal year?

20.       What is the total budget appropriated for the Accessibility Directorate of Ontario for the current fiscal year?

 

21.       For the last fiscal year and the current fiscal year, please provide the budget allocated and expended by the Accessibility Directorate of Ontario in a detailed breakdown including amounts for:

a) Enforcement of the AODA (e.g. by inspections, audits, issuance of compliance orders and monetary penalties, and on appeals), but not including activities aimed at securing voluntary compliance (such as public education and outreach);

b) Development of new accessibility standards and review of existing accessibility standards;

c) Public education and outreach.

26.       In her May 14, 2014 letter to us, written during the 2014 election, Premier Wynne committed:

“The Ministry of Economic Development, Trade and Employment – as the government’s lead for the Accessibility Directorate of Ontario – has created a new position in its Ministry, a Director of Accessibility Integration and planning, to work within the Ministry to ensure that accessibility is integrated into all business practices.”

In Premier Wynne’s December 23, 2014 letter to us, she wrote:

“As referenced in your letter, the ministry has also worked to incorporate accessibility into all of its economic development and employment strategies, programs and initiatives. In support of this, a Director of Accessibility Integration and Planning position was created within the deputy minister’s office. A key outcome of this work is the integration of accessibility criteria into our Ontario Youth Jobs Strategy, and investment funding programs, services and supports.”

I understood that the Economic Development Ministry’s “Director of Accessibility Integration and Planning” position to which the Premier refers was only a temporary position, which terminated some months ago.

a) Does that position still exist in your Ministry, as the Premier described it?

b) If so, who currently fills that position?

c) How long has that person been in that position?

d) Is it a full time or part time position?

e) If that position no longer exists, when was it created and when was it terminated, completed or vacated?

30.       On or about June 3, 2015, the Government announced that in May 2015, it received a report from the council that the Economic Development Minister appointed in 2014 to give advice to the Government on strategies to increase employment opportunities for people with disabilities. I seek a copy of that report, and any other reports that the Government has received from that Council at any time up to the date of the fulfilment of this application.

Exhibit “B”

 

5.         Please provide information on enforcement action under the AODA taken in 2014 on a quarterly basis, and as an annual total, and for the current year on a quarterly basis to date, and as an aggregated total, broken down by sector (private sector versus public sector) and size of organization, including, e.g.

a) The number of organizations audited for compliance with the AODA and any accessibility standards enacted under it.

b) The number of organizations that were the subject of an inspection of their premises for compliance with the AODA and any accessibility standards enacted under it, by an inspector, appointed under s. 18 of the AODA, pursuant to s. 19 of the AODA. Included within this is a request to know the number of organizations that an inspector, appointed under s. 18 of the AODA, has physically visited to discharge the powers of conducting an inspection under the AODA.

c) The number of notices of proposed compliance orders issued under the AODA, also broken down by the AODA requirement with which there was a lack of compliance.

d) Numbers and amounts of proposed monetary penalties under the AODA, also broken down by AODA requirement with which there was a lack of compliance.

e) The number of compliance orders issued and numbers and amounts of monetary penalties imposed, each also broken down by AODA requirement with which there was a lack of compliance.

f) The number of appeals to the appeal tribunal designated under the AODA, from any AODA orders, and the outcome, also broken down by AODA requirement with which there was a lack of compliance. Please also provide copies of, or links to accessible postings of all appeal tribunal decisions.

10.       If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:

a) In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.

b) In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.

c) In the case of any private sector organization with fewer than 20 employees.

d) In the case of any public sector organization.

11.       Any studies, reports, option papers or other records prepared by the Accessibility Directorate of Ontario, or by any other person or organization, whether within the Ontario Government or outside the Ontario Government, subsequent to the period covered by my August 15, 2013 Freedom of Information application, on options and/or policies or practices for implementing the enforcement powers under the AODA, including, without limiting the generality of the foregoing, the powers to conduct audits, to impose administrative penalties, to issue compliance orders.

15.       In her May 14, 2014 letter to the AODA Alliance, Premier Kathleen Wynne made a written election promise to establish and publicize a toll-free phone number for the public to report AODA violations.

a) What specific steps has the Government taken to publicize this toll-free phone number to the public as a number for reporting AODA violations?

b) Any plans for publicizing the toll-free number to the public as a means to report AODA violations;

c) How many calls on that toll-free number has the Government received since January 2015, reported on a total basis and a monthly basis, limited to instances when the caller asked to report an AODA violation?

d) A breakdown of the AODA violations reported on that toll-free line, e.g. based on public sector versus private sector organization, size of organization, sector of the economy if known, AODA accessibility standard provision alleged to be violated, and any other criteria which the Government has applied to these calls. (I do not seek the identity of the callers.)

16.       On February 19, 2015, Economic Development Minister Brad Duguid sent a letter to me, in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance. In it he reported that in 2013, the Government audited 1,906 private sector organizations under the AODA. In 2014, it audited 1,954 organizations in the private sector. Yet, in 2015, the Government plans only to audit 1,200 organizations.

I request any records regarding the Government’s decision of how many organizations to audit in 2015, including any changes to that number. Without limiting the generality of this request, I seek any record regarding who took part in any decision, options considered, and the reasons for any decision, setting that number for audits in this year, as well as the identification of the person or persons who made or approved any decision.

18.       In her May 16, 2014 letter to me in my capacity as chair of the Accessibility for Ontarians with Disabilities Act Alliance, setting out the Government’s 2014 accessibility election pledges, Premier Wynne stated:

“With respect to additional enforcement activities, we commit to investigating the possibility of having government inspectors and investigators enforce the AODA within the context of existing resources and as training capacity exists.”

The AODA Alliance has advocated to the Government for at least four years that the Government deputize inspectors under other legislation to also serve as an AODA inspector or director. We understand that the Government conducted some research or investigation of this proposal.

a) What specific pilot project or projects have been conducted since 2010 on this, with what Ministry or Ministries, and over what periods?

b) I seek records addressing any exploration, design, conduct and/or evaluation of this avenue for enforcing and/or promoting compliance with the AODA, as far back as 2010, and up to the date that this application is answered.

c) How many inspectors, investigators or other public officials in other ministries were given authority to engage in enforcement activity under the AODA, divided by the ministry involved and the specific pilot project?

d) How many public sector organizations were the subject of any audit or inspections as part of this program, in total and divided by year?

e) How many private sector organizations were the subject of any audit or inspections as part of this program, broken down by year and by ministry involved in the program?

f) How many AODA compliance orders were issued as a result of this program, broken down by public sector or private sector organization and the category or size of organization?

g) How many monetary penalties were issued as a result of this program, broken down by public sector or private sector organization?

h) What training was given to officials in other ministries who were deputized as an AODA inspector or director, and what was the duration of that training?

i) What feedback, if any, was solicited from or obtained from officials of other ministries who were deputized as an AODA inspector or director, about their experience as such, and the effectiveness of this strategy.

j) What specific plans does your Ministry have to continue or expand using inspectors or investigators at other ministries to take part in enforcement of the AODA? What are the time lines for these plans?

22.       In addition to the foregoing, the Accessibility Directorate of Ontario has administered the Enabling Change program for several years.

For each year since 2008:

a) How much was budgeted for and how much was spent by the Ministry in each year on the Enabling Change program? How much is budgeted for that program in the current fiscal year?

b) In each year starting in 2008 for which this information is either already compiled or readily available, please provide a list of each Enabling Change program or grant that the Accessibility Directorate of Ontario funded to any degree, the amount of the grant, the recipient grantee of the grant, and a description of the program funded.

23.       Where available, please provide text of or speaking notes for any speeches by Mr. Brad Duguid since becoming Economic Development, Employment and Infrastructure Minister in June 2014, which address at any point in the speech, accessibility for people with disabilities, including an indication, where available or readily discoverable,  of to whom and where the speech was delivered.

24.       In fall 2014, the Government sponsored an advertising campaign on accessibility and compliance with the Accessibility for Ontarians with Disabilities Act. I seek:

a) the duration of this campaign;

b) the number of advertisements that were run respectively on:
(i)        radio
(ii)       television
(iii)      newspaper
(iv)      any other media;

c) the text of the advertisements that were broadcast or published;

d) the budget which the Government allocated for this campaign, and the actual cost of this campaign;

e) records of any plans for any future campaign, including content, dates, and allocated or estimated budget;

f) The approved or estimated budget for the AODA advertising campaign on accessibility which the Government announced on June 3, 2015.

25.       Economic Development Minister Brad Duguid has made public statements about the impact of the foregoing AODA fall 2014 advertising campaign on levels of compliance with, or inquiries to the Government, about the Accessibility for Ontarians with Disabilities Act.  What information has the Government tracked and compiled on any changes in levels of compliance or numbers of inquiries of the Government associated with this advertising campaign?

27.       What has the Ministry of Economic Development, Employment and Infrastructure done, and what new programs, policies or initiatives has it established, or existing ones has it modified, since May 28, 2013, to ensure that accessibility is integrated into all programs and activities at the Ministry, including, for example:

a) programs aimed at economic development within Ontario;

b) programs that assist in expanding international markets for goods and services originating in Ontario;

c) programs dealing with employment, including but not limited to that specifically aim at expanding employment opportunities for people with disabilities; and

d) programs dealing with infrastructure.

Where possible, please advise when each new initiative or revised initiative was implemented to address disability accessibility, and when that initiative has terminated or is projected to terminate.

28.       From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.

29.       In January 2013, the Government announced that it planned to consolidate all development of new accessibility standards and the mandatory review of existing accessibility standards under the auspices of the Accessibility Standards Advisory Council. It said it did so in response to the 2010 final report of the Charles Beer Independent Review of the AODA.

I seek any records from February 2010 to the present which address the development of and/or the implementation of the decision of the Government’s response to this recommendation of the final Charles Beer Report. Without limiting the generality of the foregoing, I seek any records which address the question of whether the Government expected that all future mandatory reviews of existing AODA accessibility standards and/or the development of proposals for all new accessibility standards would be carried out solely by the persons appointed as members of ASAC, or whether the Government contemplated or considered that multiple committees might be appointed under the auspices of ASAC, to address different accessibility standards at the same time.

31.       Any analysis or survey of laws in other jurisdictions in Canada or elsewhere around the world that address accessibility for people with disabilities. I do not seek any of this dating prior to 2013.

Exhibit “C”

Clarification Requirements

Q10 – If not already disclosed as a result of my August 15, 2013 Freedom of Information application, any plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any audit or inspection of that organization:
a) In the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.
b) In the case of any private sector organization with 20 or more employees that has filed a required Accessibility Report under s. 14 of the AODA.
c) In the case of any private sector organization with fewer than 20 employees.
d) In the case of any public sector organization.

Clarification: The ministry assumes you are seeking any updated versions of documents that were provided in 2013 along with any net new, final documents. Is that correct?

Q 16, 18b and 29-

Clarification: For each of these questions, the ministry seeks clarification of your use of the term “records.” The ministry assumes that you are asking for approved documents such as: briefing decks, decision notes, information notes. Is this correct?

Q28 – From 2012 to the present, any record of proposals, options, research or recommendations produced by or on behalf of the Accessibility Directorate of Ontario, on ways to increase the accessibility of tourism or hospitality services in any part of Ontario in connection with the 2015 Toronto Pan/ParaPan American Games, or to produce a legacy of increased tourism/ hospitality services accessibility as a result of the Games. Without limiting the generality of this request, tourism and hospitality services includes restaurants, stores, public transit, taxis, hotels, and other such services available to the public.

Clarification question: The ministry assumes you are not seeking documents related to the Canadian Paralympic Committee (CPC) as these are related to sport and not accessible tourism.

 

Exhibit “D”

Ministry of Economic Development & Growth
Ministry of Energy
Ministry of Infrastructure
Ministry of Research, Innovation & Science

Corporate Services Division
Hearst Block, 3rd Floor
900 Bay Street
Toronto ON M7A 2C1

 

 Ministère du Développement économique et de la Croissance
Ministère de l’Énergie 
Ministère de l’Infrastructure
Ministère de la Recherche, 
de l’Innovation et de la Science

Division des services ministériels
3ème étage, édifice Hearst
900, rue Bay
Toronto ON M7A 2C1

December 5, 2016
David Lepofsky
610 Castlefield Ave.
Toronto, ON  M5N 1L8
(Address omitted )

Dear Mr. Lepofsky,
RE: MEDEI 2015-12 – Interim Decision – Part “B” records
On August 31, 2015, in response to your access request under the Freedom of Information and Protection of Privacy Act (FIPPA), the ministry provided you with an interim decision and fee estimate providing a breakdown of the estimate for search time related to Part “B” of this request.
The request was divided into 31 items of which the ministry has provided you with records related to 16 items (Part “A”) on November 25, 2015.  Part “B” of this request contains the remaining 15 items.
Part “B” of the request consists of questions that are more complex and require search time of an hour or more for the ministry to locate responsive records.  The breakdown for the following items was summarized in the ministry’s fee waiver response of September 24, 2015:
Items: 4, 5, 10, 11, 15, 16, 18, 22, 23, 24, 25, 27, 28, 29 and 31
In response to the remaining 15 items included in Part “B”, there are 6 items which contain 376 documents that will likely require minor redactions pursuant to FIPPA.
The following are some FIPPA exemptions that are relevant to the responsive records:

  • Section 12- The records include Treasury Board submissions that contain policy options or recommendations submitted, or prepared for submission, to the Executive Council or its committees.
  • Section 13 – The records may contain information that is considered advice to government.
  • Section 19- The records may contain legal advice that is subject to solicitor-client privilege.

The ministry has not concluded the assessment and, as such, there may be additional exemptions applied in accordance with FIPPA.
On March 10, 2016, you appealed the ministry’s decision on both the fee estimate and the denial of a fee waiver.  As of November 29, 2016, the Information and Privacy Commissioner moved the appeal to the inquiry stage and an oral hearing is set for January 31, 2017.
If you have any questions, please contact me at 416-326-1344 quoting the case number MEDEI 2015-12 assigned to your file.

Sincerely,
Original signed by Patricia Carroll-Tougas
Patricia Carroll-Tougas
Freedom of Information Coordinator

Cc: Diane Smith

 

 

 

Exhibit “F”

Ontario
Access or Correction Request
Freedom of Information and Protection of Privacy Act
Municipal Freedom of Information and Protection of Privacy Act

A.        Type of Request:

Access to general records (non-personal information)

Name of institution request made to:  Freedom of Information and Privacy Services, Service Management and Facilities Branch, Corporate Services Division, Ministry of Economic Development, Trade and Employment

B.        Requester’s Information:

Last name:  Lepofsky             First name:  David
(Personal information omitted)
C.        Description of Records or Correction Requested

1.         How many private sector organizations in Ontario with 20 or more employees had filed required accessibility reports under section 14 of the Accessibility for Ontarians with Disabilities Act 2005 (“AODA”) by the end of December 31, 2012?

2.         What is the total number of private sector organizations in Ontario with 20 or more employees that were required to file an accessibility report under section 14 of the AODA by December 31, 2012? If the Government does not have an exact number, then what estimates does the Government have?

3.         Of the total or estimated number of private sector organizations with 20 or more employees who were required to file an accessibility report under section 14 of the AODA by the end of 2012, how many have not filed a required accessibility report as of August 15, 2013? If that information is not readily available, then by the nearest readily available date that has passed as of the date of the receipt of this Freedom of Information application.

4.         How many public sector organizations were required to file accessibility reports under section 14 of the AODA?

5.         Any past or current plans, policies, directives or instructions for enforcement of any requirements or provisions of the AODA or of any accessibility standards enacted under it, including for example, for conducting any inspection of that organization:

a) in the case of any private sector organization with 20 or more employees that has not filed the required accessibility report under section 14 of the AODA.

b) In the case of any private sector organization with 20 or more employees, that has filed a required Accessibility Report under s. 14 of the AODA.

c) in the case of any private sector organization with less than 20 employees.

6.         Without limiting the generality of the foregoing, any plans, policies, directives or instructions for auditing or inspecting private sector organizations for compliance by any public or private sector organization with the AODA and any accessibility standards enacted under it, including, for example, any plans or estimates of how many organizations to be audited or inspected per year.

7.         How many public sector organizations have been audited or inspected for compliance with the AODA or accessibility standards enacted under it by 2010, broken down by year if possible.

8.         How many private sector organizations with at least 20 employees have been audited or inspected for compliance with the AODA or accessibility standards enacted under it?

9.         Any plans, inquiries, explorations or investigations by the Accessibility Directorate of Ontario, or conducted on its behalf or at its request, to arrange for inspectors, investigators, auditors or other officials working for or on behalf of any organization within the Ontario Government, to act as directors, inspectors or other enforcement officials under the AODA, to discharge any enforcement powers and authorities under the AODA, including, for example, any powers of directors and/or inspectors appointed under the AODA.

10.       To how many private sector organizations, potentially obliged to comply with the AODA or accessibility standards enacted under it, did the Accessibility Directorate of Ontario, or any officials, persons or organizations acting on its behalf or under its direction, send an email, letter or other correspondence, in 2011 or 2012, to advise that private sector organization that it is or may be obliged to file an accessibility report under s. 14 of the AODA by the end of 2012?

11.       A sample of the letters sent to organizations referred to in the preceding paragraph.

12.       To how many private sector organizations, potentially obliged to comply with the AODA or accessibility standards enacted under it, did the Accessibility Directorate of Ontario, or any officials, persons or organizations acting on its behalf or under its direction, send an email, letter or other correspondence, in 2013 to advise that private sector organization that it has not filed an accessibility report under s. 14 of the AODA by the end of 2012?

13.       An example of the standard letter if any, that the Ministry sends to an organization which has not filed an accessibility report required under s. 14 of the AODA, (excluding any information that would identify the recipient organization.)

14.       In how many cases per year since 2010 has any official of the Ontario Government or any official acting on its behalf, issued a compliance order and/or imposed an administrative penalty under the AODA on a public sector organization or a private sector organization for non-compliance with any provision of the AODA or accessibility standards enacted under it? Please break down this information by year, and based on whether it was a public sector organization or a private sector organization. Please also specify:

a) What were the amounts, if any, of the administrative penalties?

b) What, if any, were the contents of the compliance orders?

c) Were there any appeals from these compliance orders or administrative penalties?

d) If so, what was the result of the appeals? How many appeals, if any, are now pending?

15.       Any studies, reports, option papers or other documents or records prepared by the Accessibility Directorate of Ontario, or by any other person or organization, whether within the Ontario Government or outside the Ontario Government, on options and/or policies or practices for implementing the enforcement powers under the AODA, including, without limiting the generality of the foregoing, the powers to conduct audits, to impose administrative penalties, to issue compliance orders.

16.       The number of

a) directors appointed under s. 30 of the AODA in total since the AODA was enacted;

b) directors appointed under s. 30 of the AODA now working within the Ontario Government or under its authority;

c) inspectors appointed under s. 18 of the AODA per year since 2007; and

d) inspectors appointed under s. 18 of the AODA now employed in or on behalf of the Ontario Government.

17.       The number of organizations that an inspector, appointed under s. 18 of the AODA, has physically visited to discharge the powers of conducting an inspection under the AODA since 2010, divided by year.

18.       The number of times per year, commencing in 2010, that an administrative penalty order was filed with a local registrar of the Superior Court of Justice  under s. 23 of the AODA.

19.       Any requests for permission, authority, directions or  instructions by or on behalf of the Accessibility Directorate of Ontario, on use or deployment of any enforcement powers under the AODA including but not limited to those specified in sections 12 to 28 of the AODA e.g. any request for permission to take enforcement actions such as inspections under the AODA.

20.       Any permission, authority, directions or  instructions, or any refusal of permission, authority, directions or  instructions, formal or informal, given to the Accessibility Directorate or any official of, or working on behalf of the Accessibility Directorate, on whether or to what extent the enforcement powers under the AODA (including but not limited to those in sections 12 to 28 of the AODA) are to be used, and if so, under what circumstances they are to be used. This includes, without limiting the generality of the foregoing, any directions or  instructions that the AODA or any accessibility standards under it, are not to be enforced, or limiting in any way the deployment or use of any enforcement powers conferred by or under the AODA. This entire request includes any directions, instructions, authority or permission given or refused  from any source, such as (but not limited to) those from a minister’s office, deputy minister’s office, Cabinet Office, or the Premier’s Office.

21.       Broken down by year since 2005:

a) the annual budget approved for the Accessibility Directorate of Ontario in that year; and

b) the total expenditures of the Accessibility Directorate of Ontario for that year.

CLARIFICATIONS

1.         Please provide all documents in an accessible format in MS Word, so that they can be read by screen-reading software used by people with vision loss and other print disabilities.

2.         Please provide any requested information as soon as available. In other words, please do not hold back all requested information until it is all assembled. If some information can be quickly provided, while other requested information may take longer, please provide the immediately available information as soon as possible, and do not hold it back until all other requested information is sought and obtained.

3.         If some requested information would require extensive efforts to collect and provide, please contact me. I am open to adjusting the request for information to reduce the time and cost to the Government of complying with this request, so long as I can obtain the substance of the information I am seeking.

4.         I realize that until March 2013, the Accessibility Directorate was within the Ministry of Community and Social Services. To the extent that the information requested was not brought forward by the Accessibility Directorate to the Ministry of Economic Development, Trade and Employment when the Accessibility Directorate of Ontario changed Ministries in or about March 2013, please forward my application for disclosure of this information to the appropriate officials within the Ministry of Community and Social Services.

5.         I am not seeking disclosure of any privileged legal advice sought or obtained by or within the Government.

Time period of the records:

From  (yyyy/mm/dd):  see above                                To  (yyyy/mm/dd):  see above

Method of access:  Receive copy

D.        Payment and Signature

$5 application fee –  Cheque

Signature

Date (yyyy/mm/dd)  2013/08/15

Personal information contained on this form is collected under the Freedom of Information and Protection of Privacy Act or Municipal Freedom of Information and Protection of Privacy Act and will be used to answer your request.

Questions about this collection should be directed to the Freedom of Information and Privacy Coordinator at the institution where you make the request.

E.         Institution Use Only

Date received (yyyy/mm/dd):

Request no.:

Comments:

7540-1539E (2010/03)      © Queen’s Printer for Ontario, 2010

 

Exhibit “G”

February 13, 2014

David Lepofsky
(Personal imformation omitted)

Dear Mr. Lepofsky,

RE: MEDTE File #2013-34

This is a follow up to your Freedom of Information and Protection of Privacy access request and $5.00 application fee received by the Ministry of Economic Development, Trade and Employment on August 16, 2013 and subsequently clarified on September 19, 2013.

It is my understanding that you have received the requested information.  I will therefore consider your access request to be closed.

Please contact Pat Carroll-Tougas at 416-326-1344 if you have any questions in this regard.

Sincerely,

Original signed by David Clifford

David Clifford
Assistant Deputy Minister
Corporate Services Division

c. Pat Carroll-Tougas